B-178903, MAR 8, 1974

B-178903: Mar 8, 1974

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CLAIMANT WAS PRECLUDED FROM RECEIVING ALL HIS RETIRED PAY BY SEC. 212. RESERVE OFFICERS WERE NO LONGER BOUND BY SUCH DUAL COMPENSATION PROVISIONS. IS INAPPLICABLE. THERE HAVING BEEN NO ERROR IN STATUS DURING PERIOD WHICH WAS ADMINISTRATIVELY CORRECTED UNDER 10 U.S.C. 1552. EARLIER DISALLOWANCE OF CLAIM IS SUSTAINED. MARK: REFERENCE IS MADE TO YOUR LETTER OF MAY 8. IN THAT SETTLEMENT YOU WERE ADVISED THAT UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932. 000 PER ANNUM WAS PRECLUDED FROM RECEIVING RETIRED PAY. WERE NOT RELIEVED OF THE DUAL COMPENSATION PROVISIONS OF THE ECONOMY ACT UNTIL THE ENACTMENT OF PUBLIC LAW 80-153. IS APPLICABLE TO YOUR CASE AND SHOULD BE FOLLOWED.

B-178903, MAR 8, 1974

DURING PERIOD OF CLAIM FOR RETROACTIVE DISABILITY RETIRED PAY WHILE EMPLOYED AS CIVILIAN WITH VA (AUGUST 1, 1946 THROUGH JAN. 13, 1947), CLAIMANT WAS PRECLUDED FROM RECEIVING ALL HIS RETIRED PAY BY SEC. 212, ECONOMY ACT OF 1932, 5 U.S.C. 59A, BUT WITH ENACTMENT OF P.L. 80-153, EFFECTIVE JULY 1, 1947, RESERVE OFFICERS WERE NO LONGER BOUND BY SUCH DUAL COMPENSATION PROVISIONS. HOWEVER, SINCE P.L. 80-153 HAD NO RETROACTIVE PROVISIONS, ACCORDINGLY AND SINCE REASONING IN RAY V. UNITED STATES, 197 CT. CL. 1 (1972), IS INAPPLICABLE, THERE HAVING BEEN NO ERROR IN STATUS DURING PERIOD WHICH WAS ADMINISTRATIVELY CORRECTED UNDER 10 U.S.C. 1552, EARLIER DISALLOWANCE OF CLAIM IS SUSTAINED.

TO COL. ALVIN O. MARK:

REFERENCE IS MADE TO YOUR LETTER OF MAY 8, 1973, REQUESTING RECONSIDERATION OF SETTLEMENT BY OUR CLAIMS DIVISION DATED JUNE 28, 1962, WHICH DISALLOWED YOUR CLAIM FOR RETROACTIVE DISABILITY RETIRED PAY FOR THE PERIOD AUGUST 1, 1946, THROUGH JANUARY 13, 1947, WHILE EMPLOYED IN A CIVILIAN CAPACITY WITH THE VETERANS ADMINISTRATION.

IN THAT SETTLEMENT YOU WERE ADVISED THAT UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, 5 U.S.C. 59A, A RETIRED OFFICER OF THE ARMED FORCES OF THE UNITED STATES WORKING FOR THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY AND EARNING MORE THAN $3,000 PER ANNUM WAS PRECLUDED FROM RECEIVING RETIRED PAY. FURTHER, THAT RETIRED OFFICERS OF THE RESERVE FORCES OF THE UNITED STATES, SUCH AS YOURSELF, WERE NOT RELIEVED OF THE DUAL COMPENSATION PROVISIONS OF THE ECONOMY ACT UNTIL THE ENACTMENT OF PUBLIC LAW 80-153, APPROVED JULY 1, 1947, 61 STAT. 238, EFFECTIVE JULY 1, 1947, A DATE SUBSEQUENT TO THE PERIOD INVOLVED IN YOUR SITUATION.

YOU CONTEND THAT THE REASONING IN THE CASE OF CLYDE A. RAY V. UNITED STATES, C. CLS. NO. 442-65, IS APPLICABLE TO YOUR CASE AND SHOULD BE FOLLOWED.

IN THE CASE OF RAY V. UNITED STATES, 197 C. CLS. 1 (1972), THE FACTS SHOW THAT THE SECRETARY OF THE AIR FORCE CORRECTED A RETIRED OFFICER'S RECORD UNDER 10 U.S.C. 1552 TO SHOW THAT THE OFFICER WAS ENTITLED TO DISABILITY RETIREMENT RATHER THAN RETIREMENT BASED ON LENGTH OF SERVICE, EFFECTIVE THE DATE OF HIS INITIAL RETIREMENT, THEREBY RETROACTIVELY PLACING THE OFFICER IN A TAX EXEMPT STATUS AND ENTITLING HIM TO A REFUND FOR THE PERIOD BETWEEN RETIREMENT AND CORRECTION OF THE ERROR. FOLLOWING A CLAIM SUBMITTED BY THE OFFICER FOR THE REFUND, THE AIR FORCE REFERRED HIM TO THE INTERNAL REVENUE SERVICE, INFORMING HIM HIS CLAIM WAS FOR BACK TAXES AND NOT SUBJECT TO ADDITIONAL ADMINISTRATIVE RELIEF BY THE AIR FORCE. THE COURT IN THE RAY CASE GRANTED THE PLAINTIFF RELIEF AND HELD THAT THE PLAINTIFF'S SUIT WAS NOT ONE FOR REFUND OF TAXES PAID BUT A SUIT TO EFFECTUATE IN FULL THE ADMINISTRATIVE REMEDY ALLOWED UNDER 10 U.S.C. 1552.

THE RECORD IN YOUR CASE SHOWS THAT DURING THE PERIOD OF YOUR CLAIM YOU WERE PRECLUDED FROM RECEIVING ALL OF YOUR RETIRED PAY PURSUANT TO SECTION 212 OF THE ECONOMY ACT OF 1932 BUT THAT EFFECTIVE JULY 1, 1947, RESERVE OFFICERS, SUCH AS YOURSELF, WERE NO LONGER BOUND BY THE DUAL COMPENSATION RESTRICTIONS OF THE EARLIER ACT. HOWEVER, THERE WERE NO RETROACTIVE PROVISIONS IN THE LATER ACT. THEREFORE, SINCE YOUR CLAIM ANTEDATED JULY 1, 1947, AND SINCE THERE IS NO SHOWING THAT THERE WAS ANY ERROR IN YOUR STATUS DURING THAT TIME WHICH WAS ADMINISTRATIVELY CORRECTED UNDER THE PROVISIONS OF 10 U.S.C. 1552, IT IS OUR VIEW THAT THE REASONING IN THE RAY CASE IS INAPPLICABLE TO YOUR SITUATION.

ACCORDINGLY, THE ACTION TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR RETROACTIVE RETIRED PAY FROM AUGUST 1, 1946, THROUGH JANUARY 13, 1947, IS SUSTAINED.