B-67923, JULY 2, 1948, 28 COMP. GEN. 1

B-67923: Jul 2, 1948

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WHO WERE APPOINTED AS INSTRUCTORS AT THE NAVAL ACADEMY. ARE NOT CIVILIAN MEMBERS OF THE TEACHING STAFF WITHIN THE MEANING OF THE ACT OF JANUARY 16. IS FOR EQUAL APPLICATION TO A NAVAL RESERVE OFFICER RETIRED FOR SERVICE INCURRED DISABILITY PURSUANT TO SECTION 4 OF THE ACT OF AUGUST 27. IT APPEARS THAT COMMANDER COATES WAS EMPLOYED AS A CIVILIAN PROFESSOR AT THE NAVAL ACADEMY ON SEPTEMBER 1. THAT HE WAS TEMPORARILY APPOINTED TO THE RANK OF COMMANDER PURSUANT TO THE ACT OF JULY 24. IT FURTHER APPEARS THAT COMMANDER COATES WAS DETACHED FROM DUTY AT THE NAVAL ACADEMY ON JUNE 28. AT WHICH TIME HE WAS PHYSICALLY EXAMINED AT THE NAVAL PERSONNEL SEPARATION CENTER. THE OFFICER REPORTED TO THE NAVAL RETIRING BOARD AND WAS ORDERED TO PROCEED TO HIS HOME AND AWAIT ORDERS PENDING ACTION OF SUCH BOARD.

B-67923, JULY 2, 1948, 28 COMP. GEN. 1

RETIREMENT - RETIRED NAVAL RESERVE OFFICER REAPPOINTED AS NAVAL ACADEMY INSTRUCTOR - GOVERNMENT CONTRIBUTION TOWARD RETIREMENT ANNUITIES IN THE ABSENCE OF STATUTORY PROVISIONS PERMITTING THE RECEIPT OF DUAL RETIRED PAY BENEFITS, THE RULE IN 15 COMP. GEN. 1099 THAT NAVAL OFFICERS, RETIRED FOR PHYSICAL DISABILITY WITH PAY, WHO WERE APPOINTED AS INSTRUCTORS AT THE NAVAL ACADEMY, ARE NOT CIVILIAN MEMBERS OF THE TEACHING STAFF WITHIN THE MEANING OF THE ACT OF JANUARY 16, 1936, AS AMENDED, SO AS TO BE ENTITLED TO THE RETIREMENT BENEFITS PRESCRIBED THEREIN AND TO GOVERNMENT AID IN PURCHASING RETIREMENT ANNUITY, IS FOR EQUAL APPLICATION TO A NAVAL RESERVE OFFICER RETIRED FOR SERVICE INCURRED DISABILITY PURSUANT TO SECTION 4 OF THE ACT OF AUGUST 27, 1940, WHO SERVED AS A CIVILIAN INSTRUCTOR PRIOR AND SUBSEQUENT TO ENTRY INTO THE SERVICE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JULY 2, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 7, 1947, REQUESTING DECISION ON SEVERAL QUESTIONS CONCERNING THE RIGHT OF COMMANDER WENDELL M. COATES, U.S. NAVAL RESERVE, RETIRED, NOW EMPLOYED AS A PROFESSOR AT THE U.S. NAVAL ACADEMY, TO PARTICIPATE IN THE RETIREMENT PROGRAM AUTHORIZED BY THE ACT OF JANUARY 16, 1936, 49 STAT. 1092, AS AMENDED, FOR CIVILIAN MEMBERS OF THE TEACHING STAFFS OF THE NAVAL ACADEMY.

IT APPEARS THAT COMMANDER COATES WAS EMPLOYED AS A CIVILIAN PROFESSOR AT THE NAVAL ACADEMY ON SEPTEMBER 1, 1931; THAT HE ACCEPTED APPOINTMENT AS A LIEUTENANT COMMANDER, U.S. NAVAL RESERVE ON MAY 14, 1940, AND CONTINUED HIS EMPLOYMENT AS A CIVILIAN PROFESSOR UNTIL JUNE 30, 1942, WHEN HE REPORTED TO THE SUPERINTENDENT, U.S. NAVAL ACADEMY, FOR ACTIVE DUTY AS A LIEUTENANT COMMANDER AT THE POST-GRADUATE SCHOOL; AND THAT HE WAS TEMPORARILY APPOINTED TO THE RANK OF COMMANDER PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, AS AMENDED. IT FURTHER APPEARS THAT COMMANDER COATES WAS DETACHED FROM DUTY AT THE NAVAL ACADEMY ON JUNE 28, 1946, AT WHICH TIME HE WAS PHYSICALLY EXAMINED AT THE NAVAL PERSONNEL SEPARATION CENTER, WASHINGTON, D.C., AND FOUND NOT PHYSICALLY QUALIFIED FOR RELEASE FROM ACTIVE DUTY; AND THAT ON THE SAME DAY HE REPORTED TO THE NAVAL HOSPITAL, BETHESDA, MARYLAND. ON SEPTEMBER 19, 1946, THE OFFICER REPORTED TO THE NAVAL RETIRING BOARD AND WAS ORDERED TO PROCEED TO HIS HOME AND AWAIT ORDERS PENDING ACTION OF SUCH BOARD. HE RESUMED HIS FORMER CIVILIAN EMPLOYMENT AS A PROFESSOR AT THE NAVAL ACADEMY THE FOLLOWING DAY, SEPTEMBER 20, 1946, AT AN ANNUAL SALARY OF $6,000 PER ANNUM. THEREAFTER, BY ORDERS DATED APRIL 27, 1947, THE OFFICER WAS TRANSFERRED TO THE RETIRED LIST WITH THE RANK OF LIEUTENANT COMMANDER EFFECTIVE MAY 1, 1947, FOR PHYSICAL DISABILITY INCURRED AS A RESULT OF AN INCIDENT OF THE SERVICE, PURSUANT TO THE PROVISIONS OF SECTION 1453, REVISED STATUTES (34 U.S.C. 417), AND SECTION 4 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 864 (34 U.S.C. 855C-1).

SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF AUGUST 27, 1940, SUPRA, PROVIDES AS FOLLOWS:

ALL OFFICERS, NURSES, WARRANT OFFICERS, AND ENLISTED MEN OF THE UNITED STATES NAVAL RESERVE OR UNITED STATES MARINE CORPS RESERVE, WHO, IF CALLED OR ORDERED INTO ACTIVE NAVAL OR MILITARY SERVICE BY THE FEDERAL GOVERNMENT FOR EXTENDED NAVAL OR MILITARY SERVICE IN EXCESS OF THIRTY DAYS, SUFFER DISABILITY OR DEATH IN LINE OF DUTY FROM DISEASE OR INJURY WHILE SO EMPLOYED SHALL BE DEEMED TO HAVE BEEN IN THE ACTIVE NAVAL SERVICE DURING SUCH PERIOD, AND THEY OR THEIR BENEFICIARIES SHALL BE IN ALL RESPECTS ENTITLED TO RECEIVE THE SAME PENSIONS, COMPENSATION, RETIREMENT PAY, AND HOSPITAL BENEFITS AS ARE NOW OR MAY HEREAFTER BE PROVIDED BY LAW OR REGULATION FOR OFFICERS, WARRANT OFFICERS, NURSES, AND ENLISTED MEN OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY OR MARINE CORPS: PROVIDED, THAT IF A PERSON WHO IS ELIGIBLE FOR THE BENEFITS PRESCRIBED BY THIS ACT BE ALSO ELIGIBLE FOR PENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 23, 1937 (50 STAT. 305), COMPENSATION FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION UNDER THE PROVISIONS OF SECTION 304 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1181), OR RETIRED PAY UNDER THE PROVISION OF SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), HE SHALL ELECT WHICH BENEFIT HE SHALL RECEIVE.

SECTION 1453, REVISED STATUTES, (34 U.S.C. 417), READS AS FOLLOWS:

WHEN A RETIRING BOARD FINDS THAT AN OFFICER IS INCAPACITATED FOR ACTIVE SERVICE, AND THAT HIS INCAPACITY IS THE RESULT OF AN INCIDENT OF THE SERVICE, SUCH OFFICER SHALL, IF SAID DECISION IS APPROVED BY THE PRESIDENT, BE RETIRED FROM ACTIVE SERVICE WITH RETIRED PAY.

UPON RETIREMENT, MR. COATES WAS ADVANCED ON THE RETIRED LIST TO THE RANK OF COMMANDER PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I, IT HAVING BEEN DETERMINED THAT HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT IN THE RANK OF COMMANDER. IN VIEW OF DECISION OF JUNE 16, 1936, 15 COMP. GEN. 1099, REFERRED TO IN YOUR LETTER, DECISION IS REQUESTED ON SEVERAL QUESTIONS AS FOLLOWS:

(1) WHETHER THE RULING PRESCRIBED IN THE COMPTROLLER GENERAL'S DECISION OF JUNE 16, 1936 (15 COMP. GEN. 1099), IS APPLICABLE TO AN OFFICER OF THE NAVAL RESERVE WHO IS TRANSFERRED TO THE RETIRED LIST UNDER SECTION 8 OF THE ACT OF JULY 24, 1941 (34 U.S.C. 855C-1), OR WHO IS TRANSFERRED TO THE RETIRED LIST UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946 ( PUBLIC LAW 305-79TH CONGRESS).

THE FIRST FOUR SECTIONS OF THE ACT OF JANUARY 16, 1936, 49 STAT. 1092 (34 U.S.C. 1073-1073D), READ AS FOLLOWS.

THAT CIVILIAN MEMBERS OF THE TEACHING STAFFS OF THE UNITED STATES NAVAL ACADEMY AND POSTGRADUATE SCHOOL, WHOSE EMPLOYMENT COMMENCES FROM AND AFTER THE DATE OF APPROVAL OF THIS ACT, SHALL, AS A PART OF THEIR CONTRACTS OF EMPLOYMENT BE REQUIRED TO CARRY, DURING SUCH EMPLOYMENT, A DEFERRED ANNUITY POLICY, HAVING NO CASH SURRENDER OR LOAN PROVISION, FROM A JOINT- STOCK LIFE INSURANCE CORPORATION, INCORPORATED UNDER THE LAWS OF ANY STATE OF THE UNITED STATES, WHICH HAS A CHARTER RESTRICTION THAT ITS BUSINESS MUST BE CONDUCTED WITHOUT PROFIT TO ITS STOCKHOLDERS.

SEC. 2. TOWARD THE PURCHASE OF SAID DEFERRED ANNUITY, EACH MEMBER OF SUCH TEACHING STAFFS SHALL BE REQUIRED TO REGISTER A MONTHLY ALLOTMENT THROUGH THE NAVY ALLOTMENT OFFICE, NAVY DEPARTMENT, WASHINGTON, DISTRICT OF COLUMBIA, EQUIVALENT IN AMOUNT TO 10 PER CENTUM OF HIS MONTHLY BASIC SALARY. PROVIDED, THAT FOR EACH MONTH SUCH ALLOTMENT IS REGISTERED, THE PAY ACCOUNTS OF SUCH MEMBER SHALL BE CREDITED MONTHLY FROM SUCH APPROPRIATIONS AS MAY BE MADE FOR THIS PURPOSE WITH AN ADDITIONAL SUM EQUIVALENT TO 5 PER CENTUM OF HIS MONTHLY BASIC SALARY.

SEC. 3. THE RETIRING AGE OF ALL CIVILIAN MEMBERS OF THE TEACHING STAFFS SET FORTH IN THIS ACT SHALL BE THE 30TH DAY OF JUNE FOLLOWING THEIR SIXTY- FIFTH BIRTHDAY, OR ANY DATE BETWEEN THEIR SIXTY-FIFTH BIRTHDAY AND THE FOLLOWING 30TH DAY OF JUNE UPON WHICH THEIR EMPLOYMENT MAY BE TERMINATED. PROVIDED, THAT IN THE DISCRETION OF THE SECRETARY OF THE NAVY, SUCH RETIRING AGE MAY BE EXTENDED TO NOT BEYOND THE SEVENTIETH BIRTHDAY IN INDIVIDUAL AND SPECIAL CASES.

SEC. 4. CIVILIAN MEMBERS OF THE TEACHING STAFFS OF THE NAVAL ACADEMY AND POSTGRADUATE SCHOOL, WHO ARE SO EMPLOYED ON THE DATE OF APPROVAL OF THIS ACT, MAY, AT THEIR OWN REQUEST, IF MADE WITHIN SIXTY DAYS THEREAFTER TO THE SECRETARY OF THE NAVY, PARTICIPATE IN THE BENEFITS UNDER THE PROVISIONS OF SECTIONS 1 AND 2 OF THIS ACT. EACH SUCH MEMBER OF THE TEACHING STAFFS WHO SO PARTICIPATES AND WHO UPON REACHING THE DATE OF RETIREMENT AS SET FORTH IN SECTION 3 OF THIS ACT HAS AN INSUFFICIENT ACCUMULATION OF PREMIUM PAYMENTS TO HIS CREDIT TO HAVE PURCHASED FOR HIM AN ANNUITY OF $1,200 PER ANNUM, SHALL BE PAID BY THE SECRETARY OF THE NAVY FROM SUCH APPROPRIATIONS AS MAY BE MADE FOR SUCH PURPOSE SUCH AMOUNTS THAT, TOGETHER WITH HIS PURCHASED ANNUITY, WILL MAKE HIS TOTAL ANNUITY $1,200 PER ANNUM. EACH SUCH MEMBER OF THE TEACHING STAFFS, WHO SO PARTICIPATES AND WHO IS FORCED TO RETIRE FOR PHYSICAL INCAPACITY PRIOR TO HIS REACHING THE PRESCRIBED RETIREMENT AGE, SHALL BE PAID BY THE SECRETARY OF THE NAVY, FROM SUCH APPROPRIATIONS AS MAY BE MADE FOR SUCH PURPOSE, SUCH AMOUNTS WHICH TOGETHER WITH HIS PURCHASED ANNUITY, WILL MAKE HIS TOTAL ANNUITY EQUIVALENT TO AN AMOUNT NOT EXCEEDING $1,200 PER ANNUM, WHICH WOULD HAVE BEEN DUE HIM HAD THE PROVISIONS OF THIS ACT BEEN IN EFFECT ON THE DATE OF HIS ORIGINAL EMPLOYMENT: PROVIDED, THAT EACH SUCH MEMBER OF THE TEACHING STAFFS WHO IS SO EMPLOYED ON THE DATE OF APPROVAL OF THIS ACT AND WHO IS ENTITLED TO RETIREMENT AND RETIREMENT BENEFITS UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT OF 1920, AS AMENDED, MAY ELECT TO CONTINUE THEREUNDER, OR HE MAY ELECT TO PARTICIPATE IN THE BENEFITS UNDER THE PROVISIONS OF THIS SECTION, NO FURTHER DEDUCTIONS SHALL BE MADE FROM HIS PAY FOR CREDIT TO THE CIVIL-SERVICE RETIREMENT FUND, AND THE CIVIL SERVICE COMMISSION SHALL CLOSE HIS ACCOUNT WITH SUCH FUND UNDER THE SAME PROVISIONS AS THOUGH HE VOLUNTARILY SEPARATED HIMSELF FROM THE FEDERAL SERVICE, EXCEPT THAT THE AMOUNT OF SUCH CREDIT WILL BE RETAINED IN THE CIVIL-SERVICE RETIREMENT FUND AND REMAIN SUBJECT TO CLAIM BY, AND PAYMENT TO, HIM, HIS BENEFICIARY, OR HIS ESTATE ONLY IN THE EVENT OF HIS SEPARATION FROM THE FEDERAL SERVICE BY DEATH OR OTHERWISE BEFORE RETIREMENT UNDER THE PROVISIONS OF THIS ACT, AND THEN ONLY IN THE AMOUNT BY WHICH SUCH CREDIT EXCEEDS THE TOTAL AMOUNT OF 5 PER CENTUM OF HIS BASIC SALARY WHICH MAY HAVE BEEN CREDITED TO HIS MONTHLY PAY ACCOUNTS UNDER THE PROVISIONS OF SECTION 2 OF THIS ACT.

SECTION 1 OF THE ACT OF NOVEMBER 28, 1943, 57 STAT. 594, AMENDED THE SAID SECTION 4 BY ADDING A NEW SECTION NO. 4A (34 U.S.C. 1073C-1) WHICH PROVIDES AS FOLLOWS:

SEC. 4A. EACH CIVILIAN MEMBER OF THE TEACHING STAFFS WHO IS HEREAFTER RETIRED ON OR AFTER REACHING THE AGE OF RETIREMENT SET FORTH IN SECTION 3 OF THIS ACT SHALL BE PAID A LIFE ANNUITY, TERMINABLE ON HIS DEATH, AT THE RATE OF THE FOLLOWING TOTAL ANNUAL AMOUNT. THE AVERAGE ANNUAL BASIC SALARY, PAY, OR COMPENSATION RECEIVED BY SUCH CIVILIAN TEACHER DURING ANY FIVE CONSECUTIVE YEARS OF ALLOWABLE SERVICE AT THE OPTION OF SUCH TEACHER, MULTIPLIED BY THE NUMBER OF YEARS OF SERVICE, NOT EXCEEDING THIRTY-FIVE YEARS, AND DIVIDED BY SEVENTY. THE RETIREMENT ANNUITY PAYABLE TO EACH SUCH RETIRED TEACHER, UNDER ANY ANNUITY POLICY PROVIDED FOR BY THIS ACT, OR UNDER THE PROVISIONS OF SECTION 4 OF THIS ACT, SHALL BE COUNTED AS PAYABLE ON ACCOUNT OF THE RETIREMENT ANNUITY PROVIDED IN THIS SECTION 4A, AND THE SECRETARY OF THE NAVY SHALL PAY TO EACH SUCH RETIRED TEACHER, FROM SUCH APPROPRIATIONS AS MAY BE MADE FOR THE PURPOSE, SUCH ADDITIONAL SUMS, IF ANY, AS WILL BRING THE TOTAL ANNUAL SUM PAID TO SUCH RETIRED TEACHER TO THE TOTAL ANNUAL AMOUNT PRESCRIBED IN THIS SECTION 4A. PROVIDED, THAT NOTHING HEREIN CONTAINED SHALL OPERATE TO REDUCE THE RETIREMENT ANNUITY WHICH WOULD HAVE BEEN PAYABLE TO ANY SUCH RETIRED TEACHER IF THIS SECTION HAD NOT BEEN ENACTED: AND PROVIDED FURTHER, THAT NO PAYMENTS UNDER THIS SECTION SHALL BE MADE TO ANY MEMBER OF SAID STAFFS WHO SHALL BE ENTITLED TO RETIREMENT AND RETIREMENT BENEFITS UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT OF 1920, AS AMENDED, AND SHALL ELECT, OR SHALL HAVE ELECTED, TO CONTINUE THEREUNDER.

THE SAID SECTION 4 WAS FURTHER AMENDED BY THE ACT OF AUGUST 2, 1946, 60 STAT. 804, 805 (34 U.S.C. 1073C-2 AND 1073C-3), BY ADDING TWO ADDITIONAL SECTIONS NUMBERED 4B AND 4C, WHICH READ AS FOLLOWS:

SEC. 4B. ANY CIVILIAN MEMBER OF THE TEACHING STAFFS TO WHOM THIS ACT APPLIES WHO SHALL HAVE SERVED FOR A TOTAL PERIOD OF NOT LESS THAN FIVE YEARS, AND WHO, BEFORE BECOMING ELIGIBLE FOR RETIREMENT UNDER THE CONDITIONS DEFINED IN THE PRECEDING SECTIONS HEREOF, BECOMES TOTALLY DISABLED FOR USEFUL AND EFFICIENT SERVICE IN HIS POSITION, BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE, OR WILLFUL MISCONDUCT ON THE PART OF THE CIVILIAN MEMBER OF THE TEACHING STAFFS, SHALL UPON HIS OWN APPLICATION OR UPON THE REQUEST OR ORDER OF THE SECRETARY OF THE NAVY BE RETIRED ON AN ANNUITY COMPUTED IN ACCORDANCE WITH PROVISIONS OF SECTION 4A OF THIS ACT. THE ANNUITY WHICH THE GOVERNMENT PAYS TO A CIVILIAN TEACHER WHO IS FORCED TO RETIRE UNDER THIS SECTION SHALL BE THE DIFFERENCE BETWEEN HIS TOTAL ANNUITY AS COMPUTED UNDER SECTION 4A OF THIS ACT AND THE IMMEDIATE LIFE ANNUITY TO WHICH HE IS ENTITLED AT THE TIME OF SUCH RETIREMENT UNDER THE ANNUITY POLICY PROVIDED BY THE ACT. EVERY ANNUITANT RETIRED UNDER THE PROVISIONS OF THIS SECTION, UNLESS THE DISABILITY FOR WHICH HE WAS RETIRED BE PERMANENT IN CHARACTER, SHALL AT THE EXPIRATION OF ONE YEAR FROM THE DATE OF SUCH RETIREMENT AND ANNUALLY THEREAFTER, UNTIL REACHING RETIREMENT AGE AS DEFINED IN SECTION 3 HEREOF, BE EXAMINED BY A BOARD OF MEDICAL OFFICERS APPOINTED BY THE SUPERINTENDENT OF THE NAVAL ACADEMY. IF THE ANNUITANT IS FOUND TO BE SUFFICIENTLY RECOVERED FOR USEFUL AND EFFICIENT SERVICE IN HIS POSITION AND IF HE IS OFFERED REEMPLOYMENT BY THE SUPERINTENDENT OF THE NAVAL ACADEMY, THE ANNUITY BEING PAID HIM BY THE GOVERNMENT SHALL CEASE IMMEDIATELY. IF AN ANNUITANT WHO HAS BEEN RETIRED UNDER THE PROVISIONS OF THIS SECTION IS SUBSEQUENTLY REEMPLOYED BY THE GOVERNMENT, THE ANNUITY BEING PAID TO HIM BY THE GOVERNMENT SHALL BE TERMINATED. IF THE ANNUITANT IS REEMPLOYED AS A CIVILIAN TEACHER AT THE NAVAL ACADEMY, THE ANNUITY WHICH THE GOVERNMENT WILL PAY HIM AT THE TIME OF SUBSEQUENT RETIREMENT SHALL BE THE DIFFERENCE BETWEEN THE TOTAL ANNUITY, COMPUTED UNDER SECTION 4A OF THIS ACT, AND THE IMMEDIATE LIFE ANNUITY WHICH THE TOTAL PREMIUMS, PAID ON HIS ANNUITY CONTRACTS PROVIDED BY THIS ACT, WOULD PURCHASE. PERSON SHALL BE ENTITLED TO RECEIVE AN ANNUITY UNDER THE PROVISIONS OF THIS ACT, AND COMPENSATION UNDER THE PROVISIONS OF THE ACT OF SEPTEMBER 7, 1916, ENTITLED " AN ACT TO PROVIDE COMPENSATION FOR EMPLOYEES OF THE UNITED STATES SUFFERING INJURIES WHILE IN THE PERFORMANCE OF THEIR DUTIES, AND FOR OTHER PURPOSES," COVERING THE SAME PERIOD OF TIME; BUT THIS PROVISIONS SHALL NOT BAR THE RIGHT OF ANY CLAIMANT TO THE GREATER BENEFIT CONFERRED BY EITHER ACT FOR ANY PART OF THE SAME PERIOD. SEC. 4C. ANY CIVILIAN MEMBER OF THE TEACHING STAFFS RETIRING UNDER THE PROVISIONS OF THIS ACT, AS AMENDED, MAY AT THE TIME OF HIS RETIREMENT ELECT TO RECEIVE IN LIEU OF THE LIFE ANNUITY TO BE PAID BY THE SECRETARY OF THE NAVY UNDER THE PROVISIONS OF THIS ACT A REDUCED ANNUITY PAYABLE TO HIM DURING HIS LIFE, AND AN ANNUITY AFTER HIS DEATH PAYABLE TO HIS BENEFICIARY, DULY DESIGNATED IN WRITING AND FILED WITH THE SECRETARY OF THE NAVY AT THE TIME OF RETIREMENT, DURING THE LIFE OF SUCH BENEFICIARY (A) EQUAL TO OR (B) 50 PER CENTUM OF SUCH REDUCED ANNUITY AND UPON THE DEATH OF SUCH SURVIVING BENEFICIARY ALL PAYMENTS SHALL CEASE AND NO FURTHER ANNUITIES SHALL BE DUE OR PAYABLE. THE AMOUNTS OF THESE TWO ANNUITIES SHALL BE SUCH THAT THEIR COMBINED ACTUARIAL VALUE ON THE DATE OF RETIREMENT AS DETERMINED UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT SHALL BE THE SAME AS THE ACTUARIAL VALUE OF THE SINGLE LIFE ANNUITY PROVIDED BY THIS ACT.

IT WILL BE NOTED THAT UNDER THE PROVISIONS OF THE SAID ACT OF JANUARY 16, 1936, AS AMENDED, EACH MEMBER OF THE "CIVILIAN" TEACHING STAFF IS REQUIRED TO REGISTER AN ALLOTMENT EQUIVALENT TO 10 PER CENTUM OF HIS MONTHLY BASIC SALARY, BUT FOR EACH MONTH SUCH ALLOTMENT IS REGISTERED THE PAY ACCOUNT OF SUCH MEMBER IS TO BE CREDITED WITH AN ADDITIONAL SUM EQUAL TO 5 PERCENTUM OF HIS MONTHLY BASIC SALARY. THUS AN AMOUNT EQUAL TO 5 PERCENTUM OF THE MONTHLY SALARY OF EACH CIVILIAN MEMBER IS CONTRIBUTED BY THE GOVERNMENT AND 5 PERCENTUM BY THE MEMBER TOWARD THE PURCHASE OF AN ANNUITY CONTRACT. UPON REACHING THE AGE OF 65 EACH CIVILIAN MEMBER IS ENTITLED TO BE RETIRED WITH A LIFE ANNUITY BASED UPON THE ANNUAL SALARY HE RECEIVED FOR ANY 5- YEAR PERIOD, MULTIPLIED BY THE NUMBER OF YEARS' SERVICE, NOT EXCEEDING 35, AND DIVIDED BY 70; AND, SHOULD SUCH PREMIUM PAYMENTS BE INSUFFICIENT TO PURCHASE AN ANNUITY EQUAL TO THE ANNUITY THUS COMPUTED, THE GOVERNMENT IS REQUIRED TO PAY FROM CURRENT AVAILABLE NAVAL APPROPRIATIONS AN AMOUNT, WHICH TOGETHER WITH THE PURCHASED ANNUITY, WILL EQUAL THE ANNUITY PRESCRIBED IN SECTION 4A OF THE ACT. IN THE EVENT A MEMBER OF THE CIVILIAN TEACHING STAFF WHO HAS SERVED FOR A PERIOD OF NOT LESS THAN 5 YEARS BECOMES TOTALLY DISABLED FOR EFFICIENT SERVICE BY REASON OF DISEASE OR INJURY NOT DUE TO VICIOUS HABITS, INTEMPERANCE OR WILLFUL MISCONDUCT ON HIS PART, HE IS ENTITLED TO BE RETIRED WITH AN ANNUITY COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4A OF THE ACT, SUPRA. IF SUCH A MEMBER IS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 48 OF THE ACT, THE GOVERNMENT IS REQUIRED TO PAY HIM AN ANNUITY EQUAL TO THE DIFFERENCE BETWEEN THE TOTAL ANNUITY COMPUTED, UNDER SECTION 4A AND THE LIFE ANNUITY TO WHICH HE IS ENTITLED AT THE TIME OF RETIREMENT UNDER THE ANNUITY POLICY PROVIDED BY THE ACT.

THE RETIREMENT AND RETIREMENT ANNUITY BENEFITS AUTHORIZED UNDER THE ACT OF JANUARY 16, 1936, AS AMENDED, ARE AUTHORIZED FOR "CIVILIAN" MEMBERS OF THE TEACHING STAFFS OF THE NAVAL ACADEMY. THE DECISION OF JUNE 16, 1936, 15 COMP. GEN. 1099, REFERRED TO IN YOUR LETTER, INVOLVED A RETIRED OFFICER OF THE REGULAR NAVY WHO HAD BEEN RETIRED FOR PHYSICAL DISABILITY AND THE CONCLUSION WAS REACHED THEREIN THAT HE WAS NOT A "CIVILIAN" MEMBER OF THE TEACHING STAFFS WITHIN THE MEANING OF THAT ACT. ONE OF THE CASES CITED IN THE SAME DECISION ( COFFEY V. UNITED STATES, 80 C. CLS. 779) INVOLVED THE QUESTION AS TO WHETHER A RETIRED MEDICAL OFFICER OF THE REGULAR ARMY LEGALLY MAY BE PAID FROM AN APPROPRIATION AVAILABLE FOR THE PAY OF "CIVILIAN PHYSICIANS" FOR SERVICES INCIDENT TO EXAMINING APPLICANTS FOR ENLISTMENT IN THE ARMY. THE COURT CONCLUDED THAT THE PLAINTIFF COULD NOT RECOVER SINCE A "RETIRED OFFICER IS NOT A CIVILIAN, BUT STILL IN THE MILITARY SERVICE.'

COMMISSIONED OFFICERS IN THE NAVAL RESERVE ARE APPOINTED TO SERVE DURING THE PLEASURE OF THE PRESIDENT AND ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST OR THOSE WHO HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST. IN TIME OF PEACE, MEMBERS OF THE NAVAL RESERVE MAY BE ORDERED TO ACTIVE DUTY ONLY WITH THEIR CONSENT. SEE SECTIONS 5 AND 305 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 1182 (34 U.S.C. 853C AND 855D). WHEN TRANSFERRED TO THE RETIRED LIST WITH PAY THEY ARE SUBJECT AT ALL TIMES TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY AND SUCH OFFICERS MAY NOT BE DISCHARGED FROM THE NAVAL RESERVE WITHOUT THEIR CONSENT, EXCEPT FOR SENTENCE OF A COURT MARTIAL, OR IN THE DISCRETION OF THE SECRETARY OF THE NAVY, WHEN SENTENCED BY CIVIL AUTHORITIES TO CONFINEMENT IN A STATE OR FEDERAL PENITENTIARY AS A RESULT OF A CONVICTION FOR A FELONY. SEE SECTION 6 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176. ALSO, COMMISSIONED OFFICERS OF THE NAVAL RESERVE RETIRED FOR PHYSICAL DISABILITY UNDER THE ACT OF AUGUST 27, 1940, SUPRA, ARE INCLUDED IN THE LIST OF RETIRED OFFICERS OF THE NAVY.

IN LEMLY V. UNITED STATES, 109 C. CLS. 760, 762, DECIDED JANUARY 5, 1948, IN CONSIDERING THE GOVERNMENT'S CONTENTION THAT THE COURT LACKED JURISDICTION TO CONSIDER THE CLAIM OF AN OFFICER OF THE NAVAL RESERVE FOR "RETIREMENT PAY" UNDER SECTION 4 OF SAID ACT OF AUGUST 27, 1940, BECAUSE SUCH CLAIM IS A CLAIM FOR "PENSION" WHICH IS BARRED BY THE JUDICIAL CODE, THE COURT CONCLUDED THAT THE CLAIM WAS ONE FOR RETIREMENT PAY AND NOT PENSION. AFTER DISCUSSING THE DISTINCTION BETWEEN RETIREMENT PAY AND PENSION THE COURT STATED:

IN OTHER WORDS, WHEN A PENSION IS PAID SOMEONE, HE IS CONSIDERED ALL THROUGH, HIS SERVICES ARE OVER, AND HE IS PENSIONED "OFF.' FURTHERMORE, A PENSION IS PAID AFTER THE SERVICE HAS BEEN PERFORMED WITHOUT ANY REGARD TO THE ACTUAL PERFORMANCE OF SERVICE AS A GRATUITOUS RECOGNITION OF A MORAL OR HONORARY OBLIGATION OF THE GOVERNMENT. WHEN A PERSON IS PENSIONED "OFF" BY THE GOVERNMENT, THAT GOVERNMENT NO LONGER HAS ANY CONTROL OVER HIS SERVICES. HE IS ACTUALLY ALL THROUGH SERVING THE GOVERNMENT AND YET HE RECEIVES HIS PENSION AS LONG AS HE LIVES.

RETIREMENT PAY, ON THE OTHER HAND, IS A CONTINUATION OF ACTIVE PAY ON A REDUCED BASIS. EVEN THOUGH AN OFFICER IS RETIRED FROM ACTIVE DUTY AND IS RECEIVING RETIREMENT PAY, HE IS STILL SUBJECT TO CALL TO ACTIVE DUTY AS LONG AS HIS PHYSICAL CONDITION WILL PERMIT. HE IS STILL AN OFFICER IN THE SERVICE OF HIS COUNTRY EVEN THOUGH ON THE RETIRED LIST. ( ITALICS SUPPLIED.)

WHEN DOUBLE PENSIONS, RETIRED PAY OR ANNUITIES ARE AUTHORIZED, IT HAS BEEN THE CONSISTENT POLICY OF THE CONGRESS IN ENACTING LEGISLATION PERTAINING TO THE RETIREMENT OF GOVERNMENT PERSONNEL TO INCORPORATE SPECIFIC PROVISIONS THEREFOR. FOR EXAMPLE, SEE SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, AND AS FURTHER AMENDED BY SECTION 5 OF THE ACT OF FEBRUARY 28, 1948, 62 STAT. 50, WHICH SPECIFICALLY PROVIDES THAT " NOTHING IN THIS ACT SHALL BE CONSTRUED AS TO AFFECT IN ANY MANNER AN OFFICER'S OR EMPLOYEE'S RIGHT TO RETIRED PAY, PENSION, OR COMPENSATION IN ADDITION TO THE ANNUITY HEREIN PROVIDED.' WHILE THE ACT OF JANUARY 16, 1936, AS AMENDED, PARALLELS TO SOME EXTENT THE CIVIL SERVICE RETIREMENT ACT, IT IS SIGNIFICANT TO NOTE THAT THE CONGRESS DID NOT SEE FIT TO INCORPORATE IN THE 1936, ACT, OR THE VARIOUS AMENDMENTS THERETO, A PROVISION SUCH AS THAT CONTAINED IN SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT WHICH WOULD PERMIT RETIRED OFFICERS OF THE NAVAL RESERVE RECEIVING RETIRED OR RETIREMENT PAY UNDER THE STATUTES HERE INVOLVED--- OR SECTION 6 OF THE ACT OF FEBRUARY 20, 1946, 60 STAT. 27--- TO RECEIVE THE RETIREMENT ANNUITY BENEFITS SPECIFICALLY AUTHORIZED FOR "CIVILIAN" MEMBERS OF THE TEACHING STAFFS AT THE ACADEMY, IN ADDITION TO THE RETIRED PAY INCIDENT TO THEIR STATUS AS RETIRED OFFICERS OF THE NAVAL RESERVE. AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID ACT OF JANUARY 16, 1936, AS WELL AS THE VARIOUS AMENDMENTS THERETO, FAILS TO DISCLOSE THAT CONSIDERATION WAS GIVEN TO THE POSSIBILITY THAT OFFICERS OF THE NAVAL RESERVE, RETIRED FOR DISABILITY UNDER THE CIRCUMSTANCES HERE INVOLVED MIGHT BE EMPLOYED AS MEMBERS OF THE "CIVILIAN" TEACHING STAFFS AT THE NAVAL ACADEMY AND THEREBY BECOME ELIGIBLE TO PARTICIPATE IN THE RETIREMENT ANNUITY BENEFITS PRESCRIBED IN THAT ACT.

IN THE ABSENCE OF A STATUTORY PROVISION PERMITTING RECEIPT OF DUAL RETIRED PAY BENEFITS, AND FOLLOWING THE PRINCIPLE OF 15 COMP. GEN. 1099, IT MAY NOT BE ASSUMED THAT THE RETIRED OFFICER HERE INVOLVED IS A "CIVILIAN" MEMBER OF THE TEACHING STAFFS WITHIN THE CONTEMPLATION OF THE 1936 ACT, AS AMENDED. ACCORDINGLY, THE PAYMENT FROM NAVAL APPROPRIATIONS OF DUAL RETIREMENT BENEFITS UNDER SUCH CIRCUMSTANCES, IS NOT AUTHORIZED. HOWEVER, THE CONTRACT ENTERED INTO IN 1927 IS BETWEEN THE OFFICER AND THE TEACHERS INSURANCE AND ANNUITY ASSOCIATION AND, AS SUGGESTED IN YOUR LETTER, THE QUESTION OF WHETHER THE OFFICER CONTINUES TO MAKE PREMIUM PAYMENTS FROM HIS PERSONAL FUNDS SO AS TO ENTITLE HIM TO CONTINUE SUCH POLICY IN EFFECT, IS A MATTER FOR DETERMINATION BY THE PARTIES TO THE CONTRACT. THE QUESTIONS PRESENTED ARE ANSWERED ACCORDINGLY.