B-148868, AUG. 14, 1962

B-148868: Aug 14, 1962

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RETIRED: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 29. YOUR NAVAL RECORDS NOW SHOW THAT YOU WERE NOT DISCHARGED FROM THE NAVAL SERVICE ON JUNE 30. THAT YOUR NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AS OF JULY 1. YOU WERE ADVISED BY THE U.S. IN THE LAST PARAGRAPH OF THAT SAME COMMUNICATION YOU WERE FURTHER ADVISED AS FOLLOWS: "HOWEVER. SINCE THE RATE OF YOUR CIVILIAN COMPENSATION PLUS YOUR NAVAL RETIRED PAY WOULD HAVE EXCEEDED THE $10. WHICH IS BEING APPLIED TOWARDS RECOUPMENT OF THE $12. 600 SEVERANCE PAY YOU HAVE PREVIOUSLY RECEIVED HAS THEREFORE BEEN REDUCED TO THE EXTENT REQUIRED TO REMAIN WITHIN SUCH STATUTORY LIMITATION. WAS DISALLOWED IN GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED APRIL 18.

B-148868, AUG. 14, 1962

TO LIEUTENANT STUART M. STEEN, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 29, 1962, AND JULY 12, 1962, RELATING TO YOUR CLAIM FOR RETIRED PAY (ACCRUING INCIDENT TO YOUR NAVAL SERVICE) WITHHELD BY REASON OF THE DUAL COMPENSATION RESTRICTIONS PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

AS THE RESULT OF THE CORRECTIONS MADE IN YOUR NAVAL RECORDS PURSUANT TO THE PROVISIONS OF 10 U.S.C. 1552, APPROVED BY THE SECRETARY OF THE NAVY ON MAY 8, 1961, YOUR NAVAL RECORDS NOW SHOW THAT YOU WERE NOT DISCHARGED FROM THE NAVAL SERVICE ON JUNE 30, 1959, AS REQUIRED BY THE PROVISIONS OF 10 U.S.C. 6382, BUT THAT YOUR NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AS OF JULY 1, 1959, UNDER AUTHORITY OF 10 U.S.C. 1202, WITH ENTITLEMENT TO RETIRED PAY AS PRESCRIBED IN 10 U.S.C. 1401. A COMMUNICATION DATED JUNE 16, 1961, YOU WERE ADVISED BY THE U.S. NAVY FINANCE CENTER, CLEVELAND 14, OHIO, THAT BASED UPON THE CORRECTIONS MADE IN YOUR NAVAL RECORDS YOU HAD BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE AS OF JULY 1, 1959, BY REASON OF A PHYSICAL DISABILITY RATED AT 50 PERCENTUM AND WITH THE RANK AND PAY OF A LIEUTENANT. IN THE LAST PARAGRAPH OF THAT SAME COMMUNICATION YOU WERE FURTHER ADVISED AS FOLLOWS:

"HOWEVER, SEVERANCE PAY (AS AUTHORIZED BY 10 U.S.C. 6382 (C) ( IN THE AMOUNT OF $12,600.00, RECEIVED AT THE TIME OF YOUR DISCHARGE, 30 JUNE 1959, MUST BE RECOUPED PRIOR TO THE ISSUANCE OF RETIRED PAY.'

THE RECORD INDICATES THAT YOU ENTERED CIVILIAN FEDERAL EMPLOYMENT ON AUGUST 17, 1959, AND SINCE THE RATE OF YOUR CIVILIAN COMPENSATION PLUS YOUR NAVAL RETIRED PAY WOULD HAVE EXCEEDED THE $10,000 PER ANNUM LIMITATION PRESCRIBED IN SECTION 212 OF THE 1932 ACT, THE AMOUNT OF RETIRED PAY WHICH HAS ACCRUED TO YOU SINCE AUGUST 17, 1959, AND WHICH IS BEING APPLIED TOWARDS RECOUPMENT OF THE $12,600 SEVERANCE PAY YOU HAVE PREVIOUSLY RECEIVED HAS THEREFORE BEEN REDUCED TO THE EXTENT REQUIRED TO REMAIN WITHIN SUCH STATUTORY LIMITATION. YOUR CLAIM, WHICH COVERS THE PERIOD JULY 1, 1959, TO JUNE 16, 1961, WAS DISALLOWED IN GENERAL ACCOUNTING OFFICE CLAIMS DIVISION SETTLEMENT DATED APRIL 18, 1962, AND THAT ACTION WAS SUSTAINED IN OUR DECISION TO YOU, B 148868, JUNE 26, 1962.

IT APPEARS THAT DURING THE CALENDAR YEAR JANUARY 1 TO DECEMBER 31, 1959, THE COMBINED AMOUNT OF RETIRED PAY WHICH ACCRUED TO YOU FROM JULY 1 PLUS THE COMPENSATION OF YOUR CIVILIAN FEDERAL POSITION DURING THE PERIOD AUGUST 17 TO DECEMBER 31, 1959, DID NOT EXCEED THE SECTION 212 LIMITATION OF $10,000 PER ANNUM. ON THE BASIS OF A DECISION OF MAY 9, 1962, DELLINGER V. UNITED STATES, CT.CL.NO. 83-61, YOUR ACCOUNT SHOULD BE CREDITED WITH THE FULL AMOUNT OF RETIRED PAY WHICH ACCRUED TO YOU DURING THAT PERIOD AND THE CONCLUSION REACHED IN OUR DECISION OF JUNE 26, 1962, IS MODIFIED ACCORDINGLY. A COPY OF THIS LETTER IS BEING SENT TO THE RETIRED PAY DEPARTMENT, U.S. NAVY FINANCE CENTER, CLEVELAND 14, OHIO, IN ORDER THAT AN APPROPRIATE ADJUSTMENT MAY BE MADE IN YOUR RETIRED PAY ACCOUNT WITH RESPECT TO THE AMOUNT OF RETIRED PAY IMPROPERLY WITHHELD FROM YOU FOR THE CALENDAR YEAR 1959.

YOU SUGGEST THAT NO EFFECT SHOULD BE GIVEN TO THE CORRECTIONS MADE IN YOUR NAVAL RECORDS UNDER THE AUTHORITY OF 10 U.S.C. 1552 AS TO THE PERIOD PRECEDING JUNE 16, 1961, INSOFAR AS THE MATTER OF DUAL COMPENSATION IS CONCERNED. IT IS WELL ESTABLISHED THAT WHEN A MILITARY OR NAVAL RECORD IS CORRECTED (RETROACTIVELY) TO SHOW THAT A MEMBER'S NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON A CERTAIN DATE (JULY 1, 1959, FOR EXAMPLE, AS IN YOUR CASE) THE RIGHTS OF SUCH MEMBER ARE FOR DETERMINATION ON THE SAME BASIS AS THEY WOULD HAVE BEEN IF HIS NAME HAD IN FACT BEEN SO PLACED ON THAT LIST ON THAT DATE. YOU WERE PROPERLY CREDITED WITH RETIRED PAY RETROACTIVELY TO JULY 1, 1959. APPARENTLY, YOU SEE NO IMPROPRIETY IN SUCH ACTION. BY THE SAME TOKEN, SUCH RETIRED PAY BECAME SUBJECT TO THE RESTRICTIONS OF THE ECONOMY ACT AS OF THE DATE YOU ACCEPTED CIVILIAN EMPLOYMENT WITH THE GOVERNMENT. THE CORRECTIONS MADE IN YOUR RECORDS MAY NOT BE MADE RETROACTIVELY EFFECTIVE FOR ONE PURPOSE BUT NOT FOR ANOTHER.

CONCERNING YOUR STATEMENT THAT YOU FEEL NEITHER LEGALLY NOR MORALLY RESPONSIBLE TO HONOR THE DEBT ARISING FROM THE PAYMENT OF SEVERANCE PAY TO YOU IN THE AMOUNT OF $12,600, IT IS CLEAR THAT THE CORRECTIONS IN YOUR NAVAL RECORDS, MADE AT YOUR REQUEST, REMOVED THE LEGAL BASIS FOR THAT PAYMENT. RETENTION OF THAT MONEY UNDER A CLAIM OF RIGHT CAN BE JUSTIFIED ONLY ON THE THEORY THAT IT CONSTITUTED AN ADVANCE PAYMENT OF RETIRED PAY. SINCE RETIRED PAY IS PAYABLE ON A MONTHLY BASIS, YOU WERE PLACED IN A MORE ADVANTAGEOUS POSITION, INSOFAR AS PAYMENT OF MONEY TO YOU IS CONCERNED, THAN WOULD HAVE BEEN THE CASE HAD YOU ORIGINALLY BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JULY 1, 1959. THERE IS, OF COURSE, NO AUTHORITY TO RESUME PAYMENT OF RETIRED PAY TO YOU UNTIL SUCH TIME AS A TOTAL OF $12,600 WOULD HAVE BEEN PAID TO YOU IN THE NORMAL COURSE OF EVENTS IF YOU HAD BEEN PLACED ON SUCH LIST ON JULY 1, 1959. SEE B-148128, MARCH 19, 1962, 41 COMP. GEN. - .

YOU REQUEST TO KNOW WHETHER IT WOULD HELP YOUR CAUSE IF YOU WERE TO APPEAR HERE IN PERSON. DECISIONS RENDERED BY THIS OFFICE GENERALLY ARE BASED UPON THE WRITTEN RECORD. THUS, ANY ORAL STATEMENTS WHICH YOU MIGHT MAKE IN A PERSONAL INTERVIEW WOULD IN ANY EVENT HAVE TO BE REDUCED TO WRITING IN ORDER TO BE DULY CONSIDERED. IT APPEARS THAT THE MATERIAL FACTS NOW BEFORE THIS OFFICE RELATIVE TO YOUR RETIRED PAY STATUS WOULD NOT BE ALTERED OR CHANGED ON THE BASIS OF ANY ORAL STATEMENTS MADE IN A PERSONAL INTERVIEW. HOWEVER, YOU ARE ADVISED THAT IF YOU DESIRE SUCH AN INTERVIEW, THIS OFFICE IS OPEN DAILY, HOLIDAYS EXCEPTED, MONDAY THROUGH FRIDAY, 8:15 A.M. TO 4:45 P.M. ..END :

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