B-141178, JAN. 12, 1961

B-141178, JAN. 12, 1961

TO LIEUTENANT COLONEL HENDERSON A. MELVILLE, USMCR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1960, REQUESTING THAT WE AGAIN CONSIDER YOUR CLAIM FOR RETIRED PAY FOR THE PERIOD FROM JUNE 15, 1945, TO OCTOBER 15, 1952, DURING WHICH PERIOD YOU WERE EMPLOYED BY THE BUREAU OF INTERNAL REVENUE, TREASURY DEPARTMENT, AS A FEDERAL CIVILIAN EMPLOYEE.

YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF OUR CLAIMS DIVISION DATED OCTOBER 30, 1958, AND THE DISALLOWANCE WAS SUSTAINED IN OUR DECISION OF NOVEMBER 30, 1959, B-141178, FOR THE REASON THAT MARINE CORPS RESERVE OFFICERS DID NOT BECOME EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, UNTIL THE ACT OF JULY 1, 1947, WAS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, EFFECTIVE JANUARY 1, 1953. YOU SAY THAT AS OF THE DATE OF SUCH DECISION WE WERE STILL HOLDING THAT RETIRED RESERVE OFFICERS OF THE NAVY AND MARINE CORPS WERE SUBJECT TO THE DUAL COMPENSATION LAW AND YOU REQUEST RECONSIDERATION OF YOUR CLAIM IN THE LIGHT OF ANY SUBSEQUENT COURT DECISIONS OR DECISIONS OF OUR OFFICE WHICH MAY BE PERTINENT. YOU ALSO SAY THAT YOU ARE "WONDERING WHETHER THE RETIRED RESERVE OFFICERS OF THE NAVY AND MARINE CORPS ARE BEING DISCRIMINATED AGAINST BECAUSE OF SOME STATUTORY LANGUAGE REQUIRING SUCH DISCRIMINATION, OR ARE THEY BEING DISCRIMINATED AGAINST SIMPLY BECAUSE NO RETIRED RESERVE OFFICER OF THE NAVY OR THE MARINE CORPS HAS YET HAD OCCASION TO TEST THE QUESTION BEFORE THE UNITED STATES COURT OF CLAIMS.'

THERE HAVE BEEN NO DECISIONS OF OUR OFFICE OR OF THE COURTS SINCE NOVEMBER 30, 1959, WHICH WOULD FURNISH A BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM. IT MAY BE STATED FOR YOUR INFORMATION, HOWEVER, THAT IN THE CASE OF BROYDERICK, ET AL. (JOHN D. SMALL, PLAINTIFF NO. 11) V. UNITED STATES, 140 CT.CL. 427, DECIDED DECEMBER 4, 1957, THE COURT CONSIDERED THE CLAIM OF AN OFFICER OF THE UNITED STATES NAVAL RESERVE WHO WAS RETIRED PURSUANT TO SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, 34 U.S.C. 410B (1946 ED.), AFTER HAVING COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE, AND WHO THEREAFTER, FROM NOVEMBER 16, 1950, TO JANUARY 20, 1953, WAS EMPLOYED BY THE UNITED STATES IN A CIVILIAN CAPACITY WITH COMPENSATION EXCEEDING $3,000 PER ANNUM. AFTER CONSIDERING THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, THE COURT HELD THAT THE PLAINTIFF (JOHN D. SMALL) WAS ENTITLED TO RECOVER HIS RETIRED PAY UNDER THE RULE OF THE CASE OF TANNER V. UNITED STATES, 129 CT.CL. 792, ONLY FROM JANUARY 1 TO 20, 1953.

IN BOTH THE TANNER CASE AND THE SMALL CASE, THE COURT CONSIDERED THE PROVISIONS OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853B (1946 ED.), SIMILAR IN TEXT TO SECTION 1 (B) OF THE ACT OF JULY 1, 1947, BUT APPLICABLE TO MEMBERS OF THE NAVAL RESERVE, AND POINTED OUT THAT THE PROVISIONS OF THAT SECTION EXEMPTED FROM THE ECONOMY ACT ONLY PAY AND ALLOWANCES TO WHICH THE OFFICER "MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT (THE 1938 ACT).' YOU DID NOT RECEIVE YOUR RETIRED PAY UNDER THE 1938 ACT AND YOU DID NOT BECOME ENTITLED TO THE BENEFITS OF THE 1947 ACT UNTIL THAT ACT WAS AMENDED EFFECTIVE JANUARY 1, 1953.

WE TRUST THAT THE INFORMATION HERE FURNISHED WILL SUFFICIENTLY EXPLAIN WHY WE FIND NO BASIS FOR ..END :