B-123369, JUN. 21, 1960
Highlights
ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER DATED MAY 10. YOU STATE THAT THE BASIS OF YOUR PRESENT REQUEST IS THAT HAVING BEEN GRANTED A COMMISSION AS A RESERVE OFFICER OF THE AIR FORCE IN THE GRADE OF FIRST LIEUTENANT. YOU ARE "BY ACT OF CONGRESS EXEMPT FROM THE OPERATION OF THE RESTRICTIONS OF THE DUAL COMPENSATION LAW.'. THE RECORD DOES NOT SHOW THAT YOU ARE ENTITLED TO RECEIVE DISABILITY RETIRED PAY AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES.
B-123369, JUN. 21, 1960
TO MR. GEORGE EDWARD LEONARD, JR., ATTORNEY AT LAW:
REFERENCE IS MADE TO YOUR LETTER DATED MAY 10, 1960, AND ENCLOSURE (AIR FORCE LETTER OF MARCH 14, 1960, TO YOU, TENDERING APPOINTMENT AS A RESERVE OFFICER OF THE AIR FORCE "EFFECTIVE ON DATE OF ACCEPTANCE"), IN EFFECT REQUESTING REVIEW OF CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 10, 1955, WHICH DISALLOWED YOUR CLAIM FOR DISABILITY RETIRED PAY ADMINISTRATIVELY WITHHELD DURING THE PERIODS OF YOUR CIVILIAN FEDERAL EMPLOYMENT BETWEEN JUNE 1943 AND JUNE 1953, BECAUSE OF THE DUAL COMPENSATION RESTRICTIONS PRESCRIBED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.
YOU STATE THAT THE BASIS OF YOUR PRESENT REQUEST IS THAT HAVING BEEN GRANTED A COMMISSION AS A RESERVE OFFICER OF THE AIR FORCE IN THE GRADE OF FIRST LIEUTENANT, YOU ARE "BY ACT OF CONGRESS EXEMPT FROM THE OPERATION OF THE RESTRICTIONS OF THE DUAL COMPENSATION LAW.' YOUR APPOINTMENT AS A RESERVE OFFICER OF THE AIR FORCE DID NOT BECOME EFFECTIVE BEFORE THE DATE OF ITS ACCEPTANCE BY YOU AND SUCH APPOINTMENT HAS NO FORCE OR EFFECT AS TO ANY PERIOD PRECEDING DATE OF ACCEPTANCE. ALSO, SUCH APPOINTMENT DOES NOT CHANGE THE CHARACTER OF THE RETIRED PAY PAID IN YOUR CASE. THE RECORD DOES NOT SHOW THAT YOU ARE ENTITLED TO RECEIVE DISABILITY RETIRED PAY AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, IT BEING CLEAR THAT YOU BECAME ENTITLED AS OF APRIL 19, 1943, SOLELY ON THE BASIS OF YOUR ACTIVE SERVICE AS A FORMER OFFICER OF THE ARMY OF THE UNITED STATES, TO THE BENEFITS PRESCRIBED IN THE ACT OF APRIL 3, 1939, AS AMENDED, 53 STAT. 557, 10 U.S.C. 456, 1940 ED. THUS, THE DECISION OF NOVEMBER 7, 1956, IN YOUR CASE (LEONARD V. UNITED STATES, 136 C.CLS. 686, CERTIORARI DENIED, 353 U.S. 976, DECIDED IN FAVOR OF THE GOVERNMENT) CONTINUES TO OPERATE AS A BAR TO PAYMENT OF THE RETIRED PAY CLAIMED. ALSO, SEE PALMER V. UNITED STATES, C.CLS.NO. 356-58, DECIDED JANUARY 20, 1960, WHERE THE COURT, IN DENYING EXEMPTION FROM THE RESTRICTION OF SECTION 212 IN THE CASE OF A FORMER OFFICER OF THE ARMY OF THE UNITED STATES, STATED THAT THE PLAINTIFF "HAD NO STATUS IN THE RESERVE COMPONENTS OF THE ARMED FORCES AND DID NOT RECEIVE HIS RETIREMENT PAY FROM LAWS RELATING THERETO.'