B-129673, DEC. 11, 1956

B-129673, DEC. 11, 1956

TO MR. WILLIAM D. SHAFFER:

REFERENCE IS MADE TO LETTER DATED OCTOBER 16, 1956, WRITTEN ON YOUR BEHALF BY JAMES THOMAS CONNOR, ATTORNEY AT LAW, REFERRING TO THE CASE OF TANNER ET AL. V. UNITED STATES, 129 C. CLS. 792, AND REQUESTING THAT FURTHER CONSIDERATION BE GIVEN YOUR CLAIM FOR RETIRED PAY AS A COLONEL, ARMY OF THE UNITED STATES, BEGINNING SEPTEMBER 1, 1948, THE DATE YOU WERE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST PURSUANT TO TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087.

IN THE TANNER CASE THE COURT PROCEEDED ON THE BASIS THAT THE PLAINTIFFS COVERED BY THE DECISION HAD THE REQUISITE RESERVE STATUS TO ENTITLE THEM TO THE BENEFITS OF SECTION 1/B) OF THE ACT OF JULY 1, 1947, 10 U.S.C., 1946 ED.--- SUPP. V, 371 (B), WHICH THE COURT HELD EXEMPTED THEM FROM THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A. HOWEVER, PRIOR TO JANUARY 1, 1953, SUCH AN EXEMPTION COULD APPLY ONLY TO A PERSON WHO WAS A ,MEMBER OF THE OFFICERS' RESERVE CORPS.' ON AND AFTER JANUARY 1, 1953, THE EXEMPTION COULD APPLY ONLY TO A PERSON WHO IS A "MEMBER OF (ONE OF) THE RESERVE COMPONENTS OF THE ARMED FORCES," THE 1947 ACT BEING AMENDED BY SECTION 804 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, EFFECTIVE JANUARY 1, 1953.

A REVIEW OF THE RECORDS REVEALS THAT YOUR APPLICATION FOR RETIREMENT WAS DATED DECEMBER 7, 1948, AND ORDERS WERE ISSUED ON FEBRUARY 3, 1949, PLACING YOU ON THE ARMY OF THE UNITED STATES RETIRED LIST EFFECTIVE AUGUST 31, 1948. IT ALSO IS DISCLOSED THAT YOUR COMMISSION AS LIEUTENANT COLONEL, AGD, LOUISIANA NATIONAL GUARD, WAS TERMINATED ON AUGUST 15, 1948. ACCORDINGLY, YOUR CLAIM FOR RETIRED PAY DURING THE PERIOD YOU WERE EMPLOYED AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT, FROM SEPTEMBER 1, 1948, TO AUGUST 31, 1951, WAS DISALLOWED FOR THE REASON THAT PAYMENT WAS BARRED BY THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED.

UPON THE FACTS SHOWN BY THE RECORD, SO FAR AS MATERIAL HERE, YOU CEASED TO BE A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES PRIOR TO AUGUST 31, 1948, AND THE PLACEMENT OF YOUR NAME ON THE ARMY OF THE UNITED STATES RETIRED LIST EFFECTIVE ON THAT DATE DID NOT HAVE THE EFFECT OF CONFERRING UPON YOU, OR CONTINUING FOR YOU, MEMBERSHIP IN A RESERVE COMPONENT. COMPARE THE CASE OF GEORGE EDWARD LEONARD V. UNITED STATES, C. CLS. NO. 182-55, DECIDED NOVEMBER 7, 1956.

IN OUR DECISION OF MARCH 2, 1956, 35 COMP. GEN. 497, IT WAS STATED THAT WE WILL ACCEPT AND FOLLOW THE COURT'S DECISION IN THE TANNER CASE AS A PRECEDENT FOR RETROACTIVE AND PROSPECTIVE PAYMENT OF MILITARY RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) IN THOSE CASES WHERE THE CLAIMANT, BEING OTHERWISE ENTITLED, HAS BEEN, OR MAY BE GRANTED RETIREMENT PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AND HAS BEEN DURING THE PERIOD COVERED BY THE PAYMENT A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, PROVIDED THAT FOR ANY PERIOD PRIOR TO JANUARY 1, 1953, PAYMENT WILL BE APPROVED ONLY IF THE CLAIMANT WAS A DE JURE MEMBER OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD DURING THE PERIOD INVOLVED, SINCE MEMBERS OF OTHER RESERVE COMPONENTS WERE NOT BROUGHT WITHIN THE PROVISIONS OF THE 1947 ACT UNTIL THAT DATE. THERE IS NOTHING OF SIGNIFICANCE IN THE CONGRESSIONAL TREATMENT OF SECTION 212 OF THE ECONOMY ACT WHICH WOULD PERSUADE US TO DEPART FROM THE NATURAL MEANING OF THE PERTINENT PROVISIONS INVOLVED, AN INTERPRETATION AS SUGGESTED IN THE NEXT TO THE LAST PARAGRAPH OF MR. CONNOR'S LETTER BEING WHOLLY INCONSISTENT WITH THE DECISION OF THE COURT OF CLAIMS IN THE LEONARD CASE CITED ABOVE.

ACCORDINGLY, OUR SETTLEMENT DATED AUGUST 8, 1955, MUST BE AND IS SUSTAINED.