B-123382, MARCH 2, 1956, 35 COMP. GEN. 497

B-123382: Mar 2, 1956

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COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - TANNER CASE FEDERAL CIVILIAN OFFICERS AND EMPLOYEES WHO HAVE BEEN OR MAY BE GRANTED RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 AND WHO. WERE MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD OR WHO. WERE MEMBERS OF ANY OF THE RESERVE COMPONENTS. 1956: FURTHER REFERENCE IS MADE TO LETTER OF MARCH 22. WILL BE FOLLOWED IN DETERMINING THE RIGHTS OF RESERVE OFFICERS OF THE UNIFORMED SERVICES TO RETIRED PAY IN THE DIFFERENT SITUATIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 113 OF THE MILITARY PAY AND ALLOWANCES COMMITTEE DEPARTMENT OF DEFENSE. - WERE ENTITLED TO RETIRED PAY DURING THE PERIOD THEY WERE EMPLOYED BY THE GOVERNMENT AS CIVILIANS AT SALARIES IN EXCESS OF $3.

B-123382, MARCH 2, 1956, 35 COMP. GEN. 497

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - TANNER CASE FEDERAL CIVILIAN OFFICERS AND EMPLOYEES WHO HAVE BEEN OR MAY BE GRANTED RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 AND WHO, PRIOR TO JANUARY 1, 1953, WERE MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD OR WHO, AFTER THE DATE, WERE MEMBERS OF ANY OF THE RESERVE COMPONENTS, DURING THE PERIOD COVERED BY THE PAYMENT, MAY RECEIVE RETROACTIVE AND PROSPECTIVE MILITARY RETIRED PAY IN ADDITION TO CIVILIAN COMPENSATION IN ACCORDANCE WITH THE PRECEDENT IN TANNER V. UNITED STATES, 129 C.1CLS. 792, WHICH EXCLUDED SUCH RESERVISTS FROM THE DUAL COMPENSATION STATUTES.

TO THE SECRETARY OF DEFENSE, MARCH 2, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF MARCH 22, 1955, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION AS TO THE EXTENT THE OPINION RENDERED BY THE COURT OF CLAIMS ON NOVEMBER 2, 1954, IN THE CASE OF TANNER V. UNITED STATES, 129 C.1CLS. 792, AND TWO RELATED CASES, WILL BE FOLLOWED IN DETERMINING THE RIGHTS OF RESERVE OFFICERS OF THE UNIFORMED SERVICES TO RETIRED PAY IN THE DIFFERENT SITUATIONS SET FORTH AND DISCUSSED IN COMMITTEE ACTION NO. 113 OF THE MILITARY PAY AND ALLOWANCES COMMITTEE DEPARTMENT OF DEFENSE.

THE COURT HELD, IN ITS OPINION OF NOVEMBER 2, 1954, THAT THE PLAINTIFFS-- - EACH OF WHOM HAD BEEN PLACED ON EITHER THE ARMY OF THE UNITED STATES RETIRED LIST OR THE AIR FORCE OF THE UNITED STATES RETIRED LIST, UNDER AUTHORITY CONTAINED IN TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036--- WERE ENTITLED TO RETIRED PAY DURING THE PERIOD THEY WERE EMPLOYED BY THE GOVERNMENT AS CIVILIANS AT SALARIES IN EXCESS OF $3,000 A YEAR. THE COURT'S DECISION WAS BASED ON THE CONCLUSION THAT THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, 10 .S.C., 1946 USED.--- SUPP. V, 371 (B), RELATING TO "ANY MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS" EXEMPTED THE PLAINTIFFS FROM THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. THE DEFENDANT'S PETITION FOR A WRIT OF CERTIORARI IN THE CASE WAS DENIED BY THE SUPREME COURT OF THE UNITED STATES ON OCTOBER 10, 1955, AND BY LETTER DATED FEBRUARY 21, 1956, FROM THE ASSISTANT ATTORNEY GENERAL ( CIVIL DIVISION) WE HAVE BEEN ADVISED THAT THE DEPARTMENT OF JUSTICE WILL NOT TAKE ACTION TO "AGAIN LITIGATE THE ISSUES INVOLVED IN THE TANNER CASE.'

IN THE TANNER CASE THE COURT PROCEEDED ON THE BASIS THAT THE PLAINTIFFS HAD THE REQUISITE RESERVE MEMBERSHIP DURING THE PERIODS OF THEIR CLAIMS AND, HENCE, THAT THEY WERE ENTITLED TO THE BENEFITS GRANTED TO "MEMBERS" OF THE OFFICERS' RESERVE CORPS UNDER THE 1947 ACT. HOWEVER, MEMBERSHIP IN THE OFFICERS' RESERVE CORPS WAS NOT OF INDEFINITE DURATION, IT APPEARING THAT THE ,FIVE-YEAR" APPOINTMENTS IN THE OFFICERS' RESERVE CORPS (AUTHORIZED BY SECTION 37 OF THE NATIONAL DEFENSE ACT, 10 U.S.C., 1946 USED., 353, 358) WHICH WERE IN FORCE DURING WORLD WAR II EXPIRED NOT LATER THAN APRIL 1, 1953. SEE SECTION 127A OF THE NATIONAL DEFENSE ACT, 10 U.S.C., 1946 USED., 13; SECTION 1 (C) OF THE EMERGENCY POWERS CONTINUATION ACT, APPROVED JULY 3, 1952, 66 STAT. 333, 10 U.S.C. 352; SECTIONS 224 AND 803 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 487, 505, 50 U.S.C. 948, 34 U.S.C. 771; PRESIDENTIAL PROCLAMATION 2974, APRIL 28, 1952; AND EXECUTIVE ORDER NO. 10397, SEPTEMBER 25, 1952. ALSO, IT APPEARS THAT MEMBERSHIP IN THE NATIONAL GUARD AUTOMATICALLY TERMINATES UNDER SECTION 77 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 114, WHEN THE MEMBER BECOMES 64 YEARS OF AGE. IN THAT CONNECTION WE HAVE HELD THAT A PERSON OTHERWISE QUALIFIED TO RECEIVE RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, UPON REACHING THE AGE OF 60 YEARS, IS NOT DISQUALIFIED FROM RECEIVING SUCH RETIRED PAY BY REASON OF THE TERMINATION OF HIS RESERVE STATUS PRIOR TO REACHING SUCH AGE. SEE 28 COMP. GEN. 510. FOR THE REASONS INDICATED IN THAT DECISION AND ON THE BASIS OF THE TERMS OF TITLE III OF THE ACT OF JUNE 29, 1948, IT IS OUR VIEW THAT THE GRANTING OF A 60- YEAR OLD PERSON'S APPLICATION FOR RETIRED PAY UNDER THAT TITLE AND THE PLACEMENT OF HIS NAME ON A LIST OF "COMMISSIONED OFFICERS AND FORMER COMMISSIONED OFFICERS" UNDER THAT TITLE DOES NOT CONFER UPON HIM, OR CONTINUE FOR HIM, ANY MEMBERSHIP IN A RESERVE COMPONENT WHICH HE DOES NOT HAVE INDEPENDENT OF SUCH GRANTING AND PLACEMENT.

SECTION 1 (B) OF THE ACT OF JULY 1, 1947, THE PROVISION FORMING THE BASIS FOR THE COURT'S DECISION IN THE TANNER CASE, APPLIED ONLY TO MEMBERS OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS OF THE ARMY. SUBSTANTIALLY IDENTICAL PROVISIONS RESPECTING MEMBERS OF THE NATIONAL GUARD ARE CONTAINED IN SECTION 2 OF THE ACT OF JULY 1, 1947, 32 U.S.C. 75. SECTION 1 (B) OF THE 1947 ACT WAS AMENDED, HOWEVER, EFFECTIVE JANUARY 1, 1953, BY SECTION 804 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, AND, AS SO AMENDED, IT READS AS FOLLOWS (QUOTING FROM 10 U.S.C., 1952 USED., 371B):

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMED FORCES FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.

THE AMENDMENT DID NOT CHANGE THE ESSENTIAL BASIS FOR THE DECISION IN THE TANNER CASE BUT, IN EFFECT, IT DOES EXTEND THE FIELD OF APPLICATION OF THAT DECISION TO INCLUDE MEMBERS OF ALL "RESERVE COMPONENTS OF THE ARMED FORCES" INCLUDING MEMBERS OF THE NAVAL RESERVE AND MARINE CORPS RESERVE WHO PRIOR TO JANUARY 1, 1953, WERE SUBJECT TO SECTION 4 OF THE NAVAL RESERVE ACT OF 1938 (REPEALED BY SECTION 803 OF THE 1952 ACT), WHICH EXPRESSLY PERMITTED THEM TO RECEIVE PAY AND ALLOWANCES INCIDENT TO FEDERAL CIVILIAN EMPLOYMENT AND, IN ADDITION," PAY AND ALLOWANCES TO WHICH * * * ENTITLED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938.' U.S.C., 1946 USED., 853B.

THE QUESTIONS PRESENTED FOR DECISION ARE STATED IN COMMITTEE ACTION NO. 113 AS FOLLOWS:

1. WILL THE FINDING IN THE UNITED STATES COURT OF CLAIMS CASE, DECIDED 2 NOVEMBER 1954, NO. 543-53; NO. 38-54; AND NO. 39-54 BE FOLLOWED BY THE COMPTROLLER GENERAL OF THE UNITED STATES WITH RESPECT TO ALL RESERVE OFFICERS OF THE ARMED SERVICES, INCLUDING OFFICERS OF THE NATIONAL GUARD, WHO WERE EITHER RETIRED WITH PAY OR LATER GRATED PAY FOR (1) DISABILITY UNDER THE PROVISIONS OF ANY LAW, AND (2) AGE AND LENGTH OF SERVICE UNDER TITLES II OR II OF THE ACT OF 29 JUNE 1948, 62 STAT. 1087, 10 U.S.C. 1036?

2. TO WHAT EXTENT, IF AT ALL, THE DECISION OF THE UNITED STATES COURT OF CLAIMS IN TANNER ET AL. V. UNITED STATES, DECIDED NOVEMBER 2, 1954, MAY BE FOLLOWED BY THE NAVY. MORE PARTICULARLY, DECISION IS REQUESTED AS TO WHETHER IN THE CASE OF RETIRED RESERVE OFFICERS IN THE CATEGORIES SPECIFIED, THE DECISION IN THAT CASE PROVIDES EXEMPTION FROM THE RESTRICTIONS CONTAINED IN SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED (5 U.S.C. 59A), AS FURTHER AMENDED BY PUBLIC LAW 300, 83D CONGRESS APPROVED FEBRUARY 20, 1954, THE SO-CALLED DUAL COMPENSATION STATUTE, AGAINST THE CONCURRENT RECEIPT BY RETIRED OFFICERS OF RETIRED PAY FROM THE NAVY AND PAY FROM A FEDERAL CIVIL POSITION:

A. COMMISSIONED RESERVE OFFICERS RETIRED FOR YEARS OF ACTIVE SERVICE (20 OR 30 YEARS) AS PROVIDED BY SECTION 310 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1183), AND RECEIVING RETIRED PAY BASED ON SUCH COMMISSIONED RANK.

B. COMMISSIONED RESERVE OFFICERS OF THE NAVY RETIRED PRIOR TO JANUARY 1, 1953, EITHER FOR AGE AND YEARS OF SERVICE UNDER TITLE III OF THE ACT OF JUNE 29, 1948 (62 STAT. 1087), AS AMENDED, OR UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946 (60 STAT. 26), AS AMENDED, OR RETIRED FOR YEARS OF SERVICE UNDER ANY OTHER APPLICABLE PROVISIONS OF LAW, OR RETIRED FOR PHYSICAL DISABILITY, AND RECEIVING RETIRED PAY BASED ON SUCH COMMISSIONED RANK.

C. MEMBERS RETIRED FROM THE FLEET RESERVE PRIOR TO JANUARY 1, 1953, UPON COMPLETION OF 30 YEARS OF SERVICE PURSUANT TO SECTION 204 OF THE NAVAL RESERVE ACT OF 1938 (52 STAT. 1179), AND SUBSEQUENTLY ADVANCED ON THE RETIRED LIST TO COMMISSIONED RANK OR COMMISSIONED WARRANT RANK WITH RETIRED PAY BASED ON COMMISSIONED RANK.

D. MEMBERS RETIRED FROM THE FLEET RESERVE ON OR AFTER JANUARY 1, 1953, AFTER COMPLETION OF 30 YEARS OF SERVICE PURSUANT TO SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, AND THEREUPON ADVANCED TO COMMISSIONED OR COMMISSIONED WARRANT GRADE ON THE RETIRED LIST, WITH RETIRED PAY BASED ON COMMISSIONED RANK.

E. COMMISSIONED RESERVE OFFICERS RETIRED ON OR AFTER JANUARY 1, 1953, EITHER FOR PHYSICAL DISABILITY OR FOR YEARS OF SERVICE UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AS AMENDED, SUPRA, OR THE ACT OF FEBRUARY 21, 1946, AS AMENDED, SUPRA, OR SECTION 413 OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952 (66 STAT. 499), OR UNDER OTHER APPLICABLE PROVISIONS OF LAW, WITH RETIRED PAY BASED ON SUCH COMMISSIONED RANK.

F. FORMER MEMBERS OF THE NAVAL RESERVE GRANTED RETIRED PAY, UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AS AMENDED, SUPRA, SUCH PAY BEING BASED ON THE PAY OF COMMISSIONED RANK WHO, ALTHOUGH MEETING THE REQUIREMENTS OF THAT TITLE, HAD CEASED TO BE MEMBERS OF THE NAVAL RESERVE PRIOR TO BEING GRANTED RETIRED PAY.

3. ASSUMING THAT THE DECISION OF THE COURT OF CLAIMS IS APPLICABLE IN ANY OF THE ABOVE INSTANCES, TO WHAT EXTENT, IF ANY, MAY RETROACTIVE EFFECT BE GIVEN TO THAT DECISION WITH RESPECT TO ENTITLEMENT TO RECEIVE BOTH MILITARY RETIRED PAY AND PAY FROM A FEDERAL CIVIL POSITION?

FROM AN EXAMINATION OF THE QUESTIONS THUS STATED, IT IS APPARENT THAT THERE ARE SEVERAL CATEGORIES OF "DOUBLE COMPENSATION" CASES WHICH POSSIBLY COULD BE CONSIDERED AS GOVERNED BY THE PRINCIPLE OF THE DECISION OF THE COURT OF CLAIMS IN THE TANNER CASE IF THAT PRINCIPLE SHOULD BE APPLIED AND FOLLOWED IN ITS BROAD IMPLICATIONS. HOWEVER, THERE ARE NOW PENDING IN THE COURT OF CLAIMS SEVERAL CASES INVOLVING SPECIFIC QUESTIONS RELATED TO THE SPECIFIC QUESTION INVOLVED IN THE TANNER CASE. SOME OF THE PENDING CASES ARE MADDEN V. UNITED STATES, C.1CLS. NO. 454-55; AMSDEN ET AL. V. UNITED STATES, C.1CLS. NO. 134 54; DOLPH V. UNITED STATES, C.1CLS. NO. 480-54. IT SEEMS NOT UNLIKELY THAT THE PRINCIPLE OF THE TANNER CASE WILL BE EXPLAINED OR AMPLIFIED, AND POSSIBLY EVEN MODIFIED, BY THE COURT IN ONE OR MORE OF THOSE CASES.

WHILE WE DO NOT TAKE THE POSITION THAT THE COURT HAD NO TENABLE BASIS IN THE LANGUAGE OF THE STATUTES FOR THE CONCLUSION IT REACHED IN THE TANNER CASE, INSOFAR AS DE JURE MEMBERS OF THE RESERVE ARE CONCERNED, WE DO TAKE THE VIEW THAT SUCH CASE SHOULD NOT NOW BE GIVEN A BROAD AND SWEEPING APPLICATION AS A PRECEDENT FOR PAYMENT OF MILITARY RETIRED PAY TO ALL RESERVE OFFICERS AND FORMER RESERVE OFFICERS WHO MAY BE EMPLOYED BY THE GOVERNMENT IN CIVILIAN POSITIONS AND WOULD BE ELIGIBLE FOR MILITARY RETIRED PAY IF NOT SO EMPLOYED. IF THE COURT'S DECISION WERE GIVEN SUCH BROAD APPLICATION THE EFFECT WOULD BE TO RESTRICT THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT TO CERTAIN RETIRED MEMBERS OF THE REGULAR COMPONENTS OF THE UNIFORMED SERVICES AND TO PREJUDGE THE IMPORTANT ISSUES IN SOME OF THE CASES NOW BEFORE THE COURT.

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 RETIRED 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. THE SUBMITTED QUESTIONS ARE ANSWERED ACCORDINGLY.

THE DEPARTMENTS CONCERNED ARE AUTHORIZED TO ADJUST RETIRED PAY ACCOUNTS RETROACTIVELY, TO THE EXTENT THAT LAPSED APPROPRIATIONS ARE NOT INVOLVED, IN ACCORDANCE WITH THE FOREGOING.

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