B-129673, AUG. 8, 1958

B-129673, AUG. 8, 1958

TO MR. WILLIAM D. SHAFFER:

REFERENCE IS MADE TO LETTER OF JUNE 20, 1958, WRITTEN IN YOUR BEHALF BY JAMES THOMAS CONNOR, ATTORNEY AT LAW, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AS A COLONEL, ARMY OF THE UNITED STATES, FROM SEPTEMBER 1, 1948, TO AUGUST 31, 1951.

IT APPEARS THAT YOUR COMMISSION AS LIEUTENANT COLONEL, LOUISIANA NATIONAL GUARD, WAS TERMINATED ON AUGUST 15, 1948; THAT YOU WERE TRANSFERRED TO THE RETIRED LIST EFFECTIVE AS OF AUGUST 31, 1948; AND THAT YOU WERE HONORABLY DISCHARGED FROM YOUR COMMISSION AS LIEUTENANT COLONEL, NATIONAL GUARD OF THE UNITED STATES, EFFECTIVE SEPTEMBER 15, 1948, BY REASON OF WITHDRAWAL OF FEDERAL RECOGNITION. IT FURTHER APPEARS THAT DURING THE PERIOD OF YOUR CLAIM YOU WERE EMPLOYED BY THE FEDERAL GOVERNMENT IN A CIVILIAN CAPACITY.

YOUR CLAIM, PRESENTED ON THE BASIS OF THE HOLDING IN TANNER V. UNITED STATES, 129 C.CLS. 792, WAS DISALLOWED BY OUR SETTLEMENT OF AUGUST 8, 1956. THAT ACTION WAS SUSTAINED IN OUR DECISION TO YOU DATED DECEMBER 11, 1956, B-129673, ON THE GROUND THAT THE THEORY OF THE TANNER CASE APPLIES ONLY WHEN THE PERSON CONCERNED HAS A DE JURE STATUS IN THE OFFICERS' RESERVE CORPS OR IN THE NATIONAL GUARD AND THAT YOU HAD NO SUCH STATUS DURING THE PERIOD OF YOUR CLAIM.

MR. CONNOR'S LETTER OF JUNE 20, 1958, ASKS FURTHER CONSIDERATION OF YOUR CLAIM IN VIEW OF THE HOLDING IN THE SIMILAR CASE OF EARLE R. SARLES V. UNITED STATES, C.CLS. NO. 353-56, DECIDED MARCH 5, 1958. THE PLAINTIFF IN THAT CASE HAD THE AGE AND SERVICE REQUIREMENTS FOR RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WHEN THAT LAW WAS ENACTED. HE THEN WAS EMPLOYED IN A CIVILIAN CAPACITY BY THE FEDERAL GOVERNMENT. ON JULY 27, 1951, HE WAS HONORABLY DISCHARGED FROM HIS COMMISSION IN THE NATIONAL GUARD OF THE UNITED STATES. IN THE SUIT IT WAS CONCEDED THAT HE WAS ENTITLED, UNDER THE TANNER RULE, TO TITLE III PAY IN ADDITION TO CIVILIAN COMPENSATION RECEIVED BY HIM THROUGH JULY 27, 1951, IN OTHER WORDS, WHILE HE HAD A DE JURE NATIONAL GUARD STATUS. THE COURT HELD THAT HE WAS ENTITLED AFTER JULY 27, 1951, ON THE BASIS THAT HIS DISCHARGE FROM HIS COMMISSION ON THAT DATE DID NOT DEPRIVE HIM OF THE EXEMPTION, WHICH HE THERETOFORE HAD HAD, FROM THE OPERATION OF THE DUAL COMPENSATION STATUTE.

WE ARE UNABLE TO RECONCILE THE HOLDING IN THE SARLES CASE WITH THAT IN LEONARD V. UNITED STATES, 136 C.CLS. 686, CERTIORARI DENIED 353 U.S. 976, WHEREIN THE COURT HELD THAT WHEN LEONARD WAS DISCHARGED FROM HIS COMMISSION HE NO LONGER HAD ANY MILITARY STATUS AND, HENCE, WAS NOT EXEMPT FROM THE OPERATION OF THE DUAL COMPENSATION STATUTE. THE HOLDING IN THE SARLES CASE LEAVES THE RULE TO BE FOLLOWED IN SUCH CASES IN DOUBT AND IN THE ABSENCE OF SOME CLARIFICATION BY THE COURT, THAT HOLDING MAY NOT BE VIEWED AS A PRECEDENT. ACCORDINGLY, YOUR CLAIM FOR TITLE III PAY, IN ADDITION TO CIVILIAN COMPENSATION ALREADY RECEIVED BY YOU, FOR ANY PERIOD SUBSEQUENT TO SEPTEMBER 15, 1948, MAY NOT BE ALLOWED. IT DOES APPEAR, HOWEVER, THAT YOU HAD A DE JURE STATUS THROUGH THAT DATE. YOUR CLAIM, IF OTHERWISE CORRECT, WILL BE ALLOWED FOR THE PERIOD SEPTEMBER 1 TO 15, 1948.