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B-135848, MAR. 24, 1964

B-135848 Mar 24, 1964
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TO FROST AND TOWERS: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14. HAVE NOT BEEN ENTIRELY CONSISTENT. THAT COLONEL MACK WAS EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT WAS BASED ON THE CASE OF TANNER V. WHO WERE RETIRED FOR DISABILITY. WOULD BE ENTITLED TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS ONLY IF THEIR RETIRED PAY WAS BASED ON A RESERVE GRADE WHICH WAS HIGHER THAN THE TEMPORARY GRADE HELD. THAT CONCLUSION WAS BASED ON THE THEORY THAT A PERSON WHO WAS RETIRED FOR PHYSICAL DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY OFFICER. WHO WAS AUTHORIZED TO HAVE HIS RETIRED PAY COMPUTED ON THE GRADE THEN HELD BY HIM IN A RESERVE COMPONENT HIGHER THAN ANY GRADE IN WHICH HE SERVED ON ACTIVE DUTY (TRACY V.

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B-135848, MAR. 24, 1964

TO FROST AND TOWERS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1964, RELATIVE TO THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, IN THE CASE OF LIEUTENANT COLONEL ROBERT S. MACK, USAF, RETIRED.

APPLICATION OF THE DUAL COMPENSATION RESTRICTIONS HAS BEEN THE SUBJECT OF MANY, AND SOMETIMES CONFLICTING, JUDICIAL INTERPRETATIONS. AS A RESULT, THE DECISIONS OF THIS OFFICE, WHICH ATTEMPTED TO FOLLOW SUCH INTERPRETATIONS, HAVE NOT BEEN ENTIRELY CONSISTENT. THE CONCLUSION REACHED IN OUR DECISION OF JUNE 3, 1958, B-135848, THAT COLONEL MACK WAS EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT WAS BASED ON THE CASE OF TANNER V. UNITED STATES, 129 CT.CL. 792 (1954). IN OUR DECISION OF JULY 9, 1962, B-136459, 42 COMP. GEN. 9, COPY ENCLOSED, BASED ON THE COURT OF CLAIMS DECISION IN THE CASE OF WATMAN V. UNITED STATES, 152 CT.CL. 769 (1961/--- IN WHICH THE COURT SOUGHT TO ELIMINATE EXISTING CONFUSION IN THIS MATTER--- WE HELD THAT RESERVE OFFICERS SERVING ON ACTIVE DUTY AS TEMPORARY OFFICERS UNDER APPOINTMENTS RECEIVED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906, WHO WERE RETIRED FOR DISABILITY, WOULD BE ENTITLED TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS ONLY IF THEIR RETIRED PAY WAS BASED ON A RESERVE GRADE WHICH WAS HIGHER THAN THE TEMPORARY GRADE HELD. THAT CONCLUSION WAS BASED ON THE THEORY THAT A PERSON WHO WAS RETIRED FOR PHYSICAL DISABILITY INCURRED WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY OFFICER, BUT WHO WAS AUTHORIZED TO HAVE HIS RETIRED PAY COMPUTED ON THE GRADE THEN HELD BY HIM IN A RESERVE COMPONENT HIGHER THAN ANY GRADE IN WHICH HE SERVED ON ACTIVE DUTY (TRACY V. UNITED STATES, 136 CT.CL. 211 (1956), AND NERI V. UNITED STATES, 145 CT.CL. 537 (1959), WAS RECEIVING HIS RETIRED PAY BECAUSE OF HIS RESERVE STATUS.

THE COURT BROUGHT OUT IN THE WATMAN DECISION AND REAFFIRMED IN THE CASE OF GRADALL V. UNITED STATES, CT.CL. NO. 4-60, DECIDED MAY 9, 1962, THAT THE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS IN THE ECONOMY ACT APPLIES TO A MEMBER'S RETIRED PAY ONLY IF HE EARNED THE RIGHT TO THAT RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT OR BY REASON OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT. IF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT HAD NO BEARING ON HIS RIGHT TO RETIRED PAY, IT WILL HAVE NO BEARING ON HIS RIGHT TO EXEMPTION FROM THE CURRENT DUAL COMPENSATION RESTRICTIONS.

UPON THE PREMISE THAT COLONEL MACK WAS RETIRED WHILE HE WAS SERVING ON ACTIVE DUTY AS A TEMPORARY OFFICER IN THE AIR FORCE OF THE UNITED STATES-- - NOT AS A RESERVE OFFICER--- AND SINCE HIS DISABILITY APPARENTLY WAS NOT INCURRED IN COMBAT OR CAUSED BY AN INSTRUMENTALITY OF WAR WITHIN THE PURVIEW OF 5 U.S.C. 59A (B), IT APPEARS THAT HIS RETIRED PAY IN EXCESS OF THE ECONOMY ACT LIMITATION IS BEING PROPERLY REDUCED BY THE DEPARTMENT OF THE AIR FORCE. NOTHING STATED IN YOUR LETTER OF FEBRUARY 14, 1964, WARRANTS A DIFFERENT CONCLUSION, SINCE OUR DECISION OF JULY 9, 1962, HAS BEEN GIVEN PROSPECTIVE EFFECT FROM OCTOBER 1, 1962. SEE B-136549, AUGUST 14, 1962. AS TO PAYMENTS OF RETIRED PAY IN EXCESS OF THE ECONOMY ACT LIMITATION MADE PRIOR TO OCTOBER 1, 1962, THE SECRETARY OF DEFENSE WAS ADVISED IN THE LATTER DECISION THAT COLLECTION ACTION MAY BE POSTPONED UNTIL THE END OF THE FIRST SESSION OF THE 88TH CONGRESS, PENDING CONSIDERATION OF RELIEF LEGISLATION. COLLECTION ACTION HAS NOW BEEN POSTPONED TO APRIL 30, 1964. SEE B-136549, DECEMBER 16, 1963. RELIEF LEGISLATION CONTAINED IN SUBSECTION 201 (G) OF H.R. 7381 WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON FEBRUARY 18, 1964.

THERE IS NO AUTHORITY AT THE PRESENT TIME FOR REFUND OF THE RETIRED PAY WHICH HAS BEEN WITHHELD FROM COLONEL MACK UNDER THE ECONOMY ACT SINCE OCTOBER 1, 1962, AND HIS CLAIM THEREFOR IS DISALLOWED.

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