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B-122127, JAN. 7, 1963

B-122127 Jan 07, 1963
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RADER: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5. THERE HAVE ALSO BEEN RECEIVED YOUR LETTERS OF NOVEMBER 5. SERVED ALMOST CONTINUOUSLY FOR A PERIOD OF MORE THAN 20 YEARS AND WERE RETIRED FOR PHYSICAL DISABILITY EFFECTIVE OCTOBER 31. AT WHICH TIME YOU WERE SERVING IN THE TEMPORARY GRADE OF MAJOR. YOU FURTHER STATE THAT YOU HAVE BEEN EMPLOYED AS A CIVIL SERVICE EMPLOYEE AT THE PATRICK AIR FORCE BASE. THAT BECAUSE OF SUCH EMPLOYMENT YOUR RETIRED PAY WAS STOPPED AS OF SEPTEMBER 30. SUBSEQUENT COURT DECISIONS HAVE RAISED A DOUBT AS TO THE CORRECTNESS OF OUR ACTION IN EXTENDING THE EXEMPTION TO YOU. WHICH ATTEMPTED TO FOLLOW SUCH INTERPRETATIONS HAVE NOT BEEN ENTIRELY CONSISTENT. WHO WERE RETIRED FOR DISABILITY.

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B-122127, JAN. 7, 1963

TO MAJOR WILLIAM R. RADER:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1962, PROTESTING THE DISCONTINUANCE OF YOUR MILITARY PAY EFFECTIVE SEPTEMBER 30, 1962, PURSUANT TO THE MOST RECENT INTERPRETATION OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. THERE HAVE ALSO BEEN RECEIVED YOUR LETTERS OF NOVEMBER 5, 1962, ADDRESSED TO THE PRESIDENT, NOVEMBER 30, 1962, AND DECEMBER 19, 1962, RELATING TO THIS MATTER.

YOU STATE THAT YOU ENLISTED IN THE UNITED STATES ARMY IN 1932, SERVED ALMOST CONTINUOUSLY FOR A PERIOD OF MORE THAN 20 YEARS AND WERE RETIRED FOR PHYSICAL DISABILITY EFFECTIVE OCTOBER 31, 1952, AT WHICH TIME YOU WERE SERVING IN THE TEMPORARY GRADE OF MAJOR. YOU FURTHER STATE THAT YOU HAVE BEEN EMPLOYED AS A CIVIL SERVICE EMPLOYEE AT THE PATRICK AIR FORCE BASE, FLORIDA, AND THAT BECAUSE OF SUCH EMPLOYMENT YOUR RETIRED PAY WAS STOPPED AS OF SEPTEMBER 30, 1962. AN EARLIER QUESTION AS TO APPLICATION OF THE DUAL COMPENSATION RESTRICTION HAD BEEN RESOLVED IN YOUR FAVOR BASED ON THE DECISION IN THE CASE OF TANNER V. UNITED STATES, 129 CT.CL. 792, BUT SUBSEQUENT COURT DECISIONS HAVE RAISED A DOUBT AS TO THE CORRECTNESS OF OUR ACTION IN EXTENDING THE EXEMPTION TO YOU.

APPLICATION OF THE DUAL COMPENSATION RESTRICTION 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. IN OUR DECISION OF JULY 9, 1962, B-136459, COPY ENCLOSED, BASED ON THE COURT OF CLAIMS DECISION IN THE CASE OF WATMAN V. UNITED STATES, CT.CL. NO. 189-59, DATED MARCH 1, 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 RESTRICTION ONLY IF THEIR RETIRED PAY WAS COMPUTED ON THE GRADE HELD IN THE RESERVE, WHICH GRADE 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 HAD SERVED ON ACTIVE DUTY (TRACY V. UNITED STATES, 136 CT.CT. 211 AND NERI V. UNITED STATES, 145 CT.CL. 537) 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 RESTRICTION IN THE ECONOMY ACT APPLIES TO A NUMBER'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 DUAL COMPENSATION RESTRICTION.

THE DEPARTMENT OF THE ARMY HAS FURNISHED A REPORT SHOWING THAT YOU SERVED AS AN ENLISTED MAN IN THE REGULAR ARMY FROM 1932 TO 1942, AS A WARRANT OFFICER JUNIOR GRADE UNDER A TEMPORARY APPOINTMENT IN THE ARMY OF THE UNITED STATES FROM MAY TO DECEMBER 1942, AND AS A COMMISSIONED OFFICER UNDER TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STATES FROM DECEMBER 31, 1942, TO OCTOBER 31, 1952, WHEN YOU WERE RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, CH. 681, 63 STAT. 816. YOUR ACTIVE DUTY AS A COMMISSIONED OFFICER IS REPORTED TO HAVE BEEN PERFORMED UNDER TEMPORARY APPOINTMENTS IN THE ARMY OF THE UNITED STATES IN THE GRADE OF SECOND LIEUTENANT FROM DECEMBER 31, 1942, TO SEPTEMBER 9, 1943, IN THE GRADE OF FIRST LIEUTENANT FROM SEPTEMBER 10, 1943, TO DECEMBER 8, 1944, IN THE GRADE OF CAPTAIN FROM DECEMBER 9, 1944, TO JULY 2, 1951, AND IN THE GRADE OF MAJOR, UNDER THE OFFICER PERSONNEL ACT OF 1947, FROM JULY 3, 1951, TO OCTOBER 31, 1952. ALTHOUGH YOU HELD AN APPOINTMENT AS MAJOR IN THE OFFICERS' RESERVE CORPS FROM SEPTEMBER 5, 1947, YOU NEVER PERFORMED ANY ACTIVE SERVICE THEREUNDER AND SUCH APPOINTMENT HAD NO BEARING ON YOUR RIGHT TO RETIRED PAY OR THE COMPUTATION THEREOF.

IT IS CONCLUDED, THEREFORE, THAT YOU ARE NOT EXEMPT FROM THE DUAL COMPENSATION RESTRICTION IN THE ECONOMY ACT AND YOUR RETIRED PAY WAS PROPERLY SUSPENDED PURSUANT TO OUR DECISION OF JULY 9, 1962.

WITH RESPECT TO YOUR INQUIRY AS TO WHETHER YOU COULD BE RECALLED TO ACTIVE DUTY, WAIVE YOUR DISABILITY AND BE RETIRED UNDER NORMAL RETIREMENT (PRESUMABLY YOU REFER TO 10 U.S.C. 3911), WE KNOW OF NO AUTHORITY OF LAW FOR ADJUSTING YOUR RETIRED PAY TO A YEARS-OF-SERVICE BASIS AT THIS TIME. YOUR RETIRED PAY RIGHTS BECAME FIXED IN 1952 AND NO NEW OR DIFFERENT RIGHTS APPEAR TO HAVE ACCRUED SINCE THAT TIME.

DURING THE LAST CONGRESS SEVERAL BILLS TO AMEND THE DUAL COMPENSATION LAWS WERE INTRODUCED AND CONSIDERED BUT NO FINAL ACTION WAS TAKEN PRIOR TO ADJOURNMENT. IN THE EVENT THAT PROPOSED LEGISLATION RELATING TO THIS MATTER SHOULD BE INTRODUCED IN THE NEW CONGRESS WHICH WILL CONVENE ON JANUARY 9, 1963, NO DETERMINATION COULD BE MADE AS TO YOUR RIGHTS THEREUNDER UNTIL SUCH TIME AS A NEW LEGISLATIVE PROPOSAL IS ENACTED INTO LAW.

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