B-135848, JUNE 3, 1958, 37 COMP. GEN. 811

B-135848, JUNE 3, 1958, 37 COMP. GEN. 811

MILITARY PERSONNEL - PLACEMENT ON DISABILITY RETIRED LIST - DUAL COMPENSATION - TERMINATION OF MILITARY STATUS - RECORD CORRECTION THE PLACING OF AN AIR FORCE RESERVE OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST UNDER ORDERS WHICH ADVISED THE OFFICER THAT HIS APPOINTMENT WAS TERMINATED DOES NOT AUTOMATICALLY TERMINATE HIS APPOINTMENT AND THE STATEMENT IN THE ORDERS WHICH WAS NOT IN ACCORDANCE WITH ANY PROVISION OF LAW IS NOT REGARDED AS AN ADMINISTRATIVE ACT TERMINATING THE APPOINTMENT; THEREFORE, THE MEMBER WHO CONTINUED TO BE A DE JURE MEMBER OF THE RESERVES WHILE ON THE TEMPORARY DISABILITY RETIRED LIST AND WHO WAS EMPLOYED IN A CIVILIAN POSITION IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS IN 5 U.S.C. 59 (A) AND MAY RECEIVE RETIRED PAY WHICH HAD BEEN WITHHELD DUE TO THE TERMINATION OF RESERVE STATUS. A SETTLEMENT WHICH ALLOWED A MEMBER OF A RESERVE COMPONENT RETROACTIVE RETIRED PAY PURSUANT TO A CORRECTION OF RECORDS ACTION PLACING THE MEMBER ON A TEMPORARY DISABILITY RETIRED LIST, BUT WHICH DENIED RETIRED PAY FOR A PERIOD WHEN THE MEMBER WAS EMPLOYED IN A CIVILIAN POSITION BECAUSE SETTLEMENT WAS MADE PRIOR TO THE DECISION OF THE COMPTROLLER GENERAL (36 COMP. GEN. 808) EXTENDING THE RULE IN THE TANNER CASE (129 C.1 792) TO BRING DE JURE MEMBERS OF RESERVE COMPONENTS WHO WERE AUTHORIZED TO RECEIVE RETIRED PAY UNDER 10 U.S.C. 1036 WITHIN THE DUAL COMPENSATION EXEMPTION IN 5 U.S.C. 30R (C), IS NOT A FINAL RELEASE UNDER 10 U.S.C. 1552 (C) TO PRECLUDE RECEIPT OF RETIRED PAY UPON A SUBSEQUENT CHANGE IN INTERPRETATION OF THE LAW.

TO LIEUTENANT COLONEL C. W. GRIFFIN, UNITED STATES AIR FORCE, JUNE 3, 1958:

BY LETTER OF APRIL 15, 1958, THE EXECUTIVE OFFICER, DIRECTORATE OF ACCOUNTING AND FINANCE, U.S. AIR FORCE, FORWARDED YOUR LETTER OF FEBRUARY 28, 1958, REQUESTING ADVANCE DECISION AS TO THE LEGALITY OF PAYING THE AMOUNT OF RETIRED PAY WITHHELD UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, FROM LIEUTENANT COLONEL ROBERT S. MACK, USAF, RETIRED, AND CAPTAIN DAVID E. SAGI, USAF, RETIRED, FOR THE PERIODS APRIL 2, 1956, TO OCTOBER 6, 1957, AND OCTOBER 1, 1953, TO AUGUST 3, 1955, RESPECTIVELY, LESS COMPENSATION RECEIVED FROM THE VETERANS ADMINISTRATION IN THE CASE OF CAPTAIN SAGI. IT IS REPORTED THAT YOUR REQUEST WAS APPROVED FOR SUBMISSION BY THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, AS AIR FORCE REQUEST NO. 335.

IT APPEARS THAT WHILE HOLDING AN APPOINTMENT FOR AN INDEFINITE TERM IN THE AIR FORCE RESERVE, COLONEL MACK WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF LIEUTENANT COLONEL BY ORDERS OF MARCH 22, 1956, UNDER AUTHORITY OF SECTION 402 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 816, 37 U.S.C. 272, THE LAST SENTENCE OF SUCH ORDERS STATING THAT " ALL APT HELD ARE TERM ON EFF DATE OF RET.' LATER HE ACCEPTED AN APPOINTMENT AS LIEUTENANT COLONEL IN THE AIR FORCE RESERVE ON OCTOBER 7, 1957, AND HE THEN WAS ASSIGNED TO THE RETIRED RESERVE AND PLACED ON THE AIR FORCE RESERVE RETIRED LIST EFFECTIVE OCTOBER 31, 1957, BY REASON OF HAVING BEEN RETIRED FOR PHYSICAL DISABILITY. YOU STATE THAT RETIRED PAY WAS NOT PAID TO HIM ON AND AFTER APRIL 2, 1956, SINCE HE ACCEPTED FEDERAL EMPLOYMENT ON THAT DATE AT A SALARY OF $10,320 PER YEAR, BUT THAT HIS RETIRED PAY WAS REINSTATED EFFECTIVE OCTOBER 7, 1957, UNDER OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808.

IT APPEARS THAT THE LANGUAGE TERMINATING ALL APPOINTMENTS WAS INCLUDED IN THE ORDERS OF MARCH 22, 1956, BECAUSE OF AN ADMINISTRATIVE RULING--- REVERSED IN A RECENT OPINION OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE--- THAT COMMISSIONS OF OFFICER PERSONNEL TERMINATED AUTOMATICALLY UPON RETIREMENT FOR PHYSICAL DISABILITY OR PLACEMENT OF THEIR NAMES ON THE TEMPORARY DISABILITY RETIRED LIST. IT IS UNDERSTOOD THAT SUCH VIEW WAS BASED ON THE PROVISIONS OF SECTION 405 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 821 (CODIFIED IN 10 U.S.C. 1211), WHICH PROVIDED FOR THE REAPPOINTMENT, WITH HIS CONSENT, OF AN OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST WHO WAS FOUND TO BE PHYSICALLY FIT TO PERFORM THE DUTIES OF HIS GRADE. WE AGREE WITH THE CONCLUSION REACHED IN THE RECENT OPINION OF THE JUDGE ADVOCATE GENERAL SINCE THE PROVISION FOR REAPPOINTMENT OF A MEMBER WHO HAS BEEN PLACED ON THE TEMPORARY DISABILITY RETIRED LIST, UPON A LATER FINDING OF PHYSICAL FITNESS FOR ACTIVE DUTY, IS NOT BELIEVED TO BE INCONSISTENT WITH THE CONCEPT (SUPPORTED BY OTHER PROVISIONS OF THE LAW) THAT A RESERVE OFFICER MAY RETAIN HIS MEMBERSHIP IN A RESERVE COMPONENT AFTER THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST.

THE PROVISIONS OF LAW RELATING TO PROMOTIONS AND CALLS TO ACTIVE DUTY OF MEMBERS OF RESERVE COMPONENTS AND RETIRED MEMBERS OF SUCH COMPONENTS ARE DIFFERENT, AND IF A RESERVE OFFICER IS TO BE RETURNED TO THE STATUS HE HAD PRIOR TO THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST, ACTION IN THE NATURE OF A REAPPOINTMENT IS NECESSARY. IT DOES NOT FOLLOW, HOWEVER, THAT A MEMBER MAY NOT RETAIN HIS MEMBERSHIP IN A RESERVE COMPONENT IN A RETIRED STATUS AFTER HIS TRANSFER TO THE TEMPORARY DISABILITY RETIRED LIST AND NO LANGUAGE HAS BEEN FOUND IN THE CAREER COMPENSATION ACT WHICH REQUIRED TERMINATION OF A RESERVE OFFICER'S APPOINTMENT UPON THE PLACEMENT OF HIS NAME ON THE TEMPORARY DISABILITY RETIRED LIST. IT SHOULD BE NOTED THAT THE PROVISIONS RELATING TO THE PAYMENT OF SEVERANCE PAY TO MEMBERS AFTER TEMPORARY RETIREMENT (CONTAINED IN SECTIONS 402 (E) AND 403, 37 U.S.C. 272 (E) AND 273, OF THE CAREER COMPENSATION ACT), PROVIDED FOR SEPARATION FROM THE SERVICE ONLY WHEN THE DISABILITY WAS DETERMINED TO BE LESS THAN 30 PERCENT IN ONE OF THE PERIODIC PHYSICAL EXAMINATIONS REQUIRED AFTER PLACEMENT OF A MEMBER'S NAME ON A TEMPORARY DISABILITY RETIRED LIST. A SEPARATION AT THAT TIME WOULD BE UNNECESSARY IF THE APPOINTMENTS OF ALL OFFICERS TERMINATED AUTOMATICALLY AT THE TIME OF PLACEMENT OF THEIR NAMES ON THE TEMPORARY DISABILITY RETIRED LIST.

A RETIRED RESERVE IS A PART OF THE RESERVE COMPONENT OF EACH OF THE ARMED FORCES. SEE SECTIONS 204 AND 207 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 483, 50 U.S.C. 923, 927. THE PROVISIONS OF SECTIONS 248 AND 249, OF THAT ACT, 50 U.S.C. 991, 992, RELATING TO SEPARATION OF MEMBERS OF THE RESERVE COMPONENTS, DO NOT APPEAR TO CONTEMPLATE THE SEPARATION OF SUCH MEMBERS UPON RETIREMENT FOR PHYSICAL DISABILITY, EITHER PERMANENT OR TEMPORARY, AND THERE IS NOTHING IN THE RECORD WHICH INDICATES THAT THE STATEMENT IN THE ORDERS OF MARCH 22, 1956, CONCERNING THE TERMINATION OF COLONEL MACK'S APPOINTMENT, WAS ISSUED UNDER AUTHORITY OF THE LATTER TWO SECTIONS OR ANY OTHER PROVISION OF LAW AUTHORIZING DISCHARGES OR SEPARATIONS FROM THE SERVICE. IN SUCH CIRCUMSTANCES, THAT STATEMENT IS NOT REGARDED AS AN ADMINISTRATIVE ACT TERMINATING HIS APPOINTMENT, BUT AS A MATTER OF INFORMATION FOR THE BENEFIT OF THE OFFICER BASED ON AN INTERPRETATION OF THE LAW. SINCE SUCH INTERPRETATION WAS ERRONEOUS, THE STATEMENT IN THE ORDERS OF MARCH 22, 1956, IS NOT CONSIDERED AS HAVING TERMINATED HIS MEMBERSHIP IN THE AIR FORCE RESERVE. THEREFORE, HE WAS EXEMPTED FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, DURING THE PERIOD HERE INVOLVED. 36 COMP. GEN. 808.

IT IS SHOWN THAT THE RECORDS OF CAPTAIN SAGI WERE CORRECTED ON MARCH 31, 1956, UNDER AUTHORITY OF 10 U.S.C. 1552, TO SHOW THAT HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST EFFECTIVE SEPTEMBER 30, 1953, PURSUANT TO THE PROVISIONS OF TITLE IV OF THE CAREER COMPENSATION ACT OF 1949. WHILE IT APPEARS THAT SUCH ACTION ENTITLED HIM TO RETIREMENT PAY RETROACTIVELY TO OCTOBER 1, 1953, ADMINISTRATIVE SETTLEMENT OF NOVEMBER 2, 1956, ALLOWED ONLY THAT PART OF HIS CLAIM FOR SUCH RETIREMENT PAY FOR THE PERIOD OCTOBER 1, 1953, TO JULY 31, 1956, AS COVERED THE PERIOD ON AND AFTER AUGUST 4, 1955, SINCE HIS SALARY FROM FEDERAL CIVILIAN EMPLOYMENT EXCEEDED THE LIMITATION OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, UNTIL AUGUST 4, 1955, WHEN SUCH LIMITATION WAS INCREASED FROM $3,000 TO $10,000 BY THE ACT OF THAT DATE, 69 STAT. 497, 39 U.S.C. 302A. SETTLEMENT WAS MADE ON THAT BASIS BECAUSE IT WAS ISSUED PRIOR TO OUR DECISION OF JUNE 11, 1957, EXTENDING THE DUAL COMPENSATION EXEMPTION RULE BASED ON THE CASE OF TANNER V. UNITED STATES, 129 C.1CLS. 792, AND DOUBT IS EXPRESSED WHETHER CAPTAIN SAGI REMAINED A DE JURE MEMBER OF A RESERVE COMPONENT, WITHIN THE MEANING OF THAT DECISION, WHILE ON THE TEMPORARY DISABILITY RETIRED LIST AND, IF SO, WHETHER HE RELEASED ANY RIGHTS OF THE TYPE RECOGNIZED BY THAT DECISION BY ACCEPTING A SETTLEMENT UNDER 10 U.S.C. 1552 AND SIGNING A CERTIFICATE OF RELEASE OF CLAIMS IN CONSIDERATION OF SUCH SETTLEMENT.

SECTION 207 (C) OF THE LEGISLATIVE REORGANIZATION ACT OF 1946, AS AMENDED, 5 U.S.C. 191A (C), AS NOW CODIFIED IN 10 U.S.C. 1552 (C), RELATING TO PAYMENT OF AMOUNTS FOUND DUE AS A RESULT OF CORRECTIONS OF MILITARY RECORDS, PROVIDES THAT " A CLAIMANT'S ACCEPTANCE OF A SETTLEMENT UNDER THIS SECTION FULLY SATISFIES THE CLAIM CONCERNED.' THAT LANGUAGE APPEARS TO CONTEMPLATE THAT A CLAIMANT SHOULD EXERCISE THE FULL AMOUNT DUE UNDER THE LAW AS INTERPRETED AND APPLIED BY THE AGENCIES CONCERNED WITH THE SETTLEMENT. IF HE FAILS TO ASCERTAIN THE AMOUNT DUE AND ACCEPTS A LESSER AMOUNT THAN IS PAYABLE UNDER INTERPRETATIONS OF THE LAW CURRENTLY IN EFFECT, SUCH ACCEPTANCE WOULD APPEAR TO BAR CONSIDERATION OF A SUBSEQUENT CLAIM FOR ANY ADDITIONAL AMOUNT WHICH COULD HAVE BEEN PAID. HOWEVER, IN A CASE WHERE THE AMOUNT TENDERED AND ACCEPTED CONSTITUTES THE FULL AMOUNT WHICH COULD BE OFFERED UNDER CURRENT AND AUTHORITATIVE INTERPRETATIONS OF THE APPLICABLE PROVISIONS OF LAW, IT DOES NOT APPEAR THAT IT WOULD BE PROPER TO IMPUTE TO THE CONGRESS AN INTENT TO BAR FURTHER CONSIDERATION OF THE MATTER IF IT LATER IS AUTHORITATIVELY DETERMINED THAT THE INTERPRETATION APPLICABLE ON THE DATE OF SETTLEMENT SHOULD BE CHANGED. SUCH AN INTENT WOULD SEEM TO BE AT VARIANCE WITH THE OBVIOUS INTENT OF THE LANGUAGE IN THE STATUTE WHICH AUTHORIZES CORRECTION OF ANY MILITARY RECORD WHEN SUCH ACTION IS CONSIDERED NECESSARY "TO CORRECT AN ERROR OR REMOVE AN INJUSTICE.' FOR THE REASONS STATED ABOVE, INCLUDING THOSE STATED IN CONNECTION WITH THE STATUS OF COLONEL MACK, IT IS OUR VIEW THAT CAPTAIN SAGI IS ENTITLED TO THE BENEFITS OF OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808, EXTENDING THE RULE OF THE TANNER CASE TO RECOVER RESERVISTS WHOSE RETIRED PAY IS AUTHORIZED UNDER STATUTORY PROVISIONS OTHER THAN TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036. HENCE, IT IS CONCLUDED THAT HE IS ENTITLED TO RETIRED PAY, WITHOUT REDUCTION, FOR THE PERIOD IN QUESTION, THAT IS, FROM OCTOBER 1, 1953, TO AUGUST 3, 1955.

ACCORDINGLY, PAYMENTS ON THE SUBMITTED VOUCHERS, RETURNED HEREWITH, ARE AUTHORIZED, IF OTHERWISE CORRECT.