B-141994, APR. 19, 1963
Highlights
MASON AND ALBRIGHT: REFERENCE IS MADE TO YOUR LETTER OF MARCH 20. THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 7. THE SETTLEMENT WAS SUSTAINED BY DECISION DATED MARCH 24. IT IS STATED THAT A SUM OF $516.62 HAS BEEN WITHHELD FROM CAPTAIN MCDANIEL'S RETIRED PAY PURSUANT TO THE ECONOMY ACT RESTRICTION. IT WAS INDICATED THAT WE WILL ACCEPT AND FOLLOW THE COURT'S RULINGS IN THE SCHUYLER AND DELLINGER (DELLINGER V. 1962) CASES IN THE DETERMINATION OF THE AMOUNT OF RETIRED PAY A RETIRED OFFICER IS ENTITLED TO RECEIVE IN ADDITION TO CIVILIAN COMPENSATION UNDER THE ECONOMY ACT LIMITATION. THAT IS. WE STATED THAT IT IS OUR VIEW THAT THE AMOUNT OF WITHHELD RETIRED PAY THAT NOW MAY BE PAID TO THE OFFICER THERE CONCERNED SHOULD BE BASED ON THE AMOUNT OF CIVILIAN PAY EARNED OR ACCRUED DURING THE PERIOD INVOLVED RATHER THAN ON THE GROSS SALARY PAID TO HIM DURING THAT PERIOD.
B-141994, APR. 19, 1963
TO MASON, MASON AND ALBRIGHT:
REFERENCE IS MADE TO YOUR LETTER OF MARCH 20, 1963, WRITTEN ON BEHALF OF CAPTAIN THOMAS W. MCDANIEL, JR., USN, RETIRED, REQUESTING RECONSIDERATION OF HIS CLAIM FOR REFUND OF AMOUNTS WITHHELD FROM HIS NAVY RETIRED PAY UNDER THE DUAL COMPENSATION RESTRICTIONS IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. THE CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED JANUARY 7, 1960, AND THE SETTLEMENT WAS SUSTAINED BY DECISION DATED MARCH 24, 1960, B -141994. IN OUR DECISION DATED OCTOBER 4, 1960, WE ADHERED TO OUR PRIOR DECISION AND ADVISED YOU THAT THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF SCHUYLER V. UNITED STATES, CT.CL.NO. 548-58, DECIDED JANUARY 20, 1960, WOULD NOT BE USED AS A PRECEDENT PENDING CLARIFICATION OF THE COURT'S POSITION.
YOUR PRESENT REQUEST FOR RECONSIDERATION CITES OUR DECISION DATED NOVEMBER 2, 1962, B-145684, 42 COMP. GEN. - , AND IT IS STATED THAT A SUM OF $516.62 HAS BEEN WITHHELD FROM CAPTAIN MCDANIEL'S RETIRED PAY PURSUANT TO THE ECONOMY ACT RESTRICTION.
IN OUR DECISION OF AUGUST 2, 1962, B-149203, 42 COMP. GEN. - , IT WAS INDICATED THAT WE WILL ACCEPT AND FOLLOW THE COURT'S RULINGS IN THE SCHUYLER AND DELLINGER (DELLINGER V. UNITED STATES, CT.CL.NO. 83 61, DECIDED MAY 9, 1962) CASES IN THE DETERMINATION OF THE AMOUNT OF RETIRED PAY A RETIRED OFFICER IS ENTITLED TO RECEIVE IN ADDITION TO CIVILIAN COMPENSATION UNDER THE ECONOMY ACT LIMITATION, THAT IS, THE ENTITLEMENT WOULD BE ON THE BASIS OF THE TOTAL AMOUNT RECEIVED DURING THE PAST CALENDAR YEAR. IN OUR DECISION OF NOVEMBER 2, 1962, B 145684, SUPRA, WE STATED THAT IT IS OUR VIEW THAT THE AMOUNT OF WITHHELD RETIRED PAY THAT NOW MAY BE PAID TO THE OFFICER THERE CONCERNED SHOULD BE BASED ON THE AMOUNT OF CIVILIAN PAY EARNED OR ACCRUED DURING THE PERIOD INVOLVED RATHER THAN ON THE GROSS SALARY PAID TO HIM DURING THAT PERIOD.
ACCORDINGLY, INASMUCH AS IT APPEARS THAT CAPTAIN MCDANIEL'S CIVILIAN COMPENSATION COMBINED WITH HIS RETIRED PAY IS WITHIN THE STATUTORY LIMITATION ON DUAL COMPENSATION FOR EACH OF THE CALENDAR YEARS INVOLVED, WE ARE INSTRUCTING OUR CLAIMS DIVISION TO ISSUE A SETTLEMENT IN FAVOR OF THE CLAIMANT IN THE AMOUNT WITHHELD FROM HIS RETIRED PAY UNDER THE ECONOMY ACT. WHILE YOU STATE THAT SUCH AMOUNT IS $516.62, INFORMATION RECEIVED FROM THE NAVY FINANCE CENTER INDICATES THAT ONLY $400.68 WAS WITHHELD. THE MATTER WILL BE VERIFIED AND SETTLEMENT WILL ISSUE FOR THE CORRECT AMOUNT FOUND DUE.