B-145684, NOVEMBER 2, 1962, 42 COMP. GEN. 229

B-145684, NOVEMBER 2, 1962, 42 COMP. GEN. 229

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - MAXIMUM LIMITATION - COMPUTATION - COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - MAXIMUM LIMITATION - RETROACTIVE COMPENSATION INCREASE - COMPENSATION - DOUBLE CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - MAXIMUM LIMITATION - BASIC COMPENSATION IN THE REFUND OF RETIRED PAY WITHHELD DURING THE CALENDAR YEAR 1961 TO PERMIT A RETIRED OFFICER TO RECEIVE THE TOTAL OF $10,000 PRESCRIBED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, ENTITLEMENT TO WHICH IN ACCORDANCE WITH SCHUYLER V. UNITED STATES, 148 CT.CL. 479, AND DELLINGER V. UNITED STATES, CT.CL. NO. 83 61, DECIDED MAY 9, 1962, IS BASED ON THE TOTAL AMOUNT RECEIVED DURING THE PAST CALENDAR YEAR, THE COMPUTATION OF THE $10,000 IN COMBINED RETIRED PAY AND CIVILIAN COMPENSATION FOR THE CALENDAR YEAR 1961 SHOULD INCLUDE THE CIVILIAN COMPENSATION EARNED BY THE RETIRED OFFICER FOR THE LAST PAY PERIOD OF DECEMBER 1961, WHICH WAS NOT PAID TO HIM UNTIL JANUARY 1962, THE METHOD PRESCRIBED IN THE SCHUYLER CASE, AND IN VIEW OF THE FACT THAT 5 U.S.C. 59A PROVIDES FOR ENTITLEMENT TO RETIRED PAY AND CIVILIAN COMPENSATION, THE REFUND OF RETIRED PAY WITHHELD SHOULD BE BASED ON THE AMOUNT OF CIVILIAN PAY EARNED OR ACCRUED DURING THE PERIOD RATHER THAN ON THE GROSS SALARY PAID. A RETIRED OFFICER WHO DURING THE CALENDAR YEAR 1961 ACTUALLY EARNED LESS THAN $10,000 IN RETIRED PAY AND CIVILIAN COMPENSATION, BUT WHO WAS SUBJECT TO A REDUCTION OF RETIRED PAY UPON NOTIFICATION IN FEBRUARY 1962 OF AN INCREASE IN CIVILIAN COMPENSATION EFFECTIVE DURING 1961, WHICH CAUSED HIS COMBINED RETIRED PAY AND CIVILIAN COMPENSATION TO EXCEED THE WITHHELD PURSUANT TO THE RULINGS IN SCHUYLER V. UNITED STATES, 148 CT.CL. 479, AND DELLINGER V. UNITED STATES, DECIDED MAY 9, 1962, THAT THE $10,000 LIMITATION ON RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION WOULD BE ON THE TOTAL AMOUNT RECEIVED DURING THE PAST CALENDAR YEAR, THE REDUCTION OF RETIRED PAY ALTHOUGH MADE SUBSEQUENT TO THE CALENDAR YEAR 1961 WAS INTENDED TO COVER AMOUNTS WHICH SHOULD HAVE BEEN WITHHELD FOR THE MONTHS IN 1961 DURING WHICH THE CIVILIAN COMPENSATION INCREASE WAS EFFECTIVE. THE TERM "CIVILIAN PAY" AS USED IN 5 U.S.C. 59A (B), WHICH EXEMPTS ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN COMPENSATION AMOUNTS TO LESS THAN $10,000 FROM THE RESTRICTION OF 5 U.S.C. 59A (A) LIMITING ENTITLEMENT TO THE RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION TO $10,000 MAY BE REGARDED AS "BASIC COMPENSATION," THE DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES WHICH HAVE HELD THAT THE TERM "ANNUAL RATE OF COMPENSATION" AS USED IN 5 U.S.C. 59A (A) REFERS TO ,BASIC COMPENSATION" BEING ALSO APPLICABLE TO THE TERM "CIVILIAN PAY" AS USED IN 5 U.S.C. 59A (B).

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, NOVEMBER 2, 1962:

YOUR LETTER OF SEPTEMBER 20, 1962, FILE NO. CDH/JR, FORWARDED HERE BY FIRST INDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS, DATED SEPTEMBER 26, 1962, REQUESTS OUR DECISION ON SEVERAL QUESTIONS INVOLVING REFUND OF RETIRED PAY PREVIOUSLY WITHHELD UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. THE QUESTIONS HAVE ARISEN AS A RESULT OF THE DECISIONS BY THE COURT OF CLAIMS IN THE CASES OF GARRET L. SCHUYLER V. UNITED STATES, 148 CT.CL. 479, DECIDED JANUARY 20, 1960, AND OLIN E. DELLINGER V. UNITED STATES, CT.CL. NO. 83- 61, DECIDED MAY 9, 1962.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, PROVIDES IN PERTINENT PART, AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000 * * *.

IN OUR DECISION OF AUGUST 2, 1962, B-149203, 42 COMP. GEN. 71, WE INDICATED THAT WE WILL ACCEPT AND FOLLOW THE COURT'S RULINGS IN THE SCHUYLER AND DELLINGER CASES IN THE DETERMINATION OF THE AMOUNT OF RETIRED PAY A RETIRED OFFICER IS ENTITLED TO IN ADDITION TO CIVILIAN COMPENSATION UNDER THE LIMITATION SET FORTH IN THE ABOVE STATUTE. THAT IS, THE ENTITLEMENT WOULD BE ON THE BASIS OF THE TOTAL AMOUNT RECEIVED DURING THE PAST CALENDAR YEAR.

THE FIRST QUESTION PRESENTED IN YOUR LETTER CONCERNS THE COMPUTATION OF THE $10,000 IN COMBINED RETIREMENT PAY AND CIVILIAN COMPENSATION WHICH A RETIRED OFFICER WAS ENTITLED TO RECEIVE DURING CALENDAR YEAR 1961; THAT IS, WHETHER IN DETERMINING WHAT PART OF THE AMOUNT OF RETIRED PAY PREVIOUSLY WITHHELD FROM THE RETIRED OFFICER NOW MAY BE REFUNDED TO HIM, SO AS TO PERMIT HIM TO RECEIVE THE TOTAL OF $10,000, THERE SHOULD BE INCLUDED IN CALENDAR YEAR 1961, THE CIVILIAN COMPENSATION EARNED BY HIM FOR THE LAST PAY PERIOD OF DECEMBER 1961, WHICH WAS NOT PAID TO HIM UNTIL JANUARY 1962.

WE NOTE THAT THE COURT IN ITS OPINION IN THE SCHUYLER CASE, STATED THAT THE PLAINTIFF WAS ENTITLED TO RECOVER THE AMOUNT OF RETIRED PAY WITHHELD "DURING" THE YEAR 1956. HOWEVER, WHEN JUDGMENT WAS ENTERED ON OCTOBER 14, 1960, THERE WAS INCLUDED THEREIN AN AMOUNT WITHHELD FROM THE RETIRED PAY WHICH ACCRUED IN DECEMBER 1956, BUT WHICH ACTUALLY WAS PAID IN JANUARY 1957. ALSO, WE NOTE THAT 5 U.S.C. 59A, SPEAKS OF A RETIRED OFFICER BEING ENTITLED (WITHIN THE LIMITATION OF $10,000) TO RETIRED PAY AND CIVILIAN COMPENSATION. THEREFORE, IT IS OUR VIEW THAT THE AMOUNT OF WITHHELD RETIRED PAY THAT NOW MAY BE PAID TO THE OFFICER INVOLVED IN YOUR FIRST QUESTION 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.

YOUR SECOND QUESTION INVOLVES A RETIRED OFFICER WHO DURING CALENDAR YEAR 1961 RECEIVED RETIRED PAY AT AN ANNUAL RATE OF $4,536. DURING THE SAME YEAR HE WAS EMPLOYED AS A CIVILIAN AT CAMP PENDLETON, CALIFORNIA, AND EARNED A GROSS SALARY OF $5,185. WHILE THE TOTAL AMOUNT ACTUALLY EARNED WAS LESS THAN $10,000, HIS CIVILIAN COMPENSATION HAD BEEN INCREASED ON AUGUST 1, 1961, SO THAT THE COMBINED RATE OF PAY FOR THE REMAINDER OF THE YEAR WAS IN EXCESS OF $10,000. NOTIFICATION OF THIS INCREASE WAS NOT RECEIVED UNTIL FEBRUARY 1962 AND ACTION THEN WAS TAKEN TO REDUCE HIS RETIRED PAY FOR FEBRUARY 1962 AT THE RATE OF $19.67 PER MONTH FOR THE PERIOD AUGUST 1, 1961, THROUGH DECEMBER 31, 1961, A TOTAL REDUCTION OF $98.35.

YOU ASK WHETHER THE OFFICER NOW MAY BE REFUNDED THE AMOUNT OF $98.35 OR WHETHER IT MUST BE CONSIDERED AS A REDUCTION OF HIS RETIRED PAY FOR FEBRUARY 1962 RATHER THAN FOR THE PERIOD OF AUGUST THROUGH DECEMBER 1961, THUS NOT PERMITTING CONSIDERATION OF THE AMOUNT UNTIL THE END OF 1962.

WHILE THE AMOUNT HERE INVOLVED ACTUALLY WAS WITHHELD FROM RETIRED PAY IN FEBRUARY 1962, IT WAS WITHHELD TO MAKE UP FOR AMOUNTS WHICH SHOULD HAVE BEEN WITHHELD FROM RETIRED PAY FOR THE MONTHS OF AUGUST THROUGH DECEMBER 1961. IN VIEW OF THESE FACTS, THE AMOUNT WITHHELD NOW MAY BE REFUNDED TO THE RETIRED OFFICER.

YOU STATE ALSO THAT WHILE NOT INVOLVED IN THE PRESENT CASES YOU ARE IN DOUBT WHETHER "CIVILIAN PAY," AS USED IN 5 U.S.C. 59A (B), INCLUDES NIGHT DIFFERENTIAL, HOLIDAY AND OVERTIME COMPENSATION (22 COMP. GEN. 795), TROPICAL DIFFERENTIAL (40 COMP. GEN. 603), AND OTHER TYPES OF COMPENSATION AS DISTINGUISHED FROM COST-OF-LIVING ALLOWANCES 5 U.S.C. 3037), WHICH ARE NOT REQUIRED TO BE CONSIDERED IN THE APPLICATION OF 5 U.S.C. 59A (A), AND THAT YOU WOULD APPRECIATE ANY GUIDANCE THAT WE MAY CARE TO GIVE IN SUCH RESPECT.

YOU ARE ADVISED THAT OUR DECISIONS WHICH HAVE HELD THAT THE TERM "ANNUAL RATE OF COMPENSATION" AS USED IN SUBSECTION (A) OF 5 U.S.C. 59A, REFERS TO "BASIC COMPENSATION," ARE TO BE REGARDED AS ALSO APPLICABLE TO THE TERM "CIVILIAN PAY" AS USED IN SUBSECTION (B) OF 5 U.S.C. 59A.