B-123382, JUNE 11, 1957, 36 COMP. GEN. 808

B-123382: Jun 11, 1957

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MILITARY PERSONNEL - RETIRED RESERVISTS - COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY FEDERAL CIVILIAN OFFICERS AND EMPLOYEES WHO HAVE BEEN OR MAY BE GRANTED RETIRED PAY AND WHO. WERE MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD OR WHO. WERE MEMBERS OF ANY OF THE RESERVE COMPONENTS. 1957: REFERENCE IS MADE TO DECISION TO YOU DATED MARCH 2. AS A PRECEDENT FOR RETROACTIVE AND PROSPECTIVE PAYMENT OF MILITARY RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) ONLY IN THOSE CASES WHERE THE PERSON CONCERNED IS OTHERWISE ENTITLED AND HAS BEEN. SPECIFIC REFERENCE WAS MADE IN THE DECISION OF MARCH 2. AMONG THE CASES MENTIONED WAS THAT OF MADDEN V. MADDEN WAS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 5 OF THE ACT OF APRIL 3.

B-123382, JUNE 11, 1957, 36 COMP. GEN. 808

MILITARY PERSONNEL - RETIRED RESERVISTS - COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY FEDERAL CIVILIAN OFFICERS AND EMPLOYEES WHO HAVE BEEN OR MAY BE GRANTED RETIRED PAY AND WHO, PRIOR TO JANUARY 1, 1953, WERE MEMBERS OF THE OFFICERS' RESERVE CORPS OR NATIONAL GUARD OR WHO, AFTER THAT DATE, WERE MEMBERS OF ANY OF THE RESERVE COMPONENTS, DURING THE PERIOD COVERED BY THE PAYMENT, MAY RECEIVE RETROACTIVE AND PROSPECTIVE MILITARY RETIRED PAY IN ADDITION TO CIVILIAN COMPENSATION IN ACCORDANCE WITH THE PRECEDENT IN TANNER V. UNITED STATES, 129 C.1CLS. 792, WHICH EXCLUDED SUCH RESERVISTS FROM THE DUAL COMPENSATION STATUTES. 35 COMP. GEN. 497, MODIFIED.

TO THE SECRETARY OF DEFENSE, JUNE 11, 1957:

REFERENCE IS MADE TO DECISION TO YOU DATED MARCH 2, 1956, B-123382, 35 COMP. GEN. 497, ADVISING THAT WE WOULD FOLLOW THE CASE OF TANNER V. UNITED STATES, 129 C.1CLS. 792, AS A PRECEDENT FOR RETROACTIVE AND PROSPECTIVE PAYMENT OF MILITARY RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) ONLY IN THOSE CASES WHERE THE PERSON CONCERNED IS OTHERWISE ENTITLED AND HAS BEEN, OR MAY BE, GRANTED RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036.

SPECIFIC REFERENCE WAS MADE IN THE DECISION OF MARCH 2, 1956, TO OTHER CASES THEN PENDING BEFORE THE COURT OF CLAIMS WHICH INVOLVED DUAL COMPENSATION QUESTIONS RELATING TO THOSE DECIDED IN THE TANNER CASE. AMONG THE CASES MENTIONED WAS THAT OF MADDEN V. UNITED STATES, C.1CLS. 454-55. MADDEN WAS RETIRED FOR PHYSICAL DISABILITY UNDER SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 369A (1946 USED.), AND, AS THERE PROVIDED, WAS GRANTED THE SAME RETIRED PAY AS A MEMBER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LENGTH OF SERVICE RETIRED FOR PHYSICAL DISABILITY. IN MEETING THE GOVERNMENT'S ARGUMENT IN THE TANNER CASE THAT A DECISION IN THE PLAINTIFF'S FAVOR WOULD RESULT IN GIVING RETIRED RESERVE OFFICERS A DUAL COMPENSATION ADVANTAGE NOT ENJOYED BY RETIRED OFFICERS OF THE REGULAR ARMY, THE PLAINTIFF ARGUED IN BRIEFS FILED WITH THE COURT OF CLAIMS, AND IN THE SUPREME COURT OF THE UNITED STATES IN OPPOSITION TO THE GOVERNMENT'S PETITION FOR A WRIT OF CERTIORARI, THAT ONLY PERSONS GRANTED RETIRED PAY UNDER TITLE III OF THE 1948 ACT WERE AFFECTED AND THAT THEY RECEIVED BUT A FRACTION OF THE RETIRED PAY PAID TO RETIRED OFFICERS OF THE REGULAR ARMY. WE FELT THAT THIS MATTER SHOULD BE CONSIDERED AGAIN BY THE COURT IN ANOTHER CASE, SUCH AS THE MADDEN CASE, WHERE THE PLAINTIFF RECEIVED THE SAME RATE OF RETIRED PAY AS A RETIRED OFFICER OF THE REGULAR ARMY OF CORRESPONDING GRADE AND LONGEVITY, ESPECIALLY IN VIEW OF THE STATEMENT IN THE CASE OF LEONARD V. UNITED STATES, C.1CLS. NO. 182-55, DECIDED NOVEMBER 7, 1956, THAT THE ACT OF JULY 1, 1947, 10 U.S.C. 371 (B) (1952 USED.), ON WHICH THE PLAINTIFF IN THIS TYPE OF CASE RELIES, SERVES TO EXEMPT "LONGEVITY RETIRED MEMBERS" OF RESERVE COMPONENTS FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. HOWEVER, IN THE MADDEN CASE JUDGMENT WAS ENTERED ON MAY 8, 1957, IN THE PLAINTIFF'S FAVOR ON STIPULATION BETWEEN THE

PARTIES.

THE SAME DUAL COMPENSATION QUESTION AS THAT INVOLVED IN THE MADDEN CASE WAS CONSIDERED IN THE CASE OF UNITED STATES OF AMERICA V. DR. JOHN J. TOMA, IN THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA, CENTRAL DIVISION, NO. 20360-BM, DR. TOMA, ALSO, HAVING BEEN RETIRED UNDER THE 1939 ACT. RELYING ON THE TANNER CASE, THE COURT, IN AN OPINION RENDERED FEBRUARY 14, 1957, DECIDED THAT THE DEFENDANT, TOMA, WAS NOT INDEBTED TO THE GOVERNMENT FOR THE MILITARY RETIRED PAY RECEIVED BY HIM WHILE HE WAS EMPLOYED BY THE GOVERNMENT AS A CIVILIAN AT A SALARY WHICH, TOGETHER WITH THE RETIRED PAY, WAS IN EXCESS OF THE DUAL COMPENSATION LIMITATION OF THE ECONOMY ACT. IT IS UNDERSTOOD THAT THE SOLICITOR GENERAL DECIDED ON MARCH 26, 1957, THAT AN APPEAL WOULD NOT BE TAKEN FROM THAT DECISION.

IN SUCH CIRCUMSTANCES, WE HAVE DECIDED TO EXTEND THE RULE STATED IN 35 COMP. GEN. 497 TO MAKE IT APPLY TO CASES OF RESERVISTS WHOSE RETIRED PAY IS AUTHORIZED UNDER STATUTORY PROVISIONS OTHER THAN THOSE OF TITLE III OF THE ACT OF JUNE 29, 1948, (NOW 10 U.S.C., CHAPTER 67), IN ADDITION TO THOSE ALREADY WITHIN THE RULE WHOSE RETIRED PAY IS AUTHORIZED UNDER THAT TITLE. OUR DECISION OF MARCH 2, 1956, IS MODIFIED ACCORDINGLY.

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