B-128303, NOV. 20, 1962

B-128303, NOV. 20, 1962

TO THE SECRETARY OF THE ARMY:

ON OCTOBER 19, 1962, COLONEL ARTHUR ALLEN HOLMES, RETIRED, 0 276591, REQUESTED OUR CONSIDERATION OF THE ACTION TAKEN BY THE RETIRED PAY DIVISION, FINANCE CENTER, UNITED STATES ARMY, IN DISCONTINUING HIS RETIRED PAY EFFECTIVE SEPTEMBER 30, 1962, ON THE BASIS OF OUR DECISION OF JULY 9, 1962, B-136459, 42 COMP. GEN. - , IN VIEW OF HIS EMPLOYMENT AS MICHIGAN STATE DIRECTOR OF THE SELECTIVE SERVICE SYSTEM.

OUR DECISION OF JULY 9, 1962, APPLIES THE RULE THAT OFFICERS APPOINTED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 906, ARE SUBJECT TO THE RESTRICTIONS UPON COMPENSATION CONTAINED IN SECTION 212 OF THE "ECONOMY ACT," APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, TO A NUMBER OF SPECIFIC SITUATIONS.

COLONEL HOLMES WAS CALLED TO ACTIVE DUTY ON SEPTEMBER 22, 1948, AS A LIEUTENANT COLONEL, NATIONAL GUARD OF THE UNITED STATES, AND NOT AS A MAJOR--- HIS GRADE IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT. MAY 4, 1951, HE WAS PROMOTED TO THE RANK OF COLONEL IN THE NATIONAL GUARD WHICH RANK WAS GIVEN FEDERAL RECOGNITION ON JUNE 11, 1951, RETROACTIVE TO MAY 4, 1951, AND ON DECEMBER 31, 1952, HE WAS PROMOTED TO THE RANK OF COLONEL UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, SUPRA. COLONEL HOLMES DID NOT RECEIVE THE PAY OF A COLONEL DURING THE INTERIM BETWEEN MAY 4, 1951, AND DECEMBER 31, 1952, BUT HE SUBMITTED A CLAIM FOR THE DIFFERENCE BETWEEN THE PAY OF LIEUTENANT COLONEL AND THAT OF COLONEL FOR THE PERIOD. THAT CLAIM WAS ALLOWED BY THE CLAIMS DIVISION OF OUR OFFICE BECAUSE HIS STATUS WAS THAT OF A MEMBER OF THE NATIONAL GUARD ON ACTIVE DUTY AND NOT A MEMBER OF THE ARMY OF THE UNITED STATES APPOINTED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947. WE HAVE NO EVIDENCE TO SHOW THAT COLONEL HOLMES' STATUS ON ACTIVE DUTY WAS CHANGED SUBSEQUENT TO DECEMBER 31, 1952. THE REPORT OF THE ADJUTANT GENERAL DATED OCTOBER 16, 1962, IN RESPONSE TO OUR REQUEST OF SEPTEMBER 21, 1962, FOR INFORMATION AS TO THE STATUS OF COLONEL HOLMES AT THE TIME OF HIS RETIREMENT DOES NOT ESTABLISH THAT HIS STATUS AT THE TIME OF HIS RETIREMENT WAS THAT OF A TEMPORARY OFFICER APPOINTED UNDER THE OFFICER PERSONNEL ACT OF 1947 RATHER THAN A NATIONAL GUARD OFFICER.

COLONEL HOLMES RETIRED ON SEPTEMBER 22, 1960, UNDER THE PROVISIONS OF 10 U.S.C. 1201 AND 1372 FOR DISABILITY. THOSE PROVISIONS ARE APPLICABLE TO MEMBERS OF A RESERVE COMPONENT (INCLUDING NATIONAL GUARD) AS WELL AS TO MEMBERS OF A REGULAR COMPONENT OF THE ARMED FORCES.

THE PERTINENT PART OF OUR DECISION OF JULY 9 APPEARS TO BE THE FOLLOWING:

"* * * IT IS OUR VIEW THAT AN OFFICER SERVING ON ACTIVE DUTY IN A TEMPORARY GRADE UNDER THE OFFICER PERSONNEL ACT WHICH IS THE SAME AS HIS RESERVE COMMISSIONED GRADE AND WHO IS RETIRED FOR DISABILITY IS RETIRED AS A TEMPORARY OFFICER AND IS NOT EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT.'

IT APPEARS THAT COLONEL HOLMES SERVED UNDER HIS APPOINTMENT AS A NATIONAL GUARD OFFICER RATHER THAN HIS APPOINTMENT UNDER THE OFFICER PERSONNEL ACT OF 1947, AND THAT HE WAS RETIRED WHILE SO SERVING. THEREFORE, HAVING BEEN RETIRED AS A MEMBER OF THE NATIONAL GUARD HE IS EXEMPT FROM THE PROVISIONS OF SECTION 212 OF THE "ECONOMY ACT.' SEE 5 U.S.C. 30R (C).

IT FOLLOWS THAT COLONEL HOLMES IS ENTITLED TO PAYMENT OF HIS RETIRED PAY EVEN THOUGH HE IS EMPLOYED BY THE GOVERNMENT IN A CIVILIAN CAPACITY AT A SALARY IN EXCESS OF $10,000 PER ANNUM AND YOU SHOULD INITIATE ACTION TO RESUME PAYMENT OF HIS RETIRED PAY AND ALSO PAY HIM ANY AMOUNT WITHHELD BY REASON OF HIS CIVILIAN EMPLOYMENT.