B-122353, APR. 19, 1956

B-122353: Apr 19, 1956

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TAWES: REFERENCE IS MADE TO A LETTER FROM MR. IT IS RESPECTFULLY REQUESTED THAT YOU NOW RULE WHETHER OR NOT CLAIMANT IS ENTITLED TO THE $10. IT WAS HELD THAT SECTION 212 OF THE ECONOMY ACT WAS NOT APPLICABLE TO THE RECEIPT OF RETIRED PAY. ARE CONCERNED WITH CASES AFFECTED BY THE TANNER OPINION. IT WAS HELD THAT YOU WERE NOT ENTITLED TO RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29. SINCE YOU WERE RECEIVING COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT. WHICH WAS ADDRESSED TO YOU IN CARE OF MR. IT WAS EXPLAINED THAT NEITHER SECTION 212 OF THE ECONOMY ACT OF JUNE 30. THAT SUCH PUBLIC LAW DOES NOT HAVE ANY BEARING ON YOUR CLAIM.

B-122353, APR. 19, 1956

TO MR. GEORGE V. TAWES:

REFERENCE IS MADE TO A LETTER FROM MR. FRANCIS P. NOONAN, ATTORNEY, DATED MARCH 29, 1956, REFERRING TO YOUR CLAIM FOR RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087. MR. NOONAN'S LETTER STATES IN PART THAT:

"IN VIEW OF PUBLIC LAW 239, 84TH CONGRESS, APPROVED AUGUST 4, 1955, IT IS RESPECTFULLY REQUESTED THAT YOU NOW RULE WHETHER OR NOT CLAIMANT IS ENTITLED TO THE $10,000 LIMITATION UNDER PUBLIC LAW 239.

"I RESPECTFULLY REFER YOU TO COMPTROLLER GENERAL'S DECISION B 108232 OF MARCH 7, 1956 AND B-123382 OF MARCH 2, 1956 IN CONNECTION WITH THIS REQUEST.'

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, ORIGINALLY PROVIDED THAT NO PERSON HOLDING A FEDERAL CIVILIAN OFFICE OR POSITION SHOULD BE ENTITLED TO RETIRED PAY ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER OF THE MILITARY OR NAVAL SERVICES AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM HIS CIVILIAN OFFICE OR POSITION, MADE THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000. PUBLIC LAW 239, 84TH CONGRESS, APPROVED AUGUST 4, 1955, 69 STAT. 497, REFERRED TO BY MR. NOONAN, AMENDED SECTION 212 BY STRIKING OUT "$3,000" WHENEVER IT APPEARED IN THAT SECTION AND SUBSTITUTING THEREFOR "$10,000.'

IN THE CASE OF PAUL TANNER ET AL V. UNITED STATES, DECIDED NOVEMBER 2, 1954, 129 C.CLS., 79, IT WAS HELD THAT SECTION 212 OF THE ECONOMY ACT WAS NOT APPLICABLE TO THE RECEIPT OF RETIRED PAY, UNDER TITLE III OF THE ACT OF JUNE 29, 1948, BY A MEMBER OF THE OFFICERS' RESERVE CORPS. THE DECISIONS OF MARCH 2, 1956, AND MARCH 7, 1956, REFERRED TO BY MR. NOONAN, ARE CONCERNED WITH CASES AFFECTED BY THE TANNER OPINION.

IN OUR DECISION OF APRIL 26, 1955, B-122353, IT WAS HELD THAT YOU WERE NOT ENTITLED TO RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, SINCE YOU WERE RECEIVING COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 751-801, AND SECTION 7 OF THAT ACT, AS AMENDED, FORBADE THE CONCURRENT RECEIPT OF COMPENSATION UNDER THE ACT AND RETIRED PAY AS AN OFFICER OF THE MILITARY OR NAVAL SERVICES. IN THAT DECISION, WHICH WAS ADDRESSED TO YOU IN CARE OF MR. NOONAN, AND TO WHICH HE REFERS IN HIS LETTER OF MARCH 29, 1956, IT WAS EXPLAINED THAT NEITHER SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, NOR THE COURT'S HOLDING IN THE TANNER CASE HAD ANY BEARING ON THE MERITS OF YOUR CLAIM.

IT FOLLOWS, SINCE PUBLIC LAW 239, 84TH CONGRESS, MERELY RAISED THE AMOUNT OF THE LIMITATION IN SECTION 212, THAT SUCH PUBLIC LAW DOES NOT HAVE ANY BEARING ON YOUR CLAIM.

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