B-123382, APR 21, 1955

B-123382: Apr 21, 1955

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PRECIS-UNAVAILABLE SECRETARY OF THE DEFENSE: REFERENCE IS MADE TO LETTER OF MARCH 22. REQUESTING DECISION WHETHER WE WILL FOLLOW THE OPINION OF COURT OF CLAIMS IN THE CASE OF TANNER V. IT WAS HELD IN THE TANNER CASE THAT BY SECTION 1(B) OF THE ACT OF JULY 1. WAS NULLIFIED AS TO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY GRANTED RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29. WHILE THE OPINION WAS RENDERED IN THE TANNER CASE ON NOVEMBER 2. ENTRY OF JUDGMENT WAS SUSPENDED PENDING DETERMINATION OF THE AMOUNTS DUE MR. WHEN THE JUDGMENT IS ENTERED THE ATTORNEY GENERAL MAY WISH TO PETITION THE SUPREME COURT OF THE UNITED STATES FOR A WRIT OF CERTIORARI. WILL BE HELD IN ABEYANCE UNTIL THE TANNER CASE HAS BEEN FINALLY LITIGATED.

B-123382, APR 21, 1955

PRECIS-UNAVAILABLE

SECRETARY OF THE DEFENSE:

REFERENCE IS MADE TO LETTER OF MARCH 22, 1955, WITH ENCLOSURE (MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 113), FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING DECISION WHETHER WE WILL FOLLOW THE OPINION OF COURT OF CLAIMS IN THE CASE OF TANNER V. UNITED STATES, C. CLS. NO. 543-53, AND TWO RELATED CASES, DECIDED NOVEMBER 2, 1954, IN ALL CASES INVOLVING RESERVE OFFICERS OF THE UNIFORMED SERVICES, INCLUDING OFFICERS OF THE NATIONAL GUARD, RETIRED, OR GRANTED RETIREMENT PAY, UNDER ANY STATUTE AUTHORIZING RETIREMENT, OR THE GRANTING OF RETIREMENT PAY, FOR PHYSICAL DISABILITY, AGE, OR LENGTH OF SERVICE.

IT WAS HELD IN THE TANNER CASE THAT BY SECTION 1(B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, 10 U.S.C. 371B, THE EXPRESS PROHIBITION AGAINST THE RECEIPT OF DUAL COMPENSATION CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, WAS NULLIFIED AS TO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY GRANTED RETIRED PAY UNDER THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AND THAT SUCH MEMBERS COULD RECEIVE BOTH RETIRED PAY AND THE COMPENSATION OF A FEDERAL CIVILIAN POSITION, REGARDLESS OF THE COMBINED RATE FROM BOTH SOURCES.

WHILE THE OPINION WAS RENDERED IN THE TANNER CASE ON NOVEMBER 2, 1954, ENTRY OF JUDGMENT WAS SUSPENDED PENDING DETERMINATION OF THE AMOUNTS DUE MR. TANNER AND THE PLAINTIFFS IN THE OTHER TWO CASES COVERED BY THE OPINION. OUR COMPUTATIONS OF THE AMOUNTS DUE SHOULD BE RECEIVED BY THE COURT IN THE IMMEDIATE FUTURE. WHEN THE JUDGMENT IS ENTERED THE ATTORNEY GENERAL MAY WISH TO PETITION THE SUPREME COURT OF THE UNITED STATES FOR A WRIT OF CERTIORARI. IN THESE CIRCUMSTANCES THE TANNER CASE CONSTITUTES NO BASIS NOW FOR ACTION BY US IN ANY SITUATION. CONSEQUENTLY, WE MAY NOT AT THIS TIME DETERMINE THE MATTER.

YOUR REQUEST, HOWEVER, WILL BE HELD IN ABEYANCE UNTIL THE TANNER CASE HAS BEEN FINALLY LITIGATED, AT WHICH TIME WE WILL ADVISE YOU FURTHER.

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