B-126886, MAY 17, 1956, 35 COMP. GEN. 646

B-126886, MAY 17, 1956, 35 COMP. GEN. 646

COMPENSATION - DOUBLE - FEDERAL EMPLOYEES' COMPENSATION PAYMENTS AND RETIRED PAY A RETIRED NAVAL RESERVE OFFICER WHO IS RECEIVING PAYMENTS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT FOR AN INJURY SUSTAINED ON ACTIVE DUTY MAY ELECT TO RECEIVE RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948; HOWEVER, SUCH AN ELECTION MAY NOT BE RETROACTIVELY EFFECTIVE.

TO T. P. CONDON, DEPARTMENT OF THE NAVY, MAY 17, 1956:

YOUR LETTER OF DECEMBER 14, 1955, FORWARDED HERE BY THE JUDGE ADVOCATE GENERAL OF THE NAVY ON FEBRUARY 1, 1956, REQUESTS A DECISION AS TO WHETHER LIEUTENANT COMMANDER HOWARD A. BESWICK, U.S. NAVAL RESERVE ( RETIRED) MAY REVOKE AN ELECTION TO RECEIVE BENEFITS AUTHORIZED BY THE FEDERAL EMPLOYEES' COMPENSATION ACT PRIOR TO THE NORMAL TERMINATION DATE OF SUCH PAYMENTS IN ORDER TO RECEIVE RETIRED PAY AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, 10 U.S.C. 1036, AND, IF SO, WHETHER SUCH "ELECTION" MAY BE EFFECTED RETROACTIVE TO JANUARY 1, 1952.

LIEUTENANT COMMANDER BESWICK WAS TRANSFERRED FROM THE HONORARY RETIRED LIST TO THE NAVAL RESERVE RETIRED LIST ON JANUARY 1, 1952, IN ACCORDANCE WITH TITLE III OF THE ACT OF JUNE 29, 1948. HOWEVER, HE RECEIVED NO RETIRED PAY SINCE HE WAS RECEIVING EMPLOYEES' COMPENSATION BENEFITS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, APPARENTLY FOR AN INJURY RECEIVED WHILE PERFORMING ACTIVE DUTY AT THE NAVAL RESERVE AVIATION BASE, SEATTLE, WASHINGTON, ON OCTOBER 21, 1928. YOU STATE THAT THE COMPENSATION PAYMENTS WERE MADE THROUGH JUNE 22, 1955, AND WERE SUSPENDED JUNE 23, 1955, AND THAT HIS RETIRED PAY ACCOUNT WAS ESTABLISHED BEGINNING JUNE 23, 1955.

TITLE III OF THE ACT OF JUNE 29, 1948, PROVIDES RETIRED PAY TO MEMBERS AND FORMER MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED SERVICES AT AGE 60 UPON COMPLETION OF 20 YEARS OF QUALIFYING SERVICE AS DEFINED IN THAT ACT. THE AMOUNT OF RETIRED PAY IS DEPENDENT UPON THE NUMBER OF POINTS CREDITED FOR ACTIVE FEDERAL SERVICE, RESERVE DRILLS OR EQUIVALENT DUTY, MEMBERSHIP IN A RESERVE COMPONENT OF THE ARMED SERVICES, PAY GRADE, AND LENGTH OF SERVICE. IN ORDER TO RECEIVE SUCH RETIRED PAY, IT IS NOT NECESSARY THAT A PERSON BE A MEMBER OF ANY COMPONENT OF THE ARMED SERVICES, IT BEING SUFFICIENT THAT SUCH PERSON MEET THE STATUTORY REQUIREMENTS AS TO AGE AND PAST SERVICE AND THAT HE FILE APPLICATION FOR SUCH PAY. 29 COMP. GEN. 520, 522. SECTION 305 OF THE 1948 ACT EXPRESSLY EXCLUDES FROM ELIGIBILITY FOR THE RETIRED PAY BENEFITS AUTHORIZED BY TITLE III ANY PERSON OTHERWISE ENTITLED TO RECEIVE RETIRED PAY OR RETAINER PAY FOR MILITARY OR NAVAL SERVICE 10 U.S.C. 1036D.

THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. 751-801, IS A WORKMAN'S COMPENSATION LAW WHICH PROVIDES COMPENSATION FOR DISABILITY AND DEATH AND MEDICAL CARE FOR CIVILIAN EMPLOYEES OF THE UNITED STATES WHO SUFFER INJURIES IN THE PERFORMANCE OF THEIR DUTIES. IT IS APPLICABLE TO MEMBERS OF THE NAVAL RESERVE WHO ARE INJURED IN LINE OF DUTY WHILE ON ACTIVE DUTY IN TIME OF PEACE. 34 U.S.C. 855C.

SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED, 5 U.S.C. 757 (A), ROVIDES:

THAT AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER THIS ACT, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES * * *.

THAT SECTION FURTHER PROVIDES THAT IF AN EMPLOYEE ENTITLED TO EMPLOYEES' COMPENSATION BENEFITS IS ALSO ENTITLED TO RECEIVE FROM THE UNITED STATES ANY PAYMENTS OR BENEFITS HE SHALL RECEIVE. ,SUCH ELECTION * * * WHEN MADE SHALL BE IRREVOCABLE UNLESS OTHERWISE PROVIDED BY LAW.'

THUS, AN ELECTION BETWEEN DIFFERENT BENEFITS IN INJURY CASES IS EXPRESSLY MADE IRREVOCABLE ONLY WHEN DUAL DISABILITY BENEFITS FOR A PARTICULAR INJURY ARE INVOLVED. BUT THE ACT PROHIBITS THE RECEIPT OF OTHER PAYMENTS (INCLUDING NONDISABILITY PAYMENTS) FROM THE UNITED STATES "AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION" UNDER IT. IN VIEW OF THE LIMITED CIRCUMSTANCES IN WHICH AN ELECTION OF BENEFITS IS EXPRESSLY MADE IRREVOCABLE, AND SINCE IT IS THE CONCURRENT RECEIPT OF OTHER PAYMENTS WHICH IS EXPRESSLY PROHIBITED, IT DOES NOT APPEAR THAT THE RECEIPT OF EMPLOYEES' COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, DURING A PERIOD WHEN THE RECIPIENT MAY BE OTHERWISE ENTITLED TO A BENEFIT WHOSE CONCURRENT RECEIPT IS PROHIBITED, FOREVER MAKES THE RECIPIENT INELIGIBLE FOR THAT OTHER BENEFIT. NOR DOES THE LANGUAGE INDICATE THAT ELIGIBILITY FOR EMPLOYEES' COMPENSATION MUST TERMINATE BEFORE THE RECIPIENT MAY LAWFULLY ELECT ANOTHER BENEFIT. ACCORDINGLY, WE ARE NOT REQUIRED TO HOLD THAT LIEUTENANT COMMANDER BESWICK'S "ELECTION" (IN 1955) TO RECEIVE RETIRED PAY, AS AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, WAS LEGALLY INEFFECTIVE, EVEN THOUGH HIS ELIGIBILITY TO RECEIVE EMPLOYEES' COMPENSATION (IN THE ABSENCE OF SUCH "ELECTION") CONTINUED AFTER THAT TIME.,

IT LONG HAS BEEN HELD THAT, BY VIRTUE OF THE ABOVE-QUOTED PROVISIONS OF SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, EMPLOYEES' COMPENSATION MAY NOT BE PAID CONCURRENTLY WITH RETIRED PAY BASED UPON SERVICE IN THE ARMED SERVICES. RETIRED PAY AUTHORIZED BY TITLE III OF THE ACT OF JUNE 29, 1948, IS NOT PAY "IN RETURN FOR SERVICES ACTUALLY PERFORMED" AND IS NOT "PENSION" FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES. IT IS PAYABLE ONLY UPON COMPLETION OF 20 YEARS OF QUALIFYING SERVICE AND, UNLIKE PENSIONS, ITS AMOUNT IS DETERMINED BY PAY GRADE AND THE QUANTUM OF SERVICE PERFORMED.

FOR THE REASONS INDICATED ABOVE, WE MUST CONCLUDE THAT, WITH RESPECT TO THE PERIOD FOR WHICH LIEUTENANT COMMANDER BESWICK RECEIVED BENEFITS AUTHORIZED BY THE FEDERAL EMPLOYEES COMPENSATION ACT, HE LOST ANY RIGHT HE OTHERWISE MIGHT HAVE HAD TO RECEIVE RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948. ACCORDINGLY, PAYMENT OF THE DIFFERENCE BETWEEN SUCH RETIRED PAY AND THE EMPLOYEES' COMPENSATION RECEIVED DURING THE PERIOD JANUARY 1, 1952, THROUGH JUNE 22, 1955, IS NOT AUTHORIZED.