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B-132159, JUNE 16, 1959, 38 COMP. GEN. 839

B-132159 Jun 16, 1959
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MILITARY PERSONNEL - CONCURRENT MILITARY RETIRED PAY AND CIVILIAN COMPENSATION - RESERVISTS A RETIRED ARMY OFFICER WHO IS IN RECEIPT OF RETIRED PAY PRESCRIBED IN 10 U.S.C. 1004 FOR LENGTH OF SERVICE AT TIME OF RETIREMENT AND BASED ON THE HIGHEST TEMPORARY COMMISSIONED GRADE SATISFACTORILY HELD AND WHO HAS HAD HIS MILITARY RECORDS CORRECTED TO SHOW THAT THE CONTINUED TO HOLD AN APPOINTMENT IN THE ARMY RESERVE AFTER APRIL 1. RETIRED PAY WITHHELD WHILE TH MEMBER WAS EMPLOYED IN THE OFFICERS' OPEN MESS MAY NOT BE REFUNDED. REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF CAPTAIN ROBERT L. WHILE HE WAS RECEIVING RETIRED PAY ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES.

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B-132159, JUNE 16, 1959, 38 COMP. GEN. 839

MILITARY PERSONNEL - CONCURRENT MILITARY RETIRED PAY AND CIVILIAN COMPENSATION - RESERVISTS A RETIRED ARMY OFFICER WHO IS IN RECEIPT OF RETIRED PAY PRESCRIBED IN 10 U.S.C. 1004 FOR LENGTH OF SERVICE AT TIME OF RETIREMENT AND BASED ON THE HIGHEST TEMPORARY COMMISSIONED GRADE SATISFACTORILY HELD AND WHO HAS HAD HIS MILITARY RECORDS CORRECTED TO SHOW THAT THE CONTINUED TO HOLD AN APPOINTMENT IN THE ARMY RESERVE AFTER APRIL 1, 1953, WHEN HIS OFFICERS' RESERVE CORPS COMMISSION TERMINATED, MAY NOT BE REGARDED AS ENTITLED TO OR IN RECEIPT OF RETIRED PAY "UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES" WITHIN THE MEANING OF THAT PHRASE IN THE DUAL COMPENSATION RESTRICTION EXEMPTION IN THE ACT OF JULY 1, 1947 (NOW 5 U.S.C. 30R (C) (, AND, THEREFORE, RETIRED PAY WITHHELD WHILE TH MEMBER WAS EMPLOYED IN THE OFFICERS' OPEN MESS MAY NOT BE REFUNDED.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, JUNE 16, 1959:

YOUR LETTER OF FEBRUARY 27, 1959, FORWARDED HERE BY FIRST ENDORSEMENT OF MARCH 17, 1959, FROM FIELD DIVISION, OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, UNDER D.O. NO. 406, ALLOCATED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER IN FAVOR OF CAPTAIN ROBERT L. JACKSON, AUS, RETIRED, REPRESENTING REFUND OF AMOUNTS WITHHELD FROM HIS RETIRED PAY TO LIQUIDATE AN INDEBTEDNESS TO THE GOVERNMENT, ARISING OUT OF COMPENSATION PAID TO HIM AS AN EMPLOYEE OF THE FORT BRAGG OFFICERS' OPEN MESS, WHILE HE WAS RECEIVING RETIRED PAY ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER OF THE ARMY OF THE UNITED STATES, CONTRARY TO THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

IN A DECISION DATED SEPTEMBER 20, 1957, B-132159, WE HELD THAT CAPTAIN JACKSON WAS EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT FOR THE PERIOD UP TO APRIL 1, 1953, BECAUSE OF HIS HOLDING A COMMISSION IN THE OFFICERS' RESERVE CORPS UNTIL THAT DATE AND THE AMOUNT OF HIS INDEBTEDNESS WAS ADJUSTED ACCORDINGLY ON THE BASIS OF THAT DECISION. HIS RECORD WAS SUBSEQUENTLY CORRECTED, PURSUANT TO ACTION TAKEN BY THE ASSISTANT SECRETARY OF THE ARMY ON AUGUST 7, 1958, UNDER THE PROVISIONS OF 10 U.S.C. 1552, 70A STAT. 116, TO SHOW THAT HE WAS TENDERED AND ACCEPTED AN INDEFINITE APPOINTMENT IN THE GRADE OF MAJOR, UNITED STATES ARMY RESERVE, EFFECTIVE APRIL 1, 1953. HE NOW HAS SUBMITTED A VOUCHER ON WHICH HE CLAIMS REFUND OF THE AMOUNTS WITHHELD FROM HIS RETIRED PAY FROM JUNE 1, 1957, THROUGH FEBRUARY 28, 1959, ON ACCOUNT OF THE INDEBTEDNESS WHICH AROSE FRM THE DUAL COMPENSATION RECEIVED FROM APRIL 1, 1953, THROUGH FEBRUARY 24, 1955. YOU REFER TO OUR DECISION OF DECEMBER 10, 1957, B-134102, AS THE SOURCE OF YOUR DOUBT AS TO WHETHER PAYMENT MAY BE MADE ON SUCH VOUCHER.

IT APPEARS THAT CAPTAIN JACKSON WAS RETIRED ON APRIL 30, 1950, UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1907, 34 STAT. 1217, 10 U.S.C. 947 (1952 USED.), AS AN ENLISTED MAN WHO SERVED 30 YEARS IN THE ARMY. HE WAS ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN, THE HIGHEST TEMPORARY COMMISSIONED GRADE SATISFACTORILY HELD BY HIM, AS PROVIDED BY SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1086, 10 U.S.C. 1004 (1952 USED.), AND HE BECAME ENTITLED TO "RECEIVE RETIREMENT PAY AT THE RATE PRESCRIBED BY LAW FOR HIS LENGTH OF SERVICE AT THE TIME OF RETIREMENT BUT BASED UPON SUCH HIGHER TEMPORARY RANK OR GRADE.

SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, AS AMENDED BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, PROVIDED AS FOLLOWS (QUOTING FROM 10 U.S.C. 371B, 1952 USED.):

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE COMPONENTS OF THE ARMED FORCES FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES OF WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES * * *

SEE SECTION 29 (C), ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (C), FOR PROVISIONS CURRENTLY IN EFFECT.

IN 35 COMP. GEN. 497, AND 36 ID. 808, WE INTERPRETED THE COURT'S DECISION IN TANNER V. UNITED STATES, 129 C.1CLS. 792, AND RELATED CASES, AS HAVING PROCEEDED ON THE BASIS THAT THE PLAINTIFFS, BECAUSE OF THEIR RESERVE MEMBERSHIP DURING THE PERIODS OF THEIR CLAIMS, WERE ENTITLED TO THE BENEFITS GRANTED TO "ANY MEMBER" OF THE RESERVE COMPONENTS UNDER THE 1947 ACT, AS AMENDED. IT WAS CONCLUDED THAT WE WOULD FOLLOW THE COURT'S DECISION IN OTHER CASES INVOLVING RESERVE OFFICERS WHO HAD BEEN OR MIGHT BE GRANTED RETIRED PAY AND WHO HAD BEEN, DURING THE PERIOD COVERED BY THE PAYMENT, DE JURE MEMBERS OF A RESERVE COMPONENT OF THE ARMED FORCES. OUR SUBSEQUENT DECISION, B-134102, DATED DECEMBER 10, 1957, IT WAS RECOGNIZED THAT MERE MEMBERSHIP IN THE OFFICERS' RESERVE CORPS OR IN ANY OTHER RESERVE COMPONENT OF THE ARMED FORCES WAS NOT IN ITSELF A SUFFICIENT BASIS FOR EXEMPTION UNDER THE ACT OF JULY 1, 1947, AS AMENDED. TO BE ELIGIBLE FOR SUCH EXEMPTION, THE MEMBER MUST BE ENTITLED TO AND RECEIVE RETIRED PAY UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES.

WHILE THE ADJUSTMENT MADE PURSUANT TO THE DECISION IN CAPTAIN JACKSON'S CASE NEED NOT BE DISTURBED, THE DECISION OF DECEMBER 10, 1957, DOES NOT PERMIT FURTHER ADJUSTMENT AS A RESULT OF THE CORRECTION OF HIS RECORD TO SHOW THAT HIS APPOINTMENT AS MAJOR, UNITED STATES ARMY RESERVE, WAS CONTINUED INDEFINITELY COMMENCING APRIL 1, 1953, SINCE THE RETIRED PAY HE HAS RECEIVED SINCE APRIL 1, 1953, WAS NOT PAID UNDER LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES. SINCE PAYMENT IS NOT AUTHORIZED ON THE VOUCHER, IT IS BEING RETAINED HERE.

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