B-133469, OCT. 1, 1957

B-133469, OCT. 1, 1957

TO MR. HENRY H. ROGERS:

YOUR LETTER OF JULY 23, 1957, CONCERNS YOUR CLAIM FOR THE REMAINING AMOUNT REFUNDED BY YOU INCIDENT TO RECEIPT OF CIVILIAN SALARY FROM THE DEPARTMENT OF THE NAVY AND RETIRED MILITARY PAY FROM THE DEPARTMENT OF THE ARMY DURING THE PERIOD JULY 15 THROUGH DECEMBER 19, 1949.

THE AMOUNT OF $1,820.94 WAS REFUNDED BY YOU. BY SETTLEMENT DATED JANUARY 20, 1954, YOU WERE REIMBURSED $1,285.56 OF THIS AMOUNT WHICH REPRESENTED YOUR RETIRED PAY COMPUTED UPON THE BASIS OF AN ENLISTED MAN DURING THE ABOVE PERIOD. THE BALANCE OF $535.38 REPRESENTED THE DIFFERENCE BETWEEN YOUR RETIRED PAY AS AN ENLISTED MAN AND THAT OF AN OFFICER DURING THE PERIOD AND THIS AMOUNT COULD NOT BE REFUNDED TO YOU BECAUSE OF THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761 (5 U.S.C. 59A). IN YOUR PRESENT LETTER YOU SAY YOU HELD A COMMISSION AS A RESERVE OFFICER FOR FIVE YEARS FROM JANUARY 31, 1946. THEREFORE, IT APPEARS YOUR PRESENT CLAIM IS BASED UPON OUR RECENT DECISIONS CONCERNING THE EMPLOYMENT BY THE FEDERAL GOVERNMENT OF RETIRED RESERVE MEMBERS OF THE UNIFORMED SERVICES.

IN OUR DECISIONS OF MARCH 2, 1956, B-123382, 35 COMP. GEN. 497, AND JUNE 11, 1957, B-123382, 36 COMP. GEN. 808, WE FOLLOWED THE COURT OF CLAIMS DECISIONS WHEREIN THE COURT EXCEPTED FROM THE DUAL COMPENSATION AND EMPLOYMENT STATUTES RESERVE OFFICERS RETIRED AS RESERVE OFFICERS UNDER A PROVISION OF LAW WHICH APPLIES SPECIFICALLY TO MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES ONLY. INFORMATION ON FILE IN OUR OFFICE INDICATES THAT YOU WERE RETIRED AS AN ENLISTED MAN OF THE ARMY AND LATER ADVANCED ON THE RETIRED LIST TO THE RANK OF CAPTAIN. THERE IS NO RECORD THAT YOU WERE RETIRED AS A RESERVIST UNDER A STATUTE APPLICABLE TO A RESERVE MEMBER OF THE UNIFORMED SERVICE. THEREFORE, THE ABOVE DECISIONS WOULD HAVE NO EFFECT UPON YOUR ENTITLEMENT TO RECEIVE CIVILIAN SALARY AND RETIRED MILITARY PAY, EVEN THOUGH YOU MAY HAVE HELD A COMMISSION AS A RESERVE OFFICER DURING THE PERIOD OF YOUR CLAIM.

ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD, THERE IS NO LEGAL BASIS UPON WHICH YOUR CLAIM MAY BE ALLOWED. IF YOU HAVE ANY FURTHER QUESTIONS CONCERNING YOUR RETIRED STATUS, INFORMATION MAY BE OBTAINED FROM THE DEPARTMENT OF THE ARMY. THEIR ATTENTION SHOULD BE DIRECTED TO OUR DECISIONS REFERRED TO ABOVE ON THE EMPLOYMENT OF RETIRED RESERVE MEMBERS OF THE UNIFORMED SERVICE BY THE FEDERAL GOVERNMENT.