B-134048, NOVEMBER 4, 1957, 37 COMP. GEN. 297

B-134048, NOVEMBER 4, 1957, 37 COMP. GEN. 297

MILITARY PERSONNEL - DOUBLE COMPENSATION - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - RESERVE MEMBERSHIP - COAST GUARD A MEMBER OF THE COAST GUARD RESERVE WHO IS PLACED ON THE RETIRED LIST AND WHO, SUBSEQUENT TO THE EXPIRATION OF A THREE-YEAR APPOINTMENT, ACCEPTS A CIVILIAN POSITION DOES NOT CONTINUE TO BE A MEMBER OF THE COAST GUARD RESERVE AFTER EXPIRATION OF THE PERIOD OF MILITARY SERVICE TO BE REGARDED AS A DE JURE MEMBER OF A RESERVE COMPONENT EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS IN 5 U.S.C. 59A.

TO LIEUTENANT C. D. MILLER, UNITED STATES COAST GUARD, NOVEMBER 4, 1957:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 8, 1957, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF CAPTAIN ROBERT T. MERRILL, U.S. COAST GUARD RESERVE, RETIRED, COVERING RETIRED PAY WITHHELD FROM HIM DURING THE PERIOD OCTOBER 2, 1950, TO DECEMBER 31, 1952, UNDER THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

IT APPEARS THAT CAPTAIN MERRILL ACCEPTED HIS LAST APPOINTMENT IN THE COAST GUARD RESERVE ON AUGUST 14, 1947, FOR A TERM OF THREE YEARS AND THAT HE SERVED ON ACTIVE DUTY IN THAT GRADE UNTIL JULY 1, 1950, WHEN HE WAS RETIRED UNDER AUTHORITY OF 14 U.S.C. 755E AND 34 U.S.C. 410B AFTER OVER 20 YEARS' ACTIVE SERVICE IN THE NAVY AND IN THE COAST GUARD. IT IS REPORTED THAT ON OCTOBER 2, 1950, HE WAS APPOINTED A FOREIGN AFFAIRS SPECIALIST, GS -14, BY THE STATE DEPARTMENT AND WAS EMPLOYED AS A CONSULTANT AT THE RATE OF $37.68 PER DAY; THAT RETIRED PAY WAS WITHHELD ON THE DAYS HE WAS EMPLOYED BY THE STATE DEPARTMENT UNTIL JULY 22, 1951, WHEN HE WAS EMPLOYED ON A FULL-TIME BASIS; AND THAT NO RETIRED PAY WAS PAID TO HIM AFTER THE LATTER DATE, HE HAVING WAIVED SUCH PAY.

YOU STATE THAT CAPTAIN MERRILL IS REGARDED AS A DE JURE MEMBER OF THE COAST GUARD RESERVE AND THAT ON THE BASIS OF OUR DECISION OF MARCH 2, 1956, 35 COMP. GEN. 497, AND JUNE 11, 1957, B-123382, 36 COMP. GEN. 808, PERMITTING PAYMENT OF RETIRED PAY, NOTWITHSTANDING THE RESTRICTIONS OF THE ECONOMY ACT, IN LINE WITH THE DECISION IN THE CASE OF TANNER V. UNITED STATES, 129 C.1CLS. 792 AND THE ACTION TAKEN IN MADDEN V. UNITED STATES, C.1CLS. NO. 454-55, ACTION IS BEING TAKEN TO SETTLE CAPTAIN MERRILL'S CLAIM FOR RETIRED PAY WITHHELD FROM JANUARY 1, 1953, TO DATE.

THE ACT OF AUGUST 4, 1949, 14 U.S.C. 761 (1952 USED.), APPLICABLE TO MEMBERS OF THE COAST GUARD RESERVE, PROVIDES AS FOLLOWS:

NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE RESERVE SOLELY BY REASON OF MEMBERSHIP THEREIN FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE FEDERAL GOVERNMENT OR OF THE DISTRICT OF COLUMBIA NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO THE PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED AS A MEMBER OF THE RESERVE, * * *

OUR DECISION OF MARCH 2, 1956, B-123382, 35 COMP. GEN. 497, WAS ADDRESSED TO THE SECRETARY OF DEFENSE AND RELATED PARTICULARLY TO THE PAYMENT OF RETIRED PAY TO MEMBERS OF THE RESERVE COMPONENTS OF THE ARMED FORCES UNDER THE JURISDICTION OF THE DEPARTMENT OF DEFENSE. THE RIGHTS OF MEMBERS OF THE COAST GUARD RESERVE WERE NOT SPECIFICALLY CONSIDERED IN THAT DECISION. THE HOLDING IN THE TANNER CASE--- WHICH WE DECIDED TO FOLLOW TO THE EXTENT INDICATED IN OUR DECISIONS OF MARCH 2, 1956, AND JUNE 11, 1957- -- WAS BASED ON THE CONCLUSION THAT THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, 10 U.S.C. 371 B, APPLICABLE TO ANY MEMBER OF THE " OFFICERS' RESERVE CORPS," EXEMPTED MEMBERS OF THE OFFICERS RESERVE CORPS FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT. NAVAL RESERVE OFFICERS WERE NOT COVERED BY THAT ACT UNTIL IT WAS AMENDED BY SECTION 804 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, 10 U.S.C. 371, EFFECTIVE JANUARY 1, 1953, SO AS TO BE APPLICABLE TO ANY MEMBER OF THE "RESERVE COMPONENTS OF THE ARMED FORCES.' WHILE THE COAST GUARD RESERVE IS A RESERVE COMPONENT OF THE ARMED FORCES UNDER THE 1952 ACT AND MEMBERS OF THE COAST GUARD RESERVE THUS ARE COVERED BY THE AMENDMENT MADE BY SECTION 804 OF THAT ACT, IN VIEW OF THE SIMILARITY OF THE LANGUAGE USED IN 14 U.S.C. 761 TO THAT CONTAINED IN THE ACT OF JULY 1, 1947, MENTIONED ABOVE, THE CONCLUSION APPEARS WARRANTED THAT MEMBERS OF THE COAST GUARD RESERVE HAVE BEEN EXEMPT FROM THE RESTRICTIONS OF THE ECONOMY ACT SINCE NOVEMBER 1, 1949, THE EFFECTIVE DATE OF THE ACT OF AUGUST 4, 1949.

ACCORDINGLY, CAPTAIN MERRILL IS ENTITLED TO THE RETIRED PAY WITHHELD FROM HIM ON AND AFTER OCTOBER 2, 1950, UNDER THE ECONOMY ACT, IF HE CONTINUED TO BE A DE JURE MEMBER OF THE COAST GUARD RESERVE AFTER THAT DATE. SECTION 301 OF THE ACT OF FEBRUARY 19, 1941, 55 STAT. 13, FIXED THE TERM OF APPOINTMENTS IN THE COAST GUARD RESERVE AFTER THAT DATE. SECTION 301 OF THE ACT OF FEBRUARY 19, 1941, 55 STAT. 13, FIXED THE TERM OF APPOINTMENTS IN THE COAST GUARD RESERVE AT THREE YEARS. SINCE IT APPEARS THAT HE HAS RECEIVED NO APPOINTMENT IN THE RESERVE SINCE AUGUST 14, 1947, HE CEASED TO BE A MEMBER OF THE RESERVE ON AUGUST 14, 1950, UNLESS HIS RETIREMENT ON JULY 1, 1950, SERVED TO CONTINUE HIM IN THAT STATUS FOR AN INDEFINITE PERIOD.

IN OUR DECISION OF MARCH 7, 1956, 35 COMP. GEN. 504, IT WAS HELD THAT THE TRANSFER OF A MEMBER OF THE ARMY OFFICERS' RESERVE CORPS TO THE ARMY OF THE UNITED STATES RETIRED LIST UNDER TITLE III OF THE ACT OF JUNE 29, 1948 ( PUBLIC LAW 810), 62 STAT. 1087, 10 U.S.C. 1036A, DID NOT SERVE TO EXTEND THE TERM OF HIS APPOINTMENT IN THE OFFICERS' RESERVE CORPS. IT IS UNDERSTOOD THAT THE ADMINISTRATIVE CONCLUSION THAT CAPTAIN MERRILL STILL IS A MEMBER OF THE COAST GUARD RESERVE IS BASED ON AN OPINION OF THE CHIEF COUNSEL, U.S. COAST GUARD, DATED JUNE 24, 1953, IN WHICH IT WAS CONCLUDED THAT THE TRANSFER OF A MEMBER OF THE COAST GUARD RESERVE TO THE RETIRED LIST UNDER TITLE III OF PUBLIC LAW 810, HAD THE EFFECT OF RETAINING HIM IN THE RESERVE AFTER EXPIRATION OF THE TERM OF HIS APPOINTMENT. IT IS NOTED THAT SUCH OPINION DID NOT CONSIDER THE PROVISIONS OF SECTION 224 OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 487, 50 U.S.C. 948, WHICH APPEAR TO HAVE A BEARING ON THE PROBLEM DISCUSSED AND FOR THE REASONS STATED IN OUR DECISION OF MARCH 7, 1956, WE MUST ADHERE TO THE VIEWS EXPRESSED THEREIN.

NOT ONLY IS MEMBERSHIP IN A RESERVE COMPONENT OF THE ARMED FORCES NOT A PREREQUISITE TO ENTITLEMENT TO RETIRED PAY UNDER TITLE III OF PUBLIC LAW 810, BUT THE SAME CONCLUSION HAS BEEN REACHED WITH RESPECT TO CONTINUED MEMBERSHIP IN A RESERVE COMPONENT AFTER RETIREMENT AND PAYMENT OF RETIRED PAY TO RESERVE OFFICERS RETIRED AFTER 20 YEARS OF ACTIVE SERVICE UNDER TITLE II OF PUBLIC LAW 810. SEE JAGA 1954/4602, JUNE 2, 1954, 4 DIG. OPS. 524. COMPARE 23 COMP. GEN. 284, 286. SINCE TERMINATION OF MEMBERSHIP IN A RESERVE COMPONENT DOES NOT AFFECT A PERSON'S RIGHT TO CONTINUE TO RECEIVE RETIRED PAY WHICH BECAME PAYABLE INCIDENT TO HIS RETIREMENT IN A CASE SUCH AS IS HERE INVOLVED, NO REASON IS PERCEIVED AS TO WHY THE PLACING OF HIS NAME ON A RETIRED LIST SHOULD BE REGARDED AS EXTENDING THE PERIOD HE VOLUNTARILY AGREED TO SERVE AS A MEMBER OF A RESERVE COMPONENT.

THE OPINION OF THE CHIEF COUNSEL OF THE COAST GUARD RELIES TO SOME EXTENT ON THE CASE OF THORSEN V. UNITED STATES, 70 C.1CLS. 282. IN THAT CASE THE COURT HELD THAT THE PLAINTIFF, A RESERVE NURSE IN THE ARMY NURSE CORPS, WAS ENTITLED TO RETIRED PAY UNDER THE ACT OF JUNE 20, 1930, 46 STAT. 790, 10 U.S.C. 937, WHICH AUTHORIZED RETIREMENT OF MEMBERS OF THE ARMY NURSE CORPS AND THE NAVY NURSE CORPS WHO BECAME DISABLED IN LINE OF DUTY. THERE APPEARS TO BE NO BASIS FOR COMPARING THE STATUS OF RESERVE NURSES AT THAT TIME WITH THAT OF A MEMBER OF THE COAST GUARD RESERVE WHEN CAPTAIN MERRILL WAS RETIRED. THERE WAS NO ARMY RESERVE NURSE CORPS WHEN THAT CASE WAS DECIDED AND THE DECISION OF THE COURT IS BASED ON THE PARTICULAR PROVISIONS OF LAW THEN APPLICABLE TO NURSES. THE COURT VIEWED THE TERM " RESERVE NURSES" AS MERELY A CLASS OF NURSES IN THE NURSE CORPS. NOTHING WAS SAID AS TO PLAINTIFF'S STATUS AS A RESERVE NURSE AFTER HER RETIREMENT AND IT IS ASSUMED THAT THE TERMINATION OF THAT STATUS WOULD NOT HAVE AFFECTED HER RIGHT TO RETIRED PAY AS A RETIRED MEMBER OF THE ARMY NURSE CORPS. WE DO NOT REGARD THAT CASE AS FURNISHING A BASIS FOR CONCLUDING THAT CAPTAIN MERRILL CONTINUED TO BE A MEMBER OF THE COAST GUARD RESERVE AFTER THE EXPIRATION OF THE PERIOD DURING WHICH HE AGREED TO SERVE.

SINCE IT APPEARS THAT CAPTAIN MERRILL CEASED TO BE A MEMBER OF THE COAST GUARD RESERVE BEFORE HE WAS EMPLOYED BY THE STATE DEPARTMENT, NO PART OF THE RETIRED PAY WITHHELD FROM HIM AS A RESULT OF SUCH EMPLOYMENT PROPERLY MAY BE PAID TO HIM. THE SUBMITTED VOUCHER AND ATTACHED PAPERS WILL BE RETAINED HERE.