B-134258, DEC. 30, 1957

B-134258, DEC. 30, 1957

TO LIEUTENANT C. D. MILLER, U.S. COAST GUARD, AUTHORIZED CERTIFYING OFFICER, U.S. COAST GUARD:

YOUR LETTER DATED OCTOBER 22, 1957, REQUESTS OUR DECISION ON THE PROPRIETY OF PAYING THREE COAST GUARD PAYROLLS COVERING RETROACTIVE RETIRED PAY IN THE CASE OF GEORGE A. WAGNER (41143), LIEUTENANT, U.S. COAST GUARD RESERVE. THE ISSUE PRESENTED IN CONNECTION WITH THE PAYMENTS PROPOSED ON THESE VOUCHERS IS WHETHER LIEUTENANT WAGNER MAY BE HELD TO BE EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, 1946 ED.

THE RECORD DISCLOSES THE FOLLOWING FACTS CONCERNING THE RETIRED STATUS OF LIEUTENANT WAGNER:

HE WAS APPOINTED A LIEUTENANT (JG) IN THE U.S. COAST GUARD RESERVE ON MAY 20, 1942, AND PROMOTED TO LIEUTENANT ON JANUARY 29, 1943. HE WAS INJURED IN THE MONTH OF JUNE 1945 WHEN THE VESSEL TO WHICH HE WAS ASSIGNED (THE U.S.S. SHEEPSCOT) ENCOUNTERED A TYPHOON, GROUNDED AND SANK OFF THE SOUTHEAST COAST OF IWO JIMA. HE WAS DETACHED FROM ACTIVE DUTY ON MAY 31, 1946, AND GRANTED 65 DAYS' TERMINAL LEAVE. HE ACCEPTED A PERMANENT APPOINTMENT FOR A TERM OF THREE YEARS AS A LIEUTENANT, U.S. COAST GUARD RESERVE ON JULY 19, 1946. HIS RELEASE FROM ACTIVE DUTY BECAME EFFECTIVE AUGUST 4, 1946.

LIEUTENANT WAGNER'S COMMISSION IN THE COAST GUARD RESERVE EXPIRED ON JULY 18, 1949, AND WAS NOT RENEWED. IN 1956 HE REQUESTED CORRECTION OF HIS MILITARY RECORDS AND IT IS STATED THAT ON JANUARY 7, 1957, THE ACTING SECRETARY OF THE TREASURY APPROVED THE DECISION OF A BOARD FOR THE CORRECTION OF MILITARY RECORDS, THAT THE OFFICER'S RECORDS BE CORRECTED TO SHOW RETIREMENT FOR PERMANENT PHYSICAL DISABILITY AS A RESULT OF AN INCIDENT OF THE SERVICE AND PLACEMENT OF HIS NAME ON THE RETIRED LIST AS OF AUGUST 5, 1946.

IT IS STATED THAT LIEUTENANT WAGNER HAS BEEN EMPLOYED BY THE GOVERNMENT IN FEDERAL CIVILIAN POSITIONS ALMOST CONTINUOUSLY FROM NOVEMBER 19, 1946, TO DATE. YOU FURTHER STATE THAT BASED UPON AN ADMINISTRATIVE DETERMINATION THAT HIS INCAPACITY WAS CAUSED BY AN INSTRUMENTALITY OF WAR, LIEUTENANT WAGNER IS EXEMPT FOR THE PERIOD COMMENCING JANUARY 1, 1951, FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT OF 1932, AS AMENDED BY THE ACT OF FEBRUARY 20, 1954, 68 STAT. 18. HE HAS BEEN PAID RETIRED PAY FOR THE PERIOD FROM JANUARY 1, 1951, TO DATE.

PAYROLL NO. 1 COVERS THE PERIOD AUGUST 5, 1946, TO JULY 18, 1949, INCLUSIVE; PAYROLL NO. 2 COVERS THE PERIOD JULY 19, 1949, TO DECEMBER 31, 1950, INCLUSIVE, AND PAYROLL NO. 3 COVERS THE PERIOD FROM NOVEMBER 1, 1949, TO DECEMBER 31, 1950, INCLUSIVE. THE DISCUSSION SET FORTH IN YOUR LETTER OF OCTOBER 22, 1957, SUGGESTS THE VARIOUS BASES UPON WHICH PAYMENT OF THE SEVERAL VOUCHERS MAY POSSIBLY BE AUTHORIZED.

THE FOLLOWING STATUTORY PROVISIONS APPLICABLE TO MEMBERS OF THE COAST GUARD RESERVE (QUOTING FROM TITLE 14, U.S. CODE, 1946 ED.) WERE IN EFFECT DURING THE PERIOD THAT LIEUTENANT WAGNER IS SHOWN TO HAVE BEEN A MEMBER OF THE COAST GUARD RESERVE:

"SEC. 311. SICKNESS, DISABILITY, OR DEATH BENEFITS; REGULAR MEMBERS.

"MEMBERS OF THE RESERVE, OTHER THAN TEMPORARY MEMBERS THEREOF, WHO SUFFER SICKNESS, DISEASE, DISABILITY, OR DEATH IN LINE OF DUTY SHALL BE ENTITLED TO THE SAME BENEFITS AS ARE OR MAY HEREAFTER BE PRESCRIBED BY LAW FOR MEMBERS OF THE NAVAL RESERVE WHO SUFFER SICKNESS, DISEASE, DISABILITY, OR DEATH UNDER SIMILAR CONDITIONS.

"SEC. 313. MEMBERSHIP OF UNITED STATES AND DISTRICT OF COLUMBIA EMPLOYEES; LEAVE OF ABSENCE FOR TRAINING; BENEFITS.

OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BECOME MEMBERS OF THE RESERVE SHALL BE ENTITLED TO THE SAME LEAVE OF ABSENCE WITH PAY WHILE ON TRAINING DUTY AND, EXCEPT AS OTHERWISE PROVIDED BY THIS CHAPTER, TO ALL OTHER BENEFITS WHICH ARE NOW OR HEREAFTER MAY BE APPLICABLE BY LAW TO OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE.'

UNDER AUTHORITY OF SECTION 311 LIEUTENANT WAGNER, AS A MEMBER OF THE COAST GUARD RESERVE, IS ENTITLED TO THE SAME BENEFITS AS A MEMBER OF THE NAVAL RESERVE WHO SUFFERED DISABILITY UNDER SIMILAR CONDITIONS. BY VIRTUE OF SECTION 313 LIEUTENANT WAGNER, AS AN EMPLOYEE OF THE UNITED STATES DURING THE PERIOD OF HIS MEMBERSHIP IN THE COAST GUARD RESERVE IS ENTITLED TO ALL OTHER BENEFITS APPLICABLE BY LAW TO EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE NAVAL RESERVE.

AN OFFICER OF THE NAVAL RESERVE ORDERED INTO ACTIVE NAVAL SERVICE AND WHO SUFFERED DISABILITY IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED WOULD HAVE BEEN ENTITLED TO RECEIVE "THE SAME * * * RETIREMENT PAY * * * PROVIDED BY LAW OR REGULATION FOR OFFICERS * * * OF CORRESPONDING GRADES AND LENGTH OF SERVICE OF THE REGULAR NAVY.' SEE SECTION 4 OF THE NAVAL AVIATION PERSONNEL ACT OF 1940, AS AMENDED, 34 U.S.C. 855C-1, 1946 ED., SUPP. III. HOWEVER, THE SAME OFFICER OF THE NAVAL RESERVE ENTITLED TO RECEIVE DISABILITY RETIRED PAY DURING THE PERIOD PRIOR TO JANUARY 1, 1953, PURSUANT TO THE CITED PROVISIONS OF LAW, WOULD HAVE REMAINED SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT OF 1932, SINCE THE EXEMPTION PRESCRIBED IN SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, 34 U.S.C. 853B, 1946 ED., SUPP. III, RELATED ONLY TO ANY PAY AND ALLOWANCES PAYABLE UNDER THE PROVISIONS OF THAT ACT. COMPARE THE DECISION RENDERED DECEMBER 4, 1957, BY THE COURT OF CLAIMS IN THE CASES OF BROYDERICK, ET AL. (491-56), BROWNELL, ET AL. (505-56) AND FOSTER (506-56) V. THE UNITED STATES, IN WHICH THERE WAS CONSIDERED THE SCOPE AND OPERATION OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, IN CONJUNCTION WITH RETIRED PAY BEING RECEIVED UNDER THE PROVISIONS OF SECTION 7 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, AS AMENDED, 34 U.S.C. 410C, 1952 ED., SUPP. IV. THUS, EXCEPT AS TO ANY PAY AND ALLOWANCES RECEIVED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938 MEMBERS OF THE NAVAL RESERVE WERE NOT RELIEVED FROM THE RESTRICTIVE PROVISIONS OF THE ECONOMY ACT OF 1932 PRIOR TO THE AMENDMENT MADE TO SECTION 1 (B), ACT OF JULY 1, 1947, 61 STAT. 239, BY SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, WHICH BECAME EFFECTIVE JANUARY 1, 1953.

IN VIEW OF THE FOREGOING, THE RULE IN THE TANNER CASE, 129 C.CLS. 792 (AS SUCH RULE WAS EXTENDED IN OUR DECISION OF JUNE 11, 1957, 36 COMP. GEN. 808, TO PERSONS ENTITLED AS MEMBERS OF A RESERVE COMPONENT TO RECEIVE RETIRED PAY UNDER PROVISIONS OF LAW OTHER THAN TITLE III, PUBLIC LAW 810, ACT OF JUNE 29, 1948), IS NOT FOR APPLICATION IN THE CIRCUMSTANCES HERE PRESENTED. ACCORDINGLY, LIEUTENANT WAGNER IS NOT ENTITLED TO RECEIVE DISABILITY RETIRED PAY RETROACTIVELY FOR THE PERIOD AUGUST 5, 1946, TO JULY 18, 1949, SINCE HE IS NOT EXEMPT FROM THE RESTRICTIVE PROVISIONS OF THE ECONOMY ACT OF 1932. PAYMENT ON PAYROLL NO. 1, WHICH IS RETAINED HERE, IS NOT AUTHORIZED.

AS STATED ABOVE, PAYROLL NO. 2 COVERS THE PERIOD JULY 19, 1949, TO DECEMBER 31, 1950, INCLUSIVE, AND PAYROLL NO. 3 COVERS THE PERIOD FROM NOVEMBER 1, 1949, TO DECEMBER 31, 1950, INCLUSIVE. PAYMENT IS NOT AUTHORIZED FOR THE PERIODS COVERED BY EITHER ONE OF THESE TWO PAYROLLS FOR THE REASON THAT LIEUTENANT WAGNER'S COMMISSION AS A RESERVE OFFICER OF THE COAST GUARD IS SHOWN TO HAVE EXPIRED ON JULY 18, 1949. IN THAT CONNECTION, SEE OUR DECISION TO YOU, B-134048, NOVEMBER 4, 1957, ON THE CASE OF CAPTAIN ROBERT T. MERRILL, U.S. COAST GUARD RESERVE, RETIRED, WITH RESPECT TO THE APPLICATION IN THAT CASE OF THE PROVISIONS OF 14 U.S.C. 761.