B-136279, JUN. 23, 1958

B-136279, JUN. 23, 1958

TO LIEUTENANT COLONEL NELSON MERCER, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1958, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 23, 1956, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY AS A RETIRED FORMER OFFICER OF THE NATIONAL GUARD OF THE UNITED STATES, DURING THE PERIOD DECEMBER 1, 1951, TO DATE, WITHHELD UNDER THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. YOUR CLAIM WAS BASED UPON DECISION IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, AND YOU NOW REQUEST REVIEW OF YOUR CLAIM IN THE LIGHT OF THE DECISION IN THE CASE OF SARLES V. UNITED STATES, C.CLS. NO. 353-56, DECIDED MARCH 5, 1958, WHICH YOU STATE IS SIMILAR TO YOUR CASE. YOU STATE FURTHER THAT YOU ARE STILL EMPLOYED AS A MEDICAL OFFICER IN THE UNITED STATES CIVIL SERVICE COMMISSION AT A SALARY OF $9,075 PER ANNUM AND RECEIVE $925 PER ANNUM AS A PARTIAL PAYMENT OF YOUR RETIRED PAY UNDER PUBLIC LAW 239, 84TH CONGRESS, 69 STAT. 497, BRINGING YOUR TOTAL COMBINED RETIRED PAY AND CIVILIAN COMPENSATION UP TO THE $10,000 LIMITATION OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT YOU WERE NOT A MEMBER OF THE NATIONAL GUARD DURING THE PERIOD OF YOUR CLAIM, YOUR COMMISSION IN THE NATIONAL GUARD HAVING TERMINATED ON MARCH 18, 1937. SINCE THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 1, 1947, 61 STAT. 239, EXEMPTING THE PERSONS COVERED THEREBY FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT, ARE APPLICABLE TO "ANY MEMBER OF THE NATIONAL GUARD," YOU DO NOT APPEAR TO BE ENTITLED TO THE BENEFITS OF THAT ACT.

IN THE CASE OF SARLES V. UNITED STATES, C.CLS. NO. 353-56, THE COURT HELD THAT THE PLAINTIFF BY REASON OF HAVING "ACQUIRED A RIGHT TO RETIRED PAY (UNDER TITLE III, ACT OF JUNE 29, 1948, 62 STAT. 1087), OR TO PAY AND ALLOWANCES BY REASON OF HIS MEMBERSHIP IN THE NATIONAL GUARD" OF THE UNITED STATES, CONTINUED TO BE ENTITLED TO THE BENEFITS OF SECTION 2 OF THE ACT OF JULY 1, 1947, (NOW COVERED BY SECTION 29 (C) ACT OF AUGUST 10, 1956, 70A STAT. 632), NOTWITHSTANDING THE FACT THAT HE WAS HONORABLY DISCHARGED ON JULY 27, 1951, FROM HIS COMMISSION IN THE NATIONAL GUARD.

WE HAVE DECIDED NOT TO FOLLOW THE SARLES DECISION AS A PRECEDENT IN OTHER SIMILAR CASES AT THE PRESENT TIME, SINCE THE COURT IN THE CASE OF LEONARD V. UNITED STATES, 136 C.CLS. 686, TOOK WHAT APPEARS TO BE A CONTRARY VIEW TO THAT WHICH IT ADOPTED IN THE SARLES CASE. LEONARD WAS DENIED THE BENEFITS OF THE ACT OF JULY 1, 1947, FOR THE REASON THAT HE WAS DISCHARGED FROM THE SERVICE BEFORE THE PERIOD OF HIS CLAIM. THE SUPREME COURT DENIED THE PLAINTIFF'S PETITION FOR A WRIT OF CERTIORARI IN THE LEONARD CASE ON MAY 27, 1957. THE COURT DID NOT MENTION THE LEONARD CASE IN THE SARLES DECISION AND WE HAVE RECOMMENDED TO THE ATTORNEY GENERAL THAT APPROPRIATE ACTION BE TAKEN BY HIS DEPARTMENT TO SECURE CLARIFICATION OF THE CONFLICTING HOLDINGS IN THE LEONARD AND SARLES CASES. PENDING SUCH CLARIFICATION, FAVORABLE ACTION MAY NOT BE TAKEN ON YOUR CLAIM.

ACCORDINGLY, THE DISALLOWANCE OF APRIL 23, 1956, IS SUSTAINED.