B-140974, NOV. 9, 1959

B-140974, NOV. 9, 1959

TO SECOND LIEUTENANT EDWARD JACOBSON, USAF, RETIRED:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 25, 1959, WRITTEN IN YOUR BEHALF BY THE NATIONAL ADJUTANT, DISABLED OFFICERS ASSOCIATION, REQUESTING REVIEW OF SETTLEMENT DATED AUGUST 3, 1959, WHICH DENIED YOUR CLAIM FOR PAYMENT OF THE RETIRED PAY WITHHELD FROM YOU DURING THE PERIOD OF YOUR EMPLOYMENT AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT.

IT APPEARS THAT YOU RECEIVED A TEMPORARY APPOINTMENT AS A SECOND LIEUTENANT, ARMY OF THE UNITED STATES, ON JANUARY 20, 1943, AND THAT YOU ACCEPTED THE APPOINTMENT THE SAME DATE. YOU SERVED ON ACTIVE DUTY UNTIL OCTOBER 18, 1944, WHEN YOU WERE RETIRED FOR DISABILITY. YOUR COMMISSION IN THE ARMY OF THE UNITED STATES WAS TERMINATED ON NOVEMBER 30, 1944. IS REPORTED THAT YOU WERE APPOINTED A SECOND LIEUTENANT IN THE HONORARY RESERVE, OFFICERS' RESERVE CORPS, ON NOVEMBER 5, 1947, AND THAT YOU ACCEPTED AN APPOINTMENT IN THE HONORARY RESERVE, USAF, NOVEMBER 22, 1952. YOUR CIVILIAN EMPLOYMENT IS SHOWN TO HAVE EXTENDED FROM SEPTEMBER 11, 1945, TO JULY 28, 1953.

YOUR RETIRED PAY WAS WITHHELD UNDER THE DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, AND YOUR CLAIM APPARENTLY IS BASED ON THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 329, WHICH HAVE BEEN HELD TO EXEMPT "ANY MEMBER OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS"--- AMENDED TO READ "RESERVE COMPONENTS OF THE ARMED FORCES" BY SECTION 804 (A) OF THE ACT OF JULY 9, 1952, 66 STAT. 506--- FROM SUCH DUAL COMPENSATION LIMITATION.

IN ORDER TO QUALIFY FOR EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT, THE RETIRED OFFICER MUST HAVE HELD AN APPOINTMENT IN THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD, OR SUBSEQUENT TO PASSAGE OF SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, AN APPOINTMENT IN ONE OF THE RESERVE COMPONENTS COVERED THEREBY.

UNDER THE PROVISIONS OF PARAGRAPH 43, DEPARTMENT OF THE ARMY CIRCULAR NO. 356, DECEMBER 3, 1946, IN EFFECT WHEN YOU WERE APPOINTED A MEMBER OF THE HONORARY RESERVE SECTION OF THE OFFICERS' RESERVE CORPS, THAT SECTION CONSISTED OF MEMBERS OF THE OFFICERS' RESERVE CORPS ONLY, WHO HAS SERVED HONORABLY AND WERE TRANSFERRED TO THE HONORARY RESERVE UNDER ONE OF THE THREE DIFFERENT SITUATIONS THERE PROVIDED. SUCH REGULATIONS LIMITED MEMBERSHIP IN THE HONORARY RESERVE TO MEMBERS OF THE OFFICERS' RESERVE CORPS AND FURNISHED NO AUTHORITY FOR THE APPOINTMENT OF A MEMBER OF THE ARMY OF THE UNITED STATES, WITHOUT COMPONENT, SUCH AS YOURSELF, IN THE HONORARY RESERVE.

ALTHOUGH PARAGRAPH 45, WAS DEPARTMENT CIRCULAR NO. 356, AUTHORIZED THE APPOINTMENT OF OFFICERS AND "FORMER OFFICERS WHO ARE OTHERWISE ELIGIBLE" FOR THE HONORARY RESERVE IN THE HIGHEST GRADE ATTAINED WHILE ON ACTIVE DUTY IN THE ARMY OF THE UNITED STATES SUBSEQUENT TO SEPTEMBER 16, 1940, WHETHER OR NOT THEY WERE DRAWING A PENSION,DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES, SUCH REGULATIONS MAY NOT BE VIEWED AS CONTAINING AN IMPLICATION THAT RETIRED FORMER OFFICERS, WHO WERE NOT AND NEVER HAD BEEN MEMBERS OF THE OFFICERS' RESERVE CORPS, COULD BE APPOINTED IN THE HONORARY RESERVE, SINCE ONE OF THE ELIGIBILITY QUALIFICATIONS FOR APPOINTMENT IN THE HONORARY RESERVE AS SET FORTH IN PARAGRAPH 43 OF CIRCULAR NO. 356 WAS MEMBERSHIP IN THE OFFICERS' RESERVE CORPS. WE FIND NOTHING IN PARAGRAPH 45 WHICH INDICATES AN INTENTION TO EXPAND SUCH QUALIFICATIONS EXCEPT TO INCLUDE FORMER MEMBERS OF THE OFFICERS' RESERVE CORPS. IN THIS CONNECTION, IT IS NOTED THAT THE PROVISIONS OF DEPARTMENT OF THE ARMY CIRCULAR NO. 246, AUGUST 13, 1948, RELATING TO TRANSFERS TO THE HONORARY RESERVE, CONTAIN NO MENTION OF "FORMER OFFICERS.'

IT APPEARS EXTREMELY DOUBTFUL THAT IN ENACTING SECTION 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 351 (1946 ED./--- AUTHORIZING THE ORGANIZATION OF OFFICERS' RESERVE CORPS FOR THE "PURPOSE OF PROVIDING A RESERVE OF OFFICERS AVAILABLE FOR MILITARY SERVICE WHEN NEEDED"--- THE CONGRESS INTENDED THAT FORMER MEMBERS OF THE ARMY OF THE UNITED STATES, LIKE YOURSELF, WHO HAD BEEN RETIRED FOR PHYSICAL DISABILITY, OR FORMER OFFICERS PHYSICALLY UNFIT TO PERFORM ACTIVE SERVICE, SHOULD BE INITIALLY APPOINTED IN THE OFFICERS' RESERVE CORPS. ALL APPLICANTS FOR MEMBERSHIP IN THE OFFICERS' RESERVE CORPS WERE REQUIRED TO MEET THE SAME PHYSICAL STANDARDS REQUIRED OF OTHER ARMY OFFICERS AS PROVIDED IN ARMY REGULATIONS 40-105, OCTOBER 29, 1946. SINCE YOU WERE RETIRED FOR DISABILITY, IT APPEARS REASONABLE TO ASSUME THAT YOU WERE NOT PHYSICALLY QUALIFIED FOR INITIAL APPOINTMENT IN THE OFFICERS' RESERVE CORPS. YOUR MEMBERSHIP IN THE HONORARY RESERVE SECTION OF THE OFFICERS' RESERVE CORPS BEING OF DOUBTFUL LEGALITY, YOUR TRANSFER TO THE HONORARY RESERVE, USAF, IN OCTOBER 1952, WAS OF SIMILAR DOUBTFUL LEGALITY AND NEITHER APPOINTMENT FURNISHES SUFFICIENT BASIS FOR FAVORABLE CONSIDERATION OF YOUR CLAIM.

THE RULE IS WELL ESTABLISHED THAT CLAIMS OF DOUBTFUL LEGALITY SHOULD BE DISALLOWED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT AND THE CLAIMANT LEFT TO HIS REMEDIES BEFORE THE COURTS. LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 C.CLS. 316, 319; 18 COMP. GEN. 199; 26 COMP. GEN. 778, 781; 38 COMP. GEN. 155, 158.

WHILE YOU SERVED ON ACTIVE DUTY AS A TEMPORARY OFFICER IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT AND THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, PROVIDED THAT SUCH TEMPORARY OFFICERS SHOULD BE ENTITLED TO THE "SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS," NO RIGHT TO EXEMPTION FROM THE RESTRICTIONS OF THE ECONOMY ACT ACCRUED TO YOU BY VIRTUE OF SUCH SERVICE, SINCE YOUR TEMPORARY OFFICER STATUS WAS TERMINATED ON NOVEMBER 30, 1944, BEFORE THE COMMENCEMENT OF YOUR CIVILIAN EMPLOYMENT. SEE LEONARD V. UNITED STATES, 136 C.CLS. 686.

ACCORDINGLY, THE DISALLOWANCE OF OCTOBER 3, 1959, WAS PROPER AND IS SUSTAINED.