B-147639, JANUARY 16, 1962, 41 COMP. GEN. 460

B-147639, JANUARY 16, 1962, 41 COMP. GEN. 460

PAY - RETIRED - DISABILITY - SERVICE CREDIT FOR CIVILIAN RETIREMENT - MILITARY SERVICE - WAIVER - CIVIL SERVICE COMMISSION JURISDICTION TO PERMIT A RETIRED MEMBER OF THE UNIFORMED SERVICES, WHO QUALIFIED FOR A CIVIL SERVICE RETIREMENT ANNUITY FOR FORMER MEMBERS OF CONGRESS ON THE BASIS OF CREDIT FOR ACTIVE MILITARY SERVICE AND CONGRESSIONAL SERVICE, TO HAVE THE MILITARY SERVICE EXCLUDED FROM THE COMPUTATION OF THE ANNUITY IN ORDER TO RECEIVE A REDUCED ANNUITY AND DISABILITY RETIRED PAY WOULD BE TO GIVE THE MEMBER A DOUBLE BENEFIT BASED ON THE SAME MILITARY SERVICE CONTRARY TO SECTION 401 OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2253 (B), WHICH PRECLUDES A MEMBER WHO IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE FROM HAVING THE MILITARY SERVICE INCLUDED IN ESTABLISHING ENTITLEMENT TO THE ANNUITY, UNLESS THE RETIRED PAY IS RECEIVED ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY INCURRED IN COMBAT OR CAUSED BY AN INSTRUMENTALITY OF WAR; THEREFORE, THE MEMBER WHOSE DISABILITY DOES NOT COME WITHIN EITHER OF THOSE TWO CATEGORIES MAY NOT BE PAID DISABILITY RETIRED PAY. A RETIRED MEMBER OF THE UNIFORMED SERVICES WHO WHEN HE APPLIED FOR A CIVIL SERVICE RETIREMENT ANNUITY BASED ON SERVICE AS A MEMBER OF CONGRESS AND ON ACTIVE MILITARY SERVICE WAS ENTITLED TO RECEIVE DISABILITY RETIRED PAY BUT WHO WAS NOT ELIGIBLE FOR THE CIVILIAN ANNUITY WITHOUT THE CREDIT FOR MILITARY SERVICE MUST BE REGARDED AS ACTUALLY OR CONSTRUCTIVELY WAIVING OR RELINQUISHING HIS RIGHT TO RECEIVE RETIRED PAY IN ORDER TO RECEIVE THE LARGER MEMBER ANNUITY. ALTHOUGH THE QUESTION OF WHETHER A MEMBER OF THE UNIFORMED SERVICES ENTITLED TO DISABILITY RETIRED PAY MAY BE PAID A REDUCED CIVIL SERVICE RETIREMENT ANNUITY FOR A MEMBER OF CONGRESS BASED ONLY ON NONMILITARY SERVICE WHEN HIS ACTIVE MILITARY SERVICE WAS ADDED TO THE CONGRESSIONAL SERVICE TO QUALIFY HIM FOR THE ANNUITY IS NOT A MATTER FOR DECISION BY THE COMPTROLLER GENERAL OF THE UNITED STATES SINCE WHAT CONSTITUTES CREDITABLE SERVICE FOR THE CIVIL SERVICE RETIREMENT ACT IS PRIMARILY FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION, THE QUESTION OF THE MEMBER'S ENTITLEMENT TO RETIRED PAY BASED ON MILITARY SERVICE IS FOR DECISION BY THE COMPTROLLER GENERAL.

TO MAJOR JOHN A. RAPP, UNITED STATES MARINE CORPS, JANUARY 16, 1962:

BY FIRST ENDORSEMENT DATED NOVEMBER 29, 1961, THE COMMANDANT OF THE MARINE CORPS FORWARDED YOUR LETTER OF THE SAME DATE, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE LEGALITY OF PAYMENT OF DISABILITY RETIRED PAY TO MAJOR JAMES T. PATTERSON, O5514, U.S. MARINE CORPS RESERVE, RETIRED, FROM FEBRUARY 1, 1959. YOUR REQUEST WAS ASSIGNED NO. DO-MC-613 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT MAJOR PATTERSON WAS RELEASED FROM ACTIVE DUTY ON OCTOBER 31, 1946; THAT HE WAS TRANSFERRED TO THE RETIRED LIST OF OFFICERS OF THE MARINE CORPS RESERVE ON JUNE 1, 1951, BECAUSE OF DISABILITY UNDER THE PROVISIONS OF 33 U.S.C. 417, 855C-1 (1952 USED.), AND 38 U.S.C. 6931 (1952 USED.), THEN IN EFFECT; AND THAT HE HAD COMPLETED 9 YEARS, 8 MONTHS AND 6 DAYS OF SERVICE IN THE MARINE CORPS RESERVE AS OF OCTOBER 31, 1946, OF WHICH 5 YEARS, 3 MONTHS AND 9 DAYS WAS ACTIVE SERVICE. SINCE, AT THE TIME HIS NAME WAS PLACED ON THE RETIRED LIST, HE WAS SERVING AS A MEMBER OF THE HOUSE OF REPRESENTATIVES, UNITED STATES CONGRESS, HE WAS PAID NO RETIRED PAY AS SUCH PAYMENT WAS THEN PROHIBITED BY THE PROVISIONS OF 5 U.S.C. 59A.

AFTER SERVING SIX TERMS AS CONGRESSMAN COMMENCING IN JANUARY 1947, AND ATTAINING THE AGE OF 50 YEARS AND HAVING COMPLETED 20 YEARS OF CREDITABLE SERVICE (INCLUDING HIS ACTIVE MILITARY SERVICE), MAJOR PATTERSON APPLIED AND WAS GRANTED A REDUCED ANNUITY UNDER THE PROVISIONS OF 5 U.S.C. 2256 (F). BEGINNING JANUARY 3, 1959, HE HAS BEEN PAID A MONTHLY ANNUITY OF $823 BY THE CIVIL SERVICE COMMISSION.

BASED ON THE RULING IN OUR DECISION B-129150, B-135788, DATED JULY 25, 1958, MAJOR PATTERSON HAS BEEN PAID RETIRED PAY FOR THE PERIOD JANUARY 1, 1953 (THE EFFECTIVE DATE OF SECTION 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952, 66 STAT. 506, 5 U.S.C. 30R (C), AMENDING SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239), TO JANUARY 2, 1959. YOU SAY THE VIEW OF THE BUREAU OF RETIREMENT AND INSURANCE, CIVIL SERVICE COMMISSION, IS THAT CHAPTER 30 OF TITLE 5 OF THE U.S.C. REQUIRES 20 YEARS OF SERVICE ONLY FOR THE PURPOSE OF ESTABLISHING ENTITLEMENT TO THE REDUCED ANNUITY AWARDED MAJOR PATTERSON AND THAT AFTER ENTITLEMENT IS SO ESTABLISHED, HE MAY BE PAID THE ANNUITY BASED ON ONLY HIS NONMILITARY SERVICE. MAJOR PATTERSON DESIRES THAT HIS MILITARY SERVICE BE EXCLUDED FROM THE COMPUTATION OF HIS ANNUITY IN WHICH EVENT, IT IS UNDERSTOOD, THE ANNUITY WOULD BE REDUCED TO $653 PER MONTH. IF HIS RIGHT TO RECEIVE RETIRED PAY CAN THEN BE RESTORED, HIS MONTHLY RETIRED PAY WOULD BE $241.17 ($277.17 LESS DISABILITY COMPENSATION OF $36 BEING PAID BY THE VETERANS ADMINISTRATION) WHICH WHEN ADDED TO HIS NONMILITARY ANNUITY OF $653 WOULD BE $71.17 A MONTH MORE THAN THE $823 MONTHLY ANNUITY NOW BEING PAID ON HIS TOTAL CREDITABLE SERVICE.

YOU REQUEST OUR DECISION AS TO WHETHER YOU ARE AUTHORIZED TO PAY MAJOR PATTERSON RETIRED PAY RETROACTIVELY FROM FEBRUARY 1, 1959, IF HE REFUNDS TO THE CIVIL SERVICE COMMISSION THE DIFFERENCE BETWEEN THE MONTHLY ANNUITY HE HAS RECEIVED AND THE ANNUITY HE WOULD BE ENTITLED TO RECEIVE WITHOUT COUNTING HIS MILITARY SERVICE AND, IF NOT, WHETHER HE MAY BE PAID RETIRED PAY PROSPECTIVELY FROM DECEMBER 1, 1961, IF HIS ANNUITY IS REDUCED TO $653 A MONTH EFFECTIVE ON THAT DATE.

5 U.S.C. 2253 (B) PROVIDES, IN PART, AS FOLLOWS:

AN EMPLOYEE OR MEMBER SHALL BE ALLOWED CREDIT FOR PERIODS OF MILITARY SERVICE PRIOR TO THE DATE OF THE SEPARATION UPON WHICH TITLE TO ANNUITY IS BASED; HOWEVER, IF AN EMPLOYEE OR MEMBER IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE, HIS MILITARY SERVICE SHALL NOT BE INCLUDED, UNLESS SUCH RETIRED PAY IS AWARDED ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR (AS THAT TERM IS USED IN CHAPTER 11 OF TITLE 38), OR IS AWARDED UNDER TITLE III OF PUBLIC LAW 810, EIGHTIETH CONGRESS * * *

5 U.S.C. 2256 (F) IS AS FOLLOWS:

ANY MEMBER WHO ATTAINS THE AGE OF SIXTY-TWO YEARS AND COMPLETES FIVE YEARS OF MEMBER SERVICE, OR WHO ATTAINS THE AGE OF SIXTY YEARS AND COMPLETES TEN YEARS OF MEMBER SERVICE, SHALL, UPON SEPARATION FROM THE SERVICE, BE PAID AN ANNUITY COMPUTED AS PROVIDED IN SECTION 2259 OF THIS TITLE. ANY MEMBER WHO ATTAINS THE AGE OF FIFTY-FIVE YEARS AND COMPLETES THIRTY YEARS OF SERVICE SHALL, UPON SEPARATION FROM THE SERVICE PRIOR TO ATTAINMENT OF THE AGE OF SIXTY YEARS, BE PAID A REDUCED ANNUITY COMPUTED AS PROVIDED IN SECTION 2259 OF THIS TITLE. ANY MEMBER WHO COMPLETES TWENTY-FIVE YEARS OF SERVICE, OR WHO ATTAINS THE AGE OF FIFTY YEARS AND COMPLETES TWENTY YEARS OF SERVICE, SHALL, UPON SEPARATION FROM THE SERVICE (OTHER THAN SEPARATION BY RESIGNATION OR EXPULSION), BE PAID A REDUCED ANNUITY COMPUTED AS PROVIDED IN SECTION 2259 OF THIS TITLE. NO MEMBER OR SURVIVOR OF A MEMBER SHALL BE ENTITLED TO RECEIVE AN ANNUITY UNDER THIS CHAPTER UNLESS THERE SHALL HAVE BEEN DEDUCTED OR DEPOSITED THE AMOUNTS SPECIFIED IN SECTION 2254 OF THIS TITLE WITH RESPECT TO HIS LAST FIVE YEARS OF CIVILIAN SERVICE.

IT IS PROVIDED IN 5 C.F.R. 29.9 THAT:

AN APPLICANT FOR ANNUITY WHO IS IN RECEIPT OF RETIRED PAY WHICH BARS CREDIT FOR HIS MILITARY SERVICE MAY ELECT TO SURRENDER SUCH RETIRED PAY AND TO HAVE HIS MILITARY SERVICE ADDED TO HIS PERIOD OF CIVILIAN SERVICE FOR THE PURPOSE OF OBTAINING A GREATER BENEFIT IN THE FORM OF ANNUITY. SHOULD IT APPEAR UPON ADJUDICATION OF A CLAIM FOR ANNUITY THAT THE EMPLOYEE WILL BENEFIT FROM RELINQUISHMENT OF RETIRED PAY AND INCLUSION OF HIS MILITARY SERVICE, HE SHALL BE SO ADVISED AND PERMITTED TO EXERCISE THE RIGHT OF ELECTION.

MAJOR PATTERSON WAS NOT RETIRED FOR DISABILITY WITHIN EITHER OF THE EXCEPTIONS CONTAINED IN 5 U.S.C. 2253 (B) AND HE HAD INSUFFICIENT CREDITABLE SERVICE TO QUALIFY FOR AN IMMEDIATE REDUCED MEMBER ANNUITY WITHOUT USING HIS ACTIVE MILITARY SERVICE. ALTHOUGH HE WAS NOT RECEIVING DISABILITY RETIRED PAY AT THE TIME HE CEASED TO BE A MEMBER OF CONGRESS, HE WAS ENTITLED TO SUCH RETIRED PAY. SINCE HE COULD NOT CREDIT HIS MILITARY SERVICE TO ACQUIRE TITLE TO A MEMBER ANNUITY WITHOUT ELECTING TO RELINQUISH RETIRED PAY BASED ON THAT SERVICE, HE MUST BE CONCLUDED THAT HE ACTUALLY OR CONSTRUCTIVELY WAIVED OR RELINQUISHED HIS RIGHT TO RECEIVE RETIRED PAY IN ORDER TO RECEIVE THE LARGER MEMBER ANNUITY.

WE HAVE CONSISTENTLY TAKEN THE POSITION THAT WHAT CONSTITUTES CREDITABLE SERVICE FOR THE PURPOSE OF THE CIVIL SERVICE RETIREMENT ACT IS A MATTER PRIMARILY FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION AND WE ARE WITHOUT AUTHORITY TO RENDER AN AUTHORITATIVE DECISION CONCERNING THE QUESTION OF WHETHER MAJOR PATTERSON LEGALLY MAY BE PAID A REDUCED MEMBER ANNUITY BASED ONLY ON HIS NONMILITARY SERVICE. HOWEVER, A DETERMINATION AS TO HIS RIGHT TO RETIRED PAY BASED ON HIS MILITARY SERVICE IS FOR DECISION BY THIS OFFICE AND IT IS OUR VIEW THAT SUCH RETIRED PAY SHOULD NOT BE PAID SO LONG AS HIS MILITARY SERVICE IS USED TO DETERMINE HIS ELIGIBILITY FOR AN ANNUITY OR IN THE COMPUTATION OF THE ANNUITY. IN ORDER TO QUALIFY FOR A MEMBER ANNUITY HE HAD TO GIVE UP HIS RIGHT TO RECEIVE DISABILITY RETIRED PAY AS A RETIRED MARINE CORPS RESERVE OFFICER. WE ARE OF THE OPINION THAT CONGRESS DID NOT INTEND THAT A RETIRED OFFICER IN HIS SITUATION SHOULD RECEIVE A DOUBLE BENEFIT BASED UPON THE SAME PERIOD OF MILITARY SERVICE. WHILE 5 U.S.C. 2264 (D/--- A PROVISION WHICH HAD FOR ITS PURPOSE THE PROTECTION OF ANNUITANTS' RIGHTS TO RECEIVE NONSERVICE- CONNECTED VETERANS ADMINISTRATION PENSIONS--- PERMITS ANY PERSON ENTITLED TO ANNUITY TO DECLINE TO ACCEPT ALL OR ANY PART OF SUCH ANNUITY BY WAIVER SIGNED AND FILED WITH THE COMMISSION, WE KNOW OF NO PROVISION OF LAW WHICH PERMITS HIM TO WAIVE A PERIOD OF MILITARY SERVICE AND DRAW RETIRED PAY BASED THEREON WHEN THAT SERVICE HAS BEEN CREDITED TO HIM ESTABLISHING HIS ELIGIBILITY TO RECEIVE AN ANNUITY. PAYMENT OF DISABILITY RETIRED PAY BASED ON HIS MILITARY SERVICE WOULD NOT BE AUTHORIZED IN THE ABSENCE OF A STATUTE CLEARLY GRANTING HIM A DOUBLE BENEFIT FOR THAT SERVICE. 5 U.S.C. 2253 (B) EVIDENCES AN INTEND TO THE CONTRARY SINCE IT IS THERE INDICATED THAT A MEMBER WHO IS AWARDED RETIRED PAY ON ACCOUNT OF MILITARY SERVICE SUCH AS HERE INVOLVED MAY NOT BE CREDITED WITH SUCH SERVICE IN ESTABLISHING ENTITLEMENT TO THE ANNUITY. IT SEEMS TO BE THE INTENT OF CONGRESS THAT SUCH DOUBLE BENEFIT IS ONLY TO BE ALLOWED AN EMPLOYEE OR MEMBER AWARDED RETIRED PAY ON ACCOUNT OF A SERVICE CONNECTED DISABILITY IF THE DISABILITY WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR. THE RECORD SHOWS THAT MAJOR PATTERSON IS NOT IN EITHER OF THOSE CATEGORIES.