B-152424, OCT. 3, 1963, 43 COMP. GEN. 320

B-152424, OCT. 3, 1963, 43 COMP. GEN. 320

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - COMMISSIONED OFFICERS - TEMPORARY APPOINTMENT UNDER 1947 ACT AN AIR FORCE OFFICER RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201 AND 1372 WHILE SERVING IN THE TEMPORARY GRADE OF MAJOR UNDER THE OFFICER PERSONNEL ACT OF 1947 (10 U.S.C. 8442 AND 8447), WHO ALSO HELD AN EQUAL RANK IN THE AIR FORCE RESERVE WHICH WOULD HAVE QUALIFIED HIM FOR RETIREMENT UNDER 10 U.S.C. 8911 HAD HE BEEN PERFORMING ACTIVE DUTY AS A RESERVE OFFICER WHEN RETIRED FOR DISABILITY IS NOT EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED (5 U.S.C. 59A), THE OFFICER NOT BEING ENTITLED TO RETIRED PAY COMPUTED ON HIS RESERVE STATUS UNDER 10 U.S.C. 8911, 8991, AND 1405 AS BEING THE "MOST FAVORABLE TO HIM," PURSUANT TO 10 U.S.C. 1401, IN VIEW OF THE FACT THE RESULT WOULD BE THE SAME AS RETIRED PAY COMPUTED ON HIS BASIC PAY AS A MAJOR UNDER SECTION 1372, HE WAS NOT RETIRED AS A RESERVE OFFICER AND IS NOT ELIGIBLE FOR EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS PROVIDED IN 5 U.S.C. 30R (C); THEREFORE, AS A TEMPORARY OFFICER RETIRED FOR A DISABILITY NOT WITHIN THE PURVIEW OF 5 U.S.C. 59A (B), HE IS NOT ENTITLED TO A REFUND OF RETIRED PAY WITHHELD UNDER 5 U.S.C. 59A.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, OCTOBER 3, 1963:

BY LETTER DATED SEPTEMBER 3, 1963, THE OFFICE OF THE DIRECTORATE OF ACCOUNTING AND FINANCE, DEPARTMENT OF THE AIR FORCE, FORWARDED YOUR LETTER OF AUGUST 5, 1963, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF MAJOR RALPH C. MASON, USAF, RETIRED, COVERING A REFUND OF THE RETIRED PAY WITHHELD FROM HIM DURING THE PERIOD OCTOBER 1, 1962, THROUGH JUNE 30, 1963, UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. THE REQUEST FOR DECISION WAS ASSIGNED NO. DO-AF-724 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 59A, 5 U.S. CODE, PROVIDES AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICER OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT * * * SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000 * * *.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR 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).

IT IS REPORTED THAT MAJOR MASON WAS PROMOTED TO THE GRADE OF MAJOR IN THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT ON MARCH 5, 1958, UNDER THE PROVISIONS OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906, NOW 10 U.S.C. 8442 AND 8447. HE CONTINUED TO SERVE ON ACTIVE DUTY UNTIL SEPTEMBER 26, 1960, WHEN HE WAS RETIRED BY REASON OF PERMANENT DISABILITY IN HIS TEMPORARY GRADE OF MAJOR UNDER 10 U.S.C. 1201 AND 1372. IT IS FURTHER REPORTED THAT HE HAD COMPLETED 21.425 YEARS OF SERVICE FOR PERCENTAGE PURPOSES (COMPUTED UNDER 10 U.S.C. 1333) AND 21 YEARS, 1 MONTH AND 11 DAYS OF SERVICE FOR BASIC PAY PURPOSES. WHILE THE OFFICER HELD AN EQUAL RANK IN THE AIR FORCE RESERVE AND WAS QUALIFIED FOR RETIREMENT UNDER 10 U.S.C. 8911, HE WAS NOT PERFORMING ACTIVE DUTY AS A RESERVE OFFICER WHEN HE WAS RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201.

YOU REFER TO OUR DECISION DATED JUNE 19, 1963, B-151425, AS FOR POSSIBLE APPLICATION IN THIS CASE. THE OFFICER INVOLVED IN THAT DECISION WAS ALSO RETIRED FOR DISABILITY UNDER 10 U.S.C. 1201, WHILE SERVING AS A TEMPORARY OFFICER, AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT, AND THUS WAS ENTITLED TO HAVE HIS RETIRED PAY COMPUTED UNDER FORMULA 1, 10 U.S.C. 1401. HOWEVER, HE HELD A RESERVE COMMISSION AND AT THE TIME OF RETIREMENT HAD MORE THAN 21 YEARS OF ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH HAD BEEN AS A COMMISSIONED OFFICER, AND THUS WAS QUALIFIED FOR RETIREMENT AS A RESERVE OFFICER FOR YEARS OF SERVICE UNDER 10 U.S.C. 8911 AND ENTITLED TO COMPUTE HIS RETIRED PAY UNDER 10 U.S.C. 8991. HE HAD OVER 28 YEARS OF SERVICE (ACTIVE AND INACTIVE) WHEN HE WAS RETIRED, AND HIS RETIRED PAY IS BEING COMPUTED ON THAT BASIS--- 70 PERCENT (2 1/2 TIMES 28) OF HIS ACTIVE DUTY PAY--- UNDER THE PROVISIONS OF 10 U.S.C. 8991 AND 1405, WHICH FORMULA WAS MORE FAVORABLE TO HIM THAN FORMULA 1 TO 10 U.S.C. 1401, SINCE IT ENABLED HIM TO COUNT HIS INACTIVE SERVICE IN THE MULTIPLIER FACTOR IN COMPUTING HIS RETIRED PAY. UNDER 10 U.S.C. 1401, AN OFFICER IS ENTITLED TO BE PAID UNDER ONE OF THE FORMULAS THERE PRESCRIBED OR "THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO HIM," IF ENTITLED TO RETIRED PAY UNDER ANY OTHER PROVISIONS OF LAW. SINCE THE RETIRED PAY PAID TO THE OFFICER INVOLVED IN OUR DECISION OF JUNE 19, 1963, ACCRUED TO HIM SOLELY BY VIRTUE OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES, IT WAS HELD THAT HE WAS ENTITLED TO THE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT GRANTED TO A "RESERVE" BY SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, 5 U.S.C. 30R (C).

UNDER 10 U.S.C. 1201, 1372 AND 1401 (FORMULA 1), MAJOR MASON IS RECEIVING RETIRED PAY BASED ON TOTAL YEARS OF SERVICE FOR LONGEVITY PURPOSES OF 21 YEARS. HIS RETIRED PAY IS COMPUTED ON THE BASIS OF THE BASIC PAY OF A MAJOR TO WHICH THE OFFICER IS ENTITLED UNDER 10 U.S.C. 1372 AND THE NUMBER OF YEARS OF ACTIVE SERVICE CREDITED TO HIM UNDER 10 U.S.C. 1208, MULTIPLIED BY 2 1/2 PERCENT (21 YEARS BY 2 1/2 PERCENT- - 52 1/2 PERCENT). SINCE COMPUTATION OF HIS RETIRED PAY BY VIRTUE OF HIS RESERVE STATUS UNDER 10 U.S.C. 8911, 8991 AND 1405, BASED ON YEARS OF SERVICE, WOULD RESULT IN EXACTLY THE SAME RETIRED PAY, THERE IS NO BASIS FOR SO COMPUTING HIS RETIRED PAY AS BEING THE "MOST FAVORABLE TO HIM" UNDER THE PROVISIONS OF 10 U.S.C. 1401.

IT IS UNDERSTOOD THAT THE ADMINISTRATIVE ACTION PURSUANT TO WHICH MAJOR MASON'S RETIRED PAY WAS REDUCED WAS BASED ON THE ANSWER TO QUESTION 1A (3) IN OUR DECISION OF JULY 9, 1962, B-136459, 42 COMP. GEN. 9. THE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT--- SEE SECTION 1 (B) OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239, 10 U.S.C. 371B (1952 ED.), AND THE CORRECT PROVISIONS CONTAINED IN 5 U.S.C. 30R (C/--- IS BASED ON MEMBERSHIP IN, AND LAWS RELATING TO, RESERVE COMPONENTS OF THE ARMED FORCES. THAT EXCEPTION WAS EXTENDED TO PERSONS WHO RECEIVED APPOINTMENTS AS TEMPORARY OFFICERS IN THE ARMY OF THE UNITED STATES WITHOUT COMPONENT UNDER THE ACT OF SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728, 10 U.S.C. 484 (1946 ED.), AND WHO WERE RETIRED IN THE TEMPORARY OFFICER GRADE HELD AT THAT TIME. THE 1941 ACT PROVIDED THAT OFFICERS APPOINTED UNDER AUTHORITY OF THAT ACT SHALL HAVE THE "SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS.' HOWEVER, WHEN MAJOR MASON WAS PLACED ON THE DISABILITY RETIRED LIST UNDER 10 U.S.C. 1201, HE WAS SERVING ON ACTIVE DUTY UNDER A TEMPORARY APPOINTMENT AS MAJOR IN THE AIR FORCE OF THE UNITED STATES WITHOUT COMPONENT RECEIVED UNDER AUTHORITY CONTAINED IN SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, 10 U.S.C. 506D (1952 ED.). NO EXEMPTION FROM THE RESTRICTIONS OF THE ECONOMY ACT ACCRUED TO HIM BY VIRTUE OF SUCH TEMPORARY APPOINTMENT, SINCE THE RIGHTS, BENEFITS AND PRIVILEGES GRANTED UNDER THE SAID SECTION 515 WERE THOSE WHICH ACCRUED TO A MILITARY OFFICER WHILE SERVING ON ACTIVE DUTY IN THAT CAPACITY. SEE 10 U.S.C. 8491, AS TO THE PROVISIONS CURRENTLY IN EFFECT WHICH ALSO RESTRICT SUCH RIGHTS TO THOSE WHICH ACCRUE TO AN OFFICER WHILE "ON ACTIVE DUTY.'

SINCE MAJOR MASON WAS RETIRED WHILE HE WAS SERVING ON ACTIVE DUTY AS A TEMPORARY OFFICER IN THE AIR FORCE OF THE UNITED STATES--- NOT AS A RESERVE OFFICER--- AND SINCE HIS DISABILITY APPARENTLY WAS NOT INCURRED IN COMBAT OR CAUSED BY AN INSTRUMENTALITY OF WAR WITHIN THE PURVIEW OF 5 U.S.C. 59A (B), IT APPEARS THAT HIS RETIRED PAY WAS PROPERLY REDUCED BY THE DEPARTMENT OF THE AIR FORCE.

ACCORDINGLY, PAYMENT ON THE VOUCHER IS NOT AUTHORIZED AND IT, TOGETHER WITH THE ACCOMPANYING INDORSEMENTS AND ENCLOSURES, WILL BE RETAINED HERE.