B-153641, APR. 16, 1964

B-153641, APR. 16, 1964

TO MAJOR GERARD H. MOZIAN, USAR, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1964, REQUESTING REVIEW OF THE SETTLEMENT OF YOUR CLAIM FOR PAYMENT OF THE DISABILITY RETIRED PAY WITHHELD AS IN CONTRAVENTION OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. YOUR CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION UNDER DATE OF DECEMBER 3, 1963, ON THE GROUND THAT YOUR RETIRED PAY ENTITLEMENT DID NOT ACCRUE BY VIRTUE OF YOUR RESERVE STATUS AND YOU DO NOT COME WITHIN ANY OF THE CLASSIFICATIONS WHICH ARE EXEMPT FROM APPLICATION OF THE DUAL COMPENSATION RESTRICTION.

YOU CONTEND THAT AFTER YOUR APPOINTMENTS IN THE OFFICERS' RESERVE CORPS AND THE UNITED STATES ARMY RESERVE, RESPECTIVELY, ALL ORDERS ISSUED TO YOU REFERRED TO YOUR STATUS IN THE RESERVE COMPONENT,"THUS VERIFYING SUCH STATUS WHILE ON ACTIVE DUTY AND ACKNOWLEDGING MY ACTIVE DUTY STATUS IN SUCH COMPONENTS.' THE OFFICIAL RECORD OF YOUR MILITARY SERVICE SHOWS THAT YOU WERE INDUCTED INTO THE ARMY OF THE UNITED STATES ON APRIL 11, 1941, AND SERVED IN ENLISTED GRADES FROM THAT DATE UNTIL SEPTEMBER 24, 1942, WHEN YOU WERE HONORABLY DISCHARGED FOR THE PURPOSE OF ACCEPTING AN APPOINTMENT AND ACTIVE DUTY AS A SECOND LIEUTENANT, ARMY OF THE UNITED STATES. FROM SEPTEMBER 25, 1942, UNTIL THE DATE OF YOUR RETIREMENT, APRIL 30, 1954, YOU SERVED ON ACTIVE DUTY IN COMMISSIONED GRADES UNDER TEMPORARY APPOINTMENTS ALTHOUGH DURING ALL PERIODS AFTER JUNE 25, 1947, YOU HELD A RESERVE COMMISSION CONCURRENTLY WITH THE TEMPORARY COMMISSION UNDER WHICH YOU WERE SERVING. WHILE YOU WERE APPOINTED A MAJOR IN THE UNITED STATES ARMY RESERVE ON NOVEMBER 13, 1953, YOU HAD BEEN SERVING ON ACTIVE DUTY IN THE GRADE OF MAJOR WITH THE PAY AND ALLOWANCES OF THAT GRADE SINCE NOVEMBER 16, 1950, PURSUANT TO A TEMPORARY APPOINTMENT EFFECTED UNDER SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, APPROVED AUGUST 7, 1947, CH. 512, 61 STAT. 906. THE ORDER DATED NOVEMBER 13, 1953, EFFECTING YOUR RESERVE APPOINTMENT PROVIDES, IN PARAGRAPH 6, AS FOLLOWS:

"THIS APPOINTMENT DOES NOT AFFECT YOUR CURRENT ACTIVE DUTY STATUS.' VIEW OF SUCH PROVISION, IT CANNOT BE SAID THAT YOUR ACTIVE SERVICE AFTER ACCEPTANCE OF THAT APPOINTMENT WAS PERFORMED IN YOUR CAPACITY AS A RESERVE MAJOR BY REASON OF THAT APPOINTMENT. AS POINTED OUT BY YOU, THERE WAS NO SEPARATE CALL TO DUTY FROM A CIVILIAN STATUS AND NO BREAK IN ACTIVE SERVICE SINCE ACCEPTANCE OF YOUR ORIGINAL TEMPORARY APPOINTMENT IN 1942. SINCE YOU WERE SERVING ON ACTIVE DUTY AS A MAJOR, ARMY OF THE UNITED STATES, UNDER A TEMPORARY APPOINTMENT EFFECTED UNDER THE 1947 ACT AT THE TIME YOUR WERE APPOINTED A RESERVE MAJOR AND YOUR RESERVE APPOINTMENT DID NOT AFFECT YOUR THEN CURRENT ACTIVE DUTY STATUS, YOU CONTINUED SERVING ON ACTIVE DUTY IN YOUR TEMPORARY STATUS AS A MAJOR, ARMY OF THE UNITED STATES, UNTIL THE EFFECTIVE DATE OF YOUR RETIREMENT, APRIL 30, 1954.

YOU ALSO CONTEND THAT IF YOUR RETIREMENT WAS BASED ON YOUR TEMPORARY OFFICER STATUS, IT RELATES BACK TO THE TEMPORARY OFFICER STATUS IN WHICH YOU WERE ORIGINALLY APPOINTED IN 1942 PURSUANT TO THE ACT OF SEPTEMBER 22, 1941, CH. 414, 55 STAT. 728, AND THAT SINCE OFFICERS APPOINTED THEREUNDER WERE GRANTED "THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS" YOU ARE ENTITLED TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION. WHILE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION IN THE 1932 ACT WOULD APPEAR TO BE ONE OF THE BENEFITS SO CONFERRED, THE ACT OF SEPTEMBER 22, 1941, WAS REPEALED BY SECTION 2 OF THE ACT OF JULY 25, 1947, CH. 327, 61 STAT. 451, EFFECTIVE JULY 1, 1948, AND THE REPEALING STATUTE CONTAINED NO SAVINGS CLAUSE. SECTION 2 OF THE ACT OF AUGUST 25, 1959, PUBLIC LAW 86-197, 73 STAT. 426, PROVIDED THAT TEMPORARY APPOINTMENTS EFFECTED UNDER THE 1941 ACT, BEFORE REPEAL THEREOF, SHOULD BE CONSIDERED AS CONTINUING IN EFFECT UNTIL MARCH 31, 1953, UNLESS SPECIFICALLY TERMINATED BEFORE THAT DATE BY ADMINISTRATIVE ACTION. YOUR TEMPORARY APPOINTMENT IN THE GRADE OF MAJOR WAS EFFECTED ON NOVEMBER 16, 1950, SUBSEQUENT TO REPEAL OF THE 1941 ACT AND WAS ISSUED UNDER AUTHORITY OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, WHICH GRANTS TO OFFICERS TEMPORARILY APPOINTED THEREUNDER THE SAME RIGHTS, PRIVILEGES AND BENEFITS AS THOSE PROVIDED FOR OFFICERS OF THE OFFICERS' RESERVE CORPS ONLY WHILE SERVING ON ACTIVE DUTY. IT IS CLEAR, THEREFORE, THAT AT THE TIME OF YOUR RETIREMENT, APRIL 30, 1954, YOU HAD NO STATUS UNDER THE 1941 ACT WHICH WOULD ENTITLE YOU TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION--- YOUR TEMPORARY APPOINTMENT AS A CAPTAIN UNDER THE 1941 ACT TERMINATED WHEN YOU WERE PROMOTED TO THE GRADE OF MAJOR IN 1950--- AND THAT, SINCE THE BENEFITS ACCRUING BY REASON OF YOUR TEMPORARY APPOINTMENT UNDER THE 1947 ACT WERE RESTRICTED TO THE PERIOD OF YOUR ACTIVE DUTY, SUCH BENEFITS DID NOT INCLUDE EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION AFTER YOUR RETIREMENT.

YOU FURTHER CONTEND THAT SINCE YOU HAD SERVED ON ACTIVE DUTY UNDER TEMPORARY APPOINTMENTS EFFECTED PURSUANT TO THE 1941 ACT THE RIGHT TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION ACCRUED TO YOU WHILE SO SERVING AND WAS NOT FORFEITED BY SUBSEQUENT EVENTS, BASED ON THE DECISIONS IN THE CASES OF SARLES V. UNITED STATES, 141 CT.CL. 709 (1958) AND BOWMAN, ET AL. V. UNITED STATES, 144 CT.CL. 448 (1959). IN THOSE DECISIONS THE COURT OF CLAIMS ESTABLISHED THE PRINCIPLE THAT A PERSON WHO HAS ACQUIRED A RIGHT TO RETIRED PAY BY VIRTUE OF MEMBERSHIP IN A RESERVE COMPONENT AND THEREFORE IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTION BY REASON OF THE PROVISIONS OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 238, CONTINUES TO BE EXEMPT FROM THE DUAL COMPENSATION RESTRICTION AFTER TERMINATION OF THE RESERVE STATUS WHICH WAS THE BASIS FOR HIS RETIREMENT. HOWEVER, A RIGHT TO EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION CANNOT ACCRUE PRIOR TO THE TIME A MEMBER BECOMES ENTITLED TO RETIRED PAY. SINCE THE 1941 ACT WAS REPEALED BEFORE YOUR RETIREMENT IN 1954, NOTHING CONTAINED IN THAT ACT COULD SERVE AS A BASIS FOR SUCH EXEMPTION IN YOUR CASE. SEE GRADALL V. UNITED STATES, CT.CL.NO. 4-60, MAY 9, 1962.

YOU WERE RETIRED FOR PHYSICAL DISABILITY WITH THE GRADE AND RETIRED PAY OF A MAJOR PURSUANT TO THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816, 823. UNDER THAT STATUTORY AUTHORITY THE HOLDING OF A RESERVE STATUS WAS NOT A PREREQUISITE FOR RETIREMENT. THE FACT THAT YOU ACTUALLY HELD A RESERVE COMMISSION AT THAT TIME DOES NOT INCREASE YOUR RIGHTS AS A RETIRED MEMBER. THE COURT OF CLAIMS HAS RULED THAT EXEMPTION FROM THE DUAL COMPENSATION RESTRICTION BASED ON RESERVE STATUS APPLIES TO A MEMBER'S RETIRED PAY ONLY IF HE EARNED THE RIGHT TO THAT RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT OR BY REASON OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT. IF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT HAD NO BEARING ON HIS RIGHT TO RETIRED PAY, IT WILL HAVE NO BEARING ON HIS RIGHT TO THE EXEMPTION. WATMAN V. UNITED STATES, 152 CT.CL. 769 (1961). SINCE YOU WERE SERVING ON ACTIVE DUTY IN THE TEMPORARY GRADE OF MAJOR AT THE TIME OF YOUR RETIREMENT, YOU WERE RETIRED IN THAT GRADE REGARDLESS OF THE INACTIVE RESERVE COMMISSION HELD BY YOU.

THERE IS NOW PENDING BEFORE THE CONGRESS H.R. 7381, A BILL TO SIMPLIFY, MODERNIZE AND CONSOLIDATE THE LAWS RELATING TO THE EMPLOYMENT OF CIVILIANS IN MORE THAN ONE POSITION AND THE LAWS CONCERNING THE CIVILIAN EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES. THAT BILL AND OTHER PENDING BILLS (SUCH AS H.R. 6304 AND S. 1912) CONTAIN A RELIEF PROVISION WHICH WOULD RETROACTIVELY EXEMPT FROM THE DUAL COMPENSATION RESTRICTION NON- REGULAR OFFICERS WHO WERE RETIRED FOR PHYSICAL DISABILITY IN THE SAME GRADE AS THAT HELD BY THEM IN A RESERVE COMPONENT. HOWEVER, THE PROPOSED LEGISLATION HAS NOT BEEN ENACTED INTO LAW.