B-154129, JUNE 30, 1964, 43 COMP. GEN. 837

B-154129, JUNE 30, 1964, 43 COMP. GEN. 837

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - RESERVE MEMBERSHIP - SAME AS TEMPORARY REGULAR RANK IN WHICH RETIRED THE FACT THAT AN AIR FORCE OFFICER WHEN RETIRED FROM ACTIVE DUTY FOR PHYSICAL DISABILITY UNDER SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949 IN HIS TEMPORARY GRADE OF LIEUTENANT COLONEL HELD THE SAME RANK IN THE AIR FORCE RESERVE AND QUALIFIED FOR RETIREMENT AS A RESERVE OFFICER FOR YEARS OF SERVICE PURSUANT TO 10 U.S.C. 8911, WITH ENTITLEMENT UNDER THE AUTHORITY OF 10 U.S.C. 1401 TO BE PAID RETIRED PAY UNDER THE MOST FAVORABLE FORMULA, DOES NOT EXEMPT THE OFFICER FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT (5 U.S.C. 59A), THE OFFICER HAVING BEEN RETIRED WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY AND NOT AS A RESERVE OFFICER, AND THE COMPUTATION OF THE OFFICER'S RETIRED PAY ON THE BASIS OF HIS RESERVE STATUS RESULTING IN LESS RETIRED PAY, THERE IS NO REASON FOR RECOMPUTING HIS RETIRED PAY, AND 5 U.S.C. 30R (C) EXEMPTING RESERVE OFFICERS FROM THE DUAL COMPENSATION RESTRICTIONS OF THE ECONOMY ACT IS NOT FOR APPLICATION.

TO MAJOR J. H. WEBB, DEPARTMENT OF THE AIR FORCE, JUNE 30, 1964:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1964, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $596.42, IN FAVOR OF LIEUTENANT COLONEL PAUL T. HANLON, USAF, RETIRED, REPRESENTING RETIRED PAY WITHHELD FROM HIM DURING A PERIOD OF CIVILIAN EMPLOYMENT BY THE GOVERNMENT FROM OCTOBER 1, 1962, THROUGH NOVEMBER 26, 1962, PURSUANT TO THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. YOUR LETTER WAS FORWARDED HERE BY LETTER DATED MAY 6, 1964, FROM THE DIRECTORATE OF ACCOUNTING AND FINANCE AND HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO AF-767 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 OFFICE 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 * * *.

IT IS REPORTED THAT COLONEL HANLON WAS PROMOTED TO LIEUTENANT COLONEL, AIR FORCE RESERVE, ON AUGUST 2, 1947, AND SUBSEQUENTLY ACCEPTED AN INDEFINITE TERM APPOINTMENT AS LIEUTENANT COLONEL, AIR FORCE RESERVE, ON DECEMBER 4, 1952, UNDER THE PROVISIONS OF THE ARMED FORCES RESERVE ACT OF 1952, APPROVED JULY 9, 1952, CH. 608, 66 STAT. 481, 50 U.S.C. 901 NOTE (1952 ED.). HE WAS PROMOTED TO LIEUTENANT COLONEL, AIR FORCE OF THE UNITED STATES (TEMPORARY), ON MAY 8, 1953, UNDER THE PROVISIONS OF SECTION 515 OF THE OFFICER PERSONNEL ACT OF 1947, CH. 512, 61 STAT. 906, 10 U.S.C. 506D (1952 ED.), AND SERVED ON ACTIVE DUTY IN THIS TEMPORARY GRADE FROM MAY 8, 1953, UNTIL RETIRED ON DECEMBER 31, 1953, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949, APPROVED OCTOBER 12, 1949, CH. 681, 63 STAT. 816 AND 823 (NOW 10 U.S.C. 1201 AND 1372).

AT THE TIME OF HIS RETIREMENT HE HAD 28 YEARS, 10 MONTHS AND 22 DAYS' SERVICE FOR BASIC PAY PURPOSES, 11 YEARS' SERVICE IN A COMMISSIONED GRADE, AND 29.319 YEARS OF SERVICE FOR PERCENTAGE PURPOSES IN COMPUTING HIS RETIRED PAY. HIS RETIRED PAY IS COMPUTED AT 75 PERCENT OF HIS BASIC PAY AS AUTHORIZED BY THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, APPROVED JUNE 16, 1942, CH. 413, 56 STAT. 367, 37 U.S.C. 115. WHILE THE OFFICER HELD THE SAME RANK IN THE AIR FORCE RESERVE IT DOES NOT APPEAR THAT HE WAS PERFORMING ACTIVE DUTY AS A RESERVE OFFICER WHEN HE WAS RETIRED FOR DISABILITY UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949.

YOU REFER TO OUR DECISION OF 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 OF 10 U.S.C. 1401. ALSO, HE HELD A RESERVE COMMISSION AND AT THE TIME OF RETIREMENT HE HAD MORE THAN 21 YEARS OF ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH HAD BEEN AS A COMMISSIONED OFFICER, AND THUS, LIKE COLONEL HANLON, 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 28 YEARS OF SERVICE (ACTIVE AND INACTIVE) WHEN HE 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. 8911, 8991 AND 1405, WHICH FORMULA WAS MORE FAVORABLE TO HIM THAN FORMULA 1 OF 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 RETIRED PAY 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 PROVISION 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).

COLONEL HANLON'S RETIRED PAY IS COMPUTED ON THE BASIS OF THE PAY OF A LIEUTENANT COLONEL BECAUSE OF HIS SERVICE AS A TEMPORARY OFFICER IN THAT GRADE, AT THE RATE OF 75 PERCENT OF HIS BASIC PAY, AS AUTHORIZED UNDER SECTIONS 402 AND 409 OF THE CAREER COMPENSATION ACT OF 1949 AND THE FOURTH PARAGRAPH OF SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942. SINCE COMPUTATION OF HIS RETIRED PAY ON THE BASIS OF HIS RESERVE STATUS UNDER 10 U.S.C. 8911 WOULD RESULT IN LESS RETIRED PAY IN HIS CASE, THERE WOULD BE NO REASON FOR SO RECOMPUTING HIS RETIRED PAY.

IN VIEW OF THE FACT THAT COLONEL HANLON 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 HE IS RECEIVING NO RETIRED PAY BECAUSE OF HIS RESERVE STATUS, THE PROVISIONS OF LAW EXEMPTING RESERVE OFFICERS FROM THE RESTRICTIONS OF THE ECONOMY ACT ARE NOT APPLICABLE HERE AND 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 LETTER AND ENCLOSURES, WILL BE RETAINED HERE.