B-157610, OCT. 18, 1965

B-157610, OCT. 18, 1965

TO CAPTAIN ARTHUR A. MAXWELL, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 15, 1965, AND AUGUST 17, 1965, REQUESTING RECONSIDERATION OF SETTLEMENT OF NOVEMBER 19, 1964, WHICH DISALLOWED YOUR CLAIM FOR RETIRED PAY WITHHELD FROM YOUR ACCOUNT UNDER THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A (1958 ED.).

THE FACTS SHOW THAT YOU WERE RETIRED FROM THE REGULAR ARMY ON APRIL 30, 1949, IN THE GRADE OF MASTER SERGEANT UNDER THE PROVISIONS OF 10 U.S.C. 3914. THE FACTS ALSO SHOW THAT ON SEPTEMBER 18, 1957, YOU WERE ADVANCED ON THE RETIRED LIST TO THE GRADE OF CAPTAIN, THE HIGHEST TEMPORARY RANK IN WHICH YOU SERVED ON ACTIVE DUTY FOR AT LEAST SIX MONTHS (10 U.S.C. 3964) AND THEREUPON BECAME ENTITLED TO RETIRED PAY COMPUTED ON THAT RANK UNDER 10 U.S.C. 3992. AT THAT TIME YOU WERE A CIVIL SERVICE EMPLOYEE, HAVING BEEN EMPLOYED IN SUCH CAPACITY SINCE MARCH 15, 1951, TO THE PRESENT. AS A RESULT OF ADVANCEMENT ON THE RETIRED LIST YOUR COMBINED RETIRED PAY AND CIVIL SERVICE SALARY HAS BEEN LIMITED TO A MAXIMUM OF $10,000 PER ANNUM UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A (1958 ED.).

IT IS YOUR CONTENTION THAT, SINCE YOU RETIRED AS AN ENLISTED MAN OF THE REGULAR ARMY AND WERE MERELY ADVANCED ON THE RETIRED LIST TO A COMMISSIONED RANK, ARMY OF THE UNITED STATES, THE STATUTORY PROVISIONS RELATING TO DUAL COMPENSATION SHOULD NOT BE APPLICABLE TO YOU, ESPECIALLY IN THE LIGHT OF OUR RECENT DECISION, B-155251, DATED NOVEMBER 23, 1964, TO THE SECRETARY OF DEFENSE. YOU FURTHER CONTEND THAT BY FORGIVENESS PROVISIONS OF THE ACT OF AUGUST 19, 1964, PUB.L. 88-448, 78 STAT. 484, RETIREMENT PAY WITHHELD FROM YOU FROM JANUARY 1, 1958, TO NOVEMBER 30, 1964, UNDER THE EARLIER ACT, IS REIMBURSABLE TO YOU.

AS INDICATED ABOVE, YOU WERE PLACED ON THE RETIRED LIST EFFECTIVE APRIL 30, 1949, UNDER THE PROVISIONS OF 10 U.S.C. 3914. THAT SECTION PROVIDES IN PART:

"* * * A REGULAR ENLISTED MEMBER OF THE ARMY WHO HAS AT LEAST 20, BUT LESS THAN 30 YEARS OF SERVICE COMPUTED UNDER 3925 OF THIS TITLE MAY, UPON HIS REQUEST, BE RETIRED. HE THEN BECOMES A MEMBER OF THE ARMY RESERVE, AND SHALL PERFORM SUCH ACTIVE DUTY AS MAY BE PRESCRIBED UNDER LAW, UNTIL HIS SERVICE COMPUTED UNDER SECTION 3925 OF THIS TITLE, PLUS HIS INACTIVE SERVICE AS A MEMBER OF THE ARMY RESERVE, EQUALS 30 YEARS.'

AT SUCH TIME YOU HAD COMPLETED THE REQUISITE 30 YEARS' SERVICE, BOTH ACTIVE AND RETIRED, YOU WERE ADVANCED TO THE GRADE OF CAPTAIN ON SEPTEMBER 18, 1957, BY VIRTUE OF 10 U.S.C. 3964 WHICH PROVIDES:

"* * * EACH ENLISTED MEMBER OF THE REGULAR ARMY, WHO IS RETIRED BEFORE OR AFTER THIS TITLE IS ENACTED IS ENTITLED, WHEN HIS ACTIVE SERVICE PLUS HIS SERVICE ON THE RETIRED LIST TOTALS 30 YEARS, TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST TEMPORARY GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY.' (SOURCE: ACT OF JUNE 29, 1948, 62 STAT. 1086, 10 U.S.C. 1004 (1952 ED.)

FOLLOWING SUCH ADVANCEMENT YOU BECAME ENTITLED TO RETIRED PAY BASED ON YOUR OFFICER GRADE UNDER THE PROVISIONS OF 10 U.S.C. 3992 AND HAVING FAILED TO INVOKE THE PROVISIONS OF 10 U.S.C. 3965 (1958 ED.), PERMITTING RESTORATION ON THE RETIRED LIST IN YOUR ENLISTED STATUS, YOU BECAME SUBJECT TO SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. SEE GENERALLY GRADALL V. UNITED STATES, 157 CT.CL. 490. THE PERTINENT PORTION OF SECTION 212 READS---

"/A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, 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; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM, SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. * * *.'

SUCH EXEMPTIONS AS ARE PERMITTED BY THIS ACT APPLY ONLY TO LIMITED CATEGORIES OF DISABLED RETIREES AND NOT TO YOUR SITUATION.

CLOSE INSPECTION OF OUR DECISION OF NOVEMBER 23, 1964, B-155251, WILL REVEAL THAT THE SITUATIONS DISCUSSED THERE CLEARLY ARE DISTINGUISHABLE FROM YOURS. THAT DECISION CONSIDERED THE APPLICATION OF SECTION 201 (A) OF THE ACT OF AUGUST 19, 1964, FROM ITS EFFECTIVE DATE, DECEMBER 1, 1964, AND DID NOT CONSIDER DUAL COMPENSATION QUESTIONS COVERING PRIOR PERIODS. ALSO, THE ACT OF AUGUST 19, 1964, CONTAINS NO PROVISION WHICH WOULD PERMIT REFUND OF RETIRED PAY OTHERWISE PROPERLY WITHHELD FROM YOU. THE ONLY "FORGIVENESS" CLAUSES ARE IN SECTION 201 OF THE ACT, 5 U.S.C. 3102/G) AND (H), AND REFER TO A CERTAIN SPECIFIED CATEGORY OF PERSONNEL BUT DO NOT INCLUDE MEMBERS IN YOUR STATUS.

THEREFORE, SINCE YOU WERE AN ENLISTED REGULAR ARMY RETIREE WHO WAS ADVANCED TO A COMMISSIONED GRADE ON THE RETIRED LIST BY VIRTUE OF 10 U.S.C. 3964, THE ECONOMY ACT OF 1932 WAS DIRECTLY APPLICABLE TO YOU UNTIL IT WAS REPEALED ON DECEMBER 1, 1964, AND THE DISALLOWANCE OF YOUR CLAIM FOR AMOUNTS WITHHELD UNDER THAT ACT FOR THE PERIOD JANUARY 1, 1958, TO NOVEMBER 30, 1964, IS SUSTAINED.