B-159466, AUG. 8, 1966
Highlights
DEPARTMENT OF THE NAVY: REFERENCE IS MADE TO YOUR LETTER OF JULY 21. THAT HE IS EXEMPT FROM THE RESTRICTION OF SECTION 201 (A) OF THE DUAL COMPENSATION ACT OF AUGUST 19. WESTBROOK'S RETIREMENT DISABILITY WAS NOT OF A TYPE THAT IS COVERED BY THE EXEMPTION PROVISIONS OF SECTION 201 (B) OF THAT ACT. YOU INDICATE THAT HIS SERVICE RECORD PROVIDES INFORMATION WHICH RAISES DOUBTS AS TO WHETHER HE IS SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THAT ACT IN ANY EVENT. WESTBROOK'S TEMPORARY APPOINTMENT AS A CHIEF PAY CLERK WAS TERMINATED ON FEBRUARY 27. THAT HE WAS SERVING IN THE PERMANENT ENLISTED GRADE OF CHIEF COMMISSARY STEWARD AT THE TIME OF HIS RETIREMENT. IT IS INDICATED THAT HE ACTUALLY WAS RETIRED AS A WARRANT OFFICER (JG).
B-159466, AUG. 8, 1966
TO JUDGE ADVOCATE GENERAL OF THE NAVY, DEPARTMENT OF THE NAVY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 21, 1966 (JAG:134:WEN:SB SER: 7206) CONCERNING THE CLAIM OF CHIEF WARRANT OFFICER RALEIGH E. WESTBROOK, USN, RETIRED, 406485, THAT HE IS EXEMPT FROM THE RESTRICTION OF SECTION 201 (A) OF THE DUAL COMPENSATION ACT OF AUGUST 19, 1964, PUB.L. 88-448, 78 STAT. 484.
ALTHOUGH IT APPEARS THAT MR. WESTBROOK'S RETIREMENT DISABILITY WAS NOT OF A TYPE THAT IS COVERED BY THE EXEMPTION PROVISIONS OF SECTION 201 (B) OF THAT ACT, YOU INDICATE THAT HIS SERVICE RECORD PROVIDES INFORMATION WHICH RAISES DOUBTS AS TO WHETHER HE IS SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THAT ACT IN ANY EVENT. YOU REQUEST AN EXPRESSION OF OUR VIEWS AS A BASIS FOR FUTURE ACTION IN THIS CASE.
WHILE YOU STATE THAT MR. WESTBROOK'S TEMPORARY APPOINTMENT AS A CHIEF PAY CLERK WAS TERMINATED ON FEBRUARY 27, 1947, AND THAT HE WAS SERVING IN THE PERMANENT ENLISTED GRADE OF CHIEF COMMISSARY STEWARD AT THE TIME OF HIS RETIREMENT, IT IS INDICATED THAT HE ACTUALLY WAS RETIRED AS A WARRANT OFFICER (JG), UNDER THE PROVISIONS OF SECTION 8 (A) OF THE ACT OF JULY 24, 1941, CH. 320, 55 STAT. 604, 34 U.S.C. 350G (A) (1946 ED.) WHICH DIRECTED THE RETIREMENT "IN SUCH HIGHER RANK" OF AN OFFICER OR ENLISTED MAN WHO INCURRED PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK. HIS SITUATION IS DIFFERENT FROM THAT OF AN ENLISTED MAN WHO WAS RETIRED AND ADVANCED ON THE RETIRED LIST TO THE HIGHEST RANK IN WHICH HE SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT PURSUANT TO SECTION 10 (B) (2) OF THE 1941 ACT AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 28 (26 COMP. GEN. 271) SINCE HE (WESTBROOK) WAS RETIRED ONLY BECAUSE HE INCURRED A DISABILITY WHILE HE WAS SERVING AS A TEMPORARY OFFICER. IN THE CIRCUMSTANCES, IT APPEARS PROPER TO REGARD HIM AS A "RETIRED OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 201 (A) OF THE 1964 ACT AND THUS AS BEING SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS CONTAINED THEREIN. COMPARE 42 COMP. GEN. 556.