B-161571, JULY 7, 1967, 47 COMP. GEN. 9

B-161571, JULY 7, 1967, 47 COMP. GEN. 9

OFFICERS AND EMPLOYEES - DEATH OR INJURY - DISABILITY COMPENSATION AND RETIRED PAY AN AIR FORCE SERGEANT WHO SUBSEQUENT TO RETIREMENT PURSUANT TO 10 U.S.C. 8914 IS INJURED WHILE EMPLOYED AS A CIVILIAN BY THE GOVERNMENT IS NOT ENTITLED TO RETIRED PAY FOR THE PERIOD HE RECEIVES DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF 1916, AS AMENDED, SECTION 7 (A) OF THE ACT, 5 U.S.C. 8116 (A), PROHIBITING THE CONCURRENT RECEIPT OF CIVILIAN DISABILITY COMPENSATION AND MILITARY OR NAVAL RETIRED PAY, AND THE PROVISION IN THE ACT OF JULY 4, 1966, AMENDING THE 1916 ACT TO THE EFFECT THAT THE RECEIPT OF RETIREMENT BENEFITS WILL NOT IMPAIR AN EMPLOYEE'S RIGHT TO DISABILITY COMPENSATION RELATING ONLY TO FEDERAL CIVILIAN RETIREMENT PROGRAMS, THE CONCURRENT PAYMENT OF CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY MAY NOT BE AUTHORIZED.

TO LIEUTENANT COLONEL J. R. KELLIHER, DEPARTMENT OF THE AIR FORCE, JULY 7, 1967:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 17, 1967, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT ON A VOUCHER IN THE AMOUNT OF $626.64, REPRESENTING RETIRED PAY WITHHELD FROM MASTER SERGEANT JOHN L. BRINSON, AF 699 0346, USAF, RETIRED, FOR THE PERIOD JANUARY 1, 1967, THROUGH MARCH 31, 1967, DUE TO PAYMENT TO HIM OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT.

YOU SAY THAT SERGEANT BRINSON RETIRED FROM THE UNITED STATES AIR FORCE ON JANUARY 31, 1961, PURSUANT TO 10 U.S.C. 8914 UNDER WHICH A REGULAR ENLISTED MEMBER OF THE AIR FORCE WHO HAS AT LEAST 20, BUT LESS THAN 30, YEARS OF SERVICE MAY, UPON HIS REQUEST, BE RETIRED; THAT THE BUREAU OF EMPLOYEES' COMPENSATION, JACKSONVILLE, FLORIDA, INFORMED YOU ON NOVEMBER 21, 1966, OF HIS ENTITLEMENT TO COMPENSATION EFFECTIVE SEPTEMBER 21, 1966, DUE TO AN INJURY, WHICH COMPENSATION WOULD CONTINUE THROUGH MARCH 28, 1972; AND THAT RETIRED PAY HAD ALREADY BEEN PAID FOR THE PERIOD SEPTEMBER 21, 1966, THROUGH DECEMBER 31, 1966.

A CIVILIAN GOVERNMENT EMPLOYEE'S RIGHT TO RECEIVE OTHER MONETARY BENEFITS WHILE IN RECEIPT OF DISABILITY COMPENSATION ON ACCOUNT OF INJURY SUFFERED IN LINE OF DUTY IS LIMITED BY THE PROHIBITION CONTAINED IN SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, CURRENTLY CODIFIED IN 5 U.S.C. 8116 (A), WHICH PROVIDES IN PERTINENT PART AS FOLLOWS:

"/A) WHILE AN EMPLOYEE IS RECEIVING COMPENSATION UNDER THIS SUBCHAPTER, OR IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH THE INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE MAY NOT RECEIVE SALARY, PAY, OR REMUNERATION OF ANY TYPE FROM THE UNITED STATES, EXCEPT--

(1) IN RETURN FOR SERVICE ACTUALLY PERFORMED; AND

(2) PENSION FOR SERVICE IN THE ARMY, NAVY, OR AIR FORCE.

HOWEVER, ELIGIBILITY FOR OR RECEIPT OF BENEFITS UNDER SUBCHAPTER III (CIVIL SERVICE RETIREMENT) OF CHAPTER 83 OF THIS TITLE, OR ANY OTHER FEDERAL ACT OR PROGRAM PROVIDING RETIREMENT BENEFITS FOR EMPLOYEES, DOES NOT IMPAIR THE RIGHT OF THE EMPLOYEE TO COMPENSATION FOR SCHEDULED DISABILITIES SPECIFIED BY SECTION 8107 (C) OF THIS TITLE.'

THE UNDERSCORED PHRASE WAS ADDED BY SECTION 5 (A) OF THE ACT OF JULY 4, 1966, PUBLIC LAW 89-488, 80 STAT. 253. SEE SECOND SENTENCE OF SECTION 7 (A) OF THE CODIFICATION ACT OF SEPTEMBER 6, 1966, PUBLIC LAW 89-554, 80 STAT. 631.

IT HAS LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT MENTIONED ABOVE BARS PAYMENT OF MILITARY OR NAVAL RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION PAYMENTS UNDER THAT ACT, IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING. SEE 18 COMP. GEN.747, 38 ID. 243, 40 ID. 660, AND STEELMAN V. UNITED STATES, 162 CT. CL. 81 (1963).

SINCE THE LANGUAGE INSERTED BY THE ACT OF JULY 4, 1966, DOES NOT SPECIFICALLY INDICATE THAT MILITARY RETIRED PAY WAS INTENDED TO BE INCLUDED THEREIN, YOU EXPRESS DOUBT WHETHER SUCH AMENDMENT HAS THE EFFECT OF AUTHORIZING CONCURRENT FEDERAL EMPLOYEES' COMPENSATION PAYMENTS AND MILITARY RETIRED PAY OF ANY NATURE.

PRIOR TO THE EFFECTIVE DATE OF THE ACT OF SEPTEMBER 13, 1960, PUBLIC LAW 86-767, 74 STAT. 906, A FEDERAL EMPLOYEE WHO WAS INJURED AT WORK HAD TO ELECT WHETHER TO RECEIVE COMPENSATION BENEFITS FOR DISABILITY OR THE BENEFITS OF THE CIVIL SERVICE RETIREMENT ACT. SECTION 202 OF THE 1960 ACT PROVIDED THAT ELIGIBILITY FOR OR RECEIPT OF BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT SHOULD IN NO WAY IMPAIR THE EMPLOYEE'S RIGHT TO RECEIVE COMPENSATION FOR SCHEDULED DISABILITIES SPECIFIED IN THE FEDERAL EMPLOYEES' COMPENSATION ACT. IN EXPLANATION OF SECTION 202 THE SENATE COMMITTEE ON LABOR AND PUBLIC WELFARE IN REPORT NO. 1924 TO ACCOMPANY H.R. 12383 WHICH BECAME THE ACT OF SEPTEMBER 13, 1960, STATED AT PAGE 5:

"THIS SECTION AMENDS SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT TO PERMIT THE PAYMENT OF COMPENSATION FOR SCHEDULED PERMANENT DISABILITY SPECIFIED IN SUBSECTION 5 (A) OF THE ACT IN ADDITION TO BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT. AT PRESENT SUCH COMPENSATION AND BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT MAY NOT BE PAID FOR THE SAME PERIOD OF TIME. AN EMPLOYEE WHO SUFFERS AN INJURY WHICH ENTITLES HIM TO A SCHEDULED AWARD MAY RECEIVE THE COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES' COMPENSATION ACT FOR THAT INJURY ALTHOUGH HE RETURNS TO FULL- TIME DUTY WITHOUT ANY LOSS IN PAY. IT IS INEQUITABLE TO FORCE AN EMPLOYEE WHO IS ELIGIBLE TO AND ELECTS TO RETIRE AFTER SUSTAINING SUCH AN INJURY TO FORGO THE COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES' COMPENSATION ACT FOR THE SCHEDULED LOSS.'

THE LEGISLATIVE HISTORY OF H.R. 10721 WHICH BECAME THE ACT OF JULY 4, 1966, THROWS BUT LITTLE LIGHT ON THE INTENT AND PURPOSE OF THE LANGUAGE INSERTED BY SECTION 5 (A), OTHER THAN THE FOLLOWING STATEMENT BY THE SAME COMMITTEE IN SENATE REPORT NO. 1285 (PAGE 5) TO ACCOMPANY THE BILL WITH REGARD TO SECTION 5:

"SECTIONS 7 (A) AND 9 (A) OF THE ACT NOW PROVIDE THAT RECEIPT OF BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT DOES NOT DEPRIVE AN EMPLOYEE OF COMPENSATION FOR SCHEDULED DISABILITIES UNDER SECTION 5, OR FOR MEDICAL SERVICES OR SUPPLIES. THE AMENDMENT MADE BY THIS SECTION EXTENDS THIS PROVISION TO EMPLOYEES WHO ARE BENEFICIARIES UNDER OTHER FEDERAL RETIREMENT SYSTEMS.'

WHILE H.R. 314, WHICH WOULD HAVE PERMITTED RETIRED PERSONNEL OF THE UNIFORMED SERVICES TO RECEIVE BENEFITS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT WITHOUT RELINQUISHING THEIR RETIREMENT PAY RETROACTIVE TO JULY 12, 1957, WAS ONE OF THE RELATED BILLS BEFORE THE HOUSE COMMITTEE ON EDUCATION AND LABOR AT THE TIME IT CONSIDERED H.R. 10721 AND HONORABLE CRAIG HOSMER, SPONSOR OF THE BILL, SUBMITTED A STATEMENT TO THE COMMITTEE WITH REGARD THERETO, NO SPECIFIC CONSIDERATION APPEARS TO HAVE BEEN GIVEN THE AMENDMENT PROPOSED BY H.R. 314. TWO SIMILAR BILLS, H.R. 715 AND H.R. 811, WERE BEFORE THE COMMITTEE AT THE TIME IT WAS CONSIDERING THE 1960 AMENDMENTS, AND NO ACTION WAS TAKEN. FURTHERMORE, A BILL, H.R. 724, IDENTICAL TO H.R. 314, WAS INTRODUCED BY MR. HOSMER ON JANUARY 10, 1967, FOR CONSIDERATION BY THE 90TH CONGRESS.

IT SHOULD BE NOTED THAT UNLIKE 5 U.S.C. 8116 (B) WHICH LISTS SEPARATELY THE BENEFITS WHICH ACCRUE BECAUSE OF SERVICE "AS AN EMPLOYEE OR IN THE ARMED FORCES," THE BENEFITS PROVIDED IN SUBSECTION (A) (SECTION 5 (A) OF THE ACT OF JULY 4, 1966) ARE LIMITED TO PERSONS WHOSE RIGHTS ACCRUE UNDER LAWS PROVIDING RETIREMENT BENEFITS FOR "EMPLOYEES.' IN SUCH CIRCUMSTANCES AND SINCE NOTHING HAS BEEN FOUND IN ITS LEGISLATIVE HISTORY WHICH INDICATES THAT IN ENACTING THE 1966 ACT THE CONGRESS INTENDED TO ACCOMPLISH THE SAME RESULTS THAT WOULD HAVE FOLLOWED THE ENACTMENT OF H.R. 314, IT APPEARS PROPER TO VIEW SUBSECTION (A) AS RELATING ONLY TO FEDERAL CIVILIAN RETIREMENT PROGRAMS AND THUS AS NOT AUTHORIZING CONCURRENT PAYMENTS OF CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY.

ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF THE VOUCHER AND IT WILL BE RETAINED HERE.

APPROPRIATE ACTION SHOULD BE TAKEN TO RECOVER THE OVERPAYMENT TO SERGEANT BRINSON OF RETIRED PAY FOR THE PERIOD SEPTEMBER 21, 1966, THROUGH DECEMBER 31, 1966.