B-171488, JAN 14, 1971, 50 COMP GEN 491

B-171488, JAN 14, 1971, 50 COMP GEN 491

MILITARY PERSONNEL - RETIRED - CIVILIAN SERVICE - CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY A REGULAR AIR FORCE SERGEANT RETIRED PURSUANT TO 10 U.S.C. 8914, WHO WHILE EMPLOYED AS A CIVILIAN IN THE FEDERAL GOVERNMENT LOSES THE USE OF A FINGER, IS NOT ENTITLED TO THE CONCURRENT PAYMENT OF CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY ON THE BASIS THE COMPENSATION WOULD BE PAID FOR A PERMANENT PARTIAL DISABILITY AND NOT A TEMPORARY TOTAL DISABILITY THUS BRINGING THE PAYMENT WITHIN THE EXCEPTION TO THE DUAL PAYMENT PROHIBITION CONTAINED IN 5 U.S.C. 8116(A). IN THE APPLICATION OF THE LIMITATION IN SECTION 816(A), THERE HAS BEEN NO RECOGNITION OF A DISTINCTION BETWEEN TEMPORARY AND PERMANENT DISABILITY, AS THE STATUE MAKES NO SUCH DISTINCTION INSOFAR AS THE CONCURRENT RECEIPT OF MILITARY OR NAVAL RETIRED PAY IS CONCERNED AND LEGISLATION WOULD HAVE TO BE ENACTED TO PERMIT THE CONCURRENT PAYMENT OF RETIRED PAY AND DISABILITY COMPENSATION.

TO LIEUTENANT COLONEL N. C. ALCOCK, DEPARTMENT OF THE AIR FORCE, JANUARY 14, 1971:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1970, WHICH WAS FORWARDED HERE BY LETTER DATED DECEMBER 7, 1970, FROM HEADQUARTERS UNITED STATES AIR FORCE, REQUESTING AN ADVANCE DECISION ON THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $372.60 IN FAVOR OF MASTER SERGEANT LEWIS E. CHINN, USAF, RETIRED, REPRESENTING RETIRED PAY WITHHELD FOR THE PERIOD FROM MARCH 4, 1969, THROUGH APRIL 25, 1969, DUE TO PAYMENT TO HIM OF COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT. YOUR SUBMISSION HAS BEEN ASSIGNED AIR FORCE REQUEST NO. DO-AF-1106 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT SERGEANT CHINN RETIRED EFFECTIVE AUGUST 31, 1961, PURSUANT TO 10 U.S.C. 8914 AFTER 20 YEARS 3 MONTHS 17 DAYS OF ACTIVE SERVICE. UPON HAVING BEEN ADVISED BY THE BUREAU OF EMPLOYEES' COMPENSATION THAT HE WAS ENTITLED TO COMPENSATION FOR THE PERIOD MARCH 4 TO APRIL 25, 1969, FOR THE LOSS OF USE OF THE SECOND MIDDLE FINGER, RIGHT HAND, YOU NOTIFIED SERGEANT CHINN AND THE BUREAU THAT RETIRED PAY WAS CONSIDERED NOT PAYABLE FOR THAT PERIOD IN VIEW OF THE PROVISIONS OF 5 U.S.C. 8116(A). THE BUREAU ADVISED THAT HE ELECTED NOT TO AUTHORIZE OFFSET OF THE INDEBTEDNESS FROM THE EMPLOYEES' COMPENSATION PAYMENT, AND THE DEBT WAS WITHHELD FROM HIS RETIRED PAY PURSUANT TO 5 U.S.C. 5514.

IN LETTERS DATED MARCH 19, 1970, AND JUNE 29, 1970, THE BUREAU OF EMPLOYEES' COMPENSATION TOOK THE POSITION THAT SERGEANT CHINN IS NOT PRECLUDED FROM RECEIVING CONCURRENT PAYMENTS OF CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY FOR THE REASON THAT HE WAS PAID COMPENSATION FOR A PERMANENT PARTIAL DISABILITY, NOT TEMPORARY TOTAL DISABILITY, AND THAT UNDER THE "EXCEPTION" CONTAINED IN 5 U.S.C. 8116(A) "THERE IS NO BAR TO RECEIVING THE CONCURRENT BENEFITS WHEN THE BUREAU IS PAYING A SCHEDULED AWARD, SUCH AS IN MR. CHINN'S CASE."

IN VIEW OF THE HOLDING IN 47 COMP. GEN. 9 (1967) THAT THE PROVISION TO THE EFFECT THAT RECEIPT OF RETIREMENT BENEFITS WILL NOT IMPAIR AN EMPLOYEE'S RIGHT TO DISABILITY COMPENSATION FOR SCHEDULED DISABILITIES RELATES ONLY TO FEDERAL CIVILIAN RETIREMENT PROGRAMS, YOU REQUESTED A RULING AS TO WHETHER THE COMPENSATION PAYMENTS MADE TO SERGEANT CHINN ARE EXCEPTED FROM THE DUAL PAYMENT PROHIBITION IN 5 U.S.C. 8116.

A CIVILIAN EMPLOYEE'S RIGHT TO RECEIVE DISABILITY COMPENSATION ON ACCOUNT OF INJURIES SUFFERED IN LINE OF DUTY AND AT THE SAME TIME RECEIVE OTHER PAYMENTS FROM THE UNITED STATES 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 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 OF CHAPTER 83 OF THIS TITLE, OR ANOTHER RETIREMENT SYSTEM FOR EMPLOYEES OF THE GOVERNMENT, DOES NOT IMPAIR THE RIGHT OF THE EMPLOYEE TO COMPENSATION FOR SCHEDULED DISABILITIES SPECIFIED BY SECTION 8107(C) OF THIS TITLE.

IT HAS LONG BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT DISABILITY COMPENSATION PAYMENTS MADE UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT MAY NOT BE MADE TO A PERSON CONCURRENTLY WITH THE PAYMENT OF MILITARY OR NAVAL RETIRED PAY IN THE ABSENCE OF A STATUTE EXEMPTING SUCH PERSON FROM THE DUAL PAYMENT RESTRICTIONS OF SECTION 7(A) OF THAT ACT. SEE 18 COMP. GEN. 747 (1939); 38 ID. 243 (1958); 40 ID. 660 (1961); 47 ID. 9 (1967), AND STEELMAN V UNITED STATES, 162 CT. CL. 81 (1963). COMPARE OUR DECISION TO YOU OF JANUARY 23, 1970, B 165726. EXCEPT FOR CERTAIN PROVISIONS OF LAW RELATING TO MEMBERS OF RESERVE COMPONENTS OF THE ARMED FORCES, WE KNOW OF NO AUTHORITY WHICH PERMITS PAYMENT OF MILITARY RETIREMENT PAY AND EMPLOYEES' COMPENSATION TO A PERSON AT THE SAME TIME. SEE TAWES V UNITED STATES, 146 CT. CL. 500 (1959), AND 39 COMP. GEN. 321 (1959), IN WHICH WE SAID WE WOULD FOLLOW THE RULE ESTABLISHED IN THE TAWES CASE IN THE SETTLEMENT OF SIMILAR CASES.

WHILE SECTIONS 8105, 8106, AND 8107, SUBCHAPTER I, CHAPTER 81, TITLE 5 U.S. CODE, PROVIDE CERTAIN LEGISLATIVE DISTINCTIONS BETWEEN TOTAL DISABILITY, PARTIAL DISABILITY, AND SCHEDULED DISABILITY, RESPECTIVELY, THE LIMITATIONS ON THE RIGHT TO RECEIVE COMPENSATION PRESCRIBED BY 5 U.S.C. 8116(A) APPLY GENERALLY 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." THE STATUTE IS UNABIGUOUS AND APPLIES TO ALL COMPENSATION COMPUTED ON THE BASIS OF A PERIOD OF DISABILITY. IN THE APPLICATION OF THE LIMITATIONS CONTAINED IN 5 U.S.C. 8116(A) PROHIBITING THE CONCURRENT RECEIPT OF EMPLOYEES' COMPENSATION AND MILITARY RETIRED PAY, WE HAVE NEVER RECOGNIZED ANY DISTINCTION BETWEEN TEMPORARY AND PERMANENT DISABILITY FOR A PERIOD OF DISABILITY, AND NO SUCH DISTINCTION IS SET FORTH IN THE STATUTE INSOFAR AS CONCURRENT RECEIPT OF MILITARY OR NAVAL RETIRED PAY IS CONCERNED.

WHILE PAYMENT OF MEDICAL, SURGICAL, AND HOSPITAL SERVICES NECESSARY FOR TREATMENT OF AN INJURY SUSTAINED BY AN EMPLOYEE IN LINE OF DUTY IS "COMPENSATION" (SEE 5 U.S.C. 8101(12)), WE SAID IN 40 COMP. GEN. 711 (1961) THAT, SINCE NORMALLY SUCH PAYMENTS ARE NOT MADE TO THE EMPLOYEE AND THERE IS NO PROVISION FOR THEIR PAYMENT IN INSTALLMENTS OVER A PERIOD OF TIME WHICH HAS ANY RELATIONSHIP TO THE NATURE AND EXTENT OF THE INJURY INVOLVED, THE PAYMENT OF THOSE EXPENSES IS TO BE DISTINGUISHED FROM THE COMPENSATION PAYABLE TO THE EMPLOYEE IN INSTALLMENTS OR A COMMUTATION THEREOF OVER A PERIOD OF DISABILITY. THUS 5 U.S.C. 8116(A) IS NOT FOR APPLICATION, AND PAYMENT OF BENEFITS UNDER 5 U.S.C. 8103 DOES NOT REQUIRE A WITHHOLDING OF THE EMPLOYEE'S RETIRED PAY.

THE STATED POSITION OF THE BUREAU OF EMPLOYEES' COMPENSATION IN THIS CASE APPEARS TO BE BASED UPON AN INTERPRETATION THAT THE RETIREMENT SYSTEM "EXCEPTION" IN 5 U.S.C. 8116(A) APPLIES IN CASE OF ELIGIBILITY UNDER ANY FEDERAL ACT OR PROGRAM PROVIDING RETIREMENT BENEFITS, INCLUDING ELIGIBILITY FOR MILITARY RETIRED PAY. IN OUR DECISION OF JULY 7, 1967, 47 COMP. GEN. 9, WE CONSIDERED THE LEGISLATIVE HISTORY OF THAT "EXCEPTION" AND NOTED THAT 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, AND THAT 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.

BY SECTION 5(A) OF THE ACT OF JULY 4, 1966, PUBLIC LAW 89-488, 80 STAT. 253, 5 U.S.C. 757, THE PROVISION WAS EXTENDED TO EMPLOYEES WHO ARE BENEFICIARIES UNDER ANOTHER RETIREMENT SYSTEM "FOR EMPLOYEES OF THE GOVERNMENT." THUS WE HELD THAT THE BENEFITS PROVIDED IN THE 1966 ACT ARE LIMITED TO PERSONS WHOSE RIGHTS ACCRUE UNDER LAWS PROVIDING RETIREMENT BENEFITS FOR "EMPLOYEES" AND AS NOT AUTHORIZING CONCURRENT PAYMENTS OF CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY. SERGEANT CHINN'S CASE FALLS SQUARELY WITHIN THE RULE OF OUR 1967 DECISIONS, AND NOTHING HAS BEEN BROUGHT TO OUR ATTENTION TO PROVIDE ANY REASON TO CHANGE OR MODIFY THAT HOLDING.

THE INEQUITY OF PERMITTING A RETIRED REGULAR ENLISTED MAN TO RECEIVE HIS FULL MILITARY RETIRED PAY AND HIS FULL COMPENSATION AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT BUT DENYING HIM THE RIGHT TO RECEIVE MILITARY RETIRED PAY CONCURRENTLY WITH DISABILITY COMPENSATION FOR AN INJURY INCURRED IN THE COURSE OF HIS EMPLOYMENT, WHICH IS IN LIEU OF HIS CIVILIAN COMPENSATION, HAS BEEN BROUGHT TO THE ATTENTION OF THE CONGRESS THROUGH NUMEROUS BILLS IN RECENT YEARS.

H.R. 822 AND H.R. 8290, 91ST CONGRESS, WOULD HAVE PERMITTED THE PAYMENT OF RETIRED PAY OR RETIREMENT PAY RECEIVED ON ACCOUNT OF SERVICE IN ONE OF THE ARMED SERVICES CONCURRENTLY WITH FEDERAL EMPLOYEES' COMPENSATION DISABILITY PAYMENTS. OTHER SIMILAR BILLS WHICH HAVE BEEN INTRODUCED ARE H.R. 6852, 90TH CONGRESS; H.R. 314, 89TH CONGRESS; H.R. 1092, 88TH CONGRESS; H.R. 308, H.R. 3042 AND H.R. 5093, 87TH CONGRESS; AND H.R. 715 AND H.R. 811, 86TH CONGRESS. ALL OF THESE BILLS HAD THE SAME PURPOSE OF ALLOWING CONCURRENT RECEIPT OF RETIRED PAY AND FEDERAL EMPLOYEES' COMPENSATION DISABILITY BENEFITS. H.R. 11505, 90TH CONGRESS, AND H.R. 4273 AND H.R. 8290, 91ST CONGRESS, WOULD HAVE PERMITTED CONCURRENT RECEIPT OF MILITARY RETIRED PAY AND FEDERAL EMPLOYEES' COMPENSATION DISABILITY BENEFITS RETROACTIVELY TO JULY 12, 1967. FAVORABLE ACTION HAS NOT BEEN TAKEN ON ANY OF THESE BILLS.

IN LETTER OF APRIL 20, 1960, B-142494, THIS OFFICE MADE A REPORT TO THE HOUSE COMMITTEE ON EDUCATION AND LABOR ON H.R. 715 AND H.R. 811, 86TH CONGRESS, SETTING FORTH A SUMMARY OF OUR DECISIONS CONCERNING THE INELIGIBILITY OF RETIRED MILITARY PERSONNEL TO RECEIVE CONCURRENTLY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT FOR INJURIES RECEIVED AS CIVILIAN EMPLOYEES. WE POINTED OUT THAT WHEN CONGRESS HAD MADE REVISIONS TO SUBSECTION 7(A) OF THAT ACT, NO CHANGE HAD BEEN MADE IN THAT SUBSECTION FOR THE PURPOSE OF OVERCOMING THOSE DECISIONS SO AS TO AUTHORIZE CONCURRENT PAYMENTS OF DISABILITY COMPENSATION AND MILITARY RETIRED PAY IN SUCH CASES AS PROPOSED IN THOSE BILLS. NEITHER OF THOSE BILLS RESULTED IN ANY CHANGE IN THE LAW WITH RESPECT TO CONCURRENT PAYMENT OF DISABILITY COMPENSATION AND MILITARY RETIRED PAY.

THE HEARINGS HELD IN THE HOUSE OF REPRESENTATIVES ON H.R. 10721, 89TH CONGRESS, WHICH BECAME THE FEDERAL EMPLOYEES' COMPENSATION ACT AMENDMENTS OF 1966, INCLUDE THE TEXT OF H.R. 314, 89TH CONGRESS, A BILL TO PERMIT RETIRED MILITARY PERSONNEL TO RECEIVE FECA DISABILITY COMPENSATION WITHOUT RELINQUISHING THEIR MILITARY RETIRED PAY. THE HEARINGS ALSO INCLUDE A STATEMENT SETTING FORTH THE NEED FOR THE NEW ENACTMENT IN VIEW OF THE DECISIONS OF THIS OFFICE AND OF THE COURT OF CLAIMS HOLDING THAT COMPENSATION MAY NOT, UNDER THE STATUTE, BE PAID CONCURRENTLY WITH RETIRED PAY. IN THOSE HEARINGS IT WAS URGED THAT THE RESTRICTION AGAINST CONCURRENT RECEIPT OF COMPENSATION AND RETIRED PAY IN SUBSECTION 7(A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT CREATES AN INEQUITY AND IS A GROSS INJUSTICE, AND THAT ONLY ADDITIONAL LEGISLATION WOULD DO AWAY WITH THE GROSS INJUSTICE AND INEQUITY THAT EXIST UNDER THE INTERPRETATION OF THE WORDING OF SUBSECTION (A) OF SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT. HOWEVER, THE PROVISIONS OF H.R. 314 WERE NOT ENACTED INTO LAW.

IN SUCH CIRCUMSTANCES, THE CONCLUSION IS REQUIRED THAT UNDER THE PROVISIONS OF LAWS CURRENTLY IN EFFECT, SERGEANT CHINN MAY NOT RECEIVE RETIRED PAY AS A RETIRED ENLISTED MEMBER OF THE REGULAR AIR FORCE AND COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT FOR AN INJURY INCURRED WHILE EMPLOYED AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT FOR THE SAME PERIOD OF TIME. THERE BEING NO AUTHORITY FOR PAYMENT OF THE VOUCHER, IT WILL BE RETAINED HERE.