B-211256, JUN 7, 1983

B-211256, JUN 7, 1983

PRECIS-UNAVAILABLE

THE HONORABLE PATRICIA SCHROEDER MEMBER, UNITED STATES HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER DATED MARCH 8, 1983 (REFERENCE: QUEEN/220.A/LJ) ON BEHALF OF MR. WALSTINE F. QUEEN. AT YOUR REQUEST, WE HAVE REVIEWED MR. QUEEN'S LETTER TO YOU DATED JANUARY 19, 1983, AND ITS ATTACHMENTS. MR. QUEEN ALLEGES THAT HE HAS BEEN WRONGLY DENIED BENEFITS AND COMPENSATION DUE HIM AS A RESULT OF AN INJURY HE SUFFERED ON MARCH 21, 1968, WHILE WORKING AS A FEDERAL CIVILIAN EMPLOYEE AT LOWRY AIR FORCE BASE, COLORADO. BECAUSE MR. QUEEN'S LETTER IS UNCLEAR AND INCOMPLETE IN SEVERAL RESPECTS, WE ARE UNABLE TO REACH ANY SUBSTANTIVE CONCLUSIONS REGARDING HIS CLAIMS. FURTHER, IT APPEARS THAT THE BULK OF MR. QUEEN'S CLAIM ARISES UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT AND IS THEREFORE OUTSIDE OF THE CLAIMS SETTLEMENT AUTHORITY OF OUR OFFICE AND UNDER THE EXCLUSIVE JURISDICTION OF THE DEPARTMENT OF LABOR. SET FORTH BELOW, BASED ON THE INFORMATION YOU SUBMITTED, IS A SUMMARY OF OUR UNDERSTANDING OF THE FACTS OF THE CASE AND THE CLAIMS MADE BY MR. QUEEN, ALONG WITH A BRIEF DISCUSSION OF CERTAIN PROVISIONS OF LAW WHICH APPEAR TO BE PERTINENT.

ON MARCH 21, 1968, MR. QUEEN SUFFERED AN ON-THE-JOB ACCIDENT WHILE EMPLOYED AS A CIVILIAN AT LOWRY AIR FORCE BASE, COLORADO. AT THE TIME OF HIS ACCIDENT, MR. QUEEN WAS APPARENTLY RECEIVING RETAINER PAY AS A MEMBER OF THE NAVY FLEET RESERVE. WHILE MR. QUEEN WAS HOSPITALIZED AS A CONSEQUENCE OF HIS INJURY, HE WAS INFORMED THAT HE HAD A CHOICE BETWEEN TAKING REGULAR SICK LEAVE OR ACCEPTING CIVILIAN DISABILITY COMPENSATION AUTHORIZED BY THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. SEC. 8101 ET SEQ. (1976), ADMINISTERED BY THE DEPARTMENT OF LABOR. MR. QUEEN WAS FURTHER ADVISED THAT, IF HE ACCEPTED CIVILIAN DISABILITY COMPENSATION, HE WOULD FORFEIT HIS FLEET RESERVE RETAINER PAY, IN VIEW OF 5 U.S.C. SEC. 8116(A) (1970) WHICH PROHIBITED SUCH CONCURRENT PAYMENT. ALTHOUGH IT IS NOT ENTIRELY CLEAR, MR. QUEEN APPARENTLY ELECTED TO FOREGO CIVILIAN DISABILITY COMPENSATION, TAKE SICK LEAVE, AND CONTINUE TO RECEIVE RETAINER PAY.

MR. QUEEN RECEIVED A LETTER FROM THE COMPTROLLER OF THE NAVY DATED OCTOBER 7, 1968, INFORMING HIM THAT HE WAS "NOT ENTITLED TO CONCURRENT PAYMENTS OF RETAINER PAY AND FEDERAL EMPLOYEES' COMPENSATION ***." THE RATIONALE FOR THIS WAS:

"*** THE COMPTROLLER GENERAL OF THE UNITED STATES IN HIS DECISION B-161571 OF JULY 7, 1967, REAFFIRMED PREVIOUS RULINGS THAT DISABILITY COMPENSATION PAYMENTS UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT MAY NOT BE MADE TO A PERSON CONCURRENTLY WITH THE PAYMENT OF RETAINER PAY ON ACCOUNT OF MILITARY SERVICE SINCE RETAINER PAY IS NOT RECEIVED IN RETURN FOR SERVICES ACTUALLY PERFORMED AND IS NOT A PENSION FOR SERVICE IN THE NAVY."

MR. QUEEN, AT SOME POINT, SUBSEQUENTLY RETURNED TO HIS DUTIES AT LOWRY AIR FORCE BASE. HOWEVER, HE EVIDENTLY CONTINUED TO RECEIVE COMPENSATION FOR CONTINUING MEDICAL TREATMENT, APPARENTLY PURSUANT TO 5 U.S.C. SEC. 8103 (1976), WHICH PROVIDES FOR THE FURNISHING OF MEDICAL CARE TO FEDERAL EMPLOYEES INJURED IN THE PERFORMANCE OF DUTY. "SEVERAL YEARS" AFTER HIS ACCIDENT, MR. QUEEN WAS INFORMED BY THE DEPARTMENT OF LABOR THAT ALL FURTHER SUCH AID WOULD BE DISCONTINUED UNLESS HE COULD FURNISH EVIDENCE OF THE NECESSITY FOR FURTHER MEDICAL TREATMENT. ON THE ADVICE OF HIS ATTORNEY, MR. QUEEN WAS EXAMINED BY A PHYSICIAN AT HIS OWN EXPENSE. HIS DOCTOR'S REPORT WAS FORWARDED TO THE DEPARTMENT OF LABOR, AND HIS COMPENSATION FOR MEDICAL TREATMENT WAS APPARENTLY CONTINUED.

DURING THE YEARS SUBSEQUENT TO HIS ACCIDENT, MR. QUEEN CONTINUED TO SUFFER ADVERSE EFFECTS, INCLUDING INTERMITTENT LOSS OF EQUILIBRIUM. WAS UNABLE TO PERFORM ALL THE DUTIES OF HIS ASSIGNMENT. IN APPROXIMATELY 1980, MR. QUEEN DISCUSSED THE POSSIBILITY OF RETIREMENT WITH HIS SUPERVISOR. HE AND HIS SUPERVISOR THEN WENT TO THE BASE PERSONNEL OFFICE SO THAT MR. QUEEN COULD "SEEK A HEARING" ON HIS CASE. ACCORDING TO MR. QUEEN'S FEBRUARY 19, 1983 LETTER, A MEETING WAS HELD AT THE BASE PERSONNEL OFFICE AT WHICH THE FOLLOWING TRANSPIRED:

"UPON DISCUSSING MY REQUEST FOR A HEARING WITH THE PARTY IN CHARGE OF SUCH SITUATIONS AS MINE AT THE PERSONNEL OFFICE I AND MY SUPERVISOR WERE ADVISED NOT TO SEEK A HEARING BUT RATHER BECAUSE OF THE FACT THAT I WAS ELIGIBLE FOR RETIREMENT TO REQUEST SUCH UNDER MEDICAL CONDITIONS AND SEEK WHAT WAS CALLED LOSS OF PAY COMPENSATION WHICH THEY SAID WOULD BE IN ADDITION TO WHATEVER MY REGULAR RETIREMENT MIGHT BE, SUCH FORMS WERE PRESENTED AND I IN GOOD FAITH TRUSTING THEIR JUDGMENT ELECTED TO FOLLOW THE INSTRUCTIONS THAT WAS ADVISED ***."

FOLLOWING MR. QUEEN'S RETIREMENT, HE SUBMITTED CERTAIN FORMS TO THE DEPARTMENT OF LABOR, APPARENTLY REQUESTING DISABILITY COMPENSATION IN ADDITION TO HIS FEDERAL CIVIL SERVICE RETIREMENT. HE WAS ADVISED BY THE DEPARTMENT OF LABOR THAT, CONTRARY TO THE ADVICE GIVEN HIM BY THE LOWRY AIR FORCE BASE PERSONNEL OFFICE, HE COULD NOT RECEIVE BOTH DISABILITY COMPENSATION AND "REGULAR RETIREMENT" CONCURRENTLY. MR. QUEEN'S APPEAL OF THIS DECISION WITH THE DEPARTMENT OF LABOR WAS DENIED.

MR. QUEEN'S INITIAL CLAIM IS THAT HE WAS WRONGLY DENIED CONCURRENT PAYMENT OF FLEET RESERVE RETAINER PAY AND CIVILIAN DISABILITY COMPENSATION IMMEDIATELY FOLLOWING HIS ACCIDENT IN 1968. OUR DECISION 47 COMP.GEN. 9 (1967) (B-161571, JULY 7, 1967), REFERRED TO IN THE OCTOBER 7, 1968 LETTER FROM THE COMPTROLLER OF THE NAVY, HELD THAT CONCURRENT PAYMENTS OF CIVILIAN DISABILITY COMPENSATION AND MILITARY RETIRED PAY WERE NOT AUTHORIZED. WHILE THAT DECISION DID NOT CONCERN RETAINER PAY SUCH AS MR. QUEEN WAS RECEIVING, WE HAD PREVIOUSLY APPLIED THE SAME RULE TO RETAINER PAY. 38 COMP.GEN. 243 (1958).HOWEVER, WE SUBSEQUENTLY MODIFIED OUR DECISION IN 38 COMP.GEN. 243, AND WE HELD THAT THEREAFTER A MEMBER OF THE FLEET RESERVE COULD RECEIVE RETAINER PAY CONCURRENTLY WITH CIVILIAN DISABILITY COMPENSATION. THEREFORE, TO THE EXTENT MR. QUEEN'S ELIGIBILITY FOR CIVILIAN DISABILITY COMPENSATION EXTENDED PAST FEBRUARY 4, 1969, THE DATE OF OUR DECISION IN 48 COMP.GEN. 515, HE MAY WELL HAVE BEEN DUE CONCURRENT PAYMENT OF HIS RETAINER PAY AND CIVILIAN DISABILITY COMPENSATION FOR THAT PERIOD OF TIME.

GIVEN THE LONG HISTORY OF MR. QUEEN'S CASE IT IS EVIDENT THAT AT SOME POINT IN THE YEARS SINCE 1968, HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE NAVY RETIRED LIST, AND HE WOULD HAVE BECOME ENTITLED TO RETIRED PAY RATHER THAN RETAINER PAY AT THAT TIME. OUR DECISION IN 48 COMP.GEN. 515, HOWEVER, ONLY MODIFIED OUR POSITION AS TO CONCURRENT RECEIPT OF DISABILITY COMPENSATION AND RETAINER PAY. IT CONTINUED TO BE OUR POSITION THAT MILITARY RETIRED PAY COULD NOT BE PAID CONCURRENTLY WITH CIVILIAN DISABILITY COMPENSATION. B-186876, JULY 23, 1976. SEE ALSO THE SIMILAR HOLDING BY THE COURT OF CLAIMS IN STEELMAN V. UNITED STATES, 318 F.2D 733 (1963). HOWEVER, IN 1974 PUBLIC LAW 93-416, SEPTEMBER 7, 1974, AMENDED 5 U.S.C. SEC. 8116(A) TO ALLOW AN INJURED FEDERAL EMPLOYEE TO RECEIVE DISABILITY COMPENSATION CONCURRENTLY WITH MILITARY RETIRED PAY. HOWEVER, SECTION 9(B) OF PUBLIC LAW 93-416, 5 U.S.C. SEC. 8116 NOTE, SPECIFICALLY PROVIDED THAT THE AMENDMENT WAS NOT TO BE RETROACTIVE. THUS, MR. QUEEN APPEARS TO HAVE BEEN INITIALLY INELIGIBLE FOR CONCURRENT PAYMENT OF CIVILIAN DISABILITY COMPENSATION AND RETAINER PAY, AND HE MAY HAVE GAINED ELIGIBILITY FOR SUCH CONCURRENT PAYMENT AS A CONSEQUENCE OF OUR DECISION IN 48 COMP.GEN. 515 (1969). BUT HE WOULD HAVE LOST ELIGIBILITY WHEN HE BEGAN RECEIVING RETIRED PAY INSTEAD OF RETAINER PAY AS A CONSEQUENCE OF HIS TRANSFER FROM THE FLEET RESERVE TO THE RETIRED LIST. LATER HE MAY HAVE REGAINED ELIGIBILITY AS A CONSEQUENCE OF PUBLIC LAW 93-416.

BECAUSE THE INFORMATION PROVIDED BY MR. QUEEN IN HIS JANUARY 19, 1983 LETTER TO YOUR OFFICE IS UNCLEAR AND INCOMPLETE, AND ESPECIALLY LACKING IN RELEVANT DATES, WE ARE UNABLE TO REACH ANY SPECIFIC CONCLUSIONS CONCERNING HIS ENTITLEMENT TO CONCURRENT PAYMENT OF MILITARY RETAINER AND RETIRED PAY AND CIVILIAN DISABILITY COMPENSATION. HOWEVER, SINCE HIS INJURY WAS INCURRED IN 1968 AND HE SUBSEQUENTLY RETURNED TO HIS JOB, IT APPEARS THAT ANY CLAIM HE MIGHT HAVE FOR RETIRED OR RETAINER PAY WITHHELD MAY BE BARRED BY 31 U.S.C. SEC. 3702(B) (PREVIOUSLY 31 U.S.C. SEC. 71A (1976)), WHICH BARS CLAIMS FROM CONSIDERATION BY US UNLESS RECEIVED IN OUR OFFICE WITHIN 6 YEARS OF THEIR ACCRUAL.

MR. QUEEN'S CLAIMS FOR CIVILIAN DISABILITY COMPENSATION AND FOR MEDICAL EXPENSES HE INCURRED WHEN HE WAS REQUIRED TO SUBMIT A DOCTOR'S REPORT TO THE DEPARTMENT OF LABOR ARISE UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. SECS. 8101 ET SEQ. (1976), AND ARE THEREFORE UNDER THE EXCLUSIVE JURISDICTION OF THE SECRETARY OF LABOR PURSUANT TO 5 U.S.C. SEC. 8145 (1976). MR. QUEEN SHOULD PURSUE THESE MATTERS WITH THE DEPARTMENT OF LABOR SINCE WE HAVE NO DIRECT ROLE IN ADJUDICATING SUCH CLAIMS. B-172722, OCTOBER 12, 1971.

MR. QUEEN FURTHER REQUESTS THAT THE SICK LEAVE HE TOOK IMMEDIATELY FOLLOWING HIS ACCIDENT IN 1968 BE CREDITED IN THE COMPUTATION OF HIS PRESENT CIVIL SERVICE RETIREMENT. HOWEVER, THE BASIS OF MR. QUEEN'S CLAIM IN THIS REGARD IS UNCLEAR SINCE HIS LETTER INDICATES THAT HE ELECTED TO TAKE SICK LEAVE IN 1968, AFTER CORRECTLY BEING INFORMED OF THE ALTERNATIVES AVAILABLE AT THAT TIME. IN ANY EVENT, CLAIMS UNDER THE CIVIL SERVICE RETIREMENT SYSTEM ARE FOR ADJUDICATION BY THE OFFICE OF PERSONNEL MANAGEMENT PURSUANT TO 5 U.S.C. SEC. 8347 (1976), AND ARE OUTSIDE THE CLAIMS SETTLEMENT AUTHORITY OF THE GENERAL ACCOUNTING OFFICE. THUS, THAT IS A MATTER HE SHOULD PURSUE WITH THE OFFICE OF PERSONNEL MANAGEMENT.

FINALLY, MR. QUEEN REQUESTS THAT HE BE PROVIDED WITH AN ATTORNEY OR AN OTHERWISE COMPETENT PERSON TO REPRESENT HIM IN THE PROSECUTION OF HIS CLAIMS. WE ARE NOT AWARE OF ANY STATUTE WHICH AUTHORIZES THE APPOINTMENT OF AN ATTORNEY, AT GOVERNMENT EXPENSE, TO REPRESENT MR. QUEEN.

WE REGRET THAT BASED ON THE RECORD PRESENTED TO US AND THE STATUTORY LIMITATIONS ON OUR AUTHORITY, WE ARE UNABLE TO BE OF FURTHER HELP TO YOUR CONSTITUENT.