B-83345, MAY 26, 1949, 28 COMP. GEN. 675

B-83345, MAY 26, 1949, 28 COMP. GEN. 675

PAY - RETIRED - WAIVER WHILE A MARINE CORPS RESERVE OFFICER, RETIRED FOR DISABILITY INCURRED IN COMBAT WITH THE ENEMY AND RECEIVING RETIRED PAY AS A RESULT THEREOF, MAY NOT WAIVE HIS RETIRED PAY FOR THE PERIOD OF HIS SERVICE IN PUBLIC ELECTED OFFICE IN THE ABSENCE OF A STATUTE SO PROVIDING, NO CHECKS REPRESENTING RETIRED PAY, THE RIGHT TO WHICH CONTINUES, NEED BE DRAWN UNTIL REQUESTED BY THE OFFICER AND THE FORWARDING OF CHECKS MAY BE RESUMED WHENEVER HE SO DESIRES.

ASSISTANT COMPTROLLER GENERAL YATES TO MAJ. C. A. PHILLIPS, U.S. MARINE CORPS, MAY 26, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 31, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST DECISION ON CERTAIN QUESTIONS RELATIVE TO THE RIGHT OF HONORABLE PAUL H. DOUGLAS, UNITED STATES SENATE, TO WAIVE RETIRED PAY DUE HIM AS A RETIRED OFFICER OF THE UNITED STATES MARINE CORPS RESERVE.

IT APPEARS THAT SENATOR DOUGLAS WAS TRANSFERRED TO THE RETIRED LIST, WITH RETIRED PAY, ON NOVEMBER 1, 1946, FOR PHYSICAL DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES. HE WAS ELECTED TO THE UNITED STATES SENATE AND ENTERED ON SUCH OFFICE ON JANUARY 3, 1949. IT WOULD APPEAR THAT HE IS LEGALLY ENTITLED TO CONTINUE TO RECEIVE HIS RETIRED PAY SINCE UNDER THE CIRCUMSTANCES NEITHER THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, RELATING TO DUAL EMPLOYMENT, NOR SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, RELATING TO DUAL COMPENSATION, WOULD BE APPLICABLE. HOWEVER, HE HAS DECLINED TO ACCEPT HIS RETIRED PAY SINCE JANUARY 3, 1949, IN VIEW OF WHICH YOU PRESENT THE FOLLOWING QUESTIONS FOR DECISION:

(A) MAY LIEUTENANT COLONEL DOUGLAS WAIVE HIS STATUTORY RIGHT TO RECEIVE HIS RETIREMENT PAY DURING HIS TERM OF OFFICE AS UNITED STATES SENATOR?

(B) IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE, DOES HIS LETTER OF DECEMBER 28, 1948 ( ENCLOSURE (C) CONSTITUTE A VALID WAIVER FOR THIS PURPOSE?

(C) IF THE ANSWER TO (A) IS IN THE NEGATIVE, WHAT DISPOSITION SHOULD BE MADE OF THE RETIREMENT PAY ACCOUNT OF LIEUTENANT COLONEL DOUGLAS DURING HIS TERM OF OFFICE AS SENATOR IN VIEW OF HIS REFUSAL TO ACCEPT SUCH RETIREMENT PAY?

(D) IF THE ANSWER TO (A) IS IN THE AFFIRMATIVE, WILL LIEUTENANT COLONEL DOUGLAS AGAIN BECOME ENTITLED TO RECEIVE RETIREMENT PAY AS RETIRED OFFICER UPON HIS LEAVING THE SENATE OF THE UNITED STATES OR AT ANY OTHER TIME SHOULD HE ELECT TO CANCEL THE WAIVER OF RETIREMENT PAY?

IN THE ABSENCE OF A STATUTE SO PROVIDING RETIRED PAY MAY NOT BE WAIVED. SEE DECISION OF APRIL 15, 1949, B-81545, AND THE DECISIONS CITED THEREIN. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE NEGATIVE THUS MAKING AN ANSWER TO QUESTION (B) UNNECESSARY. IN AN EFFORT TO ACCOMPLISH THE PURPOSE OF A WAIVER, HOWEVER, SENATOR DOUGLAS MAY DECLINE TO CLAIM RETIRED PAY, OR CONTINUOUSLY REFUSE TO ACCEPT RETIRED PAY, FOR THE PERIOD OF HIS SERVICE IN THE UNITED STATES SENATE.

WITH RESPECT TO QUESTION (C) YOU ARE ADVISED THAT SINCE SENATOR DOUGLAS HAS REQUESTED THAT PAYMENTS OF RETIRED PAY TO HIM BE DISCONTINUED AS OF JANUARY 3, 1949, NO FURTHER CHECKS REPRESENTING RETIRED PAY SHOULD BE DRAWN IN HIS FAVOR UNTIL SO REQUESTED BY HIM. REGARDLESS OF THE LEGAL EFFECT OF THE ATTEMPTED WAIVER IT IS SUGGESTED THAT AN APPROPRIATE NOTATION BE MADE ON THE RETIREMENT PAY ACCOUNT OF THE INDIVIDUAL THAT SUCH PAY HAS BEEN WAIVED.

WHILE YOU REQUEST DECISION ON QUESTION (D) ONLY IN THE EVENT QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE IT MAY BE STATED THAT SINCE SENATOR DOUGLAS LEGALLY MAY NOT WAIVE HIS RETIRED PAY HIS RIGHT THERETO CONTINUES AND, IN THE ABSENCE OF SOME OBJECTION NOT NOW PRESENT, IT WOULD APPEAR THAT THE FORWARDING TO HIM OF CHECKS IN PAYMENT OF HIS RETIRED PAY MAY BE RESUMED AT SUCH TIME AS HE MAY SO DESIRE.

SENATOR DOUGLAS' ORIGINAL LETTER OF DECEMBER 28, 1948, ADDRESSED TO THE COMMANDANT OF THE MARINE CORPS, WHICH YOU FORWARDED WITH YOUR LETTER, IS RETURNED HEREWITH.