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NAVY FINANCE CENTER: REFERENCE IS MADE TO YOUR LETTER OF MARCH 10. LIEUTENANT JONES WAS RETIRED FOR PHYSICAL DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR (AVIATION ACCIDENT) AND ON FEBRUARY 1. WAS TRANSFERRED FROM THE TEMPORARY TO THE PERMANENT DISABILITY RETIRED LIST PURSUANT TO 37 U.S.C. 272(E). UNDER THE ASSUMPTION THAT THE WITHHOLDING IS REQUIRED BY SECTION 212 OF THE ACT OF JUNE 30. THE FIRST QUESTION PRESENTED IN YOUR LETTER IS AS FOLLOWS: "(A) ASSUMING THAT LIEUTENANT JONES WAS RETIRED FOR DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR. WOULD SUCH DISABILITY BE DEEMED TO HAVE BEEN INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1(A).

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B-121777, MAY 4, 1955

PRECIS-UNAVAILABLE

DIRECTOR, SPECIAL PAYMENTS DIVISION U.S. NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1955, XR:RSC:JC L16 4/1, FORWARDED HERE BY LETTER OF MARCH 30, 1955 (JAG:II:2:WEN:MK), FROM THE JUDGE ADVOCATE GENERAL OF THE NAVY, REQUESTING A DECISION ON TWO QUESTIONS CONCERNING THE ENTITLEMENT OF LIEUTENANT RALPH HOWELL JONES, USNR, RETIRED, TO RECEIVE RETIRED PAY UNDER THE CIRCUMSTANCES HEREINAFTER STATED.

ON MARCH 1, 1952, LIEUTENANT JONES WAS RETIRED FOR PHYSICAL DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR (AVIATION ACCIDENT) AND ON FEBRUARY 1, 1954, WAS TRANSFERRED FROM THE TEMPORARY TO THE PERMANENT DISABILITY RETIRED LIST PURSUANT TO 37 U.S.C. 272(E). SINCE AUGUST 12, 1954, LIEUTENANT JONES HAS BEEN EMPLOYED AS A SCHOOL TEACHER AT THE U.S. NAVAL BASE SCHOOL, GUANTANAMO BAY, CUBA, AT A SALARY OF $4,205 PER ANNUM - SUCH SALARY BEING PAID FROM NONAPPROPRIATED FUNDS. IT FURTHER APPEARS THAT LIEUTENANT JONES' RETIRED PAY AMOUNTS TO $272.32 A MONTH AND THAT SUCH PAY HAS BEEN WITHHELD SINCE NOVEMBER 1, 1954, UNDER THE ASSUMPTION THAT THE WITHHOLDING IS REQUIRED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A.

THE FIRST QUESTION PRESENTED IN YOUR LETTER IS AS FOLLOWS:

"(A) ASSUMING THAT LIEUTENANT JONES WAS RETIRED FOR DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR, WOULD SUCH DISABILITY BE DEEMED TO HAVE BEEN INCURRED IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1(A), PART I, PARAGRAPH I AS INCLUDED BY REFERENCE IN 5 U.S.C. 59A?"

IN DECISION OF TODAY TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, WE CONCLUDED THAT COMMISSIONED OFFICERS RETIRED FOR PHYSICAL DISABILITY CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED DURING THE PERIOD OF THE KOREAN CONFLICT ARE COVERED BY THE EXCEPTION CONTAINED IN SECTION 212(B) OF THE ACT OF JUNE 30, 1932, AND THAT THE $3,000 DUAL COMPENSATION PROHIBITION CONTAINED IN SECTION 212 IS NOT APPLICABLE IN THEIR CASES. SINCE THAT DECISION APPEARS TO BE CONTROLLING WITH RESPECT TO THE DISPOSITION OF LIEUTENANT JONES' CASE, A REPLY TO YOUR SECOND QUESTION IS NOT DEEMED NECESSARY.

A COPY OF THE DECISION OF TODAY TO THE CHAIRMAN, CIVIL SERVICE COMMISSION, IS ENCLOSED.

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