B-122353, DEC. 16, 1957

B-122353, DEC. 16, 1957

TO MR. GEORGE V. TAWES:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1957, IN EFFECT REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AS A LIEUTENANT COMMANDER, UNITED STATES NAVAL RESERVE, BEGINNING JANUARY 1, 1953.

YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF MAY 21, 1954, ON THE BASIS THAT SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, BARRED THE ALLOWANCE OF RETIRED PAY TO YOU SINCE YOU WERE RECEIVING DISABILITY COMPENSATION PAYMENTS IN THE AMOUNT OF $404.66 PER MONTH UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF 1916, 39 STAT. 742, AS AMENDED, 5 U.S.C. 751-801.

IN OUR DECISION OF APRIL 26, 1955, B-122353, ADDRESSED TO YOU, WE EXPLAINED THAT THE BASIS FOR THE DISALLOWANCE OF YOUR CLAIM AS STATED IN THE ABOVE SETTLEMENT WAS ERRONEOUS, BUT THAT YOUR CLAIM WAS NOT FOR ALLOWANCE SINCE ITS PAYMENT WAS FORBIDDEN BY SECTION 7 OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF 1916, AS AMENDED, 5 U.S.C. 757. ALSO, IT WAS EXPLAINED IN THE DECISION THAT THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, HAD NO BEARING ON YOUR CLAIM SINCE THE TANNER DECISION WAS CONCERNED WITH THE OPERATION, OR LACK OF OPERATION, OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932. IN OUR DECISION OF APRIL 19, 1956, B- 122353, ALSO ADDRESSED TO YOU, IT WAS AGAIN EXPLAINED THAT SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, AND THE TANNER DECISION HAD NO APPLICATION TO YOUR CASE.

IN YOUR PRESENT LETTER YOU REFER TO A "RECENT DECISION" BY OUR OFFICE THAT A RETIRED RESERVE OFFICER MAY RECEIVE "HIS RETIRED PAY AND COMPENSATION AT THE SAME TIME.' WE ARE UNABLE TO IDENTIFY THE DECISION TO WHICH YOU REFER. WE HAVE NOT RENDERED ANY DECISION HOLDING THAT FEDERAL EMPLOYEE DISABILITY COMPENSATION MAY BE RECEIVED CONCURRENTLY WITH TITLE III RETIRED PAY. WE DID HOLD ON JUNE 11, 1957, 36 COMP. GEN. 808, THAT THE PRINCIPLE OF THE TANNER CASE, THAT IS, EXEMPTION FROM THE OPERATION OF SECTION 212 OF THE ECONOMY ACT OF RESERVISTS HOLDING CIVILIAN POSITIONS WITH THE GOVERNMENT AND ALSO RECEIVING RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WOULD BE EXTENDED TO RESERVISTS RECEIVING RETIRED PAY UNDER OTHER PROVISIONS OF LAW. BUT, AS ALREADY EXPLAINED, SECTION 212 HAS NO APPLICATION TO YOUR CASE AND DECISIONS BY THE COURT OF CLAIMS OR BY US ON THE APPLICATION OF THAT SECTION DO NOT PROVIDE A PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

YOUR LETTER PRESENTS NOTHING MATERIAL THAT WAS NOT BEFORE US WHEN THE DECISIONS OF APRIL 26, 1955, AND APRIL 19, 1956, WERE RENDERED. ACCORDINGLY, THOSE DECISIONS ARE AFFIRMED.