Skip to Highlights
Highlights

RETIRED: REFERENCE IS MADE TO YOUR LETTER OF MAY 27. SAY THAT INASMUCH AS THE UNITED STATES SUPREME COURT STATED IN EFFECT THAT RETIRED RESERVE OFFICERS WHO ARE EMPLOYEES OF THE GOVERNMENT ARE NOT BOUND BY ANY DUAL COMPENSATION RESTRICTIONS. YOU ARE GREATLY DISAPPOINTED ON THE DISALLOWANCE OF YOUR CLAIM. WHO WAS HELD OR ASSUMED TO BE A MEMBER OF THE OFFICERS' RESERVE CORPS. WAS ENTITLED TO CONCURRENT PAYMENTS OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29. THE DEFENDANT'S PETITION FOR A WRIT OF CERTIORARI IN THAT CASE WAS DENIED BY THE SUPREME COURT OF THE UNITED STATES ON OCTOBER 10. PAYMENT WILL BE APPROVED ONLY IF THE CLAIMANT WAS A DE JURE MEMBER OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD DURING THE PERIOD INVOLVED.

View Decision

B-128161, AUG. 10, 1956

TO FIRST LIEUTENANT HOWARD J. HESS, AUS, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1956, FURTHER CONCERNING YOUR CLAIM FOR RETIRED PAY AS FIRST LIEUTENANT, ARMY OF THE UNITED STATES, FROM AUGUST 6, 1945, TO AUGUST 3, 1955, BASED ON THE OPINION IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792.

YOU REFER TO OUR SETTLEMENT DATED MAY 17, 1956, AND SAY THAT INASMUCH AS THE UNITED STATES SUPREME COURT STATED IN EFFECT THAT RETIRED RESERVE OFFICERS WHO ARE EMPLOYEES OF THE GOVERNMENT ARE NOT BOUND BY ANY DUAL COMPENSATION RESTRICTIONS, YOU ARE GREATLY DISAPPOINTED ON THE DISALLOWANCE OF YOUR CLAIM. YOU INQUIRE AS TO ANY FURTHER ACTION WHICH MAY BE TAKEN BY YOU.

IN ITS OPINION OF NOVEMBER 2, 1954, IN THE CASE OF TANNER V. UNITED STATES, 129 C.CLS. 792, THE COURT OF CLAIMS CONCLUDED THAT THE PLAINTIFF, WHO WAS HELD OR ASSUMED TO BE A MEMBER OF THE OFFICERS' RESERVE CORPS, WAS ENTITLED TO CONCURRENT PAYMENTS OF RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1087, AND FEDERAL CIVILIAN COMPENSATION, WITHOUT REGARD TO THE DUAL COMPENSATION RESTRICTIONS OF SECTION 21 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, 5 U.S.C. 59A, BECAUSE OF THE PROVISIONS OF SECTION 1 (B) OF THE ACT OF JULY 1, 1947, 61 STAT. 239, WHICH, AS AMENDED BY SECTION 804 OF THE ACT OF JULY 9, 1952, 66 STAT. 506, EFFECTIVE JANUARY 1, 1953, PERMIT A MEMBER OF A RESERVE COMPONENT TO BE EMPLOYED IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE AND TO RECEIVE THE PAY INCIDENT TO SUCH EMPLOYMENT "IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE LAWS RELATING TO THE RESERVE COMPONENTS OF THE ARMED FORCES.' THE DEFENDANT'S PETITION FOR A WRIT OF CERTIORARI IN THAT CASE WAS DENIED BY THE SUPREME COURT OF THE UNITED STATES ON OCTOBER 10, 1955.

WE ACCEPT AND FOLLOW THE COURT'S OPINION IN THE TANNER CASE AS A PRECEDENT FOR RETROACTIVE AND PROSPECTIVE PAYMENT OF MILITARY RETIRED PAY (IN ADDITION TO CIVILIAN COMPENSATION) IN THOSE CASES WHERE THE CLAIMANT, BEING OTHERWISE ENTITLED, HAS BEEN, OR MAY BE, GRANTED RETIRED PAY UNDER TITLE III OF THE ACT OF JUNE 29, 1948, AND HAS BEEN A DE JURE MEMBER OF A RESERVE COMPONENT OF THE ARMED FORCES DURING THE PERIOD COVERED BY THE PAYMENT, PROVIDED THAT FOR ANY PERIOD PRIOR TO JANUARY 1, 1953, PAYMENT WILL BE APPROVED ONLY IF THE CLAIMANT WAS A DE JURE MEMBER OF THE OFFICERS' RESERVE CORPS OR THE NATIONAL GUARD DURING THE PERIOD INVOLVED, SINCE MEMBERS OF OTHER RESERVE COMPONENTS WERE NOT BROUGHT WITHIN THE PROVISIONS OF THE 1947 ACT UNTIL THAT DATE. 35 COMP. GEN. 497.

IT APPEARS THAT YOU WERE GRANTED RETIREMENT PAY FOR PHYSICAL DISABILITY, EFFECTIVE FROM AUGUST 6, 1945, AS A FIRST LIEUTENANT, ARMY OF THE UNITED STATES, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, BUT THAT YOUR DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES AND DID NOT RESULT FROM AN INSTRUMENTALITY OF WAR. THUS YOUR CASE WAS NOT ONE WHICH, UNDER THE PROVISIONS OF SECTION 212 (B) OF THE ECONOMY ACT OF JUNE 30, 1932, WAS EXEMPTED FROM THE RESTRICTIONS OF SECTION 212 (A) OF THAT ACT. SINCE YOU WERE NOT AT THE TIME OF YOUR RETIREMENT AND NEVER HAD BEEN A MEMBER OF ANY OFFICERS' RESERVE COMPONENT, THE HOLDING IN THE TANNER CASE IS NOT FOR APPLICATION IN YOUR CASE.

THE PRECISE QUESTION INVOLVED IN YOUR CASE APPEARS TO BE NOW BEFORE THE COURT OF CLAIMS IN THE PENDING CASE OF LEONARD V. UNITED STATES, C.CLS. NO. 182-55. YOU MAY, IF YOU WISH, BRING A SIMILAR SUIT IN THE COURT OF CLAIMS OR YOU MAY AWAIT THE OUTCOME OF THE LEONARD CASE BEFORE TAKING SUCH ACTION, BEARING IN MIND THAT THE PERIOD OF LIMITATION FOR FILING SUITS IN THE COURT OF CLAIMS IS SIX YEARS (28 U.S.C. 2501). WE ANTICIPATE TAKING NO ACTION ON CLAIMS OF THIS TYPE, HOWEVER, UNTIL THE LEONARD CASE, OR A SIMILAR CASE, HAS BEEN FINALLY DECIDED, AND, IF DECIDED AGAINST THE GOVERNMENT, UNTIL A DETERMINATION IS MADE HERE AS TO THE EXTENT SUCH DECISION WILL BE FOLLOWED IN SETTLING CLAIMS AND ADJUSTING ACCOUNTS.

GAO Contacts