B-136321, JUL. 9, 1958

B-136321, JUL. 9, 1958

TO LIEUTENANT COLONEL N. P. HANNA, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT OF MAY 27, 1958, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, FORWARDED YOUR LETTER OF APRIL 23, 1958, SUBMITTING FOR ADVANCE DECISION A VOUCHER STATED IN FAVOR OF SERGEANT CHARLIE L. WILSON, RA 7 004 316, COVERING RETIRED PAY AT THE RATE OF $109.20 PER MONTH FOR THE PERIOD NOVEMBER 1, 1955, THROUGH MARCH 31, 1958. THE REQUEST WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AND ASSIGNED SUBMISSION NO. 347.

IT APPEARS FROM THE INFORMATION FURNISHED THAT SERGEANT WILSON WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST MARCH 31, 1954, UNDER THE PROVISIONS OF SECTIONS 402 AND 409 OF PUBLIC LAW 351, 81ST CONGRESS (NOW CODIFIED INTO SECTIONS 1202 AND 1372, TITLE 10 OF THE U.S. CODE). FURTHER APPEARS THAT HE WAS PAID RETIRED PAY FOR THE PERIOD APRIL 1, 1954, THROUGH OCTOBER 31, 1955, BUT THAT NO FURTHER PAYMENTS OF RETIRED PAY HAVE BEEN MADE TO HIM DUE TO RECEIPT BY THE MEMBER OF FEDERAL EMPLOYEES' COMPENSATION, UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, AS AMENDED, EFFECTIVE NOVEMBER 1, 1955.

A CIVILIAN GOVERNMENT EMPLOYEE'S RIGHT TO DISABILITY COMPENSATION ON ACCOUNT OF AN INJURY SUFFERED IN LINE OF DUTY, TOGETHER WITH OTHER PAYMENTS FROM THE UNITED STATES, IS LIMITED BY THE PROHIBITION IN SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, 5 U.S.C. 757 (A), AS FOLLOWS:

"AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751 -756, 757-791, AND 793 OF THIS TITLE, OR, IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS, UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE SHALL NOT RECEIVE FROM THE UNITED STATES ANY SALARY, PAY, OR REMUNERATION WHATSOEVER EXCEPT IN RETURN FOR SERVICES ACTUALLY PERFORMED, AND EXCEPT PENSIONS FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES. * * *"

IT CONSISTENTLY HAS BEEN HELD BY OUR OFFICE THAT DISABILITY COMPENSATION PAYMENTS UNDER THE STATUTE MAY NOT BE MADE TO A PERSON CONCURRENTLY WITH THE PAYMENT OF "RETIRED PAY" ON ACCOUNT OF MILITARY SERVICE, RETIRED PAY IN SUCH CASES NOT BEING PAID "FOR SERVICES ACTUALLY PERFORMED.' ALSO, IT HAS BEEN HELD THAT "RETIRED PAY" IS NOT PENSION FOR SERVICE IN THE ARMY OR NAVY OF THE UNITED STATES SO AS TO BRING SUCH PAY WITHIN THE EXCEPTIONS TO THE PROHIBITION STATED IN SECTION 7 (A) OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, THEREBY AUTHORIZING DUAL PAYMENTS OF DISABILITY COMPENSATION AND RETIRED PAY TO THE SAME PERSON FOR THE SAME PERIOD OF TIME. IN THIS CONNECTION, SEE 18 COMP. GEN. 747, AND THE DECISIONS CITED THEREIN. COMPARE 35 COMP. GEN. 646. OUR OFFICE DECISION DATED MARCH 25, 1939 (18 COMP. GEN. 747), WAS BEFORE THE CONGRESS WHEN IT ENACTED SECTION 605 (A) OF THE ACT OF JULY 1, 1944, 58 STAT. 712 (RENUMBERED 705 (A) BY THE ACT OF AUGUST 13, 1946, 60 STAT. 1049), AND SECTION 201 OF THE ACT OF OCTOBER 14, 1949, 63 STAT. 861. THE ACT OF OCTOBER 14, 1949, MADE A GENERAL REVISION OF THE COMPENSATION STATUTE. NO CHANGE, HOWEVER, HAS BEEN MADE IN SECTION 7 (A) FOR THE PURPOSE OF AUTHORIZING CONCURRENT PAYMENTS OF DISABILITY COMPENSATION AND RETIRED PAY IN SITUATIONS SUCH AS HERE INVOLVED.

THE CLAIM HERE MAY BE DISTINGUISHED FROM THAT CONSIDERED IN MULHOLLAND V. UNITED STATES, C.CLS. NO. 172-55, DECIDED JULY 12, 1957, TO WHICH IT APPEARS THE BUREAU OF EMPLOYEES' COMPENSATION HAD REFERENCE IN ITS LETTER DATED MARCH 17, 1958. THE MULHOLLAND CASE INVOLVED "RETAINER PAY" AND A STATUS IN THE FLEET RESERVE WHEREAS SERGEANT WILSON'S CLAIM IS FOR "RETIRED PAY" ON ACCOUNT OF MILITARY SERVICE.

IN THE CIRCUMSTANCES NO RIGHT TO RETIRED PAY ACCRUED TO SERGEANT WILSON DURING THE PERIOD NOVEMBER 1, 1955, TO MARCH 31, 1958, AND THE SUBMITTED VOUCHER WILL BE RETAINED HERE.