B-160453, AUGUST 14, 1968, 48 COMP. GEN. 73

B-160453, AUGUST 14, 1968, 48 COMP. GEN. 73

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - PROGRAMS AT EDUCATIONAL INSTITUTIONS - EMPLOYMENT OF RETIRED MEMBERS - COMPENSATION ENTITLEMENT THE WAIVER OF RETIRED PAY UNDER 38 U.S.C. 3105 BY A RETIRED OFFICER IN FAVOR OF VETERANS ADMINISTRATION DISABILITY COMPENSATION NOT OPERATING TO REDUCE HIS LEGALLY AUTHORIZED RETIRED PAY, THE ADDITIONAL AMOUNT THE RETIRED OFFICER IS ENTITLED TO FOR PERFORMING INSTRUCTIONAL AND ADMINISTRATIVE DUTIES IN A PRIVATE HIGH SCHOOL THAT MAINTAINS A JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM PURSUANT TO 10 U.S.C. 2031 (D), IS THE DIFFERENCE BETWEEN THE RETIRED PAY HE WOULD BE ENTITLED TO BUT FOR THE WAIVER AND THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY.

TO LIEUTENANT COLONEL S. A. WEIMER, JR., UNITED STATES MARINE CORPS, AUGUST 14, 1968:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1968, REQUESTING A DECISION AS TO THE PROPER RATE OF RETIRED PAY TO BE USED FOR LIEUTENANT COLONEL BYRON L. MAGNESS, 050330, USMC, RETIRED, IN COMPUTING THE DIFFERENCE BETWEEN THE RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY. YOUR REQUEST FOR DECISION HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1012 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT COLONEL MAGNESS IS EMPLOYED UNDER THE PROVISIONS OF 10 U.S.C. 2031 (D) BY A PRIVATE HIGH SCHOOL WHICH MAINTAINS A JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM; THAT HE HAS EXECUTED A WAIVER UNDER AUTHORITY OF 38 U.S.C. 3105 OF "SO MUCH OF HIS RETIRED OR RETIREMENT PAY AS IS EQUAL IN AMOUNT TO SUCH PENSION OR COMPENSATION" AS HE IS IN RECEIPT OF FROM THE VETERANS ADMINISTRATION; AND THAT HE WAS WAIVED $147 PER MONTH EFFECTIVE MAY 1, 1968, OF HIS MONTHLY GROSS RETIRED PAY OF $641.55 IN FAVOR OF VETERANS ADMINISTRATION COMPENSATION.

SUBSECTION 2031 (C) OF TITLE 10, U.S. CODE, PROVIDES THAT THE SECRETARY OF A MILITARY DEPARTMENT MAY DETAIL MEMBERS OF THE UNIFORMED SERVICES ON ACTIVE DUTY TO BE ADMINISTRATORS OR INSTRUCTORS AT QUALIFIED PUBLIC AND PRIVATE SECONDARY EDUCATIONAL INSTITUTIONS MAINTAINING JUNIOR RESERVE OFFICERS' TRAINING CORPS UNITS. SUBSECTION 2031 (D) PROVIDES THAT INSTEAD OF, OR IN ADDITION TO, MILITARY PERSONNEL ON ACTIVE DUTY, THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY AUTHORIZE THE EMPLOYMENT OF RETIRED OFFICERS AS ADMINISTRATORS AND INSTRUCTORS IN THE PROGRAM, BUT THAT RETIRED MEMBERS SO EMPLOYED ARE ENTITLED TO RECEIVE THEIR RETIRED PAY AND AN ADDITIONAL AMOUNT OF NOT MORE THAN THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY. THAT SUBSECTION FURTHER PROVIDES THAT ONE-HALF OF THAT ADDITIONAL AMOUNT SHALL BE PAID TO THE INSTITUTION CONCERNED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FROM FUNDS APPROPRIATED FOR THAT PURPOSE.

IN DECISION OF JUNE 6, 1957, 36 COMP. GEN. 799, WE HELD THAT A RETIRED COMMISSIONED OFFICER, WHO EXECUTED A WAIVER OF RETIRED PAY IN ORDER TO RECEIVE DISABILITY COMPENSATION FROM THE VETERANS ADMINISTRATION, HAD IN EFFECT REDUCED HIS LEGALLY AUTHORIZED RETIRED PAY BY THE AMOUNT OF DISABILITY COMPENSATION WITHIN THE MEANING OF A DUAL COMPENSATION STATUTE LIMITING THE AMOUNT OF RETIRED PAY WHICH AN EMPLOYEE OF THE UNITED STATES COULD RECEIVE IN ADDITION TO HIS SALARY AS A CIVILIAN EMPLOYEE. THERE WAS NO BAR TO THE RECEIPT OF VETERANS ADMINISTRATION DISABILITY COMPENSATION AND SALARY AS A CIVILIAN EMPLOYEE, BUT THE SIMULTANEOUS RECEIPT OF RETIRED PAY AND DISABILITY COMPENSATION WAS PROHIBITED EXCEPT TO THE EXTENT THAT SO MUCH OF HIS RETIRED PAY AS WAS EQUAL TO THE COMPENSATION COULD BE WAIVED. WE SAID THAT FOR THE PURPOSES OF THAT STATUTE THE WAIVER OF RETIRED PAY IN FAVOR OF COMPENSATION "OPERATES TO REDUCE THE LEGALLY AUTHORIZED RETIRED PAY BY THE AMOUNT OF THE WAIVED RETIRED PAY.'

YOU STATE THAT DOUBT IN THIS CASE ARISES AS THE RESULT OF OUR DECISION OF AUGUST 4, 1967, 47 COMP. GEN. 87, WHICH YOU SAY SUGGESTS THAT SUBSECTION 2031 (D) SHOULD BE INTERPRETED TO MEAN THAT A RETIRED MEMBER IS IN RECEIPT OF THE FULL AMOUNT OF HIS RETIRED PAY EVEN THOUGH ALL OR A PORTION OF IT IS WAIVED.

IN THE CITED 1967 DECISION WE CONSIDERED THE CASE OF A RETIRED MEMBER OF THE UNIFORMED SERVICES PERFORMING INSTRUCTIONAL AND TRATI ADMINISTRATIVE DUTIES PURSUANT TO THE PROVISIONS OF 10 U.S.C. 2031 (D) IN CONNECTION WITH THE JUNIOR ROTC PROGRAM WHO WAIVED HIS MILITARY RETIRED PAY IN ORDER TO HAVE HIS MILITARY SERVICE ADDED TO HIS FEDERAL CIVILIAN SERVICE TO OBTAIN A GREATER CIVIL SERVICE RETIREMENT ANNUITY. IT WAS OUR VIEW THAT IT WAS THE INTENT OF CONGRESS THAT SUCH STATUTORY PROVISIONS SHOULD APPLY TO "RETIRED MEMBERS" AND "THEIR RETIRED PAY" EVEN THOUGH THE RETIRED MEMBER WAS NOT ACTUALLY IN RECEIPT OF MILITARY RETIRED PAY, SINCE THEY WERE "RETIRED MEMBERS" IN THE SENSE THAT THEY EARNED A RIGHT TO RETIRED PAY BY VIRTUE OF THEIR MILITARY SERVICE AND WERE NOT BARRED FROM PARTICIPATION IN THE JUNIOR ROTC PROGRAM, AND THEREFORE THAT THE AMOUNT OF RETIRED PAY THEY WOULD BE RECEIVING BUT FOR THE WAIVER CAN BE VIEWED AS "THEIR RETIRED PAY" FOR THE PURPOSES OF THAT STATUTE. WE CONCLUDED THAT THE RETIRED MEMBER WAS ENTITLED TO THE DIFFERENCE BETWEEN THE MILITARY RETIRED PAY TO WHICH HE WOULD BE ENTITLED BUT FOR THE WAIVER AND THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY.

WHILE THERE IS NO STATUTORY BAR AS SUCH TO THE SIMULTANEOUS RECEIPT OF DISABILITY COMPENSATION AND COMPENSATION FROM THE HIGH SCHOOL FOR THE PERFORMANCE OF ROTC INSTRUCTIONAL AND ADMINISTRATIVE DUTIES, THE EMPLOYMENT OF RETIRED OFFICERS BY HIGH SCHOOLS PARTICIPATING IN THE JUNIOR ROTC PROGRAM AS EXPRESSLY AUTHORIZED BY LAW IS SUBJECT TO SPECIFIC LIMITATIONS ESTABLISHED BY THE CONGRESS. IN THE ABSENCE OF SOME STATUTORY PROVISION CLEARLY INDICATING A DIFFERENT INTENT, WE THINK THAT THE ABOVE REASONING IS EQUALLY APPLICABLE UNDER THE PROVISIONS OF 10 U.S.C. 2031 (D) TO OFFICERS WHO HAVE WAIVED THEIR RETIRED PAY IN FAVOR OF DISABILITY COMPENSATION. HENCE, IT IS OUR VIEW THAT FOR THE PURPOSES OF THAT STATUTE THE RETIRED MEMBER IN THIS CASE SHOULD BE CONSIDERED TO BE RECEIVING "RETIRED PAY" IN THE AMOUNT OF $641.55 A MONTH FOR THE PURPOSE OF DETERMINING THE AMOUNT OF COMPENSATION HE IS ENTITLED TO RECEIVE FROM THE HIGH SCHOOL FOR HIS INSTRUCTIONAL ADMINISTRATIVE DUTIES UNDER THE JUNIOR ROTC PROGRAM.