B-163501, NOV 16, 1971, 51 COMP GEN 298

B-163501, NOV 16, 1971, 51 COMP GEN 298

PAY - SERVICE CREDITS - DUAL CREDIT - CONCURRENT PAYMENTS OF RETIRED PAY A RESERVE OFFICER WITH MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NATIONAL GUARD AND THE ARMY RESERVE DISCHARGED TO ACCEPT A COMMISSION WITH THE PUBLIC HEALTH SERVICE (PHS), WHO WHEN 60 YEARS OF AGE WAS GRANTED MILITARY RETIRED PAY CONCURRENTLY WITH ACTIVE DUTY PAY AND ALLOWANCES FROM THE PHS, UPON MANDATORY RETIREMENT FROM THE PHS UNDER 42 U.S.C. 212(A)(1) WAS NOT ENTITLED TO CREDIT FOR HIS RESERVE DUTY IN THE COMPUTATION OF HIS PHS RETIRED PAY IN THE ABSENCE OF A STATUTE AUTHORIZING DUAL BENEFITS FOR THE SAME SERVICE. SINCE THE OFFICER IS ENTITLED TO A GREATER BENEFIT IF HIS RESERVE DUTY IS USED TO INCREASE HIS PHS RETIRED PAY, HE IS CONSIDERED TO HAVE SURRENDERED HIS ARMY RESERVE RETIRED STATUS AND HE IS INDEBTED FOR THE ARMY RETIRED PAY RECEIVED CONCURRENTLY WITH THE PHS RETIRED PAY, NOTWITHSTANDING THE PAYMENTS WERE MADE IN ERROR AND RECEIVED IN GOOD FAITH. PUBLIC HEALTH SERVICE - COMMISSIONED PERSONNEL - RETIRED PAY - ANNUITY ELECTION FOR DEPENDENTS - VALIDITY THE ELECTION BY AN ARMY RESERVE OFFICER RETIRED FOR AGE UNDER 10 U.S.C. 1331 NOT TO PARTICIPATE IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1441-1446, DOES NOT AFFECT THE VALIDITY OF HIS ELECTION TO COME UNDER THE PLAN IN CONNECTION WITH HIS RETIREMENT FROM THE PUBLIC HEALTH SERVICE (PHS), WHERE HE SERVED AS A COMMISSIONED OFFICER ON ACTIVE DUTY FOLLOWING DISCHARGE FROM THE ARMY RESERVE. SINCE THE OFFICER HAD IN EFFECT A VALID ELECTION TO PARTICIPATE IN THE PLAN AT THE TIME OF HIS RETIREMENT FROM THE PHS, AND THERE WAS AN IMPLIED SURRENDER BY HIM OF HIS MILITARY RETIRED PAY AT THAT TIME, THE DEDUCTIONS MADE FROM HIS PHS RETIRED PAY BASED SOLELY ON THAT RETIRED PAY WERE PROPER.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, NOVEMBER 16, 1971:

FURTHER REFERENCE IS MADE TO LETTER DATED AUGUST 17, 1971, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT REQUESTING A DECISION ON VARIOUS QUESTIONS ARISING OUT OF THE CONCURRENT RECEIPT BY DR. PAUL S. PARRINO OF RETIRED PAY AS A RESERVE OFFICER OF THE ARMY AND RETIRED PAY AS A PUBLIC HEALTH SERVICE COMMISSIONED OFFICER.

THE RECORDS SHOW THAT AFTER MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NATIONAL GUARD AND THE UNITED STATES ARMY RESERVE, DR. PARRINO WAS DISCHARGED JULY 31, 1957, TO ACCEPT A COMMISSION IN THE UNITED STATES PUBLIC HEALTH SERVICE. IN 1960 HE WROTE TO THE ADJUTANT GENERAL OF THE ARMY CONCERNING HIS OPTIONS ON RETIREMENT AS A FORMER RESERVE OFFICER OF THE ARMY AND ON RETIREMENT FROM THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS.

ON BEING ADVISED BY THE ADJUTANT GENERAL THAT HE WAS NOT AWARE OF ANY PROVISION OF LAW PRECLUDING CONCURRENT RECEIPT OF RETIRED PAY FROM BOTH SERVICES AN OPINION WAS REQUESTED FROM THE OFFICE OF THE GENERAL COUNSEL, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, CONCERNING THE LEGALITY OF USING HIS YEARS OF ACTIVE DUTY IN THE ARMY FOR PURPOSES OF DETERMINING ELIGIBILITY FOR RETIREMENT AND THE COMPUTATION OF RETIRED PAY FOR BOTH THE ARMY AND THE PUBLIC HEALTH SERVICE. THE REPLY FROM THE GENERAL COUNSEL'S OFFICE SEEMED CLEARLY TO INDICATE THAT DUAL CREDITING WAS PERMISSIBLE.

UPON BECOMING 60 YEARS OF AGE ON APRIL 13, 1961, DR. PARRINO APPLIED FOR AND WAS GRANTED MILITARY RETIRED PAY BY THE ARMY UNDER THE PROVISIONS OF 10 U.S.C. 1331-1337 AND RECEIVED SUCH PAY CONCURRENTLY WITH HIS ACTIVE DUTY PAY AND ALLOWANCES FROM THE PUBLIC HEALTH SERVICE FROM MAY 1, 1961, TO JUNE 30, 1966, WHEN HE BEGAN RECEIVING RETIRED PAY FROM THE PUBLIC HEALTH SERVICE AT THE MAXIMUM RATE OF 75 PERCENT OF HIS ACTIVE DUTY PAY. HE WAS MANDATORILY RETIRED FROM THE PUBLIC HEALTH SERVICE UNDER THE PROVISIONS OF 42 U.S.C. 212(A)(1) EFFECTIVE MAY 1, 1965, BUT WAS IMMEDIATELY RECALLED TO ACTIVE DUTY AND SERVED IN THAT STATUS THROUGH JUNE 30, 1966. IN THE COMPUTATION OF HIS PUBLIC HEALTH SERVICE RETIRED PAY SOME OF HIS ACTIVE SERVICE WITH THE ARMY WAS CREDITED. HE HAS CONTINUED TO RECEIVE ARMY RETIRED PAY AND PUBLIC HEALTH SERVICE RETIRED PAY TO THE PRESENT TIME.

IN OUR DECISION OF JUNE 7, 1968, 47 COMP. GEN. 713, INVOLVING THE CASE OF FORMER COMMANDER ALFRED S. LAZARUS WE HELD THAT, IN THE ABSENCE OF A STATUTE EXPRESSLY AUTHORIZING THE CREDITING OF THE SAME PERIOD OF MILITARY SERVICE FOR PURPOSES OF DETERMINING ELIGIBILITY FOR RETIREMENT PAY UNDER BOTH 10 U.S.C. 1331 AND 42 U.S.C. 212, THERE IS NO BASIS FOR PERMITTING THE DUAL USE OF HIS NAVY AND NAVAL RESERVE SERVICE TO PROVIDE CONCURRENT PAYMENTS OF RETIRED PAY FROM THE NAVY AND THE PUBLIC HEALTH SERVICE. VIEW OF THAT DECISION THE FOLLOWING QUESTIONS WERE PRESENTED FOR OUR DECISION:

QUESTION 1 - DOES THE LAZARUS DECISION APPLY TO DR. PARRINO?

QUESTION 2 - IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, MAY DR. PARRINO UTILIZE A PORTION OF HIS ARMY SERVICE (ACTIVE AND INACTIVE) PLUS HIS ACTIVE DUTY IN THE PUBLIC HEALTH SERVICE IN ORDER TO BE ELIGIBLE FOR THE MAXIMUM RETIRED PAY FROM THE PUBLIC HEALTH SERVICE AND USE THE REMAINDER OF HIS ARMY SERVICE TO QUALIFY FOR RETIRED PAY, IF ANY, FROM THE ARMY UNDER TITLE III, P.L. 810, 80TH CONGRESS? COPIES OF HIS SERVICE RECORDS ARE ATTACHED (ENCLOSURE 6).

QUESTION 3 - IF THE ANSWER TO QUESTION 2 IS NEGATIVE, MAY DR. PARRINO ELECT TO APPLY ALL OF HIS ARMY SERVICE TOWARD HIS PUBLIC HEALTH SERVICE RETIRED PAY THUS IN EFFECT WAVING RECEIPT OF RETIRED PAY FROM THE ARMY? SUCH ACTION MIGHT PROPERLY BE TERMED AS AN ELECTION OF ENTITLEMENTS.

WHILE AT THE TIME OF HIS DISCHARGE FROM THE UNITED STATES ARMY RESERVE ON JULY 31, 1957, DR. PARRINO HAD OVER 20 YEARS OF ACTIVE SERVICE AND WAS ELIGIBLE TO RETIRE UNDER THE PROVISIONS OF 10 U.S.C. 3911, HIS SERVICE IN THE ARMY RESERVE WAS TERMINATED AND BETWEEN JULY 31, 1957, AND APRIL 13, 1961 (HIS 60TH BIRTHDAY), HE WAS NOT ENTITLED TO RECEIVE RETIRED PAY UNDER ANY LAW. HENCE, HE WAS ENTITLED TO RETIRED PAY UNDER THE PROVISIONS OF 10 U.S.C. 1331 UPON REACHING AGE 60 ON APRIL 13, 1961, SUBJECT TO 5 U.S.C. 8301, AND HE CONTINUED TO BE ENTITLED TO SUCH RETIRED PAY UNTIL HE BEGAN RECEIVING RETIRED PAY FROM THE PUBLIC HEALTH SERVICE ON JULY 1, 1966.

IT HAS LONG BEEN THE RULE OF THE COURTS THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISIONS A FORMER OFFICER, ENLISTED MAN, OR EMPLOYEE OF THE UNITED STATES IS NOT ENTITLED TO TWO PENSIONS, TWO RETIRED PAYS, OR TWO ANNUITIES OR GRATUITIES FOR THE SAME SERVICE. SEE 16 COMP. GEN. 83 (1936), 20 COMP. GEN. 41 (1940) AND CASES CITED IN THOSE DECISIONS. THE LAZARUS CASE (47 COMP. GEN. 713 (1968)), WE HELD THAT NEITHER 10 U.S.C. 1336 NOR ANY OTHER LAW WOULD PERMIT THE DUAL USE OF MILITARY SERVICE TO PROVIDE CONCURRENT PAYMENTS OF MILITARY RETIRED PAY AND PUBLIC HEALTH SERVICE RETIRED PAY. ALTHOUGH DR. PARRINO NEED NOT USE HIS ARMY RESERVE AND NATIONAL GUARD SERVICE TO ESTABLISH ENTITLEMENT TO PUBLIC HEALTH SERVICE RETIRED PAY, THE PRINCIPLE OF THE LAZARUS CASE THAT DUAL USE OF SUCH SERVICE IS PROHIBITED APPLIES TO HIS CASE. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

WE KNOW OF NO STATUTE WHICH WOULD PERMIT DR. PARRINO TO UTILIZE A PORTION OF HIS ARMY RESERVE AND NATIONAL GUARD SERVICE TO INCREASE HIS PUBLIC HEALTH SERVICE RETIREMENT PAY WHILE USING THE REMAINDER TO QUALIFY FOR MILITARY RETIRED PAY UNDER 10 U.S.C. 1331. IN THIS CONNECTION, IT MAY BE NOTED THAT 42 U.S.C. 212(D) PROVIDES THAT THE "TERM 'ACTIVE SERVICE,' AS USED IN SUBSECTION (A) OF THIS SECTION, INCLUDES *** ALL ACTIVE SERVICE IN ANY OF THE UNIFORMED SERVICES," AND THAT SECTION 212(A)(4) PROVIDES FOR USE OF "EACH YEAR OF ACTIVE SERVICE" IN THE COMPUTATION OF RETIRED PAY THEREUNDER. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

SINCE DR. PARRINO MAY NOT RECEIVE A DOUBLE BENEFIT FOR HIS ARMY RESERVE AND NATIONAL GUARD SERVICE AND SINCE HE APPARENTLY IS ENTITLED TO A GREATER BENEFIT BY USING SUCH SERVICE TO INCREASE HIS PUBLIC HEALTH SERVICE RETIRED PAY, IT WILL BE ASSUMED THAT HE WOULD ELECT THE GREATER BENEFIT AND THUS HE MUST BE CONSIDERED AS HAVING SURRENDERED HIS ARMY RESERVE RETIRED STATUS AS OF JULY 1, 1966. QUESTION 3 IS ANSWERED ACCORDINGLY.

BY LETTER OF TODAY WE ARE ADVISING THE DEPARTMENT OF THE ARMY OF HIS NONENTITLEMENT TO RETIRED PAY UNDER 10 U.S.C. 1331 AFTER JUNE 30, 1966, AND REQUESTING THAT APPROPRIATE STEPS BE TAKEN TO COLLECT ALL OF THE PAYMENTS OF SUCH RETIRED PAY MADE TO HIM FOR PERIODS AFTER THAT DATE. THE FACT THAT HE ACTED IN GOOD FAITH IN REQUESTING LEGAL ADVICE AND ACCEPTING THE PAYMENTS MADE AS THE RESULT OF A MISTAKE OF GOVERNMENT PERSONNEL DOES NOT, IN OUR OPINION, AFFORD A BASIS FOR NOT REQUIRING HIM TO REPAY THE AMOUNT OVERPAID.

IN REGARD TO DR. PARRINO'S PARTICIPATION IN THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1441-1446 (FORMERLY THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953), WE ARE OF THE OPINION THAT HIS ELECTION NOT TO PARTICIPATE IN THE PLAN IN CONNECTION WITH HIS ARMY RESERVE RETIREMENT DID NOT AFFECT THE VALIDITY OF HIS ELECTION TO COME UNDER THE PLAN IN CONNECTION WITH HIS RETIREMENT FROM THE PUBLIC HEALTH SERVICE. SINCE HE HAD IN EFFECT A VALID ELECTION TO PARTICIPATE IN THE PLAN AT THE TIME OF HIS RETIREMENT FROM THE PUBLIC HEALTH SERVICE, AND THERE WAS AN IMPLIED SURRENDER BY HIM OF HIS MILITARY RETIRED PAY AT THAT TIME, THE DEDUCTIONS MADE FROM HIS PUBLIC HEALTH SERVICE RETIRED PAY BASED SOLELY ON THAT RETIRED PAY WERE PROPER, IF OTHERWISE CORRECT.