B-174437, JAN 14, 1972

B-174437, JAN 14, 1972

MILITARY PERSONNEL - CONCURRENT PAY FOR RETIREMENT AND DISABILITY COMPENSATION DECISION AFFIRMING DENIAL OF A CLAIM OF MASTER SERGEANT JOSEPH M. PATTERSON, JR., USAF, RETIRED, FOR PAYMENTS WITHHELD FROM A RETIRED PAY ACCOUNT WHILE CLAIMANT WAS RECEIVING DISABILITY COMPENSATION UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT OF 1916. THE CONCURRENT PAYMENT OF MILITARY RETIRED PAY AND EMPLOYEES' DISABILITY COMPENSATION IS PROHIBITED BY 5 U.S.C. 757(A). SINCE CLAIMANT WAS IN A DISABLED STATUS DURING THE PERIOD IN QUESTION, THE DENIAL OF HIS CLAIM MUST BE SUSTAINED.

TO MASTER SERGEANT JOSEPH M. PATTERSON:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 12, 1971, ADDRESSED TO THE U.S. AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, CONCERNING YOUR CLAIM FOR REFUND OF A PORTION OF THE $420 WITHHELD FROM YOUR RETIRED PAY ACCOUNT FOR THE PERIOD APRIL 1, 1961, THROUGH JUNE 12, 1961, DURING WHICH TIME YOU WERE IN RECEIPT OF DISABILITY COMPENSATION DUE TO AN INJURY SUSTAINED AS A FEDERAL CIVILIAN EMPLOYEE.

THIS MATTER WAS THE SUBJECT OF A SETTLEMENT DATED AUGUST 18, 1964, BY OUR CLAIMS DIVISION WHICH DISALLOWED YOUR CLAIM FOR THE REASON THAT BY VIRTUE OF THE PROVISIONS OF 5 U.S.C. 757(A) (1964 ED.) THE CONCURRENT PAYMENT OF MILITARY RETIRED PAY AND EMPLOYEES' DISABILITY COMPENSATION IS PROHIBITED.

OTHER CORRESPONDENCE IN OUR FILE INDICATES THAT IT IS YOUR BELIEF THAT YOU WERE PAID DISABILITY COMPENSATION ON A DAILY BASIS AND THAT YOU SHOULD NOT BE REQUIRED TO GIVE UP RETIRED PAY FOR ANY DAY THAT YOU DID NOT RECEIVE DISABILITY COMPENSATION DURING THE TIME YOU WERE RECOVERING FROM YOUR INJURY.

THE FEDERAL EMPLOYEES' COMPENSATION ACT OF SEPTEMBER 7, 1916, AS AMENDED, CH. 15 OF TITLE 5, U.S. CODE (1964 ED.), PROVIDES THAT AN EMPLOYEE IS ENTITLED TO COMPENSATION DURING THE PERIOD OF DISABILITY RESULTING FROM INJURY SUSTAINED WHILE IN PERFORMANCE OF DUTY, BUT THAT HIS RIGHT TO DISABILITY COMPENSATION ON ACCOUNT OF THAT INJURY, TOGETHER WITH OTHER PAYMENTS FROM THE UNITED STATES, IS LIMITED BY THE PROHIBITION CONTAINED IN SECTION 7(A) OF THAT ACT, AS AMENDED, 5 U.S.C. 757(A) (1964 ED.), WHICH PROVIDED IN PERTINENT PART:

"(A) AS LONG AS THE EMPLOYEE IS IN RECEIPT OF COMPENSATION UNDER SECTIONS 751-756, 757-781, 783-791 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 *** "

THE PROHIBITION CONTAINED IN THE ABOVE-QUOTED PORTION OF 5 U.S.C. 757(A) BY ITS OWN TERMS RELATES TO THE PERIOD OF TIME "AS LONG AS" THE EMPLOYEE IS "IN RECEIPT OF" COMPENSATION UNDER THE ACT AS INSTALLMENT PAYMENTS OR A COMMUTATION THEREOF FOR THE PERIOD OF DISABILITY OR THE "PERIOD DURING WHICH SUCH INSTALLMENT PAYMENTS WOULD HAVE CONTINUED."

THE RECORD SHOWS THAT YOU SUSTAINED A RIGHT INGUINAL HERNIA ON MARCH 31, 1961, WHILE PERFORMING YOUR CIVILIAN OCCUPATION WITH THE POST OFFICE DEPARTMENT. AS A RESULT OF THAT INJURY YOU WERE AWARDED DISABILITY COMPENSATION OF 75 PERCENT OF YOUR DAILY PAY RATE OF $17.28, EFFECTIVE APRIL 1, 1961, THROUGH JUNE 12, 1961, DURING WHICH TIME YOU WERE CERTIFIED AS HAVING LOST A TOTAL OF 51 WORK-DAYS BASED ON A 5-DAY WEEK. IN THIS REGARD, THE RECORD INDICATES THAT YOU DID NOT PERFORM ANY DUTIES IN CONNECTION WITH YOUR CIVILIAN OCCUPATION DURING THAT PERIOD AND THAT THE STATUS WHICH YOU ACQUIRED ON APRIL 1, 1961, AS A RECIPIENT OF DISABILITY COMPENSATION, WAS CONTINUOUS UNTIL JUNE 13, 1961, WHEN YOU WERE CONSIDERED ABLE TO RETURN TO WORK.

SINCE YOU REMAINED IN A DISABILITY COMPENSATION STATUS UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT FOR THE ENTIRE PERIOD, THE CONCURRENT PAYMENT OF MILITARY RETIRED PAY DURING THE SAME PERIOD IS PROHIBITED BY LAW.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM WAS CORRECT AND IS SUSTAINED.