prohibit the receipt of full retired pay for any period when the retired officer is not in a pay status in his civilian position. However, fulltime employees on a normal five-day workweek are not in a non-pay status for that purpose on days which are normally nonwork days. Since the regular tour of duty of the officer herein under his appointment was for five days per week, corresponding to the normal five-day basic workweek of fulltime civilian employees, his civilian status under such an appointment was of a fulltime employment nature, notwithstanding the fact that his compensation was stated upon a daily rate basis. Thus, he was entitled to his civilian pay for days of leave, when earned, and he was not in a non-pay status on Saturdays, Sundays, and holidays, normally non-work days, and so is not properly entitled to retired pay for those days. (Citing 28 Comp Gen 103; 31 Comp Gen 126.) Held also: The officer's receipt of a lump sum leave payment upon termination of his appointment did not affect his right to retired pay after his appointment was terminated since a lump sum leave payment is not regarded, except for tax purposes, as salary or compensation. (Citing Act of 21 December 1944, 58 Stat 845, 5 USC 61b.) MS Comp Gen B-120421, 34 Comp Gen 429. 8 March 1955.

Effect of appointment of retired Regular Army officers as officers in the National Guard upon entitlement to retirement pay, see JAGA 1954/2107, NG § 41.15.

Pay of retired officer accepting teaching position at private military academy which involves holding National Guard commission, see JAGA 1954/5571, infra § 81.32.

§ 71.3. Disability "incurred in combat or from instrumentality of war."

An officer claimed that the disabilities for which he was retired were "the result of enemy action at Pearl Harbor." The officer asserted an increase of disability following trauma resulting from the explosion of bombs near him in Hawaii in 1941. However, the Surgeon General noted that except for the officer's own statement, the records did not give any evidence that the officer was traumatized in any respect during that attack and that examining doctors had repeatedly expressed the opinion that the disability was a sequel of an established injury of 1939. The Surgeon General expressed the opinion that the records did not present evidence to substantiate a finding of a direct causal relationship between the trauma alleged to have been sustained on 7 December 1941 and the disability for which the officer was retired. Held: The determination of whether the officer's disability was incurred in combat with an enemy of the United States or resulted from an explosion of an instrumentality of war, within the purview of sec 212 of the Economy Act (47 Stat 406), as amended (5 USC 59a), depends upon a finding of direct causal relationship between the trauma sustained by him on 7 December 1941 and the disability for which he was retired. Determination of such a question primarily involves medical judgment rather than legal opinion. Accordingly the Surgeon General's opinion that the

records did not present evidence to substantiate a finding of such direct causal relationship should be accepted as authoritative. (Citing SPJGA 1944/13841, 22 Dec 1944; SPJGA 1945/3048, 28 Mar 1945; JAGA 1951/5450, 5 Sept 1951.) JAGA 1954/2758. 1 April 1954.

An officer retired as a result of injuries suffered in the Philippines in 1945 when part of a tree which had been weakened by artillery fire was blown down by a gale of wind and fell upon him was not disabled by an instrumentality of war within the meaning of the Economy Act (sec 212, act of 30 June 1932, 47 Stat 406, as amended 5 USC 59a, PL 300, 83d Cong), for the reason that the gale constituted an intervening cause which served to break the causal connection between the artillery fire and the officer's injury. Accordingly his combined retired pay and compensation from a civilian position under the Federal Government would be subject to the restrictions of the Economy Act. (Citing JAGA 1951/5450, 5 Sept 1951; JAGA 1954/3916, 20 Apr 1954; JAGA 1953/9500, 10 Dec 1953.) JAGA 1954/4943. 27 May 1954.

An officer was retired in 1947 as a result of injuries received in' a plane crash in 1942 while he was instructing a student in a training plane. In 1951 he accepted a civilian position with the Government and under the Economy Act of 1932 he was denied his retired pay. At the time the Economy Act provided that it did not apply to officers retired for disability resulting from an explosion of an instrumentality of war in line of duty during an enlistment or employment as provided in Veterans Regulation Numbered 1(a), part I, par 1. However, it was determined that the officer's injuries did not result from an explosion of an instrumentality of war. The Act of 20 February 1954, 68 Stat 18, amended the Economy Act of 1932 effective as of 1 January 1951. This amendment eliminated the necessity for an explosion and made the Economy Act inapplicable to officers retired for disability "caused" by an instrumentality of war. Held: Since sec 212 of the Economy Act is restrictive upon employment of a retired officer, and since the amendment effective as of 1 January 1951, does not add to the exceptions to its restrictions by specifically requiring that the retirement be before or after that date, the amendment is applicable to all cases of dual employment, otherwise for consideration under that statute, entered into on or after that date. Also, the officer's injuries in this case occurred during an enlistment or employment as provided in the Veterans Regulation Numbered 1(a), part I, par 1. In view of the foregoing, the officer is now entitled to his retired pay from the beginning of the date of his civilian employment provided it is determined that the training plane involved was an instrumentality of war. This involves primarily an administrative determination and such determination, when made, ordinarily will not be questioned by the accounting office unless it is found unreasonable, insufficiently supported or contrary to the law and evidence. MS Comp Gen B-120571, 34 Comp Gen 72. 17 August 1954. A Coast Guard officer was retired by reason of physical disability

incurred when an engine on a Coast Guard cutter exploded in 1942. In 1949 he entered federal civilian employment. In a memorandum opinion dated 26 August 1949 it was held that he could not be considered as having been retired by reason of disability from the explosion of an instrumentality of war within the meaning of the dual compensation statute (5 USC 59a) and that therefore he could not retain his disability retired pay as well as compensation from a civilian position with the government. Public Law 300, 83rd Cong, 20 February 1954, eliminated the requirement that the disability for which he was retired must have resulted from an "explosion" of an instrumentality of war. Public Law 300 provided that it would take effect as of 1 January 1951. Held: Since sec 212 of the Economy Act is a restriction upon employment of a retired officer, and since the amendment effective 1 January 1951, does not add to the exceptions to its restrictions by specifically requiring that the retirement be before or after that date, the amendment is applicable to all cases of dual employment, otherwise for consideration under that statute, entered into on or after that date. Accordingly, PL 300 does not in any way affect compensation received for federal civilian employment entered into by the officer in question in 1949. (Citing Comp Gen B-120571, 17 Aug 1954.) However, a Coast Guard cutter is to be considered as an instrumentality of war and the engine on such a vessel being a component part thereof would also be considered an instrumentality of war. Accordingly the officer was disabled by reason of an explosion of an instrumentality of war for purposes of civilian compensation. (Citing Comp Gen B-120571, 17 Aug 1954; B-55205, 16 Dec 1947; JAGA 1954/4867; SPJGA 1945/9686, 10 Oct 1945; JAGA 1954/4836. Reversing Memorandum Opinion of 26 Aug 1949; also Comp Gen A-44756, 3 Jan 1933, should no longer be followed in determinations under 5 USC 59a.) Op CCCG 1954/33. 13 September 1954.

An officer who was retired for disability was held to be subject to the provisions of the so called Economy Act (sec 212, act of 30 June 1932, 47 Stat 406, as amended 5 USC 59a, PL 300, 83rd Cong, 68 Stat 18), even though the disability was caused by an instrumentality of war where the disability was not incurred during time of war within the meaning of Veterans Regulation 1(a), part I, par I. (Citing JAGA 1954/7966, 28 Sept 1954.) JAGA 1955/1029. 6 January 1955.

§ 71.35. Employment with Tennessee Valley Authority.

A permanent chief petty officer retired for physical disability, with the grade and retired pay of a chief warrant officer, desired to accept employment with the Tennessee Valley Authority. His retired pay, based on a commissioned warrant officer with over 22 years' service, is in excess of $3,000.

Held that:

- the Dual Office Act of 31 July 1894 does not prohibit the retired member from accepting employment with the Tennessee Valley Authority, inasmuch as a member retired as a chief petty officer and advanced on the retired list to the rank of a commis

sioned warrant officer with the retired pay of such advanced rank is not subject to the provisions of such statute, inasmuch as such enlisted member does not hold the "office" of a retired officer but rather continues to hold the "office" of an enlisted man on the retired list (26 Comp Gen 271, 279).

however, the receipt of retired pay by a permanent chief petty officer computed on the advanced rank of a commissioned warrant officer is considered as retired pay for or on account of services as a commissioned officer within the meaning of sec 12 of the Economy Act of 1932 (5 USC 59 (a)), which provides that no person holding a civilian office or position under the government shall be entitled to receive retired pay for and on account of services as a commissioned officer at a combined rate in excess of $3000 (26 Comp Gen 271, 279).

- accordingly, inasmuch as employees of the Tennessee Valley Authority are employees of the United States (Decisions of Comptroller General A-85532, 27 Oct 1938, and A-50508, 1 Sept 1933) and employment with the Tennessee Valley Authority would constitute holding an office or position under the government within the meaning of sec 12 of the Economy Act of 1932, supra, such Act prohibits the member receiving disability retired pay and compensation for employment with the Tennessee Valley Authority. Op CCCG 1951-2. 2 November 1951.

§ 73. Annuities to Survivors of Retired Persons

§ 73.1. Generally.

Interpreting the Uniformed Services Contingency Option Act of 1953, 67 Stat 501, in the light of its purpose, officers of the Army of the United States and the United States Air Force who are not attached to components are properly to be considered active members of a uniformed service entitled to make elections and receive the benefits granted under the Contingency Option Act, if they otherwise meet the conditions of sec 2(c) of the Act. (Citing Uniformed Services Contingency Option Act of 1953, 67 Stat 501, secs 2b, c, d and secs 3a, b; Senate Report No. 672 on HR 5304, 27 Jul 1953, p 3; HR No. 496 on HR 5304, 1 Jun 1953, p 3.) MS Comp Gen B-118960. 30 June 1954. A Navy man executed the form for election of options under the Uniformed Services Contingency Option Act of 1953, 67 Stat 501, 502-503. Under option 1 he designated an annuity of of his reduced retired pay for his wife. Under option 2 he designated an annuity of his retired pay for his children. Under option 4 he indicated his desire that this option be combined with options 1 and 2. Since the combined annuities under the statute cannot exceed 50% of the members reduced retired pay, he was advised that he would have to execute a new set of forms. When he received the new forms he was seriously ill and died before he was able to sign the papers. Held: It is clear that the member intended to provide annuities for his eligible surviving children as well as his widow, the share to be paid to the children to be the same as that paid to the widow, rather than to provide for an annuity on some other authorized basis. Since he checked in the

appropriate squares the maximum annuity that could be paid under either option 1 or option 2, plus option 4, it may be concluded that he intended to provide for the maximum annuity which was authorized to be paid under options 1-4 and 2-4. Accordingly, an annuity may be paid to his surviving widow and children on the basis of one-fourth of the reduced pay under options 1 and 2, each with option 4. MS Comp Gen B-119867, 34 Comp Gen 35, 22 July 1954.

Under the Armed Forces Reserve Act of 1952, members of the reserve components are required to be in an active status, that is, on the "active list" of their reserve component unless they are on an inactive status list or in the retired reserve or assigned to the inactive National Guard. Hence, while the term "active list" formerly was considered as having application to officers of the regular components of the armed forces only, and to be without application to officers of the reserve components, it would appear that for purposes of the application of the Uniformed Services Contingency Option Act of 1953, such term now has equal application to all members, officers and enlisted personnel alike, of the regular and reserve components who are in an active status and excluding only those who are on an inactive status list, who are in a retired status, or who are in an inactive component. Therefore, with the sole exception of those members of the reserve components who were in an inactive status on 1 November 1953, the effective date of the Uniformed Services Contingency Option Act of 1953, and who had completed twenty years satisfactory service (as defined in sec 302 of the Army and Air Force Vitalization and Retirement Equalization Act of 1948), only those members of the reserve components who are on the "active list", that is, who are in an “active” as distinguished from "inactive" reserve status, properly may be viewed as coming within the term “active member" as defined and used in the Uniformed Services Contingency Option Act of 1953. (Citing Armed Forces Reserve Act of 1952, sections 204, 210, 211a & b, 212a & b; 213a; 25 Comp Gen 203; 27 Comp Gen 12.) MS Comp Gen B-121979, 34 Comp Gen 474. 25 March 1955.

§ 73.11. Election, generally.

On 23 October 1953, a Navy officer, who had been retired prior to enactment of the Career Compensation Act of 1949, 63 Stat 802, addressed a letter to the Bureau of Supplies and Accounts in which he stated that because of his age and state of health he wished to go on record as electing the maximum benefit for his wife under the Uniformed Services Contingency Option Act of 1953, which act provides for deductions from retired pay in order to provide annuities for dependents. Another paragraph of the same letter was as follows: "With respect to my present retirement pay, I have not yet exercised an election under the Career Compensation Act of 1949; however, I will make, and if necessary request that this be so considered, an election under such act effective after the close of this calendar year. Accordingly, it is my request that my election under the Uniformed Services Contingency Option Act of 1953 be considered for purposes of determining the amount of my reduced retired