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B-238128 1 (1991-03-08)

handle is hein.gao/gaobadnvq0001 and id is 1 raw text is: Cdo~ftver Geaud at*e UiWd States Wavh m D. 20145 Edsion Matter of: Captain Virgil W. Whitehead, USMC (Retired) - Request for Waiver File: B-238128 Date: March 8, 1991 DECISION Captain Virgil W. Whitehead, USMC (Retired), appeals our Claims Group's denial of his request for waiver of overpayments of retired pay resulting from his civilian government employment after retiring from the Marine Corps. For the reasons set forth below, we sustain the Claims Group's decision and deny waiver. The record shows that in 1977 Captain Whitehead was advised by the Marine Corps that after serving 10 years as a temporary limited duty officer with over 27 years of active service, he could retire in that status as a captain or revert to his permanent enlisted grade as a master gunnery sergeant. He apparently chose the former and was notified by letter of June 2, 1978, that he would be placed on the Marine Corps Officers Retired List effective July 1, 1978. On October 1, 1978, Captain Whitehead accepted a position with the federal government as a civilian employee. Due to administrative error, his retired pay was not reduced as it should have been under provisions of the Dual Compensation Act, 5 U.S.C. § 5532(b), resulting in an overpayment of retired pay. The Marine Corps determined that he was overpaid a total of $15,320.24 from October 1, 1978 through June 17, 1980 and from August 16, 1982 through July 31, 1983, of which $8,328.00 remains uncollected. Captain Whitehead contends that, because he was an enlisted member during the entire period of his active duty and served as a temporary limited duty officer for only 10 years of that time, the Dual Compensation Act retired pay reduction provision, 5 U.S.C.§ 5532(b), is not applicable to him. In 44 Comp. Gen. 297 (1964), we held that Navy and Marine Corps enlisted members given temporary appointments as officers in the regular Navy or Marine Corps and retired in their temporary officer status pursuant to 10 U.S.C. § 6323 were subject to the retired pay reduction provision of the Dual Compensation Act while holding a civilian office in the c/A14:5 215& _4 w r.

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