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B-190420 1 (1979-06-26)

handle is hein.gao/gaobadhis0001 and id is 1 raw text is: If . THE COMPTROLLER GENERAL DECISION / . OF THE UNITED STATES WASHINGTON, .0. C. 20548 -e- *~~ FILE: B-190420 OATE:June 26, 1979 MATTER OF: Lieutenant Colonel Leo A FiT erald, USAF, Retired A-wi DIGEST A retired Regular Air Force Officer employed in a Federal civilian position whose retired pay was subject to reduction under the Dual Compensation Act, 5 U.S.C. § 5532, was advised by the VA on February 23, 1978, that he was entitled to VA disability compensation retro- active to June 26, 1977. The officer filed a waiver of retired pay with the service department, pursuant to 38 U.S.C. § 3105, on March 3, 1978. Waiver of retired pay upon notification of entitlement to VA compensation is effective from the earliest date of entitlement to VA compensation; but the additional amount due is payable as VA compensation, and not retired pay. Matter of Lieutenant Colonel Oliver B. Larson, 55 Comp. Gen. 1402 (1976), is modified. Section 5532 of Title 5, United States Code, requires that the pay oF retired military members be reduced upon their acceptance of Federal civilian employment. Section 3104 of Title 38, United States Code, prohibits the concurrent pijayment -ofmilitary retTE pay and Veterans Administration (VA) pension or compensation benefits. Section 3105 of Title 38, however, authorizes members to receive both retired pay and VA pension or compensation payments so long as they waive entitlement to retired pay in an amount equivalent to the veterans' benefits paid them. A member gains in two ways by receiving payments characterized as veterans' benefits rather than retired pay: veterans' benefits are not taxable, and should the member become federally employed, veterans' benefits are not subject to reduction by the Dual Compensation Act, 5 U.S.C. 5532 to which retired pay is subject. The present case involves a retired Regular officer, Lieutenant Colonel Leo A. Fitzgerald, USAF, Retired, whose retired pay was reduced upon his Federal civilian employment.

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