[Air Force Officer's Request for Waiver of Overpayment of Aviator Continuation Pay]

A-50660, AUGUST 30, 1933, 13 COMP. GEN. 60

REEMPLOYMENT OF RETIRED MILITARY PERSONNEL - NATIONAL RECOVERY ADMINISTRATION THE NATIONAL RECOVERY ADMINISTRATION MAY EMPLOY RETIRED ENLISTED PERSONNEL, WHO HAVE BEEN RETIRED ON ENLISTED SERVICE ONLY, AND FIX THEIR RATES OF COMPENSATION FOR SUCH CIVILIAN SERVICE ON THE SAME BASIS AS THAT FOR ANY OTHER OFFICER OR EMPLOYEE WITHOUT RESTRICTION OTHER THAN THE VALUE OF THE SERVICES AND SUCH EMPLOYEES WOULD BE ENTITLED TO CONTINUE TO RECEIVE THEIR RETIRED PAY. THE NATIONAL RECOVERY ADMINISTRATION MAY EMPLOY RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY, WHO WERE RETIRED FOR ,INJURIES INCURRED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY," BUT WITH THE EXCEPTION OF THOSE "RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES" WHOSE RATE OF COMPENSATION FOR CIVILIAN SERVICE MAY BE FIXED WITHOUT REGARD TO THE RESTRICTIONS OF THE DUAL COMPENSATION STATUTES, THE RATE OF COMPENSATION PAID FOR SUCH CIVILIAN SERVICE, WHEN COMBINED WITH THE RATE OF RETIRED PAY RECEIVED, MAY NOT EXCEED $3,000 PER ANNUM. THE NATIONAL RECOVERY ADMINISTRATION MAY EMPLOY RETIRED COMMISSIONED AND WARRANT OFFICERS WHO WERE RETIRED FOR CAUSES OTHER THAN DISABILITY, I.E., AFTER 30 YEARS' SERVICE OR FOR AGE, ONLY IF THE RATE OF RETIRED PAY AND THE RATE OF COMPENSATION FIXED FOR THE CIVILIAN OFFICE OR POSITION ARE EACH LESS THAN $2,500 PER ANNUM, BUT UNDER SECTION 212 OF THE ECONOMY ACT THE OFFICER OR EMPLOYEE IN SUCH CASE COULD ACTUALLY RECEIVE A COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION NOT IN EXCESS OF $3,000 PER ANNUM. THE NATIONAL RECOVERY ADMINISTRATION MAY NOT EMPLOY RETIRED COMMISSIONED INCURRED IN LINE OF DUTY IF THE RATE OF EITHER THE RETIRED PAY OR THE COMPENSATION FIXED FOR THE CIVILIAN POSITION IS $2,500 PER ANNUM OR MORE.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, NATIONAL RECOVERY ADMINISTRATION, AUGUST 30, 1933:

I HAVE RECEIVED THE FOLLOWING LETTER FROM THE CHIEF OF LEGAL RESEARCH OF THE NATIONAL RECOVERY ADMINISTRATION, DATED AUGUST 26, 1933, PRESUMABLY BY YOUR DIRECTION, AS FOLLOWS:

PERMIT US TO THANK YOU FOR YOUR INFORMATIVE LETTER OF AUGUST 23RD IN REGARD TO THE PAY OF RETIRED CIVILIAN PERSONNEL. THIS IS EXACTLY WHAT WE WANT, AND WE CERTAINLY APPRECIATE THE COURTESY AND DISPATCH WITH WHICH YOU SENT IT. OUR ONLY REGRET IS THAT IT WAS NOT DIRECTED TO THE ATTENTION OF THE WRITER, CHIEF OF LEGAL RESEARCH, FOR IT TOOK US THREE DAYS TO LOCATE THIS LETTER IN OUR FILES DOWNSTAIRS.

A SECOND INQUIRY WAS NOT MENTIONED IN OUR COMMUNICATION TO YOU OF AUGUST 22ND. THE QUESTIONS ARE THE SAME AND PERTAIN TO RETIRED MILITARY OR NAVAL PERSONNEL. WE ARE SENDING THE PRESENT COMMUNICATION BY SPECIAL MESSENGER AND WOULD APPRECIATE YOUR EARLIEST REPLY TO THE STATUS OF RETIRED MILITARY OR NAVAL PERSONNEL AS REGARDS THE TOTAL AMOUNT OF COMPENSATION THAT IS ALLOWED BY LAW WHEN TRANSFERRED TO ANOTHER DEPARTMENT AS RELATED TO YOU IN OUR LETTER OF AUGUST 22ND.

PLEASE DIRECT THE COMMUNICATION TO THE ATTENTION OF JACK LEVIN, CHIEF OF LEGAL RESEARCH, ROOM 4051, COMMERCE BUILDING, CITY.

WE CERTAINLY WILL APPRECIATE ANY COURTESY YOU MAY EXTEND TO US IN EXPEDITING THIS MATTER AT THE EARLIEST POSSIBLE MOMENT, AS DEPARTMENTAL RULING THEREON HAVE NOW BEEN DELAYED FOR NEARLY A WEEK.

THE TWO QUESTIONS PREVIOUSLY PRESENTED AND CONSIDERED IN THE DECISION OF AUGUST 23, 1933 (13 COMP. GEN. 54), RELATIVE TO EMPLOYMENT OF RETIRED CIVILIAN PERSONNEL, WERE AS FOLLOWS:

1. WHERE AN INDIVIDUAL IS ON RETIRED PAY AND IS TRANSFERRED TO THE NATIONAL RECOVERY ADMINISTRATION, WHAT IS THE TOTAL AMOUNT COMPENSATION THAT IS ALLOWED BY LAW?

2. IF HIS PREVIOUS POSITION IS GIVEN UP AND HE IS TRANSFERRED FULL TIME TO THE NATIONAL RECOVERY ADMINISTRATION, WHAT IS THE MAXIMUM AMOUNT OF PAY HE CAN RECEIVE?

THE LATTER QUESTION APPEARS TO BE RELATED TO THE STATUS OF ACTIVE DUTY, WHERE ONE COMPLETELY GIVES UP HIS PREVIOUS COMPENSATION RECEIVED FROM THE GOVERNMENT AND UNDERTAKES AN ENTIRELY NEW RESPONSIBILITY FULL TIME.

THE DUAL COMPENSATION STATUTES APPLICABLE TO THE RETIRED MILITARY AND NAVAL PERSONNEL WERE CITED IN A PRIOR DECISION BUT NOT DISCUSSED. THE ACT OF JULY 31, 1894, 28 STAT. 205, ORIGINALLY PROVIDED AS FOLLOWS:

* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE OF THE SENATE.

THIS PROVISION WAS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, BY ADDING AT THE END THEREOF A SENTENCE TO READ AS FOLLOWS:

* * * RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, PROVIDES AS FOLLOWS:

SEC. 212. (A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C., TITLE 37), AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM, SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.

UNDER THESE STATUTES, THE NATIONAL RECOVERY ADMINISTRATION MAY EMPLOY RETIRED ENLISTED PERSONNEL, WHO HAVE BEEN RETIRED ON ENLISTED SERVICE ONLY, AND FIX THEIR RATES OF COMPENSATION FOR SUCH CIVILIAN SERVICE ON THE SAME BASIS AS THAT FOR ANY OTHER OFFICER OR EMPLOYEE OF THE ADMINISTRATION WITHOUT RESTRICTION OTHER THAN THE VALUE OF THE SERVICES, AND SUCH EMPLOYEES WOULD BE ENTITLED TO CONTINUE TO RECEIVE THEIR RETIRED PAY.

THE NATIONAL RECOVERY ADMINISTRATION MAY, ALSO, EMPLOY RETIRED COMMISSIONED AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, AND COAST AND GEODETIC SURVEY (ASSIMILATED FOR PAY PURPOSES WITH THE NAVY UNDER SECTION 11, ACT OF MAY 18, 1920, 41 STAT. 603), WHO WERE RETIRED FOR "INJURIES INCURRED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY.' HOWEVER, WITH THE EXCEPTION OF THOSE "RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES" WHOSE RATE OF COMPENSATION FOR CIVILIAN SERVICE MAY BE FIXED WITHOUT REGARD TO THE RESTRICTIONS OF THE DUAL COMPENSATION STATUTES, THE RATE OF COMPENSATION PAID FOR SUCH CIVILIAN SERVICE WHEN COMBINED WITH THE RATE OF RETIRED PAY RECEIVED, MAY NOT EXCEED $3,000 PER ANNUM. FOR THE APPLICATION OF THE TERMS OF SECTION 212 OF THE ECONOMY ACT, SEE THE DECISIONS CITED IN THE DECISION OF AUGUST 23, TO YOU, VIZ, 12 COMP. GEN. 37, 101, 256, AND 448.

THE NATIONAL RECOVERY ADMINISTRATION MAY EMPLOY RETIRED COMMISSIONED OR WARRANT OFFICERS OF THE MENTIONED SERVICES WHO WERE RETIRED FOR CAUSES OTHER THAN DISABILITY, THAT IS, AFTER 30 YEARS' SERVICE OR FOR AGE, ONLY IF THE RATE OF RETIRED PAY AND THE RATE OF COMPENSATION FIXED FOR THE CIVILIAN OFFICE OR POSITION ARE EACH LESS THAN $2,500 PER ANNUM. FOR EXAMPLE, A RETIRED OFFICER RECEIVING RETIRED PAY AT THE RATE OF $2,400 PER ANNUM MAY BE EMPLOYED IN A CIVILIAN OFFICE OR POSITION FOR WHICH THE RATE OF COMPENSATION OF $2,400 PER ANNUM HAS BEEN FIXED, BUT, OF COURSE, UNDER 212 OF THE ECONOMY ACT THE OFFICER OR EMPLOYEE IN SUCH CASE COULD ACTUALLY RECEIVE A COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION NOT IN EXCESS OF $3,000 PER ANNUM, FOR INSTANCE THE CIVILIAN SALARY OF $2,400 AND $600 OF THE RETIRED PAY.

THE NATIONAL RECOVERY ADMINISTRATION MAY NOT EMPLOY RETIRED COMMISSIONED OR WARRANT OFFICERS WHO WERE RETIRED FOR CAUSES OTHER THAN DISABILITY INCURRED IN LINE OF DUTY IF THE RATE OF EITHER THE RETIRED PAY OR THE COMPENSATION FIXED FOR THE CIVILIAN POSITION IS $2,500 PER ANNUM OR MORE.