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B-126014, SEP. 22, 1964

B-126014 Sep 22, 1964
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WALSH: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25. IT APPEARS THAT MAJOR WALSH WAS RETIRED FOR YEARS OF SERVICE WHILE SERVING ON ACTIVE DUTY AS A REGULAR AIR FORCE OFFICER. HE WAS NOTIFIED THAT HIS APPOINTMENT TO THE CIVIL SERVICE POSITION HAD BEEN CANCELLED RETROACTIVE TO OCTOBER 11. SINCE IT WAS IN VIOLATION OF SECTION 2 OF THE ACT OF JULY 31. 500 OR MORE FROM HOLDING ANY OTHER OFFICE WITH COMPENSATION ATTACHED UNDER THE FEDERAL GOVERNMENT UNLESS SUCH EMPLOYMENT WAS SPECIFICALLY AUTHORIZED BY LAW. HOLDS AN OFFICE WITHIN THE MEANING OF THE 1894 ACT AND THAT HIS RETIRED PAY IS COMPENSATION ATTACHED TO THAT OFFICE. IT FOLLOWS THAT MAJOR WALSH'S APPOINTMENT TO A FULL-TIME CIVILIAN POSITION WAS VOID AND THAT THE PAYMENT OF SALARY THEREFOR WAS ILLEGAL.

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B-126014, SEP. 22, 1964

TO MRS. FRANCES H. WALSH:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1964, IN WHICH YOU MAKE CLAIM FOR COMPENSATION WHICH YOU BELIEVE DUE IN THE CASE YOUR LATE HUSBAND, MAJOR JAMES F. WALSH, USAF, RETIRED, INCIDENT TO HIS EMPLOYMENT AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT.

IT APPEARS THAT MAJOR WALSH WAS RETIRED FOR YEARS OF SERVICE WHILE SERVING ON ACTIVE DUTY AS A REGULAR AIR FORCE OFFICER. ON OCTOBER 11, 1954, HE ACCEPTED AN APPOINTMENT AS A LOGISTICS OFFICER, GS-12, WITH THE AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO. ON NOVEMBER 1, 1955, HE WAS NOTIFIED THAT HIS APPOINTMENT TO THE CIVIL SERVICE POSITION HAD BEEN CANCELLED RETROACTIVE TO OCTOBER 11, 1954, SINCE IT WAS IN VIOLATION OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62 (1952 ED.)

THE ACT OF JULY 31, 1894, PROHIBITED ANY PERSON HOLDING AN OFFICE THE ANNUAL COMPENSATION OF WHICH AMOUNTED TO $2,500 OR MORE FROM HOLDING ANY OTHER OFFICE WITH COMPENSATION ATTACHED UNDER THE FEDERAL GOVERNMENT UNLESS SUCH EMPLOYMENT WAS SPECIFICALLY AUTHORIZED BY LAW. CONSISTENTLY HAS BEEN HELD THAT A RETIRED REGULAR OFFICER, RETIRED FOR YEARS OF SERVICE, HOLDS AN OFFICE WITHIN THE MEANING OF THE 1894 ACT AND THAT HIS RETIRED PAY IS COMPENSATION ATTACHED TO THAT OFFICE. IT FOLLOWS THAT MAJOR WALSH'S APPOINTMENT TO A FULL-TIME CIVILIAN POSITION WAS VOID AND THAT THE PAYMENT OF SALARY THEREFOR WAS ILLEGAL. HENCE, HE WAS NOTIFIED THAT ALL SALARY PAYMENTS WHICH HAD BEEN RECEIVED BY HIM, A NET AMOUNT OF $6,472.35, SHOULD BE REFUNDED.

SECTION 1 OF PRIVATE LAW 85-13, APPROVED MAY 16, 1957, 71 STAT. A6, PROVIDED THAT MAJOR WALSH SHOULD BE RELIEVED OF ALL LIABILITY TO "REFUND" TO THE UNITED STATES THE SUM OF $6,472.35, REPRESENTING COMPENSATION "RECEIVED" BY HIM AS A CIVILIAN EMPLOYEE DURING THE PERIOD BEGINNING OCTOBER 11, 1954, AND ENDING OCTOBER 1, 1955, IN VIOLATION OF THE 1894 ACT. SECTION 2 OF THE LAW PROVIDED FOR REPAYMENT OF THE AMOUNTS COLLECTED FROM HIM OR WITHHELD FROM SUMS "OTHERWISE DUE HIM" AND APPLIED IN LIQUIDATION OF HIS INDEBTEDNESS. HOWEVER, THE LAW DID NOT VALIDATE THE CIVILIAN APPOINTMENT OR PROVIDE FOR ANY ADDITIONAL PAYMENT OF CIVILIAN COMPENSATION. OUR RECORDS SHOW THAT THE TOTAL AMOUNT AUTHORIZED TO BE PAID BY PRIVATE LAW 85-13--- $4,752.13 WITHHELD FROM HIS RETIRED PAY--- WAS PAID TO MAJOR WALSH BY SETTLEMENT DATED JUNE 13, 1957.

PRIVATE LAW 85-13 COULD HAVE AUTHORIZED PAYMENT OF AN ADDITIONAL AMOUNT HAD IT EXPRESSLY VALIDATED THE ENTIRE PERIOD OF DUAL EMPLOYMENT INVOLVED. HOWEVER, IT FAILED TO DO SO AND BILLS SUBSEQUENTLY INTRODUCED TO AUTHORIZE PAYMENT OF THE CIVILIAN COMPENSATION THAT WAS EARNED BUT NOT PAID WERE NOT ENACTED INTO LAW. ACCORDINGLY, WE HAVE NO ALTERNATIVE OTHER THAN TO ADVISE YOU THAT THERE IS NO AUTHORITY FOR THE PAYMENT OF YOUR CLAIM.

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