A-11668, JANUARY 29, 1926, 5 COMP. GEN. 548

A-11668: Jan 29, 1926

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WHOSE SALARY IS IN EXCESS OF $2. 500 PER ANNUM IS PROHIBITED BY THE ACT OF JULY 31. FROM HOLDING ANOTHER POSITION TO WHICH COMPENSATION IS ATTACHED. APPLIES ONLY TO CASES OF RETIRED OFFICERS AND ENLISTED MEN WHO ARE HOLDING CIVIL POSITIONS IN THE GOVERNMENT SERVICE WHILE ON INACTIVE DUTY. 1926: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION. WHILE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE NAVY WAS ENTITLED TO RECEIVE ADDITIONAL SALARY FOR SERVICE AS AN INSPECTOR OF HULLS IN THE DEPARTMENT OF COMMERCE. COMMANDER BAKER'S SERVICE SO FAR AS HERE MATERIAL ARE AS FOLLOWS: HE WAS RETIRED ON NOVEMBER 26. WAS STILL SERVING ON ACTIVE DUTY ON JUNE 30. WHICH IS THE LAST PERIOD OF HIS SERVICE COVERED BY ACCOUNTS SUBMITTED TO THIS OFFICE.

A-11668, JANUARY 29, 1926, 5 COMP. GEN. 548

COMPENSATION, DOUBLE - RETIRED NAVAL OFFICER ON ACTIVE DUTY A RETIRED OFFICER OF THE NAVY ON ACTIVE DUTY, WHOSE SALARY IS IN EXCESS OF $2,500 PER ANNUM IS PROHIBITED BY THE ACT OF JULY 31, 1894, 28 STAT. 205, FROM HOLDING ANOTHER POSITION TO WHICH COMPENSATION IS ATTACHED. THE AMENDMENT OF MAY 31, 1924, 43 STAT. 245, TO THE ACT OF JULY 31, 1894, APPLIES ONLY TO CASES OF RETIRED OFFICERS AND ENLISTED MEN WHO ARE HOLDING CIVIL POSITIONS IN THE GOVERNMENT SERVICE WHILE ON INACTIVE DUTY.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 29, 1926:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION, THE QUESTION WHETHER LIEUT. COMMANDER VIRGIL BAKER, UNITED STATES NAVY, RETIRED, WHILE SERVING ON ACTIVE DUTY AS AN OFFICER OF THE NAVY WAS ENTITLED TO RECEIVE ADDITIONAL SALARY FOR SERVICE AS AN INSPECTOR OF HULLS IN THE DEPARTMENT OF COMMERCE. THE FACTS WITH REGARD TO LIEUT. COMMANDER BAKER'S SERVICE SO FAR AS HERE MATERIAL ARE AS FOLLOWS:

HE WAS RETIRED ON NOVEMBER 26, 1912, AS A LIEUTENANT, UNITED STATES NAVY, RETIREMENT RESULTING FROM INCAPACITY INCIDENT TO SERVICE (SEE NAVY REGISTER 1913, PAGE 178). SUBSEQUENT TO RETIREMENT HE SERVED ON ACTIVE DUTY FOR THE PERIODS FROM NOVEMBER 2, 1913, TO JUNE 1, 1915, FROM APRIL 7, 1917, TO JANUARY 26, 1920, AND FROM DECEMBER 4, 1923, TO APRIL 10, 1924. HE AGAIN REPORTED FOR ACTIVE DUTY ON MAY 6, 1924, AND WAS STILL SERVING ON ACTIVE DUTY ON JUNE 30, 1925, WHICH IS THE LAST PERIOD OF HIS SERVICE COVERED BY ACCOUNTS SUBMITTED TO THIS OFFICE.

IN ADDITION TO THE FOREGOING SERVICE AS AN OFFICER OF THE NAVY, THE RECORDS SHOW THAT LIEUT. COMMANDER BAKER ACCEPTED A CIVIL SERVICE APPOINTMENT ON JULY 1, 1915, AS INSPECTOR OF HULLS, STEAMBOAT INSPECTION SERVICE, DEPARTMENT OF COMMERCE, AND SERVED IN SUCH CAPACITY FROM JULY 1, 1915, TO JULY 31, 1923. DURING THE PERIOD THEREFORE FROM APRIL 7, 1917, TO JANUARY 26, 1920, HE WAS SERVING AS AN OFFICER OF THE NAVY ON ACTIVE DUTY WITH COMPENSATION IN EXCESS OF $2,500 PER ANNUM, AND ALSO AS AN INSPECTOR OF HULLS IN THE STEAMBOAT INSPECTION SERVICE. UNDER THE ACT OF JULY 31, 1894, 28 STAT. 205, AN OFFICER WAS FORBIDDEN, WHILE SERVING IN THE NAVY AT A COMPENSATION IN EXCESS OF $2,500 PER ANNUM, TO HOLD ANOTHER OFFICE TO WHICH COMPENSATION ATTACHED. THE ACT OF MAY 31, 1924, 43 STAT. 245, AMENDING THE ACT OF JULY 31, 1894, PROVIDES:

THAT SECTION 2 OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL APPROPRIATION ACT, APPROVED JULY 31, 1894, IS AMENDED BY ADDING AT THE END THEREOF A NEW 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.'

UNDER THIS AMENDMENT TO THE ORIGINAL ACT THE OFFICER, HAVING BEEN RETIRED FOR INCAPACITY INCURRED IN LINE OF DUTY, CAN NOT BE CONSTRUED TO HAVE HELD AN OFFICE FOR THE PERIOD FROM JANUARY 27, 1920, TO JULY 31, 1923, DURING WHICH HIS STATUS WAS THAT OF A RETIRED OFFICER ON INACTIVE DUTY. 4 COMP. GEN. 506.

WITH RESPECT TO THE PERIOD FROM APRIL 7, 1917, TO JANUARY 26, 1920, THE RECORDS SHOW THAT THE OFFICER WAS ON ACTIVE DUTY AND THE PHRASE "DURING SUCH RETIREMENT" AS USED IN THE ACT OF MAY 31, 1924, DOES NOT INCLUDE PERIODS OF ACTIVE DUTY OF RETIRED OFFICERS. WHEN AN OFFICER, ALTHOUGH RETIRED ENTERS UPON A PERIOD OF ACTIVE DUTY, HE CAN NOT BE SAID TO BE FOR SUCH PERIOD IN RETIREMENT AND SERVICE RENDERED DURING SUCH PERIOD IS NOT SERVICE RENDERED DURING RETIREMENT. IT IS TO BE NOTED IN THIS CONNECTION THAT THE ACT OF MAY 31, 1924, IN ITS ORIGINAL FORM AS SENATE BILL 2450, WAS DESIGNED TO COVER ONLY CASES OF RETIRED ENLISTED MEN ON INACTIVE DUTY WHO WERE HOLDING CIVIL POSITIONS IN THE GOVERNMENT SERVICE WHILE ON SUCH INACTIVE DUTY. SEE SENATE REPORT NO. 254 AND HOUSE REPORT NO. 498 OF THE SIXTY-EIGHTH CONGRESS, FIRST SESSION. THE BILL WAS AMENDED IN THE HOUSE OF REPRESENTATIVES TO INCLUDE OFFICERS RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY AND THE AMENDMENT WAS CONCURRED IN BY THE SENATE. SEE 65 CONGRESSIONAL RECORD, PAGES 9137 AND 9279. THERE IS NOTHING TO INDICATE, HOWEVER, THAT IT WAS THE INTENTION OF CONGRESS BY SUCH AMENDMENT TO EXTEND THE OPERATION OF THE ACT TO INCLUDE CASES OF RETIRED OFFICERS ON ACTIVE DUTY HOLDING A CIVIL POSITION. FURTHER, IT WOULD APPEAR THAT SERVICE IN THE STEAMBOAT INSPECTION SERVICE IS INCOMPATIBLE WITH ACTIVE DUTY AS AN OFFICER OF THE NAVY.

THE PAY RECEIVED BY THE OFFICER, THEREFORE, AS AN INSPECTOR OF HULLS FOR THE PERIOD FROM APRIL 7, 1917, TO JANUARY 26, 1920, WHEN HE WAS ON ACTIVE DUTY AS AN OFFICER OF THE NAVY, AMOUNTING TO $6,367.88 WAS UNAUTHORIZED. IN VIEW OF THE FACTS NOW APPEARING, THE OFFICER IS FOUND TO BE INDEBTED TO THE UNITED STATES IN THE SUM OF $6,367.88, THE AMOUNT PAID HIM FOR SALARY AS AN INSPECTOR OF HULLS DURING THE PERIOD FROM APRIL 7, 1917, TO JANUARY 26, 1920, AND A CHARGE WILL BE RAISED AGAINST HIM ON THE BOOKS OF THIS OFFICE IN THAT AMOUNT.