A-43871, AUGUST 17, 1932, 12 COMP. GEN. 256

A-43871: Aug 17, 1932

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IT IS THE RATE OF COMPENSATION WHICH CONTROLS. AS FOLLOWS: I HAVE THE HONOR TO REFER TO SECTION 212. OR UNDER ANY CORPORATION THE MAJORITY OF STOCK OF WHICH IS OWNED BY THE UNITED STATES. TO REQUEST YOUR DECISION ON THE QUESTIONS PRESENTED IN CONNECTION WITH THE APPLICATION OF THIS SECTION OF THE LAW TO RETIRED EMERGENCY OFFICERS WHO ARE EMPLOYED BY THE VETERANS' ADMINISTRATION AS PART-TIME PHYSICIANS. THE QUESTION HAS ARISEN AS TO WHETHER A RETIRED EMERGENCY OFFICER WHO IS EMPLOYED AS A PART-TIME PHYSICIAN IN THE VETERANS' ADMINISTRATION ON A BASIS OF TWO HOURS SERVICE PER DAY OR $1. WHICH IS EQUIVALENT TO A RATE OF $4. YOU HELD THAT IT IS NOT THE TOTAL AMOUNT THAT MAY BE EARNED PER HOUR OR PER DIEM THAT DETERMINES WHETHER THE CASE IS WITHIN THE LIMIT OF THE COMBINED RETIRED AND CIVILIAN PAY.

A-43871, AUGUST 17, 1932, 12 COMP. GEN. 256

ECONOMY ACT - COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION IN APPLYING THE LIMITATION OF $3,000 PER ANNUM UNDER SECTION 212 OF THE ECONOMY ACT ON THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND RETIRED PAY, IT IS THE RATE OF COMPENSATION WHICH CONTROLS, IRRESPECTIVE OF THE NUMBER OF HOURS OR DAYS OF WORK IN THE CIVILIAN POSITION, AND NOT THE TOTAL AMOUNT OF CIVILIAN PAY AND RETIRED PAY RECEIVED DURING THE YEAR.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 17, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 5, 1932, AS FOLLOWS:

I HAVE THE HONOR TO REFER TO SECTION 212, PUBLIC 212, 72ND CONGRESS (THE ECONOMY ACT), WHICH DENIES OR REDUCES THE RETIRED PAY OF THE OFFICERS ENUMERATED THEREIN WHILE EMPLOYED IN A CIVIL OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR UNDER ANY CORPORATION THE MAJORITY OF STOCK OF WHICH IS OWNED BY THE UNITED STATES, AND TO REQUEST YOUR DECISION ON THE QUESTIONS PRESENTED IN CONNECTION WITH THE APPLICATION OF THIS SECTION OF THE LAW TO RETIRED EMERGENCY OFFICERS WHO ARE EMPLOYED BY THE VETERANS' ADMINISTRATION AS PART-TIME PHYSICIANS.

THE QUESTION HAS ARISEN AS TO WHETHER A RETIRED EMERGENCY OFFICER WHO IS EMPLOYED AS A PART-TIME PHYSICIAN IN THE VETERANS' ADMINISTRATION ON A BASIS OF TWO HOURS SERVICE PER DAY OR $1,142.86 PER ANNUM, WHICH IS EQUIVALENT TO A RATE OF $4,000 PER ANNUM FOR FULL TIME SERVICE, AND RECEIVING RETIRED PAY OF $150.00 PER MONTH, $1,800 PER ANNUM, MAY RECEIVE BOTH THE CIVIL PAY AND THE RETIRED PAY.

IN YOUR DECISION OF JULY 20, 1932, A-43331, YOU HELD THAT IT IS NOT THE TOTAL AMOUNT THAT MAY BE EARNED PER HOUR OR PER DIEM THAT DETERMINES WHETHER THE CASE IS WITHIN THE LIMIT OF THE COMBINED RETIRED AND CIVILIAN PAY, BUT THE RATE PER HOUR OR PER DIEM WHICH FOR THE YEAR WOULD, WHEN COMBINED WITH THE RETIRED PAY, EXCEED $3,000, THAT REQUIRES A REDUCTION OF RETIRED PAY. IT HAS BEEN SUGGESTED THAT THIS DECISION IS NOT APPLICABLE TO PART-TIME EMPLOYEES, BECAUSE YOU WERE THERE CONSIDERING THE CASE OF A FULL TIME EMPLOYEE.

IN YOUR DECISION OF JULY 23, 1932, A-43425, IN DISCUSSING THE QUESTION AS TO WHETHER SECTION 101 (B) OF PUBLIC 212 AFFECTS THE PAY OF A PART-TIME EMPLOYEE, YOU HELD THAT FOR THE PURPOSE OF DETERMINING WHETHER A PART-TIME EMPLOYEE RECEIVES COMPENSATION IN EXCESS OF $1,000 PER ANNUM "IT IS THE RATE OF COMPENSATION, WHICH IN THE EXAMPLE GIVEN IS $5,200 PER ANNUM, NOT THE TOTAL AMOUNT RECEIVED DURING THE YEAR, OR $742.86," WHICH GOVERNS. HAS BEEN SUGGESTED THAT THIS DECISION IS NOT APPLICABLE TO THE QUESTION PRESENTED, BECAUSE SECTION 101 (B) DOES NOT CONTAIN AN EXCEPTION SIMILAR TO THAT CONTAINED IN SECTION 212 (B), WHICH PROVIDES:

"THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000 * * *.'

THE THOUGHT PRESENTS ITSELF THAT BECAUSE OF THE EXEMPTION IN SECTION 212 (B) THE RETIRED OFFICER WHO IS EMPLOYED AS A PART-TIME PHYSICIAN ON THE BASIS OF TWO HOURS PER DAY AT $1,142.86 PER ANNUM, AND WHOSE RETIRED PAY IS $1,800 PER ANNUM, MAY RECEIVE BOTH BENEFITS, NOTWITHSTANDING THE FACT THAT THE TOTAL ANNUAL RATE FROM BOTH SOURCES EQUALS $5,800, BECAUSE THE "RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000.'

IT IS THEREFORE REQUESTED THAT YOU GIVE CONSIDERATION TO THIS MATTER, WITH PARTICULAR REFERENCE TO THE TWO FOLLOWING QUESTIONS:

(1) MAY A RETIRED EMERGENCY OFFICER WHO IS EMPLOYED AS A PART-TIME PHYSICIAN ON A BASIS OF TWO HOURS SERVICE PER DAY, OR $1,142.86 PER ANNUM, WHICH IS EQUIVALENT TO A RATE OF $4,000 PER ANNUM FOR FULL-TIME SERVICE, AND WHO IS RECEIVING $1,800 PER ANNUM UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT, CONTINUE TO RECEIVE BOTH THE RETIRED PAY AND CIVILIAN PAY?

(2) MAY A RETIRED EMERGENCY OFFICER WHO IS EMPLOYED AS A PART-TIME PHYSICIAN ON A BASIS OF FOUR HOURS SERVICE PER DAY, OR $2,285.72 PERANNUM, WHICH IS EQUIVALENT TO A RATE OF $4,000 PER ANNUM FOR FULL TIME SERVICE, AND WHO IS RECEIVING $1,800 PER ANNUM UNDER THE EMERGENCY OFFICERS' RETIREMENT ACT, RECEIVE, IN ADDITION TO HIS CIVILIAN PAY, RETIRED PAY IN AN AMOUNT WHICH WHEN COMBINED WITH THE CIVILIAN PAY, WILL EQUAL $3,000?

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.

THROUGHOUT SUBSECTION (A) THE LIMITATION IS ON THE COMBINED RATE OF COMPENSATION, AND ACCORDINGLY, IN DECISION OF JULY 14, 1932, TO THE SECRETARY OF WAR, A-43204, 12 COMP. GEN. 37, IN ANSWER TO QUESTION 14, IT WAS STATED IN PART AS FOLLOWS:

THE PURPOSE OF SECTION 212 IS TO LIMIT THE COMBINED RATE OF COMPENSATION IN A CIVILIAN OFFICE OR POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM. * * *

THE FIRST PART OF SUBSECTION (B), WHICH HAS BEEN PARTICULARLY STRESSED IN YOUR SUBMISSION, IS SIMPLY THE REVERSE OF THE RESTRICTION CONTAINED IN SUBSECTION (A); THAT IS, THROUGH ABUNDANT CAUTION, THERE WERE EXCEPTED THOSE WHO WOULD NOT COME WITHIN THE PROVISIONS OF SUBSECTION (A) BECAUSE THE COMBINED RATE OF CIVILIAN PAY AND RETIRED PAY WOULD AMOUNT TO LESS THAN $3,000 PER ANNUM, AND, ACCORDINGLY, NO SPECIAL SIGNIFICANCE IS TO BE ATTACHED TO THE OMISSION OF THE WORD ,RATE" IN SUBSECTION (B). FOR INSTANCE, IN THE LETTER OF JULY 20, 1932, A-43331, AND IN THE PARTICULAR PARAGRAPH TO WHICH YOU REFER, THERE WAS GIVEN AN ILLUSTRATION OF A SUBSTITUTE POSTAL EMPLOYEE WHO WORKS PART TIME AT THE RATE OF 65 CENTS PER HOUR, CITING THE RULE STATED IN 8 COMP. GEN. 261, 264.

YOU ARE ADVISED, THEREFORE, THAT IN APPLYING THE LIMITATION OF $3,000 PER ANNUM UNDER SECTION 212 OF THE ECONOMY ACT, IT IS THE COMBINED RATE OF COMPENSATION WHICH CONTROLS, IRRESPECTIVE OF THE NUMBER OF HOURS OR DAYS OF WORK IN THE CIVILIAN OFFICE OR POSITION, AND NOT THE TOTAL AMOUNT OF CIVILIAN PAY AND RETIRED PAY RECEIVED DURING THE YEAR.