A-4668, DECEMBER 3, 1924, 4 COMP. GEN. 510

A-4668: Dec 3, 1924

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THE RETIRED PAY OF ENLISTED MEN OF THE MILITARY AND NAVAL SERVICES OF THE UNITED STATES IS NO LONGER COMPENSATION OF "AN OFFICE" WITHIN THE INTENT AND MEANING OF SECTION 2 OF THE ACT OF JULY 31. SUCH RETIRED ENLISTED MEN ARE "PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES. " WHICH IS THE AMOUNT OF THEIR RETIRED PAY. IS REQUIRED BY SECTION 4 OF THE ACT OF AUGUST 24. WHEREIN IT WAS HELD. - RETIRED ENLISTED MEN OF THE ARMY OR NAVY ARE PERSONS WITHIN THE MILITARY OR NAVAL SERVICE WITHIN THE MEANING OF THE ACT OF AUGUST 24. THEIR EMPLOYMENT BY THE CANAL IS THEREFORE NOT PROHIBITED BY THE ACT OF JULY 31. THEIR COMPENSATION FROM THE CANAL IS SUBJECT TO DEDUCTION OF THEIR RETIRED PAY THE SAME AS THOUGH ON THE ACTIVE LIST. 26 COMP.

A-4668, DECEMBER 3, 1924, 4 COMP. GEN. 510

PANAMA CANAL - COMPENSATION OF RETIRED ENLISTED MEN OF THE MILITARY AND NAVAL SERVICES EMPLOYED BY UNDER THE ACT OF MAY 31, 1924, 43 STAT. 245, THE RETIRED PAY OF ENLISTED MEN OF THE MILITARY AND NAVAL SERVICES OF THE UNITED STATES IS NO LONGER COMPENSATION OF "AN OFFICE" WITHIN THE INTENT AND MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205; HOWEVER, AND NOTWITHSTANDING THE PROVISIONS OF THE ACT OF MAY 31, 1924, SUCH RETIRED ENLISTED MEN ARE "PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES," AND, BEING IN THE SERVICE, THE AMOUNT OF THEIR "OFFICIAL SALARY," WHICH IS THE AMOUNT OF THEIR RETIRED PAY, IS REQUIRED BY SECTION 4 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561, TO BE DEDUCTED FROM THE AMOUNT OF THEIR COMPENSATION PROVIDED IN CONNECTION WITH THEIR EMPLOYMENT BY THE PANAMA CANAL.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, DECEMBER 3, 1924:

THERE HAS BEEN RECEIVED A LETTER OF AUGUST 13, 1924, FROM THE CHIEF OF OFFICE, THE PANAMA CANAL, WASHINGTON, D.C., "BY DIRECTION OF THE GOVERNOR," REFERRING TO DECISION OF SEPTEMBER 28, 1923, 3 COMP. GEN. 164, WHEREIN IT WAS HELD, QUOTING THE SYLLABUS, THAT---

RETIRED ENLISTED MEN OF THE ARMY OR NAVY ARE PERSONS WITHIN THE MILITARY OR NAVAL SERVICE WITHIN THE MEANING OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561, AND THEIR EMPLOYMENT BY THE CANAL IS THEREFORE NOT PROHIBITED BY THE ACT OF JULY 31, 1894, 28 STAT. 205, BUT THEIR COMPENSATION FROM THE CANAL IS SUBJECT TO DEDUCTION OF THEIR RETIRED PAY THE SAME AS THOUGH ON THE ACTIVE LIST. 26 COMP. DEC. 209, OVERRULED.

AND REQUESTING DECISION WHETHER, IN VIEW OF THE PROVISIONS OF THE ACT OF MAY 31, 1924, 43 STAT. 245,"THE PANAMA CANAL IS NOW REQUIRED TO DEDUCT THE AMOUNT OF RETIRED PAY RECEIVED BY RETIRED ENLISTED MEN OF THE ARMY OR NAVY EMPLOYED BY THE PANAMA CANAL FROM COMPENSATION DUE THEM UNDER THEIR PANAMA CANAL EMPLOYMENT.'

THE PROVISIONS OF THE ACT OF MAY 31, 1924, REFERRED TO ARE AS FOLLOWS:

BE IT ENACTED BY THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN CONGRESS ASSEMBLED, 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 OLLOWS: "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.'

IN DECISION OF MAY 25, 1922, 1 COMP. GEN. 700, 702, IT WAS SAID:

ENLISTED MEN ON THE RETIRED LIST ARE NOW AS MUCH A PART OF THE ARMY OR NAVY RESPECTIVELY, AS RETIRED COMMISSIONED OR WARRANT OFFICERS ARE. MERE NOMENCLATURE IS NOT MATERIAL, AND I SEE NO GROUND FOR DISTINCTION AMONG RETIRED ENLISTED MEN BETWEEN THOSE RANKING AS NONCOMMISSIONED OFFICERS OF THE ARMY OR PETTY OFFICERS OF THE NAVY AND THOSE RANKING BELOW SUCH NONCOMMISSIONED OR PETTY OFFICERS. THE TERM OFFICE AS USED IN THE ACT OF 1894 IS A BROAD GENERAL TERM WHICH HAS BEEN CONSTRUED TO INCLUDE ANY PERSON HOLDING A PLACE OR POSITION UNDER THE GOVERNMENT AND PAID FROM GOVERNMENT FUNDS. 26 COMP. DEC. 897; 1 COMP. GEN. 219. I MUST CONCLUDE, THEREFORE, THAT A RETIRED ENLISTED MAN OF THE ARMY OR NAVY HOLDS AN OFFICE WITH COMPENSATION ATTACHED WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894.

THE ACT OF JULY 31, 1894, 28 STAT. 205, PRECLUDES THOSE HOLDING AN OFFICE WITH COMPENSATION IN EXCESS OF $2,500 FROM HOLDING ANOTHER OFFICE WITH COMPENSATION. THE SPECIFIC DIRECTION OF THE ACT OF MAY 31, 1924, IS THAT THE RETIRED SERVICE MEN SHALL NOT BE CONSTRUED TO HOLD OR HAVE HELD AN OFFICE DURING SUCH RETIREMENT WITHIN THE MEANING OF THE ACT OF 1894, CITED.

THE DIRECTION OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561, IS THAT THE COMPENSATION OF THOSE WHO ARE IN THE MILITARY OR NAVAL SERVICE SHALL BE DEDUCTED FROM THE SALARY OR COMPENSATION PROVIDED FOR IN CONNECTION WITH EMPLOYMENT BY THE PANAMA CANAL. THE ENACTMENT OF MAY 31, 1924, DOES NOT EXCLUDE CONSIDERING THESE RETIRED MEN AS IN THE MILITARY OR NAVAL SERVICE AS HERETOFORE. THE EXCLUDING THEM FROM BEING CONSIDERED AS HOLDING AN OFFICE HAS RELATION WHOLLY TO THE LIMITATIONS UPON THE AMOUNT OF COMPENSATION THROUGH HOLDING TWO POSITIONS. THE ENACTMENT OF 1912 CONTINUES IN FORCE, WHICH REQUIRES THE AMOUNT OF SUCH COMPENSATION TO BE DEDUCTED FROM COMPENSATION WHERE SUCH RETIRED MEN ARE IN THE EMPLOYMENT OF THE PANAMA CANAL. IT WOULD THEREFORE APPEAR THAT THIS REQUIREMENT OF THE ACT OF 1912 MUST BE ENFORCED, NOTWITHSTANDING THE PROVISIONS OF THE ACT OF MAY 31, 1924, CITED.