A-4873, DECEMBER 2, 1924, 4 COMP. GEN. 506

A-4873: Dec 2, 1924

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH APPOINTMENT WHEN MADE WAS CONTRARY TO THE ACT OF JULY 31. WAS APPOINTED APRIL 1. WAS TRANSFERRED JULY 1. THE DISALLOWANCE WAS MADE ON THE GROUND THAT THE APPOINTMENT UNDER WHICH DR. BARNEY WAS SERVING IN THE BUREAU OF WAR RISK INSURANCE AND THE VETERANS' BUREAU WAS CONTRARY TO SECTION 2 OF THE ACT OF/JULY 31. WHICH PROVIDES: * * * 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. IS AMENDED BY ADDING AT THE END THEREOF A NEW SENTENCE TO READ AS FOLLOWS: "RETIRED ENLISTED MEN OF THE ARMY.

A-4873, DECEMBER 2, 1924, 4 COMP. GEN. 506

COMPENSATION, DOUBLE - RETIRED ARMY OFFICERS THE ACT OF MAY 31, 1924, 43 STAT. 245, AMENDING SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, HAS THE EFFECT OF VALIDATING PAYMENTS MADE TO A RETIRED ARMY OFFICER, RETIRED FOR INCAPACITY INCURRED IN LINE OF DUTY, FOR SERVICES RENDERED UNDER AN APPOINTMENT AS ACTING ASSISTANT SURGEON, TEMPORARY, IN THE BUREAU OF WAR RISK INSURANCE, WHICH APPOINTMENT WHEN MADE WAS CONTRARY TO THE ACT OF JULY 31, 1894.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 2, 1924:

THE DIRECTOR, UNITED STATES VETERANS' BUREAU, HAS REQUESTED REVIEW OF SETTLEMENT NO. M-8599-V, DATED JULY 5, 1924, DISALLOWING CREDIT IN THE ACCOUNTS OF WILLIAM H. HOLMES, DISBURSING CLERK. UNITED STATES VETERANS' BUREAU, FOR PAYMENTS AGGREGATING $1,500 MADE TO LIEUT.COL. CHARLES N. BARNEY, RETIRED (MEDICAL CORPS), UNITED STATES ARMY, FOR SERVICES RENDERED AS AN ACTING ASSISTANT SURGEON, TEMPORARY, DURING THE PERIOD FROM AUGUST 1, 1921, TO JANUARY 31, 1922.

IT APPEARS THAT DOCTOR BARNEY, HAVING BEEN RETIRED FROM ACTIVE DUTY IN THE ARMY FOR INCAPACITY INCURRED IN LINE OF DUTY AND RECEIVING PAY AT THE RATE OF $3,375 PER ANNUM AS SUCH RETIRED OFFICER, WAS APPOINTED APRIL 1, 1921, AS TEMPORARY ACTING ASSISTANT SURGEON IN THE PUBLIC HEALTH SERVICE WITH COMPENSATION AT THE RATE OF $3,000 PER ANNUM, AND WAS TRANSFERRED JULY 1, 1921, TO THE BUREAU OF WAR RISK INSURANCE AS ACTING ASSISTANT SURGEON, TEMPORARY, AT SAME SALARY.

THE DISALLOWANCE WAS MADE ON THE GROUND THAT THE APPOINTMENT UNDER WHICH DR. BARNEY WAS SERVING IN THE BUREAU OF WAR RISK INSURANCE AND THE VETERANS' BUREAU WAS CONTRARY TO SECTION 2 OF THE ACT OF/JULY 31, 1894, 28 STAT. 205, WHICH PROVIDES:

* * * 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 PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

THE ACT OF MAY 31, 1924, 43 STAT. 245, PROVIDES AS FOLLOWS:

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.'

IT HAS BEEN HELD THAT A RETIRED OFFICER OR ENLISTED MAN OF THE ARMY OR NAVY HOLDS AN OFFICE WITHIN THE MEANING OF SAID ACT OF JULY 31,1894, CITED, AND THAT SUCH RETIRED OFFICER OR ENLISTED MAN WAS PROHIBITED BY SAID ACT FROM BEING APPOINTED TO OR HOLDING ANOTHER OFFICE NOT COVERED BY THE EXPRESS EXCEPTION IN THE ACT, PROVIDED HIS RETIRED PAY OR THE SALARY ATTACHED TO THE OTHER OFFICE AMOUNTED TO $2,500 OR MORE PER ANNUM. SEE 1 COMP. GEN. 219, 571, 700, AND CASES THEREIN CITED.

IN 3 COMP. GEN. 1009, IT WAS HELD THAT BY REASON OF THE AMENDMENT OF 1924, CITED, A RETIRED OFFICER OF THE NAVY RETIRED FOR INCAPACITY INCURRED IN LINE OF DUTY WAS ELIGIBLE FOR APPOINTMENT TO AN OFFICE TO WHICH HE WOULD HAVE BEEN INELIGIBLE UNDER THE ORIGINAL ACT OF 1894.

THE QUESTION HERE PRESENTED IS WHETHER THE SAID AMENDMENT HAS THE EFFECT OF VALIDATING THE PAYMENT IN QUESTION MADE TO DR. BARNEY.

IN THE ARMY APPROPRIATION ACT MARCH 2, 1923, 42 STAT. 1384, IT IS PROVIDED:

PAYMENTS HERETOFORE MADE TO RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, UNDER APPOINTMENTS TO CIVIL OFFICES WITH A COMPENSATION OF $2500 OR MORE PER ANNUM, ARE HEREBY VALIDATED.

THIS PROVISION VALIDATED THE PAYMENTS THERETOFORE MADE TO RETIRED ENLISTED MEN UNDER APPOINTMENTS TO CIVIL OFFICE IN VIOLATION OF THE ACT OF 1894, BUT DID NOT EXCEPT THEM FROM THE OPERATION OF THAT ACT, NOR DID IT APPLY TO RETIRED OFFICERS. THE AMENDMENT OF MAY 31, 1924, CITED, NOW SO PROVIDES, AND IT IS CONCLUDED THAT THE SAID AMENDMENT HAD THE EFFECT OF VALIDATING THE PAYMENTS MADE TO DR. BARNEY UNDER HIS APPOINTMENT AS ACTING ASSISTANT SURGEON, TEMPORARY, IN THE BUREAU OF WAR RISK INSURANCE AND THE VETERANS' BUREAU.

UPON REVIEW THERE IS CERTIFIED A CREDIT OF $1,500 IN THE ACCOUNTS OF WILLIAM H. HOLMES, DISBURSING CLERK, UNITED STATES VETERANS' BUREAU.