A-48906, FEBRUARY 18, 1936, 15 COMP. GEN. 706

A-48906: Feb 18, 1936

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IS FOR INCLUSION IN THE RATE OF CIVILIAN COMPENSATION WHEN APPLYING THE $3. OVERTIME COMPENSATION RECEIVED BY A POSTAL EMPLOYEE ONLY FOR DUTY PERFORMED IN EXCESS OF THAT REQUIRED DURING THE REGULAR TOUR OF DUTY IS NOT TO BE INCLUDED IN COMPUTING SUCH MAXIMUM COMBINED RATE OF COMPENSATION AND RETIRED PAY. IS NEVERTHELESS RECEIVING PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AND SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30. I FAILED TO PASS THE PHYSICAL EXAMINATION NECESSARY FOR PROMOTION FROM WARRANT TO CHIEF WARRANT OFFICER IN THE NAVY AND SO WAS PLACED ON THE RETIRED LIST. OVER SIX YEARS OF MY ACTIVE SERVICE IN THE NAVY WAS AS ENLISTED MAN AND WARRANT OFFICER.

A-48906, FEBRUARY 18, 1936, 15 COMP. GEN. 706

COMPENSATION, DOUBLE - NIGHT DIFFERENTIAL - OVERTIME - POSTAL EMPLOYEES THE PERCENTAGE DIFFERENTIAL IN COMPENSATION FOR NIGHT WORK PAID TO POSTAL EMPLOYEES UNDER THE ACT OF MAY 24, 1928, 45 STAT. 725, IS FOR INCLUSION IN THE RATE OF CIVILIAN COMPENSATION WHEN APPLYING THE $3,000 FIXED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS THE MAXIMUM COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND RETIRED PAY AS AN OFFICER OF THE MILITARY OR NAVAL FORCES DURING THE SAME PERIOD OF TIME. OVERTIME COMPENSATION RECEIVED BY A POSTAL EMPLOYEE ONLY FOR DUTY PERFORMED IN EXCESS OF THAT REQUIRED DURING THE REGULAR TOUR OF DUTY IS NOT TO BE INCLUDED IN COMPUTING SUCH MAXIMUM COMBINED RATE OF COMPENSATION AND RETIRED PAY. A WARRANT OFFICER OF THE NAVY RETIRED WITH A COMMISSIONED RANK, WHO CONTINUES TO RECEIVE THE HIGHER RATE OF RETIRED PAY OF A WARRANT OFFICER UNDER A STATUTORY SAVING CLAUSE, IS NEVERTHELESS RECEIVING PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AND SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, LIMITING TO $3,000 THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 18, 1936:

REVIEW HAS BEEN REQUESTED OF THE ACTION BY THIS OFFICE DISALLOWING CREDIT FOR $95.76 IN THE ACCOUNTS OF LT. COMDR. H. W. RUSK, JR., OVER THE PERIOD JULY 1, 1932, TO MARCH 31, 1933, AND FOR $40.78 IN THE ACCOUNTS OF LT. C. H. GILLILAN OVER THE PERIOD OCTOBER 1 TO DECEMBER 31, 1934, REPRESENTING RETIRED PAY PAID TO ERNEST A. CUSHMAN, ENSIGN, IN EXCESS OF THE DIFFERENCE BETWEEN HIS CIVIL COMPENSATION AND $3,000 PER ANNUM, IN ACCORDANCE WITH THE LIMITATIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, HEREINAFTER QUOTED. IN SUPPORT OF THE REQUEST FOR REVIEW, THERE HAS BEEN FILED THE FOLLOWING STATEMENT FROM ENSIGN CUSHMAN, DATED JUNE 1, 1935:

1. I AM CARRIED ON THE PAY ROLL OF THE DISBURSING OFFICER OF THE ELEVENTH NAVAL DISTRICT AS ENSIGN (C.W.O.) U.S.N., RETIRED. I FAILED TO PASS THE PHYSICAL EXAMINATION NECESSARY FOR PROMOTION FROM WARRANT TO CHIEF WARRANT OFFICER IN THE NAVY AND SO WAS PLACED ON THE RETIRED LIST, FIRST AS CHIEF BOATSWAIN, AND LATER AS ENSIGN BECAUSE I HELD THAT RANK TEMPORARILY DURING THE WORLD WAR. OVER SIX YEARS OF MY ACTIVE SERVICE IN THE NAVY WAS AS ENLISTED MAN AND WARRANT OFFICER. I HAD SOME ACTIVE SERVICE AS TEMPORARY, BUT NONE AS PERMANENT, COMMISSIONED OFFICER.

2. SINCE OCTOBER 1929 I HAVE BEEN A REGULAR POST OFFICE CLERK. FROM JULY 1, 1932, UNTIL MARCH 31, 1933, I WAS A POST OFFICE CLERK IN THE $1,900.00 GRADE. DURING THAT PERIOD MY PAY OF $158.33 PER MONTH WAS CUT 8 1/3 PERCENT, MAKING MY ACTUAL PAY $145.14 PER MONTH. MY RETIRED PAY OF $126.00 PER MONTH WAS ALSO CUT 8 1/3 PERCENT TO $115.50 PER MONTH. TOTAL PAY THEREFORE WAS $260.64 PER MONTH.

3. IN NOVEMBER 1932 I WAS ABSENT WITHOUT PAY FROM MY POST OFFICE POSITION FOR 21 DAYS, IN DECEMBER 1932 FOR 9 DAYS, AND IN MARCH 1933 FOR 2 DAYS. THIS TIME OFF WITHOUT PAY WAS TAKEN BECAUSE OF SICKNESS AND AFTER ALL VACATION AND SICK LEAVE HAD BEEN USED.

4. DURING THE FISCAL YEAR 1933 THE TOTAL OF ALL MONEY RECEIVED FROM THE POST OFFICE, INCLUDING THE AMOUNT PLACED TO MY CREDIT IN THE CIVIL SERVICE RETIREMENT FUND, AND ON ACCOUNT OF RETIRED PAY, WAS UNDER $3,000.00.

5. IN AUGUST 1933 THE DISBURSING OFFICER H. WELLES RUSK, JR., LIEUT. COMDR. (SC) U.S.N., REQUESTED ME TO CONSENT TO A CHECK AGE OF MY RETIRED PAY IN THE AMOUNT OF $95.76, WHICH WAS $10.64 FOR 9 MONTHS, FROM JULY 1932 TO MARCH 1933, INCLUSIVE. HE REFERRED ME TO SEC. 212 OF THE ECONOMY ACT. I REFUSED TO CONSENT TO THE CHECK AGE AND GAVE THE FOLLOWING REASONS:

FIRST: I HAD OVER SIX YEARS' ACTIVE SERVICE AS ENLISTED MAN AND WARRANT OFFICER IN THE NAVY AND AT THE TIME I WAS RETIRED FOR PHYSICAL DISABILITY MY BASE PAY WAS $168.00 PER MONTH. ON THE RETIRED LIST MY PAY IS 3/4 OF THAT, OR $126.00 PER MONTH. I RECEIVE THIS RETIRED PAY BECAUSE I PERFORMED OVER SIX YEARS' ACTIVE SERVICE IN THE NAVY AS ENLISTED MAN AND WARRANT OFFICER. EVEN THOUGH I AM CARRIED ON THE RETIRED LIST AS ENSIGN OR COMMISSIONED WARRANT OFFICER MY RETIRED PAY IS BASED ON THE PAY OF WARRANT OFFICER. I CONTEND THAT I DO NOT RECEIVE RETIRED PAY BECAUSE OF ANY SERVICE I PERFORM ON THE RETIRED LIST AS A COMMISSIONED OFFICER BECAUSE I PERFORM NO SERVICE AT ALL. THE AMOUNT OF PAY AN OFFICER ON THE RETIRED LIST RECEIVES IS DETERMINED WHOLLY BY THE AMOUNT OF ACTIVE SERVICE HE HAD. NO AMOUNT OF TIME ON THE RETIRED LIST CHANGES HIS RETIRED PAY ONE CENT. THEREFORE, I CLAIM THAT I DO NOT RECEIVE RETIRED PAY "FOR OR ON ACCOUNT OF COMMISSIONED SERVICE" AND THAT MY RETIRED PAY IS NOT SUBJECT TO CHECK AGE WITHIN THE MEANING OF THE ACT. YOUR ATTENTION IS INVITED TO THE FACT THAT THE RETIRED PAY OF A WARRANT OFFICER RETIRED AS SUCH IS NOT SUBJECT TO THIS LIMITATION NOR IS THE RETAINER PAY OR RETIRED PAY OF A CHIEF PETTY OFFICER.

EVEN IF IT SHALL FINALLY BE DECIDED THAT MY CONTENTION ABOVE IS WRONG I STILL FEEL THAT THIS REQUEST FOR CHECK AGE IS NOT RIGHT FOR THIS REASON:

THE ECONOMY ACT INTENDED TO LIMIT TO $3,000.00 A YEAR THE TOTAL AMOUNT WHICH A PERSON RECEIVING RETIRED PAY FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER AND ALSO HOLDING A CIVILIAN POSITION UNDER THE U.S. GOVERNMENT MIGHT RECEIVE. SUB-PARAGRAPH (B) OF SEC. 212 STATES THAT VERY CLEARLY. THE WORD "RATE" DOES NOT APPEAR IN THAT SUB PARAGRAPH. IF I HAD WORKED IN THE POST OFFICE UNTIL THAT TIME, IN THE FISCAL YEAR, WHEN THE SUM OF WHAT I HAD EARNED IN THAT DEPARTMENT, PLUS THE ENTIRE YEAR'S RETIRED PAY EQUALED $3,000.00 AND THEN TAKEN TIME OFF WITHOUT PAY, NOT BECAUSE OF SICKNESS, I WOULD HAVE EVADED THE INTENT OF THE ACT, BUT I DID NOT DO THAT. SINCE THAT TIME I HAVE TAKEN NO TIME OFF WITHOUT PAY AND HAVE TAKEN NO STEPS TO RECOVER THE AMOUNT IN EXCESS OF $3,000.00 PER YEAR WHICH THE DISBURSING OFFICER HAS ARBITRARILY AND WITHOUT MY CONSENT CHECKED ME, ALTHOUGH I EXPECT TO GET THAT MONEY BACK.

IF THIS CHECK AGE IS FAIR WHY DOES SUB-SECTION (B) APPEAR IN THE ACT AT ALL?

6. IN ALL MY CORRESPONDENCE WITH THE DISBURSING OFFICER HE HAS FAILED TO EVEN ANSWER MY REFERENCES TO SUB-PARAGRAPH (B) AND I HAVE INFORMED HIM THAT BEFORE I CONSENT TO THE CHECK AGE I WOULD LIKE TO TRY TO GET SOME KIND OF A REASON FROM YOUR OFFICE AS TO WHY I SHOULD DO SO.

7. I HAVE RECENTLY RECEIVED FROM THE DISBURSING OFFICER, NOW LIEUT. C. H. GILLILAN, A REQUEST FOR CHECK AGE FOR THE PERIOD OCTOBER 1, 1934, TO DECEMBER 31, 1934, FOR THE AMOUNT OF MONEY, IN EXCESS OF MY BASE PAY OF $175.00 A MONTH (I AM NOW IN THE $2,100.00 GRADE), WHICH I RECEIVED ON ACCOUNT OF NIGHT DIFFERENTIAL AND OVERTIME. POST OFFICE CLERKS RECEIVE 10 PERCENT EXTRA PAY FOR ALL WORK PERFORMED BETWEEN 6.00 P.M. AND 6.00 A.M. THEY ALSO RECEIVE OVERTIME PAY WHEN THEY WORK OVERTIME. WHEN I RECEIVED THE FIRST REQUEST FOR CHECK AGE I FURNISHED THE DISBURSING OFFICER WITH A STATEMENT SHOWING THE TOTAL PAY I RECEIVED FROM THE POST OFFICE AND ON ACCOUNT OF RETIRED PAY. THIS INCLUDED ANY MONEY RECEIVED ON ACCOUNT OF NIGHT DIFFERENTIAL AND OVERTIME. NEVERTHELESS, HIS REQUEST CONCERNED ITSELF ONLY WITH BASE PAY. HE SAID, AND SINCE THAT TIME IT HAS BEEN FREQUENTLY STATED, THAT THE DETERMINING FACTOR WAS NOT THE AMOUNT OF MONEY RECEIVED BUT THE RATE OF PAY. FOR THE PERIOD IN QUESTION I WAS, TO USE POST OFFICE LANGUAGE, A CLERK IN THE $2,100.00 GRADE. I FEEL VERY SURE THAT IF ASKED MY RATE OF PAY THE POST OFFICE WOULD SAY IT WAS $2,100.00 A YEAR. I DID RECEIVE EXTRA PAY DURING THAT PERIOD FOR NIGHT DIFFERENTIAL AND OVERTIME. HOWEVER, THE AMOUNT CAN NEVER BE ACCURATELY DETERMINED UNTIL THE END OF A PAY PERIOD. ALL PAY PERIODS DO NOT CONTAIN THE SAME NUMBER OF SATURDAYS, SUNDAYS, OR HOLIDAYS. WHEN VACATION OR SICK LEAVE IS TAKEN NO NIGHT DIFFERENTIAL IS EARNED. PART OF A CLERK'S WORK-DAY MAY BE SUBJECT TO NIGHT DIFFERENTIAL AND PART MAY NOT. A CLERK DOES NOT ALWAYS WORK THE SAME SHIFT. IF MY RATE OF PAY IS TO BE CONSIDERED THE SUM OF MY BASE PAY PLUS THE EXTRA RECEIVED ON ACCOUNT OF NIGHT DIFFERENTIAL AND OVERTIME IT WILL BE CONSTANTLY CHANGING RATE. THE ONLY WAY AN ACCURATE CHECK AGE OF THAT EXTRA PAY COULD BE MADE WOULD BE TO WAIT UNTIL THE END OF THE PAY PERIOD, FIND OUT THE AMOUNT FROM ME OR THE POST OFFICE, AND THEN CHECK THE NEXT MONTH'S RETIRED PAY. IF I DIED BEFORE THE CHECK AGE WAS COMPLETED FURTHER DIFFICULTIES WOULD BE ENCOUNTERED. IT SEEMS TO ME THAT THE SMALL AMOUNT INVOLVED MAKES CHECKING IMPRACTICABLE. I AM NOW BEING CHECKED $51.00 PER MONTH, FIGURING MY BASE PAY AS MY RATE OF PAY. IT IS VERY DIFFICULT FOR ME TO SEE HOW ANYONE CAN FIGURE MY POST OFFICE RATE OF PAY OTHER THAN $2,100.00 PER YEAR.

8. IN THE CASE OF THE FIRST CHECK AGE, ALTHOUGH I ACTUALLY RECEIVED LESS THAN $3,000.00 FOR THE FISCAL YEAR, I AM ASKED TO CONSENT TO A CHECK AGE BECAUSE MY RATE OF PAY WAS SUCH THAT IF I HAD NOT HAD TO TAKE TIME OFF WITHOUT PAY BECAUSE OF SICKNESS I WOULD HAVE RECEIVED OVER $3,000.00 FOR THE FISCAL YEAR. IN THE LATTER CASE, BECAUSE I RECEIVED A LITTLE OVER $3,000.00 FOR THE YEAR, BY USING A RATE OF PAY WHICH IS NOT FIXED AND CANNOT BE DETERMINED IN ADVANCE AND WHICH, IN THE OPINION OF THE POST OFFICE DEPARTMENT I AM SURE WOULD NOT BE CONSIDERED MY RATE OF PAY AT ALL, I AM AGAIN ASKED TO CONSENT TO CHECK AGE.

9. I AM VERY ANXIOUS TO HAVE THOSE CHECK AGES CLEARED UP. THEY HAVE HUNG FIRE TOO LONG. I WANT NOTHING TO WHICH I AM NOT ENTITLED. IT SEEMS TO ME THAT THERE IS NO FAIRNESS AT ALL IN THIS LAW LIMITING THE INCOME OF PERSONS IN MY STATUS. HOWEVER, IT IS THE LAW, I SUPPOSE. IT WOULD BE GREATLY APPRECIATED BY ME AND BY SOME OTHERS IF YOUR OFFICE WOULD EXPLAIN TO ME WHY I SHOULD CONSENT TO THESE CHECK AGES.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, PROVIDES:

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 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.

THE 10 PERCENT (OR 5 PERCENT DURING THE PERIOD SECTION 211 OF THE ECONOMY ACT OF JUNE 30, 1932, WAS IN EFFECT) DIFFERENTIAL PAID TO POSTAL EMPLOYEES UNDER THE ACT OF MAY 24, 1928, 45 STAT. 725, WHEN ENGAGED ON NIGHT WORK CONSTITUTES A FACTOR IN ESTABLISHING THE RATE OF COMPENSATION FOR PURPOSES OF FIXING THE LIMITATION PRESCRIBED BY THE STATUTE, SUPRA, A-46901, JULY 13, 1933. OVERTIME PAY, HOWEVER, IS IN ADDITION TO THE REGULAR RATE OF COMPENSATION, BEING PAYABLE ONLY FOR DUTY PERFORMED IN EXCESS OF THAT REQUIRED UPON THE REGULAR TOUR OF DUTY, AND AS SUCH DOES NOT CONSTITUTE A FACTOR FOR ESTABLISHING THE RATE OF COMPENSATION WITHIN THE MEANING OF THE ACT. THE INCLUSION OF OVERTIME PAY IN THE COMPUTATION OF THE MAXIMUM PAY UNDER SECTION 212, THEREFORE, WAS ERRONEOUS.

WITH RESPECT TO THE NONPAY STATUS OF THE CLAIMANT FOR A PART OF THE PERIOD INVOLVED, IT WAS HELD IN DECISION, 12 COMP. GEN. 448, THAT:

FOR ANY PERIOD AN OFFICER OR EMPLOYEE IS IN A NONPAY STATUS IN HIS CIVILIAN OFFICE OR POSITION OTHER THAN WHEN ON LEGISLATIVE FURLOUGH UNDER SECTION 101 (B) OF THE ECONOMY ACT, THE RESTRICTION OF SECTION 212 OF THE ECONOMY ACT, LIMITING TO THE COMBINED RATE OF $3,000 PER ANNUM, THE RECEIPT OF SALARY OF HIS CIVILIAN OFFICE OR POSITION AND RETIRED PAY, IS NOT APPLICABLE, BUT PAYMENT OF THE FULL AMOUNT OF RETIRED PAY LESS PERCENTAGE REDUCTION UNDER SECTION 106 OF THE ECONOMY ACT IS AUTHORIZED.

FROM REPORTS DATED NOVEMBER 12 AND 13, 1935, FROM THE POSTMASTERS AT EVERETT, WASH., AND SAN DIEGO, CALIF., IT APPEARS THIS EMPLOYEE WAS ABSENT WITHOUT PAY AT VARIOUS TIMES BETWEEN JULY 1, 1932, AND OCTOBER 30, 1935, AND, ACCORDINGLY, FOR SUCH TIMES HE BECAME ENTITLED UNDER THE DECISION, SUPRA, TO HIS FULL RATE OF RETIRED PAY.

WITH RESPECT TO THE OFFICER'S COMMISSIONED STATUS, IT APPEARS FROM THE RECORD THAT BY ORDERS OF JUNE 20, 1928, HE WAS INFORMED OF HIS RETIREMENT EFFECTIVE JUNE 26, 1928, AND THAT HE WOULD BE PLACED ON THE RETIRED LIST WITH THE RANK OF CHIEF BOATSWAIN IN ACCORDANCE WITH THE PROVISIONS OF U.S.C. TITLE 34, SECTIONS 417 AND 390. HE WAS ADVANCED ON THE RETIRED LIST JUNE 21, 1930, TO THE RANK OF ENSIGN, PURSUANT TO THE ACT OF THAT DATE, 46 STAT. 793. HE CONTINUED, HOWEVER, TO DRAW THE RETIRED PAY OF A BOATSWAIN, THAT BEING GREATER THAN THE PAY OF CHIEF BOATSWAIN. HIS ADVANCE TO THE RANK OF ENSIGN INVOLVED NO CHANGE IN HIS PAY STATUS. THE FACT REMAINS, HOWEVER, THAT HE WAS RETIRED AS A COMMISSIONED WARRANT OFFICER AND BY REASON OF THAT FACT WAS ENTITLED TO THE RETIRED PAY OF THAT COMMISSIONED RANK. WHILE HIS PRESENT RETIRED PAY IS COMPUTED ON THE PAY OF A WARRANT OFFICER, IT IS, NEVERTHELESS, THE APPROPRIATE PAY OF HIS COMMISSIONED RANK BY REASON OF THE SAVING CLAUSE APPLICABLE IN SUCH CASES.

THE COMBINED RATES OF CIVILIAN AND RETIRED PAY EXCEEDED $3,000 PER ANNUM AND, ACCORDINGLY, THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA, WERE FOR APPLICATION, 12 COMP. GEN. 37; ID. 256. HIS PAY ACCOUNT WILL BE RESTATED ALLOWING CREDIT FOR FULL RETIREMENT PAY DURING HIS ABSENCE WITHOUT PAY FROM HIS CIVILIAN POSITION AND WITHOUT TAKING INTO CONSIDERATION OVERTIME PAY. OTHERWISE THE DISALLOWANCE MUST BE AND IS SUSTAINED.