A-55759, JUNE 16, 1934, 13 COMP. GEN. 448

A-55759: Jun 16, 1934

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COMPENSATION - DOUBLE - RETIRED PAY AND PART-TIME CIVILIAN COMPENSATION A RETIRED ARMY OFFICER WHOSE RETIRED PAY IS IN EXCESS OF THE RATE OF $3. WHICH FORM OF PAYMENT HE WILL RECEIVE. IS NOT ENTITLED TO BOTH HIS CIVILIAN COMPENSATION FOR THE DAYS HE WORKS AND HIS RETIRED PAY FOR NONWORK DAYS IN HIS CIVILIAN POSITION. AS FOLLOWS: ATTACHED HERETO IS A VOUCHER COVERING RETIRED PAY TO BRIGADIER GENERAL PELHAM D. WHICH IS BEFORE THE UNDERSIGNED. IT APPEARS THAT GENERAL GLASSFORD WAS DESIGNATED BY THE LABOR DEPARTMENT AS CONCILIATOR FOR THE IMPERIAL VALLEY LABOR DISPUTE AT A PER DIEM OF $20.00 PLUS EXPENSES. THIS VOUCHER IS COMPUTED TO ALLOW THE OFFICER 10 DAYS' FULL RETIRED PAY. IT WAS HELD THAT IN APPLYING THE LIMITATION OF $3.

A-55759, JUNE 16, 1934, 13 COMP. GEN. 448

COMPENSATION - DOUBLE - RETIRED PAY AND PART-TIME CIVILIAN COMPENSATION A RETIRED ARMY OFFICER WHOSE RETIRED PAY IS IN EXCESS OF THE RATE OF $3,000 PER ANNUM, OCCUPYING A PART-TIME CIVILIAN POSITION FOR WHICH THE ANNUAL RATE OF COMPENSATION ON A FULL-TIME BASIS ALSO WOULD BE IN EXCESS OF $3,000, MUST ELECT UNDER THE TERMS OF SECTION 212 OF THE ECONOMY ACT, WHICH FORM OF PAYMENT HE WILL RECEIVE, AND IS NOT ENTITLED TO BOTH HIS CIVILIAN COMPENSATION FOR THE DAYS HE WORKS AND HIS RETIRED PAY FOR NONWORK DAYS IN HIS CIVILIAN POSITION.

COMPTROLLER GENERAL MCCARL TO MAJOR E. C. MORTON, UNITED STATES ARMY, JUNE 16, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 17, 1934, AS FOLLOWS:

ATTACHED HERETO IS A VOUCHER COVERING RETIRED PAY TO BRIGADIER GENERAL PELHAM D. GLASSFORD, U.S.A., RETIRED, FOR THE PERIOD APRIL 1ST TO APRIL 30, 1934, WHICH IS BEFORE THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT.

IT APPEARS THAT GENERAL GLASSFORD WAS DESIGNATED BY THE LABOR DEPARTMENT AS CONCILIATOR FOR THE IMPERIAL VALLEY LABOR DISPUTE AT A PER DIEM OF $20.00 PLUS EXPENSES. HE STATES THAT HE PERFORMED THE DUTIES OF CONCILIATOR DURING THE PERIOD APRIL 4TH TO 12, INCLUSIVE, AND APRIL 20TH TO 30, INCLUSIVE, A TOTAL OF 20 DAYS DURING THE MONTH OF APRIL 1934. THIS VOUCHER IS COMPUTED TO ALLOW THE OFFICER 10 DAYS' FULL RETIRED PAY.

IN YOUR DECISION OF AUGUST 17, 1932, (12 COMP. GEN. 256), IT WAS HELD THAT IN APPLYING THE LIMITATION OF $3,000.00 PER ANNUM UNDER SECTION 212 OF THE ECONOMY ACT ON THE COMBINED RATE OF COMPENSATION IN A CIVIL 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.

IN VIEW OF THE ABOVE-MENTIONED DECISION, THE UNDERSIGNED IS IN DOUBT AS TO WHETHER GENERAL GLASSFORD IS ENTITLED TO RETIRED PAY DURING THE PERIOD THAT HE IS NOT ACTUALLY ENGAGED ON THESE DUTIES WHILE HOLDING THIS POSITION AND YOUR DECISION IS RESPECTFULLY REQUESTED IN THE MATTER.

GENERAL GLASSFORD'S NET RETIRED PAY, AFTER MAKING THE PERCENTAGE DEDUCTION, IS AT A RATE IN EXCESS OF $3,000 PER ANNUM. THE TELEGRAM OF MARCH 26, 1934, FROM THE SECRETARY OF LABOR TO GENERAL GLASSFORD STATES AS FOLLOWS:

SECRETARY OF LABOR AND AGRICULTURE AND CHAIRMAN OF NATIONAL LABOR BOARD WISH TO DESIGNATE YOU, EFFECTIVE APRIL 3, 1934, AS CONCILIATOR FOR IMPERIAL VALLEY DISPUTE STOP WE WILL FORWARD ALL DATA IN WASHINGTON FILES AND NECESSARY OFFICIAL DOCUMENTS STOP GOVERNMENT IS WILLING TO PAY TWENTY DOLLARS PER DIEM PLUS EXPENSES UNLESS YOUR PENSION FROM FEDERAL GOVERNMENT AND ECONOMY ACT PREVENT THIS STOP IF YOU CAN ACCEPT WILL YOU WIRE COLLECT YOUR TELEPHONE NUMBER.

THE RATE OF COMPENSATION OF $20 PER DIEM, WHETHER COMPUTED ON THE BASIS OF 307, 312, OR 360 DAYS PER ANNUM, IS EQUIVALENT TO A RATE IN EXCESS OF $3,000 PER ANNUM.

IN DECISION OF AUGUST 17, 1932, 12 COMP. GEN. 256, 257, CITED BY YOU, IT WAS HELD AS FOLLOWS:

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, 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.

A RETIRED OFFICER WHOSE RETIRED PAY AND CIVILIAN COMPENSATION ARE BOTH AT A RATE IN EXCESS OF $3,000 PER ANNUM MUST, UNDER THE STATUTE, ELECT WHICH HE WILL RECEIVE.

YOU ARE ADVISED, THEREFORE, THAT AS THE RATE OF RETIRED PAY AND THE RATE OF COMPENSATION IN THE CIVILIAN POSITION WHICH IS ONLY PART TIME, BOTH EXCEED $3,000 PER ANNUM, GENERAL GLASSFORD IS NOT ENTITLED TO RETIRED PAY FOR NONWORK DAYS IN HIS CIVILIAN POSITION, BUT MUST ELECT WHICH FORM OF PAYMENT HE WILL RECEIVE, AND UNLESS AND UNTIL HE HAS DONE SO--- THERE BEING NO EVIDENCE OF RECORD AS TO RECEIPT OF CIVILIAN COMPENSATION--- THE VOUCHER IN QUESTION IS NOT AUTHORIZED TO BE PAID.