A-77207, SEPTEMBER 12, 1936, 16 COMP. GEN. 232

A-77207: Sep 12, 1936

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IS AS FOLLOWS: MR. POST IS A RETIRED WARRANT OFFICER OF THE UNITED STATES ARMY. COPY OF WHICH IS INCLOSED. POST IS A RETIRED WARRANT OFFICER. ATTENTION IS INVITED TO THE FACT THAT IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C. A DISTINCTION IS MADE BETWEEN THE TERMS "COMMISSIONED OFFICER" AND "COMMISSIONED WARRANT OFFICER" AND "WARRANT OFFICER.'. IT IS THOUGHT THAT THIS DISTINCTION MAY BE TAKEN TO INDICATE THAT THE TERM "COMMISSIONED OFFICER" CONTAINED IN SECTION 212 OF THE ECONOMY ACT IS NOT TO BE UNDERSTOOD AS INCLUDING COMMISSIONED WARRANT OFFICERS OR WARRANT OFFICERS. IT IS NOT CLEAR THEREFORE THAT MR. A RULING IS REQUESTED AS TO WHETHER HE IS TO BE CONSIDERED AS SUBJECT TO THE PROVISIONS OF THE ACT IN THAT THE COMBINED RETIRED PAY AND THE COMPENSATION PAID IN HIS PRESENT POSITION MAY NOT EXCEED $3.

A-77207, SEPTEMBER 12, 1936, 16 COMP. GEN. 232

COMPENSATION - DOUBLE - ARMY WARRANT OFFICER RETIRED FOR DISABILITY IN LINE OF DUTY A WARRANT OFFICER OF THE ARMY RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY, WHO HAS HAD NO SERVICE AS A COMMISSIONED OFFICER, MAY BE APPOINTED TO A CIVILIAN POSITION IN THE FEDERAL SERVICE WITHOUT REGARD TO THE DUAL COMPENSATION ACTS OF JULY 31, 1894, 28 STAT. 205, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245; MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, AND SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ACTING SECRETARY OF WAR, SEPTEMBER 12, 1936:

YOUR LETTER OF AUGUST 27, 1936, IS AS FOLLOWS:

MR. PHILIP T. POST HAS BEEN APPOINTED TO THE POSITION OF CLERK, CAF 4, AT $1,800 PER ANNUM IN THE ENGINEER DEPARTMENT, BALTIMORE, MARYLAND, BY SELECTION FROM CIVIL SERVICE CERTIFICATE FURNISHED BY THE CIVIL SERVICE DISTRICT MANAGER. IT DEVELOPS THAT MR. POST IS A RETIRED WARRANT OFFICER OF THE UNITED STATES ARMY, RETIRED FOR DISABILITY, UNDER PARAGRAPH 10, SPECIAL ORDERS 268, WAR DEPARTMENT, NOVEMBER 16, 1933, COPY OF WHICH IS INCLOSED.

WHILE MR. POST IS A RETIRED WARRANT OFFICER, HE HAS NEVER BEEN A COMMISSIONED OFFICER AT ANY TIME. THE QUESTION THEREFORE ARISES AS TO WHETHER HIS CASE COMES WITHIN THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, PUBLIC, NO. 212, 72D CONGRESS, THE LANGUAGE OF WHICH REFERS TO COMMISSIONED OFFICERS ALONE. ATTENTION IS INVITED TO THE FACT THAT IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C. TITLE 37), REFERRED TO IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, A DISTINCTION IS MADE BETWEEN THE TERMS "COMMISSIONED OFFICER" AND "COMMISSIONED WARRANT OFFICER" AND "WARRANT OFFICER.' IT IS THOUGHT THAT THIS DISTINCTION MAY BE TAKEN TO INDICATE THAT THE TERM "COMMISSIONED OFFICER" CONTAINED IN SECTION 212 OF THE ECONOMY ACT IS NOT TO BE UNDERSTOOD AS INCLUDING COMMISSIONED WARRANT OFFICERS OR WARRANT OFFICERS. IT IS NOT CLEAR THEREFORE THAT MR. POST COMES WITHIN THE PROVISIONS OF LAW CITED, AND A RULING IS REQUESTED AS TO WHETHER HE IS TO BE CONSIDERED AS SUBJECT TO THE PROVISIONS OF THE ACT IN THAT THE COMBINED RETIRED PAY AND THE COMPENSATION PAID IN HIS PRESENT POSITION MAY NOT EXCEED $3,000 PER ANNUM.

IF THE ANSWER TO THE QUESTION PRESENTED IN THE PRECEDING PARAGRAPH SHOULD BE IN THE AFFIRMATIVE, A RULING IS REQUESTED AS TO WHETHER MR. POST HAS THE NEEDED AMOUNT. IF HE HAS NO CHOICE IN THE MATTER, IS IT MANDATORY THAT HIS RETIRED PAY BE REDUCED TO SUCH A DEGREE THAT THE COMBINED COMPENSATIONS WILL NOT EXCEED $3,000?

WHILE NOT MATERIAL IN THIS CASE IN VIEW OF THE FOREGOING STATEMENT IT IS NOT INAPPROPRIATE TO CALL TO YOUR ATTENTION THE FACT THAT A COMMISSIONED WARRANT OFFICER (SO FAR AS KNOWN THE GRADE OR RANK DOES NOT EXIST IN THE ARMY) IS A COMMISSIONED OFFICER AND IS WITHIN THE PLAIN LANGUAGE OF SECTION 212 OF THE ECONOMY ACT.

EXTRACT FROM SPECIAL ORDERS OF THE WAR DEPARTMENT NO. 268, DATED NOVEMBER 16, 1933, STATES AS FOLLOWS:

WARRANT OFFICER PHILIP T. POST, W-800260, HAVING BEEN FOUND BY AN ARMY RETIRING BOARD INCAPACITATED FOR ACTIVE SERVICE ON ACCOUNT OF PHYSICAL DISABILITY INCIDENT THERETO, AND SUCH FINDINGS HAVING BEEN APPROVED BY THE PRESIDENT, HIS RETIREMENT FROM ACTIVE SERVICE UNDER THE PROVISIONS OF SECTION 4A OF THE ACT OF CONGRESS APPROVED JUNE 4, 1920, AND SECTION 1251, REVISED STATUTES, EFFECTIVE NOVEMBER 30, 1933, IS ANNOUNCED.

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

(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.

THE NATIONAL DEFENSE ACT OF JUNE 4, 1920, 41 STAT. 760, PROVIDES SEPARATELY FOR "OFFICERS," ,WARRANT OFFICERS," AND "ENLISTED MEN" OF THE ARMY, SECTION 4A OF THE STATUTE WITH RELATION TO ,WARRANT OFFICERS" BEING AS FOLLOWS:

WARRANT OFFICERS.--- IN ADDITION TO THOSE AUTHORIZED FOR THE ARMY MINE PLANTER SERVICE, THERE SHALL BE NOT MORE THAN ONE THOUSAND ONE HUNDRED AND TWENTY WARRANT OFFICERS, INCLUDING BAND LEADERS, WHO SHALL HEREAFTER BE WARRANT OFFICERS. APPOINTMENTS SHALL BE MADE BY THE SECRETARY OF WAR FROM AMONG NONCOMMISSIONED OFFICERS WHO HAVE HAD AT LEAST TEN YEARS' ENLISTED SERVICE; ENLISTED MEN WHO SERVED AS OFFICERS OF THE ARMY AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, AND WHOSE TOTAL SERVICE IN THE ARMY, ENLISTED AND COMMISSIONED, AMOUNTS TO FIVE YEARS; PERSONS SERVING OR WHO HAVE SERVED AS ARMY FIELD CLERKS OR FIELD CLERKS, QUARTERMASTER CORPS; AND, IN THE CASE OF THOSE WHO ARE TO BE ASSIGNED TO DUTY AS BAND LEADERS, FROM AMONG PERSONS WHO SERVED AS ARMY BAND LEADERS AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, OR ENLISTED MEN POSSESSING SUITABLE QUALIFICATIONS. HEREAFTER NO APPOINTMENTS AS ARMY FIELD CLERKS OR FIELD CLERKS, QUARTERMASTER CORPS, SHALL BE MADE. WARRANT OFFICERS OTHER THAN THOSE OF THE ARMY MINE PLANTER SERVICE, SHALL RECEIVE BASE PAY OF $1,320 A YEAR AND THE ALLOWANCES OF A SECOND LIEUTENANT, SHALL BE ENTITLED TO LONGEVITY PAY AND TO RETIREMENT UNDER THE SAME CONDITIONS AS COMMISSIONED OFFICERS; AND SHALL TAKE RANK NEXT BELOW SECOND LIEUTENANT AND AMONG THEMSELVES ACCORDING TO THE DATES OF THEIR RESPECTIVE WARRANTS.

SECTION 9 OF THE JOINT PAY ACT OF JUNE 10, 1922, 42 STAT. 629, MENTIONED IN SECTION 212 OF THE ECONOMY ACT QUOTED ABOVE, FIXES THE BASE PAY RATES OF WARRANT OFFICERS AND PROVIDES FOR LONGEVITY INCREASES ON A DIFFERENT BASIS THAN THAT PROVIDED BY LAW FOR COMMISSIONED OFFICERS. WARRANT OFFICERS OF THE ARMY MINE PLANTER SERVICE WERE CREATED BY THE ACT OF JULY 9, 1918, 40 STAT. 881, AND IN DECISION OF APRIL 10, 1919, 26 COMP. DEC. 756, IT WAS HELD THAT THEY WERE NEITHER COMMISSIONED OFFICERS NOR ENLISTED MEN WITHIN THE MEANING OF THE ACT OF JUNE 30, 1902, 32 STAT. 512, AUTHORIZING INCREASE OF PAY FOR FOREIGN SERVICE. COMPARE 6 COMP. DEC. 495, HOLDING THAT WARRANT OFFICERS OF THE NAVY ARE NOT INCLUDED IN A STATUTORY PROVISION APPLICABLE TO COMMISSIONED OFFICERS. TO ACCOMPLISH OTHER OBJECTS OF THE ACT WARRANT OFFICERS WERE SPECIFICALLY INCLUDED WITHIN THE DEFINITION OF THE TERM "COMMISSIONED OFFICER" IN THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 401. IN ORDER TO FIX THE MONEY ALLOWANCE FOR SUBSISTENCE FOR WARRANT OFFICERS ON THE SAME BASIS AS THAT PROVIDED FOR COMMISSIONED OFFICERS IN THE FIRST PAY PERIOD, IT WAS NECESSARY TO SO PROVIDE SPECIFICALLY BY STATUTE. SEE SECTION 11 OF THE ACT OF JUNE 10, 1922, 42 STAT. 630 AND 6 COMP. GEN. 550.

IT SEEMS CLEAR, THEREFORE, THAT THE PHRASE UNDERSCORED IN THE QUOTATION OF SECTION 212 OF THE ECONOMY ACT, VIZ,"FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER" WAS NOT INTENDED TO AND DOES NOT INCLUDE SERVICE AS A WARRANT OFFICER OF THE ARMY, AND THAT A WARRANT OFFICER OF THE ARMY WHO HAS NEVER BEEN A COMMISSIONED OFFICER AND HAS BEEN RETIRED AS A WARRANT OFFICER, AS IN THE CASE OF PHILIP T. POST, IS NOT SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT.

THE DUAL COMPENSATION ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, PROVIDES AS FOLLOWS:

* * * 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. 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.

THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES AS FOLLOWS:

SEC. 6. THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR TO OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA *

IT HAS BEEN HELD THAT A WARRANT OFFICER OF THE ARMY IS AN "OFFICER" OF THE ARMY. 6 COMP. GEN. 433; ALSO THAT WARRANT OFFICERS OF THE NAVY ARE "OFFICERS" OF THE NAVY. BROWN V. UNITED STATES, 113 U.S. 568, AND KATZER V. UNITED STATES, 52 CT. CLS. 32.

HIS RETIREMENT HAVING BEEN FOR DISABILITY INCURRED IN LINE OF DUTY HE WOULD NOT BE REGARDED AS HOLDING AN OFFICE WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF 1894, AS AMENDED, AND BEING A RETIRED OFFICER OF THE ARMY HE WOULD BE EXCEPTED FROM THE RESTRICTIONS OF THE DUAL COMPENSATION ACT OF 1916, AS AMENDED.

YOU ARE ADVISED, THEREFORE, THAT IF HE IS OTHERWISE QUALIFIED, THERE APPEARS TO BE NO LEGAL OBJECTION TO THE APPOINTMENT OF PHILIP T. POST TO THE CIVILIAN POSITION AS PROPOSED; THAT HIS RETIRED PAY WILL NOT BE REDUCED THEREBY; AND THAT HIS SALARY RATE IN THE CIVILIAN POSITION MAY BE FIXED WITHOUT REGARD TO ANY OF THE CITED DUAL COMPENSATION STATUTES.