A-87440, SEPTEMBER 11, 1937, 17 COMP. GEN. 238

A-87440: Sep 11, 1937

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DURING THE SAME DAY ON WHICH HE WAS DISCHARGED FROM THE CORPS. FROM THE CHIEF EXAMINER OF YOUR COMMISSION IS AS FOLLOWS: THE COMMISSION IS IN RECEIPT OF THE RETIREMENT RECORD CARD. IS $26.13. INDICATING THAT DUAL SALARY WAS PAID TO THIS EMPLOYEE FOR ONE DAY. IT IS REQUESTED THAT THE SALARY REPORTED AS HAVING BEEN PAID BE VERIFIED AND INSTRUCTIONS ISSUED FOR A TRANSFER OF FUNDS. WITH THE ABOVE-QUOTED LETTER THERE WAS ENCLOSED A LETTER DATED APRIL 30. AS FOLLOWS: YOU ARE ADVISED THAT MR. HUDSON WAS EMPLOYED CONCURRENTLY BY THE FOREST SERVICE OF THIS DEPARTMENT AND BY THE CIVILIAN CONSERVATION CORPS OF THE WAR DEPARTMENT ON NOVEMBER 28. WHEN HE WAS PAID THE GROSS AMOUNT OF $5.50. WAS DISCHARGED ON NOVEMBER 28.

A-87440, SEPTEMBER 11, 1937, 17 COMP. GEN. 238

COMPENSATION--- DOUBLE--- PART OF A DAY AN ENROLLEE OF THE CIVILIAN CONSERVATION CORPS, PAID ON A MONTHLY BASIS, WHO REPORTED FOR DUTY WITH THE FOREST SERVICE UNDER A PROBATIONARY APPOINTMENT, ON A PER HOUR BASIS, DURING THE SAME DAY ON WHICH HE WAS DISCHARGED FROM THE CORPS, AND WHOSE COMBINED SALARIES EXCEEDED THE RATE OF $2,000 PER ANNUM, IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTE OF MAY 10, 1916, AS AMENDED, 39 STAT. 120, 582, MAY, IN THE ABSENCE OF AN ELECTION, BE PRESUMED TO ELECT TO RETAIN THE COMPENSATION UNDER THE POSITION WHICH WOULD GIVE HIM THE GREATER SUM, AND THE DEDUCTION, ON ACCOUNT OF THE OVERLAPPING PERIOD OF EMPLOYMENT, FROM AMOUNT TO HIS CREDIT IN RETIREMENT FUND SHOULD BE COMPUTED ON THE BASIS OF THE ACTUAL NUMBER OF HOURS OF DUAL EMPLOYMENT INVOLVED RATHER THAN ON THE BASIS OF THE ENTIRE DAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 11, 1937:

LETTER DATED MAY 15, 1937 (SRR:ELT:NEF), FROM THE CHIEF EXAMINER OF YOUR COMMISSION IS AS FOLLOWS:

THE COMMISSION IS IN RECEIPT OF THE RETIREMENT RECORD CARD, FORM 2806, IN THE CASE OF JOHN L. HUDSON, ON WHICH THE TOTAL AMOUNT DUE, WITHOUT INTEREST, IS $26.13.

THE INCLOSED LETTER FROM THE DEPARTMENT OF AGRICULTURE ACCOMPANIED THIS RECORD, INDICATING THAT DUAL SALARY WAS PAID TO THIS EMPLOYEE FOR ONE DAY, NOVEMBER 28, 1933, IN THE AMOUNT OF $5.50.

IT IS REQUESTED THAT THE SALARY REPORTED AS HAVING BEEN PAID BE VERIFIED AND INSTRUCTIONS ISSUED FOR A TRANSFER OF FUNDS.

WITH THE ABOVE-QUOTED LETTER THERE WAS ENCLOSED A LETTER DATED APRIL 30, 1937, FROM THE ACTING CHIEF, DIVISION OF APPOINTMENTS, DEPARTMENT OF AGRICULTURE, AS FOLLOWS:

YOU ARE ADVISED THAT MR. JOHN L. HUDSON WAS EMPLOYED CONCURRENTLY BY THE FOREST SERVICE OF THIS DEPARTMENT AND BY THE CIVILIAN CONSERVATION CORPS OF THE WAR DEPARTMENT ON NOVEMBER 28, 1933.

MR. HUDSON DID NOT REPORT FOR DUTY UNDER HIS PROBATIONARY APPOINTMENT WITH THE FOREST SERVICE UNTIL 11:00 A.M. ON NOVEMBER 28, 1933, WHEN HE WAS PAID THE GROSS AMOUNT OF $5.50, 19 CENTS OF WHICH HAS BEEN WITHHELD FOR RETIREMENT PURPOSES. HIS PAYMENT OCCURRED ON VOUCHER NO. 13437 FROM THE APPROPRIATION, DEVNIRA, SYMBOL NO. 3 03/5640.16, BY DISBURSING OFFICER A. W. SMITH.

THE WAR DEPARTMENT HAS ADVISED THIS OFFICE AS FOLLOWS:

"IT HAS BEEN REPORTED TO THIS OFFICE THAT FORMER CCC ENROLLEE, JOHN HUDSON, WAS DISCHARGED ON NOVEMBER 28, 1933, AND PAID $2.40 FOR NOVEMBER 27 AND 28, 1933, AS AN ASSISTANT LEADER AT THE RATE OF $1.20 PER DAY. FINAL SETTLEMENT WAS MADE ON VOUCHER NO. 4175, DECEMBER 1933, ACCOUNT OF H. G. FOSTER, MAJOR, F.D., THE APPROPRIATION INVOLVED BEING FD 509 P 1- 0115 A 8815-N; SYMBOL NUMBER OF THE DISBURSING OFFICER, 229-029.

"BY ORDER OF THE SECRETARY OF WAR:

"/S) W. D. SEARLE,

"CHIEF, CIVILIAN PERSONNEL DIVISION.'

IT IS REQUESTED THAT THE CIVIL SERVICE COMMISSION TAKE STEPS TO COLLECT THE PROPER AMOUNT AND CREDIT IT TO THE APPROPRIATION INVOLVED.

THE RECORDS OF THIS OFFICE SHOW THAT FOR NOVEMBER 28, 1933, JOHN L. HUDSON WAS PAID ON THE VOUCHERS MENTIONED THE AMOUNTS STATED ABOVE, HIS RATE OF PAY AS ASSISTANT LEADER IN THE CIVILIAN CONSERVATION CORPS BEING AT THE RATE OF $36 PER MONTH, AND HIS RATE OF PAY AS A POWER DRILL OPERATOR IN THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, BEING AT THE RATE OF $1.10 PER HOUR.

THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916 (39 STAT. 120, 582), PROVIDES THAT, UNLESS SPECIALLY AUTHORIZED BY LAW, NO APPROPRIATED MONEYS SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON--- WITH CERTAIN EXCEPTIONS NOT HERE INVOLVED--- RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE RATE OF $2,000 PER ANNUM. 8 COMP. GEN. 261.

THE DUAL EMPLOYMENT IN THIS CASE OCCURRED ON THE DAY OF NOVEMBER 28, 1933. IT IS A GENERAL RULE OF LAW THAT FRACTIONS OF A DAY ARE TO BE DISREGARDED. THIS, HOWEVER, IS MERELY A RULE OF CONVENIENCE AND DOES NOT APPLY WHERE SUBSTANTIAL JUSTICE WILL BE PROMOTED BY DISTINGUISHING BETWEEN TWO PARTS OF A DAY. 6 COMP. DEC. 350; 9 ID. 293; 12 COMP. GEN. 583, AND DECISIONS THEREIN CITED.

THE OVERLAPPING PERIOD FOR WHICH DUAL COMPENSATION WAS PAID THE EMPLOYEE WAS FOR 5 HOURS FROM 11 A.M. ON NOVEMBER 28, 1933. FOR THESE 5 HOURS THE EMPLOYEE RECEIVED AS ASSISTANT LEADER IN THE CIVILIAN CONSERVATION CORPS THE SUM OF 75 CENTS AND AS AN EMPLOYEE IN THE FOREST SERVICE THE SUM OF $5.50, LESS 19 CENTS DEDUCTED FOR RETIREMENT PURPOSES. IN THE ABSENCE OF AN ELECTION BY THE EMPLOYEE, IT IS PRESUMED THAT HE WOULD ELECT TO RETAIN THE COMPENSATION UNDER THE POSITION WHICH WOULD GIVE HIM THE GREATER SUM. 8 COMP. GEN. 261; A 65157, FEBRUARY 14, 1936.

ACCORDINGLY, OF THE AMOUNT TO THE CREDIT OF JOHN L. HUDSON IN THE RETIREMENT FUND, THE CENTRAL DISBURSING AUTHORITY SHOULD BE INSTRUCTED TO DRAW A CHECK IN THE SUM OF 75 CENTS IN FAVOR OF THE TREASURER OF THE UNITED STATES TO BE DEPOSITED AND COVERED INTO THE TREASURY TO THE CREDIT OF THE APPROPRIATION "8-03/5815--- EMERGENCY CONSERVATION FUND (TRANSFER TO WAR, ACT OF MAR. 31, 1933), 1933--- MARCH 31, 1935" , IN LIQUIDATION OF THE EMPLOYEE'S INDEBTEDNESS TO THE UNITED STATES IN THAT AMOUNT.