B-105106, OCTOBER 23, 1951, 31 COMP. GEN. 150

B-105106: Oct 23, 1951

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ARE APPLICABLE IN THE CASE OF A RETIRED OFFICER WHO IS APPOINTED A MEMBER OF THE NATIONAL SECURITY TRAINING COMMISSION AT A PER DIEM RATE OF PAY WHEN ACTUALLY WORKING. SUCH OFFICER IS NOT ENTITLED TO RECEIVE HIS RETIRED PAY ON THOSE DAYS HE IS IN RECEIPT OF COMPENSATION FOR SERVICE AS A MEMBER OF SUCH COMMISSION. AS A MEMBER OF THE NATIONAL SECURITY TRAINING COMMISSION LEGALLY WILL BE ENTITLED TO HIS RETIRED PAY ON DAYS ON WHICH HE IS ENTITLED TO THE PER DIEM AUTHORIZED BY LAW FOR PAYMENT TO MEMBERS OF THAT COMMISSION IN VIEW OF THE RESTRICTIVE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 20. THE NATIONAL SECURITY TRAINING COMMISSION CONSISTING OF FIVE MEMBERS WAS ESTABLISHED BY THE PROVISIONS OF SECTION 4 (K) (3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT.

B-105106, OCTOBER 23, 1951, 31 COMP. GEN. 150

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - RETIRED OFFICER SERVING AS MEMBER OF NATIONAL SECURITY TRAINING COMMISSION THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION WHICH MAY BE RECEIVED BY A RETIRED OFFICER HOLDING A CIVILIAN OFFICE OR POSITION, ARE APPLICABLE IN THE CASE OF A RETIRED OFFICER WHO IS APPOINTED A MEMBER OF THE NATIONAL SECURITY TRAINING COMMISSION AT A PER DIEM RATE OF PAY WHEN ACTUALLY WORKING, AND THEREFORE, SUCH OFFICER IS NOT ENTITLED TO RECEIVE HIS RETIRED PAY ON THOSE DAYS HE IS IN RECEIPT OF COMPENSATION FOR SERVICE AS A MEMBER OF SUCH COMMISSION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, OCTOBER 23, 1951:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 9, 1951, REQUESTING DECISION WHETHER ADMIRAL THOMAS C. KINKAID, UNITED STATES NAVY, RETIRED, AS A MEMBER OF THE NATIONAL SECURITY TRAINING COMMISSION LEGALLY WILL BE ENTITLED TO HIS RETIRED PAY ON DAYS ON WHICH HE IS ENTITLED TO THE PER DIEM AUTHORIZED BY LAW FOR PAYMENT TO MEMBERS OF THAT COMMISSION IN VIEW OF THE RESTRICTIVE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 20, 1932, AS AMENDED, 5 U.S.C. 59A.

THE NATIONAL SECURITY TRAINING COMMISSION CONSISTING OF FIVE MEMBERS WAS ESTABLISHED BY THE PROVISIONS OF SECTION 4 (K) (3) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, PUBLIC LAW 51, APPROVED JUNE 19, 1951, 65 STAT. 80, TO BE COMPOSED OF THREE CIVILIANS AND TWO ACTIVE OR RETIRED MEMBERS OF THE REGULAR COMPONENTS OF ANY OF THE ARMED FORCES. SECTION 4 (K) (4) OF THE SAID ACT, 65 STAT. 81, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * MEMBERS OF THE COMMISSION, OTHER THAN ACTIVE MEMBERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES, WHILE ACTUALLY SERVING WITH THE COMMISSION, SHALL RECEIVE A PER DIEM OF NOT TO EXCEED $50 FOR EACH DAY ENGAGED IN THE BUSINESS OF THE COMMISSION AHD SHALL BE ALLOWED TRANSPORTATION AND A PER DIEM IN LIEU OF SUBSISTENCE OF $9 WHILE AWAY FROM THEIR HOMES OR PLACES OF BUSINESS PURSUANT TO SUCH BUSINESS.

IT IS STATED THAT ADMIRAL KINKAID WAS RETIRED FOR PHYSICAL DISABILITY NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES NOR RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR, AND THAT HE IS PRESENTLY ON ACTIVE DUTY BUT CONTEMPLATES RETURN TO AN INACTIVE DUTY STATUS.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROVIDES:

(A) AFTER JUNE 30, 1932, 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 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 OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I.

YOU EXPRESS DOUBT AS TO THE PROPRIETY OF THE APPLICATION OF SUCH PROVISIONS IN ADMIRAL KINKAID'S CASE ON THE BASIS THAT THE STATUTE CREATING THE NATIONAL SECURITY TRAINING COMMISSION SPECIFICALLY PROVIDES FOR MEMBERSHIP THEREIN OF RETIRED OFFICERS OF THE REGULAR COMPONENTS OF THE ARMED FORCES AND ALSO PROVIDES IN SPECIFIC TERMS FOR A PER DIEM OF NOT TO EXCEED $50 FOR ANY RETIRED OFFICER WHO IS APPOINTED THERETO. ALSO, IT IS SUGGESTED THAT SOME DOUBT EXISTS AS TO WHETHER THE PER DIEM SHOULD BE CONSIDERED AS COMPENSATION WITHIN THE CONTEMPLATION OF THE ABOVE QUOTED PROVISIONS OF THE ACT OF JUNE 30, 1932, AS AMENDED, SINCE IT IS NOT SO EXPRESSLY DESIGNATED.

THERE WOULD APPEAR TO BE LITTLE DOUBT THAT THE PER DIEM AUTHORIZED FOR PAYMENT TO MEMBERS FOR EACH DAY ENGAGED IN THE BUSINESS OF THE COMMISSION WAS INTENDED AS COMPENSATION FOR SERVICES RENDERED IN VIEW OF THE FACT THAT NO OTHER FORM OF COMPENSATION IS PROVIDED FOR THE CIVILIAN MEMBERS OF THE COMMISSION AND THAT ACTIVE MEMBERS OF THE ARMED FORCES WHO ARE ENTITLED TO COMPENSATION IN THE FORM OF THEIR SERVICE PAY ARE PRECLUDED FROM THE RECEIPT THEREOF; AND, BEING COMPENSATION, IT IS NOT CONSIDERED THAT THE MERE LACK OF DESIGNATION IN THE STATUTE OF THE PER DIEM AS COMPENSATION COULD MAKE INAPPLICABLE THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, SUPRA, IF OTHERWISE FOR APPLICATION. SEE, IN THAT CONNECTION, THE STATEMENT MADE AT PAGE 15 OF REPORT NO. 271, HOUSE OF REPRESENTATIVES COMMITTEE ON ARMED SERVICES TO ACCOMPANY THE BILL S. 1, WHICH BECAME THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT.

THE SAID SECTION 212 IS CONCERNED SPECIFICALLY WITH SITUATIONS INVOLVING PERSONS IN RECEIPT OF RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN THE ARMED FORCES WHO BY APPOINTMENT OR ELECTION HOLD CIVILIAN OFFICES OR POSITIONS UNDER CONTROL OF THE UNITED STATES GOVERNMENT, AND ITS PURPOSE IS TO PROHIBIT THE CONCURRENT RECEIPT BY A PERSON SO SITUATED OF RETIRED PAY INCIDENT TO HIS COMMISSIONED SERVICE AND THE COMPENSATION OF THE CIVILIAN OFFICE OR POSITION HELD IF THE COMBINED RATE THEREOF EXCEEDS $3,000 PER ANNUM. THE REQUIREMENTS OF SUCH PROVISIONS ARE EXPLICIT AND MAY NOT BE OVERCOME IN A PARTICULAR CASE IN THE ABSENCE OF A CLEAR SHOWING OF INTENT BY THE CONGRESS THAT THEY ARE NOT FOR APPLICATION. NO EXPRESS EXEMPTION OF RETIRED OFFICERS OF THE MILITARY FORCES WHO ARE APPOINTED TO THE NATIONAL SECURITY TRAINING COMMISSION FROM APPLICATION OF THE RESTRICTIVE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT IS STATED IN THE PROVISIONS OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT NOR INDEED DO THERE COME TO MIND ANY REASONS WHY THE CONGRESS WOULD DESIRE TO EXEMPT A RETIRED OFFICER SERVING ON THE COMMISSION FROM THE PROVISIONS OF THE SAID SECTION 212. SUCH AN EXEMPTION, IN EFFECT, NOT ONLY WOULD GRANT SUCH A RETIRED OFFICER GREATER COMPENSATION THAN THE CIVILIAN MEMBERS OF THE COMMISSION BUT ALSO WOULD GRANT HIM GREATER COMPENSATION THAN A MEMBER ON THE ACTIVE LIST OF A REGULAR COMPONENT OF THE ARMED FORCES, WITH THE SAME RANK (OR A RANK CORRESPONDING THERETO) AND LENGTH OF SERVICE, COULD RECEIVE IF SERVING AS A MEMBER OF THE COMMISSION. ONLY THE MOST CLEAR AND UNEQUIVOCAL LANGUAGE IN THE STATUTE WOULD JUSTIFY A CONCLUSION THAT WOULD RESULT IN SUCH A DISCRIMINATION BETWEEN MEMBERS OF THE COMMISSION. AND, SINCE NO SUCH LANGUAGE IS FOUND IN THE STATUTORY PROVISIONS HERE IN QUESTION, IT MUST BE CONCLUDED THAT A RETIRED MEMBER OF A REGULAR COMPONENT OF ANY OF THE ARMED FORCES WHO IS APPOINTED TO THE COMMISSION MAY NOT, UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT AS AMENDED, SUPRA, RECEIVE HIS RETIRED PAY AND THE COMPENSATION OF THE CIVILIAN OFFICE CONCURRENTLY IF THE COMBINED RATE THEREOF EXCEEDS $3,000 PER ANNUM. ACCORDINGLY, YOU ARE ADVISED THAT ADMIRAL KINKAID WILL NOT BE ENTITLED TO RECEIVE HIS RETIRED PAY ON THOSE DAYS UPON WHICH HE IS IN RECEIPT OF COMPENSATION FOR SERVICE AS A MEMBER OF THE NATIONAL SECURITY TRAINING COMMISSION. SEE 28 COMP. GEN. 381.