B-108117, MAY 29, 1952, 31 COMP. GEN. 619

B-108117, MAY 29, 1952, 31 COMP. GEN. 619

DUAL COMPENSATION AND EMPLOYMENT STATUTES - NAVY ENLISTED MEN RETROACTIVELY ADVANCED ON RETIRED LIST TO COMMISSIONED RANK A RETIRED ENLISTED MAN OF THE NAVY WHO IS ADVANCED ON THE RETIRED LIST, RETROACTIVELY TO THE DATE OF HIS RETIREMENT, TO COMMISSIONED RANK PURSUANT TO THE PROVISIONS OF THE ACT OF JULY 24, 1941, AS AMENDED, WOULD NOT BE SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, PROHIBITING RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY IN EXCESS OF A COMBINED RATE OF $3,000, PRIOR TO THE DATE OF THE ORDER RETROACTIVELY ADVANCING HIM ON THE RETIRED LIST.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, MAY 29, 1952:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION A LETTER RECEIVED FROM MR. HAROLD S. WALLER, 385 34 87, CHIEF MACHINIST'S MATE, UNITED STATES NAVY ( RETIRED), PROTESTING A CHECK AGE IN THE AMOUNT OF $1,606 ENTERED AGAINST HIS RETIRED PAY INCIDENT TO HIS RETROACTIVE ADVANCEMENT TO COMMISSIONED RANK ON THE RETIRED LIST. THE SAID CHECK AGE WAS ENTERED TO COVER RETIRED PAY RECEIVED WHILE HE WAS IN RECEIPT OF COMPENSATION AS A CIVILIAN EMPLOYEE OF THE FEDERAL BUREAU OF PRISONS. ALSO, A LETTER HAS BEEN RECEIVED WITH REGARD TO A RETROACTIVE CHECK AGE WHICH APPARENTLY WAS ENTERED UNDER SIMILAR CIRCUMSTANCES IN THE RETIRED PAY ACCOUNT OF LEON H. CALL AWAY, 267 38 54, IT APPEARING THAT HE WAS TRANSFERRED FROM THE FLEET RESERVE TO THE RETIRED LIST IN THE GRADE OF CHIEF YEOMAN, EFFECTIVE OCTOBER 1, 1950, AND THAT BY ORDERS DATED FEBRUARY 28, 1951, HE WAS ADVANCED TO CHIEF PAY CLERK AS OF THE DATE OF HIS RETIREMENT.

IN LETTERS DATED MARCH 7 AND 24, 1952, FROM THE CHIEF OF FIELD BRANCH, BUREAU OF SUPPLIES AND ACCOUNTS (FILE REFERENCES XR5:61:79 AND XR5:E:79, L16-4/1 TOLLEFSON), WRITTEN IN RESPONSE TO A LETTER DATED FEBRUARY 29, 1952, FROM THIS OFFICE WITH REGARD TO THE CHECK AGE IN THE ACCOUNT OF MR. WALLER, IT IS REPORTED THAT ON OCTOBER 28, 1946, HE WAS RELEASED FROM ACTIVE DUTY IN THE NAVY AND TRANSFERRED TO THE FLEET RESERVE, CLASS F-4-D, IN THE RATING OF CHIEF MACHINIST'S MATE; THAT BY LETTER DATED FEBRUARY 19, 1951, FROM THE CHIEF OF NAVAL PERSONNEL TO THE COMMANDANT OF THE THIRTEENTH NAVAL DISTRICT, IT WAS DIRECTED THAT ON THE FIRST DAY OF THE MONTH FOLLOWING RECEIPT OF THE LETTER WALLER BE PLACED ON THE RETIRED LIST OF THE NAVY BY REASON OF PHYSICAL DISABILITY; THAT BY LETTER DATED MARCH 1, 1951, FROM HEADQUARTERS, THIRTEENTH NAVAL DISTRICT, HE WAS NOTIFIED THAT EFFECTIVE THAT DATE HE HAD BEEN TRANSFERRED TO THE RETIRED LIST BECAUSE OF PHYSICAL DISABILITY, AND THAT HE WOULD COMPLETE 30 YEARS' SERVICE ON DECEMBER 15, 1953. THE REPORTS FURTHER DISCLOSE THAT ON DECEMBER 27, 1951, THE PROMOTION BRANCH OF THE OFFICER PERSONNEL DIVISION ISSUED A CERTIFICATE OF SATISFACTORY SERVICE IN THE GRADE OF CHIEF MACHINIST; THAT BY LETTER OF THE SAME DATE FROM THE SECRETARY OF THE NAVY, WALLER WAS NOTIFIED THAT PURSUANT TO SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, AND SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 829, IT HAD BEEN DETERMINED THAT THE HIGHEST GRADE AND RANK IN WHICH HE SATISFACTORILY SERVED UNDER A TEMPORARY APPOINTMENT DURING WORLD WAR I WAS AS CHIEF MACHINIST TO WHICH GRADE HE, THEREFORE, WAS ADVANCED EFFECTIVE FROM THE DATE OF RETIREMENT; THAT FORMS SENT TO HIM REGARDING HIS CIVILIAN EMPLOYMENT WERE RETURNED BY HIM ON JANUARY 9, 1952, TOGETHER WITH A REQUEST THAT HE BE RESTORED TO HIS ENLISTED STATUS; AND THAT SUCH REQUEST WAS APPROVED BY THE SECRETARY OF THE NAVY ON JANUARY 15, 1952.

WITH RESPECT TO THE RETIRED PAY RECEIVED BY WALLER, IT IS REPORTED THAT HE WAS PAID AS CHIEF MACHINIST'S MATE AT THE RATE OF $154.28 PER MONTH FROM OCTOBER 28, 1946, THROUGH SEPTEMBER 30, 949; THAT IN ACCORDANCE WITH SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949, SUPRA, HIS RETIRED PAY WAS INCREASED TO $160.60 PER MONTH EFFECTIVE OCTOBER 1, 1949, AT WHICH RATE HE WAS PAID THROUGH DECEMBER 31, 1951, AND THAT HE HAS BEEN PAID AT THAT RATE SINCE JANUARY 15, 1952, THE DATE HIS ENLISTED STATUS WAS RESTORED. IT IS FURTHER REPORTED THAT HE INFORMED THE DEPARTMENT OF THE NAVY THAT HE HAS BEEN PAID COMPENSATION INCIDENT TO CIVIL SERVICE EMPLOYMENT AT A RATE IN EXCESS OF $3,000 PER ANNUM SINCE JANUARY 5, 1951; THAT IT WAS DETERMINED THAT SINCE HE WAS ADVANCED TO THE STATUS OF A RETIRED COMMISSIONED WARRANT OFFICER RETROACTIVELY EFFECTIVE FROM THE DATE OF RETIREMENT AND HAD RECEIVED RETIRED PAY AND CIVILIAN COMPENSATION FROM JANUARY 5, 1951, TO DECEMBER 31, 1951, HE WAS OVERPAID $1,606 REPRESENTING THE RETIRED PAY WHICH HE HAD RECEIVED FOR SUCH ERIOD; THAT IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS A MONTHLY CHECK AGE OF $80.30 (ONE-HALF OF HIS RETIRED PAY AS CHIEF MACHINIST'S MATE), WAS INITIATED IN FEBRUARY 1952, TO CONTINUE UNTIL THE OVERPAYMENT WAS LIQUIDATED; AND THAT A REVIEW OF HIS ACCOUNT SHOWS THAT HE WAS ON LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION FROM JUNE 19 THROUGH JULY 24, 1951, DURING WHICH PERIOD HE WAS ENTITLED TO BE CREDITED WITH RETIRED PAY IN THE AMOUNT OF $235.62 AS CHIEF MACHINIST, WHICH SUM HAS BEEN APPLIED IN PARTIAL LIQUIDATION OF HIS INDEBTEDNESS.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761 (5 U.S.C. 59A), PROVIDES AS FOLLOWS:

"/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 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.'

UNDER THE FOREGOING PROVISIONS A PERSON RETIRED FOR DISABILITY--- THE DISABILITY NOT HAVING BEEN INCURRED UNDER CIRCUMSTANCES SO AS TO EXEMPT HIM FROM THE RESTRICTIONS OF THE STATUTE--- WHO IS IN RECEIPT OF RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AT A RATE LESS THAN $3,000 PER ANNUM AND WHO IS APPOINTED TO A CIVILIAN POSITION UNDER THE GOVERNMENT AT A RATE IN EXCESS OF $3,000 PER ANNUM IS AUTHORIZED TO RECEIVE ONLY THE SALARY OF THE CIVILIAN POSITION. 28 COMP. GEN. 727. HOWEVER, THE SAID SECTION DOES NOT PLACE ANY RESTRICTION ON THE CONCURRENT RECEIPT OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS AN ENLISTED MAN AND THE COMPENSATION OF A CIVILIAN POSITION UNDER THE GOVERNMENT.

IN PROTESTING THE CHECK AGE ENTERED AGAINST HIS RETIRED PAY, MR. WALLER HAS STATED THAT HE WAS UNDER THE IMPRESSION THAT HE WOULD NOT BE ADVANCED TO THE RANK OF AN OFFICER UNTIL DECEMBER 15, 1953, WHEN HE WILL HAVE COMPLETED 30 YEARS' SERVICE, AND THAT HE FEELS THAT UNDER THE CIRCUMSTANCES OF HIS RETROACTIVE ADVANCEMENT THE CHECK AGE WAS NOT PROPER.

SECTION 511 OF THE CAREER COMPENSATION ACT OF 1949 PROVIDES, INTER ALIA, THAT ON AND AFTER THE EFFECTIVE DATE OF THAT SECTION MEMBERS THERETOFORE TRANSFERRED TO THE FLEET RESERVE SHALL BE ENTITLED TO RECEIVE RETIRED PAY OR RETAINER PAY IN AN AMOUNT WHICHEVER IS GREATER, COMPUTED EITHER (A) UNDER THE PROVISIONS OF LAW IN EFFECT ON THE DATE IMMEDIATELY PRECEDING THE DATE OF ENACTMENT OF SUCH ACT, OR (B) ON A PERCENTAGE BASIS AS THEREIN SPECIFIED, OF THE BASIC PAY OF THE HIGHEST FEDERALLY RECOGNIZED RANK, GRADE, OR RATING, WHETHER UNDER A PERMANENT OR TEMPORARY APPOINTMENT, SATISFACTORILY HELD BY SUCH MEMBER, AS DETERMINED BY THE SECRETARY CONCERNED, PROVIDED THAT ENLISTED PERSONS WHO HAD BEEN TRANSFERRED TO THE FLEET RESERVE PRIOR TO THE EFFECTIVE DATE OF THE SECTION SHALL NOT BE ENTITLED TO HAVE THEIR RETAINER PAY OR RETIRED PAY COMPUTED ON THE HIGHEST OFFICER OR WARRANT OFFICER GRADE HELD AS AUTHORIZED BY (B) OF THAT SECTION UNTIL THEY HAVE COMPLETED 30 YEARS' SERVICE. NOT HAVING COMPLETED 30 YEARS' SERVICE, WALLER WAS NOT ENTITLED TO HAVE HIS RETIRED PAY COMPUTED ON HIS COMMISSIONED RANK UNDER SAID METHOD (B) OF SECTION 511, BUT WAS ENTITLED UNDER METHOD (A) TO HAVE IT SO COMPUTED UNDER THE PROVISIONS OF LAW IN EFFECT ON THE DATE IMMEDIATELY PRECEDING ENACTMENT OF THE SAID 1949 ACT. IN THAT RESPECT, SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED BY SECTION 8 (A) OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, PROVIDES THAT PERSONNEL OF THE FLEET RESERVE WHO WERE APPOINTED OR ADVANCED UNDER AUTHORITY OF THE ACT PRIOR TO JUNE 30, 1946, SHALL, WHEN SUBSEQUENTLY RETIRED, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY, BE ADVANCED TO THE HIGHEST GRADE OR RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW BUT BASED UPON SUCH HIGHER RANK.

IT HAS BEEN HELD THAT MEMBERS WHO ARE ADVANCED, UNDER SUCH PROVISIONS OF THE SAID ACT OF JULY 24, 1941, AS AMENDED, TO THE RANK OF AN OFFICER BECOME SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE 1932 ACT AGAINST THE RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY IN EXCESS OF A COMBINED RATE OF $3,000, SINCE THEIR RETIRED PAY IS "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' 26 COMP. GEN. 271. HOWEVER, IN WALLER'S CASE THE RETIRED PAY WHICH WAS PAID TO HIM FOR THE PERIOD PRIOR TO THE DATE OF THE ORDER RETROACTIVELY ADVANCING HIM TO A COMMISSIONED RANK ON THE RETIRED LIST WAS ACTUALLY PAID TO HIM IN THE STATUS OF A RETIRED ENLISTED MAN FOR OR ON ACCOUNT OF SERVICE AS AN ENLISTED MAN AND SUCH PAYMENTS WERE LEGAL AND PROPER WHEN MADE. HENCE, HE HAD ACQUIRED A VESTED RIGHT TO THE AMOUNT OF RETIRED PAY WHICH ACCRUED INCIDENT TO HIS ENLISTED STATUS PRIOR TO THE DATE OF THE ORDER ADVANCING HIM TO A COMMISSIONED RANK AND THE RETROACTIVE ORDER OF DECEMBER 27, 1951, ADVANCING HIM TO A COMMISSIONED RANK AS OF THE DATE OF HIS RETIREMENT COULD NOT LEGALLY SUBJECT HIM RETROACTIVELY TO THE PROVISIONS OF SECTION 212 OF THE 1932 ACT SO AS TO DIVEST HIM OF SUCH VESTED RIGHT TO RETIRED PAY AS AN ENLISTED MAN DURING SUCH PERIOD. THE RULE IS WELL ESTABLISHED THAT, GENERALLY, NEITHER THE FEDERAL GOVERNMENT NOR THE STATES MAY IMPAIR OR DIVEST VESTED RIGHTS EXCEPT IN A LEGITIMATE EXERCISE OF THE POLICE POWER, AND THAT RETROSPECTIVE LAWS OR ADMINISTRATIVE ACTION DISTURBING OR DESTROYING EXISTING OR VESTED RIGHTS, OR CREATING NEW OBLIGATIONS WITH RESPECT TO PAST TRANSACTIONS, ARE INVALID. 16 C.J.S., CONSTITUTIONAL LAW, SECTIONS 216 AND 417. ALSO SEE FISK V. POLICE JURY, 116 U.S. 131, 29 L.1ED. 587; AND ICKES V. FOX, 300 U.S. 82, 81 L.1ED. 525. IN VIEW OF SUCH RULES, IT SEEMS CLEAR THAT SINCE THE PAYMENTS TO WALLER OF ENLISTED RETIRED PAY FOR THE PERIOD PRIOR TO THE ORDER ADVANCING HIM TO A COMMISSIONED RANK ON THE RETIRED LIST WERE LEGAL AND PROPER WHEN MADE, THEY COULD NOT RETROACTIVELY BE RENDERED ILLEGAL OR THEIR CHARACTER RETROACTIVELY CHANGED TO PAYMENTS ON ACCOUNT OF COMMISSIONED SERVICE BY EITHER LEGISLATIVE OR ADMINISTRATIVE ACTION, SINCE THE EFFECT OF SUCH ACTION WOULD BE TO DIVEST HIM OF SUCH LEGAL PAYMENTS.

TO THE EXTENT THAT ANY PRIOR DECISIONS OF THIS OFFICE MAY HAVE INDICATED A DIFFERENT VIEW BY FAILING TO DIFFERENTIATE IN THAT RESPECT BETWEEN PAYMENTS FOR PERIODS BEFORE AND AFTER SUCH RETROACTIVE ORDERS, THEY SHOULD NO LONGER BE REGARDED AS AUTHORITY FOR RETROACTIVE CHECK AGES AND COLLECTIONS. RETIRED PAY ACCOUNTS IN SUCH CASES WHERE CHECK AGES AND COLLECTIONS HAVE BEEN MADE BASED ON A RETROACTIVE ADVANCEMENT TO COMMISSIONED RANK SHOULD BE ADJUSTED ACCORDINGLY BY REFUND OF ANY SUCH CHECK AGES OR COLLECTIONS, OR IN ANY CASES WHERE THAT MAY NOT BE DONE ADMINISTRATIVELY, BY REFERRING CLAIMS FOR SUCH REFUNDS TO THE CLAIMS DIVISION OF THIS OFFICE FOR DIRECT SETTLEMENT.