B-114659, NOV 5, 1953

B-114659: Nov 5, 1953

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INASMUCH AS CAPTAIN WATERS WAS EMPLOYED DURING THE PERIOD IN QUESTION AS AN INTERN AT ST. FORWARDED WITH YOUR LETTER WAS A LETTER DATED JANUARY 30. FOR WHICH HE WAS BEING PAID A STIPEND AT THE RATE OF $2.800 PER YEAR. THERE WAS RECEIVED COPY OF A LETTER DATED JANUARY 29. SHOULD NOT BE CONSIDERED AS AFFECTING THE OFFICER'S RIGHT TO RETIRED PAY FOR THE REASON THAT AS AN INTERN HE IS NOT A GOVERNMENT EMPLOYEE NOR IS HIS STIPEND A SALARY WITHIN THE CONTEMPLATION OF THAT ACT. IT IS INDICATED THAT CAPTAIN WATERS WAS RETIRED FOR DISABILITY. THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES. THEIR 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 RATES THEREOF EXCEED 3.

B-114659, NOV 5, 1953

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL JAMES H. COMINGS, FC; U.S. ARMY:

THERE HAS BEEN CONSIDERED YOU LETTER OF MARCH 2, 1953, FORWARDED HERE BY INDORSEMENT OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, REQUESTING DECISION WHETHER PAYMENT PROPERLY MAY BE MADE ON A VOUCHER, ENCLOSED THEREWITH, IN FAVOR OF CAPTAIN WILLIAM P. WATERS, AUS, RETIRED IN THE AMOUNT OF $204.52, REPRESENTING RETIRED PAY FOR THE MONTH OF FEBRUARY, 1953. DOUBT AS TO THE PROPRIETY OF THE PAYMENT EXISTS BECAUSE OF THE RESTRICTIVE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, INASMUCH AS CAPTAIN WATERS WAS EMPLOYED DURING THE PERIOD IN QUESTION AS AN INTERN AT ST. ELIZABETHS HOSPITAL, FEDERAL SECURITY AGENCY.

FORWARDED WITH YOUR LETTER WAS A LETTER DATED JANUARY 30, 1953, FROM THE ADMINISTRATIVE OFFICER, ST. ELIZABETHS HOSPITAL, STATING THAT CAPTAIN WATERS HAD BEEN EMLOYED THERE SINCE JULY 1, 1952, ON AN INTERNSHIP TO CONTINUE UNTIL JUNE 30, 1953, FOR WHICH HE WAS BEING PAID A STIPEND AT THE RATE OF $2.800 PER YEAR. ALSO, THERE WAS RECEIVED COPY OF A LETTER DATED JANUARY 29, 1953, FROM THE NATIONAL SERVICE OFFICER, DISABLED AMERICAN VETERANS, ADDRESSED TO THE SUPERINTENDENT, ST. ELIZABETHS HOSPITAL, SETTING FORTH, ON CAPTAIN WATERS' BEHALF, THE CONTENTION THAT THE CITED PROVISIONS OF THE ACT OF JUNE 30, 1932, AS AMENDED, SHOULD NOT BE CONSIDERED AS AFFECTING THE OFFICER'S RIGHT TO RETIRED PAY FOR THE REASON THAT AS AN INTERN HE IS NOT A GOVERNMENT EMPLOYEE NOR IS HIS STIPEND A SALARY WITHIN THE CONTEMPLATION OF THAT ACT. IT IS INDICATED THAT CAPTAIN WATERS WAS RETIRED FOR DISABILITY, PRESUMABLY NOT INCURRED IN COMBAT OR AS A RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROVIDES: 9 "(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 $3,000PER 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." SUCH PROVISIONS REFER SPECIFICALLY TO PERSONS IN RECEIPT OF RETIRED PAY INCIDENT TO SERVICE AS COMMISSIONED OFFICERS OF THE ARMED FORCES WHO BY APPOINTMENT OR ELECTION HOLD CIVILIAN OFFICES OR POSITIONS UNDER THE UNITED STATES GOVERNMENT, AND THEIR 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 RATES THEREOF EXCEED 3,000. THE REQUIREMENTS OF THOSE PROVISIONS ARE EXPLICIT AND MAY NOT BE HELD INAPPLICABLE IN A PARTICULAR CASE IN THE ABSENCE OF A CLEAR SHOWING OF THAT INTENT BY THE CONGRESS.

UNDER THE PROVISIONS OF THE ACT OF AUGUST 4, 1947, 61 STAT. 727, MEDICAL INTERNS APPOINTED FOR SERVICE IN FEDERALLY OPERATED HOSPITALS ARE EXPRESSLY EXCLUDED FROM APPLICATION OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AND OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE HEADS OF THE FEDERAL DEPARTMENTS, AGENCIES, AND INSTRUMENTALITIES OPERATING HOSPITALS EMPLOYING INTERNS ARE AUTHORIZED TO PRESCRIBE STIPENDS TO BE PAID TO THEM FOR THEIR SERVICES WITHIN THE APPLICABLE MAXIMUM PRESCRIBED BY THE CIVIL SERVICE COMMISSION.

A REFERENCE TO THE LEGISLATIVE HISTORY OF THE SAID ACT OF AUGUST 4, 1947, CLEARLY INDICATES THAT ITS BASIC PURPOSE WAS TO PROVIDE A STATUS FOR INTERNS (AND OTHERS SIMILARLY SITUATED WHO RENDER SERVICE IN THE DUAL CAPACITY OF STUDENT AND EMPLOYEE) DISTINCT FROM THAT OF THE REGULARLY CLASSIFIED PERSONNEL OF THE GOVERNMENT SO THAT REMUNERATION FOR THEIR SERVICES, AND OTHER EMPLOYEE BENEFITS, MIGHT BE FIXED ON A BASIS MORE REALISTICALLY ADJUSTED TO THE SERVICES ACTUALLY RENDERED CLASSIFIED EMPLOYEES. NOTHING IS FOUND IN THAT ACT TO INDICATE AN INTENTION THAT THE PERSONNEL AFFECTED SHOULD NOT OTHERWISE BE CONSIDERED AS EMPLOYEES OF THE GOVERNMENT OR THAT THE "STIPEND" SHOULD BE REGARDED OTHERWISE THAN AS COMPENSATION FOR THE SERVICES RENDERED.

DURING THE PERIOD IN QUESTION, CAPTAIN WATERS WAS EMPLOYED AS AN INTERN TO PERFORM DUTIES IMPOSED BY LAW UPON ST. ELIZABETHS HOSPITAL FOR WHICH HE RECEIVED COMPENSATION AT THE RATE OF $2,800 PER ANNUM, AND WHILE THERE HE WAS SUBJECT TO THE DIRECT CONTROL AND SUPERVISION OF THE ADMINISTRATIVE OFFICIALS OF THAT HOSPITAL. UNDER SUCH CIRCUMSTANCES, HE HELD A CIVILIAN "POSITION" UNDER THE UNITED STATES GOVERNMENT SUBJECT TO THE SAID PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, NOTWITHSTANDING THAT SUCH POSITION IS NOT UNDER THE CLASSIFICATION ACT AND THAT THE INCUMBENT MAY NOT BE SUBJECT TO CERTAIN OTHER STATUTES RELATING TO CIVILIAN EMPLOYEES. COMPARE 26 COMP. GEN. 720. SINCE THE OFFICER RECEIVED COMPENSATION AS AN INTERN FOR THE PERIOD INVOLVED AT THE ANNUAL RATE OF $2,800, HE IS ENTITLED UNDER SUCH STATUTORY PROVISIONS TO RETIRED PAY INCIDENT TO HIS COMMISSIONED SERVICE ONLY AT THE RATE OF $200 PER ANNUM, THAT RATE WHEN COMBINED WITH THE ANNUAL COMPENSATION RECEIVED AS INTERN TOTALING THE $3,000 MAXIMUM RATE FIXED BY SECTION 212. $3,000 MAXIMUM RATE FIXED BY SECTION 212,

ACCORDINGLY, PAYMENT ON THE BASIS INDICATED ON THE PRESENTED VOUCHER IS NOT AUTHORIZED. THE VOUCHER WILL BE RETAINED IN THIS OFFICE.