B-118134, JANUARY 19, 1954, 33 COMP. GEN. 302

B-118134: Jan 19, 1954

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IS AN INSTRUMENTALITY OF THE UNITED STATES. EVEN THOUGH THE CIVILIAN COMPENSATION IS PAID FROM NON-APPROPRIATED FUNDS. 1954: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17. IT APPEARS FROM THE INFORMATION OF RECORD THAT COLONEL NELSON WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 30. YOUR DOUBT IN THE MATTER IS WHETHER SECTION 202 OF 212 OF THE ACT OF JUNE 30. ARE APPOINTED TO CIVILIAN POSITIONS UNDER THE FEDERAL GOVERNMENT (SEE 28 COMP. GEN. 367) AND THE ONLY QUESTION IN THE INSTANT CASE APPEARS TO BE WHETHER THE POSITION HELD BY COLONEL NELSON WAS A POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212. IT IS UNDERSTOOD THAT THE ACTIVITY IN WHICH THE RETIRED OFFICER WAS EMPLOYED FIRST WAS ESTABLISHED BY THE COMMANDING OFFICER OF THE FAR EAST COMMAND AND ENGAGES IN PURCHASING OPERATIONS UNDER THE CONTROL AND DIRECTION OF THE COMMANDING OFFICER OF THE FAR EAST COMMAND.

B-118134, JANUARY 19, 1954, 33 COMP. GEN. 302

COMPENSATION - DOUBLE - RETIRED OFFICER HOLDING POSITION WITH NON APPROPRIATED FUND ACTIVITY THE CENTRAL PURCHASING OFFICE OF THE FAR EAST COMMAND ESTABLISHED TO PURCHASE COMMODITIES AND ARTICLES FOR RESALE TO ARMY AND AIR FORCE CENTRAL EXCHANGES, UNITED STATES NAVY SHIPS' STORES, TC., IS AN INSTRUMENTALITY OF THE UNITED STATES, EVEN THOUGH OPERATED WITH NON APPROPRIATED FUNDS, AND THEREFORE A RETIRED ARMY OFFICER IN RECEIPT OF RETIRED PAY WHO HOLDS A CIVILIAN POSITION AS PURCHASING AGENT IN SUCH OFFICE, HOLDS A POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OF 1932 SO AS TO BE PROHIBITED FROM RECEIVING COMBINED RETIRED PAY AND CIVILIAN COMPENSATION IN EXCESS OF $3,000 PER ANNUM, EVEN THOUGH THE CIVILIAN COMPENSATION IS PAID FROM NON-APPROPRIATED FUNDS.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT COLONEL JAMES H. COMINGS, DEPARTMENT OF THE ARMY, JANUARY 19, 1954:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 17, 1953, TRANSMITTED HERE UNDER FIRST ENDORSEMENT OF THE OFFICE OF CHIEF OF FINANCE DATED DECEMBER 22, 1953, REQUESTING AN ADVANCE DECISION ON AN ACCOMPANYING VOUCHER STATED IN FAVOR OF COLONEL CARROLL F. E. NELSON, RETIRED, COVERING RETIRED PAY FOR THE PERIOD NOVEMBER 16, 1952, TO JULY 31, 1953.

IT APPEARS FROM THE INFORMATION OF RECORD THAT COLONEL NELSON WAS PLACED ON THE RETIRED LIST EFFECTIVE SEPTEMBER 30, 1949, PURSUANT TO THE PROVISIONS OF TITLE III OF THE ACT OF JUNE 29, 1948, 62 STAT. 1081, 1087, AND THAT DURING THE PERIOD COVERED BY THE VOUCHER HE OCCUPIED A CIVILIAN POSITION AS PURCHASING AGENT IN THE CENTRAL PURCHASING OFFICE OF THE FAR EAST COMMAND.

YOUR DOUBT IN THE MATTER IS WHETHER SECTION 202 OF 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, PRECLUDES THE RECEIPT BY THE RETIRED OFFICER OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER CONCURRENTLY WITH COMPENSATION OF THE CIVILIAN POSITION.

IT HAS BEEN HELD THAT SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, APPLIES TO COMMISSIONED OFFICERS RETIRED UNDER TITLE III OF THE ACT OF JUNE 29, 1948, WHEN SUCH OFFICERS, FOLLOWING RETIREMENT, ARE APPOINTED TO CIVILIAN POSITIONS UNDER THE FEDERAL GOVERNMENT (SEE 28 COMP. GEN. 367) AND THE ONLY QUESTION IN THE INSTANT CASE APPEARS TO BE WHETHER THE POSITION HELD BY COLONEL NELSON WAS A POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212.

IT IS UNDERSTOOD THAT THE ACTIVITY IN WHICH THE RETIRED OFFICER WAS EMPLOYED FIRST WAS ESTABLISHED BY THE COMMANDING OFFICER OF THE FAR EAST COMMAND AND ENGAGES IN PURCHASING OPERATIONS UNDER THE CONTROL AND DIRECTION OF THE COMMANDING OFFICER OF THE FAR EAST COMMAND. COMMODITIES AND ARTICLES ARE PURCHASES FOR RESALE TO ARMY AND AIR FORCE CENTRAL EXCHANGES, UNITED STATES NAVY SHIPS' STORES AND EXCHANGES, ETC. WHILE THE FUNDS USED FOR THE OPERATION OF THE PURCHASING OFFICE ARE NOT APPROPRIATED BY THE CONGRESS, AND WHILE THE SALARY OF THE RETIRED OFFICER IS NOT PAID FROM APPROPRIATED FUNDS, SINCE THE PURCHASING AGENCY IS AN INSTRUMENTALITY OF THE UNITED STATES, UNDER THE DEFENSE ESTABLISHMENT, SECTION 212 OF THE ACT OF JUNE 30, 1932, IS FOR APPLICATION. SEE 24 COMP. GEN. 771. ACCORDINGLY, IT DOES NOT APPEAR THAT COLONEL NELSON IS ENTITLED TO RECEIVE RETIRED PAY DURING THE PERIOD IN QUESTION AND PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.