B-120555, I-18660, OCT 1, 1954

B-120555: Oct 1, 1954

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EXCEPT WHEN THE OFFICER IS RETIRED "FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES. THE FOLLOWING SPECIFIC CASES ARE PRESENTLY UNDER DEVELOPMENT: LOGAN DUFF. THE EMPLOYMENTS OF THE INVOLVED RETIRED COMMISSIONED OFFICERS ARE IN ACTIVITIES OF THE DEFENSE ESTABLISHMENT AND ARE OF THE TYPE OPERATED UNDER SO-CALLED NONAPPROPRIATED FUNDS. WHICH ACTIVITIES ARE KNOWN AND RECOGNIZED AS "GOVERNMENT INSTRUMENTALITIES.". IN THOSE CASES WHERE THIS OFFICE HAS DETERMINED THAT THE DOUBLE COMPENSATION RECEIVED BY THE INVOLVED RETIRED OFFICERS IS WITHIN THE PROHIBITORY TERMS OF THE APPLICABLE STATUTES MENTIONED ABOVE. ACTION NECESSARILY WILL BE INITIATED LOOKING TO THE RECOVERY OF THE UNAUTHORIZED PAYMENTS.

B-120555, I-18660, OCT 1, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

MY ATTENTION HAS BEEN DIRECTED RECENTLY TO SEVERAL INSTANCES OF DOUBLE COMPENSATION RECEIVED BY RETIRED COMMISSIONED OFFICERS ON ACCOUNT OF THEIR EMPLOYMENT IN CIVILIAN POSITIONS UNDER THE DEPARTMENT OF DEFENSE IN CONTRAVENTION OF SECTION 212 OF THE ACT OF JUNE 30, DURING THE PERIOD OF EMPLOYMENT, EXCEPT WHEN THE OFFICER IS RETIRED "FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY ***" - THE LATTER CONDITION CONTAINING THE AMENDMENT MADE BY THE ACT OF FEBRUARY 20, 1954, PUBLIC LAW 300. INSTANCES OF THE NATURE MENTIONED EXIST AT FORT BENNING, GEORGIA, FORT JACKSON, SOUTH CAROLINA, AND FORT KNOX, KENTUCKY. AT THE FIRST MENTIONED INSTALLATION, THE FOLLOWING SPECIFIC CASES ARE PRESENTLY UNDER DEVELOPMENT:

LOGAN DUFF, FIRST LIEUTENANT, O-109736, EMPLOYED AT THE MAIN OFFICERS' OPEN MESS.

JOSEPH A. NICHOLS, COLONEL, RA, O-9699, EMPLOYED AS SECRETARY OF THE MAIN OFFICERS' OPEN MESS.

RALPH E. TIBBITTS, COLONEL, RA, O-16156, EMPLOYES AS SECRETARY OF THE MAIN OFFICERS' OPEN MESS.

ROBERT J. WHATLEY, LIEUTENANT COLONEL, RA, O-9844, EMPLOYED BY THE MAIN OFFICERS' OPEN MESS.

JAMES A. DENNIS, CHIEF WARRANT OFFICER (SERIAL NUMBER NOT PRESENTLY AVAILABLE) EMPLOYED BY THE MAIN OFFICERS' OPEN MESS.

KENNETH L. GIBSON, WARRANT OFFICER (JG), W-903145, EMPLOYED BY THE MAIN OFFICERS' OPEN MESS.

CARL F. FORSBERG, RETIRED CIVILIAN EMPLOYEE, EMPLOYED BY THE MAIN OFFICERS' OPEN MESS.

THE EMPLOYMENTS OF THE INVOLVED RETIRED COMMISSIONED OFFICERS ARE IN ACTIVITIES OF THE DEFENSE ESTABLISHMENT AND ARE OF THE TYPE OPERATED UNDER SO-CALLED NONAPPROPRIATED FUNDS, SUCH AS POST EXCHANGES, OFFICERS' CLUBS, ETC., WHICH ACTIVITIES ARE KNOWN AND RECOGNIZED AS "GOVERNMENT INSTRUMENTALITIES." SEE 26 COMP. GEN. 122, 720; AND 33 ID. 302; ALSO, AMERICAN COMMERCIAL CO., INC. V. U.S. OFFICERS AND NON COMMISSIONED OFFICERS CLUB, EUROPEAN THEATER, 187 F. 2D 91, AND NIMRO V. DAVIS, 204 ID. 734, AND DECISIONS CITED THEREIN.

IN THOSE CASES WHERE THIS OFFICE HAS DETERMINED THAT THE DOUBLE COMPENSATION RECEIVED BY THE INVOLVED RETIRED OFFICERS IS WITHIN THE PROHIBITORY TERMS OF THE APPLICABLE STATUTES MENTIONED ABOVE, ACTION NECESSARILY WILL BE INITIATED LOOKING TO THE RECOVERY OF THE UNAUTHORIZED PAYMENTS. HOWEVER, THE CASES NOW UNDER DEVELOPMENT STRONGLY SUGGEST THE EXISTENCE OF SIMILAR SITUATIONS AT INSTALLATIONS OF THE DEPARTMENT OF DEFENSE GENERALLY. WITH THE LIMITED PERSONNEL AVAILABLE HERE, IT IS NOT POSSIBLE TO DISCOVER AS EARLY AS NOW APPEARS DESIRABLE ALL INSTANCES INVOLVING OFFICERS PRESENTLY RECEIVING THE PROHIBITED DOUBLE COMPENSATION. IT IS, OF COURSE, DESIRABLE THAT TIMELY DISCLOSURE OF SUCH CASES BE MADE TO AVOID FINANCIAL EMBARRASSMENT TO THE RETIRED OFFICERS NOW RECEIVING THE UNAUTHORIZED PAYMENTS, WHO MIGHT FIND IT DIFFICULT TO REPAY TO THE GOVERNMENT COMPENSATION RECEIVED OVER A LONG PERIOD OF TIME. WITH THAT IN MIND, I THOUGHT THAT YOU MIGHT WISH TO INSTITUTE IMMEDIATELY A GENERAL SURVEY OF THE SITUATION THROUGH AVAILABLE DEPARTMENTAL CHANNELS FOR THE PURPOSE OF BRINGING ABOUT PROMPT DISCONTINUANCE OF THE UNAUTHORIZED DOUBLE COMPENSATION PAYMENTS AND THE RECOVERY OF SUCH PAYMENTS WHERE THE FINDINGS REQUIRE IT.

I SHOULD APPRECIATE YOUR INFORMING ME OF THE ACTION TAKEN BY YOU AND BY THE RESPECTIVE BRANCHES OF THE DEFENSE ESTABLISHMENT IN THE ABOVE STATED MATTER.