B-123150, AUGUST 5, 1955, 35 COMP. GEN. 75

B-123150: Aug 5, 1955

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COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - TEMPORARY MAIL CLERK A RETIRED COMMISSIONED WARRANT OFFICER WHO IS EMPLOYED AS A TEMPORARY SUBSTITUTE MAIL CLERK IN THE ABSENCE OF THE REGULAR MAIL CLERK AND CLASSIFIED SUBSTITUTES. IS NOT THE INCUMBENT OF THE POSITION EXCEPT ON THE DAYS WHEN HE ACTUALLY WORKED. ON THOSE DAYS HE IS NOT ENTITLED TO RECEIVE RETIRED PAY WHICH WHEN COMBINED WITH THE CIVILIAN COMPENSATION FOR THAT DAY WOULD BE IN EXCESS OF THE $3. HINTON WAS PLACED ON THE RETIRED LIST ON DECEMBER 1. HINTON WAS EMPLOYED ON EACH OF 144 SEPARATE DAYS DURING THE PERIOD FEBRUARY 16 TO AUGUST 5. THAT HIS HOURLY RATE OF PAY WAS $1.615. YOU SAY THAT HE WAS ENTITLED TO AND WAS PAID RETIRED PAY AT THE RATE OF $234.93 PER MONTH FOR THE ABOVE PERIOD.

B-123150, AUGUST 5, 1955, 35 COMP. GEN. 75

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - TEMPORARY MAIL CLERK A RETIRED COMMISSIONED WARRANT OFFICER WHO IS EMPLOYED AS A TEMPORARY SUBSTITUTE MAIL CLERK IN THE ABSENCE OF THE REGULAR MAIL CLERK AND CLASSIFIED SUBSTITUTES, AT AN HOURLY RATE WHICH WOULD AGGREGATE IN EXCESS OF $3,000 A YEAR HAD HE BEEN EMPLOYED FULL TIME, IS NOT THE INCUMBENT OF THE POSITION EXCEPT ON THE DAYS WHEN HE ACTUALLY WORKED, AND ON THOSE DAYS HE IS NOT ENTITLED TO RECEIVE RETIRED PAY WHICH WHEN COMBINED WITH THE CIVILIAN COMPENSATION FOR THAT DAY WOULD BE IN EXCESS OF THE $3,000 PER ANNUM DUAL COMPENSATION LIMITATION IN SECTION 212 OF THE ECONOMY ACT OF 1932.

TO LIEUTENANT COMMANDER D. M. CARR, DEPARTMENT OF THE NAVY, AUGUST 5, 1955:

YOUR LETTER OF FEBRUARY 4, 1955 (XR2:DMC:58, L16-4/1), REQUESTED AN ADVANCE DECISION AS TO THE AMOUNT OF RETIRED PAY PREVIOUSLY PAID TO CHIEF BOATSWAIN JOHN W. HINTON, UNITED STATES NAVY, RETIRED, WHICH MUST BE RECOVERED DUE TO THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, AS FURTHER AMENDED BY PUBLIC LAW 300, 83D CONGRESS, APPROVED FEBRUARY 20, 1954 (68 STAT. 18).

IT APPEARS THAT MR. HINTON WAS PLACED ON THE RETIRED LIST ON DECEMBER 1, 1949, AND SINCE THAT DATE HAS BEEN IN RECEIPT OF RETIRED PAY BASED ON THE RANK OF CHIEF BOATSWAIN. ON AUGUST 5, 1954, HE ADVISED YOUR OFFICE THAT HE HAD BEEN EMPLOYED AS A TEMPORARY SUBSTITUTE MAIL CLERK FOR A PERIOD COMMENCING FEBRUARY 16, 1954, AND TERMINATING UPON HIS RESIGNATION EFFECTIVE AUGUST 5, 1954. THE ENCLOSURE WITH YOUR LETTER, A REPORT BY THE POSTMASTER, BROCKPORT, NEW YORK, SHOWS THAT MR. HINTON WAS EMPLOYED ON EACH OF 144 SEPARATE DAYS DURING THE PERIOD FEBRUARY 16 TO AUGUST 5, 1954; THAT HIS HOURLY RATE OF PAY WAS $1.615; AND THAT HE EARNED THE AGGREGATE SUM OF $968.20 FOR THIS EMPLOYMENT. YOU SAY THAT HE WAS ENTITLED TO AND WAS PAID RETIRED PAY AT THE RATE OF $234.93 PER MONTH FOR THE ABOVE PERIOD, WHICH WAS AT A RATE LESS THAN $3,000 PER ANNUM. YOU FURTHER SAY THAT SHOULD HE BE REQUIRED TO FORFEIT RETIRED PAY ON EACH DATE HE WAS EMPLOYED, REGARDLESS OF THE NUMBER OF HOURS EMPLOYED, THE SUM OF $1,127.66 WOULD HAVE TO BE RECOVERED FROM HIM ALTHOUGH HE RECEIVED ONLY $968.20 DURING THE ENTIRE PERIOD OF HIS EMPLOYMENT BY THE POST OFFICE DEPARTMENT.

SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, PROVIDES IN PERTINENT PART:

(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 THE ARMY OF THE UNITED STATES, NAVY, AIR FORCE, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, AND PUBLIC HEALTH SERVICE, 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.

SECTION 1406, REVISED STATUTES, AS AMENDED, 34 U.S.C. 121, PROVIDES IN PERTINENT PART: "CHIEF BOATSWAINS * * * SHALL BE KNOWN AS "COMMISSIONED WARRANT OFFICERS.'"

IT LONG HAS BEEN HELD THAT A RETIRED CHIEF BOATSWAIN--- A COMMISSIONED WARRANT OFFICER--- WHO IS IN RECEIPT OF RETIRED PAY COMPUTED ON SERVICE IN THAT RANK IS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF SECTION 212 OF THE 1932 ACT. 14 COMP. GEN. 842.

SINCE MR. HINTON WAS EMPLOYED AT AN HOURLY RATE OF $1.615, IT APPEARS THAT HIS GROSS COMPENSATION WOULD HAVE BEEN SLIGHTLY IN EXCESS OF $3,000 A YEAR HAD HE BEEN EMPLOYED FULL TIME. IT DOES NOT APPEAR THAT ANY ATTEMPT WAS MADE TO PLACE A LIMITATION UPON THE NUMBER OF HOURS HE WAS PERMITTED TO WORK IN ORDER TO LIMIT THE COMBINED AMOUNTS OF RETIRED PAY AND CIVILIAN COMPENSATION THAT COULD BE RECEIVED TO A RATE BELOW $3,000 PER ANNUM. COMPARE 20 COMP. GEN. 407. HE WAS NOT THE PRINCIPAL INCUMBENT OF THE POSITION OF MAIL CLERK, HOWEVER, NOR WAS HE THE CLASSIFIED SUBSTITUTE FOR THAT POSITION, BUT WAS A TEMPORARY SUBSTITUTE MAIL CLERK, ENTITLED TO BE EMPLOYED, EXCEPT IN EMERGENCIES, ONLY IN THE ABSENCE OF THE REGULAR MAIL CLERK AND CLASSIFIED SUBSTITUTES. IN THESE CIRCUMSTANCES IT SEEMS CLEAR THAT HE COULD NOT HAVE RECEIVED MORE THAN $3,000 A YEAR AND HE IS NOT REASONABLY TO BE REGARDED AS HAVING BEEN THE INCUMBENT OF THE POSITION EXCEPT ON THE DAYS WHEN HE ACTUALLY FILLED THE POSITION. SEE POSTAL MANUAL, UNITED STATES POST OFFICE DEPARTMENT, 1954 ( OLD MANUAL), CHAPTER II, PERSONNEL, ARTICLE 17.

ON THOSE DAYS HE COULD NOT RECEIVE RETIRED PAY WHICH WHEN COMBINED WITH HIS CIVILIAN COMPENSATION FOR THAT DAY WOULD BE AT A RATE OF MORE THAN $3,000 PER ANNUM. RETIRED PAY AT THE RATE OF $3,000 PER ANNUM IS AT THE RATE OF $8.33 A DAY AND HENCE HE COULD RECEIVE RETIRED PAY ONLY TO THE EXTENT THAT SUCH RETIRED PAY AND CIVILIAN COMPENSATION FOR ANY ONE DAY DID NOT EXCEED $8.33 FOR THAT DAY. THE DEBT SHOULD BE RECOMPUTED ACCORDINGLY ON THE BASIS OF ALLOWING RETIRED PAY SUFFICIENT TO GIVE HIM A TOTAL OF $8.33 FOR EACH DAY WHEN HIS CIVILIAN COMPENSATION WAS LESS THAN THAT AMOUNT. SEE 26 COMP. GEN. 160.