B-123468, AUG. 1, 1955

B-123468: Aug 1, 1955

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IS ENTITLED TO PAYMENT OF HIS RETIRED PAY. MADDALENA WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON JUNE 1. HIS DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY NOR CAUSED BY AN INSTRUMENTALITY OF WAR. HIS CURRENT GROSS RETIRED PAY IS $235.96 PER MONTH. MADDALENA IS AN APPROVED FEE REAL ESTATE APPRAISER AND SALES BROKER OF THE VETERANS ADMINISTRATION REGIONAL OFFICE. CERTAIN OF THE FEES RECEIVED BY HIM IN CONNECTION WITH HIS APPRAISAL AND SALES ACTIVITIES ARE PAID FROM APPROPRIATED FUNDS. MADDALENA COMBINED WITH HIS RETIRED PAY WILL MAKE THE TOTAL ANNUAL RATE FROM BOTH SOURCES MORE THAN $3. MADDALENA'S RIGHT TO RECEIVE HIS RETIRED PAY IS OCCASIONED BY THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30.

B-123468, AUG. 1, 1955

TO LIEUTENANT COMMANDER D. M. CARR (SC), USN:

YOUR LETTERS OF DECEMBER 17, 1954, AND MARCH 16, 1955, X:DMC:PG L16 4/1, REQUEST A DECISION AS TO WHETHER, IN THE CIRCUMSTANCES PRESENTED, LIEUTENANT COMMANDER ARTHUR D. MADDALENA, JR., U.S. NAVAL RESERVE, RETIRED, IS ENTITLED TO PAYMENT OF HIS RETIRED PAY.

IT APPEARS THAT MR. MADDALENA WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY ON JUNE 1, 1947. HIS DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY NOR CAUSED BY AN INSTRUMENTALITY OF WAR. HIS CURRENT GROSS RETIRED PAY IS $235.96 PER MONTH. MR. MADDALENA IS AN APPROVED FEE REAL ESTATE APPRAISER AND SALES BROKER OF THE VETERANS ADMINISTRATION REGIONAL OFFICE, PROVIDENCE, RHODE ISLAND, AND CERTAIN OF THE FEES RECEIVED BY HIM IN CONNECTION WITH HIS APPRAISAL AND SALES ACTIVITIES ARE PAID FROM APPROPRIATED FUNDS. THE RECORD SUGGESTS THAT THE TOTAL AMOUNT OF THE FEES RECEIVED BY MR. MADDALENA COMBINED WITH HIS RETIRED PAY WILL MAKE THE TOTAL ANNUAL RATE FROM BOTH SOURCES MORE THAN $3,000 PER ANNUM.

THE DOUBT REGARDING MR. MADDALENA'S RIGHT TO RECEIVE HIS RETIRED PAY IS OCCASIONED BY THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, WHICH PRECLUDE THE CONCURRENT RECEIPT FROM THE UNITED STATES OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS COMMISSIONED OFFICER AND THE COMPENSATION OF A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WHEN THE TOTAL RATE OF PAY FROM BOTH SOURCES IS MORE THAN $3,000 PER ANNUM.

WE HAVE HELD THAT SERVICES RENDERED ON A FEE BASIS ARE NOT RENDERED IN AN "OFFICE" OR POSITION" WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932. SEE, FOR EXAMPLE, 26 COMP. GEN. 501, AND DECISION OF DECEMBER 4, 1951, B-104099. THE PRINCIPLE OF THOSE DECISIONS IS EQUALLY APPLICABLE TO THE SERVICES RENDERED BY MR. MADDALENA ON A FEE BASIS. IN THIS CONNECTION, IT MAY BE NOTED THAT THE VETERANS ADMINISTRATION DOES NOT CONSIDER MR. MADDALENA TO BE ONE OF ITS EMPLOYEES.

SINCE MR. MADDALENA'S CASE IS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS OF THE CITED STATUTE, HE IS ENTITLED TO BE PAID HIS RETIRED PAY, IF OTHERWISE PROPERLY PAYABLE.

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