B-126025, NOVEMBER 29, 1955, 35 COMP. GEN. 308

B-126025: Nov 29, 1955

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COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - CONSULTANTS EMPLOYED UNDER MUTUAL SECURITY ACT OF 1954 A RETIRED ARMY OFFICER WHO WAS APPOINTED AS A CONSULTANT AT $40 A DAY WITH A REGULAR FORTY-HOUR. THE 1954 ACT DOES NOT HAVE ANY RETROACTIVE EFFECT SO AS TO AUTHORIZE CONCURRENT RETIRED AND CIVILIAN SERVICE PAY PRIOR THERETO. REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER. GENERAL MCREYNOLDS WAS PLACED ON THE RETIRED LIST EFFECTIVE OCTOBER 31. HE WAS APPOINTED TO A POSITION AT $15. HE WAS APPOINTED UNDER SUBSECTION 104 (E) OF ECONOMIC COOPERATION ACT OF 1948. PRECLUDED THE CONCURRENT RECEIPT FROM THE UNITED STATES OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AND THE COMPENSATION OF A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WHEN THE TOTAL RATE FROM BOTH SOURCES WAS MORE THAN $3.

B-126025, NOVEMBER 29, 1955, 35 COMP. GEN. 308

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - CONSULTANTS EMPLOYED UNDER MUTUAL SECURITY ACT OF 1954 A RETIRED ARMY OFFICER WHO WAS APPOINTED AS A CONSULTANT AT $40 A DAY WITH A REGULAR FORTY-HOUR, FIVE-DAY WEEKLY TOUR OF DUTY UNDER SECTION 140 (E) OF THE ECONOMIC COOPERATION ACT OF 1948 AS CONTINUED BY SECTION 7 (C) OF THE MUTUAL SECURITY ACT OF 1952 MAY BE REGARDED AS HOLDING AN APPOINTMENT AS A TEMPORARY CONSULTANT UNDER SECTION 530 (A) OF THE MUTUAL SECURITY ACT OF 1954 WITHIN THE DUAL EMPLOYMENT AND COMPENSATION EXEMPTIONS IN SECTION 532 (A) AND CONSEQUENTLY SUCH CIVILIAN EMPLOYMENT DOES NOT PRECLUDE THE CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION FROM AUGUST 26, 1954, THE EFFECTIVE DATE OF THE ACT; HOWEVER, THE 1954 ACT DOES NOT HAVE ANY RETROACTIVE EFFECT SO AS TO AUTHORIZE CONCURRENT RETIRED AND CIVILIAN SERVICE PAY PRIOR THERETO.

TO LIEUTENANT COLONEL M. L. JOHNSON, DEPARTMENT OF THE ARMY, NOVEMBER 29, 1955:

YOUR LETTER OF OCTOBER 26, 1955, WITH ENCLOSURES, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER, STATED IN FAVOR OF BRIGADIER GENERAL WILBUR R. MCREYNOLDS, 10-7223, USA, RETIRED, IN THE GROSS AMOUNT OF $7,290.63, COVERING PAYMENT OF RETIRED PAY FOR THE PERIOD AUGUST 3, 1954, TO JUNE 30, 1955.

GENERAL MCREYNOLDS WAS PLACED ON THE RETIRED LIST EFFECTIVE OCTOBER 31, 1947, PURSUANT TO THE PROVISIONS OF SECTION 5 OF THE ACT OF JULY 31, 1935, 49 STAT. 507, AS AMENDED, 10 U.S.C. 943A. EFFECTIVE MAY 13, 1953, HE WAS APPOINTED TO A POSITION AT $15,000 PER ANNUM IN THE MUTUAL SECURITY AGENCY, SUCH APPOINTMENT HAVING BEEN MADE PURSUANT TO THE PROVISIONS OF SECTION 109 (A) OF THE ECONOMIC COOPERATION ACT OF 1948, 62 STAT. 142, 22 U.S.C. 1507. HE SERVED IN THAT POSITION UNTIL THE CLOSE OF BUSINESS AUGUST 2, 1954. ON AUGUST 3, 1954, HE WAS APPOINTED UNDER SUBSECTION 104 (E) OF ECONOMIC COOPERATION ACT OF 1948, 62 STAT. 139, AS CONTINUED BY SUBSECTION 7 (C) OF THE MUTUAL SECURITY ACT OF 1952, 66 STAT. 144, 22 U.S.C. 1503, AS A CONSULTANT AT $40 PER DAY, WITH A REGULAR 40-HOUR FIVE- DAY, WEEKLY TOUR OF DUTY AND HE REMAINED IN THAT STATUS UNTIL THE CLOSE OF BUSINESS ON JUNE 30, 1955.

THE PAYMENT OF GENERAL MCREYNOLDS' RETIRED PAY HAS BEEN WITHHELD FOR THE ENTIRE PERIOD OF HIS CIVILIAN EMPLOYMENT, MAY 13, 1953, TO JUNE 30, 1955, BECAUSE OF THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. DURING THE PERIOD HERE INVOLVED, SUCH PROVISIONS, WITH CERTAIN EXCEPTIONS NOT HERE PERTINENT, PRECLUDED THE CONCURRENT RECEIPT FROM THE UNITED STATES OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AND THE COMPENSATION OF A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WHEN THE TOTAL RATE FROM BOTH SOURCES WAS MORE THAN $3,000 PER ANNUM.

EFFECTIVE AUGUST 26, 1954, THE ECONOMIC COOPERATION ACT OF 1948, AS AMENDED, AND THE MUTUAL SECURITY ACT OF 1952, WERE REPEALED AND SUPERSEDED BY THE MUTUAL SECURITY ACT OF 1954, 68 STAT. 832, 22 U.S.C. 1751. SUBSECTION 530 (A) OF SUCH 1954 STATUTE, 68 STAT. 859, 22 U.S.C. 1790, LIKE SUBSECTION 104 (E) OF THE PRIOR LAW, PROVIDED FOR THE EMPLOYMENT, AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, 5 U.S.C. 55A, BY ANY GOVERNMENT AGENCY OF EXPERTS OR CONSULTANTS FOR THE PERFORMANCE OF FUNCTIONS UNDER THE 1954 STATUTE, AND SUBSECTION 543 (C) OF THE 1954 LAW, 68 STAT. 862, 22 U.S.C. 1768, CONTINUED IN FORCE, WITHOUT THE NECESSITY FOR REAPPOINTMENT, EMPLOYMENTS UNDER THE REPEALED LAWS. SECTION 532 OF THE 1954 STATUTE, 68 STAT. 859, PROVIDES, IN PART, THAT:

(A) SERVICE OF AN INDIVIDUAL * * * AS AN EXPERT OR CONSULTANT UNDER SECTION 530 (A) SHALL NOT * * * BE CONSIDERED AS EMPLOYMENT OR HOLDING OF OFFICE OR POSITION BRINGING SUCH INDIVIDUAL WITHIN THE PROVISIONS OF SECTION 6 OF THE ACT OF MAY 22, 1920, AS AMENDED (5 U.S.C. 715), SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED (5 U.S.C. 59A), OR ANY OTHER FEDERAL LAW LIMITING THE REEMPLOYMENT OF RETIRED OFFICERS OR EMPLOYEES OR GOVERNING THE SIMULTANEOUS RECEIPT OF COMPENSATION AND RETIRED PAY OR ANNUITIES.

(B) NOTWITHSTANDING SECTION 2 OF THE ACT OF JULY 31, 1894 (5 U.S.C. 62), WHICH PROHIBITS CERTAIN RETIRED OFFICERS FROM HOLDING CERTAIN OFFICE, ANY RETIRED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE CAREER COMPENSATION ACT OF 1949 MAY HOLD ANY OFFICE OR APPOINTMENT UNDER THIS ACT OR THE MUTUAL DEFENSE ASSISTANCE CONTROL ACT OF 1951, BUT THE COMPENSATION OF ANY SUCH RETIRED OFFICER SHALL BE SUBJECT TO THE PROVISIONS OF THE ACT OF JUNE 30, 1932 (5 U.S.C. 59A), WHICH DOES NOT PERMIT RETIRED PAY TO BE ADDED TO THE COMPENSATION RECEIVED AS A CIVILIAN OFFICER.

SUBSECTION (A) OF SECTION 532 EXEMPTS EXPERTS AND CONSULTANTS EMPLOYED TEMPORARILY PURSUANT TO SUBSECTION 530 (A) FROM THE PROVISIONS OF SECTION 6 OF THE ACT OF MAY 22, 1920, 5 U.S.C. 715, AS AMENDED, OR ANY OTHER FEDERAL LAW LIMITING THE REEMPLOYMENT OF RETIRED OFFICERS OR EMPLOYEES, AND FROM THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, OR ANY OTHER FEDERAL LAW GOVERNING THE SIMULTANEOUS RECEIPT OF COMPENSATION AND RETIRED PAY OR ANNUITIES. SUBSECTION (B) OF SECTION 532, EXEMPTS RETIRED OFFICERS FROM THE DUAL OFFICE RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, FOR THE PURPOSE OF PERMITTING THEIR APPOINTMENT AS REGULAR EMPLOYEES UNDER THE ACT BUT IT DOES NOT EXEMPT THEM, WHEN SO APPOINTED, FROM THE STATUTORY PROHIBITIONS AGAINST THE CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION.

EFFECTIVE AUGUST 26, 1954, GENERAL MCREYNOLDS IS TO BE REGARDED AS HOLDING AN APPOINTMENT AS A TEMPORARY CONSULTANT, UNDER THE PROVISIONS OF SUBSECTION 530 (A) OF THE 1954 ACT, WITHIN THE PURVIEW OF SUBSECTION 532 (A) OF THE ACT EXEMPTING SUCH EMPLOYMENT FROM THE DUAL EMPLOYMENT AND COMPENSATION RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, OR ANY OTHER SUCH LAW. CONSEQUENTLY, SUCH CIVILIAN EMPLOYMENT DOES NOT PRECLUDE HIM FROM RECEIVING HIS RETIRED PAY EFFECTIVE AUGUST 26, 1954. WE FIND, HOWEVER, NOTHING IN THE 1954 ACT, OR IN ITS LEGISLATIVE HISTORY, WHICH SUGGESTS THAT THE EXEMPTING PROVISIONS OF SUBSECTION 532 (A) WERE INTENDED TO HAVE ANY RETROACTIVE EFFECT AND SINCE SIMILAR EXEMPTING PROVISIONS FOR CONSULTANTS DO NOT APPEAR IN THE CITED PRIOR LAWS, GENERAL MCREYNOLDS IS NOT ENTITLED TO THE PAYMENT OF HIS RETIRED PAY FOR ANY PERIOD PRIOR TO AUGUST 26, 1954.

PAYMENT ON THE SUBMITTED VOUCHER, WHICH WE ARE RETURNING TO YOU, TO THE EXTENT THAT IT REPRESENTS RETIRED PAY FOR THE PERIOD AUGUST 26, 1954, TO JUNE 30, 1955, IS AUTHORIZED.