B-128962, SEPTEMBER 27, 1956, 36 COMP. GEN. 243

B-128962: Sep 27, 1956

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MILITARY PERSONNEL - RETIRED PUBLIC HEALTH SERVICE OFFICERS - ELIGIBILITY FOR CIVIL SERVICE POSITIONS MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE RECEIVING RETIRED PAY WHICH AMOUNTS TO $2. 500 OR MORE A YEAR ARE PROHIBITED BY THE ACT OF JULY 31. OR COAST GUARD WHO ARE RETIRED FOR PHYSICAL DISABILITY IS NOT APPLICABLE TO OFFICERS IN THE PUBLIC HEALTH SERVICE. 400 PER ANNUM IS ELIGIBLE FOR A CIVIL SERVICE POSITION AND WHETHER IT WOULD MAKE ANY DIFFERENCE IF RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY. PROVIDES AS FOLLOWS: NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.

B-128962, SEPTEMBER 27, 1956, 36 COMP. GEN. 243

MILITARY PERSONNEL - RETIRED PUBLIC HEALTH SERVICE OFFICERS - ELIGIBILITY FOR CIVIL SERVICE POSITIONS MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE WHO ARE RECEIVING RETIRED PAY WHICH AMOUNTS TO $2,500 OR MORE A YEAR ARE PROHIBITED BY THE ACT OF JULY 31, 1894, 5 U.S.C. 62, FROM HOLDING ANY OFFICE OR POSITION UNDER THE FEDERAL GOVERNMENT TO WHICH COMPENSATION ATTACHES, AND THE EXEMPTION RELATING TO MEMBERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO ARE RETIRED FOR PHYSICAL DISABILITY IS NOT APPLICABLE TO OFFICERS IN THE PUBLIC HEALTH SERVICE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 27, 1956:

YOUR LETTER OF AUGUST 14, 1956, REQUESTS OUR DECISION WHETHER AN INDIVIDUAL RETIRED FROM THE COMMISSIONED CORPS OF THE UNITED STATES PUBLIC HEALTH SERVICE WITH RETIRED PAY OF $5,400 PER ANNUM IS ELIGIBLE FOR A CIVIL SERVICE POSITION AND WHETHER IT WOULD MAKE ANY DIFFERENCE IF RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY.

THE ACT OF JULY 31, 1894, 5 U.S.C. 62, PROVIDES AS FOLLOWS:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

COMMISSIONED OFFICERS IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE ARE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. UPON RETIREMENT, THEY ARE PLACED ON THE RETIRED LIST FOR THE REGULAR COMMISSIONED CORPS AND CONTINUE TO HOLD THEIR COMMISSIONS. IF THE RETIREMENT OF ANY SUCH OFFICER IS FOR DISABILITY AND HE RECOVERS FROM THAT DISABILITY, SECTION 21.176 OF THE PUBLIC HEALTH SERVICE REGULATIONS REQUIRES THAT HE BE RECALLED TO ACTIVE DUTY. IF HIS RETIREMENT IS FOR REASONS OTHER THAN PHYSICAL DISABILITY, HE IS SUBJECT TO RECALL TO ACTIVE DUTY IN TIME OF WAR. ALSO, IT IS NOTED THAT RETIRED COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE SPECIFICALLY INCLUDED WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. A DECISION DATED NOVEMBER 25, 1942, B-30362, TO THE FEDERAL SECURITY ADMINISTRATOR WE HELD THAT A RETIRED COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE HOLDS AN OFFICE WITHIN THE CONTEMPLATION OF THE DUAL OFFICE RESTRICTIONS IN THE 1894 ACT. WE PERCEIVE NO BASIS WARRANTING A DIFFERENT CONCLUSION UPON THE QUESTION PRESENTLY UNDER CONSIDERATION WHICH APPEARS TO BE IDENTICAL WITH THAT DECIDED IN THE DECISION OF NOVEMBER 25, 1942.

YOUR FURTHER QUESTION IS WHETHER A COMMISSIONED OFFICER--- WE ASSUME A COMMISSIONED OFFICER OF THE REGULAR CORPS--- OF THE PUBLIC HEALTH SERVICE RETIRED ON ACCOUNT OF A SERVICE-CONNECTED DISABILITY WOULD BE EXEMPT FROM THE DUAL OFFICE RESTRICTION IN THE 1894 ACT TO THE SAME EXTENT AS COMMISSIONED OFFICERS OF THE ARMY AND NAVY WHO ARE RETIRED FOR PHYSICAL DISABILITY.

WHILE THE 1894 STATUTE EXEMPTS FROM ITS PROVISIONS RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD WHO RETIRE FOR DISABILITY INCURRED IN LINE OF DUTY, RETIRED OFFICERS OF THE PUBLIC HEALTH SERVICE ARE NOT ENUMERATED AS ONE OF THE CLASSES TO WHICH THE EXEMPTION APPLIES. THEREFORE, WE MUST CONCLUDE THAT THE EXEMPTION OF OFFICERS RETIRED FOR DISABILITY DOES NOT INCLUDE PUBLIC HEALTH SERVICE OFFICERS RETIRED ON THAT ACCOUNT.

ACCORDINGLY, IT MUST BE HELD THAT A RETIRED COMMISSIONED OFFICER IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE RECEIVING RETIRED PAY EQUALING $2,500 PER ANNUM OR MORE IS NOT QUALIFIED TO HOLD ANY OTHER OFFICE OR POSITION UNDER THE FEDERAL GOVERNMENT TO WHICH COMPENSATION ATTACHES.