B-128975, SEPT. 11, 1956

B-128975: Sep 11, 1956

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NAVY FINANCE CENTER: REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. IS ENTITLED TO FULL RETIRED PAY FOR THOSE DAYS ON WHICH HE WAS EMPLOYED DURING THE PERIOD JANUARY 3 TO APRIL 25. COMMANDER HUNT WAS RETIRED FOR PHYSICAL DISABILITY. THAT SUCH DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR. THAT THE OFFICER'S CURRENT RETIRED PAY IS $3. THAT WHEN HE WAS APPOINTED THERE WAS NO LIMITATION PLACED ON THE NUMBER OF DAYS ON WHICH HE MIGHT BE EMPLOYED DURING ANY PARTICULAR PERIOD. THERE WAS ISSUED A NOTIFICATION OF PERSONNEL ACTION PURPORTEDLY CORRECTING THE NOTIFICATION OF HIS APPOINTMENT OF JANUARY 3. THAT "TOTAL EMPLOYMENT IN ANY CALENDAR YEAR IS LIMITED TO 260 DAYS.'.

B-128975, SEPT. 11, 1956

TO MR. L. A. CAMPBELL, DISBURSING OFFICER, U.S. NAVY FINANCE CENTER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1956, WITH ENCLOSURES AND ENDORSEMENTS, REQUESTING OUR DECISION WHETHER LIEUTENANT COMMANDER RICHARD C. D. HUNT, JR., UNITED STATES NAVY, RETIRED, IS ENTITLED TO FULL RETIRED PAY FOR THOSE DAYS ON WHICH HE WAS EMPLOYED DURING THE PERIOD JANUARY 3 TO APRIL 25, 1956.

IT APPEARS THAT ON AUGUST 1, 1946, COMMANDER HUNT WAS RETIRED FOR PHYSICAL DISABILITY; THAT SUCH DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR; AND THAT THE OFFICER'S CURRENT RETIRED PAY IS $3,410.52 PER ANNUM. IT FURTHER APPEARS THAT HE HAS BEEN EMPLOYED SINCE JANUARY 3, 1956, BY THE ALEXANDER HAMILTON BICENTENNIAL COMMISSION, ESTABLISHED BY S.J.RES. 140, 68 STAT. 746, ON AN INTERMITTENT BASIS, AT $25 PER DAY WHEN ACTUALLY EMPLOYED; THAT WHEN HE WAS APPOINTED THERE WAS NO LIMITATION PLACED ON THE NUMBER OF DAYS ON WHICH HE MIGHT BE EMPLOYED DURING ANY PARTICULAR PERIOD; AND THAT ON APRIL 26, 1956, THERE WAS ISSUED A NOTIFICATION OF PERSONNEL ACTION PURPORTEDLY CORRECTING THE NOTIFICATION OF HIS APPOINTMENT OF JANUARY 3, 1956, IT BEING STATED IN THE NOTIFICATION OF APRIL 26, 1956, THAT "TOTAL EMPLOYMENT IN ANY CALENDAR YEAR IS LIMITED TO 260 DAYS.'

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, SUPP. III, PROVIDES, IN PERTINENT PART, THAT NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY ON ACCOUNT OF SERVICES AS AN OFFICER OF THE NAVY 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 $10,000; AND THAT THIS RESTRICTION SHALL NOT APPLY TO ANY OFFICER RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR.

THE APPARENT INTENT AND PURPOSE OF THE NOTIFICATION OF PERSONNEL ACTION OF APRIL 26, 1956, IS TO RESTRICT THE EXTENT OF COMMANDER HUNT'S EMPLOYMENT TO A MAXIMUM OF 260 DAYS DURING THE CALENDAR YEAR OF 1956, OR DURING ANY ENSUING CALENDAR YEAR (DURING THE LIFE OF THE COMMISSION) RATHER THAN TO IMPOSE A PROPORTIONATE RESTRICTION AFTER APRIL 26, 1956, ONLY. THE NOTIFICATION ACCOMPLISHES THAT INTENT AND PURPOSE. HENCE, THE END RESULT IS THE SAME AS IF COMMANDER HUNT'S ORIGINAL APPOINTMENT HAD RECITED THAT HE COULD NOT BE EMPLOYED MORE THAN 260 DAYS DURING 1956. THAT BASIS, HIS MAXIMUM POSSIBLE CIVILIAN COMPENSATION FOR 1956 IS $6,500 (260 TIMES $25). THAT AMOUNT COMBINED WITH HIS RETIRED PAY OF $3,401.52 TOTALS LESS THAN $10,000. THUS, NEITHER HIS CIVILIAN COMPENSATION NOR HIS RETIRED PAY IS SUBJECT TO ANY REDUCTION UNDER SECTION 212 OF THE ECONOMY ACT, AS AMENDED. 20 COMP. GEN. 407, AND CASES CITED THEREIN.