B-129177, OCTOBER 9, 1956, 36 COMP. GEN. 288

B-129177: Oct 9, 1956

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MILITARY PERSONNEL - ENLISTED MEMBERS OF FLEET RESERVE RETROACTIVELY RETIRED IN COMMISSIONED GRADES - DUAL COMPENSATION REFUNDS RETIRED ENLISTED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE WHO WERE HELD TO HAVE BEEN RETIRED IN TEMPORARY COMMISSIONED GRADES RETROACTIVELY EFFECTIVE TO SEPTEMBER 1. ARE NOT REQUIRED TO MAKE ANY DUAL COMPENSATION REFUNDS UNDER 5 U.S. WHICHEVER IS LATER. 1956: WE HAVE RECEIVED. IS TO BE REGARDED AS EFFECTIVE FOR PURPOSES OF ADJUSTING THE PAY ACCOUNTS OF PERSONS TRANSFERRED TO THE RETIRED LIST OF THE NAVY IN COMMISSIONED OFFICER GRADES (FROM FLEET RESERVE OR FLEET MARINE CORPS RESERVE STATUS) PURSUANT TO SECTION 2 (A) OF THE ACT OF AUGUST 9.

B-129177, OCTOBER 9, 1956, 36 COMP. GEN. 288

MILITARY PERSONNEL - ENLISTED MEMBERS OF FLEET RESERVE RETROACTIVELY RETIRED IN COMMISSIONED GRADES - DUAL COMPENSATION REFUNDS RETIRED ENLISTED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE WHO WERE HELD TO HAVE BEEN RETIRED IN TEMPORARY COMMISSIONED GRADES RETROACTIVELY EFFECTIVE TO SEPTEMBER 1, 1955, PURSUANT TO SECTION 2 (A) OF THE ACT OF AUGUST 9, 1955, 34 U.S.C. 410 (A), AND, THEREFORE, IF HOLDING A POSITION IN THE FEDERAL GOVERNMENT, SUBJECT TO THE DUAL OFFICE PROHIBITION IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62, ARE NOT REQUIRED TO MAKE ANY DUAL COMPENSATION REFUNDS UNDER 5 U.S. CODE 59 (A), FOR PERIODS PRIOR TO MAY 23, 1956, THE DATE OF DECISION OF THE COMPTROLLER GENERAL, 35 COMP. GEN. 657, OR THE DATE OF ACTION EFFECTING THE APPOINTMENT TO COMMISSIONED GRADE ON THE RETIRED LIST, WHICHEVER IS LATER.

TO THE SECRETARY OF THE NAVY, OCTOBER 9, 1956:

WE HAVE RECEIVED, THROUGH OUR DEFENSE ACCOUNTING AND AUDITING DIVISION, A REQUEST FROM THE NAVY FINANCE CENTER FOR ADVICE AS TO WHEN OUR DECISION OF MAY 22, 1956, B-126842, 35 COMP. GEN. 657, IS TO BE REGARDED AS EFFECTIVE FOR PURPOSES OF ADJUSTING THE PAY ACCOUNTS OF PERSONS TRANSFERRED TO THE RETIRED LIST OF THE NAVY IN COMMISSIONED OFFICER GRADES (FROM FLEET RESERVE OR FLEET MARINE CORPS RESERVE STATUS) PURSUANT TO SECTION 2 (A) OF THE ACT OF AUGUST 9, 1955, 69 STAT. 615, 34 U.S.C. 410 (A), AND WHO, SUBSEQUENT TO THE EFFECTIVE DATE OF THAT ACT, WERE EMPLOYED BY THE FEDERAL GOVERNMENT IN PERMANENT CIVILIAN POSITIONS TO WHICH COMPENSATION WAS ATTACHED.

SECTION 2 (A) OF THE ACT OF AUGUST 9, 1955, EXTENDED TO THOSE PERSONS WHO ON AUGUST 9, 1955, WERE MEMBERS OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, AND WHO PREVIOUSLY HAD SERVED UNDER A TEMPORARY APPOINTMENT IN A COMMISSIONED GRADE AND HAD COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE, THE RIGHT TO BE PLACED ON THE RETIRED LIST, AT THE PRESIDENT'S DISCRETION, IN THE HIGHEST RANK IN WHICH THEY SERVED SATISFACTORILY BEFORE THEIR TRANSFER TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, IF APPLICATION WAS MADE WITHIN 90 DAYS AFTER AUGUST 9, 1955. WE HELD IN THE DECISION OF MAY 22, 1956, THAT SEPTEMBER 1, 1955, WOULD BE REGARDED FOR PAY PURPOSES AS THE EFFECTIVE DATE OF RETIREMENT IN ALL SUCH CASES REGARDLESS OF WHEN ADMINISTRATIVE ACTION WAS ACTUALLY TAKEN TO PLACE THE MEMBERS CONCERNED ON THE RETIRED LIST. ALSO, WE HELD THAT MEMBERS PLACED UPON THE RETIRED LIST IN COMMISSIONED GRADES PURSUANT TO SECTION 2 (A) ARE TO BE VIEWED AS HAVING BEEN APPOINTED TO SUCH COMMISSIONED GRADES AND, CONSEQUENTLY, SUBJECT TO THE PROHIBITORY PROVISIONS OF THE DUAL EMPLOYMENT ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, UNLESS OTHERWISE EXEMPTED FROM SUCH PROVISIONS.

IT IS REPORTED THAT PRIOR TO THE DECISION OF MAY 22, 1956, CERTAIN OF THESE MEMBERS HAD BEEN PLACED UPON THE RETIRED LIST WITH CREDIT OF OFFICER'S RETIRED PAY EFFECTIVE JANUARY 1, 1956, AND WHERE THEY WERE EMPLOYED IN FEDERAL CIVILIAN POSITIONS THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, HAD BEEN APPLIED. FOLLOWING OUR DECISION, THE EFFECTIVE DATE OF RETIREMENT IN SUCH CASES WAS CHANGED TO SEPTEMBER 1, 1955. IN SUCH CASES, HOWEVER, THE MEMBERS CONCERNED OBVIOUSLY COULD NOT HAVE BEEN COMMISSIONED OFFICERS ON THE RETIRED LIST PRIOR TO THE DATE OF THE ORDERS EFFECTING THEIR RETIREMENT AS SUCH EVEN THOUGH UNDER THE LAW THEY ARE ENTITLED TO OFFICER'S RETIRED PAY RETROACTIVELY TO SEPTEMBER 1, 1955, AS A CONSEQUENCE OF THEIR RETIREMENT AS OFFICERS. OTHER MEMBERS WERE NOT PLACED UPON THE RETIRED LIST IN COMMISSIONED GRADES UNTIL AFTER THE DECISION OF MAY 22, 1956 (DUE TO DELAY IN APPROVAL OF APPLICATIONS), AND, WHILE IN THOSE CASES THE RETIREMENT ACTION WAS MADE EFFECTIVE SEPTEMBER 1, 1955, THE MEMBERS HAVE BEEN PAID ONLY ENLISTED RETAINER PAY THROUGH JULY 31, 1956, AND, IN ADDITION, HAVE RECEIVED THE COMPENSATION OF THEIR CIVILIAN POSITIONS THROUGH THAT DATE.

IN DECISIONS OF OCTOBER 28, 1946, AND JUNE 24, 1949, 26 COMP. GEN. 271 AND 28 COMP. GEN. 727, RESPECTIVELY, WE HELD THAT RETIRED ENLISTED MEN RETURNED TO AN INACTIVE STATUS WITH A HIGHER COMMISSIONED GRADE HELD WHILE ON ACTIVE DUTY, PURSUANT TO SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, AS AMENDED, 34 U.S.C. 350I, RETAINED THEIR STATUS AS ENLISTED MEN AND WERE NOT SUBJECT TO THE DUAL OFFICE PROHIBITION OF THE 1894 ACT, AS AMENDED. SINCE THE MEMBERS HERE CONCERNED WERE TRANSFERRED TO THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE IN THEIR PERMANENT STATUS AS ENLISTED MEN PRIOR TO APPOINTMENT TO THEIR COMMISSIONED OFFICER GRADES ON THE RETIRED LIST, IT WOULD NOT HAVE BEEN UNREASONABLE TO VIEW THE DECISIONS OF OCTOBER 28, 1946, AND JUNE 24, 1949, AS INDICATING THAT THE 1894 ACT WOULD NOT BE APPLICABLE IN THE CASES OF SUCH MEMBERS. AND IN CONNECTION WITH AN ANALOGOUS MATTER INVOLVING THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, WE HELD THAT A RETROACTIVE ORDER ADVANCING A RETIRED ENLISTED MAN TO COMMISSIONED RANK AS OF THE DATE OF RETIREMENT COULD NOT LEGALLY SUBJECT HIM RETROACTIVELY TO THE PROVISIONS OF SECTION 212 SO AS TO DIVEST HIM OF HIS VESTED RIGHT TO RETIRED PAY AS AN ENLISTED MAN DURING THE RETROACTIVE PERIOD. 31 COMP. GEN. 619.

IN THE CIRCUMSTANCES WE BELIEVE WE ARE JUSTIFIED IN CONCLUDING THAT, IN CASES OF THE TYPE HERE INVOLVED, THE DUAL OFFICE PRINCIPLES OF THE DECISION OF MAY 22, 1956, SHOULD BE APPLIED FROM THE DATE OF THE DECISION, OR THE DATE OF THE ACTION EFFECTING THE APPOINTMENT TO A COMMISSIONED GRADE ON THE RETIRED LIST, WHICHEVER IS LATER. ACCORDINGLY, OTHERWISE CORRECT PAYMENTS OF COMMISSIONED OFFICER RETIRED PAY AND CIVILIAN COMPENSATION MADE IN ANY SUCH CASE FOR PERIODS PRIOR TO MAY 23, 1956, WILL BE PASSED TO CREDIT IN THE AUDIT OF THE DISBURSING OFFICERS' ACCOUNTS. ALSO, IN ANY SUCH CASE WHERE THE FINAL ACTION TO THE EFFECT RETIREMENT WAS NOT TAKEN UNTIL AFTER MAY 22, 1956, LIKE PAYMENTS MADE FOR PERIODS AFTER THAT DATE BUT PRIOR TO THE DATE OF THE FINAL ACTION WILL BE PASSED TO CREDIT IF OTHERWISE CORRECT. ANY OTHER PAYMENTS OF CIVILIAN COMPENSATION MADE IN SUCH CASES, HOWEVER, SHOULD BE RECOVERED, THE RECOVERY TO BE EFFECTED, IF POSSIBLE, AT THE TIME THE RETAINER AND RETIRED PAY ACCOUNT OF THE MEMBER CONCERNED IS ADJUSTED.