B-129914, JANUARY 11, 1957, 36 COMP. GEN. 503

B-129914, JANUARY 11, 1957, 36 COMP. GEN. 503

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - CANAL ZONE GOVERNMENT - RETIRED ENLISTED MEMBER ADVANCED TO COMMISSIONED RANK A RETIRED ENLISTED MAN OF THE REGULAR AIR FORCE WHO HAS BEEN ADVANCED ON THE RETIRED LIST TO COMMISSIONED RANK, AND WHO HOLDS A CIVILIAN POSITION WITH THE CANAL ZONE GOVERNMENT, IS A PERSON IN THE MILITARY SERVICE UNDER THE DUAL COMPENSATION PROVISIONS OF SECTION 82 (A) OF TITLE 2 OF THE CANAL ZONE CODE AND COMES WITHIN THE PURVIEW OF THE SALARY DEDUCTION EXEMPTION IN SECTION 82 (A) (1) OF THE CANAL ZONE CODE APPLICABLE TO ENLISTED MEMBERS. A CANAL ZONE GOVERNMENT EMPLOYEE WHO IS ALSO A COMMISSIONED OFFICER NOT ON ACTIVE DUTY IN THE AIR FORCE RESERVE IS NOT CONSIDERED TO BE IN THE MILITARY SERVICE WITHIN THE PURVIEW OF THE DUAL COMPENSATION PROVISIONS OF THE CANAL ZONE CODE. A RETIRED ENLISTED MAN OF THE REGULAR AIR FORCE WHO HAS BEEN ADVANCED ON THE RETIRED LIST TO COMMISSIONED RANK, AND WHO HOLDS A CIVILIAN POSITION WITH THE CANAL ZONE GOVERNMENT, COMES WITHIN THE PURVIEW OF THE DUAL COMPENSATION EXEMPTION IN THE CANAL ZONE CODE AND IS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS IN THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, AND, THEREFORE, THE EMPLOYEE MAY RECEIVE RETIRED PAY AND CIVILIAN COMPENSATION.

TO THE GOVERNOR OF THE CANAL ZONE, JANUARY 11, 1957:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1956, REQUESTING OUR DECISION ON CERTAIN QUESTIONS ARISING UNDER SECTION 82 (A) OF TITLE 2 OF THE CANAL ZONE CODE AS AMENDED BY SECTION 4 OF THE ACT OF SEPTEMBER 26, 1950, 64 STAT. 1040.

THE CANAL ZONE GOVERNMENT EMPLOYS MR. GEORGE M. PERVIN WHO, AS A RETIRED ENLISTED MAN OF THE REGULAR AIR FORCE, RECEIVES RETIREMENT PAY AT THE RATE PRESCRIBED FOR THE RANK OF CAPTAIN PURSUANT TO SECTION 203 (E) OF THE ACT OF JUNE 29, 1948, 62 STAT. 1086, 10 U.S.C. 1004 (NOW 10 U.S.C. 8964 AND 8992--- AIR FORCE). MR. PERVIN ALSO HOLDS AN APPOINTMENT AS A MAJOR IN THE UNITED STATES AIR FORCE RESERVE. SINCE JULY 18, 1954, THE DATE UPON WHICH MR. PERVIN COMMENCED RECEIVING THE RETIRED PAY OF A CAPTAIN, THE CANAL ZONE GOVERNMENT HAS BEEN DEDUCTING FROM HIS CIVILIAN SALARY AN AMOUNT EQUAL TO THE RETIREMENT PAY WHICH HE RECEIVES FROM THE AIR FORCE. AT ALL TIMES HERE PERTINENT, MR. PERVIN'S RETIRED PAY HAS BEEN ABOVE $3,000 AND HIS COMBINED INCOME HAS BEEN BELOW $10,000 WITH THE GOVERNMENT SALARY BEING THE HIGHER OF THE TWO SOURCES OF INCOME.

SECTION 82 (A) OF TITLE 2 OF THE CANAL ZONE CODE, AS AMENDED, PROVIDES AS FOLLOWS:

82. COMPENSATION OF PERSONS IN MILITARY, NAVAL, OR PUBLIC HEALTH SERVICE. --- (A) IF ANY OF THE PERSONS APPOINTED OR EMPLOYED AS PROVIDED IN SECTION 6, OR SECTION 81, AS AMENDED, OF THIS TITLE ARE IN THE MILITARY, NAVAL, OR PUBLIC HEALTH SERVICE OF THE UNITED STATES, THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED UNDER THE TERMS OF THOSE SECTIONS, BUT THIS SECTION SHALL NOT BE CONSTRUED AS REQUIRING THE DEDUCTION FROM THE AMOUNT OF SUCH SALARY OR COMPENSATION OF---

(1) THE RETIRED PAY OR ALLOWANCE OF ANY RETIRED WARRANT OFFICER OR ENLISTED MAN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD; OR

(2) THE TRAINING PAY, RETAINER PAY OR ALLOWANCES OF ANY WARRANT OFFICER OR ENLISTED MAN OF THE RESERVE FORCES OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD.

THE QUESTIONS PRESENTED BY YOUR LETTER AS NUMBERED AND REPHRASED BY US TOGETHER WITH THE ANSWERS THERETO ARE AS FOLLOWS:

1. MAY MR. PERVIN'S CASE BE CONSIDERED AS BEING WITHIN THE PURVIEW OF THE LANGUAGE "IN THE MILITARY, * * * SERVICE" AND THE "RETIRED PAY * * * OF ANY RETIRED * * * ENLISTED MAN * * * OF THE AIR FORCE" OF PARAGRAPH (A) AND SUBPARAGRAPH (A) (1), RESPECTIVELY, OF SECTION 82?

SECTION 82 (A) OF THE CANAL ZONE CODE IS DERIVED FROM SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561, AND FROM THE ACT OF MARCH 12, 1928, 45 STAT. 310. SECTION 4 OF THE 1912 ACT PROVIDED THAT " IF ANY OF THE PERSONS APPOINTED OR EMPLOYED AS AFORESAID SHALL BE PERSONS IN THE MILITARY OR NAVAL SERVICES OF THE UNITED STATES, THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED UNDER THE TERMS OF THIS ACT.' IN OUR DECISION 3 COMP. GEN. 164 WE HELD THAT RETIRED ENLISTED MEN OF THE ARMY OR NAVY ARE PERSONS IN THE "MILITARY OR NAVAL SERVICES" UNDER THE ACT OF 1912. THE ACT OF MARCH 12, 1928, PROVIDED " THAT SECTION 4 OF THE PANAMA CANAL ACT, AS AMENDED, SHALL NOT BE CONSTRUED AS REQUIRING THE DEDUCTION OF THE RETIRED PAY OR ALLOWANCES OF ANY RETIRED WARRANT OFFICER OR ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD * * * FROM THE AMOUNT OF THE SALARY OR COMPENSATION PROVIDED BY OR FIXED UNDER THE TERMS OF THE PANAMA CANAL ACT, AS AMENDED.'

THE LEGISLATIVE HISTORY OF THE 1928 ACT AS SET FORTH IN HOUSE REPORT NO. 640, 70TH CONGRESS, FIRST SESSION, SHOWS THAT IT WAS REMEDIAL LEGISLATION. AS STATED ON PAGE 5 OF THE REPORT,"IT SEEMS THE CANAL GOVERNMENT IS THE ONLY DEPARTMENT OF THE GOVERNMENT, THEREFORE, UNDER EXISTING LAW WHICH IS NOT PERMITTED TO EMPLOY SUCH PERSONS WITHOUT DEDUCTING THEIR RETIRED PAY OR THEIR TRAINING PAY.' THIS WAS BECAUSE BY THE ACT OF MAY 31, 1924, 43 STAT. 245, 5 U.S.C. 62, CONGRESS HAD EXCEPTED RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD FROM THE DOUBLE OFFICE HOLDING PROHIBITION OF SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 204, 5 U.S.C. 62, AND WE HAD HELD THAT SUCH GENERAL LEGISLATION CONCERNING DOUBLE OFFICE HOLDING DID NOT AFFECT THE SPECIAL PROVISIONS OF THE ACT OF 1912 REQUIRING DEDUCTIONS FROM THE CANAL ZONE GOVERNMENT COMPENSATION OF RETIRED ENLISTED MEN. 4 COMP. GEN. 510.

THE 1894 ACT HAS BEEN CONSTRUED AS EXCEPTING FROM ITS DOUBLE COMPENSATION PROHIBITION RETIRED ENLISTED MEN WHO SIMILARLY TO MR. PERVIN WERE ADVANCED ON THE RETIRED LIST TO COMMISSIONED RANK PURSUANT TO SECTION 203 (E) OF THE ACT OF JUNE 29, 1948. 28 COMP. GEN. 727. SIMILARLY SITUATED RETIRED ENLISTED MEN ADVANCED TO COMMISSIONED RANK UNDER DIFFERENT PROVISIONS OF LAW HAVE LIKEWISE BEEN HELD TO RETAIN THE OFFICES OF ENLISTED MEN WITHIN THE PURVIEW OF THE 1894 ACT. 26 COMP. GEN. 271. FURTHERMORE, RETIRED ENLISTED MEMBERS WHO WERE SIMILARLY ADVANCED ON THE RETIRED LIST TO OFFICER RANK HAVE BEEN CONSIDERED TO HAVE RETAINED THEIR ENLISTED STATUS FOR THE PURPOSE OF ACTS OTHER THAN THOSE HERE CONSIDERED. B-129273, OCTOBER 12, 1956, 36 COMP. GEN. 315; 31 ID. 529.

CONSEQUENTLY, WE CONCLUDE THAT MR. PERVIN, AS A RETIRED ENLISTED MAN OF THE REGULAR AIR FORCE, IS IN THE MILITARY SERVICE UNDER PARAGRAPH 82 (A) BUT ALSO IS WITHIN THE PURVIEW OF SECTION 82 (A) (1) OF TITLE 2 OF THE CANAL ZONE CODE.

2. WOULD THE FACT THAT MR. PERVIN IS ALSO CONCURRENTLY A COMMISSIONED OFFICER NOT ON ACTIVE DUTY IN THE AIR FORCE RESERVE AFFECT HIS POSITION REGARDING SECTION 82 (A/?

SECTION 246 OF THE ACT OF JULY 9, 1952, 66 STAT. 495, 50 U.S.C. 981, AS AMENDED BY SECTION 29 (D), 70A STAT. 632, 5 U.S.C. 30R, PROVIDES THAT "WHEN HE IS NOT ON ACTIVE DUTY, OR WHEN HE IS ON ACTIVE DUTY FOR TRAINING, (MEMBERS OF THE RESERVE COMPONENTS SHALL NOT BE HELD OR) A RESERVE IS NOT CONSIDERED TO BE AN OFFICER/S) OR EMPLOYEE/S) OF THE UNITED STATES, OR A PERSON/S) HOLDING AN/Y) OFFICE OF (PROFIT OR TRUST) TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER, OR IN CONNECTION WITH, (ANY DEPARTMENT OR AGENCY OF) THE UNITED STATES, (SOLELY BY REASON OF THEIR) BECAUSE OF HIS APPOINTMENT/S), OATH/S), (COMMISSION,) OR STATUS (AS SUCH), OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY (AND) OR ALLOWANCES RECEIVED (AS SUCH) IN THAT CAPACITY.' (OMITTED PORTIONS ARE ENCLOSED IN BRACKETS AND NEW MATTER IS ITALICIZED.) WE HOLD THAT MR. PERVIN, AS AN OFFICER IN THE AIR FORCE RESERVE NOT ON ACTIVE DUTY, IS NOT TO BE CONSIDERED AS IN THE MILITARY SERVICE WITHIN THE PURVIEW OF SECTION 82 (A). CF. 28 COMP. GEN. 367.

ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.

3. IN THE EVENT MR. PERVIN IS ENTITLED TO BE PAID HIS FULL GOVERNMENT SALARY WITHOUT DEDUCTION UNDER SECTION 82 (A) WOULD THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, BE FOR APPLICATION?

THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT ARE GENERAL IN NATURE AND PROVIDE THAT NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES SHALL BE ENTITLED TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER 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 $3,000 (INCREASED TO $10,000 BY THE ACT OF AUGUST 4, 1955), AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS SUCH RATE PER ANNUM, THE PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR THE RETIRED PAY, WHICHEVER HE MAY ELECT.

SECTION 4 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF MARCH 12, 1928, FROM WHICH SECTION 82 (A) WAS DERIVED, IS SPECIAL IN NATURE RELATING SPECIFICALLY TO PERSONS IN THE UNIFORMED SERVICE EMPLOYED UNDER THE AUTHORITY OF THE CANAL ZONE CODE. IN ADDITION, SUCH SPECIFIC PROVISIONS HAVING BEEN INCLUDED IN THE CANAL ZONE CODE ESTABLISHED BY THE ACT OF JUNE 19, 1934, 48 STAT. 1122, WERE CONSIDERED BY THE CONGRESS AND CONTINUED IN THE STATUTES TWO YEARS AFTER THE ENACTMENT OF SECTION 212.

IT IS A SETTLED PRINCIPLE OF STATUTORY CONSTRUCTION THAT A SPECIFIC STATUTORY PROVISION COVERING A GIVEN SUBJECT MATTER WILL PREVAIL OVER THE GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE PROVE CONTROLLING. IN OTHER WORDS, TO THE EXTENT OF AN IRRECONCILABLE CONFLICT BETWEEN THE GENERAL PROVISION AND THE SPECIFIC PROVISION, THE GENERAL PROVISION MUST YIELD TO THE SPECIFIC PROVISIONS AND OPERATE ONLY UPON SUCH CASES AS ARE NOT IN THE SCOPE OF THE SPECIFIC PROVISION. SEE 26 COMP. GEN. 561 AND THE AUTHORITIES CITED THEREIN.

IN VIEW OF THE FOREGOING, IT SEEMS EVIDENT THAT THE PROVISIONS OF SECTION 212 AND THE COMPENSATION DEDUCTION PROVISIONS OF THE PANAMA CANAL CODE MAY NOT BOTH BE FOLLOWED IN THE CASE OF RETIRED ENLISTED MEN WHO ARE EMPLOYED BY THE CANAL ZONE GOVERNMENT.

OUR VIEW IS THAT THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 ARE NOT FOR APPLICATION IN ANY WAY TO THE GOVERNMENT SALARY OF MR. PERVIN. COMP. GEN. 439.

ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.

4. IN THE EVENT MR. PERVIN'S RETIRED PAY IS NOT FOR DEDUCTION FROM HIS GOVERNMENT SALARY UNDER SECTION 82 (A) WHAT WOULD BE THE PROPER EXTENT OF REPAYING HIM FOR PAST IMPROPER DEDUCTIONS?

IN VIEW OF THE FOREGOING, MR. PERVIN IS ENTITLED TO REPAYMENT FOR THE AMOUNT DEDUCTED FROM HIS CIVILIAN COMPENSATION SINCE JULY 18, 1954.