B-132559, SEP. 19, 1957

B-132559: Sep 19, 1957

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IS ENTITLED TO RECEIVE HIS RETIRED PAY IN ADDITION TO SALARY AS A CIVILIAN EMPLOYEE OF THE WALTER REED ARMY MEDICAL CENTER. YOU SAY THAT CAPTAIN GEEVER WAS RETIRED BY REASON OF DISABILITY INCIDENT TO THE SERVICE ON JULY 31. SHOWS THAT CAPTAIN GEEVER WAS GIVEN A CAREER- CONDITIONAL APPOINTMENT. IN EXPLANATION OF CAPTAIN GEEVER'S APPOINTMENT IT IS STATED. THAT THE APPOINTING OFFICERS WERE AWARE OF THE DUAL COMPENSATION STATUTE IN PREPARING THE APPOINTMENT AND THAT HIS CIVILIAN EMPLOYMENT WAS LIMITED TO "HALF TIME" ($5. SINCE THE MAXIMUM COMPENSATION PAYABLE UNDER CAPTAIN GEEVER'S CIVILIAN APPOINTMENT SPECIFICALLY IS LIMITED TO $5. NEITHER HIS CIVILIAN COMPENSATION NOR HIS RETIRED PAY IS SUBJECT TO REDUCTION UNDER SECTION 212 OF THE ACT OF JUNE 30.

B-132559, SEP. 19, 1957

TO LIEUTENANT COLONEL N. P. HANNA, FC, FINANCE AND ACCOUNTING OFFICER, DEPARTMENT OF THE ARMY:

BY FIRST ENDORSEMENT OF JULY 12, 1957, FILE FINEM 201 GEEVER, ERVING F, 0 -20404, THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, TRANSMITTED YOUR LETTER OF JUNE 24, 1957, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION WHETHER IN VIEW OF THE LIMITATIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, CAPTAIN ERVING F. GEEVER, RETIRED, IS ENTITLED TO RECEIVE HIS RETIRED PAY IN ADDITION TO SALARY AS A CIVILIAN EMPLOYEE OF THE WALTER REED ARMY MEDICAL CENTER.

YOU SAY THAT CAPTAIN GEEVER WAS RETIRED BY REASON OF DISABILITY INCIDENT TO THE SERVICE ON JULY 31, 1939; THAT HE ELECTED TO RECEIVE RETIRED PAY OF $3,369.60 PER ANNUM, BASED ON 100 PERCENTUM DISABILITY, UNDER THE PROVISIONS OF SECTION 411 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 823. THE COPY OF "NOTIFICATION OF PERSONNEL ACTION," STANDARD FORM 50, FURNISHED WITH YOUR LETTER, SHOWS THAT CAPTAIN GEEVER WAS GIVEN A CAREER- CONDITIONAL APPOINTMENT, AS MEDICAL OFFICER (PATHOLOGY), GRADE GS-602-13, AT THE RATE OF $10,065 PER ANNUM---" TO WORK HALF TIME AT $5,032 PER ANNUM" ---EFFECTIVE JANUARY 2, 1957.

IN EXPLANATION OF CAPTAIN GEEVER'S APPOINTMENT IT IS STATED, IN SUBSTANCE, THAT THE APPOINTING OFFICERS WERE AWARE OF THE DUAL COMPENSATION STATUTE IN PREPARING THE APPOINTMENT AND THAT HIS CIVILIAN EMPLOYMENT WAS LIMITED TO "HALF TIME" ($5,032 PER ANNUM) IN ORDER THAT THE MAXIMUM CIVILIAN SALARY RECEIVED, TOGETHER WITH HIS DISABILITY RETIRED PAY OF $3,369.60 WOULD NOT EXCEED $10,000 PER ANNUM.

SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, PROVIDES THAT AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHALL BE ENTITLED TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER OF THE UNIFORMED SERVICES 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. SUBSECTION (B) OF THAT SECTION, 5 U.S.C. 59A (B), PROVIDES THAT THE SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY,"AMOUNTS TO LESS THAN $10,000.'

ON THE BASIS OF THE REPORTED FACTS AND CIRCUMSTANCES, CAPTAIN GEEVER, HAVING BEEN RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY, WOULD BE EXCEPTED FROM THE PURVIEW OF THE DUAL EMPLOYMENT ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62. IN ADDITION, SINCE THE MAXIMUM COMPENSATION PAYABLE UNDER CAPTAIN GEEVER'S CIVILIAN APPOINTMENT SPECIFICALLY IS LIMITED TO $5,032 PER ANNUM, WHICH SUM, WHEN COMBINED WITH THE OFFICER'S ANNUAL RETIRED PAY, TOTALS LESS THAN $10,000 PER ANNUM, NEITHER HIS CIVILIAN COMPENSATION NOR HIS RETIRED PAY IS SUBJECT TO REDUCTION UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. SEE 36 COMP. GEN. 689 AND COMPARE 20 COMP. GEN. 407; 25 ID. 464, 466; 26 ID. 160, 162.

ACCORDINGLY, THE VOUCHER SUBMITTED WITH YOUR LETTER, COVERING CAPTAIN GEEVER'S RETIRED PAY FOR JUNE 1957, WHICH WE ARE RETURNING TO YOU, MAY BE PAID, IF OTHERWISE CORRECT.