B-137195, OCT 27, 1958

B-137195, OCT 27, 1958

PRECIS-UNAVAILABLE

COMMANDER R.A. WILSON, DEPARTMENT OF THE NAVY:

BY LETTER DATED AUGUST 20, 1958, JAG:134.1:VCC SER:6821, THE JUDGE ADVOCATE GENERAL OF THE NAVY FORWARDED YOUR LETTER DATED JULY 14, 1958 (XR:HA:32 L16-4/1), TO WHICH THE MILITARY PAY AND ALLOWANCE COMMITTEE HAS ASSIGNED SUBMISSION NO. 364, REQUESTING AN "ADVANCE DECISION" AS TO WHETHER THE APPOINTMENT OF RETIRED CHIEF WARRANT OFFICER, CHELEC NORMAN M. RAINS, W-3, 350148, TO A CIVILIAN HOURLY WAGE BOARD POSITION CONSTITUTES THE HOLDING OF AN "OFFICE" WITHIN THE MEANING OF THAT WORD AS USED IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62.

AS A MEMBER OF THE REGULAR NAVY CHELEC RAINS WAS RETIRED FOR LENGTH OF SERVICE ON AUGUST 1, 1955, PURSUANT TO 34 U.S.C. 430(A) AND (D), SUPP. III, 1952 ED. HE RECEIVED RETIRED PAY AT THE RATE OF $310.52 PER MONTH FROM AUGUST 1, 1955, TO MAY 31, 1958, AND $329.15 PER MONTH BEGINNING JUNE 1, 1955, TO MAY 31, 1958, HOWEVER, EFFECTIVE OCTOBER 21, 1955, HE ACCEPTED FEDERAL CIVILIAN EMPLOYMENT AT THE U.S. NAVAL REPAIR FACILITY, SAN DIEGO, CALIFORNIA, AS AN ELECTRICIAN WITH COMPENSATION FIXED AT THE RATE OF $2.24 PER HOUR PURSUANT TO ESTABLISHED ADMINISTRATIVE WAGE BOARD PROCEDURE. WAS EMPLOYED IN THAT CAPACITY UNTIL SEPTEMBER 7, 1956, WHEN HE RESIGNED FROM THAT CIVILIAN POSITION.

ON OCTOBER 3, 1956, OUR AUDITORS NOTIFIED THE AGENCIES CONCERNED THAT UNDER 5 U.S.C. 62 NO ENTITLEMENT EXISTS FOR THE COMPENSATION PAID TO MR. RAINS IN THE CIVILIAN POSITION. EVENTUALLY, ON NOVEMBER 14, 1957, FORMAL NOTICES OF EXCEPTIONS WERE ISSUED AGAINST THE SUM OF $4,782.09 PAID DURING THE PERIOD OCTOBER 21, 1955, THROUGH SEPTEMBER 7, 1956. RECOVERY OF THAT SUM ADMINISTRATIVELY COMMENCED IN JULY 1958 BY WITH FINAL CHECK AGE OF $22.09 SCHEDULED FOR MAY 1964. THE ONLY ISSUE WHICH YOUR LETTER OF JULY 14 EXPRESSLY RAISES IS WHETHER EMPLOYMENT IN THE CIVILIAN WAGE BOARD POSITION CONSTITUTED HOLDING OF AN "OFFICE" WITHIN THE MEANING OF 5 U.S.C. 62.

THE ACT OF 1894, 5 U.S.C. 62, PROVIDES WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE THAT NO PERSON, WHO HOLDS "AN OFFICE" THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500, SHALL BE APPOINTED TO OR HOLD "ANY OTHER OFFICE" TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.

IT IS WELL ESTABLISHED THAT RETIRED COMMISSIONED WARRANT OFFICERS OF THE NAVY, HOLD OFFICE WITHIN THE MEANING OF THE ACT OF 1894. SEE 1 COMP. GEN. 700, 36 ID. 309, AND THE DECISIONS CITED THEREIN. ALSO, AS TO THE CIVILIAN WAGE BOARD POSITION IN QUESTION, IN OUR DECISION AT 36 COMP. GEN. 803, 804, WE CONCLUDED THAT WHETHER SUCH CIVILIAN COMPENSATION OR SALARY IS COMPUTED ON AN HOURLY BASIS, OR BY THE WEEK, MONTH OR YEAR, WOULD APPEAR TO BE IMMATERIAL; THAT THE TERM "OFFICE" AS USED IN THE ACT OF 1894 IS "A BROAD GENERAL TERM WHICH HAS BEEN CONSTRUED TO INCLUDE ANY PERSON HOLDING A PLACE OR POSITION UNDER THE GOVERNMENT AND PAID FROM GOVERNMENT FUNDS." FURTHER THEREIN, WE POINTED OUT THAT "OFFICE" AS USED IN THE 1894 ACT COVERS "ANY POSITION HAVING FEDERAL FUNCTIONS AND DUTIES AND *** THE ELEMENTS OF APPOINTMENT, TENURE, DURATION, AND SALARY, RECOGNIZED AS CHARACTERISTICS OF AN OFFICE, AS DISTINGUISHED FROM A MERE CONTRACT FOR THE PERFORMANCE OF PERSONAL SERVICES."

THEREFORE, SINCE RETIRED CWO NORMAN M. RAINS, W-3, 350148, DOES NOT COME WITHIN ONE OF THE EXCEPTIONS MADE IN THE 1894 ACT, AND HE WAS RETIRED FROM THE REGULAR NAVY FOR LENGTH OF SERVICE ONLY, HIS APPOINTMENT TO A REGULAR FULL-TIME CIVILIAN POSITION TO WHICH COMPENSATION IS ATTACHED MUST BE CONSIDERED AS VOID AB INITIO.

OUR DECISION B-131060 OF JUNE 7, 1957 (36 COMP. GEN. 803, AT PAGE 805), TO WHICH CWO RAINS REFERRED IN HIS LETTER OF AUGUST 13, 1957, TO THE DISBURSING OFFICER, U.S. NAVAL REPAIR FACILITY, SAN DIEGO 36, CALIFORNIA, CONCERNED THE APPLICATION OF 35 COMP. GEN. 657 AND 36 ID. 288 IN THE CASE OF A MEMBER OF THE NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE, WHO WAS RETIRED UNDER 34 U.S.C. 410B (SUPP. III, 1952 ED.), BUT WHOSE PERMANENT STATUS IS ENLISTED. HOWEVER, SINCE THE RECORD SHOWS THAT CWO RAINS WAS RETIRED AS A PERMANENT COMMISSIONED WARRANT OFFICER UNDER 34 U.S.C. 430(A) AND (D) (SUPP. III, 1952 ED.), OUR DECISIONS AT 35 COMP. GEN. 657, 36 ID. 288, AND 805, ARE NOT APPLICABLE IN THIS CASE. HENCE WE CONCLUDE THAT CWO RAINS IS NOT ENTITLED TO ANY OF THE $4,782.09 HE RECEIVED AS CIVILIAN COMPENSATION FOR THE PERIOD OCTOBER 21, 1955, THROUGH SEPTEMBER 7, 1956, AND THE NOTICES OF EXCEPTIONS NOS. 800032, AND

YOUR QUESTION IS ANSWERED ACCORDINGLY. 800033, AND 800034 DATED NOVEMBER 14, 1957, ARE SUSTAINED.