B-140753, SEP. 25, 1959

B-140753: Sep 25, 1959

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YOU WERE APPOINTED A PERMANENT MASTER SERGEANT IN THE MARINE CORPS WITH DATE OF RANK SHOWN AS DECEMBER 19. YOU WERE APPOINTED A TEMPORARY CHIEF WARRANT OFFICER W-2. YOU WERE ADVISED BY THE COMMANDANT OF THE MARINE CORPS THAT UNLESS YOU ELECTED TO RETIRE NOT LATER THAN JULY 1. YOU WERE ADVISED THAT YOUR RELEASE FROM ACTIVE DUTY WOULD BE EFFECTIVE ON JUNE 30. IT APPEARS THAT YOUR RETIREMENT FROM THE MARINE CORPS WAS UNDER THE PROVISIONS OF THE WARRANT OFFICER ACT OF 1954. WE HAVE REVIEWED THAT ACT AND ITS LEGISLATIVE HISTORY AND WE DO NOT FIND ANY PROVISIONS WHICH WOULD EXEMPT YOUR RETIREMENT AS A WARRANT OFFICER FROM THE DUAL EMPLOYMENT PROVISIONS OF THE ACT OF JULY 30. THAT ACT PROVIDES: "NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.

B-140753, SEP. 25, 1959

TO MR. DAVID M. MONROE, CWO, USMC (RET.):

ON AUGUST 28, 1959, YOU REQUESTED A DECISION BE RENDERED CONCERNING THE EFFECT OF THE DUAL EMPLOYMENT STATUTE UPON YOUR EMPLOYMENT AS A WAREHOUSEMAN AT THE MARINE CORPS SUPPLY CENTER, BARSTOW, CALIFORNIA. THE ENCLOSURES FORWARDED BY YOU SHOW THAT THE CIVILIAN APPOINTMENT UNDER WHICH YOU SERVED FROM JULY 7 TO AUGUST 26, 1959, HAS BEEN FOUND BY THE COMMANDANT OF THE MARINE CORPS, TO BE VOID AB INITIO RESULTING IN AN INDEBTEDNESS BY YOU TO THE UNITED STATES.

THE ENCLOSURES ACCOMPANYING YOUR LETTER SHOW THAT ON DECEMBER 1, 1946, YOU WERE APPOINTED A PERMANENT MASTER SERGEANT IN THE MARINE CORPS WITH DATE OF RANK SHOWN AS DECEMBER 19, 1942. EFFECTIVE NOVEMBER 1, 1954, YOU WERE APPOINTED A TEMPORARY CHIEF WARRANT OFFICER W-2. ON DECEMBER 11, 1958, YOU WERE ADVISED BY THE COMMANDANT OF THE MARINE CORPS THAT UNLESS YOU ELECTED TO RETIRE NOT LATER THAN JULY 1, 1959, YOU WOULD REVERT TO YOUR PERMANENT ENLISTED STATUS (MASTER SERGEANT) ON JUN 30, 1959. YOU ADVISED THE SECRETARY OF THE NAVY ON MARCH 27, 1959, THAT YOU HAD DECIDED TO RETIRE, AND ON JUNE 24, 1959, YOU WERE ADVISED THAT YOUR RELEASE FROM ACTIVE DUTY WOULD BE EFFECTIVE ON JUNE 30, 1959, AND THAT YOU WOULD ASSUME AN INACTIVE STATUS ON THE RETIRED LIST OF OFFICERS OF THE MARINE CORPS EFFECTIVE JULY 1, 1959.

IT APPEARS THAT YOUR RETIREMENT FROM THE MARINE CORPS WAS UNDER THE PROVISIONS OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 157. WE HAVE REVIEWED THAT ACT AND ITS LEGISLATIVE HISTORY AND WE DO NOT FIND ANY PROVISIONS WHICH WOULD EXEMPT YOUR RETIREMENT AS A WARRANT OFFICER FROM THE DUAL EMPLOYMENT PROVISIONS OF THE ACT OF JULY 30, 1894, AS AMENDED, 5 U.S.C. 62. THAT ACT PROVIDES:

"NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICES OR WHENEVER THE PRESIDENT SHALL APPOINT THEM IN OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT. * * *"

GENERALLY, WE HAVE HELD THAT RETIRED WARRANT OFFICERS--- NOT RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY--- HOLD AN OFFICE WITHIN THE PURVIEW OF THE STATUTE QUOTED ABOVE. 16 COMP. GEN. 234; 21 ID. 38; 35 ID. 657; 36 ID. 399. THEREFORE, IN THE ABSENCE OF A SPECIFIC PROVISION OF LAW WHICH WOULD EXEMPT YOU FROM THE PROVISIONS OF THE ABOVE-QUOTED ACT AND ASSUMING YOUR RETIRED PAY OR THE PAY OF A CIVILIAN POSITION IN THE FEDERAL GOVERNMENT AMOUNTS TO OR EXCEEDS $2,500 PER YEAR THE ACT WOULD CONSTITUTE A BAR TO YOUR HOLDING SUCH POSITION UNLESS YOU COME WITHIN ONE OF THE EXCEPTIONS ENUMERATED IN THE ACT. HENCE, THE SALARY RECEIVED IN THE CIVILIAN POSITION WOULD BE FOR RETURN TO THE UNITED STATES IF YOU DO NOT COME WITHIN THE EXEMPTIONS NAMED IN THE STATUTE. IN THAT REGARD A RETIRED OFFICER IS NOT PRECLUDED BY THE 1894 ACT FROM ACCEPTING A GOVERNMENT CIVILIAN JOB THAT HAS A LIMITED DURATION, THAT IS A JOB WHICH HAS BEEN SET UP TO ACCOMPLISH A SPECIFIC PROJECT THAT HAS A SHORT LIFE. SEE THE ENCLOSED COPY OF OUR DECISION OF APRIL 23, 1956, B-127488 (PAGE 3, PARAGRAPH 2).

CONCERNING YOUR QUESTION OF EMPLOYMENT OTHER THAN BY THE GOVERNMENT, WE ARE NOT AWARE OF ANY STATUTE WHICH GENERALLY PROHIBITS YOUR EMPLOYMENT IN PRIVATE BUSINESS OR BY PRIVATE CONTRACTORS. HOWEVER, WE DIRECT YOUR ATTENTION TO THE RESTRICTIONS CONTAINED IN 5 U.S.C. 59C, AND 10 U.S.C. 6112, CONCERNING THE RESTRICTIONS ON SELLING, CONTRACTING FOR, SELLING, OR NEGOTIATING FOR THE SALE OF ANY SUPPLIES OR WAR MATERIALS TO THE STATED GOVERNMENT DEPARTMENTS.