B-141989, APRIL 2, 1963, 42 COMP. GEN. 553

B-141989, APRIL 2, 1963, 42 COMP. GEN. 553

COMPENSATION - DOUBLE - HOLDING TWO OFFICES - TEMPORARY WARRANT OFFICERS A TEMPORARY CHIEF WARRANT OFFICER APPOINTED PURSUANT TO 10 U.S.C. 3448 (C) (2) WHO WAS RETIRED WHILE SERVING IN THAT CAPACITY, EVEN THOUGH HIS RETIRED PAY IS NOT CONTINGENT UPON A CONTINUED MILITARY STATUS AS A TEMPORARY OFFICER AND IS NOT COMPENSATION FOR CURRENT SERVICE, HOLDS AN ,OFFICE" WITHIN THE MEANING OF THE DUAL OFFICE HOLDING PROHIBITION IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62, HIS APPOINTMENT AS A TEMPORARY CHIEF WARRANT OFFICER UNDER 10 U.S.C. 3448 (C) (2) HAVING GRANTED HIM THE SAME BENEFITS AS MEMBERS OF THE ARMY ON ACTIVE DUTY WITHOUT CONFERRING RIGHTS THAT RELATE TO A PERIOD AFTER RETIREMENT AND AFTER A RIGHT TO RETIRED PAY BECOMES FIXED; THEREFORE, THE WARRANT OFFICER RECEIVING PAY AS A RETIRED OFFICER BECAUSE OF HIS MILITARY SERVICE IS SUBJECT TO THE RESTRICTION IN THE 1894 ACT IN THE ABSENCE OF A STATUTORY PROVISION SIMILAR TO THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R (D), EXEMPTING RESERVE OFFICERS FROM THE RESTRICTION OF THE ACT.

TO THE SECRETARY OF THE ARMY, APRIL 2, 1963:

REFERENCE IS MADE TO FIRST INDORSEMENT DATED NOVEMBER 14, 1962, FROM THE OFFICE OF THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, WRITTEN IN RESPONSE TO THE REQUEST CONTAINED IN OUR DECISION B-141989, DATED JUNE 7, 1961, 40 COMP. GEN. 660, RENDERED IN THE CASE OF CHIEF WARRANT OFFICER GEORGE MATUCK, RETIRED, W-2 103 185, FOR AN EXPLANATION OF THE REASONS FOR THE STATED ADMINISTRATIVE CONCLUSION THAT MR. MATUCK "IS NOT SUBJECT TO THE DUAL COMPENSATION STATUTES OF THE ACT OF JULY 31, 1894 WHICH APPLY TO REGULAR ARMY OFFICERS AND REGULAR WARRANT OFFICERS RETIRED FOR REASONS OTHER THAN DISABILITY.'

THE FACTS IN THIS CASE WERE STATED IN THE DECISION OF JUNE 7, 1961, AND WILL NOT BE REPEATED HERE. THE EXPLANATION FURNISHED BY THE OFFICE OF THE CHIEF OF FINANCE IS THAT SINCE NONREGULAR PERSONNEL HAVE NOT BEEN CONSIDERED AS HOLDING AN "OFFICE" WHEN NOT ON ACTIVE DUTY AND MATUCK'S RETIRED PAY IS NOT CONTINGENT UPON A CONTINUED STATUS IN ANY CAPACITY, RESERVE OR AUS, SUCH PAY IS NOT CURRENT COMPENSATION FOR HIS SERVICE AND HENCE, THAT HIS STATUS ON THE RETIRED LIST LACKS THE ELEMENTS OF AN "OFFICE" AS THAT TERM IS DEFINED IN 36 COMP. GEN. 309.

SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, PROVIDES AS FOLLOWS:

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 OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO 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.

IT HAS BEEN HELD THAT MEMBERS OF THE ARMED FORCES RETIRED AS WARRANT OFFICERS, INCLUDING RETIRED TEMPORARY WARRANT OFFICERS, NOT RETIRED FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY, HOLD AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT. SEE 16 COMP. GEN. 232; 21 ID. 38; 36 ID. 399; B-140753, SEPTEMBER 25, 1959; B-145159, MARCH 27, 1961, AND B-148353, JUNE 6, 1962.

IN 36 COMP. GEN. 309, TO WHICH THE CHIEF OF FINANCE REFERS, WE HELD THAT RETIRED OFFICERS OF THE ARMED FORCES WHO ARE EMPLOYED BY NONAPPROPRIATED FUND ACTIVITIES SUCH AS POST EXCHANGES, OFFICERS' MESS AND EMPLOYEES' COOPERATIVE ASSOCIATIONS DO NOT HOLD AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT, BECAUSE PERSONS SO EMPLOYED DO NOT EXERCISE A FUNCTION OF GOVERNMENT AND HAVE NO TENURE OF OFFICE. HOWEVER, THE PROBLEM HERE IS NOT THE SAME, THE QUESTION INVOLVED BEING WHETHER A RETIRED OFFICER HOLDS AN "OFFICE.' THE BEST SOURCE OF INFORMATION AS TO THIS MATTER IS THE 1894 ACT AND SUBSEQUENT LEGISLATION RELATING TO RETIRED MILITARY PERSONNEL COVERED BY THAT ACT. IT WILL BE NOTED THAT THAT ACT, AS ORIGINALLY ENACTED, EXEMPTED FROM ITS OPERATION ONLY CERTAIN RETIRED MILITARY OFFICERS. IT SEEMS QUITE CLEAR, THEREFORE, THAT RETIRED MILITARY OFFICERS WHO DID NOT FALL WITHIN THE SPECIFIC EXEMPTIONS CAME WITHIN THE PROHIBITORY PROVISIONS OF THE ACT. IN OTHER WORDS, THE FACT THAT THE ACT AT THAT TIME EXEMPTED ONLY CERTAIN RETIRED OFFICERS FROM ITS RESTRICTIVE PROVISIONS LENT WEIGHT TO THE VIEW THAT THE CONGRESS INTENDED THAT ALL OTHER RETIRED MILITARY PERSONNEL WERE TO BE SUBJECT TO THAT RESTRICTION, WHETHER THEY WERE RETIRED ENLISTED MEN, WARRANT OFFICERS OR COMMISSIONED OFFICERS. HENCE, IN 1 COMP. GEN. 571, ID. 700, IT WAS CONCLUDED THAT A RETIRED ENLISTED MAN HELD AN "OFFICE" WITHIN THE MEANING OF THAT TERM AS USED IN THE 1894 ACT. WHILE IT WAS POINTED OUT IN THE LATTER DECISION THAT THERE WAS NO PROVISION OF LAW THEN IN EFFECT WHICH PROVIDED THAT RETIRED ARMY ENLISTED MEN COULD BE RECALLED TO ACTIVE DUTY, IT WAS CONCLUDED THAT PLACES ON THE ENLISTED RETIRED LIST HAD COMPENSATION ATTACHED AND THAT IT WAS NOT MATERIAL FOR THE PURPOSE OF THAT DECISION WHETHER SUCH COMPENSATION WAS FOR PAST OR PRESENT SERVICES.

THE SECOND SENTENCE OF 5 U.S.C. 62 WAS ADDED BY THE ACT OF MAY 31, 1924, CH. 214, 43 STAT. 245. SUCH LEGISLATION WAS NOT VIEWED AS AFFECTING THE RIGHTS OF WARRANT OFFICERS UNDER THE 1894 ACT UNLESS THEY WERE RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY. SEE 13 COMP. GEN. 60. THAT AMENDMENT, TOO, CONFIRMS THE VIEW THAT RETIRED MILITARY PERSONNEL HOLD OFFICES WITHIN THE MEANING OF THE ACT SINCE AGAIN ONLY A CERTAIN NEW CATEGORY, THOSE MEETING THE SPECIFIC CONDITIONS OF THE AMENDMENT, WERE EXEMPT FROM THE OPERATION OF THE STATUTE. IT WAS CLEARLY IMPLIED IN THE DECISION OF OCTOBER 16, 1929, 9 COMP. GEN. 159, THAT, EXCEPT FOR THE PROVISIONS OF THE 1924 ACT EXEMPTING OFFICERS RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY FROM THE RESTRICTION OF THE 1894 ACT, FORMER OFFICERS PLACED ON THE EMERGENCY OFFICERS' RETIRED LIST UNDER THE ACT OF MAY 24, 1928, CH. 735, 45 STAT. 735, 38 U.S.C. 581 (1952 ED.), FOR DISABILITY INCURRED IN WORLD WAR I WITH RETIRED PAY OF $2,500 OR MORE, COULD NOT BE EMPLOYED BY THE FEDERAL GOVERNMENT.

WHILE THE PROVISIONS OF LAW CONTAINED IN SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, 5 U.S.C. 30R (D), EXEMPT RESERVE OFFICERS FROM THE RESTRICTION OF THE 1894 ACT, NO SIMILAR PROVISION HAS BEEN FOUND RELATING TO TEMPORARY WARRANT OFFICERS. 10 U.S.C. 3448 (C) (2), CODIFIED FROM SECTION 3 OF THE ACT OF AUGUST 21, 1941, AS AMENDED BY SECTION 19 (D) OF THE ACT OF MAY 29, 1954, CH. 249, 68 STAT. 166, GRANTED TEMPORARY WARRANT OFFICERS THE BENEFITS OF ALL LAWS AND REGULATIONS APPLICABLE TO THE RETIRMENT, PENSIONS AND DISABILITY OF MEMBERS OF THE ARMY ON ACTIVE DUTY. IT SHOULD BE NOTED THAT SUCH STATUTORY PROVISIONS DO NOT PURPORT TO CONFER ANY RIGHTS ON A RETIRED TEMPORARY WARRANT OFFICER WHICH RELATE TO A PERIOD AFTER HIS RETIREMENT AND AFTER A RIGHT TO RETIRED PAY BECOMES FIXED.

MR. MATUCK'S RETIREMENT ORDERS OF AUGUST 27, 1957, SHOW THAT HE WAS RETIRED IN HIS STATUS AS A TEMPORARY CHIEF WARRANT OFFICER (W-4). HE WAS SERVING AS A TEMPORARY CHIEF WARRANT OFFICER IN SEPTEMBER 1957 PRIOR TO HIS RETIREMENT AND IT IS BELIEVED THAT HE MAY BE DESCRIBED ACCURATELY AS A "RETIRED OFFICER" SINCE THAT TIME. WHILE IT MAY BE THAT HIS RETIRED PAY IS NOT CONTINGENT ON A CONTINUED MILITARY STATUS AS A TEMPORARY OFFICER AND IT WOULD THUS SEEM THAT SUCH PAY IS NOT COMPENSATION FOR CURRENT SERVICES, HE IS RECEIVING RETIRED PAY AS A RETIRED OFFICER BECAUSE OF HIS MILITARY SERVICE AND SINCE ALL RETIRED MILITARY PERSONNEL, INCLUDING FORMER OFFICERS, HAVE BEEN VIEWED AS BEING SUBJECT TO THE RESTRICTION OF THE 1894 ACT IN THE ABSENCE OF A STATUTORY PROVISION STATING OTHERWISE, IT APPEARS PROPER TO REGARD MR. MATUCK AS HOLDING AN "OFFICE" IN HIS STATUS AS A RETIRED TEMPORARY WARRANT OFFICER AND THUS AS BEING SUBJECT TO THE RESTRICTION OF THAT ACT.

OF INTEREST IN THIS MATTER IS THE CASE OF GEORGE H. SEASTROM V. UNITED STATES, 147, CT.CL. 453, IN WHICH THE COURT HELD THAT A RETIRED TEMPORARY WARRANT OFFICER IS A "RETIRED OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN THE "SALES STATUTE" THERE INVOLVED, ACT OF JUNE 10, 1896, CH. 399, 29 STAT. 361, AS AMENDED, 34 U.S.C. 883 (1952 ED.). SEE, ALSO, NORMAN MORRIS RAINS V. UNITED STATES, CT.CL. NO. 114 60, DECIDED FEBRUARY 6, 1963, HOLDING THAT A RETIRED WARRANT OFFICER HOLDS AN "OFFICE" WITHIN THE MEANING OF THAT TERM AS USED IN THE 1894 ACT. IN VIEW OF THESE HOLDINGS AND THE FACT THAT NO EXEMPTION FROM THE OPERATION OF THE 1894 ACT WHICH WOULD BE APPLICABLE TO MR. MATUCK HAS BEEN FOUND, WE MUST CONCLUDE THAT HE HOLDS AN OFFICE BECAUSE OF HIS RETIRED MILITARY STATUS WITHIN THE MEANING OF THAT ACT.

THERE IS SOME COMMENT IN THE PAPERS SUBMITTED WITH THE FIRST INDORSEMENT OF NOVEMBER 14, 1962, CONCERNING THE ANSWER TO QUESTION 2, 38 COMP. GEN. 268, TO THE EFFECT THAT THE RIGHT OF A MEMBER OF A REGULAR COMPONENT TO THE RETIRED PAY OF A HIGHER RESERVE GRADE DOES NOT, OF ITSELF, EFFECT RETIREMENT IN THE OFFICE TO WHICH THE HIGHER GRADE NORMALLY APPERTAINS. THAT HOLDING WAS BASED ON THE DECISION IN 37 COMP. GEN. 489 (JAKWAY CASE) THAT A CHIEF WARRANT OFFICER OF THE REGULAR AIR FORCE WHO WAS RETIRED FOR DISABILITY WITH ENTITLEMENT TO RETIRED PAY COMPUTED ON HIS HIGHER RESERVE GRADE OF COLONEL, WAS NOT RETIRED AS A COLONEL. HOWEVER, THE COURT OF CLAIMS REACHED A CONTRARY CONCLUSION WHEN THE MATTER WAS SUBMITTED FOR ITS CONSIDERATION. CLYDE C. JAKWAY V. UNITED STATES, 146 CT.CL. 482 (1959).