B-142945, JUN. 3, 1960

B-142945: Jun 3, 1960

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RETIRED: REFERENCE IS MADE TO YOUR LETTER OF APRIL 19. YOU WERE PROPERLY EMPLOYED IN A FEDERAL CIVILIAN POSITION IN VIEW OF THE LIMITATION ON DUAL EMPLOYMENT IMPOSED BY THE ACT OF JULY 31. IT APPEARS THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE UNITED STATES NAVY. AT LEAST 10 YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE. IT FURTHER APPEARS THAT YOU WERE APPOINTED AS AN AIRWAYS OPERATIONS SPECIALIST. PROVIDES AS FOLLOWS (QUOTING FROM 5 U.S.C. 62): "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-142945, JUN. 3, 1960

TO LIEUTENANT DAVE ELIASE ECKHARDT, USN, RETIRED:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1960, MAKING INQUIRY WHETHER, AS A RETIRED NAVY OFFICER, YOU WERE PROPERLY EMPLOYED IN A FEDERAL CIVILIAN POSITION IN VIEW OF THE LIMITATION ON DUAL EMPLOYMENT IMPOSED BY THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62.

IT APPEARS THAT YOU WERE TRANSFERRED TO THE RETIRED LIST OF THE UNITED STATES NAVY, AS A LIEUTENANT, ON JULY 1, 1956, UNDER THE PROVISIONS OF 34 U.S.C. 410A AND B, HAVING COMPLETED MORE THAN 20 YEARS OF ACTIVE SERVICE IN THE NAVY, AT LEAST 10 YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE. IT FURTHER APPEARS THAT YOU WERE APPOINTED AS AN AIRWAYS OPERATIONS SPECIALIST, GS-6, AT THE RATE OF $4,080 PER ANNUM, ON JANUARY 18, 1957, BY THE CIVIL AERONAUTICS ADMINISTRATION, AND THAT YOU RESIGNED FROM THIS POSITION EFFECTIVE AT THE CLOSE OF BUSINESS ON MARCH 28, 1957.

THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, PROVIDES AS FOLLOWS (QUOTING FROM 5 U.S.C. 62):

"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.'

THERE WOULD APPEAR TO BE APPLICABLE IN YOUR CASE THE DECISIONS OF OUR OFFICE TO THE EFFECT THAT COMMISSIONED OFFICERS WHO ARE RETIRED FOR LENGTH OF SERVICE AND PLACED ON THE RETIRED LIST OF THE DEPARTMENT CONCERNED, WITH THE RETIREMENT PAY SPECIFICALLY PROVIDED BY STATUTE, HOLD OFFICES UNDER THE UNITED STATES GOVERNMENT WITH COMPENSATION ATTACHED WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, AS AMENDED, IF EITHER THE RETIRED PAY OR THE COMPENSATION OF THE CIVILIAN POSITION AMOUNTS TO AS MUCH AS $2,500 PER ANNUM. SEE, IN THIS CONNECTION, B 137195, OCTOBER 27, 1958, AND B- 126842, MAY 22, 1956, 35 COMP. GEN. 657; COPIES ENCLOSED. ALSO SEE 1 COMP. GEN. 700; 10 COMP. GEN. 85; 21 COMP. GEN. 38 AND 1129; 26 COMP. GEN. 205; AND 36 COMP. GEN. 399 AND 803; COPIES OF WHICH DECISIONS, TOGETHER WITH OTHER DECISIONS ON THE SUBJECT, SHOULD BE AVAILABLE TO YOU AT THE NAVY FINANCE OFFICE, NORFOLK, VIRGINIA. ALSO, IT HAS BEEN HELD THAT IN THE ABSENCE OF A STATUTE SO PROVIDING, RETIRED MILITARY PAY MAY NOT BE WAIVED IN FAVOR OF CIVILIAN COMPENSATION. SEE 23 COMP. GEN. 445.

WHILE IT APPEARS THAT YOUR EMPLOYMENT WAS UNDERTAKEN UNDER A MISAPPREHENSION AS TO YOUR EMPLOYMENT RIGHTS, THE RECORDS FURNISHED OUR OFFICE INDICATE THAT YOU WERE PROMPTLY ADVISED BY THE NAVY FINANCE CENTER THAT CIVILIAN COMPENSATION PAYMENTS WERE UNAUTHORIZED. IT CONSISTENTLY HAS BEEN HELD THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO WAIVE COLLECTION OF PAYMENTS MADE IN CONTRAVENTION OF LAW. SEE 29 COMP. GEN. 14; ID. 520.

YOUR LETTER AND ENCLOSURES HAVE BEEN RETURNED TO OUR CIVIL ACCOUNTING AND AUDITING DIVISION WITH A COPY OF THIS LETTER.