B-14349, JANUARY 24, 1941, 20 COMP. GEN. 407

B-14349, JANUARY 24, 1941, 20 COMP. GEN. 407

COMPENSATION - DOUBLE - RETIRED ARMY OFFICER IN CIVILIAN POSITION SECTION 212 OF THE ACT OF JUNE 30, 1932, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION OF RETIRED COMMISSIONED OFFICERS WHO ARE ALSO CIVILIAN GOVERNMENT EMPLOYEES, DOES NOT PRECLUDE PAYMENT OF ARMY RETIRED PAY AND CIVILIAN COMPENSATION WHERE THE CIVILIAN EMPLOYMENT IS ON A "WHEN ACTUALLY EMPLOYED" BASIS AND THE HOURS PER MONTH ARE SPECIALLY LIMITED IN THE APPOINTMENT SO THAT THE TOTAL AMOUNT OF RETIRED PAY AND CIVILIAN COMPENSATION POSSIBLE TO BE PAID IN A YEAR DOES NOT EXCEED $3,000, EVEN THOUGH THE COMBINED RATE COMPUTED ON A FULL-TIME PER ANNUM BASIS EXCEEDS $3,000.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JANUARY 24, 1941:

I HAVE YOUR LETTER OF JANUARY 3, 1941, AS FOLLOWS:

THE DEPARTMENT OF COMMERCE DESIRES TO APPOINT, ON A "WHEN ACTUALLY EMPLOYED" BASIS, MAJ. ALFRED H. THIESSEN, WHO IS RETIRED BECAUSE OF AGE FROM THE UNITED STATES ARMY, TO COMPILE AND PREPARE FOR PUBLICATION A GLOSSARY OF METEOROLOGICAL TERMS FOR THE UNITED STATES WEATHER BUREAU.

MAJOR THIESSEN IS NOW RECEIVING RETIRED PAY AT THE RATE OF $1,920 ANNUALLY. IT IS PROPOSED TO REINSTATE HIM AS PRINCIPAL CLERK, CAF-6, AT 95 CENTS PER HOUR (WHEN ACTUALLY EMPLOYED) IN THE WEATHER BUREAU. THE HOURS PER MONTH WILL BE LIMITED TO AND NEVER EXCEED A TOTAL OF 90, MAKING THE MAXIMUM ANNUAL COMPENSATION WHICH IT WILL BE POSSIBLE FOR HIM TO RECEIVE IN THE POSITION $1,026 ANNUALLY, OR A TOTAL OF $2,946 A YEAR WITH HIS RETIRED PAY.

SECTION II OF THE ACT OF JULY 31, 1894, PROHIBITING THE APPOINTMENT OF OFFICERS OF THE ARMY OR NAVY WHO ARE RETIRED FOR OTHER THAN DISABILITY IF EITHER THE RETIRED OR CIVILIAN PAY AMOUNTS TO $2,500 PER ANNUM, WILL NOT BE VIOLATED BY THE PROPOSED APPOINTMENT OF MAJOR THIESSEN, NOR WILL HIS APPOINTMENT VIOLATE SECTION 212 OF THE ACT OF JUNE 30, 1932, SINCE THE COMBINED COMPENSATION WHICH MAY BE RECEIVED AS RETIRED PAY FROM THE ARMY AND AS COMPENSATION FOR SERVICES RENDERED TO THE WEATHER BUREAU WILL NOT EXCEED THE $3,000 PER ANNUM LIMITATION.

IT IS THE OPINION OF THIS DEPARTMENT THAT IN DETERMINING COMPLIANCE OR NONCOMPLIANCE WITH THESE STATUTES, THE LIMITATION OF THE TOTAL COMPENSATION WHICH MAY BE RECEIVED IN ANY ONE YEAR SHALL BE USED IN THE COMPUTATIONS RATHER THAN THE PROPOSED HOURLY RATE OF PAY. IN SUPPORT OF THIS OPINION, ATTENTION IS CALLED TO DECISION RENDERED UNDER DATE OF SEPTEMBER 14, 1937 (17 COMP. GEN. 250, 252) WHICH STATES:

"* * * WHEN A DEFINITE LIMITATION ON EMPLOYMENT IS MADE IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A SPECIFIC NUMBER OF HOURS PER DAY, OR DAYS PER WEEK, MONTH, OR YEAR, AND THE APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDES FOR PAYMENT OF COMPENSATION ONLY "WHEN ACTUALLY EMPLOYED," THE DUAL COMPENSATION STATUTE OF 1916 * * * IS NOT APPLICABLE IF THE TOTAL AMOUNT OF COMPENSATION POSSIBLE TO BE PAID FOR THAT YEAR DOES NOT EXCEED $2,000.'

BEFORE PROCEEDING WITH THE APPOINTMENT OF MAJOR THIESSEN, THE DEPARTMENT WOULD APPRECIATE A RULING BY YOUR OFFICE AS TO WHETHER THE PROPOSED TERMS OF EMPLOYMENT ARE AUTHORIZED BY LAW AND WHETHER THE PAYMENTS THEREFORE WILL IN ANY WAY JEOPARDIZE THE RETIRED STATUS OF MAJOR THIESSEN.

THE DUAL COMPENSATION ACT OF 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, EXCEPTS THEREFROM RETIRED OFFICERS OF THE ARMY. SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED JULY 30, 1937, 50 STAT. 549, AND JUNE 25, 1938, 52 STAT. 1194, PROVIDES IN PERTINENT PART 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. * * * THE PROPOSED EMPLOYMENT WOULD NOT CONTRAVENE THIS PROVISION FOR THE REASON THAT THE SALARY ON A FULL-TIME BASIS ATTACHED TO EITHER OF THE "OFFICES" WOULD NOT AMOUNT TO $2,500 PER ANNUM.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, PROVIDES AS FOLLOWS:

(A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY-ADJUSTMENT ACT OF 1922 ( U.S.C. TITLE 37), 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 $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.

IN APPLYING THIS STATUTE IT HAS BEEN HELD THAT IT IS THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION OF $3,000 PER ANNUM THAT CONTROLS, IRRESPECTIVE OF THE TOTAL AMOUNT THAT MAY BE EARNED DURING THE YEAR. COMP. GEN. 37; ID. 101; ID. 256. HOWEVER, IN APPLYING THE 1916 STATUTE, SUPRA, IT HAS BEEN HELD THAT WHEN A DEFINITE LIMITATION ON EMPLOYMENT IS MADE IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A SPECIFIC NUMBER OF HOURS PER DAY, OR DAYS PER WEEK, MONTH, OR YEAR, AND THE APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDES FOR PAYMENT OF COMPENSATION ONLY WHEN ACTUALLY EMPLOYED, THE STATUTE IS NOT APPLICABLE IF THE TOTAL OF COMPENSATION POSSIBLE TO BE PAID FOR THE YEAR DOES NOT EXCEED $2,000. COMP. DEC. 350; 11 COMP. GEN. 200; 12 ID. 583; 15 ID. 751; 18 ID. 614, 615. ALSO, THIS RULE HAS BEEN APPLIED UNDER A STATUTE REQUIRING APPOINTMENTS OF EXPERTS WITH SALARY OF $5,000 OR MORE PER ANNUM, TO BE MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. 17 COMP. GEN. 249, 252. NOTHING APPEARS IN THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA, TO PRECLUDE THE APPLICATION OF THE SAME RULE IN DETERMINING WHETHER THE COMBINED RATE OF RETIRED PAY AND SALARY IN A CIVILIAN POSITION EXCEEDS $3,000 PER ANNUM. COMPARE 12 COMP. GEN. 448.

SECTION 1222, REVISED STATUTES, 10 U.S.C. 576, PROVIDES AS FOLLOWS:

NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED. BY ITS EXPRESS TERMS THIS STATUTE IS LIMITED TO OFFICERS ON THE ACTIVE LIST OF THE ARMY AND HAS NO APPLICATION TO RETIRED OFFICERS OF THE ARMY.

YOU ARE ADVISED, THEREFORE, THAT THE EMPLOYMENT OF MAJ. ALFRED H. THIESSEN (RETIRED) IN THE CIVILIAN POSITION AS PROPOSED WOULD NOT CONTRAVENE ANY OF THE DUAL COMPENSATION STATUTES, AND THE PAYMENT OF COMPENSATION IN THE CIVILIAN EMPLOYMENT WOULD NOT JEOPARDIZE HIS RETIRED STATUS.