B-145159, MAR. 27, 1961

B-145159, MAR. 27, 1961

TO F. A. FRERICHS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 13, 1961, REQUESTING THAT WE ADVISE THE ARMY VALLEY FORGE GENERAL HOSPITAL TO DISCONTINUE WITHHOLDING A PART OF YOUR RETIREMENT PAY, WHICH ACTION IS BEING TAKEN TO LIQUIDATE AN INDEBTEDNESS DUE THE UNITED STATES AS THE RESULT OF THE APPLICATION OF THE DUAL OFFICE RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62.

SECTION 62, 5 U.S. CODE, 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 APPEARS THAT YOU WERE RETIRED AS A CHIEF WARRANT OFFICER (W-3) IN AUGUST 1957, UNDER THE PROVISIONS OF 10 U.S.C. 1293, HAVING COMPLETED MORE THAN 20 YEARS' ACTIVE SERVICE IN THE NAVY. IT FURTHER APPEARS THAT YOU ACCEPTED EMPLOYMENT AT THE VALLEY FORGE GENERAL HOSPITAL AS A CLERK- TYPIST, GS-3, AT THE RATE OF $3,175 PER ANNUM, ON JUNE 16, 1958, AND THAT YOU WERE SEPARATED FROM THAT POSITION BY TRANSFER TO THE UNITED STATES POST OFFICE, POTTSTOWN, PENNSYLVANIA, ON NOVEMBER 14, 1958.

IT IS WELL ESTABLISHED THAT WARRANT OFFICERS, AS WELL AS COMMISSIONED 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. 234; 21 ID. 38, 36 ID. 399. WE HAVE HELD THAT A RETIRED OFFICER MAY NOT AVOID THE PROHIBITION OF THE STATUTE BY RETAINING HIS RETIRED OFFICE AND WAIVING HIS RETIRED PAY DURING THE PERIOD OF HIS OCCUPANCY OF A CIVILIAN POSITION. 14 COMP. GEN. 289. THEREFORE, UNLESS THE RETIRED OFFICER IS WITHIN A CLASS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THE 1894 ACT OR HIS EMPLOYMENT (ON A TEMPORARY OR INTERMITTENT BASIS) DOES NOT CONSTITUTE THE HOLDING OF AN "OFFICE" WITHIN THE PURVIEW OF THE STATUTE, THE PROVISIONS OF THE 1894 ACT OPERATE AS A BAR TO HIS APPOINTMENT AS A CIVILIAN EMPLOYEE. IN THIS LATTER CONNECTION, WE HAVE HELD THAT IT IS THOSE TEMPORARY POSITIONS IN WHICH THE EMPLOYMENT IS RESTRICTED TO THE ACCOMPLISHMENT OF A PARTICULAR PURPOSE, FOR WHICH THE TEMPORARY POSITIONS ARE CREATED FOR A LIMITED PERIOD, AND WHICH POSITIONS CEASE TO EXIST UPON THE ACCOMPLISHMENT OF THE STATED OBJECTIVE, WHICH DO NOT CONSTITUTE OFFICES WITHIN THE PROVISION OF THE 1894 ACT. IT APPEARS THAT THE POSITION HELD BY YOU FROM JUNE 16, 1958, TO NOVEMBER 14, 1958, WAS NOT OF THIS TYPE.

THE FACT THAT YOU SERVED ON ACTIVE DUTY IN THE TEMPORARY RANK OF WARRANT OFFICER AND THAT YOU HELD A PERMANENT ENLISTED GRADE IS WITHOUT SIGNIFICANCE, SINCE YOU ACTUALLY WERE RETIRED AS A WARRANT OFFICER AND YOU HOLD THE "OFFICE" OF A RETIRED WARRANT OFFICER. UNDER SIMILAR CIRCUMSTANCES, WE HAVE HELD THAT AN INDIVIDUAL RETIRED AS A WARRANT OFFICER--- IRRESPECTIVE OF HIS PERMANENT ENLISTED STATUS--- HOLDS AN OFFICE WITHIN THE MEANING OF THE 1894 ACT. SEE 35 COMP. GEN. 657 AND DECISION OF SEPTEMBER 25, 1959, B-140753.

SINCE YOU WERE RETIRED AS A CHIEF WARRANT OFFICER FOR LENGTH OF SERVICE ONLY, THAT IS TO SAY, OTHER THAN FOR "INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY," IT APPEARS THAT YOU HELD AN ,OFFICE" WITHIN THE MEANING OF THE 1894 STATUTE FOR THE PERIOD FROM JUNE 16, 1958, TO NOVEMBER 14, 1958, AND THAT HENCE YOUR APPOINTMENT TO THE CIVILIAN POSITION WITH THE DEPARTMENT OF THE ARMY WAS VOID AB INITIO. IN THE CIRCUMSTANCES, THE SERVICE PERFORMED BY YOU IN YOUR CIVILIAN POSITION MAY NOT BE REGARDED AS DE FACTO SERVICE AND, ON THE PRESENT RECORD, THERE MUST BE RECOVERED FROM YOU THE TOTAL AMOUNT OF SALARY PAID FROM THE DATE OF YOUR APPOINTMENT ON JUNE 16, 1958, TO THE DATE OF YOUR SEPARATION FROM THAT POSITION ON NOVEMBER 14, 1958. SEE, IN THIS CONNECTION, 21 COMP. GEN. 1129, 1132, 23 ID. 445 AND 36 ID. 803.

WHILE IT APPEARS THAT YOUR EMPLOYMENT WAS UNDERTAKEN UNDER A MISAPPREHENSION AS TO YOUR EMPLOYMENT RIGHTS, THAT CIRCUMSTANCE DOES NOT CHANGE THE FACT THAT SUCH EMPLOYMENT WAS BARRED BY LAW. IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF A STATUTE SO PROVIDING THE ACCOUNTING OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO WAIVE COLLECTION OF PAYMENTS APPEARING TO HAVE BEEN MADE IN CONTRAVENTION OF LAW. SEE 29 COMP. GEN. 14; ID. 520.