B-145343, APR. 28, 1961

B-145343: Apr 28, 1961

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OLSON WAS RETIRED FROM THE UNITED STATES COAST GUARD ON JUNE 1. WAS RETIRED AT THE RATING OF CHIEF BOATSWAIN'S MATE AND ON OCTOBER 14. HIS PERFORMANCE OF DUTY AS A LIEUTENANT FOR TEMPORARY SERVICE WAS DETERMINED TO BE SATISFACTORY AND HE WAS ADVANCED ON THE RETIRED LIST TO THAT RANK. OLSON WAS GIVEN A CAREER CONDITIONAL APPOINTMENT AT THE UNITED STATES NAVY UNDERWATER SOUND LABORATORY. HIS ANNUAL COMPENSATION WAS $4. HIS ANNUAL RATE OF RETIRED PAY AT THAT TIME WAS $3. OLSON'S COMPENSATION WAS INCREASED TO $6. OLSON IS A WAGE BOARD EMPLOYEE RECEIVING $2.89 PER HOUR. WE HAVE RULED THAT THE NIGHT RATE OF COMPENSATION OF AN EMPLOYEE OCCUPYING A PREVAILING RATE OR WAGE BOARD POSITION IS BASIC COMPENSATION. 23 COMP.

B-145343, APR. 28, 1961

TO AUTHORIZED CERTIFYING OFFICER, C/O COMMANDANT, U.S. COAST GUARD:

THIS REFERS TO YOUR LETTER OF MARCH 14, 1961, REFERENCE FP-4 OR, FORWARDED HERE BY THE COMMANDANT, UNITED STATES COAST GUARD UNDER NUMBER CO-CG-565, CONCERNING THE RIGHT TO RETIRED PAY OF LIEUTENANT EDWARD K. OLSON, UNITED STATES COAST GUARD, PREVIOUSLY WITHHELD BECAUSE OF THE POSSIBLE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A. WE ASSUME THAT THE QUESTION ARISES IN REGARD TO A VOUCHER BEFORE YOU PROPOSING PAYMENT TO THE OFFICER OF THE AMOUNT OF RETIRED PAY WITHHELD.

THE INFORMATION FURNISHED SHOWS THAT MR. OLSON WAS RETIRED FROM THE UNITED STATES COAST GUARD ON JUNE 1, 1949, FOR PHYSICAL DISABILITY. WAS RETIRED AT THE RATING OF CHIEF BOATSWAIN'S MATE AND ON OCTOBER 14, 1949, HIS PERFORMANCE OF DUTY AS A LIEUTENANT FOR TEMPORARY SERVICE WAS DETERMINED TO BE SATISFACTORY AND HE WAS ADVANCED ON THE RETIRED LIST TO THAT RANK.

ON JANUARY 4, 1957, MR. OLSON WAS GIVEN A CAREER CONDITIONAL APPOINTMENT AT THE UNITED STATES NAVY UNDERWATER SOUND LABORATORY, FORT TRUMBULL, NEW LONDON, CONNECTICUT. HIS ANNUAL COMPENSATION WAS $4,680 PER ANNUM PLUS $0.13 PER HOUR FOR NIGHT DIFFERENTIAL. HIS ANNUAL RATE OF RETIRED PAY AT THAT TIME WAS $3,683.16 PER ANNUM WHICH COMBINED WITH HIS ANNUAL RATE OF CIVILIAN COMPENSATION PLUS NIGHT DIFFERENTIAL AMOUNTED TO $8,633.58.

ON DECEMBER 4, 1960, MR. OLSON'S COMPENSATION WAS INCREASED TO $6,011.20 PER ANNUM PLUS $312 NIGHT DIFFERENTIAL, WHICH COMBINED WITH THE ANNUAL RATE OF RETIRED PAY, $3,904.08, AMOUNTED TO $10,227.28. MR. OLSON'S ANNUAL RATE OF RETIRED PAY HAS BEEN REDUCED BY $227.28 TO $3,676.80 PER ANNUM. IT HAS BEEN INFORMALLY ASCERTAINED THAT MR. OLSON IS A WAGE BOARD EMPLOYEE RECEIVING $2.89 PER HOUR.

YOU REQUEST OUR DECISION WHETHER IN THE LIGHT OF THE ABOVE FACTS NIGHT DIFFERENTIAL SHOULD BE REGARDED AS BASIC COMPENSATION WITHIN THE PURVIEW OF OUR RULING IN 37 COMP. GEN. 739.

SECTION 212 OF THE ECONOMY ACT OF 1932, 47 STAT. 406, PROVIDED THAT AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT SHOULD 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 OF THE UNIFORMED SERVICES AT A RATE IN EXCESS OF THE 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. SUBSECTION (B) OF THAT SECTION, 5 U.S.C. 59A (B), PROVIDED THAT THIS SECTION "SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000.' PUBLIC LAW 239, 84TH CONGRESS, 69 STAT. 497, 5 U.S.C. 59A, INCREASED THE LIMITATION ON THE TOTAL RATE FROM BOTH SOURCES FROM $3,000 TO $10,000, EFFECTIVE AUGUST 4, 1955.

THE WORDS "ANNUAL RATE OF COMPENSATION" APPEARING IN THE 1932 STATUTE, RELATE TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE OR POSITION. SEE 22 COMP. GEN. 795. ALSO, WE HAVE RULED THAT THE NIGHT RATE OF COMPENSATION OF AN EMPLOYEE OCCUPYING A PREVAILING RATE OR WAGE BOARD POSITION IS BASIC COMPENSATION. 23 COMP. GEN. 962; 24 ID. 39, AND 34 ID. 708.

THEREFORE, CERTIFICATION FOR PAYMENT OF A VOUCHER COVERING THE AMOUNT OF RETIRED PAY WITHHELD ..END :