B-147396, OCT. 24, 1961

B-147396: Oct 24, 1961

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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 SPECIFICALLY AUTHORIZED THERETO BY LAW. OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT. BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.'. WE UNDERSTAND THAT THE EMPLOYEE IN QUESTION WAS RETIRED. IT IS WELL ESTABLISHED THAT THE DUAL EMPLOYMENT STATUTE OF JULY 31. IS INVALID AB INITIO.

B-147396, OCT. 24, 1961

TO MR. R. H. PURSIFULL, REGIONAL COMPTROLLER, POST OFFICE DEPARTMENT:

ON OCTOBER 2, 1961, YOU REQUESTED OUR DECISION CONCERNING THE LEGALITY OF THE APPOINTMENT OF A RETIRED NAVY WARRANT OFFICER AS A REGULAR CLERK AT THE OREGON CITY, OREGON POST OFFICE.

YOUR DOUBT IN THE MATTER APPARENTLY ARISES FROM THE STATUTORY RESTRICTION APPEARING IN THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, 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 SPECIFICALLY 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.'

WE UNDERSTAND THAT THE EMPLOYEE IN QUESTION WAS RETIRED--- NOT FOR DISABILITY AND NOT AS AN ENLISTED MAN SO AS TO COME WITHIN THE EXCEPTION TO THE QUOTED STATUTORY RESTRICTION--- UNDER SECTION 14 OF THE WARRANT OFFICER ACT OF 1954, 68 STAT. 162, WHICH PROVIDES FOR THE RETIREMENT OF WARRANT OFFICERS BASED UPON LENGTH OF SERVICE AND AGE. IT IS WELL ESTABLISHED THAT THE DUAL EMPLOYMENT STATUTE OF JULY 31, 1894, APPLIES TO WARRANT OFFICERS RETIRED OTHER THAN FOR INJURIES OR INCAPACITY RECEIVED IN BATTLE OR INCURRED IN LINE OF DUTY. SEE 36 COMP. GEN. 399; 21 ID. 38, AND UNPUBLISHED DECISION OF MARCH 27, 1961, B-145159. HENCE, UPON THE BASIS OF THE FACTS TRANSMITTED HERE WE HOLD THAT THE EMPLOYEE'S APPOINTMENT (PROMOTION) TO REGULAR CLERK CONTRAVENED THE ABOVE-QUOTED ACT OF JULY 31, 1894, AS AMENDED, AND, THEREFORE, IS INVALID AB INITIO.