B-154362, JUL. 16, 1964

B-154362: Jul 16, 1964

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TO THE SECRETARY OF DEFENSE: REFERENCE IS MADE TO LETTER OF MAY 28. REQUESTING A DECISION AS TO WHETHER A WARRANT OFFICER OF THE ARMY RESERVE WHO WAS ORDERED TO ACTIVE DUTY AS A RESERVIST. WHO SUBSEQUENTLY WAS TEMPORARILY APPOINTED TO A HIGHER WARRANT GRADE IN THE ARMY OF THE UNITED STATES. IS SUBJECT TO "THE RESTRICTIONS OF THE DUAL COMPENSATION LAW.'. REFERENCE IS MADE TO THE CASE OF CHIEF WARRANT OFFICER MEADE M. THIS MEMBER WAS APPOINTED A RESERVE WARRANT OFFICER. HE WAS SERVING ON ACTIVE DUTY AS A REGULAR ARMY ENLISTED MEMBER. HE WAS CALLED TO ACTIVE DUTY ON JULY 3. HE WAS GIVEN A TEMPORARY PROMOTION TO CHIEF WARRANT OFFICER. IT APPEARS THAT HE WAS RETIRED WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY CHIEF WARRANT OFFICER (W-2).

B-154362, JUL. 16, 1964

TO THE SECRETARY OF DEFENSE:

REFERENCE IS MADE TO LETTER OF MAY 28, 1964, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER), REQUESTING A DECISION AS TO WHETHER A WARRANT OFFICER OF THE ARMY RESERVE WHO WAS ORDERED TO ACTIVE DUTY AS A RESERVIST, WHO SUBSEQUENTLY WAS TEMPORARILY APPOINTED TO A HIGHER WARRANT GRADE IN THE ARMY OF THE UNITED STATES, AND WHO, PRIOR TO RETIREMENT, RECEIVED AN APPOINTMENT IN THE ARMY RESERVE TO THE SAME GRADE HELD IN THE ARMY OF THE UNITED STATES, IS SUBJECT TO "THE RESTRICTIONS OF THE DUAL COMPENSATION LAW.'

IN THE DISCUSSION PERTAINING TO THE QUESTION CONTAINED IN COMMITTEE ACTION NO. 343 OF THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE, REFERENCE IS MADE TO THE CASE OF CHIEF WARRANT OFFICER MEADE M. PADGETT, W2207366, RETIRED. THIS MEMBER WAS APPOINTED A RESERVE WARRANT OFFICER, EFFECTIVE JUNE 13, 1956, IN THE GRADE OF W-1. IMMEDIATELY PRIOR TO SUCH APPOINTMENT, HE WAS SERVING ON ACTIVE DUTY AS A REGULAR ARMY ENLISTED MEMBER. HE WAS CALLED TO ACTIVE DUTY ON JULY 3, 1956, IN HIS GRADE IN THE ARMY RESERVE. BY ORDERS DATED JANUARY 3, 1958, HE WAS GIVEN A TEMPORARY PROMOTION TO CHIEF WARRANT OFFICER, W-2, ARMY OF THE UNITED STATES. IT APPEARS THAT HE WAS RETIRED WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY CHIEF WARRANT OFFICER (W-2), ARMY OF THE UNITED STATES WITHOUT COMPONENT, FOR YEARS OF SERVICE, UNDER 10 U.S.C. 1293, EFFECTIVE JULY 1, 1962, AND THAT HE ALSO HELD AN EQUAL RANK IN THE ARMY RESERVE TO WHICH HE HAD BEEN PROMOTED BY ORDERS DATED MAY 16, 1962, WHICH STATED THAT "THIS PROMOTION DOES NOT AFFECT YOUR ACTIVE DUTY STATUS.' IT FURTHER APPEARS FROM THE COMMITTEE ACTION THAT THE QUESTION PRESENTED CONCERNS THE RIGHT OF A MEMBER (SO RETIRED) TO ACCEPT AN APPOINTMENT AS A CIVILIAN EMPLOYEE OF THE FEDERAL GOVERNMENT IN VIEW OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, AND 10 U.S.C. 1371. THEREFORE, THE QUESTION WILL BE ANSWERED ON THAT BASIS.

SECTION 62, 5 U.S.C. (THE ACT OF JULY 31, 1894, AS AMENDED), 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 * * *.'

IN 42 COMP. GEN. 553, WE HELD THAT A TEMPORARY WARRANT OFFICER WHO WAS RETIRED WHILE SERVING IN THAT CAPACITY, EVEN THOUGH HIS RETIRED PAY IS NOT CONTINGENT UPON A CONTINUED MILITARY STATUS AS A TEMPORARY OFFICER AND IS NOT COMPENSATION FOR CURRENT SERVICE, HOLDS AN "OFFICE" WITHIN THE MEANING OF 5 U.S.C. 62.

SECTION 1371, 10 U.S. CODE, PROVIDES AS FOLLOWS:

"UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISIONS OF LAW, A WARRANT OFFICER RETIRES, AS DETERMINED BY THE SECRETARY CONCERNED, IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE, IF ANY, THAT HE HELD ON THE DAY BEFORE THE DATE OF HIS RETIREMENT, OR IN ANY HIGHER WARRANT OFFICER GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY, FOR A PERIOD OF MORE THAN 30 DAYS.'

SECTION 1371 IS NOT A RETIREMENT STATUTE AND RELATES ONLY TO THE GRADE IN WHICH RETIREMENT IS EFFECTED. MR. PADGETT WAS RETIRED UNDER THE PROVISIONS OF 10 U.S.C. 1293, WHICH GOVERNS ALL WARRANT OFFICERS, INCLUDING TEMPORARY WARRANT OFFICERS. UNLESS ADDITIONAL RETIRED PAY RIGHTS ACCRUED BY VIRTUE OF SECTION 1371, IT IS OUR VIEW THAT THE RETIRED WARRANT OFFICER STATUS WHICH GOVERNS THE APPLICABILITY OF THE DUAL EMPLOYMENT RESTRICTIONS CONTAINED IN THE 1894 ACT, AS AMENDED, MUST BE DETERMINED UNDER SECTION 1293.

GENERALLY THE RETIRED PAY LAWS ENTITLING A MEMBER OF THE ARMED FORCES TO RETIRED PAY, BASED ON ACTIVE SERVICE, CONTEMPLATE RETIREMENT FROM AN ACTIVE DUTY, NOT AN INACTIVE DUTY, STATUS. MR. PADGETT WAS SERVING ON ACTIVE DUTY AS A TEMPORARY CHIEF WARRANT OFFICER, W-2, AT THE TIME OF HIS RETIREMENT AND HIS SERVICE IN THAT CAPACITY ENTITLED HIM TO RETIRED PAY BASED ON THE PAY OF PAY GRADE W-2. HE WOULD HAVE BEEN ENTITLED TO THAT RETIRED PAY EVEN IF HE HAD NOT BEEN A RESERVE WARRANT OFFICER, W-2, ON INACTIVE DUTY AT THAT TIME. HENCE, HIS INACTIVE RESERVE STATUS HAS NO BEARING ON HIS RIGHT TO RETIRED PAY. EVEN IF SECTION 1371 COULD BE VIEWED AS REQUIRING THAT HE BE RETIRED AS A RESERVE WARRANT OFFICER, W-2, A MATTER WHICH WE DO NOT NOW DECIDE (IT IS POSSIBLE TO VIEW THAT SECTION AS BEING APPLICABLE ONLY TO WARRANT OFFICERS WHO ARE SERVING ON ACTIVE DUTY AS REGULAR OR RESERVE WARRANT OFFICERS AT THE TIME OF RETIREMENT), NO ADDITIONAL RETIRED PAY RIGHTS WOULD HAVE ACCRUED TO HIM. IN SUCH CIRCUMSTANCES, WE MAY NOT IGNORE THE RULE STATED IN WATMAN V. UNITED STATES, CT.CL. NO. 189-59, DECIDED MARCH 1, 1961, AND GRADALL V. UNITED STATES, CT.CL. NO. 4-60, DECIDED MAY 9, 1962, WITH RESPECT TO THE SOMEWHAT COMPARABLE DUAL COMPENSATION SITUATION UNDER SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, TO THE EFFECT THAT THE EXEMPTION FROM THE STATUTORY DUAL COMPENSATION RESTRICTION APPLIES TO A MEMBER'S RETIRED PAY ONLY IF HE EARNED THE RIGHT TO THAT RETIRED PAY BY REASON OF SERVICE IN A RESERVE COMPONENT, OR BY REASON OF HIS STATUS AS A MEMBER OF A RESERVE COMPONENT. IT DOES NOT APPEAR THAT MR. PADGETT EARNED ANY RIGHT TO RETIRED PAY BASED ON HIS PAY GRADE, W-2, BY REASON OF ACTIVE SERVICE AS A RESERVE WARRANT OFFICER, W-2, AND HIS INACTIVE STATUS AS SUCH DID NOT AFFECT HIS RETIRED PAY. SEE, ALSO, THE CASE OF BOWMAN, ET AL. (WARTHEN, PLAINTIFF NO. 5) V. UNITED STATES, 144 CT.CL. 488 (1959), IN WHICH THE COURT STATED--- REFERRING TO ITS EARLIER DECISION IN SARLES V. UNITED STATES, 141 CT.CL. 749 (1958/--- THAT THE DUAL COMPENSATION EXEMPTION PROVISION OF LAW PROPERLY INTERPRETED MEANT THAT ANY PERSON WHO BECAME "ENTITLED TO PAY AND ALLOWANCES, INCLUDING RETIRED PAY, BY REASON OF SERVICE IN A RESERVE COMPONENT, WAS NOT SUBJECT TO THE RESTRICTIONS OF THE ECONOMY ACT.' IT IS CLEAR THAT BY THE WORD "SERVICE" THE COURT MEANT SERVICE RENDERED BY AN OFFICER WHILE ON ACTIVE DUTY.

MR. PADGETT'S RETIREMENT ORDERS OF MAY 18, 1962, ARE IN THE FORM NORMALLY USED BY THE DEPARTMENT OF THE ARMY TO ACCOMPLISH THE RETIREMENT OF A TEMPORARY CHIEF WARRANT OFFICER, W-2, ARMY OF THE UNITED STATES WITHOUT COMPONENT, AND THE PLACEMENT OF HIS NAME ON THE ARMY OF THE UNITED STATES RETIRED LIST. IT APPEARS THAT HIS INACTIVE STATUS AS A RESERVE WARRANT OFFICER, W-2, WAS MENTIONED PARENTHETICALLY IN THOSE ORDERS FOR INFORMATION PURPOSES ONLY. WE DO NOT FIND SUFFICIENT BASIS TO CONCLUDE THAT HE IS NOT A RETIRED TEMPORARY CHIEF WARRANT OFFICER, W-2, WHO IS RECEIVING RETIRED PAY BY VIRTUE OF HIS ACTIVE DUTY IN THAT CAPACITY.

ACCORDINGLY, WE CONCLUDE THAT MR. PADGETT'S STATUS WITH RESPECT TO THE 1894 ACT IS NOT SUCH AS TO WARRANT OUR HOLDING THAT HE IS EXEMPT FROM ITS RESTRICTIVE PROVISIONS. THE QUESTION PRESENTED ..END :