B-155148, DEC. 7, 1964, 44 COMP. GEN. 332
Highlights
NOTWITHSTANDING THE COMPENSATION HE RECEIVED AS A CONSULTANT WAS PAID BY HIM TO THE PRIVATE FOUNDATION EMPLOYING HIM ON A FULL-TIME SALARY BASIS. HIS RETIRED PAY WAS PROPERLY WITHHELD FOR EACH DAY HE WAS EMPLOYED BY THE GOVERNMENT. NO PRIVITY OF CONTRACT EXISTING BETWEEN THE GOVERNMENT AND THE FOUNDATION CONCERNING THE OFFICER'S PERSONAL SERVICES THE PAYMENTS HE RECEIVED ARE NOT EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS IN THE 1932 ACT. 1964: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. THE SUBMISSION WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. IT IS REPORTED THAT GENERAL SCHWICHTENBERG WAS RETIRED AS A REGULAR COMMISSIONED OFFICER ON JULY 31.
B-155148, DEC. 7, 1964, 44 COMP. GEN. 332
COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - SALARY NONRETENTION EFFECT A REGULAR COMMISSIONED AIR FORCE OFFICER RETIRED UNDER 10 U.S.C. 8911 FOR LENGTH OF SERVICE WHO WORKED AS A CONSULTANT FOR 9 DAYS ON A WHEN-ACTUALLY -EMPLOYED BASIS FOR THE AIR FORCE SYSTEMS COMMAND, ALTHOUGH EXEMPT FROM THE DUAL EMPLOYMENT ACT OF 1894, HOLDS A CIVILIAN OFFICE OR POSITION WITHIN THE MEANING OF SECTION 212 (A) OF THE ECONOMY ACT OF 1932, AS AMENDED, AND NOTWITHSTANDING THE COMPENSATION HE RECEIVED AS A CONSULTANT WAS PAID BY HIM TO THE PRIVATE FOUNDATION EMPLOYING HIM ON A FULL-TIME SALARY BASIS, HIS RETIRED PAY WAS PROPERLY WITHHELD FOR EACH DAY HE WAS EMPLOYED BY THE GOVERNMENT, NO PRIVITY OF CONTRACT EXISTING BETWEEN THE GOVERNMENT AND THE FOUNDATION CONCERNING THE OFFICER'S PERSONAL SERVICES THE PAYMENTS HE RECEIVED ARE NOT EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS IN THE 1932 ACT, THE USE THE RETIRED OFFICER MADE OF THE SALARY HE RECEIVED AS A CONSULTANT BEING OF NO CONCERN TO THE GOVERNMENT.
TO N. R. BRENINGSTALL, DEPARTMENT OF THE AIR FORCE, DECEMBER 7, 1964:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1964, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER ATTACHED THERETO IN FAVOR OF BRIGADIER GENERAL ALBERT H. SCHWICHTENBERG, USAF, RETIRED, IN THE AMOUNT OF $259, REPRESENTING 9 DAYS' MILITARY RETIRED PAY WITHHELD FROM HIM DURING JULY 1964 BY REASON OF THE APPLICATION OF THE DUAL COMPENSATION RESTRICTIONS IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A. THE SUBMISSION WAS APPROVED BY THE DEPARTMENT OF DEFENSE MILITARY PAY ALLOWANCE COMMITTEE AS AIR FORCE REQUEST NO. DO AF-797.
IT IS REPORTED THAT GENERAL SCHWICHTENBERG WAS RETIRED AS A REGULAR COMMISSIONED OFFICER ON JULY 31, 1958, UNDER THE PROVISIONS OF SECTION 8911, OF TITLE 10, U.S. CODE, WHICH PERTAINS TO THE RETIREMENT OF COMMISSIONED OFFICERS OF THE AIR FORCE FOR LENGTH OF SERVICE. A COPY OF STANDARD FORM 50 SHOWS THAT THE RETIRED OFFICER ACCEPTED AN APPOINTMENT AS CONSULTANT WITH THE AIR FORCE SYSTEMS COMMAND ON JANUARY 22, 1964, ON A WHEN-ACTUALLY-EMPLOYED BASIS, AT A DAILY RATE OF $74.16, FOR A TOTAL PERIOD OF SERVICE OF NOT TO EXCEED 10 DAYS THROUGH JUNE 30, 1964. IT IS FURTHER REPORTED THAT THE OFFICER WORKED 9 DAYS FOR WHICH HE WAS PAID $667.44.
EMPLOYMENT AS A CONSULTANT IN AN INTERMITTENT OR ON A "WHEN ACTUALLY EMPLOYED BASIS," AT A DAILY RATE OF PAY, DOES NOT CONSTITUTE AN APPOINTMENT TO AN "OFFICE TO WHICH COMPENSATION IS ATTACHED" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62. 23 COMP. GEN. 275. HOWEVER, SUCH EMPLOYEE IS CONSIDERED AS HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A (A). 31 COMP. GEN. 126.
IT APPEARS FROM THE INFORMATION PRESENTED THAT GENERAL SCHWICHTENBERG IS A FULL-TIME SALARIED EMPLOYEE OF THE LOVELACE FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH, ALBUQUERQUE, NEW MEXICO, AND THAT THE PAYMENTS MADE TO HIM PURSUANT TO HIS CONTRACT WITH THE AIR FORCE SYSTEMS COMMAND OF JANUARY 22, 1964, HAVE BEEN PAID (BY HIM) TO THE FOUNDATION PURSUANT TO AN ARRANGEMENT TO THAT EFFECT WITH HIS EMPLOYER. HOWEVER, NOTHING IN THE RECORD INDICATES OR SUGGESTS THAT THERE WAS ANY PRIVITY OF CONTRACT BETWEEN THE AIR FORCE SYSTEMS COMMAND AND THE FOUNDATION CONCERNING THE OFFICER'S PERSONAL SERVICES. THE USE HE MADE OF HIS SALARY AS A CONSULTANT IS NO CONCERN OF THE GOVERNMENT. HENCE, IT APPEARS THAT SUCH PAYMENTS ARE NOT EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS IN SECTION 212 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, AND THAT, THEREFORE, HIS RETIRED PAY WAS PROPERLY WITHHELD FOR EACH DAY ON WHICH HE WAS EMPLOYED BY THE AIR FORCE SYSTEMS COMMAND. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.
THE VOUCHER WILL BE RETAINED HERE INASMUCH AS PAYMENT THEREON IS NOT AUTHORIZED.