B-156565, MAY 12, 1965, 44 COMP. GEN. 708

B-156565: May 12, 1965

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COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - CENTRAL INTELLIGENCE AGENCY DIRECTOR THE COMPENSATION PROVISIONS APPLICABLE TO A RETIRED COMMISSIONED OFFICER WHO IS APPOINTED DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY IN SECTION 102 (B) (2) OF THE NATIONAL SECURITY ACT OF 1947. WHICH PERMIT A RETIRED OFFICER HOLDING A CIVILIAN POSITION TO RECEIVE HIS FULL CIVILIAN SALARY BUT REDUCED RETIRED PAY IN ACCORDANCE WITH A SPECIFIC FORMULA ARE CLEARLY INCONSISTENT AND. THE CIVILIAN COMPENSATION AND RETIRED PAY PROVISIONS FOR THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY IN THE NATIONAL SECURITY ACT OF 1947 ARE NO LONGER IN EFFECT AND THE COMPENSATION AND RETIRED PAY BENEFITS FOR THE DIRECTOR ARE GOVERNED BY SECTION 201 OF THE DUAL COMPENSATION ACT.

B-156565, MAY 12, 1965, 44 COMP. GEN. 708

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - CENTRAL INTELLIGENCE AGENCY DIRECTOR THE COMPENSATION PROVISIONS APPLICABLE TO A RETIRED COMMISSIONED OFFICER WHO IS APPOINTED DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY IN SECTION 102 (B) (2) OF THE NATIONAL SECURITY ACT OF 1947, 50 U.S.C. 403 (B) (2), WHICH PERMITS THE OFFICER TO RECEIVE RETIRED PAY AND THE CIVILIAN COMPENSATION THAT EXCEEDS THE RETIRED PAY, AND THE PROVISIONS IN SECTION 201 (A) OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3102, WHICH PERMIT A RETIRED OFFICER HOLDING A CIVILIAN POSITION TO RECEIVE HIS FULL CIVILIAN SALARY BUT REDUCED RETIRED PAY IN ACCORDANCE WITH A SPECIFIC FORMULA ARE CLEARLY INCONSISTENT AND, THEREFORE, UNDER SECTION 402 (B) OF THE DUAL COMPENSATION ACT, THE CIVILIAN COMPENSATION AND RETIRED PAY PROVISIONS FOR THE DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY IN THE NATIONAL SECURITY ACT OF 1947 ARE NO LONGER IN EFFECT AND THE COMPENSATION AND RETIRED PAY BENEFITS FOR THE DIRECTOR ARE GOVERNED BY SECTION 201 OF THE DUAL COMPENSATION ACT.

TO THE DIRECTOR, CENTRAL INTELLIGENCE AGENCY, MAY 12, 1965:

ON APRIL 16, 1965, YOUR ACTING DIRECTOR REQUESTED OUR DECISION WHETHER SECTION 201 (A) OF THE DUAL COMPENSATION ACT, PUB.L. 88-448, 78 STAT. 484, IS APPLICABLE IN THE CASE OF A RETIRED COMMISSIONED OFFICER OF THE REGULAR NAVY WHO IS APPOINTED DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY, OR WHETHER THE PROVISIONS OF SECTION 102 (B) (2) OF THE NATIONAL SECURITY ACT OF 1947, 61 STAT. 495, AS AMENDED, 50 U.S.C. 403 (B) (2), IS CONTROLLING.

SECTION 403 (B) (2) IS IN PART AS FOLLOWS:

"* * * ANY SUCH COMMISSIONED OFFICER SHALL, WHILE SERVING IN THE OFFICE OF DIRECTOR * * * CONTINUE TO HOLD RANK AND GRADE NOT LOWER THAN THAT IN WHICH SERVING AT THE TIME OF HIS APPOINTMENT AND TO RECEIVE THE MILITARY PAY AND ALLOWANCES (ACTIVE OR RETIRED, AS THE CASE MAY BE, INCLUDING PERSONAL MONEY ALLOWANCE) PAYABLE TO A COMMISSIONED OFFICER OF HIS GRADE AND LENGTH OF SERVICE FOR WHICH THE APPROPRIATE DEPARTMENT SHALL BE REIMBURSED FROM ANY FUNDS AVAILABLE TO DEFRAY THE EXPENSES OF THE CENTRAL INTELLIGENCE AGENCY. HE ALSO SHALL BE PAID BY THE CENTRAL INTELLIGENCE AGENCY FROM SUCH FUNDS AN ANNUAL COMPENSATION AT A RATE EQUAL TO THE AMOUNT BY WHICH THE COMPENSATION ESTABLISHED FOR SUCH POSITION EXCEEDS THE AMOUNT OF HIS ANNUAL MILITARY PAY AND ALLOWANCES.'

SECTION 201 (A) OF THE DUAL COMPENSATION ACT IS IN PART AS FOLLOWS:

"EXCEPT AS PROVIDED BY SUBSECTIONS (B), (C), AND (E) OF THIS SECTION, A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES SHALL RECEIVE THE FULL SALARY OF ANY CIVILIAN OFFICE WHICH HE HOLDS, BUT DURING A PERIOD FOR WHICH HE RECEIVES SALARY, HIS RETIRED OR RETIREMENT PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 OF SUCH PAY PLUS ONE-HALF OF THE REMAINDER, IF ANY. * * *"

SECTION 402 (B) OF THE DUAL COMPENSATION ACT IS AS FOLLOWS:

"ALL OTHER PROVISIONS OF LAW, GENERAL OR SPECIFIC, INCONSISTENT WITH THIS ACT AND THE AMENDMENTS MADE BY THIS ACT, ARE HEREBY REPEALED.'

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF TITLE II OF THE DUAL COMPENSATION ACT PLAINLY DISCLOSES THAT IT WAS INTENDED TO CONSOLIDATE, SIMPLIFY AND SUPERSEDE STATUTES THERETOFORE EXISTING, RELATING TO CIVILIAN EMPLOYMENT AND COMPENSATION OF RETIRED MEMBERS OF THE UNIFORMED SERVICES. SECTION 402 (B) SPECIFICALLY PROVIDES THAT ALL OTHER PROVISIONS OF LAW, GENERAL OR SPECIFIC, THAT ARE INCONSISTENT WITH THE PROVISIONS OF THE DUAL COMPENSATION ACT ARE REPEALED. THE COMPENSATION PROVISIONS OF SECTION 403 (B) (2) CLEARLY ARE INCONSISTENT WITH THOSE OF SECTION 201 (A) OF THE DUAL COMPENSATION ACT.

WE HOLD, THEREFORE, THAT THOSE PROVISIONS OF SECTION 102 (B) (2) OF THE NATIONAL SECURITY ACT OF 1947, AS AMENDED, 50 U.S.C. 403 (B) (2) RELATING TO THE CIVILIAN COMPENSATION AND RETIRED PAY OF A RETIRED COMMISSIONED OFFICER WHO MAY BE APPOINTED AS DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY NO LONGER ARE IN EFFECT. SEE 50 AM.JUR. (STATUTES) 558; 82 C.J.S. (STATUTES) 292.

ACCORDINGLY, WE CONCUR IN YOUR AGENCY'S VIEWS THAT SECTION 201 OF THE DUAL COMPENSATION ACT GOVERNS THE CIVILIAN COMPENSATION AND RETIRED PAY BENEFITS WHICH A RETIRED REGULAR COMMISSIONED OFFICER WHO IS APPOINTED AS DIRECTOR OF THE CENTRAL INTELLIGENCE AGENCY MAY RECEIVE IN THAT POSITION.