B-157200, OCT. 25, 1965, 45 COMP. GEN. 194

B-157200, OCT. 25, 1965, 45 COMP. GEN. 194

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ELECTION OF STATUS UNDER THE DUAL COMPENSATION ACT - DESIGNATION OF EMPLOYER CHANGE AN OFFICER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES WHO FOLLOWING RETIREMENT UNDER 10 U.S.C. 8911 IS EMPLOYED AS A CIVILIAN IN A NONAPPROPRIATED FUND ACTIVITY AND UPON ENACTMENT OF THE DUAL COMPENSATION ACT IS CONSIDERED TO HAVE ELECTED, PURSUANT TO SECTION 201 (F), TO REMAIN IN THE STATUS HE OCCUPIED ON NOVEMBER 30, 1964, THAT OF AN EMPLOYEE OF A NONAPPROPRIATED FUND INSTRUMENTALITY ENTITLED TO FULL RETIRED PAY, AN EXCEPTION THAT DID NOT CONTINUE UPON CHANGE OF EMPLOYER DESIGNATION ON DECEMBER 7, 1964 FROM A NONAPPROPRIATED TO AN APPROPRIATED FUND ACTIVITY, THEREFORE, MAKING THE RETIRED PAY OF THE OFFICER SUBJECT TO THE DUAL COMPENSATION REDUCTION PRESCRIBED BY SECTION 201 (A) OF THE ACT, THE ELECTION PROVIDED IN SECTION 201 (F), AUTHORIZING A RETIRED OFFICER OF A REGULAR COMPONENT TO CONTINUE IN THE SAME STATUS OR TO COME UNDER THE ACT, CEASING TO OPERATE ON DECEMBER 7, 1964, THE DATE THE CIVILIAN SALARY OF THE OFFICER BECAME PAYABLE FROM APPROPRIATED FUNDS.

TO LIEUTENANT COLONEL J. J. VANYA, DEPARTMENT OF THE AIR FORCE, OCTOBER 25, 1965:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1965, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE AIR FORCE REQUEST NO. DO-AF-861, REQUESTING DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MAJOR GEORGE M. MOORE, USAF, RETIRED, REPRESENTING REFUND OF DUAL COMPENSATION REDUCTION IN HIS RETIRED PAY FOR THE PERIOD FEBRUARY 1, 1965 THROUGH MARCH 31, 1965.

THE QUESTION OF ENTITLEMENT ARISES UNDER SECTION 201 (F) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 485, 5 U.S.C. 3012 (F), WHICH AUTHORIZES A RETIRED OFFICER OF ANY REGULAR COMPONENT WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON NOVEMBER 30, 1964, TO ELECT TO CONTINUE IN THE SAME STATUS HE OCCUPIED ON THAT DAY WITH RESPECT TO LIMITATIONS ON CIVILIAN COMPENSATION OR EXEMPTIONS THEREFROM OR TO COME UNDER THE PROVISIONS OF THE NEW ACT. THAT SECTION FURTHER PROVIDES THAT ANY SUCH RETIRED OFFICER WHO DOES NOT FILE AN ELECTION WITHIN 90 DAYS AFTER THE EFFECTIVE DATE OF THE ACT SHALL BE HELD AND CONSIDERED TO HAVE ELECTED TO REMAIN IN THE STATUS WHICH HE OCCUPIED ON NOVEMBER 30, 1964.

THE FACTS STATED IN YOUR LETTER ARE AS FOLLOWS: THAT MAJOR MOORE DID NOT FILE A TIMELY ELECTION AND IS CONSIDERED AS HAVING ELECTED TO REMAIN IN THE STATUS HE OCCUPIED ON NOVEMBER 30, 1964; THAT HE WAS ENTITLED TO FULL RETIRED PAY WITHOUT DEDUCTION; THAT ON DECEMBER 7, 1964, HIS EMPLOYER'S DESIGNATION CHANGED FROM NONAPPROPRIATED FUND TO APPROPRIATED FUND; THAT HE WAS GIVEN A GS-11 CIVIL SERVICE RATING AND CONTINUED IN THE SAME LINE OF EMPLOYMENT, STILL WITH THE AIR FORCE AT THE SAME BASE AND WITH THE SAME EMPLOYER (TINKER AFB, OFFICERS' OPEN MESS) WHICH HE HAD HAD SINCE JUNE 16, 1964. YOU RAISE THE QUESTION WHETHER THE OFFICER'S ORIGINAL EXEMPTION CONTINUED AND WAS TRANSFERRED TO THE APPROPRIATED FUND EMPLOYMENT BY THE SAME EMPLOYER.

WE HAVE BEEN INFORMALLY ADVISED THAT MAJOR MOORE'S RETIREMENT ON SEPTEMBER 1, 1963, AS A REGULAR OFFICER WAS EFFECTED UNDER AUTHORITY OF 10 U.S.C. 8911 WHICH AUTHORIZES RETIREMENT AFTER COMPLETION OF AT LEAST 20 YEARS OF ACTIVE SERVICE.

PRIOR TO DECEMBER 1, 1964, OFFICERS OF THE REGULAR SERVICES WHO WERE RETIRED OTHER THAN FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY WERE GENERALLY PROHIBITED FROM ACCEPTING CIVILIAN EMPLOYMENT UNDER THE FEDERAL GOVERNMENT BY THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62 (1958 ED.). IN OUR DECISION OF OCTOBER 11, 1956, 36 COMP. GEN. 309, WE HELD THAT WHILE RETIRED OFFICERS, AS SUCH, HOLD AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT, THE CIVILIAN POSITIONS IN WHICH THE OFFICERS CONCERNED WERE EMPLOYED BY NONAPPROPRIATED FUND ACTIVITIES SUCH AS POST EXCHANGE, COMMISSIONED OFFICERS' MESS, ETC., DID NOT CONSTITUTE AN "OFFICE" WITHIN THE MEANING OF THAT ACT. SEE ALSO 42 COMP. GEN. 208.

SECTION 212 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (1958 ED.) GENERALLY PROHIBITED THE RECEIPT OF MORE THAN $10,000 COMBINED RETIRED PAY AND CIVILIAN SALARY IF THE RETIRED PAY WAS PAID FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER UNLESS THE RETIREMENT WAS EFFECTED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR. THE COURT OF CLAIMS IN THE CASE OF GRADALL V. UNITED STATES, 161 CT. CL. 714 (1963), HELD THAT THE PLAINTIFF'S EMPLOYMENT IN THE ARMY EXCHANGE SERVICE AND THE AIR FORCE EXCHANGE SERVICE, WHICH WERE NONAPPROPRIATED FUND INSTRUMENTALITIES, DID NOT CONSTITUTE HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF SECTION 212 OF THE 1932 ACT. WE HAVE FOLLOWED THE COURT'S RULING. 43 COMP. GEN. 181. THEREFORE MAJOR MOORE WAS NOT SUBJECT TO THE RESTRICTIONS CONTAINED IN THE 1894 AND 1932 ACTS PRIOR TO DECEMBER 1, 1964, WHILE HE WAS AN EMPLOYEE OF A NONAPPROPRIATED FUND INSTRUMENTALITY.

ON DECEMBER 1, 1964, BY VIRTUE OF THE DEFINITION OF "CIVILIAN OFFICE" APPEARING IN SECTION 101 OF PUBLIC LAW 88-448, 5 U.S.C. 3101, MAJOR MOORE AND OTHER RETIRED MILITARY PERSONNEL EMPLOYED IN NONAPPROPRIATED FUND ACTIVITIES BECAME SUBJECT TO THE REDUCTION OF RETIRED PAY REQUIRED BY SECTION 201 (A) OF SUCH ACT, 5 U.S.C. 3101 (A); UNLESS OTHERWISE EXCEPTED THEREFROM. WE AGREE THAT THE EXEMPTION PROVISIONS OF SECTION 201 (F) WERE APPLICABLE IN MAJOR MOORE'S CASE ON DECEMBER 1, 1964, AND THAT PURSUANT THERETO NO REDUCTION IN RETIRED PAY WAS REQUIRED AS LONG AS HE CONTINUED TO BE PAID FROM NONAPPROPRIATED FUNDS. HOWEVER, OUR VIEW IS THAT ON DECEMBER 7, 1964, WHEN MAJOR MOORE'S STATUS WAS CHANGED SO THAT HIS CIVILIAN SALARY BECAME PAYABLE FROM APPROPRIATED RATHER THAN NONAPPROPRIATED FUNDS, THE PROVISIONS OF SECTION 201 (F) CEASED TO OPERATE AND THEREAFTER HE BECAME SUBJECT TO A REDUCTION IN HIS RETIRED PAY AS SPECIFIED IN SECTION 201 (A) OF THE ACT. IN ARRIVING AT THE ABOVE WE HAVE NOT OVERLOOKED THE LAST SENTENCE IN SECTION 201 (F).

IT APPEARING THAT MAJOR MOORE'S RETIRED PAY WAS PROPERLY REDUCED IN ACCORDANCE WITH THE FORMULA STATED IN SECTION 201 (A) OF THE DUAL COMPENSATION ACT, PAYMENT ON THE VOUCHER ACCOMPANYING YOUR LETTER IS NOT AUTHORIZED AND SUCH VOUCHER IS BEING RETAINED HERE.