B-157457, AUG. 19, 1965, 45 COMP. GEN. 81

B-157457, AUG. 19, 1965, 45 COMP. GEN. 81

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN PAY - EXEMPTIONS - FEE BASIS PHYSICIANS A RETIRED REGULAR ARMY OFFICER PLACED ON A ROSTER OF FEE BASIS PHYSICIANS TO EXAMINE ARMED FORCES PERSONNEL AT A FEE OF $7 FOR EACH EXAMINATION, PAYMENT LIMITED TO $50 IN 1 DAY REGARDLESS OF THE NUMBER OF EXAMINATIONS MADE, DOES NOT OCCUPY A "CIVILIAN" OFFICE WITHIN THE PURVIEW OF 5 U.S.C. 3101 (3), AND HIS RETIRED PAY IS NOT SUBJECT TO REDUCTION PURSUANT TO SECTION 3102 (A) AFTER THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES FEES, PHYSICIANS PAID ON A FEE BASIS SERVING UNDER CONTRACT AND NOT BY APPOINTMENT TO A CIVILIAN OFFICE OR POSITION, AND THE FACT THAT BY A CONTRACTUAL ARRANGEMENT A LIMITATION IS PLACED UPON THE TOTAL FEES ANY PHYSICIAN MAY RECEIVE FOR SERVICES ON ANY DAY WHEN MORE THAN SEVEN APPLICANTS ARE EXAMINED DOES NOT CHANGE THE CONTRACTUAL RELATIONSHIP TO THAT OF EMPLOYER-EMPLOYEE.

TO THE SECRETARY OF THE ARMY, AUGUST 19, 1965:

YOUR LETTER OF AUGUST 9, 1965, REQUESTS OUR DECISION ON SEVERAL QUESTIONS CONCERNING A RETIRED REGULAR ARMY OFFICER WHO HAS MADE APPLICATION TO BE PLACED ON THE ROSTER OF FEE BASIS PHYSICIANS AT THE ARMED FORCES EXAMINING STATION, SAN ANTONIO, TEXAS. YOU SAY THAT---

THE PRESENT PROCEDURES UTILIZED IN PLACING FEE BASIS PHYSICIANS ON ARMED FORCES EXAMINING STATIONS' ROSTERS ARE TO REQUIRE THE PHYSICIAN TO SUBMIT A COPY OF HIS LICENSE AND A RESUME OF HIS QUALIFICATIONS AND EXPERIENCE. UPON APPROVAL BY THE SURGEON AT HEADQUARTERS, UNITED STATES CONTINENTAL ARMY COMMAND, FORT MONROE, VIRGINIA, THE PHYSICIAN'S NAME IS ENTERED ON THE ROSTER AND IS ELIGIBLE FOR CALL.

YOU SAY ALSO THAT "PARAGRAPH 5A, AR 40-330, PROVIDES THAT FEE BASIS PHYSICIANS MAY BE PAID $7 PER EXAMINATION, BUT NOT MORE THAN $50 IN 1 DAY REGARDLESS OF THE NUMBER OF EXAMINATIONS MADE.' YOUR LETTER ALSO POINTS OUT THAT---

AS A MATTER OF PRACTICE, THE FEE BASIS PHYSICIANS NEVER RECEIVED THE $7 PER EXAMINATION BUT ARE PAID THE $50 PER DIEM, AS THEY ARE NOT CALLED UNLESS THERE ARE FROM 10 TO 30 PERSONS TO BE EXAMINED. IN ADDITION TO BEING CALLED FOR OVERLOADS, THEY ARE CALLED WHEN THE ASSIGNED MEDICAL OFFICERS ARE SICK, ON LEAVE, OR ABSENT FOR OTHER REASONS. EACH EXAMINING STATION MAINTAINS A ROSTER OF CIVILIAN PHYSICIANS FROM WHICH A PHYSICIAN MAY BE CALLED WHEN NEEDED. THESE PHYSICIANS ARE EMPLOYED ONLY WHEN, AS, AND IF REQUIRED. IT IS UNDERSTOOD THAT IF DOCTOR DUKE IS PLACED ON THE ROSTER HE WILL BE CALLED ON FOR 5 TO 10 DAYS PER MONTH.

YOUR SPECIFIC QUESTIONS ARE REITERATED AS FOLLOWS:

1. DOES A FEE BASIS PHYSICIAN UNDER THE ABOVE CIRCUMSTANCES OCCUPY A "CIVILIAN OFFICE" WITHIN THE PURVIEW OF 5 U.S.C. 3101 (3/?

2. IF SO, WOULD THE PHYSICIAN'S RETIRED PAY BE REDUCED PURSUANT TO 5 U.S.C. 3102 (A) AFTER THE FIRST 30-DAY PERIOD FOR WHICH HE RECEIVES FEES?

3. IS THE 180-DAY WAITING PERIOD PRESCRIBED IN 5 U.S.C. 3103 (A) APPLICABLE TO A FEE BASIS PHYSICIAN UNDER THE ABOVE CIRCUMSTANCES OR DOES HE FALL WITHIN THE EXEMPTION UNDER 5 U.S.C. 3105 (D) (2/?

WHILE YOUR LETTER DOES NOT SPECIFICALLY SO STATE WE UNDERSTAND THAT THE FEE BASIS PHYSICIANS TO WHOM IT REFERS SERVE UNDER CONTRACTS AND ARE NOT APPOINTED TO CIVILIAN OFFICES OR POSITIONS UNDER THE DEPARTMENT OF THE ARMY. ALSO WE UNDERSTAND THAT WHILE IT IS NOT THE USUAL PRACTICE, IF AN OCCASION SHOULD ARISE WHEN LESS THAN SEVEN APPLICANTS ARE EXAMINED BY A PHYSICIAN HIRED ON A FEE BASIS IN ANY ONE DAY, THAT THE PHYSICIAN WOULD RECEIVE THE FULL FEES AGREED UPON WITHOUT REDUCTION. THE FACT THAT BY A CONTRACTUAL ARRANGEMENT A LIMITATION IS PLACED UPON THE TOTAL FEES ANY SUCH PHYSICIAN MAY RECEIVE FOR SERVICES ON ANY DAY WHEN MORE THAN SEVEN APPLICANTS ARE EXAMINED DOES NOT CHANGE THE CONTRACTUAL RELATIONSHIP TO THAT OF EMPLOYER-EMPLOYEE. ACCORDINGLY, ASSUMING OUR UNDERSTANDING AS SET FORTH ABOVE IS CORRECT, YOUR FIRST TWO QUESTIONS ARE ANSWERED IN THE NEGATIVE.

CONCERNING YOUR THIRD QUESTION, WHILE THE 180-DAY WAITING PERIOD PRESCRIBED IN 5 U.S.C. 3103 (A) IS NOT APPLICABLE TO A FEE BASIS PHYSICIAN TO WHOM YOUR SUBMISSION APPLIES, BECAUSE FEE BASIS CONTRACTUAL EMPLOYMENT DOES NOT CONSTITUTE A CIVILIAN OFFICE WITHIN THE MEANING OF 5 U.S.C. 3101 (3), NEITHER DOES 5 U.S.C. 3105 (D) (2) APPLY, BECAUSE THAT SECTION CONTAINS AN EXCEPTION TO THE RESTRICTION APPEARING IN 5 U.S.C. 3105 (A) ONLY AND NOT AN EXCEPTION TO THE RESTRICTION APPEARING IN 5 U.S.C. 3102 (A).