B-158219, JAN. 13, 1966, 45 COMP. GEN. 405

B-158219: Jan 13, 1966

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BANKRUPTCY - REFEREES - RETIRED MILITARY PERSONNEL - RESERVISTS IN VIEW OF THE FACT THAT PURSUANT TO 5 U.S.C. 30R (D) WHEN A RESERVIST IS NOT ON ACTIVE DUTY. OR WHEN HE IS ON ACTIVE DUTY FOR TRAINING. HE IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR A PERSON HOLDING AN OFFICE OF TRUST OR PROFIT AND THAT HE IS AUTHORIZED UNDER SECTION 30R (C) TO ACCEPT A CIVILIAN POSITION AND RECEIVE BOTH CIVILIAN SALARY AND RETIRED PAY. THE EMPLOYMENT OF A NAVAL RESERVIST AS A FULL-TIME REFEREE IN BANKRUPTCY IS NOT PROHIBITED BY 11 U.S.C. 63 (2). REQUESTS A DECISION AS TO WHETHER THERE IS ANY STATUTORY PROHIBITION AGAINST RECEIPT OF RETIRED PAY FOR NONREGULAR MILITARY SERVICE AS AUTHORIZED IN 10 U.S.C. 1331 WHILE RECEIVING COMPENSATION AS A FULL-TIME REFEREE IN BANKRUPTCY.

B-158219, JAN. 13, 1966, 45 COMP. GEN. 405

BANKRUPTCY - REFEREES - RETIRED MILITARY PERSONNEL - RESERVISTS IN VIEW OF THE FACT THAT PURSUANT TO 5 U.S.C. 30R (D) WHEN A RESERVIST IS NOT ON ACTIVE DUTY, OR WHEN HE IS ON ACTIVE DUTY FOR TRAINING, HE IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR A PERSON HOLDING AN OFFICE OF TRUST OR PROFIT AND THAT HE IS AUTHORIZED UNDER SECTION 30R (C) TO ACCEPT A CIVILIAN POSITION AND RECEIVE BOTH CIVILIAN SALARY AND RETIRED PAY, THE EMPLOYMENT OF A NAVAL RESERVIST AS A FULL-TIME REFEREE IN BANKRUPTCY IS NOT PROHIBITED BY 11 U.S.C. 63 (2), WHICH PROVIDES THAT PERSONS HOLDING ANY OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE SHALL BE INELIGIBLE TO SERVE AS A FULL-TIME REFEREE IN BANKRUPTCY, AND THE RESERVIST UPON APPOINTMENT AS A REFEREE MAY RECEIVE THE CIVILIAN SALARY OF THAT POSITION AND IN ADDITION THE RETIRED PAY AUTHORIZED BY 10 U.S.C. 1331.

TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, JANUARY 13, 1966:

YOUR LETTER OF DECEMBER 17, 1965, REQUESTS A DECISION AS TO WHETHER THERE IS ANY STATUTORY PROHIBITION AGAINST RECEIPT OF RETIRED PAY FOR NONREGULAR MILITARY SERVICE AS AUTHORIZED IN 10 U.S.C. 1331 WHILE RECEIVING COMPENSATION AS A FULL-TIME REFEREE IN BANKRUPTCY.

SECTION 35 OF THE BANKRUPTCY ACT OF JULY 1, 1898, CH. 541, 30 STAT. 555, AS AMENDED, 11 U.S.C. 63, PROVIDING THE QUALIFICATIONS OF REFEREES IN BANKRUPTCY, READS IN PART AS FOLLOWS:

INDIVIDUALS SHALL NOT BE ELIGIBLE TO APPOINTMENT AS REFEREES UNLESS THEY ARE (1) COMPETENT TO PERFORM THE DUTIES OF A REFEREE IN BANKRUPTCY; (2) NOT HOLDING ANY OFFICE OF PROFIT OR EMOLUMENT UNDER THE LAWS OF THE UNITED STATES OR OF ANY STATE OR SUBDIVISION THEREOF OTHER THAN CONCILIATION COMMISSIONER OR SPECIAL MASTER UNDER THIS ACT: PROVIDED, HOWEVER, THAT PART-TIME REFEREES MAY BE COMMISSIONERS OF DEEDS, UNITED STATES COMMISSIONERS, JUSTICES OF THE PEACE, MASTERS IN CHANCERY, NOTARIES PUBLIC, RETIRED OFFICERS AND RETIRED ENLISTED PERSONNEL OF THE REGULAR AND RESERVE COMPONENTS OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES AND OF THE NATIONAL GUARD OF A STATE, TERRITORY, OR THE DISTRICT OF COLUMBIA, EXCEPT THE NATIONAL GUARD DISBURSING OFFICERS WHO ARE ON A FULL TIME SALARY BASIS, OR EITHER CONCILIATION COMMISSIONERS OR SUPERVISING CONCILIATION COMMISSIONERS BUT NOT OTH; * * *.

YOU SAY THAT THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484, 5 U.S.C. 3101 NOTE, APPEARS TO APPLY TO RETIRED PAY RECEIVED BY RETIRED OFFICERS OF A REGULAR COMPONENT OF THE UNIFORMED SERVICE WHILE EMPLOYED IN A CIVILIAN CAPACITY IN THE GOVERNMENT SERVICE AND DOES NOT APPEAR TO COVER RETIRED PAY OF RESERVE OFFICERS. SINCE THE QUESTION STATED ABOVE HAS NOT HERETOFORE BEEN DECIDED YOU REQUEST A DECISION IN THE MATTER.

PARTS OF SECTIONS 1 (B) AND 2 OF THE ACT OF JULY 1, 1947, CH. 192, 61 STAT. 239, WERE REPEALED AND REENACTED AS SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, 5 U.S.C. 30R (C), WHICH PROVIDES IN PART AS FOLLOWS:

ANY RESERVE OR MEMBER OF THE NATIONAL GUARD MAY ACCEPT ANY CIVILIAN POSITION UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND MAY RECEIVE THE PAY INCIDENT TO THAT EMPLOYMENT IN ADDITION TO PAY AND ALLOWANCES AS A RESERVE OR MEMBER OF THE NATIONAL GUARD. * * *.

PRIOR TO THE ENACTMENT OF THE DUAL COMPENSATION ACT IT WAS WELL SETTLED THAT A RESERVE OFFICER WHO RETIRED AS A RESERVE AND BECAME ENTITLED TO RETIRED PAY UNDER LAWS RELATING TO A RESERVE COMPONENT WAS EXEMPT FROM THE FORMER DUAL COMPENSATION STATUTES. SEE IN THIS CONNECTION 36 COMP. GEN. 399; 40 COMP. GEN. 625 AND WATMAN V. UNITED STATES, 152 CT.CL. 769 (1961). THE PURPOSE OF THE 1964 ACT WAS TO SIMPLIFY, MODERNIZE AND CONSOLIDATE THE LAWS RELATING TO DUAL EMPLOYMENT INCLUDING THE CIVILIAN EMPLOYMENT OF RETIRED MILITARY PERSONNEL, AND THE DUAL EMPLOYMENT LAWS THEN IN EFFECT WERE REPEALED BY THAT ACT.

SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, 5 U.S.C. 30R (D), PROVIDES THAT WHEN A RESERVIST IS NOT ON ACTIVE DUTY, OR WHEN HE IS ON ACTIVE DUTY FOR TRAINING, HE "IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR A PERSON HOLDING AN OFFICE OF TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER, OR CONNECTION WITH, THE UNITED STATES BECAUSE OF HIS APPOINTMENT, OATH, OR STATUS, OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY OR ALLOWANCES RECEIVED IN THAT CAPACITY.'

THE DUAL COMPENSATION PROVISIONS OF SECTION 201 (A) OF THAT ACT, 5 U.S.C. 3102 (A), ARE APPLICABLE ONLY TO "A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES," AND WE KNOW OF NO PROHIBITION AGAINST THE EMPLOYMENT OF A RETIRED RESERVE OFFICER AS A FULL-TIME REFEREE IN BANKRUPTCY. ACCORDINGLY, YOUR QUESTION IS ANSWERED IN THE NEGATIVE AND THE INDIVIDUAL TO WHOM YOU REFER, A MEMBER OF THE NAVAL RESERVE, MAY RECEIVE THE SALARY OF A FULL-TIME REFEREE IN BANKRUPTCY AND IN ADDITION MAY RECEIVE RETIRED PAY AUTHORIZED BY 10 U.S.C. 1331.