B-159127, JUN. 30, 1966, 45 COMP. GEN. 846

B-159127: Jun 30, 1966

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1966: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9. THE QUESTION PRESENTED IS WHETHER THE PROVISIONS OF SECTION 201 (A) OF THE DUAL COMPENSATION ACT. ARE APPLICABLE IN THE CIRCUMSTANCES HEREUNDER SET FORTH. LOWE WAS RETIRED SEPTEMBER 1. 5 U.S.C. 3101 NOTE) AND WHICH ARE APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE ARE AS FOLLOWS: SEC. 101. " * * * HAVE THE DEFINITIONS GIVEN THEM BY SECTION 101 OF TITLE 37. A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS SUBSECTION. HE WAS EXEMPT FROM LIMITATIONS ON COMPENSATION. HE WAS SUBJECT TO LIMITATIONS ON COMPENSATION.

B-159127, JUN. 30, 1966, 45 COMP. GEN. 846

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - ELECTION OF STATUS UNDER DUAL COMPENSATION ACT - INTERMITTENT AND FULL-TIME EMPLOYMENT A REGULAR COAST GUARD COMMISSIONED WARRANT OFFICER W-2, RETIRED FOR YEARS OF SERVICE UNDER 10 U.S.C. 1293, WHO ON THE DAY PRECEDING THE EFFECTIVE DATE, DECEMBER 1, 1964, OF THE DUAL COMPENSATION ACT HELD AN INTERMITTENT CIVILIAN POSITION THAT DID NOT CONTRAVENE THE DUAL EMPLOYMENT PROVISIONS OF THE 1894 ACT, NOR SUBJECT HIM TO THE COMPENSATION LIMITATIONS OF SECTION 212 OF THE 1932 ECONOMY ACT, PROVISIONS REPEALED BY THE 1964 ACT, AND WHO UNDER SECTION 201 (F) (1) OF THE DUAL COMPENSATION ACT ELECTS TO REMAIN SUBJECT TO HIS EXEMPTIONS, DOES NOT UPON ACCEPTANCE OF A FULL-TIME POSITION WITHOUT A BREAK IN SERVICE LOSE HIS EXEMPT STATUS AND HE CONTINUES FREE OF THE DUAL COMPENSATION RESTRICTIONS, NOTWITHSTANDING THE 1964 ACT DEFINES "CIVILIAN OFFICE" TO INCLUDE ,INTERMITTENT POSITION," THE FORMER MEMBER'S EXEMPTION ON NOVEMBER 30, 1964 FROM THE DUAL COMPENSATION LIMITATIONS RESTING ON HIS RETIRED COMMISSIONED WARRANT OFFICER STATUS THAT REMAINED UNCHANGED ON THE EFFECTIVE DATE OF THE 1964 ACT AND UPON ACCEPTANCE OF FULL-TIME CIVILIAN EMPLOYMENT WITHOUT A BREAK IN SERVICE, HIS EXEMPT STATUS GAINED BY THE SECTION 201 (F) ELECTION CONTINUES.

TO C. C. GORDON, UNITED STATES COAST GUARD, JUNE 30, 1966:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1965, AND ENCLOSURES, REQUESTING DETERMINATION (IN EFFECT REQUESTING AN ADVANCE DECISION UNDER THE PROVISIONS OF 31 U.S.C. 82D) CONCERNING THE PROPRIETY OF PAYMENT ON A VOUCHER (DD FORM 827, ENCLOSURE (1) WITH YOUR LETTER) STATED IN FAVOR OF CHSPCK JESSE BATSON LOWE, 27830, U.S. COAST GUARD, RETIRED, FOR RETIRED PAY FOR THE MONTH OF DECEMBER 1965. THE QUESTION PRESENTED IS WHETHER THE PROVISIONS OF SECTION 201 (A) OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, AUGUST 19, 1964, 78 STAT. 484, 5 U.S.C. 3102 (A), ARE APPLICABLE IN THE CIRCUMSTANCES HEREUNDER SET FORTH.

YOUR LETTER, TOGETHER WITH THE ENCLOSURES RECEIVED THEREWITH, DISCLOSES THAT MR. LOWE WAS RETIRED SEPTEMBER 1, 1961, AS A COMMISSIONED WARRANT OFFICER (W-2) OF THE REGULAR COAST GUARD FOR YEARS OF SERVICE AS AUTHORIZED IN 10 U.S.C. 1293. IT APPEARS THAT ON MAY 1, 1963, HE ENTERED CIVILIAN FEDERAL EMPLOYMENT ON AN INTERMITTENT BASIS IN THE POST OFFICE DEPARTMENT. HIS INTERMITTENT EMPLOYMENT STATUS CONTINUED THROUGH APRIL 3, 1965. THE FOLLOWING DAY, APRIL 4, 1965, HE CHANGED JOBS AND BEGAN WORK AS A MEAT INSPECTOR WITH THE DEPARTMENT OF AGRICULTURE, FULL-TIME EMPLOYMENT AT AN ANNUAL SALARY OF $5,330.

THOSE PROVISIONS OF THE DUAL COMPENSATION ACT OF 1964, PUBLIC LAW 88-448, WHICH BECAME EFFECTIVE DECEMBER 1, 1964 (SECTION 403 (A), 78 STAT. 496, 5 U.S.C. 3101 NOTE) AND WHICH ARE APPLICABLE IN THE CIRCUMSTANCES OF THIS CASE ARE AS FOLLOWS:

SEC. 101. FOR THE PURPOSES OF THIS ACT AND THE AMENDMENTS MADE BY THIS ACT---

(1) "UNIFORMED SERVICES," * * * "OFFICER," * * * HAVE THE DEFINITIONS GIVEN THEM BY SECTION 101 OF TITLE 37, UNITED STATES CODE;

(3) "CIVILIAN OFFICE" MEANS A CIVILIAN OFFICE OR POSITION (INCLUDING A TEMPORARY, PART-TIME, OR INTERMITTENT POSITION), APPOINTIVE OR ELECTIVE, IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCH OF THE GOVERNMENT OF THE UNITED STATES (INCLUDING EACH CORPORATION OWNED OR CONTROLLED BY SUCH GOVERNMENT AND INCLUDING NONAPPROPRIATED FUND INSTRUMENTALITIES UNDER THE JURISDICTION OF THE ARMED FORCES) OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA. SECTION 201 (A) OF THE ACT IN PERTINENT PART PROVIDES:

* * * 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. IN THE OPERATION OF THE FORMULA FOR REDUCTION OF SUCH PAY UNDER THIS SUBSECTION, SUCH AMOUNT OF $2,000 SHALL BE INCREASED, FROM TIME TO TIME, BY APPROPRIATE PERCENTAGE, IN DIRECT PROPORTION TO EACH INCREASE IN SUCH PAY EFFECTED PURSUANT TO THE PROVISIONS OF SECTION 1401A (B) OF TITLE 10, U.S.C. TO REFLECT CHANGES IN THE CONSUMER PRICE INDEX.

SECTION 201 (F), 5 U.S.C. 3102 (F), PROVIDES:

NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES WHO WAS EMPLOYED IN A CIVILIAN OFFICE ON THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS SUBSECTION---

(1) IF, ON SUCH IMMEDIATELY PRECEDING DAY, HE WAS EXEMPT FROM LIMITATIONS ON COMPENSATION, MAY ELECT (A) TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH EXEMPTION OR (B) TO BE SUBJECT TO APPLICABLE LIMITATIONS ON COMPENSATION, MAY ELECT (A) TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH LIMITATIONS, OR (B) TO BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS OF SUBSECTIONS (A), (B), (C), AND (E) OF THIS SECTION; OR

(2) IF, ON SUCH IMMEDIATELY PRECEDING DAY, HE WAS SUBJECT TO LIMITATIONS ON COMPENSATION, MAY ELECT (A) TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH LIMITATIONS, OR (B) TO BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS OF SUBSECTIONS (A), (B), (C), AND (E) OF THIS SECTION.

SUCH ELECTION IS IRREVOCABLE AND SHALL BE FILED WITH THE DEPARTMENT CONCERNED NOT LATER THAN THE NINETIETH DAY AFTER THE EFFECTIVE DATE OF THIS SUBSECTION. ANY SUCH RETIRED OFFICER WHO DOES NOT FILE SUCH ELECTION WITHIN THE PRESCRIBED PERIOD SHALL BE HELD AND CONSIDERED TO HAVE ELECTED TO REMAIN IN THE STATUS WHICH HE OCCUPIES, ON SUCH IMMEDIATELY PRECEDING DAY, WITH RESPECT TO LIMITATIONS ON COMPENSATION, OR EXEMPTIONS THEREFROM, AS THE CASE MAY BE. IN THE EVENT OF ANY APPOINTMENT, REINSTATEMENT, OR REEMPLOYMENT OF SUCH RETIRED OFFICER WHICH IS MADE AFTER SUCH EFFECTIVE DATE AND FOLLOWS A BREAK IN SERVICE OF MORE THAN THIRTY DAYS, SUCH RETIRED OFFICER SHALL BE SUBJECT TO APPLICABLE LIMITATIONS AND EXEMPTIONS OF SUBSECTIONS (A), (B), (C), AND (E) OF THIS SECTION.

UNDER THE STATUTORY PROVISIONS THAT WERE IN FORCE ON NOVEMBER 30, 1964, MR. LOWE'S INTERMITTENT CIVILIAN FEDERAL EMPLOYMENT DID NOT CONTRAVENE THE DUAL EMPLOYMENT PROVISIONS OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, REPEALED EFFECTIVE DECEMBER 1, 1964, BY SECTION 402 (A) (7) OF PUBLIC LAW 88-448, 78 STAT. 492. SEE 36 COMP. GEN. 655. ALSO, ON NOVEMBER 30, 1964, HE WAS NOT SUBJECT (AS A RETIRED COMMISSIONED WARRANT OFFICER OF THE REGULAR COAST GUARD) TO THE COMPENSATION LIMITATIONS PRESCRIBED IN SECTION 212 OF THE 1932 ECONOMY ACT, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, WHICH WAS REPEALED EFFECTIVE DECEMBER 1, 1964, BY SECTION 402 (A) (20) OF PUBLIC LAW 88-448, 78 STAT. 494. SEE 37 COMP. GEN. 591, RELATING TO THE TATO AND ATKINS DECISIONS, 136 CT.CL. 651 (1956), AND 141 CT.CL. 88 (1958), RESPECTIVELY.

IT IS STATED THAT ON JANUARY 13, 1965, MR. LOWE ELECTED UNDER THE AUTHORITY OF SECTION 201 (F) OF THE DUAL COMPENSATION ACT TO "REMAIN SUBJECT TO MY PRESENT EXEMPTION OR PRESENT LIMITATION OF $10,000 A YEAR FOR COMBINED SALARY OF CIVILIAN OFFICE PLUS RETIRED PAY.' SINCE HE WAS EXEMPT ON NOVEMBER 30, 1964, FROM THE DUAL COMPENSATION LIMITATIONS PRESCRIBED IN 5 U.S.C. 59A BY REASON OF HIS RETIRED COMMISSIONED WARRANT OFFICER STATUS HIS ELECTION TO REMAIN SUBJECT TO AND CONTINUE UNDER SUCH EXEMPTION UNDER AUTHORITY OF CLAUSE (1) OF SECTION 201 (F) PROPERLY WAS EFFECTIVE FROM DECEMBER 1, 1964. THE RECORD INDICATES THAT IN ACCORDANCE WITH SUCH ELECTION HIS RETIRED PAY ACCOUNT WAS CONTINUED UNDER THE EXEMPTION MENTIONED THROUGH NOVEMBER 30, 1965. HOWEVER, THE VOUCHER SUBMITTED COVERING HIS RETIRED PAY FOR THE MONTH OF DECEMBER 1965 RAISES THE ISSUE WHETHER THE CHANGE IN HIS CIVILIAN FEDERAL EMPLOYMENT FROM AN INTERMITTENT BASIS IN THE POST OFFICE DEPARTMENT TO A FULL-TIME JOB IN THE DEPARTMENT OF AGRICULTURE HAS AFFECTED HIS SECTION 201 (F) ELECTION.

WHILE MR. LOWE'S INTERMITTENT CIVILIAN FEDERAL EMPLOYMENT STATUS SERVED TO EXEMPT HIM PRIOR TO DECEMBER 1, 1964, FROM THE DUAL EMPLOYMENT RESTRICTIONS CONTAINED IN THE REPEALED PROVISIONS OF 5 U.S.C. 62, SUCH AN INTERMITTENT EMPLOYMENT STATUS DOES NOT FURNISH ANY HAVEN TO HIM FROM THE DUAL COMPENSATION RESTRICTIONS CONTAINED IN THE 1964 ACT SINCE THE DEFINITION OF "CIVILIAN OFFICE" IN SECTION 101 (3) OF THAT ACT, 5 U.S.C. 3101 (3), INCLUDES AN "INTERMITTENT POSITION.'

HIS EXEMPTION ON NOVEMBER 30, 1964, FROM THE DUAL COMPENSATION LIMITATIONS IMPOSED BY THE PROVISIONS OF LAW FORMERLY CONTAINED IN 5 U.S.C. 59A RESTED ENTIRELY ON HIS RETIRED COMMISSIONED WARRANT OFFICER STATUS. HIS STATUS AS A RETIRED COMMISSIONED WARRANT OFFICER OF THE REGULAR COAST GUARD WAS JUST THE SAME ON DECEMBER 1, 1964, WHEN PUBLIC LAW 88-448 BECAME EFFECTIVE AS IT HAD BEEN ON THE PREVIOUS DAY. SIMILARLY, HIS RETIRED COMMISSIONED WARRANT OFFICER STATUS REMAINED UNCHANGED WHEN HE BEGAN FULL-TIME CIVILIAN FEDERAL EMPLOYMENT ON APRIL 4, 1965, IN THE DEPARTMENT OF AGRICULTURE. INASMUCH AS THERE HAS BEEN NO BREAK IN SERVICE WHICH WOULD INVOKE THE PROVISIONS OF THE LAST SENTENCE IN SECTION 201 (F), MR. LOWE HAS NOT LOST THE EXEMPT STATUS HE GAINED THROUGH HIS ELECTION UNDER THAT SECTION AND CONSEQUENTLY HE CONTINUES FREE OF THE DUAL COMPENSATION RESTRICTIONS IMPOSED IN SECTION 201 (A) OF THE 1964 LAW. COMPARE OUR DECISION OF OCTOBER 25, 1965, 45 COMP. GEN. 194, IN WHICH WE CONSIDERED THE CASE OF AN OFFICER WHOSE ELECTION UNDER SECTION 201 (F) RELATED ONLY TO HIS EMPLOYMENT IN A NONAPPROPRIATED FUND ACTIVITY AND WE HELD THAT SUCH ELECTION WAS INEFFECTIVE ON THE DATE HIS STATUS CHANGED TO AN EMPLOYEE IN AN APPROPRIATED FUND ACTIVITY.

THE VOUCHER RECEIVED WITH YOUR LETTER SHOWING $246.02 AS GROSS RETIRED PAY FOR THE MONTH OF DECEMBER 1965 APPEARS TO BE INCORRECTLY COMPUTED. STATED IN LETTER OF MARCH 15, 1966, FROM THE CHIEF, PAYMENTS AND CLAIMS DIVISION, UNITED STATES COAST GUARD, ADDRESSED TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE, MR. LOWE WAS ENTITLED AS A RETIRED COMMISSIONED WARRANT OFFICE OF THE REGULAR COAST GUARD TO RECEIVE RETIRED PAY IN THE AMOUNT OF $253 PER MONTH EFFECTIVE SEPTEMBER 1, 1961; $265.65 PER MONTH EFFECTIVE OCTOBER 1, 1963, AND $277.34 PER MONTH EFFECTIVE FROM SEPTEMBER 1, 1965. THE VETERANS ADMINISTRATION HAS ADVISED THIS OFFICE THAT MR. LOWE'S VETERAN'S COMPENSATION WAS INCREASED FROM $30 TO $32 A MONTH EFFECTIVE DECEMBER 1, 1965, UNDER THE PROVISIONS OF PUBLIC LAW 89- 311, OCTOBER 31, 1965, 79 STAT. 1154-1157, 38 U.S.C. 314. IT IS ASSUMED THAT AN APPROPRIATE WAIVER OF THAT AMOUNT OF RETIRED PAY HAS BEEN FILED UNDER 38 U.S.C. 3105. HENCE, THE GROSS AMOUNT SHOWN ON THE VOUCHER, WHICH IS RETURNED HEREWITH FOR PAYMENT IF OTHERWISE CORRECT, SHOULD BE CORRECTED TO $245.34 ($277.34 LESS VETERAN'S COMPENSATION AT $32 A MONTH) AND THE NET AMOUNT DUE ON THE VOUCHER CHANGED ACCORDINGLY.