B-18115, JULY 16, 1941, 21 COMP. GEN. 38

B-18115: Jul 16, 1941

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WAS NEVER CONSUMMATED BY THE PAYMENT OF SALARY AT THE RATE FOR THE NEW POSITION. THE EMPLOYEE WAS CONTINUED AT THE RATE FOR HIS OLD POSITION. 1941: I HAVE YOUR LETTER OF JUNE 20. WAS PROMOTED TO JUNIOR ADMINISTRATIVE ASSISTANT (CAF-7) AT $2. YOUNG IS A RETIRED WARRANT OFFICER WHO WAS RETIRED ON HIS OWN APPLICATION FOR THIRTY YEARS OF SERVICE. 1894 (28 STAT. 205) AND IS PROHIBITED FROM HOLDING A CIVILIAN POSITION UNDER THE GOVERNMENT WHERE THE SALARY AMOUNTS TO $2. HIS RETIRED PAY WAS SUSPENDED. YOUNG WAS NEVER PAID AT THE RATE OF $2. THE DATE ON WHICH HE WAS CALLED TO ACTIVE DUTY AS A CAPTAIN IN THE RESERVE CORPS. THIS WILL PERMIT MR. HE WILL THEREFORE SUFFER NO LOSS OF PAY. DECISION IS REQUESTED AS TO WHETHER OR NOT THE PROMOTION FROM SENIOR CLERK (CAF-5) AT $2.

B-18115, JULY 16, 1941, 21 COMP. GEN. 38

COMPENSATION - PROMOTIONS - CANCELLATION WHERE THE APPOINTMENT AND PROMOTION OF A RETIRED ARMY WARRANT OFFICER TO A CIVILIAN POSITION IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF JULY 31, 1894, AS AMENDED, WAS NEVER CONSUMMATED BY THE PAYMENT OF SALARY AT THE RATE FOR THE NEW POSITION, BUT RATHER, THE EMPLOYEE WAS CONTINUED AT THE RATE FOR HIS OLD POSITION, THE PROMOTION MAY BE CANCELLED AND HE MAY THEN BE PAID HIS RETIRED PAY FOR THE PERIOD HE HELD THE NEW POSITION, IN ADDITION TO THE CIVILIAN COMPENSATION ALREADY RECEIVED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JULY 16, 1941:

I HAVE YOUR LETTER OF JUNE 20, 1941, AS FOLLOWS:

ON OCTOBER 25, 1940, JAMES E. YOUNG, SENIOR CLERK (CAF-5) AT $2,000 PER ANNUM IN THE QUARTERMASTER CORPS OF THE ARMY, FORT SHAFTER, T.H., WAS PROMOTED TO JUNIOR ADMINISTRATIVE ASSISTANT (CAF-7) AT $2,600 PER ANNUM.

MR. YOUNG IS A RETIRED WARRANT OFFICER WHO WAS RETIRED ON HIS OWN APPLICATION FOR THIRTY YEARS OF SERVICE; HIS RETIRED PAY AMOUNTS TO $1,665 PER ANNUM. IT APPEARS, THEREFORE, THAT HE HOLDS AN OFFICE WITHIN THE MEANING OF THE ACT OF JULY 31, 1894 (28 STAT. 205) AND IS PROHIBITED FROM HOLDING A CIVILIAN POSITION UNDER THE GOVERNMENT WHERE THE SALARY AMOUNTS TO $2,500 OR MORE.

BECAUSE OF THE ADMINISTRATIVE ERROR MADE IN RECOMMENDING THE RECLASSIFICATION FROM SENIOR CLERK (CAF-5) AT $2,000 PER ANNUM TO JUNIOR ADMINISTRATIVE ASSISTANT (CAF-7) AT $2,600 PER ANNUM, HIS RETIRED PAY WAS SUSPENDED. THE DEPARTMENT HAS BEEN ADVISED PER RADIO ATTACHED OF SEPTEMBER 5, 1940, THAT MR. YOUNG WAS NEVER PAID AT THE RATE OF $2,600 PER ANNUM FROM OCTOBER 25, 1940, TO APRIL 10, 1941, THE DATE ON WHICH HE WAS CALLED TO ACTIVE DUTY AS A CAPTAIN IN THE RESERVE CORPS. THE QUARTERMASTER GENERAL HAS RECOMMENDED THAT THE PROMOTION BE CANCELED AND THAT HIS DESIGNATION FOR THE PERIOD FROM OCTOBER 25, 1940, TO APRIL 10, 1941, REMAIN SENIOR CLERK (CAF-5) AT $2,000 PER ANNUM. THIS WILL PERMIT MR. YOUNG TO RECEIVE HIS RETIRED PAY FOR THE PERIOD, AND HE WILL THEREFORE SUFFER NO LOSS OF PAY.

DECISION IS REQUESTED AS TO WHETHER OR NOT THE PROMOTION FROM SENIOR CLERK (CAF-5) AT $2,000 PER ANNUM TO JUNIOR ADMINISTRATIVE ASSISTANT (CAF- 7) AT $2,600 PER ANNUM MAY BE CANCELED IN ORDER THAT MR. YOUNGMAY RECEIVE HIS SALARY OF $2,000 PER ANNUM AS A CIVILIAN EMPLOYEE AND THE AMOUNT OF $1,665 PER ANNUM FOR HIS RETIRED PAY AS A WARRANT OFFICER.

THERE IS ATTACHED FOR YOUR INFORMATION COPY OF THE RADIOGRAM ADVISING THE DEPARTMENT THAT MR. YOUNG HAS NOT BEEN PAID AT THE RATE OF $2,600, AND A COPY OF THE PAYROLL INDICATING THAT HE HAS BEEN PAID AT THE RATE OF $2,000 PER ANNUM FOR THE PERIOD INVOLVED.

SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, PROVIDES AS FOLLOWS:

62. HOLDING OTHER LUCRATIVE OFFICE.--- NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT. JULY 31, 1894, CH. 174, SEC. 2, 28 STAT. 205; MAY 31, 1924, CH. 214, 43 STAT. 245; JULY 30, 1937, CH. 545, SEC. 6, 50 STAT. 549, AND JUNE 25, 1938, CH. 694, SEC. 1, 52 STAT. 1194.)

AS JAMES E. YOUNG WAS RETIRED AS A WARRANT OFFICER OF THE ARMY ON ACCOUNT OF AGE, HIS APPOINTMENT AND PROMOTION TO A CIVILIAN POSITION WITH SALARY OF $2,600 PER ANNUM EFFECTIVE OCTOBER 25, 1940, WOULD HAVE BEEN, AS YOU STATE, IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF JULY 31, 1894, AS AMENDED, SUPRA--- THERE BEING FOR NOTING THAT THE EXCEPTION THEREIN SPECIFIED APPLIES TO OFFICERS ONLY WHEN RETIRED FOR DISABILITY.

THE DUAL PAYMENT AT THE RATE OF $2,000 PER ANNUM IN HIS CIVILIAN POSITION AND AT THE RATE OF $1,665 PER ANNUM RETIRED PAY WAS NOT IN CONTRAVENTION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582; NOR WAS IT IN CONTRAVENTION OF SECTION 212 OF THE ECONOMY ACT APPROVED JUNE 30, 1932, 47 STAT. 406, IF, AS APPEARS, HE WAS NOT RETIRED ON ACCOUNT OF COMMISSIONED SERVICE. SEE 16 COMP. GEN. 232.

IF, AS REPORTED, THE APPOINTMENT AND PROMOTION TO $2,600 PER ANNUM WAS NEVER CONSUMMATED BY THE PAYMENT OF SALARY AT THAT RATE, BUT RATHER, THE EMPLOYEE WAS CONTINUED AT THE RATE OF $2,000 PER ANNUM IN HIS CIVILIAN POSITION, THERE WOULD BE NO LEGAL OBJECTION TO A CORRECTION OF THE RECORD TO SHOW CANCELLATION OF THE PROMOTION TO $2,600 PER ANNUM; IN WHICH EVENT THE PAYMENT OF HIS RETIRED PAY FOR THE PERIOD HERE IN QUESTION WOULD BE AUTHORIZED, PROVIDED, OF COURSE, THAT HIS RETIRED PAY IS NOT COMPUTED UPON ANY PERIOD OF COMMISSIONED SERVICE.