B-24989, JUNE 25, 1942, 21 COMP. GEN. 1129

B-24989: Jun 25, 1942

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500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. HIS RETIRED PAY IS COMPENSATION ATTACHED TO AN OFFICE. 500 PER ANNUM IS VOID AB INITIO. PAYMENT OF THE SALARY OF SUCH POSITION FROM THE DATE OF APPOINTMENT IS ILLEGAL. 500 PER ANNUM IS NOT PROHIBITED BY THE ACT OF JULY 31. IT IS REQUIRED THAT THE CIVILIAN COMPENSATION BE PAID IN FULL AND THAT THE DEDUCTIONS NECESSARY TO BRING THE COMBINED RATE WITHIN THE LIMITATION BE MADE FROM THE RETIRED PAY. 1942: I HAVE YOUR LETTER OF JUNE 10. IS ENTITLED TO RETIRED PAY AT THE PRESENT TIME AT THE RATE OF $57.50 PER MONTH. GREGORY WAS NOT RETIRED FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITIES INCURRED IN LINE OF DUTY.'.

B-24989, JUNE 25, 1942, 21 COMP. GEN. 1129

COMPENSATION - DOUBLE - RETIRED ARMY OFFICER IN CIVILIAN POSITION A RETIRED ARMY OFFICER, NOT FALLING WITHIN ONE OF THE EXCEPTIONS IN THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING PERSONS WHOSE ANNUAL COMPENSATION IN ONE OFFICE AMOUNTS TO $2,500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED, HOLDS AN OFFICE, AND HIS RETIRED PAY IS COMPENSATION ATTACHED TO AN OFFICE, WITHIN THE MEANING OF THE ACT, SO THAT HIS APPOINTMENT TO A REGULAR FULL TIME GOVERNMENT CIVILIAN POSITION AT A SALARY EXCEEDING $2,500 PER ANNUM IS VOID AB INITIO, AND PAYMENT OF THE SALARY OF SUCH POSITION FROM THE DATE OF APPOINTMENT IS ILLEGAL, IRRESPECTIVE OF WHETHER HE REFUNDS HIS RETIRED PAY. WHILE A RETIRED ARMY OFFICER WHO RECEIVES RETIRED PAY OF LESS THAN $2,500 PER ANNUM IS NOT PROHIBITED BY THE ACT OF JULY 31, 1894, AS AMENDED, FROM RECEIVING LESS THAN $2,500 PER ANNUM IN A GOVERNMENT CIVILIAN POSITION, UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY MAY NOT EXCEED $3,000 PER ANNUM, AND, IN THE EVENT THE COMBINED RATE EXCEEDS SUCH LIMITATION, IT IS REQUIRED THAT THE CIVILIAN COMPENSATION BE PAID IN FULL AND THAT THE DEDUCTIONS NECESSARY TO BRING THE COMBINED RATE WITHIN THE LIMITATION BE MADE FROM THE RETIRED PAY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JUNE 25, 1942:

I HAVE YOUR LETTER OF JUNE 10, 1942, AS FOLLOWS:

MR. HUGH M. GREGORY HAS RECEIVED AN APPOINTMENT EFFECTIVE AS OF AUGUST 25, 1941, AS ASSOCIATE FIELD REPRESENTATIVE ( SOCIAL PROTECTION) P-3 (180) $3,200 P.A. OFFICE OF THE ADMINISTRATOR, OFFICE OF DEFENSE COORDINATION, SOCIAL PROTECTION, UNDER THE FEDERAL SECURITY ADMINISTRATOR, FOR A TERM NOT TO EXCEED THE DURATION OF THE EMERGENCY AND SUBJECT TO A CHARACTER INVESTIGATION.

MR. GREGORY SERVED AS A COMMISSIONED OFFICER IN THE UNITED STATES ARMY FROM DECEMBER 1916 TO OCTOBER 1927 AND HAS BEEN RETIRED UNDER SECTION 24B OF THE ACT OF CONGRESS OF JUNE 24, 1920, AND IS ENTITLED TO RETIRED PAY AT THE PRESENT TIME AT THE RATE OF $57.50 PER MONTH, BUT HE HAS MADE A REFUND TO THE GOVERNMENT OF ALL HIS RETIRED PAY SINCE HE HAS BEEN EMPLOYED BY THE FEDERAL SECURITY AGENCY. MR. GREGORY WAS NOT RETIRED FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITIES INCURRED IN LINE OF DUTY.'

ATTENTION IS INVITED TO SECTION 2 OF THE ACT OF CONGRESS OF JULY 31, 1894, 28 STAT. 205 WHICH RECITES IN PART THAT:

"* * * NO PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF $2,500 SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW * * *.'

ATTENTION IS LIKEWISE INVITED TO SECTION 212 OF THE ECONOMY ACT OF JUNE 20, (30) 1932, 47 STAT. 406, WHICH RECITES AS FOLLOWS TO WIT:

"/A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 ( U.S.C., TITLE 37), AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM ,RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

"/B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES (47 STAT. 382, JUNE 30, 1942; 5 U.S.C. 59A).'

IN VIEW OF THE PREMISES YOUR DECISION IS RESPECTFULLY REQUESTED UPON THE FOLLOWING QUESTIONS TO-WIT:

1. IS MR. GREGORY LEGALLY AUTHORIZED TO CONTINUE TO HOLD THE SAID POSITION WITH THE FEDERAL SECURITY AGENCY TO WHICH HE HAS BEEN APPOINTED, PROVIDED HE SHALL CONTINUE TO REFUND HIS SAID RETIRED PAY OF $57.50 PER MONTH?

2. WOULD MR. GREGORY HAVE THE RIGHT TO HOLD ANY POSITION WITH THE FEDERAL SECURITY AGENCY, THE ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF $2,500 OR MORE PROVIDED MR. GREGORY SHALL REFUND TO THE GOVERNMENT AS LONG AS HE HOLDS SUCH A POSITION THE SAID RETIRED PAY OF $57.50 PER MONTH?

3. IN VIEW OF THE PREMISES ABOVE SET FORTH WHAT WOULD BE THE HIGHEST ANNUAL SALARY THAT THE FEDERAL SECURITY AGENCY WOULD BE AUTHORIZED TO PAY MR. GREGORY FOR HIS SERVICES?

4. IN VIEW OF THE PREMISES ABOVE SET FORTH IS THE GOVERNMENT ENTITLED TO ANY REFUND OUT OF THE ANNUAL SALARY OF $3,200 PER ANNUM WHICH THE FEDERAL SECURITY AGENCY HAS BEEN PAYING TO MR. GREGORY, AND IF SO, WHAT AMOUNT OF SAID ANNUAL SALARY THAT HAS BEEN PAID TO MR. GREGORY SHOULD BE REFUNDED TO THE UNITED STATES?

THE FULL TEXT OF THE PROVISION IN SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, QUOTED IN YOUR LETTER, AS AMENDED, HAS BEEN INCORPORATED IN THE U.S.C. AS SECTION 62 OF TITLE 5, AND READS AS FOLLOWS:

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. (AMENDED JULY 30, 1937, C. 545, SEC. 6, 50 STAT. 549; JUNE 25, 1938, C. 694, 52 STAT. 1194.)

IT IS UNDERSTOOD THE CIVILIAN OFFICE OR POSITION OF " ASSOCIATE FIELD REPRESENTATIVE ( SOCIAL PROTECTION) P-3 (180) $3,200 P.A.' TO WHICH MR. GREGORY WAS APPOINTED EFFECTIVE AUGUST 25, 1941, AND WHICH HE NOW HOLDS, IS A REGULAR FULL-TIME POSITION AS DISTINGUISHED FROM PART TIME, TEMPORARY, OR INTERMITTENT EMPLOYMENT.

A RETIRED ARMY OFFICER WHO HAS BEEN RETIRED OTHER THAN FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITIES INCURRED IN LINE OF DUTY" HOLDS AN OFFICE WITHIN THE MEANING OF THE AMENDED 1894 STATUTE, SUPRA. SEE 1 COMP. GEN. 700; 10 ID. 85; 13 ID. 60. AS MR. GREGORY WAS RETIRED BY SELECTION AS A CLASS B OFFICER UNDER THE PROVISIONS OF SECTION 24B OF THE ACT OF JUNE 24, 1920, 41 STAT. 773, HE DOES NOT FALL WITHIN ANY OF THE EXCEPTIONS MENTIONED IN THE STATUTE AND, ACCORDINGLY, HIS RETIRED PAY MUST BE REGARDED AS COMPENSATION ATTACHED TO AN "OFFICE.' AS THE SALARY OF THE REGULAR FULL-TIME CIVILIAN POSITION UNDER THE FEDERAL SECURITY AGENCY TO WHICH HE WAS APPOINTED IS AT A RATE OF COMPENSATION IN EXCESS OF $2,500 PER ANNUM, SUCH APPOINTMENT WAS VOID AB INITIO AND THE ENTIRE PAYMENT OF CIVILIAN COMPENSATION FROM THE DATE OF HIS APPOINTMENT, AUGUST 25, 1941, WAS ILLEGAL. 14 COMP. GEN. 179; 20 ID. 288. THE STATUTORY PROHIBITION IS NOT OVERCOME BY HAVING MR. GREGORY REFUND HIS RETIRED PAY FOR THE PERIOD OF HIS EMPLOYMENT. SEE 14 COMP. GEN. 289 AND CASES THEREIN CITED. ACCORDINGLY, QUESTION 1 MUST BE, AND IS, ANSWERED IN THE NEGATIVE.

QUESTION 2, ALSO, IS ANSWERED IN THE NEGATIVE.

UNDER THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, QUOTED IN YOUR LETTER, WHEN THE RETIRED PAY IS LESS THAN $3,000 PER ANNUM, BUT THE SALARY OF THE CIVILIAN POSITION PLUS THE RETIRED PAY EXCEEDS $3,000 PER ANNUM, IT IS REQUIRED THAT THE FULL SALARY OF THE CIVILIAN POSITION BE PAID AND THAT THE DEDUCTION TO BRING THE COMBINED RATE OF COMPENSATION AND RETIRED PAY WITHIN THE $3,000 LIMITATION FIXED IN THE STATUTE MUST BE MADE FROM THE RETIRED PAY. COMPARE 13 COMP. GEN. 60. IT IS ONLY WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM THAT THE STATUTE GRANTS AN ELECTION TO BE PAID EITHER THE SALARY OF THE CIVILIAN POSITION OR RETIRED PAY. THEREFORE, IN THE INSTANT CASE THE EMPLOYEE COULD BE PAID THE SALARY OF ANY CIVILIAN POSITION FIXED BY OR PURSUANT TO LAW AT A RATE LESS THAN $2,500 PER ANNUM--- THE HIGHEST RATE APPARENTLY BEING $2,400 PER ANNUM--- IN WHICH EVENT RETIRED PAY IN THE AMOUNT OF $600 PER ANNUM ($50 PER MONTH) WOULD BE PAYABLE. IF THE EMPLOYEE DESIRES TO RECEIVE ALL OF HIS RETIRED PAY IN THIS CASE, THEN THE ONLY CIVILIAN POSITION TO WHICH HE MAY BE APPOINTED IS ONE THE SALARY OF WHICH IS FIXED BY OR PURSUANT TO LAW AT A RATE LESS THAN $2,310 PER ANNUM- -- SAID RATE CONSTITUTING THE DIFFERENCE BETWEEN $3,000 PER ANNUM AND $690 PER ANNUM (12 X $57.50 PER MONTH) RETIRED PAY. APPARENTLY, THE HIGHEST SALARY RATE PAYABLE UNDER THESE CIRCUMSTANCES WOULD BE $2,300 PER ANNUM. QUESTION 3 IS ANSWERED ACCORDINGLY.

AS STATED IN ANSWER TO QUESTION 1, THE APPOINTMENT OF MR. GREGORY HAS BEEN ILLEGAL FROM THE BEGINNING AND THERE MUST BE CHARGED AGAINST HIM THE ENTIRE SALARY OF THE POSITION PAID HIM FROM THE DATE OF APPOINTMENT, AUGUST 25, 1941. THERE MAY BE CREDITED TO HIM THE AMOUNT OF RETIRED PAY HE HAS REFUNDED PROVIDED THERE IS AN ADJUSTMENT OF APPROPRIATIONS, WHICH ADJUSTMENT WOULD CONSIST IN CREDITING THE APPROPRIATION OF THE FEDERAL SECURITY ADMINISTRATION FROM WHICH HIS SALARY WAS PAID AND CHARGING THE WAR DEPARTMENT APPROPRIATION TO THE CREDIT OF WHICH IT IS ASSUMED THE REFUND OF RETIRED PAY HAS BEEN DEPOSITED. THIS ANSWERS QUESTION 4.