B-27926, SEPTEMBER 2, 1942, 22 COMP. GEN. 174

B-27926: Sep 2, 1942

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SUBSISTENCE - PER DIEMS - RETIRED ARMY OFFICER SERVING WITHOUT COMPENSATION IN AN ADVISORY CAPACITY THE RETIRED PAY OF A RETIRED ARMY OFFICER IS "COMPENSATION" WITHIN THE MEANING OF A STATUTORY PROVISION AUTHORIZING THE PAYMENT OF NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE TO PERSONS EMPLOYED IN AN ADVISORY CAPACITY "WITHOUT OTHER COMPENSATION FROM THE UNITED STATES. WHO IS RECEIVING RETIRED PAY. 1942: I HAVE YOUR LETTER OF AUGUST 5. INCLUDING EXPENSES OF ATTENDANCE AT MEETINGS OF ORGANIZATIONS CONCERNED WITH THE WORK OF THE AGENCY FROM WHOSE APPROPRIATION SUCH EXPENSES ARE PAID. WHICH ORGANIZATION IS PAID FOR OUT OF THE APPROPRIATION MENTIONED ABOVE. THIS OFFICER WAS RETIRED UNDER SECTION 24B OF THE ACT OF JUNE 24.

B-27926, SEPTEMBER 2, 1942, 22 COMP. GEN. 174

SUBSISTENCE - PER DIEMS - RETIRED ARMY OFFICER SERVING WITHOUT COMPENSATION IN AN ADVISORY CAPACITY THE RETIRED PAY OF A RETIRED ARMY OFFICER IS "COMPENSATION" WITHIN THE MEANING OF A STATUTORY PROVISION AUTHORIZING THE PAYMENT OF NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE TO PERSONS EMPLOYED IN AN ADVISORY CAPACITY "WITHOUT OTHER COMPENSATION FROM THE UNITED STATES," SO THAT THE PER DIEM ALLOWANCE MAY NOT BE PAID TO A RETIRED ARMY OFFICER SERVING WITHOUT COMPENSATION IN THE ADVISORY CAPACITY IN WHICH EMPLOYED, WHO IS RECEIVING RETIRED PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL SECURITY ADMINISTRATOR, SEPTEMBER 2, 1942:

I HAVE YOUR LETTER OF AUGUST 5, 1942, AS FOLLOWS:

THE ACT OF JULY 25, 1942 ( PUBLIC LAW 678--- 77TH CONGRESS), MAKING SUPPLEMENTAL APPROPRIATIONS FOR THE NATIONAL DEFENSE FOR THE FISCAL YEAR ENDING JUNE 30, 1943, AND FOR OTHER PURPOSES, CONTAINS, UNDER OFFICE FOR EMERGENCY MANAGEMENT (PARAGRAPH 1), THE FOLLOWING LANGUAGE: "* * * AND TRAVELING EXPENSES, INCLUDING EXPENSES OF ATTENDANCE AT MEETINGS OF ORGANIZATIONS CONCERNED WITH THE WORK OF THE AGENCY FROM WHOSE APPROPRIATION SUCH EXPENSES ARE PAID, AND ACTUAL TRANSPORTATION AND OTHER NECESSARY EXPENSES, AND NOT TO EXCEED $10 (UNLESS OTHERWISE SPECIFIED) PER DIEM IN LIEU OF SUBSISTENCE, OF PERSONS SERVING WHILE AWAY FROM THEIR PERMANENT HOMES OR REGULAR PLACES OF BUSINESS IN AN ADVISORY CAPACITY TO OR EMPLOYED BY ANY OF SUCH AGENCIES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, * * *.'

AS DIRECTOR OF DEFENSE HEALTH AND WELFARE SERVICES, WHICH ORGANIZATION IS PAID FOR OUT OF THE APPROPRIATION MENTIONED ABOVE, I DESIRE TO EMPLOY, UNDER THIS PROVISION, AS CONSULTANT, A RETIRED OFFICER OF THE ARMY. THIS OFFICER WAS RETIRED UNDER SECTION 24B OF THE ACT OF JUNE 24, 1920 (41 STAT. 773). WILL YOU PLEASE ADVISE ME WHETHER HIS RETIRED PAY WOULD BE REGARDED AS "OTHER COMPENSATION FROM THE UNITED STATES" WITHIN THE MEANING OF THE PROVISION OF LAW QUOTED ABOVE?

IN ORDER THAT A PERSON MAY BE ELIGIBLE TO RECEIVE PAYMENT OF A $10 PER DIEM IN LIEU OF SUBSISTENCE UNDER THE APPROPRIATION INVOLVED, 56 STAT. 707, HE MUST, AMONG OTHER THINGS, BE SERVING "WITHOUT OTHER COMPENSATION FROM THE UNITED STATES.' THE WORDS QUOTED FROM THE STATUTE MAY NOT BE CONSTRUED OTHERWISE THAN IN ACCORDANCE WITH THEIR USUAL MEANING. THE STATUTE DOES NOT LIMIT THAT CONDITION TO A PERSON WHO SERVES WITHOUT OTHER COMPENSATION FROM THE UNITED STATES IN THE PARTICULAR ADVISORY CAPACITY IN WHICH HE IS EMPLOYED, BUT EXTENDS IT TO INCLUDE ANY PERSON WHO RECEIVES ANY COMPENSATION FROM THE UNITED STATES IN ANY CAPACITY, EXCEPT THOSE EMPLOYED AT $1 PER ANNUM, AS SPECIFICALLY PROVIDED. THERE DOES NOT APPEAR TO HAVE BEEN ANY PURPOSE OR INTENT TO MAKE ANY EXCEPTION TO THE SETTLED RULE STATED UNDER THE DUAL COMPENSATION STATUTES THAT RETIRED PAY IS COMPENSATION SO AS TO AUTHORIZE PAYMENT OF THE PER DIEM ALLOWANCE OF $10 TO PERSONS WHO ARE RECEIVING RETIRED PAY FROM THE UNITED STATES. FREQUENTLY HAS BEEN HELD THAT RETIRED PAY RECEIVED BY A RETIRED OFFICER OF THE ARMY IS A FORM OF "COMPENSATION" AND NO REASON APPEARS WHY SUCH MEANING SHOULD NOT BE APPLIED TO THE TERM WITHIN THE MEANING OF THE APPROPRIATION ACT HERE INVOLVED. SEE 8 COMP. GEN. 15; 10 ID. 302; 12 ID. 587; 13 ID. 60; 18 ID. 747.

ACCORDINGLY, THE SPECIFIC QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.