B-32233, FEBRUARY 12, 1943, 22 COMP. GEN. 795

B-32233: Feb 12, 1943

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1943: I HAVE YOUR LETTER OF FEBRUARY 3. AS FOLLOWS: THE OFFICE OF CENSORSHIP HAS IN ITS EMPLOY CERTAIN RETIRED MILITARY PERSONNEL WHO ARE RECEIVING RETIREMENT PAY IN ADDITION TO THE SALARY ATTACHED TO THE POSITIONS THEY ARE FILLING. IT IS REQUESTED THAT THIS OFFICE BE ADVISED ON THE FOLLOWING POINTS: 1. ARE SUCH EMPLOYEES ENTITLED TO RECEIVE OVERTIME PAY UNDER THE PROVISIONS OF SENATE JOINT RESOLUTION 170. IS IT OBLIGATORY THAT SUCH EMPLOYEES ACCEPT THE OVERTIME COMPENSATION DUE THEM WHERE IT MEANS A SACRIFICE OF A PROPORTIONATE AMOUNT OF THE RETIREMENT PAY TO WHICH THEY HAVE BEEN ENTITLED? THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES. QUESTION ONE IS UNDERSTOOD AS RELATING TO CIVILIAN OFFICERS OR EMPLOYEES HOLDING POSITIONS THE COMPENSATION OF WHICH IS LESS THAN $2.

B-32233, FEBRUARY 12, 1943, 22 COMP. GEN. 795

OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 1942 - RETIRED MILITARY PERSONNEL OCCUPYING CIVILIAN POSITIONS THE LIMITATION OF $3,000 ON THE COMBINED RATE OF RETIRED PAY AND ANNUAL COMPENSATION FROM A CIVILIAN POSITION WHICH RETIRED MILITARY PERSONNEL, OTHERWISE AUTHORIZED, MAY RECEIVE UNDER THE ACT OF JUNE 30, 1932, INCLUDES ONLY THE BASIC COMPENSATION OF A CIVILIAN OFFICE OR POSITION, PLUS RETIRED PAY, AND, THEREFORE, THE OVERTIME COMPENSATION PROVIDED BY THE ACT OF DECEMBER 22, 1942, MAY BE PAID SUCH PERSONNEL, IF OTHERWISE ENTITLED THERETO, EVEN THOUGH SUCH PAYMENT INCREASE THE COMBINED COMPENSATION TO A RATE IN EXCESS OF THE $3,000 LIMITATION.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF CENSORSHIP, FEBRUARY 12, 1943:

I HAVE YOUR LETTER OF FEBRUARY 3, 1943, AS FOLLOWS:

THE OFFICE OF CENSORSHIP HAS IN ITS EMPLOY CERTAIN RETIRED MILITARY PERSONNEL WHO ARE RECEIVING RETIREMENT PAY IN ADDITION TO THE SALARY ATTACHED TO THE POSITIONS THEY ARE FILLING. INASMUCH AS SECTION 212 OF THE ACT OF JUNE 30, 1932 (47 STAT. 406) LIMITS THE AMOUNT OF COMBINED PAY THAT MAY BE RECEIVED BY RETIRED MILITARY PERSONNEL TO $3,000 PER ANNUM, IT IS REQUESTED THAT THIS OFFICE BE ADVISED ON THE FOLLOWING POINTS:

1. ARE SUCH EMPLOYEES ENTITLED TO RECEIVE OVERTIME PAY UNDER THE PROVISIONS OF SENATE JOINT RESOLUTION 170, 77TH CONGRESS, WHERE THE PAYMENT OF SUCH OVERTIME INCREASES THE COMBINED COMPENSATION TO A RATE IN EXCESS OF THE $3,000 LIMITATION?

2. IF THE $3,000 LIMITATION MAY NOT BE EXCEEDED TO THE EXTENT OF OVERTIME COMPENSATION, IS IT OBLIGATORY THAT SUCH EMPLOYEES ACCEPT THE OVERTIME COMPENSATION DUE THEM WHERE IT MEANS A SACRIFICE OF A PROPORTIONATE AMOUNT OF THE RETIREMENT PAY TO WHICH THEY HAVE BEEN ENTITLED?

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, PROVIDES:

SEC. 212. (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. ITALICS SUPPLIED.)

QUESTION ONE IS UNDERSTOOD AS RELATING TO CIVILIAN OFFICERS OR EMPLOYEES HOLDING POSITIONS THE COMPENSATION OF WHICH IS LESS THAN $2,500 PER ANNUM AND WHOSE RETIRED PAY IS LESS THAN $2,500 PER ANNUM, OR WHO OTHERWISE ARE AUTHORIZED UNDER THE LAW TO RECEIVE BOTH THE COMPENSATION OF A CIVILIAN OFFICE OR POSITION AND RETIRED PAY, AND WHO ARE PAID THE TOTAL SALARY OF THEIR CIVILIAN POSITION PLUS RETIRED PAY TO EQUAL THE MAXIMUM COMBINED RATE OF $3,000 PER ANNUM AUTHORIZED BY THE 1932 STATUTE. SEE 21 COMP. GEN. 1129.

THE WORDS "ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION" (ITALICIZED ABOVE) APPEARING IN THE 1932 STATUTE, RELATE TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE OR POSITION. HENCE, THE MAXIMUM COMBINED RATE OF $3,000 PER ANNUM FIXED IN THE STATUTE INCLUDES ONLY THE BASIC COMPENSATION OF A CIVILIAN OFFICE OR POSITION, PLUS RETIRED PAY.

THE INCREASED COMPENSATION ON AN OVERTIME BASIS PROVIDED BY THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, AND THE PRESIDENT'S REGULATIONS THEREUNDER, IS AUTHORIZED TO BE PAID IN ADDITION TO BASIC COMPENSATION. ACCORDINGLY, QUESTION ONE IS ANSWERED IN THE AFFIRMATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION TWO. SEE DECISIONS OF DECEMBER 22, 1942, B-31220, 22 COMP. GEN. 570, TO THE CLERK OF THE HOUSE OF REPRESENTATIVES, JANUARY 8, 1943, B-31488, 22 COMP. GEN. 627, TO THE POSTMASTER GENERAL, QUESTION AND ANSWER SIX, AND DECISION OF FEBRUARY 4, 1943, B-31948, 22 COMP. GEN. 745, TO THE SECRETARY OF THE INTERIOR, QUESTION AND ANSWER ONE. COMPARE 13 COMP. GEN. 21.