B-36749, SEPTEMBER 9, 1943, 23 COMP. GEN. 180

B-36749: Sep 9, 1943

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WHICH IS AUTHORIZED TO BE MADE UNDER THE ACT OF MAY 7. 1943: I HAVE YOUR LETTER OF AUGUST 30. AS FOLLOWS: REFERENCE IS MADE TO PUBLIC LAW 50 APPROVED MAY 7. IN SOME INSTANCES EMPLOYEES OF THE DEPARTMENT SUBJECT TO SERVICE IN THE ARMY BUT NOT ON ACTIVE DUTY THEREIN HAVE RECEIVED TRAINING UNDER THE ABOVE-MENTIONED AUTHORIZATION AND RECEIVED THE COMPENSATION AUTHORIZED. THE PAY AT THE RATE OF $50 PER MONTH IS AUTHORIZED FROM AND AFTER DECEMBER 15. A PERSON IN TRAINING AS A PILOT UNDER THE CIVIL AERONAUTICS ADMINISTRATION WAR TRAINING SERVICE WAS EMPLOYED BY THE FOREST SERVICE FROM MAY 4 TO 8 AT A RATE OF $150 PER MONTH DURING AN "AWAITING ASSIGNMENT" PERIOD. IS PROHIBITED BY ACT OF MAY 10.

B-36749, SEPTEMBER 9, 1943, 23 COMP. GEN. 180

COMPENSATION - DOUBLE - STATUS OF PAYMENTS TO PERSONS UNDERGOING TRAINING UNDER CIVIL AERONAUTICS ADMINISTRATION WAR TRAINING SERVICE THE PAYMENT OF $50 PER MONTH, WHICH IS AUTHORIZED TO BE MADE UNDER THE ACT OF MAY 7, 1943, TO PERSONS SUBJECT TO SERVICE IN THE ARMY OF THE UNITED STATES BUT NOT ON ACTIVE DUTY WHILE UNDERGOING TRAINING UNDER SUPERVISION OF THE CIVIL AERONAUTICS ADMINISTRATION WAR TRAINING SERVICE AND WHILE AWAITING ASSIGNMENT BETWEEN COURSES, CONSTITUTES "SALARY" PAID FROM "MONEY APPROPRIATED," WITHIN THE MEANING DUAL COMPENSATION STATUTES OF 1916, PROHIBITING, UNDER CERTAIN CONDITIONS, THE PAYMENT FROM APPROPRIATED FUNDS OF MORE THAN ONE SALARY TO A PERSON.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 9, 1943:

I HAVE YOUR LETTER OF AUGUST 30, 1943, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 50 APPROVED MAY 7, 1943, WHICH, UNDER DEPARTMENT OF COMMERCE, APPROPRIATES $3,500,000 FOR PAY AT A RATE OF $50 PER MONTH TO PERSONS SUBJECT TO SERVICE IN THE ARMY OF THE UNITED STATES BUT NOT ON ACTIVE DUTY THEREIN WHILE UNDERGOING TRAINING UNDER THE SUPERVISION OF THE CIVIL AERONAUTICS ADMINISTRATION WAR TRAINING SERVICE AND DURING ONE OR MORE PERIODS WHILE AWAITING ASSIGNMENT BETWEEN COURSES (NOT EXCEEDING TWO MONTHS BETWEEN ANY TWO COURSES). IN SOME INSTANCES EMPLOYEES OF THE DEPARTMENT SUBJECT TO SERVICE IN THE ARMY BUT NOT ON ACTIVE DUTY THEREIN HAVE RECEIVED TRAINING UNDER THE ABOVE-MENTIONED AUTHORIZATION AND RECEIVED THE COMPENSATION AUTHORIZED. WHILE THE ACT AS APPROVED MAY 7, THE PAY AT THE RATE OF $50 PER MONTH IS AUTHORIZED FROM AND AFTER DECEMBER 15, 1942. IN ONE INSTANCE, A PERSON IN TRAINING AS A PILOT UNDER THE CIVIL AERONAUTICS ADMINISTRATION WAR TRAINING SERVICE WAS EMPLOYED BY THE FOREST SERVICE FROM MAY 4 TO 8 AT A RATE OF $150 PER MONTH DURING AN "AWAITING ASSIGNMENT" PERIOD. QUESTION ARISES WHETHER EMPLOYMENT AT THIS RATE, OR ANY RATE WHICH WITH THE $50 COMPENSATION UNDER THE ABOVE MENTIONED APPROPRIATION AMOUNTS TO MORE THAN $2,000 PER ANNUM, IS PROHIBITED BY ACT OF MAY 10, 1916 (39 STAT. 582; 5 U.S.C. 58).

IF SUCH EMPLOYMENT IS CONTRARY TO THE DUAL COMPENSATION STATUTE, IT IS ASSUMED THAT REPAYMENT, IF PAYMENT HAS BEEN MADE, OR NONPAYMENT, WOULD APPLY TO THE $50 PER MONTH WAGE, THAT BEING THE LESSER RATE. HOWEVER, TO AVOID ANY MISUNDERSTANDING AS TO THE EFFECT THAT EMPLOYMENT IN THIS DEPARTMENT MAY HAVE UPON THE TOTAL INCOME OF AN EMPLOYEE WHO IS RECEIVING $50 A MONTH UNDER THE ABOVE-MENTIONED APPROPRIATION I SHOULD APPRECIATE YOUR DECISION WHETHER THE $50 PAYMENT IS SUBJECT TO THE DUAL COMPENSATION ACT.

THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * *.

THE TERM "SALARY" HAS BEEN DEFINED AS A "FIXED ANNUAL OR PERIODICAL PAYMENT FOR SERVICES, DEPENDING UPON THE TIME AND NOT UPON THE AMOUNT OF SERVICES RENDERED.' BENEDICT V. UNITED STATES, 176 U.S. 357. THAT DEFINITION HAS BEEN APPLIED CONSISTENTLY IN THE DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT. SEE 18 COMP. GEN. 768, AND THE DECISIONS THEREIN CITED.

THE APPROPRIATION ITEM IN THE ACT OF MAY 5, 1943, PUBLIC LAW 50, TO WHICH YOU REFER, PROVIDES:

WAR TRAINING SERVICE: PAY AT A RATE OF $50 PER MONTH FROM AND AFTER DECEMBER 15, 1942, TO PERSONS SUBJECT TO SERVICE IN THE ARMY OF THE UNITED STATES BUT NOT ON ACTIVE DUTY THEREIN, WHILE UNDERGOING TRAINING UNDER SUPERVISION OF THE CIVIL AERONAUTICS ADMINISTRATION WAR TRAINING SERVICE AND DURING ONE OR MORE PERIODS WHILE AWAITING ASSIGNMENT BETWEEN COURSES (NOT EXCEEDING TWO MONTHS BETWEEN ANY TWO COURSES), FISCAL YEAR 1943, $3,500,000.

THERE IS FOR NOTING THAT THE APPROPRIATION ITEM FIXES PAY ON A MONTHLY BASIS, THAT IS, AT THE RATE OF $50 PER MONTH. BOTH TRAINING AND AVAILABILITY FOR TRAINING FOR WHICH THE $50 PER MONTH IS PAID PROPERLY ARE REGARDED AS "SERVICE" WITHIN THE MEANING OF THE DEFINITION. IN OTHER WORDS, THE PAYMENT OF $50 PER MONTH IS NOT A PENSION OR GRATUITY, BUT CONSTITUTES, RATHER, A REMUNERATION IN RETURN FOR SPENDING THE TIME IN TRAINING OR AWAITING TRAINING, PROPERLY REGARDED AS "SERVICE.' ACCORDINGLY, IT IS CONCLUDED THAT THE PAYMENT OF $50 PER MONTH AUTHORIZED BY THE QUOTED APPROPRIATION ITEM APPEARING IN THE ACT OF MAY 7, 1943, IS "SALARY" PAID FROM "MONEY APPROPRIATED" WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF 1916, AND IS THUS SUBJECT TO THE PROHIBITION THEREIN CONTAINED. COMPARE SECTION 1 OF THE ACT OF JUNE 23, 1943, PUBLIC LAW 87, 57 STAT. 162, RELATING TO CIVILIAN EMPLOYEES OF THE GOVERNMENT ENTERING THE MERCHANT MARINE FOR TRAINING OR SERVICE.