B-38691, DECEMBER 16, 1943, 23 COMP. GEN. 445

B-38691, DECEMBER 16, 1943, 23 COMP. GEN. 445

RETIRED ARMY WARRANT OFFICER HOLDING CIVILIAN POSITION - SALARY LIMITATIONS THE RECLASSIFICATION OF A POSITION, WHICH IS FINALLY CONSUMMATED, FROM GRADE CAF-6, $3200 PER ANNUM, TO GRADE CAF-7, $2600 PER ANNUM, MAY NOT BE REGARDED AS VOID MERELY BECAUSE THE INCUMBENT, A RETIRED ARMY WARRANT OFFICER, IS PROHIBITED BY THE DUAL COMPENSATION STATUTE OF JULY 31, 1894, AS AMENDED, FROM RECEIVING SALARY IN A CIVILIAN POSITION AT THE RATE OF $2500 OR MORE PER ANNUM, AND, THEREFORE, THE SAID RETIRED WARRANT OFFICER MAY NOT BE DEEMED TO HAVE CONTINUED IN GRADE CAF-6 AFTER THE RECLASSIFICATION BUT, RATHER, HE IS REQUIRED TO REFUND THE ENTIRE AMOUNT OF SALARY PAID IN GRADE CAF-7, AT THE RATE OF $2600 PER ANNUM. 21 COMP. GEN. 38, DISTINGUISHED. A RETIRED ARMY WARRANT OFFICER WHO HAS BEEN APPOINTED TO A CIVILIAN POSITION AND HAS RECEIVED THE SALARY THEREOF AT A RATE IN EXCESS OF $2500 PER ANNUM, IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTE OF JULY 31, 1894, AS AMENDED, MAY NOT ELECT TO RETAIN THE SALARY OF THE CIVILIAN POSITION AND REFUND HIS RETIRED PAY FOR THE PERIOD INVOLVED, BUT, RATHER, THE CIVILIAN SALARY PAID MUST BE REFUNDED. THE WORDS "SALARY OR ANNUAL COMPENSATION" AS USED IN THE DUAL COMPENSATION STATUTE OF JULY 31, 1894, AS AMENDED, WHICH PROVIDES THAT "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 * * *," REFER TO BASIC COMPENSATION OF $2500 PER ANNUM, WHICH IS EXCLUSIVE OF OVERTIME COMPENSATION AUTHORIZED TO BE PAID UNDER THE WAR OVERTIME PAY ACT OF 1943.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, DECEMBER 16, 1943:

I HAVE YOUR LETTER OF NOVEMBER 29, 1943, AS FOLLOWS:

IT HAS COME TO MY ATTENTION THAT ON NOVEMBER 1, 1942, JOSEPH R. TUDOR WAS APPOINTED TO A CIVILIAN POSITION IN THE FIELD SERVICE OF THE WAR DEPARTMENT, CAF-6, $2,300 PER ANNUM. MR. TUDOR IS A RETIRED WARRANT OFFICER WHO WAS RETIRED ON ACCOUNT OF AGE; HIS RETIRED PAY IS LESS THAN $2,500 PER ANNUM. HE WAS NOT RETIRED ON ACCOUNT OF COMMISSIONED SERVICE. ON MARCH 16, 1943, THE POSITION WHICH MR. TUDOR HELD WAS ALLOCATED BY ADMINISTRATIVE ACTION TO CAF-7, $2,600 PER ANNUM, AND AN ATTEMPT WAS MADE TO RECLASSIFY MR. TUDOR TO THAT GRADE. HE HAS BEEN PAID IN THE CIVILIAN POSITION AT THE RATE OF $2,600 PER ANNUM SUBSEQUENT TO MARCH 16, 1943.

INASMUCH AS IT HAS BEEN CONSISTENTLY HELD THAT SECTION 2 OF THE ACT OF JULY 31, 1894 (28 STAT. 205), AS AMENDED (5 U.S.C. 62), PROHIBITS THE APPOINTMENT OF MR. TUDOR TO A CAF-7 POSITION, IT WOULD SEEM THE ATTEMPTED RECLASSIFICATION WAS VOID; THAT HE HAS CONTINUED TO RETAIN HIS STATUS AS A CIVILIAN EMPLOYEE IN GRADE CAF-6, $2,300 PER ANNUM; THAT HE HAS BEEN OVERPAID SINCE MARCH 16, 1943; AND THAT HE SHOULD REFUND THAT PORTION OF THE SALARY RECEIVED IN THE CIVILIAN POSITION SUBSEQUENT TO MARCH 16, 1943, WHICH IS IN EXCESS OF THE AMOUNT HE WOULD HAVE RECEIVED IN GRADE CAF-6 (SEE 21 COMP. GEN. 39). IF THE ABOVE IS NOT CORRECT, YOUR ADVICE IS REQUESTED AS TO MR. TUDOR'S STATUS SUBSEQUENT TO MARCH 16, 1943, AND THE AMOUNT HE SHOULD REFUND. IT SHOULD BE STATED IN THIS CONNECTION THAT IT IS DESIRED TO CONTINUE TO UTILIZE THE SERVICES OF MR. TUDOR IN GRADE CAF-6 IF IT IS POSSIBLE TO DO SO.

IN THE EVENT YOUR DECISION IS TO THE EFFECT THAT MR. TUDOR MAY BE DEEMED TO HAVE CONTINUED IN GRADE CAF-6, YOUR ADVICE IS REQUESTED AS TO WHETHER OVERTIME PAID HIM IN THE CIVILIAN POSITION UNDER THE PROVISIONS OF THE WAR OVERTIME PAY ACT OF 1943 (ACT OF MAY 7, 1943, PUBLIC LAW 49, 78TH CONG.) IS "SALARY OR ANNUAL COMPENSATION" ATTACHED TO THE OFFICE WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF JULY 31, 1894, SUPRA (SEE IN THIS CONNECTION YOUR DECISION B-32233, DATED FEBRUARY 12, 1943).

AS MR. TUDOR IS STILL EMPLOYED UNDER THE ABOVE CIRCUMSTANCES, AN EARLY DECISION WILL BE APPRECIATED.

THE DECISION OF JULY 16, 1941, 21 COMP. GEN. 38, 39, TO WHICH YOU REFER, HELD AS FOLLOWS:

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. 332.

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.

THE RULE STATED IN THAT CASE WAS BASED SOLELY UPON THE FACTS THERE INVOLVED INDICATING THAT THE REALLOCATION OF THE POSITION HAD NEVER BEEN CONSUMMATED AND THAT THERE WAS INVOLVED MERELY THE CLEARING OF THE RECORD OF AN INCOMPLETED ADMINISTRATIVE ACTION. THE RULE STATED IN THAT CASE MAY NOT BE APPLIED IN THE INSTANT CASE WHERE IT IS CLEAR THAT THE REALLOCATION OF THE POSITION WAS FINALLY CONSUMMATED. THE RECLASSIFICATION OR REALLOCATION OF A POSITION BASED UPON THE DUTIES AND RESPONSIBILITIES THEREOF, WHICH IS FINALLY CONSUMMATED, MAY NOT BE REGARDED AS VOID SIMPLY BECAUSE OF THE FACT THAT THE INCUMBENT OF THE POSITION HAPPENS TO BE A RETIRED WARRANT OFFICER OF THE ARMY WHO, IN THE LIGHT OF THE DECISION QUOTED, INFRA, WOULD BE PROHIBITED BY OPERATION OF THE 1894 STATUTE FROM HOLDING THE POSITION AT THE HIGHER SALARY RATE AFTER REALLOCATION.

IN DECISION OF OCTOBER 17, 1921, 1 COMP. GEN. 219, 220, IT WAS STATED:

* * * THE UNITED STATES SUPREME COURT HAS HELD THAT PUBLIC POLICY PROHIBITS ANY ATTEMPT BY UNAUTHORIZED AGREEMENT WITH AN OFFICER OF THE UNITED STATES UNDER GUISE OF A CONDITION OR OTHERWISE, TO DEPRIVE HIM OF THE RIGHT TO PAY GIVEN BY STATUTE. GLAVEY V. UNITED STATES, 182 U. S. 595. UNITED STATES V. ANDREWS, 240 U.S. 90. ANY ATTEMPT ON THE PART OF COL. DAVIS TO RELINQUISH HIS RETIRED PAY AND RESTRICT HIMSELF TO THE RIGHT TO COMPENSATION AS SPECIAL ASSISTANT ONLY WOULD BE INEFFECTIVE FOR THAT PURPOSE. AS TO THE RIGHT OF ELECTION BETWEEN MILITARY PAY FIXED BY STATUTE AND A CIVILIAN SALARY, SEE ALSO, 23 COMP. DEC. 62. SEE, ALSO, 14 COMP. GEN. 289.

HENCE, IN LINE WITH SAID DECISION, MR. TUDOR MAY NOT ELECT TO REFUND HIS RETIRED PAY BUT MUST REFUND THE SALARY RECEIVED IN HIS CIVILIAN POSITION FOR THE PERIOD FROM AND AFTER MARCH 16, 1943, THE DATE OF REALLOCATION REQUIRING THE PAYMENT OF THE MINIMUM SALARY RATE OF GRADE CAF-7, $2,600 PER ANNUM. MR. TUDOR MAY NOT BE RETAINED IN A POSITION IN GRADE CAF-7, THE MINIMUM SALARY RATE OF WHICH IS $2,600 PER ANNUM BUT HE MAY BE APPOINTED TO AND HOLD A CIVILIAN POSITION IN GRADE CAF-6 OR LOWER, WITH A BASIC SALARY RATE OF LESS THAN $2,500 PER ANNUM.

REFERRING TO THE QUESTION IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, WHILE MR. TUDOR MAY NOT BE DEEMED AS HAVING CONTINUED IN GRADE CAF-6 NEVERTHELESS, IF HE SHOULD BE APPOINTED TO, AND SHOULD HOLD A POSITION IN GRADE CAF-6, YOU ARE ADVISED THAT THE WORDS "SALARY OR ANNUAL COMPENSATION" AS USED IN THE ACT OF JULY 31, 1894, REFER TO BASIC COMPENSATION OF $2,500 PER ANNUM EXCLUSIVE OF OVERTIME COMPENSATION AUTHORIZED TO BE PAID UNDER THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 75, PUBLIC LAW 49. COMPARE DECISION OF FEBRUARY 12, 1943 (B-32233), 22 COMP. GEN. 795, TO WHICH YOU REFER, AND THE DECISIONS THEREIN CITED.