B-44829, OCTOBER 20, 1944, 24 COMP. GEN. 314

B-44829: Oct 20, 1944

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APPLIES TO ANY FEDERAL EMPLOYMENT IN A POSITION THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP-SUM APPROPRIATION. AS DISTINGUISHED FROM A CONSTITUTIONAL OFFICE THE COMPENSATION FOR WHICH IS FIXED BY OR PURSUANT TO STATUTE AND THE INCUMBENT OF WHICH IS ENTITLED TO THE SALARY THEREOF BY REASON OF HIS TITLE TO THE OFFICE. BY THE FEDERAL AGENCY IN WHICH A VETERAN IS RECEIVING TRAINING WOULD NOT BE PROHIBITED BY SAID DUAL COMPENSATION STATUTE. 2 COMP. 1944: I HAVE YOUR LETTER OF SEPTEMBER 26. (2) RECEIVE SALARY OR WAGES FROM THE AGENCY IN WHICH HE IS IN TRAINING. ENCLOSED HEREWITH FOR YOUR INFORMATION AND CONSIDERATION IS A COPY OF ADMINISTRATOR'S DECISION. INDICATIONS HAVE BEEN RECEIVED THAT WHILE THE DECISION CLEARS THE WAY FOR OPERATION OF THE PROGRAM WITHIN THE VETERANS ADMINISTRATION AND MAY BE ENTIRELY ACCEPTABLE TO OTHER AGENCIES.

B-44829, OCTOBER 20, 1944, 24 COMP. GEN. 314

DOUBLE COMPENSATION, ETC. - VETERANS IN RECEIPT OF PENSIONS OR RETIRED PAY WHILE UNDERGOING VOCATIONAL TRAINING IN FEDERAL AGENCY THE HOLDING IN 23 COMP. GEN. 900 THAT A FEDERAL EMPLOYEE MAY AGREE IN ADVANCE TO SERVE WITHOUT COMPENSATION AS A NURSE'S AIDE AT A VETERAN'S FACILITY WITHOUT CONTRAVENING THE VOLUNTARY SERVICES PROHIBITION OF SECTION 3679, REVISED STATUTES, AS AMENDED, APPLIES TO ANY FEDERAL EMPLOYMENT IN A POSITION THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP-SUM APPROPRIATION, AS DISTINGUISHED FROM A CONSTITUTIONAL OFFICE THE COMPENSATION FOR WHICH IS FIXED BY OR PURSUANT TO STATUTE AND THE INCUMBENT OF WHICH IS ENTITLED TO THE SALARY THEREOF BY REASON OF HIS TITLE TO THE OFFICE. SERVICES RENDERED BY A DISABLED VETERAN, ENTITLED TO VOCATIONAL TRAINING PURSUANT TO THE ACT OF MARCH 24, 1943, UNDER THE JURISDICTION OF THE VETERANS' ADMINISTRATION, IN ACCORDANCE WITH AN AGREEMENT TO SERVE IN A FEDERAL AGENCY AS A TRAINEE WITHOUT COMPENSATION IN RETURN FOR THE BENEFITS OF THE TRAINING DO NOT CONSTITUTE "VOLUNTARY" SERVICES WITHIN THE MEANING OF THE PROHIBITION IN SECTION 3679, REVISED STATUTES, AS AMENDED, AGAINST THE ACCEPTANCE OF VOLUNTARY SERVICES FOR THE GOVERNMENT. THE TRAINING ALLOWANCE, IN THE FORM OF INCREASED PENSION OR RETIRED PAY, AUTHORIZED BY THE ACT OF MARCH 24, 1943, TO BE PAID TO DISABLED VETERANS RECEIVING VOCATIONAL TRAINING PRESCRIBED BY THE ACT DOES NOT CONSTITUTE "SALARY" WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTE OF MAY 10, 1916, AS AMENDED, PROHIBITING THE PAYMENT OF TWO SALARIES TO ONE PERSON WHEN THEY AGGREGATE MORE THAN $2,000 PER ANNUM, SO THAT THE PAYMENT OF COMPENSATION, IN ADDITION TO THE TRAINING ALLOWANCE, BY THE FEDERAL AGENCY IN WHICH A VETERAN IS RECEIVING TRAINING WOULD NOT BE PROHIBITED BY SAID DUAL COMPENSATION STATUTE. 2 COMP. GEN. 119, DISTINGUISHED. THE TRAINING ALLOWANCE, IN THE FORM OF INCREASED RETIRED PAY, PAID PURSUANT TO THE ACT OF MARCH 24, 1943, TO A DISABLED RETIRED OFFICER RECEIVING VOCATIONAL TRAINING WITH PAY IN A FEDERAL AGENCY MUST BE INCLUDED IN APPLYING THE LIMITATION OF $3,000 PER ANNUM PRESCRIBED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, ON THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION THAT MAY BE PAID TO A RETIRED OFFICER, UNLESS RETIRED FOR ONE OF THE REASONS (DISABILITY INCURRED IN COMBAT WITH AN ENEMY OR DISABILITY RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR) EXCEPTING HIM FROM OPERATION OF THE LIMITATION.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 20, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 26, 1944, AS FOLLOWS:

IN ADMINISTERING THE PROGRAM OF VOCATIONAL REHABILITATION UNDER PUBLIC LAW NO. 16, 78TH CONGRESS, TWO IMPORTANT QUESTIONS AROSE IN CONNECTION WITH THAT PHASE OF THE PROGRAM CONCERNED WITH TRAINING-ON THE-JOB IN THE AGENCIES OF THE FEDERAL GOVERNMENT AS TO WHETHER A VETERAN ENTITLED TO VOCATIONAL TRAINING UNDER THE JURISDICTION OF THE VETERANS ADMINISTRATION MAY (1) RECEIVE TRAINING-ON-THE-JOB IN A FEDERAL AGENCY WITHOUT BEING PAID SALARY OR WAGES BY THE AGENCY, AND (2) RECEIVE SALARY OR WAGES FROM THE AGENCY IN WHICH HE IS IN TRAINING, WHILE AT THE SAME TIME RECEIVING A TRAINING ALLOWANCE IN THE FORM OF INCREASED PENSION.

ENCLOSED HEREWITH FOR YOUR INFORMATION AND CONSIDERATION IS A COPY OF ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION, NO. 576.

INDICATIONS HAVE BEEN RECEIVED THAT WHILE THE DECISION CLEARS THE WAY FOR OPERATION OF THE PROGRAM WITHIN THE VETERANS ADMINISTRATION AND MAY BE ENTIRELY ACCEPTABLE TO OTHER AGENCIES, THERE MAY BE CERTAIN AGENCIES WHICH WILL BE UNWILLING TO RISK PAYMENT OF WAGES OR SALARY TO TRAINEES OF THE VETERANS ADMINISTRATION UNLESS SUCH PAYMENTS HAVE BEEN DETERMINED BY THE COMPTROLLER GENERAL TO BE LEGAL. ONE AGENCY IN PARTICULAR HAS EXPRESSED THE OPINION SUCH PAYMENTS "MAY LEAD TO ADVERSE DECISION AND DISALLOWANCES ON CERTIFYING OFFICERS.' THE AGENCY HAS FURTHER SUGGESTED THAT "A FULL AND COMPLETE ANSWER OBTAINED BY THE VETERANS ADMINISTRATION FROM THE COMPTROLLER GENERAL WOULD BE OF WIDE USE AND MATERIAL HELP IN EXPEDITING TRAINING-ON-THE-JOB IN GOVERNMENT.'

IN VIEW OF THE URGENCY OF THE PROGRAM AND OF MY DESIRE THAT OUR PLANS FOR TRAINING-ON-THE-JOB LEADING TO EMPLOYMENT IN FEDERAL AGENCIES MAY PROCEED AS SPEEDILY AND EFFECTIVELY AS THE PROGRAM WITH BUSINESS AND INDUSTRIAL ORGANIZATIONS IS PROGRESSING, IT WILL BE APPRECIATED IF YOU WILL GIVE CONSIDERATION TO THE QUESTIONS PRESENTED AND LET ME HAVE A DECISION AT YOUR EARLIEST CONVENIENCE.

THE ADMINISTRATOR'S DECISION ( NO. 576) OF AUGUST 7, 1944, REFERRED TO IN THE SECOND PARAGRAPH OF YOUR LETTER, READS AS FOLLOWS:

SUBJECT: AUTHORITY FOR VOCATIONAL TRAINING-ON-THE-JOB IN FEDERAL AGENCIES WITH AND WITHOUT COMPENSATION.

QUESTIONS PRESENTED: (1) MAY A VETERAN ENTITLED TO VOCATIONAL REHABILITATION UNDER JURISDICTION OF THE VETERANS ADMINISTRATION RECEIVE TRAINING-ON-THE-JOB IN A FEDERAL AGENCY WITHOUT BEING PAID SALARY OR WAGES BY THE AGENCY? (2) MAY A VETERAN ENTITLED TO VOCATIONAL REHABILITATION UNDER THE JURISDICTION OF THE VETERANS ADMINISTRATION RECEIVE SALARY OR WAGES FROM THE AGENCY IN WHICH HE IS IN TRAINING WHILE AT THE SAME TIME RECEIVING A TRAINING ALLOWANCE IN THE FORM OF INCREASED PENSION?

FACTS: IT IS DESIRED TO ENTER UNDER THE JURISDICTION OF THE VETERANS ADMINISTRATION IN A NAVY YARD APPRENTICE TRAINING SCHOOL, AS THE FIRST STEP IN HIS TRAINING PROGRAM, A VETERAN FOR WHOM AS OCCUPATIONAL OBJECTIVE OF JOURNEYMAN IN ONE OF THE SKILLED TRADES HAS BEEN APPROVED. APPRENTICE TRAINEES IN THE SCHOOL ARE PAID $4.64 PER DAY AND THE NAVY DEPARTMENT WILL WISH TO PAY THE SAME WAGES TO THE VETERAN IN QUESTION. THE VETERAN WILL CONTINUE IN A TRAINING STATUS UNDER PUBLIC NO. 16, 78TH CONGRESS, UNTIL HE IS QUALIFIED FOR EMPLOYMENT AS A JOURNEYMAN.

COMMENT: THE FIRST QUESTION IS WHETHER THE ACCEPTANCE OF THE SERVICES OF THE TRAINEES BY AGENCIES OF THE FEDERAL GOVERNMENT WITHOUT THE PAYMENT OF SALARY OR WAGES WOULD BE IN VIOLATION OF THE PROVISIONS OF SECTION 3679, REVISED STATUTES, AS AMENDED (31 U.S.C. 665), THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS:

"* * * NOR SHALL ANY DEPARTMENT OR ANY OFFICER OF THE GOVERNMENT ACCEPT VOLUNTARY SERVICE FOR THE GOVERNMENT * * * EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF PROPERTY. * * *"

THE COMPTROLLER GENERAL IN DECISION B-41950, UNDER DATE OF MAY 27, 1944, CONSTRUED THE FOREGOING PROVISIONS AS FOLLOWS:

"THERE HAS BEEN CONSIDERABLE MISUNDERSTANDING REGARDING THE PROPER APPLICATION OF THAT STATUTORY PROVISION--- THE PRACTICE HAVING BEEN ADOPTED, IT SEEMS, OF AUTHORIZING THE PAYMENT OF SALARY AT THE RATE OF $1 PER ANNUM IN ORDER TO PREVENT A VIOLATION OF SAID STATUTE. SUCH A PRACTICE IS UNNECESSARY UNLESS SOME OTHER STATUTE OR APPROPRIATION ACT REQUIRES THE PAYMENT OF $1 PER ANNUM. IN THAT CONNECTION, SEE THE DECISION OF JUNE 26, 1928, 7 COMP. GEN. 810, 811, WHEREIN IT WAS STATED:

" "THE VOLUNTARY SERVICE REFERRED TO IN SAID STATUTE IS NOT NECESSARILY SYNONYMOUS WITH GRATUITOUS SERVICE, BUT CONTEMPLATES SERVICES FURNISHED ON THE INITIATIVE OF THE PARTY RENDERING THE SAME, WITHOUT REQUEST FROM, OR AGREEMENT WITH, THE UNITED STATES THEREFOR. SERVICES FURNISHED PURSUANT TO A FORMAL CONTRACT ARE NOT VOLUNTARY WITHIN THE MEANING OF SAID SECTION. 3 COMP. GEN. 117, 4 ID. 967; 27 COMP. DEC. 131.'

"SEE, ALSO, 30 OP. ATTY. GEN. 51; ID. 129, THE LATTER OPINION STATING AT PAGE 131:

" "THE PROVISION OF SECTION 3679, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 27, 1906 (34 STAT. 48), PROHIBITING THE ACCEPTANCE OF VOLUNTARY SERVICE FOR THE GOVERNMENT, HAS NO APPLICATION TO THE PERFORMANCE OF ADDITIONAL SERVICE BY A CLERK IN EXECUTIVE DEPARTMENT WITHOUT ADDITIONAL COMPENSATION, BUT REFERS TO VOLUNTARY SERVICES RENDERED BY PRIVATE PERSONS WITHOUT AUTHORITY OF LAW. * * *" "

UNDER THE FOREGOING CONSTRUCTION, THE SERVICES RENDERED BY THE TRAINEES TO GOVERNMENT AGENCIES WOULD NOT BE VOLUNTARY, AND THE ACCEPTANCE OF SUCH SERVICES WOULD NOT BE IN VIOLATION OF THE SAID PROVISIONS OF LAW, SINCE THE SERVICES OF THE TRAINEES WOULD BE RENDERED IN PURSUANCE OF AN AGREEMENT, IN ADDITION TO THE FACT THAT THE TRAINEES WOULD RECEIVE THE BENEFITS ACCRUING AS THE RESULT OF THE TRAINING.

THE ADMINISTRATOR OF VETERANS AFFAIRS IS SPECIFICALLY AUTHORIZED BY PARAGRAPH 2 OF PART VII OF VETERANS REGULATION NO. 1 (A), AS AMENDED BY PUBLIC NO. 16, 78TH CONGRESS, TO UTILIZE THE FACILITIES OF ANY OTHER GOVERNMENTAL AGENCY IN ORDER TO ACCOMPLISH THE PURPOSES OF THE ABOVE CITED ACT. THERE APPEARS TO BE NO QUESTION, THEREFORE, AS TO THE AUTHORITY OF THE ADMINISTRATOR TO AUTHORIZE TRAINING-ON-THE-JOB IN FEDERAL AGENCIES WITHOUT THE PAYMENT OF SALARY OR WAGES BY THE AGENCIES TO THE TRAINEES. (SEE ALSO SECTION 1500, PUBLIC NO. 346, 78TH CONGRESS.)

THE ANSWER TO QUESTION (2), I.E., WHETHER THERE IS AUTHORITY FOR A VETERAN TO RECEIVE SALARY OR WAGES FROM A FEDERAL AGENCY IN WHICH HE IS IN TRAINING WHILE AT THE SAME TIME RECEIVING A TRAINING ALLOWANCE IN THE FORM OF INCREASED PENSION, IS DEPENDENT UPON WHETHER SUCH AN ARRANGEMENT WOULD BE IN CONTRAVENTION OF THE PROVISIONS OF LAW PROHIBITING THE PAYMENT OF TWO SALARIES WHICH AGGREGATE IN EXCESS OF $2,000.00 A YEAR. THE PROVISIONS OF LAW GOVERNING IN THIS CONNECTION ARE EMBODIED IN SECTION 58, TITLE 5, U.S. CODE, WHICH READ AS FOLLOWS:

"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY 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 COMPTROLLER GENERAL IN 2 COMP. GEN. 119, HELD THAT THE ALLOWANCE FOR SUPPORT AND MAINTENANCE OF VOCATIONAL TRAINEES AUTHORIZED BY THE FORMER VOCATIONAL REHABILITATION ACT OF JULY 11, 1919 (41 STAT. 159), AS AMENDED BY THE ACT OF JUNE 5, 1920 (41 STAT. 1021), DID NOT CONSTITUTE SALARY WITHIN THE MEANING OF THE ABOVE QUOTED PROVISIONS OF LAW.

THE ALLOWANCES TO BE PAID UNDER PUBLIC NO. 16, 78TH CONGRESS, WHILE NOT TERMED SUPPORT AND MAINTENANCE ALLOWANCES, ARE FOR SIMILAR PURPOSES, AND ARE TO ALL MATERIAL INTENTS AND PURPOSES SIMILAR TO THE ALLOWANCES PAID TO TRAINEES UNDER THE VOCATIONAL REHABILITATION PROGRAM ADMINISTERED FOR THE BENEFIT OF VETERANS OF WORLD WAR I.

HELD: (1) SERVICES RENDERED BY VETERANS PLACED IN ON-THE-JOB TRAINING IN FEDERAL AGENCIES WITHOUT BEING PAID SALARY OR WAGES DO NOT CONSTITUTE GRATUITOUS OR VOLUNTARY SERVICES WITHIN THE MEANING OF THOSE TERMS AS USED IN SECTION 3679, REVISED STATUTES, AND THE TRAINING OF VETERANS IN THIS MANNER IS AUTHORIZED. (2) THE ALLOWANCES TO BE PAID VETERANS WHILE IN TRAINING UNDER PUBLIC NO. 16, 78TH CONGRESS, ARE NOT SALARY WITHIN THE MEANING OF THE PROVISIONS OF SECTION 58, TITLE 5, U.S. CODE; CONSEQUENTLY, A VETERAN MAY RECEIVE SALARY OR WAGES FROM THE AGENCY IN WHICH HE IS IN TRAINING WHILE AT THE SAME TIME RECEIVING THE ALLOWANCES IN THE FORM OF INCREASED PENSION PROVIDED FOR BY PUBLIC NO. 16, 78TH CONGRESS. (OPINION OF THE SOLICITOR, VETERANS ADMINISTRATION, JULY 13, 1944, APPROVED BY THE ADMINISTRATOR, JULY 13, 1944.)

THE FOREGOING DECISION IS HEREBY PROMULGATED FOR OBSERVANCE BY ALL OFFICERS AND EMPLOYEES OF THE VETERANS ADMINISTRATION.

THE AFFIRMATIVE ANSWER TO QUESTION (1) IN YOUR ABOVE-QUOTED DECISION IS BASED UPON THE DECISION OF THIS OFFICE DATED MAY 27, 1944 (B-41950) 23 COMP. GEN. 900, AND THE AUTHORITIES THEREIN CITED. THAT DECISION HELD, INTER ALIA, THAT A FEDERAL EMPLOYEE LAWFULLY MAY AGREE IN ADVANCE TO SERVE WITHOUT COMPENSATION AS A NURSE'S AIDE AT A VETERANS' FACILITY WITHOUT CONTRAVENING THE PROVISIONS OF SECTION 3679, REVISED STATUTES, AS AMENDED, PROHIBITING (WITH CERTAIN EXCEPTIONS) VOLUNTARY SERVICE FOR THE GOVERNMENT. THE RULE APPLIES TO ANY FEDERAL EMPLOYMENT IN A POSITION THE COMPENSATION OF WHICH IS FIXED ADMINISTRATIVELY PURSUANT TO LAW UNDER A LUMP-SUM APPROPRIATION, AS DISTINGUISHED FROM A CONSTITUTIONAL OFFICE THE COMPENSATION FOR WHICH IS FIXED BY OR PURSUANT TO STATUTE THE OFFICER, IN THE LATTER CASE, OCCUPYING SUCH OFFICE BEING ENTITLED TO THE SALARY THEREOF BY REASON OF HIS TITLE TO THE OFFICE.

ACCORDINGLY, I CONCUR IN YOUR ANSWER TO QUESTION (1), EXCEPT THE STATEMENT THEREIN THAT SUCH SERVICES DO NOT CONSTITUTE "GRATUITOUS" SERVICES. IT IS BELIEVED YOU MAY HAVE MISUNDERSTOOD OR OVERLOOKED THE DISTINCTION DRAWN IN THE CITED AUTHORITIES BETWEEN "GRATUITOUS" AND "VOLUNTARY" SERVICE. SEE, FOR INSTANCE, THAT PART OF THE DECISION OF JUNE 26, 1928, 7 COMP. GEN. 810, 811, QUOTED IN THE DECISION OF MAY 27, 1944, AND QUOTED, ALSO IN YOUR DECISION OF AUGUST 7, 1944, SUPRA. THE SERVICE OF A FEDERAL EMPLOYEE WHO AGREES IN ADVANCE TO SERVE WITHOUT COMPENSATION DOES CONSTITUTE "GRATUITOUS" SERVICE, BUT IT IS NOT A "VOLUNTARY" (SERVICE) SUCH AS IS PROHIBITED BY SECTION 3679, REVISED STATUTES, AS AMENDED.

THE ACT OF MARCH 24, 1943 ( PUBLIC LAW 16) 57 STAT. 43, AUTHORIZES THE GRANTING OF VOCATIONAL TRAINING TO DISABLED WAR VETERANS (WHO ARE IN RECEIPT OF A PENSION OR RETIRED PAY) AT THE EXPENSE OF THE GOVERNMENT, AND AUTHORIZES AN INCREASE IN THE DISABLED VETERAN'S PENSION OR RETIRED PAY TO COVER THE COST OF VOCATIONAL TRAINING. SECTION 3, PART VII, OF VETERANS REGULATION NUMBERED 1 (A), AS AMENDED- - FOR CONSIDERATION HERE IN ANSWERING QUESTION (2/--- PROVIDES AS FOLLOWS (QUOTING FROM THE STATUTE):

WHILE PURSUING TRAINING PRESCRIBED HEREIN, AND FOR TWO MONTHS AFTER HIS OR HER EMPLOYABILITY IS DETERMINED, EACH VETERAN, IF ENTITLED TO PENSION IN AN AMOUNT LESS THAN THE AMOUNT PAYABLE IN ACCORDANCE WITH THE COMPENSATION RATES FOR TOTAL AND TEMPORARY DISABILITY, INCLUDING ADDITIONAL AMOUNTS FOR WIFE, HUSBAND, CHILD, OR CHILDREN AND DEPENDENT PARENTS, PROVIDED BY SECTON 212, WORLD WAR VETERANS' ACT, 1924, AS AMENDED ( U.S.C., TITLE 38, SEC. 475), SHALL BE PAID INCREASED PENSION WHICH WHEN ADDED TO THE AMOUNT OF PENSION TO WHICH HE IS OTHERWISE ENTITLED WILL AGGREGATE AN AMOUNT EQUAL TO SUCH RATES: PROVIDED, THAT WHEN THE COURSE OF VOCATIONAL REHABILITATION FURNISHED ANY PERSON AS HEREIN PROVIDED CONSISTS OF TRAINING ON THE JOB BY AN EMPLOYER, SUCH EMPLOYER SHALL BE REQUIRED TO SUBMIT MONTHLY TO THE ADMINISTRATOR A STATEMENT UNDER OATH SHOWING ANY WAGE, COMPENSATION, OR OTHER INCOME PAID BY HIM TO SUCH PERSON DURING THE MONTH, DIRECTLY OR INDIRECTLY, AND BASED UPON SUCH SWORN STATEMENTS, THE ADMINISTRATOR IS AUTHORIZED TO REDUCE THE PENSION OF SUCH PERSON TO AN AMOUNT CONSIDERED EQUITABLE AND JUST,BUT NOT BELOW THE AMOUNT OF PENSION OR RETIREMENT PAY TO WHICH HE WOULD BE ENTITLED FOR SERVICE-CONNECTED DISABILITY IF NOT FOLLOWING A COURSE OF VOCATIONAL REHABILITATION.

THERE IS FOR NOTING THE FACT THAT THE STATUTE SPECIFICALLY DESIGNATES THE ALLOWANCE FOR VOCATIONAL TRAINING AS AN INCREASE IN PENSION OR RETIRED PAY, RATHER THAN AS AN INDEPENDENT ALLOWANCE FOR VOCATIONAL TRAINING SUCH AS WAS GRANTED BY THE ACT OF JULY 11, 1919, 41 STAT. 159, CONSIDERED IN THE DECISION OF AUGUST 15, 1922, 2 COMP. GEN. 119, CITED IN YOUR DECISION IN SUPPORT OF AN AFFIRMATIVE ANSWER TO QUESTION (2). HENCE, QUESTION (2) IS FOR CONSIDERATION IN THE LIGHT OF THE NOW CONTROLLING STATUTE.

A PENSION FOR MILITARY SERVICE IS NOT "SALARY" WITHIN THE MEANING OF 5 U.S.C. 58, THE DUAL COMPENSATION STATUTE, QUOTED IN YOUR DECISION, AND THERE ARE NO OTHER PROHIBITION OF LAW TO WHCH MY ATTENTION HAS BEEN DIRECTED AGAINST THE RECEIPT OF A PENSION FOR MILITARY SERVICE AND SALARY OR COMPENSATION FOR ACTIVE SERVICE IN A CIVILIAN OR POSITION UNDER THE FEDERAL GOVERNMENT. WHILE RETIRED PAY IS REGARDED AS COMPENSATION FOR CERTAIN PURPOSES, ALL RETIRED OFFICERS AND ENLISTED MEN OF THE MILITARY AND NAVAL SERVICES HAVE BEEN EXCEPTED FROM THE PROVISIONS OF 5 U.S.C. 58 BY THE PROVISIONS OF 5 U.S.C. 59. HENCE, RETIRED PAY IS NOT TO BE REGARDED AS "SALARY" WITHIN THE MEANING OF 5 U.S.C. 58, AND UPON THAT BASIS I CONCUR IN YOUR ANSWER TO QUESTION (2) SO FAR AS 5 U.S.C. 58 IS CONCERNED. HOWEVER, IT IS DEEMED ADVISABLE TO CONSIDER THE QUESTION FURTHER IN THE LIGHT OF OTHER PROVISIONS OF LAW. ALL RETIRED ENLISTED MEN, AND RETIRED OFFICERS OF THE MILITARY AND NAVAL SERVICES RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY--- SUCH AS ARE UNDERSTOOD TO BE EMBRACED BY THE PROVISIONS OF THE ACT OF MARCH 24, 1943--- EXPRESSLY HAVE BEEN EXEMPTED FROM THE PROVISIONS OF 5 U.S.C. 62, PROHIBITING THE SAME PERSON FROM HOLDING MORE THAN ONE OFFICE WITH COMPENSATION ATTACHED AT THE RATE OF $2,500 OR MORE PER ANNUM. BUT ALL COMMISSIONED OFFICERS RETIRED FOR DISABILITY HAVE NOT BEEN EXEMPTED FROM THE RESTRICTION OF 5 U.S.C. 59A, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND COMPENSATION IN A CIVILIAN OFFICE OR POSITION, BUT ONLY THOSE WHO HAVE BEEN "RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A) PART I, PARAGRAPH I.' (QUOTING FROM PROVISO TO THE STATUTE.) ACCORDINGLY, IN APPLYING THE LIMITATIONS OF THAT STATUTE, THE INCREASE IN RETIRED PAY FOR VOCATIONAL TRAINING AUTHORIZED BY THE ACT OF MARCH 24, 1943, SUPRA, MUST BE INCLUDED IN ANY CASE WHERE THE OFFICER IS NOT RETIRED FOR DISABILITY FOR ONE OF THE REASONS STATED IN THE PROVISO TO THE STATUTE.

THE ANSWER TO QUESTION (2) APPEARING IN YOUR DECISION OF AUGUST 7, 1944-- - WITH WHICH THIS OFFICE AGREES AS FAR AS IT GOES--- IS NOT UNDERSTOOD AS CONCLUDING THAT ALL DISABLED VETERANS, RECEIVING A PENSION OR RETIRED PAY, ARE TO BE ALLOWED AN INCREASE IN PENSION OR RETIRED PAY FOR COST OF VOCATIONAL TRAINING, IN ADDITION TO ACTIVE SERVICE COMPENSATION RECEIVED WHILE UNDERGOING ,ON-THE-JOB-TRAINING" IN A FEDERAL POSITION, WITHOUT REGARD TO THE TERMS AND CONDITIONS OF THE PROVISO TO SECTION 3, PART VII, OF VETERANS REGULATION NUMBERED 1 (A), ABOVE QUOTED FROM THE ACT OF MARCH 24, 1943, THE TERMS OF WHICH PROVISO REQUIRE THE FEDERAL AGENCY AS "AN EMPLOYER" TO FURNISH THE ADMINISTRATOR OF VETERANS' AFFAIRS "A STATEMENT UNDER OATH SHOWING ANY WAGE, COMPENSATION, OR OTHER INCOME PAID BY HIM TO SUCH PERSON DURING THE MONTH, DIRECTLY OR INDIRECTLY" ON THE BASIS OF WHICH THE STATUTE CLEARLY CONTEMPLATES THAT THE ADMINISTRATOR MAKE A FINDING WHETHER THE INCREASE IN PENSION OR RETIRED PAY ALLOWED FOR VOCATIONAL TRAINING SHOULD BE REDUCED "TO AN AMOUNT CONSIDERED EQUITABLE AND JUST.'