B-45691, NOVEMBER 23, 1944, 24 COMP. GEN. 407

B-45691, NOVEMBER 23, 1944, 24 COMP. GEN. 407

COMPENSATION - DOUBLE-RETIRED OFFICERS IN CIVILIAN POSITIONS THE LIMITATION OF $3,000 PER ANNUM, AND EXCEPTIONS THERETO, 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 PERSON WHO RECEIVES RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, U.S. CODE, ARE APPLICABLE TO ANY RETIRED OFFICER RECEIVING SUCH RETIRED PAY, WITHOUT REGARD TO THE PARTICULAR STATUTE PURSUANT TO WHICH THE OFFICER SERVED ON ACTIVE DUTY OR WAS RETIRED FROM ACTIVE SERVICE, INCLUDING OFFICERS OF THE ARMY OF THE UNITED STATES RECEIVING RETIREMENT PAY PURSUANT TO SECTION 5 OF THE ACT OF APRIL 3, 1939.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, NOVEMBER 23, 1944:

I HAVE YOUR LETTER OF NOVEMBER 10, 1944, AS FOLLOWS:

THERE IS ENCLOSED A COPY OF THE OPINION OF THE SOLICITOR OF THE VETERANS ADMINISTRATION DATED NOVEMBER 10, 1944, WITH WHICH I CONCUR, CALLING YOUR ATTENTION TO THAT PORTION OF THE OPINION RELATING TO THE APPLICABILITY OF SECTION 212, PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED, TO RETIREMENT PAY AUTHORIZED BY SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, AS AMENDED.

SINCE APPROPRIATIONS OF OTHER GOVERNMENT DEPARTMENTS AND AGENCIES FOR SALARIES OF RETIRED OFFICERS MAY BE INVOLVED UNDER THE OPINION, YOUR VIEWS WITH REFERENCE TO THE APPLICABILITY OF SECTION 212, SUPRA, TO SUCH RETIRED OFFICERS WILL BE APPRECIATED.

THE SOLICITOR'S OPINION, REFERRED TO, CONSIDERS AND ANSWERS THREE QUESTIONS, BUT IT IS UNDERSTOOD FROM YOUR LETTER THAT MY VIEWS ARE REQUESTED ON QUESTION 1, ONLY, WHICH IS AS TO WHETHER THE PROVISIONS OF SECTION 212, PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED, APPLY TO RETIREMENT PAY AUTHORIZED BY SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, APPROVED APRIL 3, 1939, 53 STAT. 557.

YOUR SOLICITOR ANSWERS THAT QUESTION AS FOLLOWS:

AS TO THE FIRST QUESTION PRESENTED IN YOUR MEMORANDUM, YOU ARE ADVISED AS FOLLOWS:

SECTION 212, PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED (5 U.S.C., SECTION 59A), IS AS FOLLOWS:

"/A) AFTER JUNE 30, 1932, 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 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 OFFICER 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 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. JUNE 30, 1932, C. 314 SEC. 212, 47 STAT. 406, AS AMENDED JULY 15, 1940, C. 626 SEC. 3, 54 STAT. 761.'

THE PROVISION THAT "* * * 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," WAS ADDED TO SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS, BY SECTION 3, PUBLIC NO. 743, 76TH CONGRESS. PRIOR TO THE ENACTMENT OF THE LATTER ACT ON JULY 15, 1940, SECTION 212 (B), 72ND CONGRESS, WAS AS FOLLOWS:

"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.' (47 STAT. 406.)

THE PROVISIONS OF SECTION 212 (A), PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED BY PUBLIC NO. 743, 76TH CONGRESS, ( 5 U.S.C. SECTION 59 (A) APPLIES TO ANY ONE ENTITLED TO RETIREMENT PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER OF THE SERVICES MENTIONED IN TITLE 37, U.S.C. WHICH INCLUDES THE ARMY, AND IS APPLICABLE TO COMMISSIONED OFFICERS RETIRED UNDER THE PROVISIONS OF SECTION 5, PUBLIC NO. 18, 76TH CONGRESS.

IT IS TO BE NOTED THAT SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED, PROVIDES THAT IT SHALL NOT APPLY TO "REGULAR" OR "EMERGENCY" COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITY 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. THE "EMERGENCY" COMMISSIONED OFFICERS REFERRED TO IN THIS ACT WERE THE COMMISSIONED OFFICERS WHOSE RETIREMENT WAS PROVIDED FOR UNDER THE ACT OF MAY 24, 1928, AS AMENDED, 38 U.S.C. 582, THAT IS, OFFICERS WHO SERVED IN THE ARMY, NAVY, OR MARINE CORPS OF THE UNITED STATES DURING THE FIRST WORLD WAR, "OTHER THAN AS OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS * * *.' WHILE NATIONAL GUARD OFFICERS WERE INCLUDED, IN THE MAIN THEY WERE RESERVE OFFICERS WHO WERE COMMISSIONED UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT, PUBLIC NO. 85, 64TH CONGRESS, APPROVED JUNE 3, 1916, 39 STAT. 166, 189, 217. SECTION 37 OF THAT ACT PROVIDED IN PART AS FOLLOWS:

"FOR THE PURPOSES OF SECURING A RESERVE OF OFFICERS AVAILABLE FOR SERVICE AS TEMPORARY OFFICERS IN THE REGULAR ARMY, AS PROVIDED FOR IN THIS ACT AND IN SECTION EIGHT OF THE ACT APPROVED APRIL TWENTY-FIFTH, NINETEEN HUNDRED AND FOURTEEN, AS OFFICERS OF THE QUARTERMASTER CORPS AND OTHER STAFF CORPS AND DEPARTMENTS, AS OFFICERS FOR RECRUIT RENDEZVOUS AND DEPOTS, AND AS OFFICERS OF VOLUNTEERS, THERE SHALL BE ORGANIZED, UNDER SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY PRESCRIBE NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT, AN OFFICERS' RESERVE CORPS OF THE REGULAR ARMY. SAID CORPS SHALL CONSIST OF SECTIONS CORRESPONDING TO THE VARIOUS ARMS, STAFF CORPS, AND DEPARTMENTS OF THE REGULAR ARMY. EXCEPT AS OTHERWISE HEREIN PROVIDED, A MEMBER OF THE OFFICERS' RESERVE CORPS SHALL NOT BE SUBJECT TO CALL FOR SERVICE IN TIME OF PEACE, AND WHENEVER CALLED UPON FOR SERVICE SHALL NOT, WITHOUT HIS CONSENT, BE SO CALLED IN A LOWER GRADE THAN THAT HELD BY HIM IN SAID RESERVE CORPS.'

THE OFFICERS' RESERVE CORPS, AS WELL AS THE NATIONAL GUARD WHEN ON ACTIVE FEDERAL SERVICE, WAS IN FACT A PART OF THE ARMY OF THE UNITED STATES FROM ITS CREATION; AND IT WAS SO DECLARED BY THE ACT OF JUNE 4, 1920, CHAPTER I, 41 STAT. 759, SECTION 2, TITLE 10, U.S.C.; AND BOTH THE NATIONAL GUARD AND THE OFFICERS' RESERVE CORPS ARE STILL PARTS OF THE/1ARMY OF THE UNITED STATES. SECTION 2, TITLE 10, U.S.C., CUMULATIVE ANNUAL POCKET PART, IS AS FOLLOWS:

"THE ARMY OF THE UNITED STATES SHALL CONSIST OF THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, THE OFFICERS' RESERVE CORPS, THE ORGANIZED RESERVES, AND THE ENLISTED RESERVE CORPS, AND SHALL INCLUDE PERSONS INDUCTED INTO THE LAND FORCES OF THE UNITED STATES UNDER SECTION 301-318 OF APPENDIX TO TITLE 50. AS AMENDED JUNE 15, 1933, C. 87, SEC. 1, 48 STAT. 153; DEC. 13, 1941, C. 571, SEC. 3, 55 STAT. 800.'

THE SO-CALLED "EMERGENCY" OFFICERS WHO SERVED DURING WORLD WAR I, WHOSE RETIREMENT WAS PROVIDED FOR UNDER THE ACT OF MAY 24, 1928, SUPRA, AND WHO ARE REFERRED TO IN SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS, WERE ALSO OFFICERS OF THE ARMY OF THE UNITED STATES, JUST AS MUCH SO AS THE OFFICERS WHOSE RETIREMENT IS PROVIDED FOR UNDER SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, WHICH INCLUDES "* * * ALL OFFICERS * * * OF THE ARMY OF THE UNITED STATES, OTHER THAN THE OFFICERS * * * OF THE REGULAR ARMY * * *.' WHILE THESE OFFICERS ARE NOT DESIGNATED AS "EMERGENCY" OFFICERS UNDER SECTION 5, PUBLIC NO. 18, 76TH CONGRESS, IT IS CLEAR FROM WHAT HAS BEEN SAID THAT THEY CONSTITUTE THE SAME CLASS OF OFFICERS WHOSE RETIREMENT WAS PROVIDED FOR UNDER THE ACT OF MAY 24, 1928, SUPRA, AND WHO ARE REFERRED TO IN SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS. THE SAME IS TRUE OF OFFICERS APPOINTED UNDER PUBLIC LAW 252, 77TH CONGRESS, APPROVED SEPTEMBER 22, 1941. THIS ACT AUTHORIZED THE TEMPORARY APPOINTMENTS OF OFFICERS IN THE ARMY OF THE UNITED STATES DURING THE PRESENT EMERGENCY; AND IT ALSO PROVIDED THAT SUCH OFFICERS SHOULD BE "* * * ENTITLED TO THE SAME RIGHTS, PRIVILEGES, AND BENEFITS AS MEMBERS OF THE OFFICERS' RESERVE CORPS * * *.' TO EXCLUDE THEM ON THE TECHNICALITY THAT THEY DO NOT COME WITHIN THE LITERAL TERMS OF THE LATTER ACT WOULD VIOLATE ITS SPIRIT AND PURPOSE AND DO A GREAT INJUSTICE TO THIS CLASS OF OFFICERS. SECTION PUBLIC NO. 18, 76TH CONGRESS, AS WELL AS SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS, IS BENEFICIAL LEGISLATION AND SHOULD BE LIBERALLY CONSTRUED; AND IN MY OPINION THE COMMISSIONED OFFICERS RETIRED THEREUNDER FOR DISABILITIES INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES COME WITHIN THE TERM "EMERGENCY" OFFICERS AS USED IN SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED.

THE LANGUAGE OF SECTION 212 (B), PUBLIC NO. 212, 72ND CONGRESS, AS AMENDED BY SECTION 3, PUBLIC NO. 743, 76TH CONGRESS, APPROVED JULY 15, 1940, AS WELL AS THE LEGISLATIVE HISTORY THEREOF, SHOWS THAT IT WAS INTENDED TO BROADEN THE EXCEPTION TO SECTION 212 (A) SO THAT THE LIMITATION THEREIN WOULD NOT BE APPLICABLE IN THE CASE OF DISABILITIES RESULTING FROM EXPLOSION OF AN INSTRUMENTALITY OF WAR. (PAGE 3, SENATE REPORT NO. 939, 76TH CONGRESS, ST SESSION, TO ACCOMPANY S. 134; AND PAGE 4, HOUSE OF REPRESENTATIVES REPORT NO. 1727, 76TH CONGRESS, 3RD SESSION, TO ACCOMPANY S. 134. S. 134 WAS ENACTED AS PUBLIC NO. 743, 76TH CONGRESS).

THE AMENDMENT,"* * * OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY," ADDED BY SECTION 3, PUBLIC NO. 743, 76TH CONGRESS, WAS LIMITED BY ITS OWN TERMS TO PERSONS DISABLED FROM SUCH EXPLOSIONS "* * * DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I.' HOWEVER, AS AMENDED BY SECTION 9, PUBLIC LAW 144, 77TH CONGRESS, APPROVED JULY 13, 1943, REGULATION NUMBERED 1 (A) PROVIDES THAT:

"/A) PARAGRAPH I (A), PART I, VETERANS REGULATION NUMBERED 1 (A), AS AMENDED, IS HEREBY AMENDED, (A) BY INSERTING AFTER " APRIL 1, 1920; " THE PHRASE "OR DURING AN ENLISTMENT OR EMPLOYMENT ENTERED INTO ON OR AFTER DECEMBER 7, 1941, AND BEFORE THE TERMINATION OF HOSTILITIES INCIDENT TO THE PRESENT WAR AS DETERMINED BY PROCLAMATION OF THE PRESIDENT OR BY CONCURRENT RESOLUTION OF THE CONGRESS; " AND (B)BY INSERTING AFTER THE PHRASE "OR ACTIVE SERVICE IN THE WORLD WAR" THE PHRASE "OR IN WORLD WAR II.'"

SO THAT ANY RETIRED OFFICER WHO RECEIVED HIS INJURY THROUGH AN EXPLOSION OF AN INSTRUMENTALITY OF WAR SINCE DECEMBER 7, 1941 IS NOT SUBJECT TO THE PROVISIONS OF SECTION 212 (A), PUBLIC NO. 212, 72ND CONGRESS.

I AM IN AGREEMENT WITH THE CONCLUSION STATED IN THE SOLICITOR'S OPINION, SUPRA, TO THE EFFECT THAT BOTH SUBSECTIONS (A) AND (B) OF 5 U.S.C. 59A ARE APPLICABLE TO ANY RETIRED OFFICER WHO RECEIVES "RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37," WITHOUT REGARD TO THE PARTICULAR STATUTE PURSUANT TO WHICH SUCH AN OFFICER SERVED ON ACTIVE DUTY OR WAS RETIRED FROM SUCH ACTIVE SERVICE.