B-53119, JANUARY 11, 1946, 25 COMP. GEN. 521

B-53119: Jan 11, 1946

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HAVE NO APPLICATION TO PREVENT SUCH RESERVISTS FROM BEING PAID THE RETAINER PAY AUTHORIZED BY SAID 1938 ACT IN ADDITION TO CIVILIAN COMPENSATION. REGARDLESS OF THE CIVILIAN SALARY RATE OR WHETHER RETAINER PAY MAY BE REGARDED AS "RETIRED PAY" UNDER SAID SECTION 212 OR WHETHER COMMISSIONED SERVICE WAS INCLUDED IN COMPUTING RETAINER PAY OR IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE RESERVE. A RETIRED ENLISTED MAN OF THE NAVY RECEIVING RETIRED PAY ON THE BASIS OF HIS ENLISTED GRADE IS NOT TO BE CONSIDERED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30. SOLELY BECAUSE SERVICE AS A COMMISSIONED OFFICER OR COMMISSIONED WARRANT OFFICER IS INCLUDED IN THE COMPUTATION OF HIS LENGTH OF SERVICE FOR LONGEVITY PAY AND RETIREMENT PURPOSES AS AN ENLISTED MAN.

B-53119, JANUARY 11, 1946, 25 COMP. GEN. 521

APPLICABILITY OF FEDERAL DUAL COMPENSATION AND EMPLOYMENT STATUTES TO MEMBERS OF FLEET RESERVE, RETIRED ENLISTED MEN, AND WARRANT OFFICERS IN VIEW OF THE PROVISIONS OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, PERMITTING ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE TO RECEIVE THE COMPENSATION ATTACHED TO CIVILIAN EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES ACCRUING UNDER SAID ACT, THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, HAVE NO APPLICATION TO PREVENT SUCH RESERVISTS FROM BEING PAID THE RETAINER PAY AUTHORIZED BY SAID 1938 ACT IN ADDITION TO CIVILIAN COMPENSATION, REGARDLESS OF THE CIVILIAN SALARY RATE OR WHETHER RETAINER PAY MAY BE REGARDED AS "RETIRED PAY" UNDER SAID SECTION 212 OR WHETHER COMMISSIONED SERVICE WAS INCLUDED IN COMPUTING RETAINER PAY OR IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE RESERVE. A RETIRED ENLISTED MAN OF THE NAVY RECEIVING RETIRED PAY ON THE BASIS OF HIS ENLISTED GRADE IS NOT TO BE CONSIDERED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SOLELY BECAUSE SERVICE AS A COMMISSIONED OFFICER OR COMMISSIONED WARRANT OFFICER IS INCLUDED IN THE COMPUTATION OF HIS LENGTH OF SERVICE FOR LONGEVITY PAY AND RETIREMENT PURPOSES AS AN ENLISTED MAN, IRRESPECTIVE OF WHETHER SUCH COMMISSIONED SERVICE WAS BEFORE OR AFTER RETIREMENT. COMP. GEN. 37; 21 ID. 72, DISTINGUISHED. SINCE RETIRED ENLISTED MEN ARE EXPRESSLY EXEMPT FROM THE RESTRICTIONS OF THE DUAL COMPENSATION AND EMPLOYMENT STATUTES (ACT OF MAY 10, 1916, AS AMENDED; ACT OF JULY 31, 1894, AS AMENDED; AND SECTION 212 OF THE ACT OF JUNE 30, 1932--- LATTER SECTION BEING APPLICABLE ONLY TO RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER)," RETIRED ENLISTED MEN OF THE NAVY WHO ARE IN RECEIPT OF THE RETIRED PAY OF THEIR ENLISTED GRADES MAY RECEIVE THE COMPENSATION ATTACHED TO CIVILIAN EMPLOYMENT AND CONTINUE TO RECEIVE THEIR RETIRED PAY. SINCE A RETIRED WARRANT OFFICE MAY NOT BE REGARDED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SUCH AN OFFICER MAY BE EMPLOYED IN A CIVILIAN POSITION AND ACCEPT THE COMPENSATION ATTACHED THERETO WHILE IN RECEIPT OF HIS RETIRED PAY, PROVIDED THE RETIRED PAY AND SUCH COMPENSATION EACH IS LESS THAN THE $2,500 PER ANNUM MAXIMUM CONTAINED IN THE DUAL EMPLOYMENT STATUTE OF JULY 31, 1894, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, JANUARY 11, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 8, 1945, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DATED OCTOBER 1, 1945, RELATIVE TO THE QUESTION OF THE APPLICABILITY OF SECTION 212 OF THE ACT OF JUNE 30, 1932 (47 STAT. 382), AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940 (54 STAT. 761; 5 U.S.C. 59 (A), IN THE CASES OF CERTAIN MEMBERS OF THE FLEET RESERVE AND RETIRED ENLISTED MEN.

IN THE COMPTROLLER GENERAL'S DECISION OF JULY 14, 1932 (12 COMP. GEN. 37), WHICH CONSIDERED CERTAIN QUESTIONS ARISING UNDER THE SO CALLED ECONOMY ACT OF JUNE 30, 1932, SUPRA, IT WAS HELD, IN PART, AS FOLLOWS (QUOTING FROM THE SYLLABI):

"IN APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, LIMITING THE COMBINED RATE OF COMPENSATION IN THE CIVILIAN POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM, RETIRED PAY OF ENLISTED MEN ON ACCOUNT OF COMMISSIONED SERVICE UNDER THE TERMS OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE.'

IN A LATER DECISION OF THE COMPTROLLER GENERAL, DATED JULY 24, 1941 (21 COMP. GEN. 72), CONCERNING THE APPLICATION TO RETIRED ENLISTED MEN OF THE ARMY OF THE DUAL COMPENSATION LIMITATIONS UNDER THE ACTS OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62), MAY 10, 1916, AS AMENDED (5 U.S.C. 58-59), AND JUNE 30, 1932, SUPRA, IT WAS HELD (SYLLABI):

"RETIRED ARMY ENLISTED MEN ARE NOT SUBJECT TO THE DUAL COMPENSATION LIMITATIONS OF THE ACTS OF JULY 31, 1894, MAY 10, 1916, AND JUNE 30, 1932, EXCEPT THAT UNDER THE LATTER ACT AN ARMY ENLISTED MAN ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER DURING THE WORLD WAR WHO ACCEPTS ACIVILIAN POSITION MUST HAVE HIS RETIRED PAY REDUCED TO A RATE NOT IN EXCESS OF THE RATE HE WOULD HAVE RECEIVED IF HE HAD RETIRED ON ENLISTED SERVICE, ONLY, IF THE COMBINED RATE OF THE SALARY OF THE CIVILIAN POSITION AND THE RETIRED PAY COMPUTED ON ACCOUNT OF COMMISSIONED SERVICE WOULD EXCEED $3,000 PER ANNUM.

"A RETIRED ARMY ENLISTED MAN WHOSE RETIRED PAY IS SO REDUCED AS TO EXCLUDE THE BENEFIT HE ACQUIRED UNDER THE ACT OF JUNE 6, 1924, TO BE RETIRED AS A WARRANT OFFICER ON ACCOUNT OF HAVING SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR, MAY BE EMPLOYED AS A MILITARY INSTRUCTOR IN THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS EVEN THOUGH THE SALARY RATE OF THE CIVILIAN POSITION AND HIS REDUCED RETIRED PAY EXCEEDS THE $3,000 PER ANNUM LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932.'

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTIONS PRESENTED BY THE BUREAU OF SUPPLIES AND ACCOUNTS IN THE ENCLOSURE, AS FOLLOWS:

(1) WHETHER THE RULING IN 21 COMP. GEN. 72, AS QUOTED ABOVE, APPLIES TO ALL MEMBERS OF THE FLEET RESERVE RECEIVING RETAINER PAY, AND ALL RETIRED ENLISTED MEN WHO ARE DRAWING RETIRED PAY PRESCRIBED BY LAW FOR THEIR RESPECTIVE ENLISTED RATINGS, EVEN THOUGH SERVICE AS A COMMISSIONED OFFICER OR COMMISSIONED WARRANT OFFICER IS INCLUDED IN DETERMINING THE LONGEVITY INCREASE TO WHICH SUCH MEN ARE ENTITLED AND WAS INCLUDED IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE OR RETIRED LIST?

(2) A NUMBER OF RETIRED ENLISTED MEN OF THE NAVY AND TRANSFERRED MEMBERS OF THE FLEET RESERVE, WHO HAVE HELD TEMPORARY APPOINTMENTS AS OFFICERS UNDER THE ACT OF JULY 24, 1941 (55 STAT. 603), AS AMENDED (34 U.S.C. 350, ET SEQ., SUPP. IV), HAVE BEEN RELEASED FROM ACTIVE DUTY AND HAVE ACCEPTED CIVIL EMPLOYMENT UNDER THE UNITED STATES GOVERNMENT. ARE THESE MEN EXEMPT FROM THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, SUPRA, UNDER THE RULING CONTAINED IN 12 COMP. GEN. 37?

(3) IN PARAGRAPH 5 OF THE ENCLOSURE, THE BUREAU OF SUPPLIES AND ACCOUNTS SETS FORTH THREE SPECIFIC CASES AS EXAMPLES OF THOSE REFERRED TO IN QUERY (B) (2) ABOVE. IT IS REQUESTED THAT YOUR DECISION SPECIFICALLY INDICATE WHETHER OR NOT THE MEN REFERRED TO IN EACH OF THESE THREE CASES ARE EXEMPT FROM THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932.

THE THREE CASES OR EXAMPLES REFERRED TO IN QUESTION (3) ARE SET FORTH IN AN ENCLOSURE DATED OCTOBER 1, 1945, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AS FOLLOWS:

(A) A CHIEF PETTY OFFICER, AFTER COMPLETION OF 20 YEARS OF SERVICE, WAS TRANSFERRED TO THE FLEET RESERVE ON 10 JANUARY 1930, AND TO THE RETIRED LIST ON 12 DECEMBER 1939. AT TIME OF TRANSFER TO THE FLEET RESERVE AND TO THE RETIRED LIST HE HAD COMPLETED 19 YEARS, 2 MONTHS AND 11 DAYS ACTIVE ENLISTED SERVICE NOW CREDITABLE FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942. THIS MAN WAS CALLED TO ACTIVE DUTY ON 16 FEBRUARY 1942, WAS SUCCESSIVELY TEMPORARILY APPOINTED CHIEF SHIP'S CLERK, CHIEF PAY CLERK, AND LIEUTENANT (JG), SC USN, UNDER THE AUTHORITY CONTAINED IN THE ACT OF JULY 24, 1941. HE WAS RELEASED FROM ACTIVE DUTY ON 28 FEBRUARY 1945, AND ON 1 MARCH 1945, REVERTED TO PERMANENT STATUS OF CHIEF YEOMAN. UNDER SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, HE IS ENTITLED, IN THE COMPUTATION OF RETIRED PAY, TO CREDIT FOR ACTIVE SERVICE PERFORMED AS AN ENLISTED MAN FROM 16 FEBRUARY TO 5 DECEMBER 1942, AND AS A COMMISSIONED OFFICER FROM 6 DECEMBER 1942 TO 28 FEBRUARY 1945, INCLUSIVE, IN ADDITION TO THE ACTIVE ENLISTED SERVICE TO HIS CREDIT AT TIME OF TRANSFER TO THE FLEET NAVAL RESERVE. THIS ENLISTED MAN, UPON RELEASE FROM ACTIVE DUTY, RESUMED HIS FORMER CIVILIAN POSITION OF CHIEF CLERK OF THE SUPPLY DEPARTMENT, NAVAL AIR STATION, SEATTLE, WASHINGTON, AND HIS PRESENT SALARY IS $3,750. HIS RETIRED PAY IS $129.03 PER MONTH.

(B) A CHIEF PETTY OFFICER WAS TRANSFERRED TO THE RETIRED LIST ON 30 JUNE 1945 UNDER THE AUTHORITY CONTAINED IN 34 U.S.C. 431, AT WHICH TIME HE HAD COMPLETED 30 YEARS OF SERVICE CREDITABLE FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942, INCLUDING SERVICE AS A COMMISSIONED WARRANT OFFICER FROM 1 JANUARY 1942 TO 30 JUNE 1945. TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER WAS TERMINATED ON 30 JUNE 1945, DATE OF RELEASE FROM ACTIVE DUTY AND TRANSFER TO THE RETIRED LIST IN PERMANENT STATUS OF CHIEF PETTY OFFICER. THIS MAN IS NOW EMPLOYED BY THE UNITED STATES GOVERNMENT AT A SALARY OF $2,980, AND IS ENTITLED TO RETIRED PAY AT THE RATE OF $155.25 PER MONTH.

(C) A WARRANT OFFICER WAS RETIRED FOR PHYSICAL DISABILITY ON 30 APRIL 1939, AT WHICH TIME HE HAD PRIOR WARRANT AND ENLISTED SERVICE TOTALING 13 YEARS, 5 MONTHS AND 21 DAYS WHICH IS NOW CREDITABLE FOR PAY PURPOSES UNDER THE PAY READJUSTMENT ACT OF 1942. THIS OFFICER REPORTED FOR ACTIVE DUTY ON 16 OCTOBER 1940, WAS PROMOTED ON 1 JULY 1942 TO COMMISSIONED WARRANT OFFICER UNDER THE PROVISIONS OF THE ACT OF JULY 24, 1941, AND SERVED IN THAT CAPACITY UNTIL 31 AUGUST 1945, WHEN HE WAS RELEASED FROM ACTIVE DUTY AND REVERTED TO PERMANENT WARRANT RANK ON THE RETIRED LIST. THIS OFFICER IS ALSO ENTITLED, IN THE COMPUTATION OF HIS RETIRED PAY, TO CREDIT FOR WARRANT AND COMMISSIONED WARRANT SERVICE PERFORMED SUBSEQUENT TO RETIREMENT FROM 16 OCTOBER 1940 TO 31 AUGUST 1945. HE IS ENTITLED TO RETIRED PAY AT THE RATE OF $147.25 PER MONTH AND IS NOW EMPLOYED BY THE UNITED STATES GOVERNMENT AT A SALARY OF $2,320 PER ANNUM.

THE VIEWS AND COMMENTS OF THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS IN THE MATTER ARE SET FORTH IN HIS ENCLOSURE OF OCTOBER 1, 1945, AS FOLLOWS:

REF: (A) ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 382).

(B) DECISION OF COMPTROLLER GENERAL A-13204 DATED JULY 14, 1932

(12 COMP. GEN. 37).

(C) DECISION OF COMPTROLLER GENERAL A-44086 DATED AUGUST 25,

1932.

(D) DECISION OF COMPTROLLER GENERAL A-48082 DATED APRIL 12, 1933

(12 COMP. GEN. 587).

(E) DECISION OF COMPTROLLER GENERAL A-47972 DATED MAY 23, 1933.

(F) DECISION OF COMPTROLLER GENERAL A-77207 DATED SEPTEMBER 12,

1936.

(G) DECISION OF COMPTROLLER GENERAL A-87457 DATED AUGUST 6,

1937.

(H) ACT OF JULY 24, 1941 (55 STAT. 603).

(I) DECISION OF COMPTROLLER GENERAL B-18638 DATED JULY 24, 1941

(21 COMP. GEN. 72).

1. THE ACT OF JULY 31, 1894, AS AMENDED, IS MORE THAN A DUAL COMPENSATION STATUTE, AS THE PROHIBITION THEREIN IS AGAINST THE APPOINTMENT OF A PERSON, WHO HOLDS AN OFFICE THE SALARY ATTACHED TO WHICH AMOUNTS TO $2,500 PER ANNUM, TO ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. THE ACT OF MAY 10, 1916, AS AMENDED, PROHIBITS THE USE OF APPROPRIATED MONEYS FOR PAYMENT TO ANY PERSON, OTHER THAN THOSE EXCEPTED THEREIN OR AS OTHERWISE SPECIALLY AUTHORIZED BY LAW, OF MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF THE PLURAL SALARIES EXCEEDS $2,000 PER ANNUM. WHEN EACH OF THE CITED STATUTES WAS ORIGINALLY ENACTED, AND WHEN SUBSEQUENTLY AMENDED, THERE WAS NO PROVISION OF LAW AUTHORIZING THE RETIREMENT OF MEMBERS OF THE NAVY NURSE CORPS FOR AGE OR DISABILITY. YET THE COMPTROLLER GENERAL IN 15 COMP. GEN. 74, IN ANSWER TO THE QUESTION AS TO WHETHER SECTION 212/A) OF THE ACT OF JUNE 30, 1932, WAS APPLICABLE TO THE CASE OF A RETIRED NAVY NURSE, A PERSON WHO WAS NOT RECEIVING RETIRED PAY FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER, HELD THAT SUCH NURSE CAME WITHIN THE INHIBITION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, SINCE A NURSE WAS NOT SPECIFICALLY EXCEPTED THEREFROM AND, THEREFORE, WAS NOT ELIGIBLE FOR EMPLOYMENT IN A CIVILIAN CAPACITY BY THE UNITED STATES GOVERNMENT. SECTION 212 (A) OF REFERENCE (A), UNLIKE THE 1894 AND 1916 ACTS, PERMITS DUAL EMPLOYMENT OF OFFICERS OF THE NAVY RETIRED FOR AGE OR NON-SELECTION, BUT PLACES A LIMITATION ON THE COMBINED TOTAL OF SALARIES ATTACHED TO THE OFFICES (MILITARY AND CIVILIAN) WHICH MAY BE PAID TO SUCH OFFICER.

2. THE ACT OF JUNE 6, 1924 (10 U.S.C. 981) (34 U.S.C. 999), DISCUSSED IN REFERENCES (B) AND (I), PROVIDES THAT RETIRED ENLISTED MEN OF THE ARMY, NAVY, AND MARINE CORPS, WHO SERVED HONORABLY AS COMMISSIONED OFFICERS, REGULAR, TEMPORARY, OR RESERVE, IN THE MILITARY OR NAVAL SERVICE AT SOME TIME BETWEEN 6 APRIL 1917 AND 11 NOVEMBER 1918 SHALL BE ENTITLED TO RECEIVE THE PAY PRESCRIBED BY LAW, AT TIME OF RETIREMENT, FOR WARRANT OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS OF EQUIVALENT LENGTH OF SERVICE. THE SAVINGS CLAUSE IN THE CITED ACT IS TO THE EFFECT THAT NOTHING CONTAINED THEREIN SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY OF A (CONSTRUCTIVE) WARRANT OFFICER TO WHICH HE WOULD BE ENTITLED UNDER SUCH ACT BY VIRTUE OF HIS COMMISSIONED SERVICE. IN THIS CONNECTION IT IS POINTED OUT THAT UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MAY 31, 1924 (37 U.S.C. 18) ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, COAST GUARD, COAST AND GEODETIC SURVEY, PUBLIC HEALTH SERVICE, AND ADJUNCT FORCES THEREOF, FROM 6 APRIL 1917 TO 31 DECEMBER 1921, AND THAT WARRANT OFFICERS, UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1922, WERE ENTITLED TO COUNT ALL WARRANT AND COMMISSIONED SERVICE IRRESPECTIVE OF THE DATES DURING WHICH SUCH SERVICE WAS RENDERED. THE ACT OF JUNE 6, 1924, DID NOT AUTHORIZE THE RETIREMENT OF THESE ENLISTED MEN AS WARRANT OFFICERS, BUT PROVIDED THAT ENLISTED MEN WHO HAD SERVED HONORABLY AS COMMISSIONED OFFICERS AT ANY TIME BETWEEN 6 APRIL 1917 AND 11 NOVEMBER 1918 SHALL BE ENTITLED TO RECEIVE THE RETIRED PAY PRESCRIBED BY LAW AT TIME OF RETIREMENT FOR A WARRANT OFFICER WITH EQUIVALENT LENGTH OF SERVICE (ENLISTED, WARRANT, OR COMMISSIONED, IRRESPECTIVE OF WHEN RENDERED), OR BE PAID RETIRED PAY AND ALLOWANCES PRESCRIBED BY LAW FOR ENLISTED RATING AT TIME OF RETIREMENT, BASED ON PRIOR ENLISTED SERVICE, AND WARRANT AND COMMISSIONED SERVICE FROM 6 APRIL 1917 TO 31 DECEMBER 1921. AT THAT TIME THE MAXIMUM SERVICE CREDITABLE FOR LONGEVITY PAY PURPOSES IN THE CASE OF ENLISTED MEN AND WARRANT OFFICERS WAS 16 AND 12 YEARS, RESPECTIVELY. THEREFORE, CASES AROSE WHERE AN ENLISTED MAN OR WARRANT OFFICER, WHO INCLUDED COMMISSIONED SERVICE FOR RETIREMENT PURPOSES, COULD STILL RECEIVE, PRIOR TO 1 JUNE 1942, THE MAXIMUM RETIRED PAY OF HIS RANK OR RATING EVEN IF HE EXCLUDED SERVICE AS A COMMISSIONED OFFICER CREDITABLE FOR PAY PURPOSES. IT WOULD NOT APPEAR THAT THE CITED SAVINGS CLAUSE AUTHORIZED AN ENLISTED MAN, ENTITLED TO DRAW THE PAY OF A (CONSTRUCTIVE) WARRANT OFFICER BASED ON THE INCLUSION OF COMMISSIONED SERVICE, TO RELINQUISH SUCH PAY IN ORDER TO REMOVE HIMSELF FROM THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT WHILE EMPLOYED BY THE UNITED STATES GOVERNMENT, AND DURING SUCH PERIOD OF DUAL EMPLOYMENT ELECT TO DRAW THE PAY OF HIS ENLISTED STATUS BASED ON INCLUSION OF THE COMMISSIONED SERVICE FOR WHICH HE WAS ENTITLED TO RECEIVE CREDIT IN THE COMPUTATION OF PAY AS A (CONSTRUCTIVE) WARRANT OFFICER. 3. SECTION 104 (A) (8) OF REFERENCE (A) EXCEPTED ENLISTED PERSONNEL FROM THE DEFINITION OF THE TERM "OFFICER" AND "EMPLOYEE; " SECTION 104 (B) OF REFERENCE (A) EXCEPTED THE RETIRED PAY OF ENLISTED PERSONNEL FROM THE TERMS "COMPENSATION," AND SECTION 106 OF REFERENCE (A) EXEMPTED THE RETIRED PAY OF ENLISTED MEN OF CERTAIN SERVICES FROM THE PERCENTAGE REDUCTIONS IMPOSED BY SUCH ACT. HOWEVER, UNDER THE PROVISIONS OF SECTIONS 1 (A) AND (B) OF TITLE II OF THE ACT OF MARCH 20, 1933 (46 STAT. 12), ENLISTED PERSONNEL WERE NOT THEREAFTER EXCEPTED FROM THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE" AND, THEREAFTER, THEIR RETIRED PAY WAS SUBJECT TO THE SAME PERCENTAGE REDUCTION AS WARRANT OR COMMISSIONED OFFICERS. 4. SECTION 212 OF REFERENCE (2) PROVIDES THAT.

"/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.'

THE ABOVE-QUOTED PROVISION OF LAW IS NOT A PROHIBITION AGAINST DUAL EMPLOYMENT OR THE PAYMENT OF DUAL COMPENSATION, BUT MERELY PLACES A LIMITATION ON THE TOTAL AMOUNT OF COMBINED RATE OF COMPENSATION (CIVILIAN PAY PLUS RETIRED PAY) WHICH MAY BE PAID TO A "PERSON" DRAWING RETIRED PAY FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER WHILE HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, WITH THE PROVISO THAT SUCH PERSON, WHOSE RETIRED PAY EQUALS OR EXCEEDS $3,000 PER ANNUM MAY ELECT WHETHER HE WILL RECEIVE THE PAY OF THE CIVILIAN OFFICE OR THE RETIRED PAY. SECTION 212 (A) OF REFERENCE (A) WAS ORIGINALLY AN ECONOMY MEASURE TO CONSERVE MONEYS APPROPRIATED FOR RETIRED PAY; IT WAS NOT A PROHIBITION AGAINST DUAL EMPLOYMENT IN THE SAME SENSE AS IS THE 1894 STATUTE. SINCE SECTION 212 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, STATES THAT THE TERM "RETIRED PAY" AS USED THEREIN SHALL INCLUDE CREDIT FOR ALL SERVICE THAT MAY LAWFULLY ENTER INTO THE COMPUTATION THEREOF AND REFERS TO ANY PERSON ENTITLED TO RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE, IT IS DEEMED ADVISABLE TO SECURE A DECISION FROM THE COMPTROLLER GENERAL AS TO WHETHER THE RULING IN REFERENCE (I) APPLIES TO ALL MEMBERS OF THE FLEET RESERVE RECEIVING RETAINER PAY, AND ALL RETIRED ENLISTED MEN WHO ARE DRAWING RETIRED PAY PRESCRIBED BY LAW FOR THEIR RESPECTIVE ENLISTED RATINGS, ALBEIT SERVICE AS A COMMISSIONED OR COMMISSIONED WARRANT OFFICER IS INCLUDED IN DETERMINING THE LONGEVITY INCREASE TO WHICH SUCH MEN ARE ENTITLED, AND WAS INCLUDED IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE OR RETIRED LIST.

5. ENLISTED MEN OF THE REGULAR NAVY TRANSFERRED TO THE RETIRED LIST UNDER THE PROVISIONS OF 34 U.S.C. 431, 432, AFTER COMPLETION OF 30 YEARS OF SERVICE, ARE ENTITLED TO RETIRED PAY COMPUTED AS 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH ENTITLED AT TIME OF RETIREMENT. IN COMPUTING THE NECESSARY 30 YEARS OF SERVICE FOR RETIREMENT, ALL SERVICE IN THE ARMY, NAVY, MARINE CORPS, AND ALL CREDITABLE SERVICE IN THE COAST GUARD AND FORMER REVENUE CUTTER SERVICE, IS INCLUDED. SECTION 206 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, SETS FORTH THE SERVICE WHICH ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE WITH PAY, IN ACCORDANCE WITH THE PROVISIONS IN SECTIONS 1, 203 AND 204 OF THAT ACT, MAY COUNT FOR RETIREMENT PURPOSES. ALSO, UNDER THE PROVISIONS OF SECTION 9 OF THE PAY READJUSTMENT ACT OF 1942, ENLISTED MEN ARE ENTITLED TO COUNT FOR PAY PURPOSES ALL SERVICE AS A WARRANT OR COMMISSIONED OFFICER. A NUMBER OF RETIRED ENLISTED MEN OF THE NAVY AND TRANSFERRED MEMBERS OF THE FLEET RESERVE, WHO HAVE HELD TEMPORARY APPOINTMENTS AS OFFICERS UNDER THE ACT OF JULY 24, 1941, HAVE BEEN RELEASED FROM ACTIVE DUTY AND HAVE ACCEPTED CIVIL EMPLOYMENT UNDER THE UNITED STATES GOVERNMENT. IT IS DEEMED ADVISABLE TO OBTAIN A DECISION OF THE COMPTROLLER GENERAL AS TO WHETHER SUCH MEN ARE EXEMPT FROM THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932 UNDER THE RULING IN REFERENCE (B). * * *

IN ADDITION TO SECTION 212 (A) OF THE ECONOMY ACT APPROVED JUNE 30, 1932, 47 STAT. 406, QUOTED IN THE ENCLOSURE, SUBSECTION (B) OF THE SAID ACT, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761 (5 U.S.C. 59A), PROVIDES AS FOLLOWS:

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDES, 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 REGULATIONS NUMBERED 1 (A), PART I, PARAGRAPH I.

THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, AND SUBSEQUENT ACTS (5 U.S.C. 62), PROVIDES AS FOLLOWS:

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 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.

THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582 (5 U.S.C. 58 AND 59), READS 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, BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR TO OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA * * * .

THE STATUTORY PROVISIONS UNDER WHICH TRANSFERRED MEMBERS OF THE FLEET RESERVE ARE ENTITLED TO RETAINER PAY ARE CONTAINED IN THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175, SECTION 1 OF WHICH ESTABLISHED, AS A COMPONENT PART OF THE UNITED STATES NAVY, A NAVAL RESERVE TO CONSIST OF THE FLEET RESERVE, ORGANIZED RESERVE, ETC.; SECTION 201, 52 STAT. 1178, PROVIDES THAT THE FLEET RESERVE SHALL BE COMPOSED OF OFFICERS OR ENLISTED MEN TRANSFERRED OR ASSIGNED THERETO IN ACCORDANCE WITH SUCH ACT; SECTION 203, 52 STAT. 1178, PROVIDES THAT ENLISTED MEN WHO ENLISTED IN THE REGULAR NAVY PRIOR TO JULY 1, 1925, MAY BE TRANSFERRED TO THE FLEET RESERVE AFTER COMPLETION OF 16 AND LESS THAN 20 YEARS' NAVAL SERVICE WITH PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY WERE RECEIVING AT THE TIME OF TRANSFER, PLUS ALL PERMANENT ADDITIONS THERETO; AND SECTION 204, 52 STAT. 1179, PROVIDES THAT MEN SERVING IN THE REGULAR NAVY WHO ENLISTED AFTER JULY 1, 1925, MAY, UPON THEIR OWN REQUEST, BE TRANSFERRED TO THE FLEET RESERVE UPON COMPLETION OF AT LEAST 29 YEARS' NAVAL SERVICE, PROVIDED THEY ARE PHYSICALLY AND OTHERWISE QUALIFIED TO PERFORM DUTY IN TIME OF WAR, WITH PAY AT THE RATE OF ONE-HALF OF THE BASE PAY THEY ARE RECEIVING AT THE TIME OF TRANSFER. SECTION 4 OF THE ACT, 52 STAT. 1176, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.

IN VIEW OF THE EXPRESS PROVISIONS OF THE SAID SECTION 4, AUTHORIZING "ANY MEMBER OF THE NAVAL RESERVE"--- WHICH INCLUDES TRANSFERRED MEMBERS OF THE FLEET RESERVE--- TO BE EMPLOYED IN THE CIVIL BRANCH OF THE PUBLIC SERVICE AND RECEIVE THE COMPENSATION ATTACHING TO SUCH EMPLOYMENT, IN ADDITION TO ANY PAY AND ALLOWANCES HE MAY BE ENTITLED TO RECEIVE UNDER THE ACT, THERE WOULD BE NO LEGAL OBJECTION TO THE PAYMENT OF RETAINER PAY AUTHORIZED THEREIN TO SUCH MEMBERS OF THE FLEET RESERVE, IN ADDITION TO THE PAY OF THEIR CIVILIAN GOVERNMENT POSITIONS, IRRESPECTIVE OF THE RATE OF COMPENSATION ATTACHING TO THE CIVILIAN POSITION AND IRRESPECTIVE OF WHETHER SUCH RETAINER PAY IS TO BE VIEWED AS "RETIRED PAY" WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OR WHETHER A PERIOD OF SERVICE AS A TEMPORARY COMMISSIONED OFFICER OR COMMISSIONED WARRANT OFFICER MAY HAVE BEEN INCLUDED IN THE COMPUTATION OF LENGTH OF SERVICE FOR LONGEVITY PAY PURPOSES ON WHICH SUCH RETAINER PAY IS BASED OR IN DETERMINING ELIGIBILITY FOR TRANSFER TO THE FLEET RESERVE. QUESTIONS (1) AND (2) INSOFAR AS THEY RELATE TO THE APPLICABILITY OF SECTION 212 OF THE ECONOMY ACT TO RETAINER PAY OF TRANSFERRED MEMBERS OF THE FLEET RESERVE, ARE ANSWERED ACCORDINGLY.

IN ADDITION TO THE LAWS CITED IN THE ENCLOSURE GOVERNING THE RETIREMENT AND RETIRED PAY OF ENLISTED MEN OF THE REGULAR NAVY RETIRED FOR AGE OR PHYSICAL DISABILITY, SECTION 204 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1179, PROVIDES THAT ENLISTED MEN TRANSFERRED TO THE FLEET RESERVE UNDER THAT ACT SHALL, UPON COMPLETION OF 30 YEARS' SERVICE, BE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY WITH THE PAY THEY WERE THEN LEGALLY ENTITLED TO RECEIVE PLUS ALL PERMANENT ADDITIONS THERETO. ALSO, SECTION 15 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 367, PROVIDES, INTER ALIA, THAT RETIRED ENLISTED MEN AND MEMBERS OF THE FLEET RESERVE SHALL HAVE THEIR RETIRED PAY OR RETAINER PAY COMPUTED AS NOW AUTHORIZED BY LAW ON THE BASIS OF THE PAY PROVIDED IN SUCH ACT, INCLUDING INCREASES FOR ALL ACTIVE DUTY PERFORMED SINCE RETIREMENT OR TRANSFER TO THE FLEET RESERVE IN THE COMPUTATION OF THEIR LONGEVITY PAY.

IN DECISION OF JULY 14, 1932, 12 COMP. GEN. 37, REFERRED TO IN YOUR LETTER, THERE WERE CONSIDERED SEVERAL QUESTIONS RESPECTING THE APPLICABILITY OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 382, TO CERTAIN MILITARY AND NAVAL PERSONNEL. QUESTION AND ANSWER NO. 13 READ AS FOLLOWS:

"13.SECTION 212 PLACES CERTAIN LIMITATIONS ON THE AMOUNTS OF RETIRED PAY PAYABLE ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY READJUSTMENT ACT OF 1922, WHO HOLD CERTAIN OFFICES, 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. THERE ON THE RETIRED LIST OF THE VARIOUS SERVICES SEVERAL THOUSAND ENLISTED MEN WHO, UNDER THE PROVISIONS OF THE ACT OF JUNE 6, 1924 (43 STAT. 472; U.S.C. 10; 981 AND 34. 999), RECEIVE THE RETIRED PAY OF RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE, AND WHO, UNDER THE ACT OF MAY 7, 1932 ( PUBLIC NO. 123) ARE NOW ENTITLED TO BE ADVANCED IN RANK ON THE RETIRED LIST OF THE HIGHEST COMMISSIONED GRADES HELD BY THEM DURING THE WORLD WAR OR THE SPANISH AMERICAN WAR. WITHIN THE MEANING OF SECTION 212, ARE SUCH RETIRED ENLISTED MEN TO BE REGARDED AS PERSONS RECEIVING RETIRED PAY "ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER? " IF SO, WILL THE REDUCTION REDUCE THEIR RETIRED PAY BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE?

13. SECTION 104 (A) (8) EXCEPTS ENLISTED PERSONNEL OF CERTAIN-NAMED SERVICES FROM THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE.' SECTION 104 (B) EXCEPTS RETIRED PAY OF ENLISTED PERSONNEL FROM THE TERM "COMPENSATION.' SECTION 106 EXEMPTS RETIRED PAY OF ENLISTED MEN OF CERTAIN SERVICES FROM PERCENTAGE REDUCTIONS. SECTION 212 PRESCRIBES A LIMITATION APPLICABLE TO COMPENSATION FOR CIVILIAN SERVICE AND RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' THESE SECTIONS OF THE STATUTE SHOW AN INTENTION THAT RETIRED PAY FOR THE NAMED ENLISTED SERVICES SHALL NOT BE AFFECTED BY THE OPERATION OF THE ACT. THE ACT OF JUNE 6, 1924, 43 STAT. 472, PURSUANT TO WHICH THE ENLISTED MEN, MENTIONED IN PARAGRAPH 13 OF YOUR LETTER, ARE GRANTED RETIRED PAY ON ACCOUNT OF COMMISSIONED SERVICE, CONTAINS THE FOLLOWING SAVING CLAUSE:

" * * * PROVIDED FURTHER, NOTHING IN THIS ACT SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK, OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS ACT BY VIRTUE OF HIS COMMISSIONED SERVICE.' CONSIDERING THIS SAVING CLAUSE IN CONNECTION WITH THE EXEMPTIONS IN THE ECONOMY ACT IN FAVOR OF RETIRED PAY OF ENLISTED MEN, IT REASONABLY MAY BE CONCLUDED THAT IN THE APPLICATION OF SECTION 212 OF THE LATTER STATUTE THE RETIRED PAY OF THE ENLISTED MEN MENTIONED IN PARAGRAPH 13 OF YOUR LETTER SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE. ALSO, SEE 12 COMP. GEN. 97, 100, QUESTION AND ANSWER NO. 5, REACHING A SIMILAR CONCLUSION IN THE CASE OF AN ARMY ENLISTED MAN RECEIVING THE RETIRED PAY OF A WARRANT OFFICER UNDER SECTION 127 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED; ALSO, 12 COMP. GEN. 587, 592, QUESTIONS 18 AND 19 AND THE ANSWERS THERETO, TO THE EFFECT THAT THE FAILURE TO EXEMPT THE RETIRED PAY OF ENLISTED MEN UNDER THE ACT OF MARCH 20, 1933, 48 STAT. 12, DOES NOT CHANGE THE RULING IN 12 COMP. GEN. 37, RESPECTING THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932.

IT WILL BE NOTED THAT SECTION 8 OF THE SAID ACT OF JUNE 6, 1924, 43 STAT. 472, UNDER WHICH THE ENLISTED MEN INVOLVED IN THE DECISION OF JULY 14, 1932, WERE RECEIVING RETIRED PAY, PROVIDES THAT RETIRED ENLISTED MEN OF THE ARMY THERETOFORE OR THEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY OF THE UNITED STATES AT SOMETIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, ARE ENTITLED TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS OF THE ARMY. ALSO, THE SAID SECTION 8 PROVIDES SIMILAR RETIRED PAY BENEFITS FOR ENLISTED MEN OF THE REGULAR NAVY OR MARINE CORPS THERETOFORE OR THEREAFTER RETIRED WHO SERVED HONORABLY AS COMMISSIONED OFFICERS, REGULAR, TEMPORARY, OR RESERVE, IN THE NAVAL SERVICE AT SOMETIME BETWEEN THE SAID DATES AND WHO AT THE TIME OF THEIR RETIREMENT ARE MEMBERS OF THE REGULAR NAVY OR MARINE CORPS. THE SAID DECISION OF JULY 14, 1932, IN APPLYING THE RESTRICTION OF SECTION 212 (A) OF THE ECONOMY ACT TO THE CASE OF ENLISTED MEN ENTITLED TO THE PAY A RETIRED WARRANT OFFICER UNDER THE ACT OF JUNE 6, 1924, CONCLUDED, IN EFFECT, THAT AS ENLISTED MEN RECEIVING THE INCREASED PAY OF RETIRED WARRANT OFFICERS UNDER THE SAID ACT OF JUNE 6, 1924, DID SO ONLY BY VIRTUE OF HAVING SERVED AS COMMISSIONED OFFICERS DURING THE FIRST WORLD WAR, THEY WERE RECEIVING "RETIRED PAY * * * FOR OR ON ACCOUNT OF SERVICES AS COMMISSIONED OFFICER," WITHIN THE MEANING OF THE SAID SECTION 212 (A), AND, HENCE, THAT THEIR RETIRED PAY AND CIVILIAN COMPENSATION WERE SUBJECT TO THE $3,000 PER ANNUM LIMITATION PRESCRIBED BY SECTION 212 (A), BUT THAT THE PAY OF SUCH RETIRED ENLISTED MEN SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED IF THEY HAD HAD ONLY ENLISTED SERVICE. DECISION OF JULY 24, 1941, 21 COMP. GEN. 72, ALSO REFERRED TO IN YOUR LETTER, THERE WAS CONSIDERED THE QUESTION OF WHETHER A RETIRED ENLISTED MAN RECEIVING THE PAY OF A RETIRED WARRANT OFFICER UNDER THE SAID SECTION 8 OF THE ACT OF JUNE 6, 1924, LEGALLY COULD BE APPOINTED A MILITARY INSTRUCTOR IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AT A SALARY OF $1,800 PER ANNUM AND CONTINUE IN RECEIPT OF THE REDUCED RETIRED PAY OF $1 MONTH OF HIS ENLISTED GRADE UNDER THE CIRCUMSTANCES THERE INVOLVED. THAT DECISION, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

THE VIEW EXPRESSED BY THE FINANCE DEPARTMENT, UNITED STATES ARMY, TO THE EFFECT THAT RETIRED ENLISTED MEN OF THE ARMY ARE NOT SUBJECT TO ANY OF THE DUAL COMPENSATION STATUTES--- EXCEPT THAT UNDER THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AN ENLISTED MAN OF THE ARMY RETIRED ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER DURING THE WORLD WAR WHO ACCEPTS A CIVILIAN POSITION MUST HAVE HIS RETIRED PAY REDUCED TO A RATE NOT IN EXCESS OF THE RATE HE WOULD HAVE RECEIVED IF HE HAD BEEN RETIRED UPON THE BASIS OF ENLISTED SERVICES, ONLY, IF THE COMBINED RATE OF THE SALARY OF THE CIVILIAN POSITION AND THE RETIRED PAY COMPUTED ON ACCOUNT OF COMMISSIONED SERVICE WOULD EXCEED $3,000 PER ANNUM--- APPEARS TO BE CORRECT. 12 COMP. GEN. 37.

REFERRING TO THE PENULTIMATE PARAGRAPH OF THE LETTER, SUPRA, IT IS UNDERSTOOD THAT THE AMOUNT OF $133.87 PER MONTH IS THE RATE OF RETIRED PAY TO WHICH CAPTAIN REYNOLDS WOULD BE ENTITLED AS A RETIRED ENLISTED MAN EXCLUDING THE BENEFIT HE ACQUIRED UNDER THE ACT OF JUNE 6, 1924, 43 STAT. 472, TO BE RETIRED AS A WARRANT OFFICER ON ACCOUNT OF HAVING SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR. IF THAT BE THE FACT, THERE WOULD NO LEGAL OBJECTION TO HIS EMPLOYMENT AS MILITARY INSTRUCTOR IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA EVEN THOUGH THE SALARY RATE OF THE CIVILIAN POSITION AND HIS REDUCED RETIRED PAY EXCEED THE $3,000 PER ANNUM.

IT WILL BE NOTED THAT NEITHER OF THOSE DECISIONS CONSIDERED OR DECIDED THE QUESTION HERE INVOLVED OF WHETHER RETIRED ENLISTED MEN RECEIVING RETIRED PAY AS OF THEIR ENLISTED GRADES ARE TO BE REGARDED AS IN RECEIPT OF "RETIRED PAY * * * FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF THE SAID SECTION 212 (A) MERELY BECAUSE A PERIOD OF SERVICE AS A TEMPORARY COMMISSIONED OR COMMISSIONED WARRANT OFFICER EITHER BEFORE OR AFTER RETIREMENT, MAY BE INCLUDED FOR LONGEVITY PAY IN THE COMPUTATION OF THE ACTIVE DUTY ENLISTED PAY ON WHICH THEIR RETIRED PAY IS DIRECTLY OR INDIRECTLY BASED OR BECAUSE SUCH PERIOD WAS INCLUDED IN DETERMINING THEIR ELIGIBILITY FOR RETIREMENT AS ENLISTED MEN. HOWEVER, IN DECISION OF AUGUST 25, 1932, A-44086, THERE WERE CONSIDERED, INTER ALIA, TWO QUESTIONS INVOLVING THE APPLICATION OF THE SAID SECTION 212 (A,) INSOFAR AS CONCERNED THE COUNTING OF COMMISSIONED SERVICE IN THE COMPUTATION OF THE RETIRED PAY OF CERTAIN WARRANT OFFICERS OF THE ARMY RETIRED UNDER THE PROVISIONS OF SECTION 4 (A) OF THE ACT OF JUNE 4, 1920, 41 STAT. 761, THE TWO QUESTIONS BEING AS FOLLOWS:

WARRANT OFFICER CHARLES C. DAWSON WAS RETIRED FROM ACTIVE SERVICE UNDER THE PROVISIONS OF SECTION 4A OF THE ACT OF JUNE 4, 1920, AND SECTION 1251, REVISED STATUTES. THE DATE OF RETIREMENT IS SHOWN AS AUGUST 9, 1922. STATEMENT OF SERVICE FROM THE ADJUTANT GENERAL, COPY OF WHICH IS ATTACHED HERETO, SHOWS THAT HE HAD COMPLETED AT DATE OF RETIREMENT 20 YEARS, 3 MONTHS AND 29 DAYS FOR LONGEVITY PAY PURPOSES AND IN COMPUTING THE SERVICE THERE WAS INCLUDED 1 YEAR, 7 MONTHS AND 8 DAYS COMMISSIONED SERVICE. THIS WARRANT OFFICER CONSIDERED AS RECEIVING RETIRED PAY ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER FOR THE PURPOSE OF APPLYING THE LIMITATIONS AS IMPOSED BY SECTION 212 OF THE ACT OF JUNE 30, 1932?

WARRANT OFFICER FRANK MITCHELL WAS RETIRED FROM ACTIVE SERVICE EFFECTIVELY JULY 31, 1930, UNDER THE PROVISIONS OF SECTION 4A OF THE ACT OF JUNE 4, 1920, AND SECTION 1243, REVISED STATUTES. THE STATEMENT OF HIS SERVICE, FURNISHED BY THE ADJUTANT GENERAL, WHICH IS ATTACHED HERETO, SHOWS THAT AT THE TIME OF RETIREMENT HE HAD COMPLETED 31 YEARS, 9 MONTHS AND 7 DAYS SERVICE FOR LONGEVITY PAY PURPOSES. IN COMPUTING THE FIRST 29 YEARS FOR WHICH LONGEVITY PAY IS ALLOWED, IT IS NECESSARY THAT THERE BE INCLUDED SERVICE AS A COMMISSIONED OFFICER; HOWEVER, HE HAS COMPLETED MORE THAN 20 YEARS SERVICE WITHOUT COUNTING THIS SERVICE. IS HE CONSIDERED AS RECEIVING RETIRED PAY ON ACCOUNT OF COMMISSIONED SERVICE FOR THE PURPOSE OF APPLYING THE LIMITATIONS ON RETIRED PAY IMPOSED BY SECTION 212 OF THE ACT OF JUNE 30, 1932? IN REPLY TO THOSE QUESTIONS IT WAS STATED THAT---

WHILE WARRANT OFFICERS DAWSON AND MITCHELL MAY HAVE RECEIVED CREDIT IN COMPUTING THEIR SERVICE FOR RETIREMENT FOR SOME COMMISSIONED SERVICE, THEY WERE RETIRED, ACCORDING TO YOUR STATEMENT, AS WARRANT OFFICERS, AND THEIR RETIRED PAY IS NOT, THEREFORE, TO BE CONSIDERED AS "RETIRED PAY * * * FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER" WITHIN THE PROVISION OF SECTION 212 OF THE ECONOMY ACT.

THAT VIEW OF SECTION 212 (A) OF THE ECONOMY ACT HAS BEEN FOLLOWED BY THIS OFFICE IN SIMILAR CASES WHERE ENLISTED MEN TEMPORARILY SERVED AS COMMISSIONED OR COMMISSIONED WARRANT OFFICERS AND WERE RETIRED AS ENLISTED MEN WITH THE RETIRED PAY OF THEIR ENLISTED GRADES. SEE A 81868, DECEMBER 4, 1936; CF. 14 COMP. GEN. 842; A-44778, APRIL 3, 1933. THE FACT THAT A RETIRED ENLISTED MAN MAY HAVE HAD A PERIOD OF SERVICE AS A TEMPORARY COMMISSIONED OR COMMISSIONED WARRANT OFFICER EITHER BEFORE OR AFTER RETIREMENT AND SUCH SERVICE MAY BE INCLUDED IN THE COMPUTATION OF LONGEVITY PAY AS AN ENLISTED MAN OR IN THE LENGTH OF SERVICE FOR PURPOSES OF RETIREMENT AS AN ENLISTED MAN DOES NOT NECESSARILY MEAN HE IS TO BE CONSIDERED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS COMMISSIONED OFFICER.' ON THE CONTRARY, IT WOULD APPEAR THAT, INSOFAR AS THE SAID SECTION 212 (A) IS CONCERNED, AN ENLISTED MAN WHO IS RETIRED AS AN ENLISTED MAN WITH THE RETIRED PAY OF HIS ENLISTED GRADE REASONABLY IS NOT TO BE VIEWED AS RECEIVING RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE, ALTHOUGH SUCH SERVICE IS AUTHORIZED TO BE COUNTED FOR LONGEVITY PAY AS AN ENLISTED MAN AND TOWARD RETIREMENT AS AN ENLISTED MAN, WHEN IT IS CONSIDERED THAT THE SERVICE COULD BE COUNTED FOR SUCH PURPOSES IRRESPECTIVE OF WHETHER IT WAS COMMISSIONED OR ENLISTED SERVICE.

ACCORDINGLY, I HAVE TO ADVISE THAT A RETIRED ENLISTED MAN OF THE NAVY RECEIVING RETIRED PAY ON THE BASIS OF HIS ENLISTED GRADE IS NOT TO BE CONSIDERED AS RECEIVING "RETIRED PAY * * * FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER," WITHIN THE MEANING OF SECTION 212 (A) OF THE ACT OF JUNE 30, 1932, SOLELY BY REASON OF THE FACT THAT SERVICE AS A COMMISSIONED OR COMMISSIONED WARRANT OFFICER MAY BE INCLUDED IN THE COMPUTATION OF HIS LENGTH OF SERVICE FOR LONGEVITY PAY AND RETIREMENT PURPOSES AS AN ENLISTED MAN, IRRESPECTIVE OF WHETHER SUCH COMMISSIONED SERVICE WAS BEFORE OR AFTER RETIREMENT. QUESTIONS (1) AND (2), INSOFAR AS THEY RELATE TO RETIRED PAY OF ENLISTED MEN ARE ANSWERED ACCORDINGLY.

THE ACT OF JULY 31, 1894, AS AMENDED, SUPRA, SPECIFICALLY PROVIDES THAT RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS AND COAST GUARD "RETIRED FOR ANY CAUSE" SHALL NOT BE CONSTRUED TO HOLD OFFICE DURING SUCH RETIREMENT WITHIN THE MEANING OF THE STATUTE. AND THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, SUPRA, SPECIFICALLY EXCEPTS RETIRED OFFICERS AND ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS AND COAST GUARD FROM THE LIMITATIONS THEREIN PRESCRIBED. HENCE, SINCE RETIRED ENLISTED MEN ARE EXPRESSLY EXEMPT FROM THE RESTRICTIONS OF SUCH STATUTES AND AS THE LIMITATION IN SECTION 212 (A) ON THE TOTAL RETIRED PAY AND CIVILIAN COMPENSATION WHICH A PERSON MAY RECEIVE IS ONLY APPLICABLE TO RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED FICER," YOU ARE ADVISED THAT THE RETIRED ENLISTED MEN REFERRED TO IN EXAMPLES (A) AND (B) OF THE ENCLOSURE FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, WHO ARE IN RECEIPT OF RETIRED PAY OF THEIR ENLISTED GRADES, MAY RECEIVE THE COMPENSATION APPLICABLE TO THEIR CIVILIAN EMPLOYMENT IN THE UNITED STATES GOVERNMENT AND CONTINUE IN RECEIPT OF SUCH RETIRED PAY. SEE 13 COMP. GEN. 60.

IT APPEARS FROM THE ENCLOSURE THAT THE RETIRED WARRANT OFFICER REFERRED TO IN EXAMPLE (C,) WAS RETIRED FOR "PHYSICAL DISABILITY" WITH RETIRED PAY OF $147.25 PER MONTH, AND NOW IS EMPLOYED BY THE UNITED STATES GOVERNMENT AT A SALARY OF $2,300 PER ANNUM. IT IS WELL SETTLED THAT THE PHRASE "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" APPEARING IN THE SAID SECTION 212 (A) DOES NOT INCLUDE SERVICE AS A WARRANT OFFICER, AND, HENCE, SUCH AN OFFICER IS NOT SUBJECT TO THE LIMITATION OF THE SAID SECTION. COMP. GEN. 232. HOWEVER, UNDER THE ACT OF JULY 31, 1894, AS AMENDED, WARRANT OFFICERS ARE REGARDED AS COMING WITHIN THE EXCEPTION RELATING TO "OFFICERS" RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY, RATHER THAN AS ,ENLISTED MEN" RETIRED FOR ANY CAUSE. SEE 21 COMP. GEN. 38 AND 16 ID. 232, 234. HENCE, WHILE A RETIRED WARRANT OFFICER IN RECEIPT OF RETIRED PAY OF LESS THAN $2,500 PER ANNUM WOULD BE PRECLUDED UNDER THE 1894 STATUTE FROM ACCEPTING AN OFFICE TO WHICH THE SALARY AMOUNTS TO $2,500 OR MORE PER ANNUM, OR VICE VERSA, UNLESS RETIRED FOR INJURIES RECEIVED IN BATTLE, ETC., SINCE IT APPEARS THAT NEITHER THE RETIRED PAY NOR CIVILIAN COMPENSATION RECEIVED BY THE WARRANT OFFICER REFERRED TO IN EXAMPLE (C) IS AT THE RATE OF $2,500 OR MORE PER ANNUM THE 1894 STATUTE WOULD NOT PRECLUDE EMPLOYMENT IN HIS PRESENT CIVILIAN POSITION AND RECEIPT OF THE COMPENSATION PRESENTLY ATTACHED THERETO WHILE IN RECEIPT OF RETIRED PAY AS A RETIRED WARRANT OFFICER. SEE 13 COMP. GEN. 60 AND 23 ID. 445.