B-57703, JUNE 28, 1946, 25 COMP. GEN. 912

B-57703: Jun 28, 1946

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE DUTIES OF WHICH POSITION ARE CONFINED TO THOSE PRESCRIBED BY TERRITORIAL LAWS FOR WHICH COMPENSATION IS PAYABLE FROM TERRITORIAL FUNDS. IS NOT TO BE REGARDED AS HOLDING A POSITION "UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30. AS FOLLOWS: YOUR DECISION IS REQUESTED WITH RESPECT TO WHETHER SECTION 212. THE ABOVE NAMED VETERAN WAS ON ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES FROM MAY 25. SHOWS THAT THE VETERAN IS ENTITLED TO RETIREMENT PAY IN THE AMOUNT OF $375.00 MONTHLY FROM AUGUST 3. WHICH DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR AS THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY.

B-57703, JUNE 28, 1946, 25 COMP. GEN. 912

COMPENSATION - DOUBLE - RETIRED OFFICER APPOINTED AS ADJUTANT GENERAL OF HAWAII A RETIRED ARMY OFFICER APPOINTED BY THE PRESIDENT AS ADJUTANT GENERAL OF HAWAII (32 U.S.C. 12), THE DUTIES OF WHICH POSITION ARE CONFINED TO THOSE PRESCRIBED BY TERRITORIAL LAWS FOR WHICH COMPENSATION IS PAYABLE FROM TERRITORIAL FUNDS, IS NOT TO BE REGARDED AS HOLDING A POSITION "UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION, AND, THEREFORE, MAY CONTINUE TO RECEIVE RETIRED PAY AND, CONCURRENTLY, COMPENSATION AS ADJUTANT GENERAL.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JUNE 28, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 6, 1946, AS FOLLOWS:

YOUR DECISION IS REQUESTED WITH RESPECT TO WHETHER SECTION 212, PUBLIC 212, 72ND CONGRESS, PROHIBITS THE RECEIPT CONCURRENTLY OF RETIREMENT PAY UNDER PUBLIC NO. 18, 76TH CONGRESS, AND SALARY AS A CIVILIAN EMPLOYEE OF THE TERRITORY OF HAWAII IN THE CASE OF PERRY MYERS SMOOT, C-789,815.

THE ABOVE NAMED VETERAN WAS ON ACTIVE DUTY WITH THE ARMY OF THE UNITED STATES FROM MAY 25, 1941, TO AUGUST 2, 1945, CERTIFICATION OF THE WAR DEPARTMENT DATED FEBRUARY 9, 1946, SHOWS THAT THE VETERAN IS ENTITLED TO RETIREMENT PAY IN THE AMOUNT OF $375.00 MONTHLY FROM AUGUST 3, 1945, FOR ARTHRITIS, INVOLVING SEVERAL VERTEBRAE; PERIARTHRITIS OF LEFT SHOULDER, LEFT WRIST, FINGERS OF LEFT HAND; AND ATROPHY OF MUSCLES, UPPER LEFT EXTREMITY, WHICH DISABILITY WAS NOT INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR AS THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY. BASED ON THIS CERTIFICATION, THE VETERAN HAS BEEN AUTHORIZED RETIREMENT PAY IN THE AMOUNT OF $375.00 MONTHLY FROM AUGUST 3, 1945.

THE VETERAN WAS ADVISED BY LETTER DATED FEBRUARY 25, 1946 THAT SECTION 212, PUBLIC NO. 212, 72ND CONGRESS, PROVIDES IN EFFECT THAT NO FEDERAL EMPLOYEE, EMPLOYEE OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR EMPLOYEE OF ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED DURING THE PERIOD OF SUCH EMPLOYMENT TO RETIRED PAY FROM THE UNITED STATE ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH EMPLOYMENT MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN &3,000.00 ANNUALLY, BUT THAT SAID PROVISIONS ARE NOT FOR APPLICATION IF THE DISEASE OR INJURY FOR WHICH RETIREMENT PAY HAS BEEN AUTHORIZED WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR WAS THE RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY.

UNDER DATE OF MARCH 6, 1946, THE VETERAN REPLIED BY LETTER, IN WHICH THE FOLLOWING APPEARS:

"THIS ACKNOWLEDGES YOUR LETTER CITED ABOVE AND THE SUBJECT OF MY RETIREMENT AND CLAIM UNDER SEC. 5, PUBLIC NO. 18, 76 CONGRESS.

"UPON MY RECEIPT OF A LETTER DATED 9 FEB., 1946 FROM THE ADJUTANT GENERAL OF THE ARMY THAT I HAD BEEN CERTIFIED TO YOUR BUREAU FOR RETIREMENT PAY I WROTE YOU 27 FEB., 1946, STATING I DESIRED THE RETIREMENT PAY AND GAVE MY LOCAL ADDRESS (AS SHOWN ON THIS LETTER).

"IN REGARDS TO THE PROVISIONS OF SEC. 212, PUBLIC 212, 72D. CONGRESS RELATING TO RECEIPT OF A GOVERNMENT SALARY AND RETIREMENT PAY CONCURRENTLY I HAVE A QUESTION ON THIS FOR YOUR LEGAL INTERPRETATION. MY "CIVILIAN" EMPLOYMENT FOR THE PAST 23 YEARS HAS BEEN THAT OF THE ADJUTANT GENERAL OF HAWAII, AN APPOINTMENT BY THE PRESIDENT OF THE UNITED STATES, BUT WHICH APPOINTMENT DOES NOT CARRY ANY PROVISIONS FOR PAY OR SALARY OR COMPENSATION. WITH THE EXCEPTION OF MY RECENT 4 YEARS AND 5 MONTHS ACTIVE DUTY IN THE AUS I HAVE BEEN PAID A REGULAR SALARY BY THE TERRITORY OF HAWAII. SUCH SALARY HAS COME FROM THE GENERAL REVENUES OF THE TERRITORY AS COLLECTED THRU TAXES; NON-FEDERAL ONES.

"SINCE RESUMING MY FULL DUTIES AS THE TERRITORIAL ADJUTANT GENERAL AS OF AUGUST 3, 1945, I HAVE NOT BEEN RECEIVING ANY PAY OR REMUNERATION WHATSOEVER FROM ANY SOURCE BUT WILL UNDOUBTEDLY BE REIMBURSED FOR MY SERVICES BY THE TERRITORIAL LEGISLATURE AT ITS NEXT SESSION, NOW SET FOR THE SPRING OF 1947.

"QUESTION: AM I ENTITLED TO BOTH THE TERRITORIAL STIPEND AND THE RETIRED PAY FOR THE SAME CONCURRENT PERIOD OF SERVICE?

SECTION 11, TITLE 32, U.S.C., RELATING TO THE NATIONAL GUARD, PROVIDES THAT THERE SHALL BE APPOINTED IN EACH STATE, TERRITORY, AND THE DISTRICT OF COLUMBIA AN ADJUTANT GENERAL, WHO SHALL PERFORM SUCH DUTIES AS MAY BE PRESCRIBED BY THE LAWS OF SUCH STATE, TERRITORY,AND DISTRICT, RESPECTIVELY. SECTION 12, TITLE 32, U.S.C., PROVIDES THAT THE ADJUTANT GENERALS OF THE TERRITORIES AND THE DISTRICT OF COLUMBIA SHALL BE APPOINTED BY THE PRESIDENT WITH SUCH RANK AND QUALIFICATIONS AS HE MAY PRESCRIBE, AND EACH ADJUTANT GENERAL SHALL BE A CITIZEN OF THE TERRITORY FOR WHICH HE IS APPOINTED. YOUR ATTENTION IS ALSO INVITED TO SECTIONS 20 AND 21, TITLE 32, U.S.C.

PUBLIC LAW 126, 79TH CONGRESS, APPROVED JULY 3, 1945, ENTITLED, "AN ACT MAKING APPROPRIATIONS FOR THE MILITARY ESTABLISHMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1946, AND FOR OTHER PURPOSES," PROVIDES AMONG OTHER THINGS THAT:

"NO PART OF THE APPROPRIATIONS MADE IN THIS ACT SHALL BE AVAILABLE FOR PAY, ALLOWANCES, OR TRAVELING OR OTHER EXPENSES OF ANY OFFICER OR ENLISTED MAN OF THE NATIONAL GUARD WHO MAY BE DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY (WHERE RETIREMENT HAS BEEN MADE ON ACCOUNT OF PHYSICAL DISABILITY OR AGE) FROM THE GOVERNMENT OF THE UNITED STATES: PROVIDED, THAT NOTHING HEREIN SHALL BE CONSTRUED AS BARRING THE CONTINUANCE OF ADJUTANTS GENERAL IN A FEDERALLY RECOGNIZED STATUS WITHOUT PAY UNDER THIS ACT.'

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, PROVIDES:

SEC. 212. (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.

(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.

THE FOREGOING STATUTE CONSTITUTES NO BAR TO A RETIRED ARMY OFFICER HOLDING AN OFFICE OR POSITION WHETHER UNDER THE UNITED STATES GOVERNMENT OR UNDER A TERRITORY IF NO COMPENSATION IS PAID TO HIM FROM FEDERAL FUNDS AS SALARY OF SUCH POSITION. IT APPEARS FROM YOUR SUBMISSION THAT WHILE THE RETIRED ARMY OFFICER WAS APPOINTED ADJUTANT GENERAL FOR THE TERRITORY OF HAWAII BY THE PRESIDENT IN ACCORDANCE WITH 32 U.S.C. 12, HE WILL RECEIVE NO COMPENSATION FROM THE UNITED STATES AS ADJUTANT GENERAL AND ACCORDINGLY SAID SECTION 212 OF THE ECONOMY ACT, SUPRA, IS NOT FOR APPLICATION IN THIS CASE--- THE HOLDING OF THAT POSITION NOT BEING "UNDER THE UNITED STATES GOVERNMENT" BUT RATHER UNDER THE GOVERNMENT OF THE TERRITORY OF HAWAII.

THERE HAS NOT BEEN OVERLOOKED SECTION 1 OF THE ACT OF MARCH 3, 1917, 39 STAT. 1106, WHICH PROVIDES:

* * * THAT ON AND AFTER JULY FIRST, NINETEEN HUNDRED AND NINETEEN, NO GOVERNMENT OFFICIAL OR EMPLOYEE SHALL RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY, AND NO PERSON, ASSOCIATION, OR CORPORATION SHALL MAKE ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENT THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES. ANY PERSON VIOLATING ANY OF THE TERMS OF THIS PROVISO SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $1,000 OR IMPRISONMENT FOR NOT LESS THAN SIX MONTHS, OR BY BOTH SUCH FINE AND IMPRISONMENT AS THE COURT MAY DETERMINE. WHILE THE ADJUTANT GENERAL IS REQUIRED TO BE APPOINTED BY THE PRESIDENT OF THE UNITED STATES, HIS DUTIES ARE CONFINED TO SUCH AS ARE PRESCRIBED BY THE LAWS OF THE TERRITORY, 32 U.S.C. 11, THEREFORE, HE IS NOT AN OFFICER OF THE UNITED STATES, BUT OF THE TERRITORY.

ANSWERING YOUR QUESTIONS SPECIFICALLY, YOU ARE INFORMED THAT SECTION 212 OF THE ECONOMY ACT DOES NOT PROHIBIT THE RECEIPT CONCURRENTLY OF RETIRED PAY FROM THE UNITED STATES AS AN ARMY OFFICER AND SALARY AS AN ADJUTANT GENERAL OF THE TERRITORY OF HAWAII, PAID FROM TERRITORIAL FUNDS.