B-60202, OCTOBER 4, 1946, 26 COMP. GEN. 231

B-60202: Oct 4, 1946

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500 PER ANNUM IS NOT PRECLUDED BY THE DUAL EMPLOYMENT RESTRICTION OF THE ACT OF JULY 31. AN OFFICER OF THE ARMED FORCES WHO WAS RETIRED FOR DISABILITY INCURRED UNDER SUCH CONDITIONS AS TO BE EXCEPTED FROM THE OPERATION OF THE DUAL EMPLOYMENT RESTRICTION OF THE ACT OF JULY 31. IS ENTITLED WHILE HOLDING A CIVILIAN POSITION TO RECEIVE THE SALARY OF THE CIVILIAN POSITION AND AT THE SAME TIME RECEIVE HIS FULL RETIREMENT PAY. 1946: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22. WHO ARE EXCEPTIONALLY WELL QUALIFIED TO RENDER VALUABLE ASSISTANCE IN THE DISPOSAL OF SURPLUS PROPERTY. IT IS MY DESIRE TO APPOINT SUCH OFFICERS TO POSITIONS IN THE WAR ASSETS ADMINISTRATION IF SUCH APPOINTMENTS DO NOT CONFLICT WITH EXISTING LAWS AND REGULATIONS.

B-60202, OCTOBER 4, 1946, 26 COMP. GEN. 231

COMPENSATION - DOUBLE - RETIRED OFFICERS HOLDING CIVILIAN POSITIONS A RETIRED OFFICER OF THE ARMED FORCES IN RECEIPT OF RETIRED PAY IN EXCESS OF $2,500 PER ANNUM IS NOT PRECLUDED BY THE DUAL EMPLOYMENT RESTRICTION OF THE ACT OF JULY 31, 1894, AS AMENDED, FROM ACCEPTING TEMPORARY EMPLOYMENT IN A CIVILIAN POSITION, REGARDLESS OF WHETHER THE APPOINTMENT BE AS CONSULTANT, EXPERT, OR OTHERWISE; HOWEVER, UNDER THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, THE OFFICER MUST ELECT TO RECEIVE EITHER THE RETIRED PAY OR THE PAY FOR THE CIVILIAN POSITION DURING THE PERIOD OF EMPLOYMENT IF THE RETIRED PAY EQUALS OR EXCEEDS $3,000 PER ANNUM. A RETIRED OFFICER OF THE ARMED FORCES IN RECEIPT OF RETIRED PAY OF LESS THAN $3,000 PER ANNUM AND ALSO HOLDING A TEMPORARY CIVILIAN POSITION MAY NOT, IN VIEW OF THE $3,000 PER ANNUM DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, CONCURRENTLY RECEIVE RETIRED PAY AND COMPENSATION FROM THE CIVILIAN POSITION AT A COMBINED RATE IN EXCESS OF $3,000 PER ANNUM. A RETIRED OFFICER OF THE ARMED FORCES MAY BE GIVEN PERMANENT CIVILIAN EMPLOYMENT IF NEITHER THE RETIRED PAY NOR CIVILIAN COMPENSATION EXCEEDS $2,500 PER ANNUM SO THAT THE DUAL EMPLOYMENT RESTRICTION OF THE ACT OF JULY 31, 1894, AS AMENDED, DOES NOT APPLY, AND IF THE TOTAL AMOUNT OF RETIRED PAY AND CIVILIAN COMPENSATION BE LIMITED TO $3,000 PER ANNUM AS REQUIRED BY THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED. AN OFFICER OF THE ARMED FORCES WHO WAS RETIRED FOR DISABILITY INCURRED UNDER SUCH CONDITIONS AS TO BE EXCEPTED FROM THE OPERATION OF THE DUAL EMPLOYMENT RESTRICTION OF THE ACT OF JULY 31, 1894, AS AMENDED, AND, ALSO, THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, IS ENTITLED WHILE HOLDING A CIVILIAN POSITION TO RECEIVE THE SALARY OF THE CIVILIAN POSITION AND AT THE SAME TIME RECEIVE HIS FULL RETIREMENT PAY, EVEN THOUGH HIS RETIRED PAY EQUALS OR EXCEEDS $3,000 PER ANNUM.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, OCTOBER 4, 1946:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1946 AS FOLLOWS:

AT THE PRESENT TIME THERE APPEARS TO BE A NUMBER OF FORMER OFFICERS NOW RETIRED FOR DISABILITY OR OTHER CAUSES, WHO ARE EXCEPTIONALLY WELL QUALIFIED TO RENDER VALUABLE ASSISTANCE IN THE DISPOSAL OF SURPLUS PROPERTY. IT IS MY DESIRE TO APPOINT SUCH OFFICERS TO POSITIONS IN THE WAR ASSETS ADMINISTRATION IF SUCH APPOINTMENTS DO NOT CONFLICT WITH EXISTING LAWS AND REGULATIONS. ACCORDINGLY, YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS INVOLVING SUCH APPOINTMENTS AND THE PAYMENT OF COMPENSATION THEREUNDER.

THE ACT OF JULY 31, 1894, AS AMENDED, (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 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.'

SECTION 212 OF THE ACT OF JUNE 30, 1932, (5 U.S.C. 59 (A) ( PROVIDES, 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 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 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.'

WITH RESPECT TO RETIRED OFFICERS WHO DO NOT COME WITHIN THE EXCEPTIONS SPECIFIED IN PARAGRAPH (B) OF SECTION 59 (A) AND ARE NOT APPOINTED TO AN OFFICE BY THE PRESIDENT BY AND WITH THE ADVICE OF THE SENATE, IT HAS BEEN HELD (1) THAT EMPLOYMENT ON A PERMANENT BASIS IS AN "OFFICE" BUT THAT A TEMPORARY EMPLOYMENT, OR AN INTERMITTENT EMPLOYMENT ON A PER DIEM " WAE" OR A FEE BASIS, IS NOT AN "OFFICE" WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, AS AMENDED; AND (2) THAT SECTION 212 OF THE 1932 STATUTE, MAKES NO DISTINCTION BETWEEN TEMPORARY AND PERMANENT EMPLOYMENT AND APPLIES EQUALLY TO BOTH CLASSES OF EMPLOYEES. 12 COMP. GEN. 256; 13 ID. 448; 14 ID. 68; 16 ID. 47; 19 ID. 391.

WHILE THESE TWO PRINCIPLES ARE CLEAR, CERTAIN INCIDENTAL QUESTIONS REQUIRE CLARIFICATION IN APPLYING THESE ACTS TO THE EMPLOYMENT OF RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE NOT BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY.

1. MAY SUCH RETIRED OFFICER WHOSE RETIRED PAY EXCEEDS $3,000 PER ANNUM BE GIVEN TEMPORARY EMPLOYMENT OR INTERMITTENT EMPLOYMENT ON A PER DIEM OR FEE BASIS IN THE WAA WITHOUT REGARD TO THE PROVISIONS OF THE ACT OF JULY 31, 1894, SUBJECT TO THE ELECTION TO RECEIVE EITHER HIS RETIRED PAY OR THE COMPENSATION ATTACHED TO THE CIVILIAN POSITION AS SPECIFIED IN SECTION 212 OF THE ACT OF JUNE 30, 1932?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, ARE SUCH APPOINTMENTS LIMITED TO SUCH POSITIONS AS "CONSULTANTS OR EXPERTS," OR MAY THEY BE MADE TO ANY POSITION IN THE WAA?

3. WHERE THE RETIRED PAY OF AN OFFICER IS BETWEEN $2,500 AND $3,000, WOULD AN OFFICER EMPLOYED ON AN INTERMITTENT OR TEMPORARY BASIS WITHOUT REGARD TO THE PROVISIONS OF THE ACT OF JULY 31, 1894, BE LIMITED TO A TOTAL RETIRED PAY AND CIVILIAN COMPENSATION OF $3,000 PER ANNUM AS SPECIFIED IN SECTION 212 OF THE ACT OF JUNE 30, 1932?

4. WHERE THE RETIRED PAY OF SUCH OFFICER IS LESS THAN $2,500 PER ANNUM SO THAT THE ACT OF JULY 31, 1894, WOULD NOT APPLY, MAY THE OFFICER BE GIVEN PERMANENT EMPLOYMENT IN THE WAA, THE TOTAL RETIRED PAY AND CIVILIAN COMPENSATION BEING LIMITED TO $3,000 PER ANNUM AS SPECIFIED IN SECTION 212 OF THE ACT OF JUNE 30, 1932?

5. IN THOSE CASES WHERE A RETIRED OFFICER HAS ELECTED TO RECEIVE CIVILIAN COMPENSATION IN LIEU OF RETIRED PAY UNDER THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, WILL SUCH RETIRED PAY BE RESTORED UPON THE TERMINATION OF THE RETIRED OFFICER'S CIVILIAN EMPLOYMENTS?

WITH RESPECT TO THE EMPLOYMENT OF RETIRED OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS OR COAST GUARD WHO COME WITHIN THE EXCEPTIONS OF THE ACT OF JULY 31, 1894, SUPRA, THE FOLLOWING QUESTION ARISES IN APPLYING THE PROVISIONS OF THE ACT OF JUNE 30, 1932:

(1) MAY A RETIRED OFFICER, NOT CONSIDERED TO HOLD OR TO HAVE HELD AN OFFICE DURING THE PERIOD OF SUCH RETIREMENT IN ACCORDANCE WITH THE PROVISIONS OF THE 1894 ACT, RETAIN HIS RETIRED PAY AND THE SALARY ATTACHED TO A CIVILIAN POSITION IN THE WAR ASSETS ADMINISTRATION WITHOUT REGARD TO THE $3,000 LIMITATION IMPOSED BY SECTION 212 OF THE ACT OF JUNE 30, 1932, WHERE HE COMES WITHIN THE EXCEPTIONS TO THAT SECTION?

IN VIEW OF THE URGENT NEED OF THE WAR ASSETS ADMINISTRATION TO SECURE THE SERVICES OF ADDITIONAL QUALIFIED PERSONNEL, I RESPECTFULLY REQUEST AN EARLY DECISION IN THIS MATTER.

YOUR QUESTIONS ARE SO BROADLY STATED THAT SPECIFIC ANSWERS THERETO WHICH WOULD BE APPLICABLE TO EVERY SITUATION APPEAR TO BE PRECLUDED. THEREFORE, THE QUESTIONS WILL BE ANSWERED GENERALLY WITH THE UNDERSTANDING THAT, IF THERE IS ANY DOUBT AS TO THE APPLICATION OF THE ANSWERS TO THE EMPLOYMENT OF ANY PARTICULAR INDIVIDUAL, THE FACTS WITH RESPECT TO THE EMPLOYMENT OF THE SAID INDIVIDUAL MAY BE SUBMITTED HERE FOR DECISION.

IT HAS BEEN HELD THAT A RETIRED OFFICER WHO WAS RETIRED FOR REASONS OTHER THAN THOSE INCLUDED WITHIN ONE OF THE EXCEPTIONS IN THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, AND SECTION 212 (B) OF THE ECONOMY ACT, 47 STAT. 406, IS NOT PROHIBITED BY THE SAID ACT OF JULY 31, 1894, FROM HOLDING A TEMPORARY FEDERAL OFFICE OR POSITION BUT THAT, IF THE RETIRED PAY EXCEEDS THE RATE OF $3,000 PER ANNUM, HE MUST ELECT UNDER THE TERMS OF SECTION 212 OF THE ECONOMY ACT FOR THE PERIOD OF THE TEMPORARY CIVILIAN EMPLOYMENT BETWEEN HIS RETIRED PAY AND THE COMPENSATION FIXED FOR THE TEMPORARY CIVILIAN OFFICE OR POSITION. 13 COMP. GEN. 448, 16 ID. 47, AND 19 ID. 391. BUT CF. 14 COMP. GEN. 289. IT MAY BE STATED, THEREFORE, THAT THE ACT OF 1894 DOES NOT PRECLUDE THE EMPLOYMENT IN A CIVILIAN POSITION OF SUCH AN OFFICER DRAWING RETIRED PAY IN EXCESS OF $2,500 PER ANNUM, WHENEVER THE EMPLOYMENT IS TEMPORARY -- EITHER BECAUSE THE POSITION IS TEMPORARY OR WHENEVER THE EMPLOYMENT IS TEMPORARY BECAUSE ONLY A SPECIAL OR PARTICULAR TASK IS TO BE PERFORMED AND THE ORDER OR LETTER OF APPOINTMENT STATES THAT THE EMPLOYMENT IS TEMPORARY. HOWEVER, AS HEREINBEFORE INDICATED, SECTION 212 OF THE ECONOMY ACT WOULD BE FOR APPLICATION AND, IF THE RETIRED PAY OF SUCH AN OFFICER EQUALS OR EXCEEDS $3,000, HE MUST ELECT TO RECEIVE EITHER THE RETIRED PAY OR THE PAY FOR THE CIVILIAN POSITION DURING THE PERIOD OF EMPLOYMENT.

YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

AS TO QUESTION 2, NO REASON IS PERCEIVED FOR LIMITING THE APPOINTMENTS, IF OTHERWISE AUTHORIZED, TO THE POSITIONS OF "CONSULTANTS OR EXPERTS.' SEE 19 COMP. GEN. 391, SUPRA.

AS TO QUESTION 3, IF THE AMOUNT OF THE RETIRED PAY IS LESS THAN $3,000, THEN THE TOTAL RATE OF COMPENSATION THAT IT IS POSSIBLE TO RECEIVE FROM THE CIVILIAN POSITION AND AS RETIRED PAY MAY NOT EXCEED $3,000. 12 COMP. GEN. 37, 47; ID. 256. THE APPLICABLE RULE WAS STATED IN 12 COMP. GEN. 256, AS FOLLOWS, QUOTING FROM THE SYLLABUS---

IN APPLYING THE LIMITATION OF $3,000 PER ANNUM UNDER SECTION 212 OF THE ECONOMY ACT ON THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND RETIRED PAY, IT IS THE RATE OF COMPENSATION WHICH CONTROLS, IRRESPECTIVE OF THE NUMBER OF HOURS OR DAYS OF WORK IN THE CIVILIAN POSITION, AND NOT THE TOTAL AMOUNT OF CIVILIAN PAY AND RETIRED PAY RECEIVED DURING THE YEAR.

BUT, CF. 20 COMP. GEN. 407.

YOUR FOURTH QUESTION IS ANSWERED IN THE AFFIRMATIVE PROVIDING, OF COURSE, THAT THE COMPENSATION FROM THE CIVILIAN POSITION ALSO IS LESS THAN $2,500 PER ANNUM. 21 COMP. GEN. 1129, 13 ID. 60.

YOUR FIFTH QUESTION DOES NOT INVOLVE A PAYMENT TO BE MADE FROM AN APPROPRIATION UNDER YOUR ADMINISTRATIVE CONTROL. THEREFORE, I AM WITHOUT JURISDICTION TO ANSWER THE QUESTION PRESENTED. 23 COMP. GEN. 815, 818, 31 U.S.C. 74 (3D PARAGRAPH). IT MIGHT BE NOTED, HOWEVER, THAT THE PROHIBITION CONTAINED IN SECTION 212 OF THE ECONOMY ACT AS SHOWN BY ITS PLAIN TERMS IS NOT AGAINST THE RETAINING OF THE RETIRED STATUS, BUT IS THAT "NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION * * * SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES * * * AS A COMMISSIONED OFFICER.' ALSO, IT IS TO BE NOTED THAT THE RIGHT OF ELECTION GIVEN UNDER THE STATUTE IS NOT AS TO WHETHER HE SHALL CONTINUE TO HOLD THE CIVILIAN OFFICE OR POSITION OR TO CONTINUE TO HOLD HIS RETIRED STATUS, BUT AS TO WHETHER HE SHALL ACCEPT THE PAY OF ONE OR THE PAY OF THE OTHER.

WITH RESPECT TO THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, SECTION 212 OF THE ECONOMY ACT, BY THE PROVISO CONTAINED IN SUBSECTION (B) THEREOF, EXEMPTS FROM ITS PROVISIONS "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.' I DO NOT KNOW OF ANY PROVISION OF LAW, EITHER GENERAL OR SPECIFIC, WHICH WOULD PREVENT AN OFFICER WHO HAS BEEN RETIRED FOR ANY OF THE REASONS STATED IN THE PROVISO TO SECTION 212 (B) OF THE ECONOMY ACT FROM RECEIVING HIS SALARY AS AN OFFICER OR EMPLOYEE OF THE WAR ASSETS ADMINISTRATION AND AT THE SAME TIME RECEIVING HIS FULL RETIRED PAY EVEN THOUGH SUCH RETIRED PAY IS EQUAL TO OR IN EXCESS OF $3,000 PER ANNUM; PROVIDED THAT THE OFFICER ALSO COMES WITHIN THE EXCEPTION IN THE ACT OF 1894, QUOTED IN YOUR LETTER.