B-64490, MARCH 31, 1947, 26 COMP. GEN. 720

B-64490, MARCH 31, 1947, 26 COMP. GEN. 720

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - EMPLOYMENT UNDER PERSONAL SERVICE CONTRACT A NAVY OFFICER WHO, UPON RETIREMENT FOR DISABILITY BUT NOT IN COMBAT WITH THE ENEMY WITH RETIRED PAY AT A RATE IN EXCESS OF $3,000 PER ANNUM, IS TO BE REGULARLY EMPLOYED UNDER A PERSONAL SERVICE CONTRACT TO PERFORM DUTIES IMPOSED BY LAW UPON THE NAVY DEPARTMENT SUBJECT TO DIRECT ADMINISTRATIVE CONTROL AND SUPERVISION WILL BE REGARDED AS HOLDING A CIVILIAN POSITION WITHIN THE MEANING OF THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO REQUIRE THAT THE OFFICER ELECT TO RECEIVE HIS RETIRED PAY OR THE COMPENSATION ATTACHED TO THE CIVILIAN POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MARCH 31, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1947, FILE JAG:II:WJG:MH, P16-3/18) ( OR, AS FOLLOWS:

THERE IS FORWARDED HEREWITH A LETTER FROM THE CHIEF OF NAVAL RESEARCH, DATED FEBRUARY 18, 1947, WITH ENDORSEMENTS THEREON, RELATIVE TO THE PROPOSED EMPLOYMENT OF CAPTAIN ROBERT D. CONRAD, U.S. NAVY, IN THE OFFICE OF NAVAL RESEARCH, NAVY DEPARTMENT.

YOU WILL OBSERVE FROM THE ENCLOSURE THAT CAPTAIN CONRAD ANTICIPATES EARLY RETIREMENT FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY (NOT COMBAT WITH THE ENEMY OF THE UNITED STATES) AND THAT THE CHIEF OF NAVAL RESEARCH DESIRES TO OFFER CAPTAIN CONRAD, UPON HIS RETIREMENT, A PERSONAL SERVICES CONTRACT FOR EMPLOYMENT IN THE OFFICE OF NAVAL RESEARCH. CAPTAIN CONRAD'S RETIRED PAY WILL BE IN EXCESS OF $3,000 PER ANNUM.

IN CONNECTION WITH THE ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER CAPTAIN CONRAD, IF EMPLOYED UNDER A PERSONAL SERVICES CONTRACT IN THE OFFICE OF NAVAL RESEARCH, UPON HIS RETIREMENT, WILL BE REQUIRED TO ELECT WHETHER HE WILL RECEIVE HIS RETIRED PAY AS A CAPTAIN, U.S. NAVY, OR HIS COMPENSATION UNDER SUCH PERSONAL SERVICES CONTRACT WHILE EMPLOYED THEREUNDER.

YOUR EARLY DECISION OF THE QUESTION HEREIN PRESENTED IS REQUESTED.

IT IS PRESUMED THE CONTEMPLATED EMPLOYMENT IS FOR FULL TIME SERVICES AND IS TO BE MADE UNDER THE AUTHORITY OF SECTION 115 OF THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1947, APPROVED JULY 8, 1946, 60 STAT. 498, AS FOLLOWS:

SEC. 115. WHENEVER, DURING THE FISCAL YEAR ENDING JUNE 30, 1947, THE SECRETARY SHOULD DEEM IT TO BE ADVANTAGEOUS TO THE NATIONAL DEFENSE, AND IF IN HIS OPINION THE EXISTING FACILITIES OF THE NAVY DEPARTMENT ARE INADEQUATE, HE IS HEREBY AUTHORIZED TO EMPLOY AT THE SEAT OF GOVERNMENT AND ELSEWHERE, BY CONTRACT OR CLASSIFICATION LAWS, OR SECTION 5 OF THE ACT OF APRIL 6, 1914 (38 STAT. 335), AND AT SUCH RATES OF COMPENSATION (NOT TO EXCEED $40 PER DAY, AND TRAVEL EXPENSES, INCLUDING ACTUAL TRANSPORTATION AND PER DIEM IN LIEU OF SUBSISTENCE WHILE TRAVELING FROM THEIR HOMES OR PLACES OF BUSINESS TO OFFICIAL DUTY STATION AND RETURN AS MAY BE AUTHORIZED IN TRAVEL ORDERS OR LETTERS OF APPOINTMENT FOR INDIVIDUALS) AS HE MAY DETERMINE, THE SERVICES OF ARCHITECTS, ENGINEERS, AND OTHER TECHNICAL AND PROFESSIONAL PERSONNEL AS MAY BE NECESSARY.

SINCE IT IS STATED THAT CAPTAIN CONRAD IS TO BE RETIRED "FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY (NOT COMBAT WITH THE ENEMY OF THE UNITED STATES)" HE WOULD BE EXCEPTED FROM THE PURVIEW OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761 (5 U.S.C. 59A), PROVIDES AS FOLLOWS:

(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 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.

PERSONS EMPLOYED BY CONTRACT TO PERFORM DUTIES IMPOSED BY LAW UPON AN AGENCY AND WHO ARE SUBJECT TO THE DIRECT CONTROL AND SUPERVISION OF ADMINISTRATIVE OFFICIALS ARE EMPLOYEES HOLDING POSITIONS UNDER THE UNITED STATES GOVERNMENT. 23 COMP. GEN. 398, 608; 24 ID. 414. THAT IS TO SAY, A NAVAL OFFICER RETIRED FOR DISABILITY INCIDENT TO THE SERVICE BUT NOT IN COMBAT WITH THE ENEMY, WHO IS EMPLOYED UNDER A CONTRACT TO PERFORM PURELY PERSONAL SERVICES, IS SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA, TO THE SAME EXTENT AS RETIRED OFFICERS APPOINTED TO POSITIONS UNDER CIVIL SERVICE LAWS AND REGULATIONS.

ACCORDINGLY, IF THIS OFFICER, UPON HIS RETIREMENT AS AN OFFICER OF THE UNITED STATES NAVY, WITH RETIRED PAY AT A RATE IN EXCESS OF $3,000 PER ANNUM, IS EMPLOYED REGULARLY UNDER A PERSONAL SERVICE CONTRACT, HE WILL BE REQUIRED TO ELECT TO RECEIVE HIS RETIRED PAY OR THE COMPENSATION ATTACHED TO THE CIVILIAN POSITION. COMPARE DECISION OF JANUARY 17, 1947, B-62616, 26 COMP. GEN. 501, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS.