B-73409, MARCH 11, 1948, 27 COMP. GEN. 510

B-73409: Mar 11, 1948

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INCOMPATIBILITY OF EMPLOYMENT THE FACT THAT THE DURATION OF THE CIVILIAN EMPLOYMENT OF AN ARMY ENLISTED MAN WHILE ON FURLOUGH WAS OF NECESSITY LIMITED TO HIS FURLOUGH PERIOD MAY NOT BE REGARDED AS EXPRESSLY RESTRICTING THE CIVILIAN COMPENSATION TO SUCH A LIMITED AMOUNT AS WHEN ADDED TO HIS ARMY PAY WOULD NOT EXCEED THE $2. SO AS TO EXCEPT THE ENLISTED MAN FROM THE GENERAL RULE THAT THE COMBINED RATES OF COMPENSATION ARE FOR CONSIDERATION IN DETERMINING WHETHER THE RECEIPT OF TWO SALARIES EXCEEDS THE STATUTORY LIMITATION. THE HOLDING OF A CIVILIAN FEDERAL POSITION WHILE RECEIVING ACTIVE DUTY PAY AS A MEMBER OF THE ARMED FORCES IS INCOMPATIBLE WITH MILITARY DUTY. NOTWITHSTANDING THAT THE INDIVIDUAL MAY HAVE BEEN ON FURLOUGH FROM THE ARMED FORCES DURING THE PERIOD OF EMPLOYMENT.

B-73409, MARCH 11, 1948, 27 COMP. GEN. 510

ENLISTED PERSONNEL ON CIVILIAN DUTY DURING FURLOUGH - DOUBLE COMPENSATION PROHIBITION; INCOMPATIBILITY OF EMPLOYMENT THE FACT THAT THE DURATION OF THE CIVILIAN EMPLOYMENT OF AN ARMY ENLISTED MAN WHILE ON FURLOUGH WAS OF NECESSITY LIMITED TO HIS FURLOUGH PERIOD MAY NOT BE REGARDED AS EXPRESSLY RESTRICTING THE CIVILIAN COMPENSATION TO SUCH A LIMITED AMOUNT AS WHEN ADDED TO HIS ARMY PAY WOULD NOT EXCEED THE $2,000 PER ANNUM DUAL COMPENSATION RESTRICTION OF THE ACT OF MAY 10, 1916, AS AMENDED, SO AS TO EXCEPT THE ENLISTED MAN FROM THE GENERAL RULE THAT THE COMBINED RATES OF COMPENSATION ARE FOR CONSIDERATION IN DETERMINING WHETHER THE RECEIPT OF TWO SALARIES EXCEEDS THE STATUTORY LIMITATION, AND NOT THE AGGREGATE COMPENSATION ACTUALLY RECEIVED IN ANY PARTICULAR YEAR. THE HOLDING OF A CIVILIAN FEDERAL POSITION WHILE RECEIVING ACTIVE DUTY PAY AS A MEMBER OF THE ARMED FORCES IS INCOMPATIBLE WITH MILITARY DUTY, ACTUAL OR POTENTIAL, NOTWITHSTANDING THAT THE INDIVIDUAL MAY HAVE BEEN ON FURLOUGH FROM THE ARMED FORCES DURING THE PERIOD OF EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO E. R. HILL, DEPARTMENT OF AGRICULTURE, MARCH 11, 1948:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1948 (YOUR REFERENCE, A, DISBURSEMENT, VOUCHERS), TRANSMITTING A PAY ROLL VOUCHER ON WHICH PAYMENT IS PROPOSED TO DONALD C. HINEMAN FOR 111 HOURS AT $1.10 PER HOUR, OR A TOTAL OF $122.10, COVERING SERVICES PERFORMED AS FIRE FIGHTER CREW BOSS ON THE TOIYABE NATIONAL FOREST DURING THE PERIOD AUGUST 6 TO 13, 1947, AND REQUESTING DECISION AS TO WHETHER SAID VOUCHER MAY BE CERTIFIED FOR PAYMENT. YOUR DOUBT IN THE MATTER ARISES FROM THE FACT THAT MR. HINEMAN WAS AT THAT TIME AN ARMY CORPORAL ON FURLOUGH, HIS ARMY PAY AMOUNTING TO $90 A MONTH. YOU SUGGEST THAT THERE WOULD BE NO POSSIBILITY OF THE COMBINED RATES OF PAY EXCEEDING $2,000, AS HIS FURLOUGH WAS FOR 30 DAYS ONLY.

IN DETERMINING WHETHER THE RECEIPT OF TWO SALARIES EXCEEDS THE $2,000 LIMIT ESTABLISHED BY THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, IT HAS BEEN HELD BY THIS OFFICE THAT IT IS THE COMBINED RATES OF COMPENSATION THAT ARE FOR CONSIDERATION AND IF THE COMBINED RATES EXCEEDED $2,000 SUCH DUAL EMPLOYMENT IS WITHIN THE PROHIBITION OF SAID ACT NOTWITHSTANDING THAT THE AGGREGATE COMPENSATION ACTUALLY RECEIVED IN ANY PARTICULAR YEAR MAY NOT HAVE EQUALED THAT AMOUNT. 11 COMP. GEN. 210; 12 ID. 583; 15 ID. 751; 18 ID. 614. THE ONLY EXCEPTIONS TO THAT RULE RECOGNIZED BY THIS OFFICE HAVE BEEN IN THOSE CASES WHERE THE COMPENSATION OF ONE OF THE POSITIONS WAS RESTRICTED EXPRESSLY IN THE APPOINTMENT TO SUCH A LIMITED AMOUNT AS WHEN ADDED TO THE SALARY OF THE OTHER POSITION HELD BY THE INDIVIDUAL WOULD NOT EXCEED $2,000. THE FACT THAT THE EMPLOYEE IN THIS CASE HAD BEEN GRANTED A FURLOUGH FROM THE ARMY FOR ONLY 30 DAYS WOULD NOT BRING HIM WITHIN SUCH EXCEPTION TO THE GENERAL RULE, AND THERE IS NO DOUBT BUT THAT THE RATE OF COMPENSATION OF $1.10 PER HOUR WOULD IN ITSELF AMOUNT TO A RATE OF MORE THAN $2,000 PER ANNUM.

ASIDE FROM THE QUESTION OF DUAL COMPENSATION, HOWEVER, IT HAS BEEN HELD REPEATEDLY BY THIS OFFICE THAT THE HOLDING OF A CIVILIAN FEDERAL POSITION WHILE RECEIVING ACTIVE DUTY PAY AS A MEMBER OF THE ARMED FORCES IS INCOMPATIBLE WITH MILITARY DUTY, ACTUAL OR POTENTIAL, AND THAT IT WAS IMMATERIAL THAT THE INDIVIDUAL MAY HAVE BEEN ON FURLOUGH FROM THE ARMED FORCES DURING THE INVOLVED PERIODS. 22 COMP. GEN. 127; 25 ID. 866; B- 47807, APRIL 28, 1945. ACCORDINGLY, IN THE CIRCUMSTANCES STATED IN YOUR SUBMISSION, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.