B-80106, DECEMBER 29, 1948, 28 COMP. GEN. 381

B-80106: Dec 29, 1948

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COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - CONSULTANT EMPLOYED ON TIME BASIS A RETIRED OFFICER WHO IS EMPLOYED AS A CONSULTANT AT A RATE OF PAY PER DAY WHEN ACTUALLY WORKING. IS TO BE REGARDED AS PAID ON A TIME. ARE APPLICABLE. IN THE CASE OF A RETIRED OFFICER WHO IS EMPLOYED ON A TIME BASIS WHEN ACTUALLY WORKING AS A CONSULTANT. ONLY ON SUCH DAYS AS THE OFFICER WAS IN RECEIPT OF COMPENSATION FOR HIS CIVILIAN POSITION. ON THOSE DAYS ON WHICH HE RECEIVED NO CIVILIAN COMPENSATION THE OFFICER IS ENTITLED TO HIS FULL RETIRED PAY. 000 PER ANNUM WHO IS EMPLOYED AS A CONSULTANT ON A TIME BASIS WHEN ACTUALLY WORKING. IS NOT ENTITLED TO RETIRED PAY ON ANY DAY UPON WHICH HE IS EMPLOYED LESS THAN FULL TIME IN HIS CIVILIAN CAPACITY.

B-80106, DECEMBER 29, 1948, 28 COMP. GEN. 381

COMPENSATION - DOUBLE - CONCURRENT RETIRED AND CIVILIAN SERVICE PAY - CONSULTANT EMPLOYED ON TIME BASIS A RETIRED OFFICER WHO IS EMPLOYED AS A CONSULTANT AT A RATE OF PAY PER DAY WHEN ACTUALLY WORKING, WITH PROPORTIONATE DEDUCTIONS FROM SUCH COMPENSATION WHEN NOT REQUIRED TO WORK FULL DAYS, IS TO BE REGARDED AS PAID ON A TIME, AS DISTINGUISHED FROM A FEE, BASIS, AND, THEREFORE, SUCH OFFICER MUST BE CONSIDERED AS OCCUPYING A CIVILIAN "OFFICE OR POSITION" AS USED IN SECTION 212 OF THE ECONOMY ACT, AS AMENDED, PROHIBITING THE PAYMENT OF BOTH RETIRED PAY AND CIVILIAN COMPENSATION AT A COMBINED RATE IN EXCESS OF $3,000 PER ANNUM. 26 COMP. GEN. 501, DISTINGUISHED. THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION WHICH MAY BE RECEIVED BY A RETIRED OFFICER HOLDING A CIVILIAN OFFICE OR POSITION, ARE APPLICABLE, IN THE CASE OF A RETIRED OFFICER WHO IS EMPLOYED ON A TIME BASIS WHEN ACTUALLY WORKING AS A CONSULTANT, ONLY ON SUCH DAYS AS THE OFFICER WAS IN RECEIPT OF COMPENSATION FOR HIS CIVILIAN POSITION, AND ON THOSE DAYS ON WHICH HE RECEIVED NO CIVILIAN COMPENSATION THE OFFICER IS ENTITLED TO HIS FULL RETIRED PAY. A RETIRED OFFICER RECEIVING RETIRED PAY IN EXCESS OF $3,000 PER ANNUM WHO IS EMPLOYED AS A CONSULTANT ON A TIME BASIS WHEN ACTUALLY WORKING, AND WHO ELECTS UNDER SECTION 212 OF THE ECONOMY ACT, AS AMENDED, TO RECEIVE HIS CIVILIAN COMPENSATION, IS NOT ENTITLED TO RETIRED PAY ON ANY DAY UPON WHICH HE IS EMPLOYED LESS THAN FULL TIME IN HIS CIVILIAN CAPACITY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 29, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 8, 1948, REQUESTING DECISION UPON CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE CONTRACT EMPLOYMENT BY THE ATOMIC ENERGY COMMISSION OF REAR ADMIRAL G. L. SCHUYLER, U.S. NAVY, RETIRED, AS A CONSULTANT UPON AN INTERMITTENT BASIS. THE PARTICULAR QUESTIONS UPON WHICH DECISION IS REQUESTED ARE SET OUT IN YOUR LETTER AS FOLLOWS:

(A) WHETHER REAR ADMIRAL SCHUYLER, WHILE EMPLOYED AS A PART-TIME CONSULTANT IN AN ADVISORY CAPACITY BY THE ATOMIC ENERGY COMMISSION, HELD AN OFFICE WITHIN THE MEANING OF SECTION 212 OF THE ACT APPROVED JUNE 30, 1932 (5 U.S.C. 59A);

(B) WHETHER CREDIT OF RETIRED PAY FOR NON-WORKING DAYS AS A CIVILIAN DURING DECEMBER 1947 AND JANUARY 1948 WAS PROPER, IN THE CASE OF REAR ADMIRAL SCHUYLER, UNDER THE CONDITIONS SET FORTH IN THE ENCLOSURE; AND, IF SO,

(C) WHETHER REAR ADMIRAL SCHUYLER WAS ENTITLED TO CREDIT OF RETIRED PAY FOR 1/2 DAY ON DECEMBER 13, 1947, THE DATE ON WHICH HE WAS EMPLOYED FOR 1/2 DAY AS CIVILIAN CONSULTANT BY THE ATOMIC ENERGY COMMISSION.

UNDER THE TERMS OF THE EMPLOYMENT CONTRACT ENTERED INTO WITH REAR ADMIRAL SCHUYLER, IT IS PROVIDED THAT HE WOULD SERVE AS A PART TIME CONSULTANT TO THE COMMISSION DURING THE PERIOD DECEMBER 8, 1947, TO JUNE 30, 1948, INCLUSIVE, IN AN ADVISORY CAPACITY UPON MATTERS RELATING TO EXPLOSIVES SAFETY. ALSO, THE SAID CONTRACT PROVIDED FOR THE PAYMENT OF COMPENSATION OF $40 PER DAY, WHEN ACTUALLY WORKING. IT IS SHOWN BY THE ENCLOSURES TRANSMITTED WITH YOUR LETTER THAT REAR ADMIRAL SCHUYLER WAS RETIRED FROM ACTIVE SERVICE UPON HIS OWN APPLICATION AFTER THE COMPLETION OF 40 YEARS' SERVICE.

SECTION 212 OF THE ECONOMY ACT APPROVED JUNE 30, 1932, 47 STAT. 406, AS AMENDED, CODIFIED AS 5 U.S.C. 59A, PROVIDES:

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 SERVICES THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

THE PROVISIONS JUST QUOTED UNIFORMLY HAVE BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO APPLY TO RETIRED OFFICERS OF THE ARMY AND THE NAVY, NOT OTHERWISE EXCEPTED THEREFROM, WHO SERVE UNDER THE FEDERAL GOVERNMENT IN A TEMPORARY, PART TIME, OR INTERMITTENT STATUS AND WHO ARE PAID UPON A TIME BASIS. SEE 19 COMP. GEN. 391, AND DECISIONS CITED THEREIN. ALSO, IT HAS BEEN HELD THAT SUCH A RETIRED OFFICER, IF EMPLOYED SOLELY IN AN ADVISORY CAPACITY--- SUCH AS FOR CONSULTATION PURPOSES ONLY-- - AND PAID UPON A FEE BASIS FOR EACH SUCH CONSULTATION, IS NOT HOLDING A "CIVILIAN OFFICE OR POSITION" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE SAID SECTION 212, AND THAT BY REASON THEREOF SUCH OFFICER IS NOT SUBJECT TO THE RESTRICTIONS CONTAINED THEREIN. 26 COMP. GEN. 501. HOWEVER, THAT HOLDING WAS NOT INTENDED AS EXCEPTING FROM THE PROVISIONS OF THE SAID SECTION 212 OF THE ECONOMY ACT ALL RETIRED OFFICERS MERELY BECAUSE OF THEIR EMPLOYMENT DESIGNATION, FOR ADMINISTRATIVE PURPOSES, AS "CONSULTANTS"--- A TITLE WHICH NECESSARILY IMPLIES THE RENDITION OF A CERTAIN AMOUNT OF CONSULTATION SERVICES, COMPRISING THE EXPRESSION OF VIEWS AND THE GIVING OF OPINIONS AND RECOMMENDATIONS, BUT WHICH DOES NOT NECESSARILY LIMIT THE SERVICES TO BE RENDERED THEREUNDER TO SUCH NARROW CONFINES. RATHER, SAID HOLDING WAS BASED UPON THE PROPOSITION THAT WHERE THE NATURE OF THE DUTIES REQUIRED IS PURELY ADVISORY, GENERALLY PERFORMED AT INFREQUENT INTERVALS, AND THE COMPENSATION PAYABLE THEREFOR IS UPON A FEE BASIS, AS DISTINGUISHED FROM A PURELY TIME BASIS, THE STATUS OF THE EMPLOYEE IS NOT SUCH AS WOULD CONSTITUTE THE HOLDING OF AN OFFICE OR POSITION WITHIN CONTEMPLATION OF SECTION 212. NO PARTICULAR ONE OF THE ENUMERATED ELEMENTS IS CONSIDERED AS DETERMINATIVE OF THE MATTER. ON THE CONTRARY, THE ABSENCE OF ANY ONE OF SUCH ELEMENTS IS SUFFICIENT TO TAKE A PARTICULAR CASE OUT OF THE RULE ENUNCIATED IN THAT DECISION.

REAR ADMIRAL SCHUYLER WAS EMPLOYED AT THE RATE OF $40 PER DAY WHEN ACTUALLY WORKING, WITH PROPORTIONATE DEDUCTIONS FROM SUCH COMPENSATION WHEN NOT REQUIRED TO WORK FULL DAYS. HENCE, IT IS CLEAR THAT HE WAS PAID ON A TIME BASIS AS DISTINGUISHED FROM A FEE BASIS, AND, THEREFORE, HE IS NOT COVERED BY THE HOLDING IN 26 COMP. GEN. 501, SUPRA. ACCORDINGLY, IT MUST BE HELD HE IS SUBJECT TO THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT. HOWEVER, SUCH RESTRICTIONS ARE APPLICABLE ONLY ON SUCH DAYS AS REAR ADMIRAL SCHUYLER WAS IN RECEIPT OF COMPENSATION FOR HIS CIVILIAN POSITION, AND ON THOSE DAYS ON WHICH HE RECEIVED NO COMPENSATION FROM HIS CIVILIAN POSITION HE WAS ENTITLED TO RECEIVE HIS FULL RETIRED PAY.

IN THE LIGHT OF THE FOREGOING, QUESTIONS (A) AND (B), ABOVE, ARE ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION (C), YOU ARE ADVISED THAT THIS OFFICE IS NOT AWARE OF ANY AUTHORITY OF LAW WHEREBY A RETIRED OFFICER OF THE ARMY OR THE NAVY IS ENTITLED TO PAY, ACTIVE OR RETIRED, FOR A FRACTIONAL PART OF A DAY. HISTORICALLY, THE LAW NEVER HAS RECOGNIZED FRACTIONAL PARTS OF A DAY IN MATTERS OF RETIREMENT, PROMOTION, OR APPOINTMENT OF MILITARY PERSONNEL, AND NOTHING APPEARS IN SECTION 212 OF THE ECONOMY ACT--- AN ACT SPECIFICALLY DIRECTED TO SUCH PERSONNEL--- WHICH REQUIRES THAT ACTION. CONSEQUENTLY, IT IS HELD THAT REAR ADMIRAL SCHUYLER WAS NOT ENTITLED TO RETIRED PAY ON ANY DAY UPON WHICH HE WAS EMPLOYED LESS THAN FULL TIME IN HIS CIVILIAN CAPACITY AS CONSULTANT WITH THE ATOMIC ENERGY COMMISSION.