B-84087, MAR 3, 1949

B-84087: Mar 3, 1949

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THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF MARCH 1. IT IS STATED THAT THE EMPLOYMENT OF GENERAL EICHELBERGER AND THE FIXING OF HIS COMPENSATION AT THE RATE OF $50 PER DAY IN LIEU OF HIS RETIRED PAY ON THE DAYS SO EMPLOYED IS PROPOSED UPON THE BASIS OF THE VIEWS OF YOUR DEPARTMENT. "(B) THAT GENERAL EICHELBERGER CAN PROPERLY RECEIVE HIS RETIRED PAY FOR THE DAYS HE IS NOT SO EMPLOYED.". CONCERNING WHICH IT WAS HELD IN DECISION OF DECEMBER 29. AS FOLLOWS: "REAR ADMIRAL SCHUYLER WAS EMPLOYED AT THE RATE OF $40 PER DAY WHEN ACTUALLY WORKING. IT IS CLEAR THAT HE WAS PAID ON A TIME BASIS AS DISTINGUISHED FROM A FEE BASIS. HE IS NOT COVERED BY THE HOLDING IN 26 COMP.GEN. 501.

B-84087, MAR 3, 1949

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1949, RELATIVE TO THE PROPOSED EMPLOYMENT OF LIEUTENANT GENERAL ROBERT L. EICHELBERGER (U.S.A. RETIRED) IN AN ADVISORY CAPACITY FOR INTERMITTENT CONSULTANT SERVICES UPON MATTERS RELATING TO MILITARY GOVERNMENT IN OCCUPIED AREAS.

IT IS STATED THAT THE EMPLOYMENT OF GENERAL EICHELBERGER AND THE FIXING OF HIS COMPENSATION AT THE RATE OF $50 PER DAY IN LIEU OF HIS RETIRED PAY ON THE DAYS SO EMPLOYED IS PROPOSED UPON THE BASIS OF THE VIEWS OF YOUR DEPARTMENT--

"(A) THAT THE PROPOSED EMPLOYMENT WOULD NOT CONSTITUTE THE HOLDING OF AN OFFICE WITHIN THE MEANING OF SECTION 212 OF THE ACT APPROVED JUNE 30, 1932 (5 U.S.C. 59A);

"(B) THAT GENERAL EICHELBERGER CAN PROPERLY RECEIVE HIS RETIRED PAY FOR THE DAYS HE IS NOT SO EMPLOYED."

THE STATUTORY AUTHORITY VESTED IN YOU BY THE PROVISIONS OF SECTION 6 OF THE MILITARY FUNCTIONS APPROPRIATION ACT, 1949 (PUBLIC LAW 766, 80TH CONGRESS) TO PROCURE SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, (5 U.S.C. 55A), AT RATES NOT IN EXCESS OF $50 PER DAY FOR INDIVIDUALS, APPEARS ADEQUATE TO COVER THE PROPOSED EMPLOYMENT OF GENERAL EICHELBERGER. ALTHOUGH, CONTRARY TO THE VIEW EXPRESSED IN YOUR LETTER UNDER ITEM "(A)", SUCH EMPLOYMENT WOULD CONSTITUTE AN OFFICE UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, THE FACTS INVOLVED APPEAR TO BE IDENTICAL IN ALL MATERIAL RESPECTS WITH THOSE OF THE CASE OF REAR ADMIRAL SCHUYLER, CONCERNING WHICH IT WAS HELD IN DECISION OF DECEMBER 29, 1948, B-80106 (28 COMP.GEN. 381), AS FOLLOWS:

"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 LINE WITH SAID HOLDING, I CONCUR IN THE CONCLUSION EXPRESSED IN YOUR LETTER THAT GENERAL EICHELBERGER MAY BE EMPLOYED IN AN ADVISORY CAPACITY FOR INTERMITTENT CONSULTANT SERVICES AT A COMPENSATION RATE OF $50 PER DAY, AND THAT HE MAY RECEIVE HIS RETIRED PAY FOR THOSE DAYS ON WHICH HE RECEIVES NO COMPENSATION UNDER HIS CIVILIAN EMPLOYMENT.