B-85151, JUNE 24, 1949, 28 COMP. GEN. 727

B-85151: Jun 24, 1949

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DUAL COMPENSATION AND EMPLOYMENT STATUTES - APPLICABILITY TO ARMY ENLISTED MEN ADVANCED ON RETIRED LIST TO COMMISSIONED RANK RETIRED ARMY ENLISTED MEN WHO ARE ADVANCED TO TEMPORARY COMMISSIONED RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 203 OF THE ACT OF JUNE 29. ARE NOT PROHIBITED BY THE DUAL OFFICE RESTRICTIONS OF THE ACT OF JULY 31. THE RECEIPT OF RETIRED PAY FOR THE PERIOD SUBSEQUENT TO ADVANCEMENT DURING WHICH CIVILIAN SALARY ALSO WAS RECEIVED IS SUBJECT TO SECTION 212 OF THE ACT OF JUNE 30. 1949: REFERENCE IS MADE TO YOUR LETTER OF MARCH 18. IT APPEARS THAT THE OFFICER INVOLVED ORIGINALLY WAS PLACED ON THE RETIRED LIST EFFECTIVE NOVEMBER 30. IT IS STATED THAT HE WAS ADVANCED ON THE SAID RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT.

B-85151, JUNE 24, 1949, 28 COMP. GEN. 727

DUAL COMPENSATION AND EMPLOYMENT STATUTES - APPLICABILITY TO ARMY ENLISTED MEN ADVANCED ON RETIRED LIST TO COMMISSIONED RANK RETIRED ARMY ENLISTED MEN WHO ARE ADVANCED TO TEMPORARY COMMISSIONED RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 203 OF THE ACT OF JUNE 29, 1948, AND PAID INCREASED RETIRED PAY IN ACCORDANCE THEREWITH, ARE NOT PROHIBITED BY THE DUAL OFFICE RESTRICTIONS OF THE ACT OF JULY 31, 1894, AS AMENDED, FROM HOLDING CIVILIAN OFFICE AND RECEIVING CIVILIAN COMPENSATION; BUT THE RECEIPT OF RETIRED PAY FOR THE PERIOD SUBSEQUENT TO ADVANCEMENT DURING WHICH CIVILIAN SALARY ALSO WAS RECEIVED IS SUBJECT TO SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, RESTRICTING THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH MAY BE RECEIVED. 26 COMP. GEN. 271, AMPLIFIED. A RETIRED ARMY ENLISTED MAN ADVANCED TO TEMPORARY COMMISSIONED RANK ON THE RETIRED LIST PURSUANT TO SECTION 203 OF THE ACT OF JUNE 29, 1948, WITH INCREASED RETIRED PAY AT A RATE LESS THAN $3,000 PER ANNUM, AND WHO CONCURRENTLY RECEIVED COMPENSATION FROM A CIVILIAN OFFICE AT A RATE IN EXCESS OF $3,000 PER ANNUM, HAS NO RIGHT OF ELECTION UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED TO RECEIVE EITHER CIVILIAN COMPENSATION OR RETIRED PAY; INSTEAD, THE TOTAL AMOUNT OF RETIRED PAY RECEIVED SUBSEQUENT TO ADVANCEMENT SHOULD BE COLLECTED THROUGH ADMINISTRATIVE MEANS UNDER APPLICABLE LAWS AND REGULATIONS.

COMPTROLLER GENERAL WARREN TO COL. C. B. LENOW, DEPARTMENT OF THE ARMY, JUNE 24, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1949, FILE FINKF-/8) 241.18 DEWITT, HENRY O-2,029,433, FORWARDED HERE BY FIRST INDORSEMENT DATED APRIL 1, 1949 ( CSACF-EI 241.18), FROM THE CHIEF OF FINANCE, TRANSMITTING FOR ADVANCE DECISION VOUCHER IN FAVOR OF HENRY DEWITT, RETIRED, COVERING RETIRED PAY FOR A MONTH OF FEBRUARY 1949, AT THE RATE OF $225 PER MONTH, LESS COLLECTION IN THE SAME AMOUNT IN PARTIAL LIQUIDATION OF A STATED INDEBTEDNESS IN THE TOTAL AMOUNT OF $795, RESULTING FROM THE RECEIPT OF RETIRED PAY AND CIVILIAN SALARY DURING THE PERIOD JUNE 29 TO OCTOBER 14, 1948.

IT APPEARS THAT THE OFFICER INVOLVED ORIGINALLY WAS PLACED ON THE RETIRED LIST EFFECTIVE NOVEMBER 30, 1947, IN THE GRADE OF MASTER SERGEANT, AFTER HAVING COMPLETED 30 YEARS' SERVICE. IT IS STATED THAT HE WAS ADVANCED ON THE SAID RETIRED LIST TO THE GRADE OF SECOND LIEUTENANT, UNDER THE PROVISIONS OF SECTION 203, PUBLIC LAW 810, APPROVED JUNE 29, 1948, THE SAID OFFICER WAS EMPLOYED IN A CIVILIAN POSITION WITH THE AMERICAN GRAVES REGISTRATION COMMAND AT A SALARY OF $3,405 PER ANNUM.

UNDER THE ABOVE STATED FACTS, YOU REQUEST A DECISION WHETHER THE RECEIPT OF RETIRED PAY AND CIVILIAN SALARY IN THIS CASE, DURING THE PERIOD SUBSEQUENT TO THE RETIRED MAN'S ADVANCEMENT TO COMMISSIONED RANK, IS IN VIOLATION OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, AND IF NOT, WHETHER THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, ARE APPLICABLE IN SUCH CASES.

UNDER THE CIRCUMSTANCES, THE PRINCIPLES OF THE DECISION OF OCTOBER 28, 1946, 26 COMP. GEN. 271, CITED IN YOUR LETTER--- REGARDING ENLISTED PERSONNEL OF THE NAVY ADVANCED ON THE RETIRED LIST TO COMMISSIONED RANK IN ACCORDANCE WITH SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28--- APPLY WITH EQUAL FORCE TO RETIRED ENLISTED MEN OF THE ARMY WHO ARE ADVANCED TO COMMISSIONED RANK ON THE RETIRED LIST UNDER THE PROVISIONS OF SECTION 203 OF PUBLIC LAW 810, SUPRA. THUS, THE HOLDING OF CIVILIAN OFFICE AND THE RECEIPT OF CIVILIAN COMPENSATION BY SUCH RETIRED PERSONNEL ARE NOT PROHIBITED BY THE PROVISIONS OF THE SAID 1894 ACT, BUT THE RECEIPT OF RETIRED PAY FOR THE PERIOD SUBSEQUENT TO THEIR ADVANCEMENT TO COMMISSIONED RANK DURING WHICH THEY ALSO RECEIVE CIVILIAN SALARY UNDER THE UNITED STATES GOVERNMENT IS SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932. SUCH CONNECTION, THE PROVISIONS OF SECTION 204 OF PUBLIC LAW 810, SUPRA, 62 STAT. 1086--- AUTHORIZING THE MAN TO APPLY FOR RESTORATION TO HIS STATUS AS A RETIRED ENLISTED PERSON -- DO NOT REQUIRE A DIFFERENT CONCLUSION. ACCORDINGLY, AND SINCE THE RETIRED PAY IN THE INSTANT CASE WAS AT A RATE LESS THAN $3,000 PER ANNUM, NO ELECTION AS TO COMPENSATION IS PROPER, AND THE RETIRED MAN LEGALLY MAY RETAIN THE CIVILIAN SALARY EARNED DURING THE PERIOD SUBSEQUENT TO HIS ADVANCEMENT ON THE RETIRED LIST, BUT SINCE THE SALARY FROM THE CIVILIAN OFFICE WAS AT A RATE IN EXCESS OF $3,000 PER ANNUM, HE IS INDEBTED IN THE TOTAL AMOUNT OF RETIRED PAY RECEIVED BY HIM DURING SUCH PERIOD. 21 COMP. GEN. 1129. IF FOLLOWS, OF COURSE, THAT COLLECTION OF THE SAID INDEBTEDNESS SHOULD BE EFFECTED THROUGH MEANS ADMINISTRATIVELY AVAILABLE IN SUCH CASES UNDER APPLICABLE LAWS AND REGULATIONS.