B-86844, AUGUST 17, 1949, 29 COMP. GEN. 80

B-86844, AUGUST 17, 1949, 29 COMP. GEN. 80

RETIRED MEMBERS OF NAVY, NURSE CORPS - DUAL COMPENSATION RESTRICTIONS RETIRED MEMBERS OF THE NAVY NURSE CORPS WHO WERE PLACED ON THE RETIRED LIST PRIOR TO APRIL 16, 1947, THE EFFECTIVE DATE OF THE ARMY NAVY NURSES ACT OF 1947, WHICH GRANTED COMMISSIONED OFFICER STATUS TO MEMBERS OF THE NAVY NURSE CORPS, DO NOT RECEIVE RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO BE SUBJECT THEREUNDER TO THE PROHIBITION AGAINST THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY AT A COMBINED RATE IN EXCESS OF $3,000 PER ANNUM. A MEMBER OF THE NAVY NURSE CORPS RETIRED UNDER THE ACT OF DECEMBER 3, 1945, WITHOUT HAVING ACQUIRED A COMMISSIONED STATUS, AND WHO IS RECEIVING RETIRED PAY CONCURRENTLY WITH CIVILIAN COMPENSATION IN A COMBINED AMOUNT IN EXCESS OF $2,000 PER ANNUM--- BEING NEITHER AN OFFICER NOR AN ENLISTED MAN--- IS TO BE REGARDED AS RECEIVING A "SALARY" IN HER RETIRED STATUS WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTE OF MAY 10, 1916, AS AMENDED, AND, THEREFORE, SUCH PERSON SHOULD BE REQUIRED TO REFUND THE SALARY WHICH SHE HAS NOT ELECTED TO RETAIN.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 17, 1949.

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JUNE 1, 1949, ENCLOSING LETTER DATED APRIL 21, 1949, FROM THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, RELATIVE TO THE APPLICABILITY OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, TO THE RETIRED PAY STATUS OF ENSIGN ESTHER VIRGINIA WORLEY, NURSE CORPS, UNITED STATES NAVAL RESERVE, RETIRED, WHILE EMPLOYED IN A CIVILIAN CAPACITY WITH THE VETERANS ADMINISTRATION.

THE FACTS AND CIRCUMSTANCES SURROUNDING THE CASE ARE SET FORTH IN THE SAID LETTER OF APRIL 21 IN SUBSTANCE AS FOLLOWS: EFFECTIVE DECEMBER 1, 1939, THE SUBJECT INDIVIDUAL WAS APPOINTED AS A NURSE IN THE NAVY NURSE CORPS RESERVE PURSUANT TO THE ACT OF MAY 13, 1908, 35 STAT. 146. SHE WAS GIVEN THE RELATIVE RANK OF ENSIGN UNDER THE PROVISION OF THE ACT OF JULY 3, 1942, 56 STAT. 646, AND, SUBSEQUENTLY, PURSUANT TO THE ACT OF FEBRUARY 26, 1944, 58 STAT. 105, SHE WAS DESIGNATED TO HOLD A TEMPORARY RANK CORRESPONDING TO SUCH RELATIVE RANK. ON DECEMBER 1, 1945, UNDER AUTHORITY CONTAINED IN THE PROVISIONS OF 34 U.S.C. 436, AND 855C-1, SHE WAS PLACED ON THE RETIRED LIST OF THE NAVY NURSE CORPS WITH RETIRED PAY COMPUTED UPON THE BASIS OF THE ACT OF DECEMBER 3, 1945, 59 STAT. 594. SUBSEQUENTLY, ON DECEMBER 15, 1947, IT IS STATED THAT SHE ACCEPTED CIVILIAN EMPLOYMENT IN THE VETERANS ADMINISTRATION AT A SALARY OF $2,168.28 PER ANNUM AND THAT HER PRESENT SALARY IS $299.50 PER MONTH.

IN VIEW OF THE FOREGOING, YOU REQUEST A DECISION WITH RESPECT TO THE FOLLOWING SPECIFIC QUESTIONS:

(A) ARE THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 406; 5 U.S.C. 59A), APPLICABLE TO THE CASE OF ENSIGN WORLEY?

(B) WAS ENSIGN WORLEY PROPERLY CREDITED WITH FULL RETIRED PAY FOR THE PERIOD FROM DECEMBER 15, 1947, TO DECEMBER 31, 1948?

(C) SHOULD CREDIT OF FULL RETIRED PAY TO ENSIGN WORLEY BE RESUMED AS OF JANUARY 1, 1949?

THE NAVY NURSE CORPS WAS ESTABLISHED BY THE ACT OF MAY 13, 1908, SUPRA, TO CONSIST OF ONE SUPERINTENDENT TO BE APPOINTED BY THE SECRETARY OF THE NAVY AND AS MANY CHIEF NURSES, NURSES, AND RESERVE NURSES AS MAY BE NEEDED, TO BE APPOINTED BY THE SURGEON GENERAL WITH THE APPROVAL OF THE SECRETARY OF THE NAVY. BY THE ACT OF JULY 3, 1942, SUPRA, MEMBERS OF SUCH CORPS WERE GRANTED RELATIVE RANK IN RELATION TO COMMISSIONED OFFICERS OF THE NAVY AS FOLLOWS: THE SUPERINTENDENT, THE RELATIVE RANK OF LIEUTENANT COMMANDER; ASSISTANT SUPERINTENDENTS, THE RELATIVE RANK OF LIEUTENANT; CHIEF NURSE, THE RELATIVE RANK OF LIEUTENANT (JG); NURSE, THE RELATIVE RANK OF ENSIGN. ALSO, IN THAT CONNECTION, THE ACT OF FEBRUARY 26, 1944, 58 STAT. 105, PROVIDED THAT "DURING THE PRESENT WAR AND 6 MONTHS THEREAFTER" MEMBERS OF THE NAVY NURSE CORPS ENTITLED TO RELATIVE RANK UNDER EXISTING LAW "SHALL BE DESIGNATED BY THE RANK WHICH CORRESPONDS TO THE RELATIVE RANK HERETOFORE PROVIDED BY LAW FOR SUCH SUPERINTENDENT AND MEMBERS" BUT THAT NOTHING IN THE SAID ACT SHALL ALTER, ENLARGE, OR MODIFY THE PROVISIONS OF LAW RELATING TO THE MANNER OF THEIR APPOINTMENT.

WITH RESPECT TO THE STATUS OF MEMBERS OF THE NAVY NURSE CORPS UNDER THE SAID ACT OF JULY 3, 1942, IT WAS HELD IN DECISION OF AUGUST 4, 1943, 23 COMP. GEN. 76, AT PAGE 79, THAT "WHILE MEMBERS OF THE * * * NAVY AND THE ARMY NURSE CORPS HOLD RELATIVE RANK, MEMBERS THEREOF ARE NOT COMMISSIONED OFFICERS.' WITH RESPECT TO THE 1944 ACT, IT WAS HELD IN DECISION OF NOVEMBER 13, 1945, 25 COMP. GEN. 388, AT PAGE 395, THAT SUCH ACT "DID NOT MATERIALLY AFFECT THE STATUS OF MEMBERS OF THE NAVY NURSE CORPS, THAT IS, IT DID NOT GRANT THEM COMMISSIONS IN THE NAVY OR EXTEND TO THEM THE BENEFITS OF LAWS APPLICABLE TO COMMISSIONED OFFICERS OF THE NAVY.'

IN VIEW OF THE FOREGOING DECISIONS, IT APPEARS CLEAR THAT, PRIOR TO THE EFFECTIVE DATE OF THE ARMY-NAVY NURSES ACT OF 1947, APPROVED APRIL 16, 1947, 61 STAT. 41, MEMBERS OF THE NAVY NURSE CORPS DID NOT ACQUIRE THE STATUS OF COMMISSIONED OFFICER. THEREFORE, SUCH MEMBERS WHO WERE PLACED ON THE RETIRED LIST PRIOR TO THAT DATE DO NOT RECEIVE RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932. ACCORDINGLY, QUESTION (A) PRESENTED IN YOUR LETTER IS ANSWERED IN THE NEGATIVE.

SECTION 1 OF THE ACT OF DECEMBER 3, 1945, 59 STAT. 594, PROVIDES THAT DURING THE EFFECTIVE PERIOD THEREOF--- FROM JULY 10, 1944, TO 6 MONTHS AFTER TERMINATION OF THE PRESENT WAR--- MEMBERS OF THE NAVY NURSE CORPS SHALL RECEIVE THE SAME PAY AND MONEY ALLOWANCES THAT ARE NOW OR MAY HEREAFTER BE PRESCRIBED BY LAW FOR OFFICERS OF THE REGULAR NAVY OR CORRESPONDING RANK AND LENGTH OF SERVICE. SECTION 2 (B) OF THE SAID ACT, 59 STAT. 595, PROVIDES THAT MEMBERS OF SUCH CORPS WHO ARE RETIRED FOR DISABILITY (ACT OF JUNE 20, 1930, 46 STAT. 790) "SHALL BEGINNING ON THE FIRST DAY OF THE FIRST MONTH NEXT FOLLOWING THE DATE OF ENACTMENT OF THIS ACT BE ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY TO WHICH SHE WOULD HAVE BEEN ENTITLED AT THE TIME HER DISABILITY WAS INCURRED HAD HER ACTIVE-DUTY PAY AND ALLOWANCES AT SUCH TIME BEEN COMPUTED AS PROVIDED IN SECTION 1 OF THIS ACT.' ACCORDINGLY, SINCE THE RETIRED PAY STATUS OF THE NURSE INVOLVED IN THE INSTANT CASE WAS GOVERNED BY THE FOREGOING ACT, SUCH RETIRED PAY CONSTITUTES ,SALARY" WITHIN THE MEANING OF THAT TERM AS USED IN THE ACT OF MAY 10, 1946, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, WHICH WITH THE EXCEPTION OF RETIRED OFFICERS AND ENLISTED MEN OF THE ARMY, NAVY, ETC., PROHIBITS THE USE OF APPROPRIATED MONIES FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS $2,000 PER ANNUM. THEREFORE, SINCE THE SAID RETIRED NURSE IS NEITHER AN OFFICER NOR AN ENLISTED MAN WITHIN THE EXCEPTIONS OF THE 1916 ACT, SHE IS SUBJECT TO ITS PROVISION. CF. 15 COMP. GEN. 74. THUS, THE RECEIPT BY ENSIGN WORLEY OF THE TWO SALARIES INVOLVED WAS CONTRARY TO LAW, AND WHILE SHE HAS A RIGHT OF ELECTION AS TO WHICH OF THE TWO SALARIES SHE WILL RETAIN, ONE OR THE OTHER SHOULD BE REFUNDED. IF SHE ELECTS TO CONTINUE HER EMPLOYMENT WITH THE VETERANS ADMINISTRATION AND TO RECEIVE THE SALARY INCIDENT THERETO, SHE SHOULD BE REQUIRED TO REFUND ALL RETIRED PAY RECEIVED BY HER DURING THE PERIOD DECEMBER 15, 1947, TO DECEMBER 31, 1948. ALSO, UNDER SUCH ELECTION IT FOLLOWS, OF COURSE, THAT CREDIT OF RETIRED PAY MAY NOT BE RESUMED AS LONG AS SHE RECEIVES SALARY FROM OTHER SOURCES IN VIOLATION OF THE DUAL COMPENSATION ACT OF 1916. QUESTIONS (B) AND (C) PRESENTED IN YOUR LETTER ARE ANSWERED ACCORDINGLY.