B-90258, OCTOBER 28, 1949, 29 COMP. GEN. 203

B-90258: Oct 28, 1949

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THE APPOINTMENT IN QUESTION IS STATED TO BE ONE OF FOUR AUTHORIZED BY SECTION 406 (E) OF THE MUTUAL DEFENSE ASSISTANCE ACT OF 1949. IT IS STATED THAT THE RETIRED OFFICER BEING CONSIDERED FOR SUCH APPOINTMENT IS A MAJOR GENERAL OF THE ARMY. YOU STATE IT TO BE THE OPINION OF YOUR OFFICE THAT THERE IS NO LEGAL OBJECTION TO THE APPOINTMENT OF THE SAID RETIRED OFFICER TO ONE OF THE POSITIONS IN QUESTION AND THAT HE MAY RECEIVE EITHER THE COMPENSATION ATTACHED TO THE POSITION. IT ALSO IS STATED TO BE THE OPINION OF YOUR OFFICE THAT THE ACCEPTANCE OF THE SAID EMPLOYMENT BY THE RETIRED OFFICER WILL NOT AFFECT HIS RETIRED STATUS AND THAT IF HE SHOULD ELECT TO RECEIVE THE SALARY AUTHORIZED BY LAW FOR THE CIVILIAN EMPLOYMENT.

B-90258, OCTOBER 28, 1949, 29 COMP. GEN. 203

COMPENSATION - DOUBLE - RETIRED OFFICERS HOLDING CIVILIAN POSITIONS THE DUAL EMPLOYMENT RESTRICTIONS OF THE ACT OF JULY 31, 1894, AS AMENDED, DO NOT PRECLUDE AN OFFICER RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY FROM ACCEPTING PRESIDENTIAL APPOINTMENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO ONE OF THE POSITIONS AUTHORIZED BY SECTION 406 (E) OF THE MUTUAL DEFENSE ASSISTANCE ACT OF 1949; HOWEVER, UNDER THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, AN OFFICER ENTITLED TO RETIRED PAY IN EXCESS OF $3,000 MUST ELECT TO RECEIVE EITHER THE RETIRED PAY OR THE PAY FOR THE CIVILIAN POSITION DURING THE PERIOD OF EMPLOYMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, OCTOBER 28, 1949:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 27, 1949, RELATIVE TO THE LEGALITY OF A RETIRED COMMISSIONED OFFICER OF THE ARMY ACCEPTING APPOINTMENT TO A CIVILIAN POSITION UNDER THE UNITED STATES GOVERNMENT AND RECEIVING THE COMPENSATION ATTACHED THERETO. THE APPOINTMENT IN QUESTION IS STATED TO BE ONE OF FOUR AUTHORIZED BY SECTION 406 (E) OF THE MUTUAL DEFENSE ASSISTANCE ACT OF 1949, PUBLIC LAW 329, APPROVED OCTOBER 6, 1949, 63 STAT. 719, WHICH SECTION PROVIDES THAT THE PERSONS SO EMPLOYED BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. IT IS STATED THAT THE RETIRED OFFICER BEING CONSIDERED FOR SUCH APPOINTMENT IS A MAJOR GENERAL OF THE ARMY, RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, BUT NOT AS THE RESULT OF INJURIES INCURRED IN COMBAT OR AS A RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR, AND THAT HE RECEIVES RETIRED PAY IN EXCESS OF $3,000 PER ANNUM.

FROM THE FOREGOING FACTS, YOU STATE IT TO BE THE OPINION OF YOUR OFFICE THAT THERE IS NO LEGAL OBJECTION TO THE APPOINTMENT OF THE SAID RETIRED OFFICER TO ONE OF THE POSITIONS IN QUESTION AND THAT HE MAY RECEIVE EITHER THE COMPENSATION ATTACHED TO THE POSITION, OR HIS RETIRED PAY, AS HE MAY ELECT, UNDER THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406. IT ALSO IS STATED TO BE THE OPINION OF YOUR OFFICE THAT THE ACCEPTANCE OF THE SAID EMPLOYMENT BY THE RETIRED OFFICER WILL NOT AFFECT HIS RETIRED STATUS AND THAT IF HE SHOULD ELECT TO RECEIVE THE SALARY AUTHORIZED BY LAW FOR THE CIVILIAN EMPLOYMENT, INSTEAD OF HIS RETIRED PAY, HIS RIGHT TO AGAIN RECEIVE RETIRED PAY UPON TERMINATION OF SUCH EMPLOYMENT WILL REMAIN UNAFFECTED BY REASON OF HAVING BEEN SO EMPLOYED. UNDER THE FACTS RECITED, YOU REQUEST MY CONCURRENCE IN THE OPINIONS SET FORTH ABOVE.

THE ACT OF JULY 31, 1894, 28 STAT. 205, PROHIBITS THE HOLDING OF AN OFFICE WITH A SALARY AMOUNTING TO $2,500 PER ANNUM, OR MORE, BY ANY PERSON WHO HOLDS ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED, BUT PROVIDES THAT SUCH PROHIBITION SHALL NOT APPLY TO RETIRED OFFICERS OF THE VARIOUS ARMED SERVICES WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE, OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. ALSO THE SAID ACT EXEMPTS FROM ITS PROVISIONS RETIRED OFFICERS OF THE VARIOUS ARMED SERVICES WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITIES INCURRED IN LINE OF DUTY.

SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA, PROHIBITS THE RECEIPT OF RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN THE ARMY, NAVY, ETC., BY ANY PERSON HOLDING A CIVILIAN OFFICE OR POSITION, 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 FROM BOTH SOURCES MORE THAN $3,000. HOWEVER, THAT SECTION ALSO PROVIDES THAT WHEN THE RETIRED PAY EXCEEDS $3,000 PER ANNUM, THE OFFICER MAY RECEIVE EITHER THE CIVILIAN COMPENSATION OR THE RETIRED PAY, AS HE MAY ELECT.

SINCE THE APPOINTMENT REFERRED TO IN YOUR LETTER IS ONE REQUIRED BY LAW TO BE MADE BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND SINCE THE OFFICER BEING CONSIDERED FOR APPOINTMENT WAS RETIRED FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY, CLEARLY THE PROVISIONS OF THE 1894 ACT ARE NOT FOR APPLICATION AND THERE IS NO LEGAL OBJECTION TO THE APPOINTMENT OF THE SAID RETIRED OFFICER TO ONE OF THE POSITIONS AUTHORIZED BY SECTION 406 (E) OF THE SAID ACT OF OCTOBER 6, 1949. ALTHOUGH UNDER THE PROVISIONS OF SECTION 212, SUPRA, THE RETIRED OFFICER IN QUESTION MAY NOT RECEIVE BOTH HIS RETIRED PAY AND HIS CIVILIAN COMPENSATION, SINCE THE RETIRED PAY EXCEEDS $3,000 PER ANNUM, HE MAY ELECT TO RECEIVE EITHER ONE OR THE OTHER ACCORDINGLY, I CONCUR IN THE OPINIONS EXPRESSED IN YOUR LETTER BOTH AS TO THE LEGALITY OF THE APPOINTMENT AND TO THE PAYMENT OF COMPENSATION.

IN CONNECTION WITH THE EXPRESSED VIEWS OF YOUR OFFICE WITH RESPECT TO THE EFFECT OF THE SAID APPOINTMENT UPON THE OFFICER'S RETIRED STATUS, IT MAY BE STATED THAT SECTION 212 OF THE ACT OF JUNE 30, 1932, PROVIDING FOR A RIGHT OF ELECTION BY A RETIRED COMMISSIONED OFFICER TO RECEIVE EITHER HIS RETIRED PAY OR THE COMPENSATION ATTACHED TO ANY CIVILIAN OFFICE TO WHICH HE MAY BE APPOINTED, IS A LIMITATION SOLELY UPON THE RECEIPT OF RETIRED PAY IN SUCH CASE, AND IN NOWISE IS DIRECTED TO THE MATTER OF RETENTION OF A RETIRED STATUS. IN THAT CONNECTION, IT MAY BE STATED THAT MATTERS RESPECTING RETIRED STATUS PRIMARILY ARE FOR DETERMINATION BY THE DEPARTMENT OF THE ARMY. HOWEVER, YOU MAY BE ADVISED THAT I AM AWARE OF NO PROVISION OF LAW WHICH WOULD ADVERSELY AFFECT THE SUBJECT OFFICER'S RETIRED STATUS UNDER THE CIRCUMSTANCES HERE RELATED.