B-150128, FEB. 13, 1964

B-150128: Feb 13, 1964

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO LETTER FROM THE ASSISTANT SECRETARY OF THE INTERIOR DATED JANUARY 20. THE REQUEST IS BASED ON CORRECTIONS MADE IN MR. A CORRECTION UNDER THAT SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES. LINTH'S MILITARY RECORDS AS FOLLOWS: "IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S NAVAL RECORD BE CORRECTED TO SHOW: "A. THAT ON 30 APRIL 1958 HE REVERTED TO HIS PERMANENT ENLISTED RATE OF CHIEF ELECTRICIAN'S MATE AND WAS TRANSFERRED TO THE FLEET RESERVE. THAT HE WAS NOT TRANSFERRED TO THE RETIRED LIST OF THE U.S. SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW.

B-150128, FEB. 13, 1964

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER FROM THE ASSISTANT SECRETARY OF THE INTERIOR DATED JANUARY 20, 1964, REQUESTING OUR DECISION WHETHER UPON THE BASIS OF CORRECTED RECORDS, THE INDEBTEDNESS ASSERTED AGAINST MR. VERNON E. LINTH UNDER OUR DECISION OF NOVEMBER 26, 1962, B-150128, MAY BE REMOVED AND WHETHER HE CAN BE REHIRED AS A CIVILIAN EMPLOYEE BY THE DEPARTMENT OF THE INTERIOR. THE REQUEST IS BASED ON CORRECTIONS MADE IN MR. LINTH'S MILITARY RECORDS BY THE BOARD FOR CORRECTION OF NAVAL RECORDS UNDER 10 U.S.C. 1552.

10 U.S.C. 1552 PROVIDES THAT THE SECRETARY OF A MILITARY DEPARTMENT, ACTING THROUGH BOARDS OF CIVILIANS OF THE EXECUTIVE PART OF THAT MILITARY DEPARTMENT, MAY CORRECT ANY MILITARY RECORD OF THAT DEPARTMENT WHEN HE CONSIDERS IT NECESSARY TO CORRECT AN ERROR OR REMOVE AN INJUSTICE. EXCEPT WHEN PROCURED BY FRAUD, A CORRECTION UNDER THAT SECTION IS FINAL AND CONCLUSIVE ON ALL OFFICERS OF THE UNITED STATES.

BY LETTER DATED DECEMBER 16, 1963, THE EXECUTIVE SECRETARY OF THE BOARD FOR CORRECTION OF NAVAL RECORDS, DEPARTMENT OF THE NAVY, REPORTED THAT THE SECRETARY OF THE NAVY HAD APPROVED THE DECISION OF THE BOARD RELATING TO THE CORRECTION OF MR. LINTH'S MILITARY RECORDS AS FOLLOWS:

"IT IS THE DECISION OF THIS BOARD THAT PETITIONER'S NAVAL RECORD BE CORRECTED TO SHOW:

"A. THAT ON 30 APRIL 1958 HE REVERTED TO HIS PERMANENT ENLISTED RATE OF CHIEF ELECTRICIAN'S MATE AND WAS TRANSFERRED TO THE FLEET RESERVE, AND CONCURRENTLY RELEASED TO INACTIVE DUTY; AND

"B. THAT HE WAS NOT TRANSFERRED TO THE RETIRED LIST OF THE U.S. NAVY ON 1 MAY 1958, WITH THE RANK AND RETIRED PAY OF CHIEF ELECTRICIAN, W/2.'

THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, PROVIDES THAT NO PERSON WHO HOLDS AN "OFFICE," THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF $2,500, SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW, BUT THAT THIS SECTION SHALL NOT APPLY TO RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE.

IN OUR DECISION OF NOVEMBER 26, 1962, WE HELD THAT SINCE MR. LINTH WAS RETIRED AS A WARRANT OFFICER FOR LENGTH OF SERVICE UNDER 10 U.S.C. 1293, THAT IS TO SAY, OTHER THAN FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY," HE HELD AN "OFFICE" WITHIN THE MEANING OF THE 1894 LAW AND THAT, THEREFORE, THERE MUST BE RECOVERED FROM HIM THE TOTAL AMOUNT OF SALARY PAID FROM THE DATE OF HIS APPOINTMENT TO THE CIVILIAN POSITION INVOLVED ON MARCH 20, 1961, TO THE DATE OF HIS SEPARATION FROM THE CIVILIAN POSITION. SINCE THE MEMBER'S MILITARY RECORDS NOW SHOW THAT HE REVERTED TO HIS PERMANENT ENLISTED RATE OF CHIEF ELECTRICIAN'S MATE ON APRIL 30, 1958, AND THAT HE WAS NOT TRANSFERRED TO THE RETIRED LIST OF THE NAVY ON MAY 1, 1958, WITH THE RANK AND RETIRED PAY OF CHIEF ELECTRICIAN, W-2, IT MUST BE CONSIDERED THAT HE DID NOT RETIRE AS A WARRANT OFFICER AND THAT HE NEVER WAS ENTITLED TO RETIRED PAY AS A RETIRED WARRANT OFFICER. IT IS ASSUMED THAT THE ADJUSTMENTS IN HIS RETIRED PAY ACCOUNT NECESSITATED BY THE CORRECTION ACTION HAVE BEEN MADE. UNDER SUCH CIRCUMSTANCES, THERE IS NO LEGAL BASIS TO QUESTION THE LEGALITY OF THE PAYMENTS OF CIVILIAN COMPENSATION MADE TO HIM AS A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR. ALSO, NO OBJECTION IS PERCEIVED TO HIS BEING REHIRED AS A CIVILIAN EMPLOYEE UNDER THE CONDITIONS NOW APPEARING IN HIS CASE. CF. 41 COMP. GEN. 533.

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