B-81552, DECEMBER 17, 1948, 28 COMP. GEN. 367

B-81552, DECEMBER 17, 1948, 28 COMP. GEN. 367

PAY - RETIRED - RESERVE PERSONNEL - CONCURRENT FEDERAL EMPLOYMENT OR CIVILIAN RETIREMENT ANNUITY THE PAYMENT OF RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 TO RESERVE OFFICERS ON INACTIVE DUTY, WHO ALSO OCCUPY FEDERAL CIVILIAN POSITIONS THE COMPENSATION ATTACHED TO WHICH EQUALS OR EXCEEDS $2,500 PER ANNUM, NEED NOT BE REGARDED AS IN CONTRAVENTION OF THE DUAL EMPLOYMENT RESTRICTION IN THE ACT OF JULY 31, 1894, AS AMENDED. COMMISSIONED RESERVE OFFICERS RETIRED UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948, WITH RETIRED PAY COMPUTED ON THE BASIS OF THEIR HIGHEST GRADES, AND WHO ALSO HOLD CIVILIAN POSITION WITH THE FEDERAL GOVERNMENT, ARE TO BE REGARDED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO BE PROHIBITED FROM RECEIVING COMBINED RETIRED PAY AND CIVILIAN COMPENSATION IN EXCESS OF $3,000 PER ANNUM. A PERSON IN RECEIPT OF AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, ON ACCOUNT OF FEDERAL CIVILIAN SERVICE, AND WHO IS ENTITLED TO BE PAID RETIRED PAY UNDER TITLE III OF THE ARMY AND AIR FORCE VITALIZATION AND RETIREMENT EQUALIZATION ACT OF 1948 FOR MILITARY RESERVE SERVICE, CONCURRENTLY MAY RECEIVE RETIRED PAY UNDER THE 1948 ACT AND ANNUITIES UNDER THE 1930 ACT AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, DECEMBER 17, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 9, 1948, REQUESTING A DECISION UPON TWO QUESTIONS, INFRA, RELATIVE TO THE EFFECT OF RETIRED PAY UPON FEDERAL CIVILIAN EMPLOYMENT, ETC., OF CERTAIN CLASSES OF RESERVE PERSONNEL WHO WILL BE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF TITLE III OF PUBLIC LAW 810, APPROVED JUNE 29, 1948, 62 STAT. 1081, 1087, AFTER THE DATE SUCH TITLE BECOMES EFFECTIVE.

THE FIRST QUESTION IS STATED AS FOLLOWS:

(1) MAY A CIVILIAN EMPLOYEE OF THE UNITED STATES GOVERNMENT, WHILE DRAWING THE PAY OF HIS CIVILIAN POSITION, BE PAID RETIRED PAY TO WHICH HE MAY BECOME ENTITLED UNDER THE PROVISIONS OF TITLE III OF PUBLIC LAW 810 IN VIEW OF THE DUAL OFFICE STATUTE OF 31 JULY 1894, AS AMENDED 5 U.S.C. 62, AND THE DUAL COMPENSATION STATUTE OF 30 JUNE 1932, AS AMENDED, 5 U.S.C. 59 (A), IF NOT OTHERWISE SPECIFICALLY EXEMPTED UNDER THE CITED STATUTES? CONNECTION WITH THE APPLICATION OF THE 1894 ACT, SUPRA, YOUR ATTENTION IS INVITED TO THAT PART OF THE LAST PROVISO (QUOTED IN THE INCLOSURE HERETO) OF SEC. 37 OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF 15 JUNE 1933, 48 STAT. 154, 10 U.S.C. 372.

THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, PROVIDES IN PART THAT:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW * * *. ( ITALICS SUPPLIED.)

IT CONSISTENTLY HAS BEEN HELD IN DECISIONS OF THIS OFFICE THAT A MEMBER OF THE REGULAR MILITARY OR NAVAL SERVICE WHO IS RETIRED FOR LENGTH OF SERVICE, AND PLACED ON THE REGULAR RETIRED LIST OF THE DEPARTMENT CONCERNED WITH THE RETIRED PAY SPECIFICALLY PROVIDED BY STATUTE, HOLDS AN OFFICE TO WHICH COMPENSATION IS ATTACHED WITHIN THE MEANING OF THE 1894 STATUTE. 11 COMP. DEC. 422; 14 COMP. GEN. 289; 21 ID. 1129; AND 24 ID. 467. HOWEVER, A DIFFERENT RULE WOULD APPEAR TO APPLY IN THE CASE OF RESERVE OFFICERS WHOSE NAMES MAY BE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN ACCORDANCE WITH TITLE III, SUPRA, IN VIEW OF SECTION 37 OF THE NATIONAL DEFENSE ACT OF 1916, 10 U.S.C. 372, WHICH PROVIDES THAT:

MEMBERS OF THE OFFICERS' RESERVE CORPS, WHILE NOT ON ACTIVE DUTY, SHALL NOT, BY REASON SOLELY OF THEIR APPOINTMENTS, OATHS, COMMISSIONS, OR STATUS AS SUCH, OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY OR ALLOWANCES RECEIVED AS SUCH, BE HELD OR DEEMED TO BE OFFICERS OR EMPLOYEES OF THE UNITED STATES, OR PERSONS HOLDING ANY OFFICE OF TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER OR IN CONNECTION WITH ANY DEPARTMENT OF THE GOVERNMENT OF THE UNITED STATES.

ACCORDINGLY, IT APPEARS REASONABLE *TO HOLD THAT THE PAYMENT OF RETIRED PAY UNDER TITLE III OF PUBLIC LAW 810, TO RESERVE OFFICERS ON INACTIVE DUTY, WHO ARE OCCUPYING CIVILIAN POSITIONS UNDER THE UNITED STATES GOVERNMENT THE COMPENSATION ATTACHED TO WHICH EQUALS OR EXCEEDS THE SUM OF $2,500 PER ANNUM, IS NOT IN CONTRAVENTION OF THE ACT OF JULY 31, 1894, SUPRA.

THE SECOND POINT INCLUDED WITHIN YOUR FIRST QUESTION, INVOLVES THE APPLICABILITY OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, WHICH PROVIDES IN PART THAT:

* * * NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT * * * SHALL BE ENTITLED DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES, FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, 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 RATE FROM BOTH SOURCES MORE THAN $3,000 * * *.

THERE HAS BEEN FOUND NO PROVISION IN TITLE III OR ELSEWHERE IN PUBLIC LAW 810, SUPRA, NOR ANYTHING IN THE LEGISLATIVE HISTORY OF THAT STATUTE WHICH WOULD JUSTIFY A CONCLUSION THAT COMMISSIONED RESERVE OFFICERS WHO MAY BE PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST IN ACCORDANCE WITH THE PROVISIONS OF TITLE III ARE EXEMPT FROM THE RESTRICTIONS CONTAINED IN SECTION 212 OF THE ECONOMY ACT, AND NEITHER HAS THERE BEEN FOUND ANY OTHER PROVISION OF LAW WHICH PROVIDES SUCH AN EXEMPTION TO SAID OFFICERS. THE CONCLUSION APPEARS INESCAPABLE, THEREFORE, THAT A COMMISSIONED RESERVE OFFICER, WHO MAY BE RETIRED UNDER TITLE III OF PUBLIC LAW 810, WITH RETIRED PAY COMPUTED ON THE BASIS OF THE HIGHEST GRADE, TEMPORARY OR PERMANENT, HELD BY HIM DURING HIS ENTIRE PERIOD OF SERVICE, IN ACCORDANCE WITH THE FORMULA SET OUT IN SECTION 303, OF SUCH TITLE, 62 STAT. 1088, NECESSARILY WILL BE REQUIRED TO BE REGARDED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" AS USED IN THE PROHIBITION CONTAINED IN SECTION 212 OF THE 1932 ACT, SUPRA.

THE SECOND QUESTION PRESENTED IN YOUR LETTER IS AS FOLLOWS:

(2) MAY A PERSON WHO, WHEN TITLE III OF THE ACT OF 29 JUNE 1948, PUBLIC LAW 810, 80TH CONGRESS, BECOMES EFFECTIVE, BE PAID RETIRED PAY UNDER THAT TITLE IF HE IS IN RECEIPT OF AN ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, 46 STAT. 468, AND AS AMENDED BY THE ACT OF 28 FEBRUARY 1948, 62 STAT. 48, PUBLIC LAW 426, 80TH CONGRESS?

IN EFFECT, SECTION 305 OF TITLE III OF PUBLIC LAW 810, 62 STAT. 1089, WOULD APPEAR TO AUTHORIZE THE COUNTING OF THE SAME PERIOD OR SERVICE FOR PURPOSES OF DETERMINING ELIGIBILITY FOR, AND THE AMOUNT OF THE BENEFITS PAYABLE UNDER SUCH TITLE, AND FOR PURPOSES OF DETERMINING ENTITLEMENT TO ANNUITIES, PENSIONS, OR OLD-AGE BENEFITS, PAYABLE UNDER OTHER PROVISIONS OF LAW, ON ACCOUNT OF CIVILIAN EMPLOYMENT IN THE FEDERAL GOVERNMENT OR OTHERWISE, AND THE LEGISLATIVE HISTORY OF SUCH SECTION EVINCES AN INTENTION ON THE PART OF CONGRESS THAT THE TWO TYPES OF BENEFITS BE RECEIVED SIMULTANEOUSLY BY PERSONS OTHERWISE ELIGIBLE THEREFOR. IN LINE WITH THAT AUTHORITY, AND IN VIEW OF THE SPECIFIC PROVISIONS IN SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED BY THE ACT OF FEBRUARY 28, 1948, 62 STAT. 48, 50, THAT: "* * * NOTHING IN THIS ACT SHALL BE CONSTRUED AS TO AFFECT IN ANY MANNER AN OFFICER'S OR EMPLOYEE'S RIGHT TO RETIRED PAY, PENSION, OR COMPENSATION IN ADDITION TO THE ANNUITY HEREIN PROVIDED" THE NEGATIVING OR CONCURRENT RECEIPT OF RETIRED PAY UNDER TITLE III, PUBLIC LAW 810, AND ANNUITIES UNDER THE CIVIL SERVICE RETIREMENT ACT OF 1930, AS AMENDED, TO PERSONS OTHERWISE ENTITLED THERETO, IS NOT REQUIRED.