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B-126014, AUG. 14, 1957

B-126014 Aug 14, 1957
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752.13 WAS CERTIFIED TO BE DUE YOU FROM THE UNITED STATES. A CHECK IN THAT AMOUNT WAS THEREAFTER FORWARDED TO YOU. 752.13 WAS DETERMINED TO BE DUE YOU SINCE YOU CANNOT RECONCILE THE AMOUNT PAID WITH THE AMOUNT YOU CLAIM IS DUE UNDER THE PRIVATE LAW. YOU WERE RETIRED FROM THE AIR FORCE AS A REGULAR OFFICER AND YOUR NAME WAS PLACED ON THE RETIRED LIST. PAYMENT OF YOUR RETIRMENT BENEFITS WAS SUSPENDED. IT WAS LATER DETERMINED BY THE DEPARTMENT OF THE AIR FORCE THAT YOUR APPOINTMENT TO THE CIVIL SERVICE POSITION OF LOGISTICS OFFICER WAS IN VIOLATION OF THE ACT OF JULY 31. YOU WERE NOTIFIED THAT YOUR APPOINTMENT TO THE CIVIL SERVICE POSITION HAD BEEN CANCELED RETROACTIVE TO OCTOBER 11. 472.35 AND YOU WERE REQUESTED TO REFUND THAT AMOUNT.

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B-126014, AUG. 14, 1957

TO MR. JAMES F. WALSH:

YOUR LETTER OF JULY 1, 1957 ACKNOWLEDGED JULY 10TH, CONCERNS CERTIFICATE OF SETTLEMENT NO. 2285081 OF JUNE 13, 1957, IN WHICH, UNDER PRIVATE LAW 85 -13, APPROVED MAY 16, 1957, $4,752.13 WAS CERTIFIED TO BE DUE YOU FROM THE UNITED STATES. A CHECK IN THAT AMOUNT WAS THEREAFTER FORWARDED TO YOU.

YOU WISH TO KNOW HOW THE AMOUNT OF $4,752.13 WAS DETERMINED TO BE DUE YOU SINCE YOU CANNOT RECONCILE THE AMOUNT PAID WITH THE AMOUNT YOU CLAIM IS DUE UNDER THE PRIVATE LAW.

ON JULY 31, 1947, YOU WERE RETIRED FROM THE AIR FORCE AS A REGULAR OFFICER AND YOUR NAME WAS PLACED ON THE RETIRED LIST. BEGINNING AUGUST 1, 1947, AND CONTINUING UNTIL OCTOBER 10, 1955, YOU RECEIVED FULL RETIREMENT BENEFITS UNDER THE APPLICABLE RETIREMENT LAWS. EFFECTIVE OCTOBER 11, 1955, YOU ACCEPTED AN APPOINTMENT AS A LOGISTICS OFFICER, GS-12, WITH THE AIR MATERIAL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND, AS OF THAT DATE, PAYMENT OF YOUR RETIRMENT BENEFITS WAS SUSPENDED. IT WAS LATER DETERMINED BY THE DEPARTMENT OF THE AIR FORCE THAT YOUR APPOINTMENT TO THE CIVIL SERVICE POSITION OF LOGISTICS OFFICER WAS IN VIOLATION OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62. CONSEQUENTLY, ON NOVEMBER 1, 1955, YOU WERE NOTIFIED THAT YOUR APPOINTMENT TO THE CIVIL SERVICE POSITION HAD BEEN CANCELED RETROACTIVE TO OCTOBER 11, 1954. AS A RESULT OF THE ILLEGAL APPOINTMENT, THE DEPARTMENT OF THE AIR FORCE DETERMINED YOUR NET INDEBTEDNESS TO THE UNITED STATES AT $6,472.35 AND YOU WERE REQUESTED TO REFUND THAT AMOUNT. ALSO, THE FULL RETIREMENT BENEFITS WHICH WERE DUE YOU FOR THE PERIOD DURING WHICH YOU HAD BEEN PAID UNDER THE ILLEGAL APPOINTMENT (OCTOBER 11, 1954, THROUGH OCTOBER 1, 1955), PLUS $73.71, WHICH WAS WITHHELD EACH MONTH FOR 20 MONTHS FROM YOUR RETIREMENT BENEFITS FOR THE PERIOD OCTOBER 2, 1955, THROUGH MAY 31, 1957, WERE APPLIED TOWARD THE REDUCTION OF YOUR INDEBTEDNESS. THEREAFTER, THE CONGRESS ENACTED PRIVATE LAW 85-13, APPROVED MAY 16, 1957.

IN YOUR LETTER OF JUNE 8, 1957, YOU CLAIMED MONEYS DUE YOU UNDER THE PRIVATE LAW, I.E., ,REIMBURSEMENT AND PAY FOR SERVICES RENDERED AT THE AIR MATERIAL COMMAND DURING THE PERIOD 11 OCTOBER 1954 THRU 1 NOVEMBER 1955," "REIMBURSEMENT OF THE DEDUCTIONS WHICH HAVE BEEN TAKEN FROM MY RETIREMENT PAY DURING THE PAST TWENTY-ONE MONTHS AND RETIREMENT PAY FOR THE PERIOD 11 OCTOBER 1954 THRU 1 OCTOBER 1955 WHICH WAS CREDITED TO THE AMOUNT THE GOVERNMENT CLAIMED I OWED," AND ,PAYMENT * * * FOR SIX WEEKS OF WORK FOR WHICH MY PAY CHECKS WERE CANCELED PLUS APPROXIMATELY TWO WEEKS OF UNUSED LEAVE.' WE NOTE THAT THE PERIOD OCTOBER 2, 1955, THROUGH MAY 31, 1957, DURING WHICH $73.71 WAS WITHHELD MONTHLY FROM YOUR RETIRMENT BENEFITS, TOTALS 20 MONTHS, AND NOT 21 MONTHS, AS YOU CLAIMED.

THE ACT OF JULY 31, 1894, PROHIBITS ANY PERSON HOLDING AN OFFICE THE COMPENSATION OF WHICH IS $2,500 OR MORE FROM HOLDING ANY OTHER OFFICE WITH COMPENSATION ATTACHED, WITH CERTAIN EXCEPTIONS THEREIN SPECIFIED. THE DEPARTMENT OF THE AIR FORCE HAS REPORTED TO US THAT YOU DO NOT COME WITHIN ANY OF THE EXCEPTIONS. IT HAS LONG BEEN HELD THAT, WITHIN THE MEANING OF THE ACT, A RETIRED OFFICER HOLDS AN OFFICE AND HIS RETIRED PAY IS COMPENSATION ATTACHED TO THE OFFICE. 1 COMP. GEN. 700, 10 ID. 85. THUS, YOUR APPOINTMENT TO A REGULAR FULL-TIME GOVERNMENT CIVILIAN POSITION AT A SALARY IN EXCESS OF $2,500 PER ANNUM WAS VOID AB INITIO AND PAYMENT OF THE SALARY OF THE CIVILIAN POSITION WAS ILLEGAL FROM OCTOBER 11, 1955, THE DATE OF YOUR APPOINTMENT. 21 COMP. GEN. 1129. MOREOVER, NO RIGHT EXISTED TO PAYMENT OF CASH VALUE OF UNUSED LEAVE AT DATE OF SEPARATION. SEE 20 COMP. GEN. 288. IN THE ABSENCE OF A STATUTE SO PROVIDING, RETIRED MILITARY PAY MAY NOT BE WAIVED IN FAVOR OF CIVILIAN PAY. 23 COMP. GEN. 445.

PRIVATE LAW 85-113, PROVIDES THAT YOU ARE TO BE "RELIEVED OF ALL LIABILITY TO REFUND TO THE UNITED STATES THE SUM OF $6,472.35" WHICH REPRESENTED NET PAYMENTS TO YOU AS A LOGISTICS OFFICER ,DURING THE PERIOD BEGINNING OCTOBER 11, 1954, AND ENDING OCTOBER 1, 1955.' THAT SUM DID NOT INCLUDE THE $518.30 COVERED BY THE CANCELED CHECKS AND THE CASH VALUE OF THE UNUSED LEAVE. MOREOVER, THE PRIVATE LAW DID NOT VALIDATE YOUR APPOINTMENT TO THE CIVILIAN POSITION; IT MERELY RELIEVED YOU OF LIABILITY FOR THE ILLEGALLY PAID COMPENSATION. SECTION 2 REFERS TO THE AMOUNTS DUE WHICH WERE COLLECTED FROM YOUR RETIRED PAY AND WHICH WERE APPLIED TOWARD THE REDUCTION OF YOUR INDEBTEDNESS. THE DEPARTMENT OF THE AIR FORCE HAS REPORTED TO US THAT UNDER SECTION 2 YOU WERE DUE $4,752.13, COMPUTED AS FOLLOWS: $1,499.06, FOR THE PERIOD OCTOBER 11, 1954, THROUGH MARCH 31, 1955, (5 MONTHS AND 20 DAYS), AT A RATE OF $264.54 PER MONTH; $1,778.87, FOR THE PERIOD APRIL 1, 1955, THROUGH OCTOBER 1, 1955, (6 MONTHS AND ONE DAY), AT A RATE OF $294.84 PER MONTH; AND $1,474.20, FOR THE PERIOD OCTOBER 2, 1955, THROUGH MAY 31, 1957, (20 MONTHS), AT A RATE OF $73.71 PER MONTH.

SINCE THE SETTLEMENT IS IN ACCORDANCE WITH THE PROVISIONS OF PRIVATE LAW 85-13, IT IS SUSTAINED.

THE COPY OF THE CERTIFICATE OF SETTLEMENT FORWARDED WITH YOUR LETTER OF JULY 1, 1957, IS RETURNED HEREWITH.

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