B-148353, JUN. 6, 1962

B-148353, JUN. 6, 1962

TO THE AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE:

YOUR LETTER OF FEBRUARY 20, 1962, GG:RA IX, REQUESTS OUR DECISION WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT THE SALARY OF MR. ROBERT O. NELSON FOR THE PERIOD BEGINNING JANUARY 8, 1962, IN VIEW OF THE DUAL OFFICE RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62. THAT STATUTE PROVIDES, AS FOLLOWS (QUOTING FROM THE CODE):

"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; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD 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. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.'

THE RECORDS SHOW THAT PURSUANT TO PARAGRAPH 76, DEPARTMENT OF THE ARMY SPECIAL ORDERS NO. 251, DATED DECEMBER 18, 1952, MR. NELSON WAS TEMPORARILY APPOINTED, EFFECTIVE JANUARY 1, 1953, IN THE SAME GRADE(WARRANT OFFICER, ARMY OF THE UNITED STATES), IN WHICH HE WAS SERVING ON DECEMBER 31, 1952. SEE, IN THAT CONNECTION, DEPARTMENT OF THE ARMY CIRCULAR NO. 108, DATED DECEMBER 17, 1952, AND 10 U.S.C. 591A (1952 EDITION). YOU SAY THAT MR. NELSON WAS PLACED ON THE ARMY OF THE UNITED STATES RETIRED LIST AS CHIEF WARRANT OFFICER (W-4), ON JANUARY 1, 1961, UNDER THE PROVISIONS OF 10 U.S.C. 1293 (APPARENTLY HAVING COMPLETED AT LEAST 20 YEARS OF ACTIVE SERVICE), AND THAT HE HAS NEVER SERVED AS A MEMBER OF A REGULAR OR RESERVE COMPONENT OF THE ARMY AND IS NOT NOW SUCH A MEMBER.

YOU FURTHER SAY THAT MR. NELSON WAS APPOINTED CLAIMS EXAMINER (RETIREMENT), GRADE GS-7, WITH AN ANNUAL SALARY OF $5,355, BY THE BALTIMORE PAYMENT CENTER, BUREAU OF OLD-AGE AND SURVIVORS INSURANCE, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, WITH DUTY STATION IN BALTIMORE, MARYLAND, EFFECTIVE MAY 15, 1961; THAT HE WAS REASSIGNED TO THE REGION IX (SAN FRANCISCO, CALIFORNIA) OFFICE OF THE BUREAU, WITH DUTY STATION AT VAN NUYS, CALIFORNIA, ON JANUARY 8, 1962, AND THAT HE IS CURRENTLY RECEIVING RETIRED PAY FROM THE ARMY IN THE AMOUNT OF $3,900.

IT IS WELL ESTABLISHED THAT WARRANT OFFICERS--- NOT RETIRED FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY--- HELD AN OFFICE WITHIN THE MEANING OF THE 1894 LAW. SEE 16 COMP. GEN. 232; 21 COMP. GEN 38; 36 COMP. GEN. 399. CF. 38 COMP. GEN. 497. WE HAVE HELD THAT A RETIRED OFFICER MAY NOT AVOID THE PROHIBITION OF THE STATUTE BY RETAINING HIS RETIRED OFFICE AND WAIVING HIS RETIRED PAY DURING THE PERIOD OF HIS OCCUPANCY OF A CIVILIAN POSITION. 14 COMP. GEN. 289. THEREFORE, UNLESS THE RETIRED WARRANT OFFICER IS WITHIN A CLASS SPECIFICALLY EXEMPTED FROM THE OPERATION OF THE 1894 LAW OR HIS EMPLOYMENT IS FOR A PARTICULAR PROJECT OF SHORT DURATION OR ON AN INTERMITTENT BASIS AND THUS DOES NOT CONSTITUTE THE HOLDING OF AN "OFFICE" WITHIN THE PURVIEW OF THE STATUTE, THE PROVISIONS OF THE 1894 LAW OPERATE AS A BAR TO HIS APPOINTMENT AS A CIVILIAN EMPLOYEE. ON THE BASIS OF THE INFORMATION FURNISHED, THE POSITION HELD BY MR. NELSON IS NOT OF THE TYPE EXCEPTED FROM THE OPERATION OF THE 1894 LAW.

THE FACT THAT MR. NELSON WAS SERVING ON ACTIVE DUTY IN THE TEMPORARY RANK OF WARRANT OFFICER RATHER THAN AS A WARRANT OFFICER IN THE REGULAR ARMY, IS WITHOUT SIGNIFICANCE, SINCE HIS RIGHTS ARE THE SAME AS THEY WOULD HAVE BEEN IF HE HAD BEEN SERVING IN THE REGULAR ARMY. THE RETIREMENT BENEFITS MENTIONED IN 10 U.S.C. 59-A (1952 EDITION) AND 10 U.S.C. 3448 (1958 EDITION) ARE THOSE OF MEMBERS OF THE ARMY "ON ACTIVE DUTY" UNDER EXISTING STATUTORY AUTHORIZATIONS. IT WOULD SEEM TO FOLLOW THAT WHEN A TEMPORARY WARRANT OFFICER ON ACTIVE DUTY IS RETIRED AND HIS RETIRED PAY IS CORRECTLY COMPUTED UNDER THE PROVISIONS OF LAW APPLICABLE TO MEMBERS OF THE ARMY "ON ACTIVE DUTY" UPON RETIREMENT, HE HAS RECEIVED THE RETIRED PAY RIGHTS GRANTED TO HIM UNDER 10 U.S.C. 3448. IF OTHER PROVISIONS OF LAW RESTRICT HIS RIGHT TO FEDERAL EMPLOYMENT AT A LATER TIME, 10 U.S.C. 3448 AFFORDS NO RELIEF FROM SUCH RESTRICTIONS. CF. 40 COMP. GEN. 660, ATTENTION BEING DIRECTED TO THE DISCUSSION ON PAGE 603 REGARDING THE SITUATION HERE INVOLVED.

SINCE MR. NELSON WAS RETIRED AS A CHIEF WARRANT OFFICER FOR LENGTH OF SERVICE ONLY, THAT IS TO SAY, OTHER THAN FOR "INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY," OUR VIEW IS THAT HE HOLDS AN "OFFICE" WITHIN THE MEANING OF THE 1894 LAW AND THAT, THEREFORE, HIS APPOINTMENT TO THE CIVILIAN POSITION WITH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE WAS VOID AB INITIO. IN THE CIRCUMSTANCES, THERE MUST BE RECOVERED THE TOTAL AMOUNT OF SALARY PAID FROM THE DATE OF HIS APPOINTMENT TO THE DATE OF HIS SEPARATION FROM THE CIVILIAN POSITION. SEE, IN THAT CONNECTION, 21 COMP. GEN. 1129, 23 COMP. GEN. 445 AND 36 COMP. GEN. 803.

CONCERNING THE MATTER OF REIMBURSING MR. NELSON FOR HIS EXPENSES OF TRAVEL AND SHIPMENT OF HIS HOUSEHOLD GOODS DURING THE PERIOD OF HIS ILLEGAL EMPLOYMENT, YOU ARE ADVISED THAT WE FIND NO AUTHORITY FOR SUCH ACTION.