B-111684 L/M, OCT 8, 1952

B-111684 L/M, OCT 8, 1952

PRECIS-UNAVAILABLE

ADMINISTRATOR OF VETERANS AFFAIRS, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO THE LETTER OF AUGUST 28, 1952, FROM THE DEPUTY ADMINISTRATOR, REQUESTING DECISION WITH RESPECT TO THE PAYMENT OF SALARY TO DOCTOR MILDRED B. BLOINK UNDER THE FOLLOWING STATED FACTS AND CIRCUMSTANCES:

IT APPEARS THAT ON JULY 5, 1951, DOCTOR MILDRED

B. BLOINK WAS GIVEN AN EXCEPTED APPOINTMENT NOT TO

EXTEND BEYOND JUNE 30, 1952, AS A RESIDENT PHYSICIAN,

JUNIOR GRADE, IN THE DEPARTMENT OF MEDICINE AND

SURGERY OF THE VETERANS ADMINISTRATION HOSPITAL,

DEARBORN, MICHIGAN - SUCH APPOINTMENT BEING PERMISSABLE

UNDER SECTION 14(B) OF PUBLIC LAW 293, 79TH CONGRESS,

59 STAT. 675, 679. AT THE EXPIRATION OF HER APPOINTMENT,

JUNE 30, 1952, AS A RESIDENT, AND IN ANTICIPATION

OF A RECEIPT OF A LICENSE TO PRACTICE MEDICINE IN

THE STATE OF MICHIGAN, DOCTOR BLOINK WAS GIVEN AN EXCEPTED

APPOINTMENT UNDER SECTION 4(A) OF PUBLIC LAW 293, AS

PHYSICIAN, JUNIOR GRADE, AT A SALARY OF $5,500 PER

ANNUM, EFFECTIVE JULY 1, WHICH POSITION SHE HELD

THROUGH THE CLOSE OF BUSINESS JULY 17, 1952, WHEN

SHE WAS PERMITTED TO RESIGN. ON THE NEXT DAY,

JULY 18, SHE AGAIN WAS GIVEN AN EXCEPTED APPOINTMENT

AS A RESIDENT, INTERMEDIATE GRADE, NOT TO EXTEND BEYOND

JULY 17, 1953. SHE WAS PAID AT THE RATE OF $5,500

PER ANNUM FOR THE PERIOD JULY 1, THROUGH JULY 5,

1952, BUT IT IS STATED THAT PAYMENT OF COMPENSATION

FOR THE PERIOD JULY 6 THROUGH JULY 17, HAS BEEN

WITHHELD PENDING DECISION UPON THIS MATTER.

IN RESPONSE TO AN INQUIRY FROM THE CENTRAL OFFICE, VETERANS ADMINISTRATION, THE MANAGER OF THE VETERANS ADMINISTRATION HOSPITAL, DEARBORN, MICHIGAN, ADVISED ON JULY 17, 1952, AS FOLLOWS:

"DR. MILDRED BROWN BLOINK WAS IN POSSESSION OF HER

NATIONAL BOARDS AT TIME OF BOARD ACTION AND HAD

ANTICIPATED RECEIVING HER MICHIGAN LICENSE PRIOR

TO DATE OF APPOINTMENT. TO DATE SHE HAS NOT

RECEIVED HER STATE LICENSE. HER APPOINTMENT TO THE

DMS IS BEING TERMINATED AND SHE IS BEING RECONVERTED

TO RESIDENT IN PSYCHIATRY. DR. MILDRED BLOINK'S

HUSBAND DR. HANS R. BLOINK IS A WARD PHYSICIAN

MEDICAL SERVICE. DR. MILDRED BLOINK WAS A WARD

PHYSICIAN ON NP SERVICE AND WILL NOW BE A RESIDENT

ON NP SERVICE. ***"

THE QUESTION PRESENTED ARE AS FOLLOWS:

"1. SHOULD THE EMPLOYEE BE REQUIRED TO REFUND

THE FULL AMOUNT OF SALARY PAID AT THE RATE OF $5500

PER ANNUM FOR THE PERIOD JULY 1 THROUGH 5, 1952, AND

THE VETERANS ADMINISTRATION MAKE NO PAYMENT FOR

THE PERIOD JULY 6 THROUGH 17, 1952?

"2. SHOULD THE EMPLOYEE BE REQUIRED TO REFUND

FOR THE PERIOD JULY 1 THROUGH 5, 1952, ONLY THE EXCESS

AMOUNT OF SALARY PAID AT THE RATE OF $5500 PER ANNUM

OVER HER SALARY RATE OF $2640 PER ANNUM WHICH WAS IN

EFFECT AT THE CLOSE OF BUSINESS JUNE 30, 1952, AND

BE PAID AT THE RATE OF $2640 PER ANNUM FOR THE

PERIOD JULY 6 THROUGH 17, 1952?

"3. SHOULD THE EMPLOYEE BE PERMITTED TO RETAIN

THE PAYMENT MADE FOR THE PERIOD JULY 1 THROUGH 5,

1952, AT THE RATE OF $5500 PER ANNUM AND THE VETERANS

ADMINISTRATION MAKE NO PAYMENT FOR THE PERIOD JULY

6 THROUGH 17, 1952?"

SECTION 5 OF THE ACT OF JANUARY 3, 1946, PUBLIC LAW 293, 59 STAT. 676 PROVIDES:

"ANY PERSON TO BE ELIGIBLE FOR APPOINTMENT IN

THE DEPARTMENT OF MEDICINE AND SURGERY MUST -

"(A) BE A CITIZEN OF THE UNITED STATES.

"(B) IN THE MEDICAL SERVICE - HOLD THE DEGREE OF

DOCTOR OF MEDICINE OR OF DOCTOR OF OSTEOPATHY FROM

A COLLEGE OR UNIVERSITY APPROVED BY THE ADMINISTRATOR,

HAVE COMPLETED AN INTERNSHIP SATISFACTORY TO THE

ADMINISTRATOR, AND BE LICENSED TO PRACTICE MEDICINE,

SURGERY, OR OSTEOPATHY IN ONE OF THE STATES OR

TERRITORIES OF THE UNITED STATES OR IN THE DISTRICT

OF COLUMBIA."

WHILE THE ABOVE-QUOTED STATUTORY PROVISION PRESCRIBES THE QUALIFICATIONS NECESSARY FOR APPOINTMENT IN THE MEDICAL DEPARTMENT, IT IS NOT CONSIDERED AS COMING WITHIN THE CATEGORY OF AN EXPRESS STATUTORY PROHIBITION SUCH AS WAS INVOLVED AND CONSIDERED IN THE DECISION OF MAY 5, 1952, B-109179, 31 C.G. 564. REFERRED TO IN THE DEPUTY ADMINISTRATOR'S LETTER. FURTHERMORE, WHILE THE FACTS OF RECORD INDICATE THAT BOTH THE APPOINTMENT OFFICIALS AND THE EMPLOYEE WERE AWARE OF THE FACT THAT SHE COULD NOT PROPERLY UNDERTAKE THE DUTIES OF THE POSITION OF PHYSICIAN UNTIL SUCH TIME AS SHE HAD RECEIVED HER MICHIGAN LICENSE, AND, THEREFORE, WHILE THE ADMINISTRATIVE OFFICIALS MAY HAVE BEEN LAX IN PROCESSING THE APPOINTMENT EFFECTIVE JULY 1, 1952, IN ANTICIPATION OF THE EMPLOYEE'S OBTAINING THE LICENSE, THE EMPLOYEE IN RENDERING THE SERVICES AND ACCEPTING THE COMPENSATION AS PHYSICIAN PRIOR TO HAVING RECEIVED THE REQUIRED LICENSE APPEARS TO HAVE ACTED IN GOOD FAITH. UNDER THOSE CONDITIONS, AND UPON THE PRESENT RECORD, THIS OFFICE IS OF THE VIEW THAT THE DE FACTO OFFICER RULE MAY BE INVOKED FOR THE PURPOSE OF PERMITTING THE INDIVIDUAL TO RETAIN THE COMPENSATION RECEIVED FOR THE PERIOD JULY 1 TO 5, 1952. HOWEVER, SHE MAY NOT BE PAID ANY SALARY FOR THE PERIOD JULY 6 TO 17, 1952. SEE 28 COMP.GEN. 514. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY, THUS MAKING IT UNNECESSARY TO REPLY TO THE REMAINING QUESTIONS PRESENTED.