B-122955, DEC. 15, 1955

B-122955, DEC. 15, 1955

TO LIEUTENANT COLONEL M. L. JOHNSON, FC, DISBURSING OFFICER, DEPARTMENT OF THE ARMY:

YOUR LETTER OF AUGUST 19, 1955, WITH ENCLOSURES, REQUESTS DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER COVERING RETIRED PAY FOR THE PERIOD FROM JANUARY 1 TO 15, 1955, IN THE CASE OF FIRST LIEUTENANT CLARA W. WOODRUFF, ARMY NURSE CORPS, RETIRED.

MISS WOODRUFF WAS PLACED ON THE RETIRED LIST EFFECTIVE FEBRUARY 29, 1944, FOR PHYSICAL DISABILITY, UNDER THE PROVISIONS OF THE ACT OF JUNE 20, 1930, 46 STAT. 790. DURING THE PERIOD FROM SEPTEMBER 15, 1950, TO JANUARY 15, 1955, SHE WAS EMPLOYED AS A RECEPTIONIST BY THE WOMEN OFFICERS QUARTERS FUND, AN ARMY NONAPPROPRIATED FUND ACTIVITY ESTABLISHED PURSUANT TO REGULATIONS AT THE WOMEN OFFICERS' QUARTERS, WALTER REED ARMY MEDICAL CENTER. FUNDS FOR THE OPERATION OF THE WOMEN OFFICERS QUARTERS FUND WERE DERIVED FROM ASSESSMENTS AGAINST THE OCCUPANTS OF THE WOMEN OFFICERS' QUARTERS, AND THE SALARY OF MISS WOODRUFF'S CIVILIAN POSITION WAS PAID FROM SUCH FUNDS. THE COMBINED AMOUNT OF HER RETIRED PAY AND RECEPTIONIST SALARY EXCEEDED $3,000 ANNUALLY.

YOUR DOUBT AS TO THE PROPRIETY OF MAKING PAYMENT ON THE VOUCHER IS OCCASIONED BY THE PROVISIONS OF SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, 5 U.S.C. 58, AND SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A.

SECTION 6 OF THE ACT OF MAY 10, 1916, PROVIDES THAT UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW APPROPRIATED MONEYS SHALL NOT BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SUCH SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM. THIS SECTION DOES NOT APPLY TO RETIRED OFFICERS AND ENLISTED MEN OF THE ARMY.

DURING THE PERIOD OF MISS WOODRUFF'S NONAPPRORIATED FUND ACTIVITY EMPLOYMENT, SECTION 212 OF THE ACT OF JUNE 30, 1932, PROVIDED THAT NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT SHOULD BE ENTITLED TO RETIRED PAY ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER 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. THIS SECTION DOES NOT APPLY TO OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING CERTAIN PERIODS.

MISS WOODRUFF WAS RETIRED IN FEBRUARY 1944 AND IT WAS NOT UNTIL THE ACT OF JUNE 22, 1944, 58 STAT. 324, THAT OFFICER COMMISSIONS WERE AUTHORIZED FOR MEMBERS OF THE ARMY NURSE CORPS. HENCE, WHILE SHE HELD THE RELATIVE RANK OF FIRST LIEUTENANT, SHE WAS NOT A COMMISSIONED OFFICER PRIOR TO HER RETIREMENT AND IT DOES NOT APPEAR THAT SHE HAS BEEN APPOINTED A COMMISSIONED OFFICER ON THE RETIRED LIST. ARMY NURSES IN MISS WOODRUFF'S SITUATION ARE NEITHER RETIRED OFFICERS NOR RETIRED ENLISTED MEN FOR PURPOSES OF THE EXCEPTIONS MADE BY SECTION 6 OF THE ACT OF MAY 10, 1916. 15 COMP. GEN. 74.

SECTION 6 OF THE ACT OF MAY 10, 1916, HOWEVER, RELATES CLEARLY AND EXPLICITLY TO THE USE OF APPROPRIATIONS. 22 COMP. DEC. 640, 645. ITS PROHIBITION IS AGAINST THE USE OF APPROPRIATED MONEYS FOR THE PAYMENT OF MORE THAN ONE SALARY TO THE SAME PERSON. ONLY ONE OF MISS WOODRUFF'S SALARIES--- HER RETIRED PAY--- WAS PAID FROM APPROPRIATED MONEYS AND, CONSEQUENTLY, THE SAID SECTION 6 HAS NO APPLICATION TO HER CASE. COMPARE 22 COMP. DEC. 653; 22 COMP. DEC. 706; 20 COMP. GEN. 189.

BY ITS OWN TERMS SECTION 212 OF THE ACT OF JUNE 30, 1932, IS APPLICABLE ONLY WHEN THE RETIRED PAY IS BEING RECEIVED "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' SINCE MISS WOODRUFF WAS NOT AND IS NOT RECEIVING HER RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER, SHE IS NOT SUBJECT TO THE DUAL COMPENSATION RESTRICTIONS IMPOSED BY SUCH SECTION. 29 COMP. GEN. 80.

PAYMENT ON THE VOUCHER, WHICH WE ARE RETURNING TO YOU, IS AUTHORIZED, IF PROPER IN OTHER RESPECTS.