B-129273, OCTOBER 12, 1956, 36 COMP. GEN. 315

B-129273, OCTOBER 12, 1956, 36 COMP. GEN. 315

RETIRED MILITARY PERSONNEL - CONTRACTING WITH THE GOVERNMENT - ENLISTED MEMBER RECEIVING RETIRED PAY AS AN OFFICER A MEMBER OF THE NAVY WHO IS RETIRED UNDER LAWS RELATING TO ENLISTED MEN BUT WHO RECEIVES RETIRED PAY AS AN OFFICER BY REASON OF A TEMPORARY OFFICER APPOINTMENT UNDER TITLE III OF THE OFFICER PERSONNEL ACT OF 1947, IS NOT AN OFFICER WITHIN THE PURVIEW OF 34 U.S.C. 883 OR 5 U.S.C. 59C, WHICH PRECLUDES A RETIRED OFFICER FROM RECEIVING RETIRED PAY WHEN HE ACCEPTS EMPLOYMENT IN PRIVATE INDUSTRY TO SELL OR NEGOTIATE FOR THE SALE OF HIS EMPLOYER'S PRODUCTS TO ONE OR MORE OF THE MILITARY SERVICES.

TO THE SECRETARY OF NAVY, OCTOBER 12, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF SEPTEMBER 17, 1956, FROM THE ASSISTANT SECRETARY OF THE NAVY ( PERSONNEL AND RESERVE FORCES), REQUESTING DECISION WHETHER A MEMBER OF THE UNIFORMED SERVICES RETIRED UNDER PROVISIONS OF LAW RELATING TO RETIREMENT OF ENLISTED MEMBERS WHO, SUBSEQUENT TO SUCH RETIREMENT, IS ADVANCED TO OFFICER RANK ON THE RETIRED LIST AND PAID THE RETIRED PAY DUE AN OFFICER OF THE SAME GRADE AND SERVICE IS AN "OFFICER" WITHIN THE MEANING OF 34 U.S.C. 883 OR 5 U.S.C. 59C.

IT IS STATED THAT WHILE THE QUESTION RELATES SPECIFICALLY TO THE MATTER OF THE INDEBTEDNESS OF CHIEF PAY CLERK HUBERT F. O-REILLY, USN ( RETIRED), TO THE GOVERNMENT IN THE AMOUNT OF $3,099.60, REPRESENTING THE RETIRED PAY PAID TO HIM FOR THE PERIOD MAY 1, 1954, TO JUNE 30, 1955, MINUS A CREDIT FOR RETIRED PAY DUE FOR A SUBSEQUENT PERIOD, THE QUESTION RAISED IS A RECURRING ONE AND THE ANSWER THERETO WILL ENABLE THE DEPARTMENT OF THE NAVY TO GIVE CORRECT ADVICE TO RETIRED MEMBERS AND MEMBERS ABOUT TO RETIRE.

INSOFAR AS THEY ARE PERTINENT HERE, THE CITED PROVISIONS OF LAW PROVIDE, RESPECTIVELY, AS FOLLOWS: * * * NO PAYMENT SHALL BE MADE FROM APPROPRIATIONS MADE BY CONGRESS TO ANY RETIRED OFFICER IN THE NAVY OR MARINE CORPS WHO FOR HIMSELF OR FOR OTHERS IS ENGAGED IN THE SELLING OF, CONTRACTING FOR THE SALE OF, OR NEGOTIATING FOR THE SALE OF, TO THE NAVY OR THE NAVY DEPARTMENT, ANY NAVAL SUPPLIES OR WAR MATERIAL. ( ITALICS SUPPLIED.)

NO PAYMENT SHALL BE MADE FROM APPROPRIATIONS IN ANY ACT TO ANY OFFICER ON THE RETIRED LISTS OF THE REGULAR ARMY, REGULAR NAVY, REGULAR MARINE CORPS, REGULAR SERVICE, FOR A PERIOD OF TWO YEARS AFTER RETIREMENT WHO FOR HIMSELF OR FOR OTHERS IS ENGAGED IN THE SELLING OF OR CONTRACTING FOR THE SALE OF OR NEGOTIATING FOR THE SALE OF TO ANY AGENCY OF THE DEPARTMENT OF DEFENSE, THE COAST GUARD, THE COAST AND GEODETIC SURVEY, AND THE PUBLIC HEALTH SERVICE ANY SUPPLIES OR WAR MATERIALS. ( ITALICS SUPPLIED.)

IT APPEARS THAT WHILE SERVING AS AN ENLISTED MAN IN THE REGULAR NAVY MR. O-REILLY RECEIVED A TEMPORARY APPOINTMENT AS A CHIEF PAY CLERK (W 3) UNDER SECTION 302 OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 829, 34 U.S.C. 3C; AND THAT HE WAS RETIRED ON FEBRUARY 1, 1954, UNDER AUTHORITY OF BOTH SECTION 17 OF THE ACT OF MARCH 3, 1899, AS AMENDED, 34 U.S.C. 431, RELATING TO RETIREMENT OF ENLISTED MEN AFTER 30 YEARS' SERVICE, AND SECTION 316 (J) OF THE OFFICER PERSONNEL ACT, 61 STAT. 868, 34 U.S.C. 410M, WHICH PROVIDES THAT "OFFICERS" RETIRED WHILE SERVING UNDER TEMPORARY APPOINTMENTS MADE UNDER TITLE III OF THAT ACT SHALL BE RETIRED "IN THE GRADE IN WHICH SERVING WITH RETIRED PAY BASED ON THE ACTIVE-DUTY PAY TO WHICH * * * ENTITLED AT THE TIME OF RETIREMENT.' IT THUS APPEARS THAT, WHILE MR. O-REILLY WAS RETIRED UNDER LAWS RELATING TO ENLISTED MEN, HIS RETIRED GRADE AND RETIRED PAY IS THAT OF A WARRANT OFFICER.

THE MATTER OF HIS INDEBTEDNESS TO THE GOVERNMENT IS BASED ON A DETERMINATION BY THE DEPARTMENT OF THE NAVY THAT HIS CIVILIAN EMPLOYMENT IN PRIVATE INDUSTRY AFTER HIS RETIREMENT, DURING THE PERIOD INVOLVED, WAS OF THE TYPE CONTEMPLATED BY THE ABOVE-QUOTED PROVISIONS OF LAW. HOWEVER, SUCH PROVISIONS OF LAW DO NOT BAR PAYMENT OF RETIRED PAY TO HIM UNLESS HE IS AN "OFFICER" WITHIN THE MEANING OF THAT TERM AS USED IN THOSE PROVISIONS.

THE STATUS OF ENLISTED MEN OF THE REGULAR NAVY RETIRED WHILE SERVING AS TEMPORARY OFFICERS UNDER APPOINTMENTS GRANTED PURSUANT TO THE ACT OF JULY 24, 1941, 55 STAT. 603, 34 U.S.C. 350C, AS AMENDED, OR AFFIRMED AND CONTINUED UNDER SECTION 316 (1) OF THE OFFICER PERSONNEL ACT OF 1947, 61 STAT. 868, 34 U.S.C. 332C, OR ORIGINALLY MADE UNDER SECTION 302 (C) OF THE LATTER ACT, 34 U.S.C. 3C (C), HAS BEEN THE SUBJECT OF A NUMBER OF OUR DECISIONS. IN 26 COMP. GEN. 271, IT WAS HELD THAT THE ENLISTED MEN THERE INVOLVED, HOLDING TEMPORARY APPOINTMENTS UNDER THE 1941 ACT, AS AMENDED, AT THE TIME OF RETIREMENT, RETAINED THE "OFFICE" OF AN ENLISTED MAN AND WERE NOT SUBJECT TO THE PROVISIONS OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, WHICH BAR THE HOLDING OF MORE THAN ONE ,OFFICE" CARRYING A SALARY AMOUNTING TO $2,500. IT IS PROVIDED IN THE 1894 ACT THAT, WITHIN ITS MEANING, RETIRED ENLISTED MEN SHALL NOT BE CONSTRUED TO HOLD AN "OFFICE" DURING RETIREMENT. IN 28 COMP. GEN. 536, IT WAS HELD THAT A PERSON HAVING SUCH PERMANENT ENLISTED AND TEMPORARY OFFICER STATUS WAS NOT AN "OFFICER" SO AS TO BE ENTITLED TO THE BENEFITS OF SECTION 1453, REVISED STATUTES, 34 U.S.C. 417, RELATING TO RETIREMENT OF AN "OFFICER" FOR INCAPACITY AS A RESULT OF AN INCIDENT OF THE SERVICE. THE LEGISLATIVE HISTORY OF THE 1941 ACT, CONSIDERED IN THAT CASE, SHOWED THAT THERE WAS NOT PROVISION OF LAW IN EFFECT AT THAT TIME WHICH AUTHORIZED RETIREMENT OF ENLISTED MEN FOR PHYSICAL DISABILITY AND SPECIFIC PROVISIONS WERE INCLUDED IN THE THEN PROPOSED LEGISLATION WHICH AUTHORIZED RETIREMENT OF ENLISTED MEN OF THE REGULAR NAVY WHO INCURRED PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT.

LIKE MR. O-REILLY, THE MEMBER INVOLVED IN QUESTION (A), IN 31 COMP. GEN. 529, WAS RETIRED UNDER 34 U.S.C. 431. RELYING ON 26 COMP. GEN. 271 AND 28 COMP. GEN. 536, IT WAS HELD THAT SUCH MEMBER, HOLDING A TEMPORARY OFFICER APPOINTMENT, RETAINED THE STATUS OF AN ENLISTED MAN AFTER HIS RETIREMENT AND COULD NOT BE VIEWED AS AN "OFFICER" ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 13, 1908, AS AMENDED, 34 U.S.C. 383, RELATING TO VOLUNTARY RETIREMENT OF "OFFICERS" OF THE NAVY UPON THE COMPLETION OF 30 YEARS' SERVICE. SUCH CONCLUSION WARRANTED THE HOLDING THAT THE MEMBER WAS NOT SUBJECT TO A PROVISION IN THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1952, 65 STAT. 424, WHICH BARRED PAYMENT OF RETIRED PAY TO "ANY COMMISSIONED MEMBER" OF THE SERVICES MENTIONED UNLESS RETIRED FOR DISABILITY OR AGE OR UNLESS THIS APPLICATION FOR RETIREMENT WAS APPROVED IN WRITING BY THE SECRETARY OF DEFENSE. AGAIN IN 32 COMP. GEN. 38, IT WAS HELD THAT A TEMPORARILY APPOINTED COMMISSIONED OFFICER OF THE REGULAR NAVY WITH A PERMANENT ENLISTED STATUS WAS NOT ELIGIBLE TO BE RETIRED UNDER THE PROVISIONS OF SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 27, 34 U.S.C. 410B, WHICH AUTHORIZE RETIREMENT OF ANY "OFFICER" OF THE NAVAL SERVICE HAVING THE PRESCRIBED QUALIFICATIONS, AND THAT, GENERALLY, MEMBERS HAVING SUCH DUAL STATUS ARE ELIGIBLE FOR RETIREMENT UNDER LAWS RELATING TO ENLISTED PERSONNEL ONLY.

THE EFFECT OF TH LAST CITED DECISION WAS CONSIDERED BY CONGRESS TO BE INEQUITABLE AND LED TO THE AMENDMENT OF THE 1946 ACT BY THE ACT OF AUGUST 9, 1955, 69 STAT. 614, 34 U.S.C. 410B, TO INCLUDE WITHIN ITS COVERAGE "ANY MEMBER OF THE NAVAL SERVICE TEMPORARILY APPOINTED TO COMMISSIONED GRADE WHOSE PERMANENT STATUS IS ENLISTED.' UNDER SUCH PROVISIONS OF LAW, DUAL STATUS MEMBERS ACTUALLY ARE RETIRED AS OFFICERS AND IT WAS CONCLUDED IN OUR DECISION OF MAY 22, 1956, B-126842, 35 COMP. GEN. 657, THAT MEMBERS RETIRED UNDER SUCH PROVISIONS HOLD THE "OFFICE" OF OFFICERS AND THUS ARE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF THE ACT OF JULY 31, 1894. THAT CONCLUSION WAS BASED ON THE PROVISIONS AND LEGISLATIVE HISTORY OF THE ACT OF AUGUST 9, 1955, WHICH WERE CONSIDERED AS REQUIRING THAT A DISTINCTION BE MADE (FOR THE PURPOSES OF THE 1894 LAW) BETWEEN "TEMPORARY FFICERS" RETIRED, AS SUCH, UNDER THE 1955 ACT, IN THE DISCRETION OF THE PRESIDENT, AND ENLISTED MEMBERS RETIRED AS SUCH BUT ADVANCED TO OFFICER RANK UNDER PROVISIONS SUCH AS THOSE CONTAINED IN SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, 34 U.S.C. 350I.

AS WAS POINTED OUT IN 31 COMP. GEN. 529 AND 32 COMP. GEN. 38, SECTION 302 (E) OF THE OFFICER PERSONNEL ACT OF 1947, 34 U.S.C. 3C (E), EXPRESSLY PROVIDES THAT THE PERMANENT APPOINTMENTS OF PERSONS TEMPORARILY APPOINTED IN ACCORDANCE WITH THE PROVISIONS OF TITLE III OF THAT ACT SHALL NOT BE VACATED BY ACCEPTANCE OF A TEMPORARY APPOINTMENT AND THAT THEIR RIGHTS, BENEFITS, AND PRIVILEGES WITH RESPECT TO THEIR PERMANENT ENLISTED STATUS "SHALL NOT BE LOST OR ABRIDGED IN ANY RESPECT WHATEVER BY THEIR ACCEPTANCE OF COMMISSIONS OR WARRANTS HEREUNDER.' A RETIRED ENLISTED MAN IS NOT PRECLUDED FROM RECEIVING RETIRED PAY BY ACCEPTING EMPLOYMENT IN PRIVATE INDUSTRY TO SELL OR NEGOTIATE FOR THE SALE OF HIS EMPLOYER'S PRODUCTS TO ONE OR MORE OF THE UNIFORMED SERVICES. THAT RIGHT WAS SAVED TO MR. O- REILLY UNDER SECTION 302 (E) OF THE OFFICER PERSONNEL ACT WHEN HE ACCEPTED A TEMPORARY APPOINTMENT AS A WARRANT OFFICER UNDER THAT ACT. NO LANGUAGE APPEARS IN EITHER 34 U.S.C. 883 OR 5 U.S.C. 59C WHICH ESTABLISHES AN INTENT TO DEPRIVE HIM OF THAT RIGHT MERELY BECAUSE HE IS ENTITLED TO THE RETIRED PAY OF A WARRANT OFFICER. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.