B-129501, NOVEMBER 15, 1956, 36 COMP. GEN. 399

B-129501, NOVEMBER 15, 1956, 36 COMP. GEN. 399

MILITARY PERSONNEL - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - MEMBERS HAVING DUAL RETIRED STATUS AS WARRANT OFFICER AND COMMISSIONED RESERVE OFFICER A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE FOR VOLUNTARY RETIREMENT BASED ON YEARS OF SERVICE AS A REGULAR WARRANT OFFICER UNDER 10 U.S.C. 1293 OR A RESERVE COMMISSIONED OFFICER UNDER 10 U.S.C. 3911 MAY ELECT TO BE RETIRED AS ONE OR THE OTHER BUT NOT BOTH. A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE FOR VOLUNTARY RETIREMENT BASED ON YEARS OF SERVICE AS A REGULAR WARRANT OFFICER UNDER 10 U.S.C. 1293 OR AS A RESERVE COMMISSIONED OFFICER UNDER 10 U.S.C. 3911, BUT WHO HAS BEEN ADMINISTRATIVELY CONSIDERED TO BE RETIRED IN BOTH STATUSES AND HAS ACCEPTED THE RETIRED PAY OF THE HIGHER STATUS, WILL BE REGARDED AS HAVING BEEN RETIRED, WITH HIS CONSENT, IN THE HIGHER STATUS. A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE FOR VOLUNTARY RETIREMENT AS A REGULAR WARRANT OFFICER OR AS A RESERVE COMMISSIONED OFFICER AND WHO RETIRES AS A REGULAR WARRANT OFFICER WITH RETIRED PAY OF $2,500 A YEAR OR MORE IS PROHIBITED BY THE ACT OF JULY 31, 1894, 5 U.S.C. 62, FROM ACCEPTING A CIVILIAN OFFICE IN THE FEDERAL GOVERNMENT. A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE FOR VOLUNTARY RETIREMENT AS A REGULAR WARRANT OFFICER OR AS A RESERVE COMMISSIONED OFFICER AND WHO RETIRES AS A RESERVE COMMISSIONED OFFICER DOES NOT HOLD AN "OFFICE" BY REASON OF HIS RETIRED STATUS IN VIEW OF SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R, AND, THEREFORE, THE MEMBER IS EXEMPT FROM THE DUAL OFFICE RESTRICTIONS IN THE ACT OF JULY 31, 1894, 5 U.S.C. 62. A MEMBER OF THE UNIFORMED SERVICES WHO IS ELIGIBLE FOR VOLUNTARY RETIREMENT AS A REGULAR WARRANT OFFICER OR AS A RESERVE COMMISSIONED OFFICER AND WHO RETIRES AS A REGULAR WARRANT OFFICER WITH RETIRED PAY LESS THAN $2,500 A YEAR HOLDS AN "OFFICE ON THE RETIRED LIST, AND, THEREFORE, THE MEMBER, WHILE ON THE RETIRED LIST, IS BARRED BY THE DUAL OFFICE ACT OF JULY 31, 1894, 5 U.S.C. 62, FROM HOLDING A CIVILIAN FEDERAL OFFICE WITH COMPENSATION OF $2,500 OR MORE A YEAR.

TO THE SECRETARY OF DEFENSE, NOVEMBER 15, 1956:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 13, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), REQUESTING A DECISION AS TO WHETHER A MEMBER OF THE UNIFORMED SERVICES "WHO IS PLACED ON THE RETIRED LIST IN A DUAL STATUS AS A REGULAR WARRANT OFFICER AND A RESERVE COMMISSIONED OFFICER" UNDER THE FACTUAL SITUATIONS DISCUSSED IN COMMITTEE ACTION NO. 155 OF THE MILITARY PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, HOLDS AN "OFFICE" TO WHICH ANNUAL COMPENSATION OF $2,500, OR MORE, IS ATTACHED WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, SO AS TO PROHIBIT HIM FROM ACCEPTING A CIVILIAN OFFICE IN THE FEDERAL GOVERNMENT TO WHICH ANY COMPENSATION IS ATTACHED.

SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, BARS THE HOLDING OF A SECOND OFFICE TO WHICH COMPENSATION IS ATTACHED--- WITH CERTAIN EXCEPTIONS NOT MATERIAL HERE--- BY A PERSON "WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS.'

SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, 70A STAT 632, 5 U.S.C. 30R, PROVIDES THAT WHEN A RESERVIST IS NOT ON ACTIVE DUTY, HE "IS NOT CONSIDERED TO BE AN OFFICER OR EMPLOYEE OF THE UNITED STATES OR A PERSON HOLDING AN OFFICE OF TRUST OR PROFIT OR DISCHARGING ANY OFFICIAL FUNCTION UNDER, OR IN CONNECTION WITH, THE UNITED STATES BECAUSE OF HIS APPOINTMENT, OATH, OR STATUS, OR ANY DUTIES OR FUNCTIONS PERFORMED OR PAY OR ALLOWANCES RECEIVED IN THAT CAPACITY.' SECTIONS 1293, 1371 AND 3911 OF TITLE 10 OF THE U.S.C. AS ENACTED BY SECTION 1 OF THE SAME 1956 ACT, 70A STAT. 101, 104 AND 224, PROVIDE, RESPECTIVELY, AS FOLLOWS:

1293. TWENTY YEARS OR MORE: WARRANT OFFICERS

THE SECRETARY CONCERNED MAY, UPON THE WARRANT OFFICER'S REQUEST,RETIRE A WARRANT OFFICER OF ANY ARMED FORCE UNDER HIS JURISDICTION WHO HAS AT LEAST 20 YEARS OF ACTIVE SERVICE THAT COULD BE CREDITED TO HIM UNDER SECTION 311 OF TITLE 37.

1371. WARRANT OFFICERS: GENERAL RULE

UNLESS ENTITLED TO A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW, A WARRANT OFFICER RETIRES, AS DETERMINED BY THE SECRETARY CONCERNED, IN THE PERMANENT REGULAR OR RESERVE WARRANT OFFICER GRADE, IF ANY, THAT HE HELD ON THE DAY BEFORE THE DATE OF HIS RETIREMENT, OR IN ANY HIGHER WARRANT OFFICER GRADE IN WHICH HE SERVED ON ACTIVE DUTY SATISFACTORILY, AS DETERMINED BY THE SECRETARY, FOR A PERIOD OF MORE THAN 30 DAYS.

3911. TWENTY YEARS OR MORE: REGULAR OR RESERVE COMMISSIONED OFFICERS

THE SECRETARY OF THE ARMY MAY, UPON THE OFFICER'S REQUEST, RETIRE A REGULAR OR RESERVE COMMISSIONED OFFICER OF THE ARMY WHO HAS AT LEAST 20 YEARS OF SERVICE COMPUTED UNDER SECTION 3926 OF THIS TITLE, AT LEAST 10 YEARS OF WHICH HAVE BEEN ACTIVE SERVICE AS A COMMISSIONED OFFICER.

SECTION 1401 OF THE NEW TITLE 10 PROVIDES THE METHOD FOR COMPUTING RETIRED PAY FOR RETIREMENT UNDER SECTION 1293, AND SECTION 3991 PROVIDES THE METHOD OF COMPUTATION TO BE USED IN CONNECTION WITH RETIREMENTS UNDER SECTION 3911. SECTION 1401 PROVIDES THAT "IF A PERSON WOULD OTHERWISE BE ENTITLED TO RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE OR OF ANY OTHER PROVISION OF LAW, BE ENTITLED TO BE PAID UNDER THE APPLICABLE FORMULA THAT IS MOST FAVORABLE TO .' SECTION 3991 CONTAINS A SIMILAR PROVISION EXCEPT THAT REFERENCE IS MADE TO "RETIRED PAY COMPUTED UNDER MORE THAN ONE PAY FORMULA OF THIS TABLE IN SECTION 1401 OF THIS TITLE.'

IN COMMITTEE ACTION NO. 155 IT IS STATED THAT "THE ARMY HAS PLACED MEMBERS HOLDING BOTH THE REGULAR GRADE OF WARRANT OFFICER AND THE RESERVE RANK OF COMMISSIONED OFFICER ON THE RETIRED LIST IN A DUAL STATUS WITH PAY COMPUTED ON THE BASIS OF WHICHEVER RANK RESULTS IN THE HIGHER PAY" AND IT APPEARS THAT SUCH ACTION WAS PURPORTED TO HAVE TAKEN UNDER THE PROVISIONS OF LAW QUOTED ABOVE. IT IS REPORTED, FURTHER, THAT SUCH ACTION RESULTED FROM ADVICE RECEIVED FROM THE JUDGE ADVOCATE GENERAL OF THE ARMY TO THE EFFECT THAT A PERMANENT WARRANT OFFICER WHOSE APPLICATION FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 1293 IS APPROVED MUST BE RETIRED IN A WARRANT OFFICER GRADE ALTHOUGH ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 3911; THAT IT IS NOT NECESSARY FOR A RESERVE COMMISSIONED OFFICER TO BE SEPARATED FROM HIS STATUS AS A PERMANENT WARRANT OFFICER IN ORDER TO BE RETIRED UNDER SECTION 3911; THAT A WARRANT OFFICER WHO IS SERVING ON ACTIVE DUTY AS A RESERVE COMMISSIONED OFFICER MAY BE RETIRED, IF ELIGIBLE, UNDER THE PROVISIONS OF SECTION 1293 WITHOUT FIRST BEING RELIEVED FROM ACTIVE DUTY; AND THAT A RESERVE COMMISSIONED OFFICER WHO DESIRES TO BE RETIRED IN SUCH STATUS NEED NOT RESIGN FROM A SUBSISTING STATUS AS A PERMANENT WARRANT OFFICER.

THE SITUATION HERE INVOLVED IS NOT LIKE THAT WHICH HAS ARISEN UNDER PROVISIONS OF LAW SUCH AS 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. 350 I. THOSE PROVISIONS AUTHORIZED PERSONNEL RETIRED IN LOWER RANKS OR GRADES TO BE ADVANCED ON THE RETIRED LIST TO THE HIGHEST GRADE OR RANK IN WHICH THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT AND TO BE PAID RETIRED PAY BASED ON THE HIGHER RANK. SUCH PERSONS HOLD THE "OFFICE" OF THE PERMANENT GRADE OR RANK IN WHICH RETIRED WITHIN THE MEANING OF THE 1894 ACT. COMPARE 26 COMP. GEN. 271. HERE, THE OFFICERS ARE SAID TO HOLD A DUAL STATUS ON THE BASIS THAT PROVISIONS OF LAW AUTHORIZED THEIR RETIREMENT IN EITHER STATUS.

THE ADVANTAGES OF PLACING AN OFFICER ON THE RETIRED LIST IN A DUAL STATUS, OR ON TWO RETIRED LISTS, ARE NOT SPECIFIED. WE HAVE GRAVE DOUBT THAT SUCH ACTION IS PROPER PARTICULARLY WHERE, AS IN THE CASES APPARENTLY CONTEMPLATED BY COMMITTEE ACTION NO. 155, THE RETIREMENT STATUTES INVOLVED BOTH AUTHORIZE RETIREMENT IN THE DISCRETION OF THE SECRETARY CONCERNED, UPON THE MEMBER'S REQUEST, BASED UPON 20 YEARS' ACTIVE SERVICE. STATUTORY PROVISION HAS BEEN FOUND WHICH EXPRESSLY AUTHORIZES THE WITHHOLDING OF RETIRED PAY FROM AN OFFICER WHO IS RETIRED IN A STATUS GENERALLY ENTITLING HIM TO RETIRED PAY. INSOFAR AS THE EXPRESS PROVISIONS OF THE STATUTES ARE CONCERNED, IT WOULD APPEAR THAT IF A MEMBER IS RETIRED IN A PARTICULAR STATUS THERE WOULD BE NO BAR TO HIS ENTITLEMENT TO THE RETIRED PAY AUTHORIZED FOR PERSONS HOLDING THAT STATUS. HOWEVER, WE AGREE THAT THE LAW DOES NOT CONTEMPLATE DOUBLE PAYMENT OF MILITARY RETIRED PAY BASED ON THE SAME MILITARY SERVICE AND IT WOULD SEEM TO FOLLOW THAT SIMULTANEOUS RETIREMENT AS A REGULAR WARRANT OFFICER (UNDER 10 U.S.C. 1293) AND AS A RESERVE COMMISSIONED OFFICER (UNDER 10 U.S.C. 3911) IS NOT CONTEMPLATED BY THE LAW.

SECTION 1371 OF THE NEW TITLE 10 REQUIRES THAT AN ELIGIBLE WARRANT OFFICER BE RETIRED IN THE APPROPRIATE WARRANT OFFICER GRADE UNLESS HE IS ENTITLED TO "A HIGHER RETIRED GRADE UNDER SOME OTHER PROVISION OF LAW.' FOR THAT AND OTHER REASONS A WARRANT OFFICER OF A REGULAR COMPONENT WHO HOLDS A RESERVE COMMISSION AND WHOSE SERVICE ALSO MAKES HIM ELIGIBLE FOR RETIREMENT AS A RESERVE COMMISSIONED OFFICER UNDER SECTION 3911, MAY BE RETIRED EITHER AS A RESERVE COMMISSIONED OFFICER OR AS A REGULAR WARRANT OFFICER BUT WHEN HE IS RETIRED IN ONE OF SUCH STATUSES BASED UPON 20 YEARS' ACTIVE SERVICE, IT WOULD BE MOST ANOMALOUS IF THE LAW AUTHORIZED HIM TO BE RETIRED IN THE OTHER STATUS, ALSO, BASED UPON THE SAME 20 YEARS' ACTIVE SERVICE. THE PROVISION IN SECTION 1401 REQUIRING THE PAYMENT OF RETIRED PAY UNDER THE APPLICABLE FORMULA MOST FAVORABLE TO THE MEMBER--- APPARENTLY CONTEMPLATING A SITUATION SUCH AS THAT DISCUSSED ABOVE WITH RESPECT TO THE ACT OF JULY 24, 1941, AS AMENDED--- DOES NOT PERMIT PAYMENT TO A RETIRED REGULAR WARRANT OFFICER OF THE RETIRED PAY OF A RESERVE COMMISSIONED OFFICER SINCE A PERSON DOES NOT APPEAR TO BE "OTHERWISE ENTITLED TO RETIRED PAY" BY REASON OF SECTION 3911 UNLESS HE ACTUALLY IS RETIRED AS A RESERVE COMMISSIONED OFFICER UNDER THAT SECTION. BOTH SECTIONS 1293 AND 3911 AUTHORIZE RETIREMENT UPON THE OFFICER'S REQUEST AND AN OFFICER WHO IS ELIGIBLE FOR RETIREMENT IN MORE THAN ONE STATUS IS ENTITLED TO REQUEST RETIREMENT IN THE STATUS MOST FAVORABLE TO HIM BUT, IN OUR VIEW, NOT IN BOTH STATUSES.

IT IS NOT SHOWN WHETHER THE OFFICERS WHO HAVE BEEN PLACED "ON THE RETIRED LIST IN A DUAL STATUS" REQUESTED RETIREMENT AS WARRANT OFFICERS, RESERVE COMMISSIONED OFFICERS, OR BOTH. HOWEVER, SINCE A MEMBER WHO IS BOTH A REGULAR WARRANT OFFICER AND A RESERVE COMMISSIONED OFFICER IS ENTITLED TO CHOOSE TO BE RETIRED IN ONE OR THE OTHER OF SUCH STATUSES, THE ADMINISTRATIVE ACTION WHICH HAS BEEN TAKEN IN THESE CASES AND THE ACCEPTANCE OF THE HIGHER RETIRED PAY WILL BE REGARDED AS EFFECTING THE RETIREMENT OF THE PERSON CONCERNED, WITH HIS CONSENT, IN THE STATUS WHICH CALLS FOR THE GREATER RETIRED PAY.

APPLYING THESE PRINCIPLES TO THE QUESTIONS PRESENTED, SUCH QUESTIONS ARE STATED SPECIFICALLY AND ANSWERED AS FOLLOWS:

A. (DOES THE 1894 LAW APPLY) WHERE THE RETIRED PAY AS A WARRANT OFFICER IS $2,500 OR MORE PER ANNUM AND THE PAY AS A RESERVE COMMISSIONED OFFICER IS LESS THAN $2,500.

THE MEMBER IS RETIRED AS, AND HOLDS THE "OFFICE" OF, A WARRANT OFFICER OF A REGULAR COMPONENT AND THUS IS PROHIBITED BY THE 1894 LAW FROM ACCEPTING A CIVILIAN OFFICE IN THE FEDERAL GOVERNMENT.

B. (DOES THE 1894 LAW APPLY) WHERE THE RETIRED PAY AS A WARRANT OFFICER IS LESS THAN $2,500 PER ANNUM AND THE RETIRED PAY AS A RESERVE OFFICER IS MORE THAN $2,500.

THE MEMBER IS A RETIRED RESERVE COMMISSIONED OFFICER AND IN VIEW OF SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, ABOVE CITED, HE DOES NOT HOLD AN "OFFICE" WITH THE FEDERAL GOVERNMENT BY REASON OF HIS RETIRED STATUS AND IS EXEMPT FROM THE RESTRICTIONS OF THE 1894 ACT. 28 COMP. GEN. 367, 368.

C. (DOES THE 1894 LAW APPLY) WHERE BOTH AMOUNTS ARE $2,500 OR MORE BUT THE PAY OF THE COMMISSIONED RANK IS HIGHER. THE ANSWER HERE IS THE SAME AS THE ANSWER TO QUESTION B.

D. (DOES THE 1894 LAW APPLY) WHERE BOTH (AMOUNTS) ARE $2,500 PER ANNUM OR MORE BUT THE PAY OF THE WARRANT OFFICER GRADE IS HIGHER. THE ANSWER HERE IS THE SAME AS THE ANSWER TO QUESTION A.

E. (DOES THE 1894 LAW APPLY) WHERE BOTH (AMOUNTS) ARE LESS THAN $2,500 PER ANNUM AND THE PAY OF THE COMMISSIONED RANK IS HIGHER.

THE 1894 ACT IS NOT APPLICABLE.

F. (DOES THE 1894 LAW APPLY) WHERE BOTH (AMOUNTS) ARE LESS THAN $2,500 PER ANNUM AND THE PAY OF THE WARRANT OFFICER GRADE IS HIGHER.

THE MEMBER HOLDS THE "OFFICE" OF A WARRANT OFFICER AND IF THE COMPENSATION OF THE CIVILIAN OFFICE IS MORE THAN $2,500 HE IS BARRED FROM HOLDING THAT OFFICE WHILE REMAINING ON THE RETIRED LIST. 21 COMP. GEN. 1129.