B-145976, JULY 5, 1961, 41 COMP. GEN. 6

B-145976, JULY 5, 1961, 41 COMP. GEN. 6

MILITARY PERSONNEL - RESEARCH FELLOWSHIP SERVICE - DOUBLE COMPENSATION RESTRICTIONS A RESEARCH FELLOWSHIP WITH THE NATIONAL CANCER INSTITUTE, PUBLIC HEALTH SERVICE, THE PURPOSE OF WHICH IS TO PROVIDE INDIVIDUAL SUPPORT FOR RESEARCH TRAINING IN THE BASIC AND CLINICAL SCIENCES IN THE HEALTH SCIENCE FIELDS WITH THE OBJECT OF INCREASING THE NUMBER OF SCIENTISTS QUALIFIED TO CONDUCT INDEPENDENT RESEARCH, DOES NOT INVOLVE A STATUS WHICH WOULD COME UNDER THE STATUTES THAT CONTROL THE SALARIES AND PAY BENEFITS OF FEDERAL EMPLOYEES GENERALLY SO THAT A RETIRED ARMY OFFICER IN RECEIPT OF DISABILITY RETIREMENT PAY WHO IS AWARDED SUCH A FELLOWSHIP DOES NOT, BY REASON OF THE FELLOWSHIP, HOLD AN "OFFICE OR POSITION" UNDER THE UNITED STATES WITHIN THE MEANING OF THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, AND, THEREFORE, PAYMENT OF FULL RETIRED PAY MAY BE MADE.

TO LIEUTENANT COLONEL R. H. MACPHERSON, DEPARTMENT OF THE ARMY, JULY 5, 1961:

YOUR LETTER OF APRIL 25, 1961, REQUESTS OUR DECISION WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER FOR $1,687.10, IN FAVOR OF LIEUTENANT COLONEL BENJAMIN B. KAMRIN, 10290785, RETIRED, REPRESENTING RETIRED PAY WITHHELD FROM HIM FOR THE PERIOD NOVEMBER 1, 1960, THROUGH MARCH 31, 1961. YOUR REQUEST WAS FORWARDED TO US BY FIRST ENDORSEMENT DATED MAY 25, 1961, AND WAS ALLOCATED DO NUMBER 580 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE QUESTION PRESENTED IS WHETHER THE OFFICER IS EXEMPT FROM THE DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A. INFORMATION FURNISHED BY THE OFFICE OF THE ADJUTANT GENERAL, DEPARTMENT OF THE ARMY, ON JUNE 12, 1961, DISCLOSES THAT THE OFFICER WAS PROMOTED TO LIEUTENANT COLONEL, AUS, WITHOUT COMPONENT, EFFECTIVE DECEMBER 14, 1942, AND WAS CERTIFIED TO THE VETERANS ADMINISTRATION FOR PAYMENT OF DISABILITY RETIREMENT PAY IN THAT GRADE, UNDER THE PROVISIONS OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, 10 U.S.C. 369A, ON JULY 28, 1945. SEE, IN THAT CONNECTION, U.S. ARMY REGISTER, VOLUME II, ARMY OF THE UNITED STATES AND OTHER RETIRED LISTS, JANUARY 1, 1961, AT PAGE 128. YOU INDICATE THAT AS A RESULT OF AN EMPLOYMENT SURVEY CONDUCTED BY THE DEPARTMENT OF THE ARMY DURING SEPTEMBER 1960, CONCERNING THOSE OFFICERS RETIRED UNDER THE ACT OF APRIL 3, 1939, THE MEMBER ADVISED THAT HE WAS GRANTED A SPECIAL RESEARCH FELLOWSHIP WITH THE NATIONAL CANCER INSTITUTE, PUBLIC HEALTH SERVICE, NATIONAL INSTITUTE OF HEALTH, BETHESDA, MARYLAND, BEGINNING AUGUST 11, 1960, WITH A TOTAL AWARD OF $10,000. YOU SAY THAT SINCE NEITHER THE UNITED STATES DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, NOR THE MEMBER, HAS FURNISHED SUFFICIENT INFORMATION AS TO THE ACT UNDER WHICH THE APPOINTMENT WAS MADE, A DETERMINATION CANNOT BE MADE OF THE APPLICABILITY OF SECTION 212.

INFORMATION FURNISHED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, PUBLIC HEALTH SERVICE, NATIONAL INSTITUTE OF HEALTH, SHOWS THAT LIEUTENANT COLONEL KAMRIN WAS AWARDED A "SPECIAL FELLOWSHIP (CF 12,634).' PARTS 61.1 TO 61.13, TITLE 42, CODE OF FEDERAL REGULATIONS, ISSUED UNDER AUTHORITY OF SECTION 215 OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, 58 STAT. 682, 684, 42 U.S.C. 216, INTERPRET AND APPLY THE PERTINENT STATUTORY PROVISIONS. PART 61.4 PROVIDES THAT FELLOWSHIPS SHALL BE OF TWO GENERAL TYPES:

(A) FELLOWSHIPS, HEREAFTER REFERRED TO IN THIS PART AS "REGULAR FELLOWSHIPS" (WHICH INCLUDE SPECIAL FELLOWSHIPS OF THE TYPE UNDER CONSIDERATION HERE), WHICH DO NOT REQUIRE THE PERFORMANCE OF SERVICES FOR THE PUBLIC HEALTH SERVICE AND (B) FELLOWSHIPS, HEREAFTER REFERRED TO IN THIS PART AS "SERVICE FELLOWSHIPS," WHICH REQUIRE THE PERFORMANCE OF SERVICES, EITHER FULL OR PART TIME, FOR THE PUBLIC HEALTH SERVICE.

WE HAVE BEEN FURNISHED INFORMATION TO THE EFFECT THAT A FELLOWSHIP OF THE TYPE UNDER CONSIDERATION HERE IS FOR THE PURPOSE OF PROVIDING INDIVIDUAL SUPPORT FOR RESEARCH TRAINING IN THE BASIC AND CLINICAL SCIENCES IN THE HEALTH SCIENCE FIELDS, THE PURPOSE OF WHICH IS TO INCREASE THE NUMBER OF SCIENTISTS QUALIFIED TO CARRY ON INDEPENDENT RESEARCH. SUCH FELLOWSHIPS WOULD NOT APPEAR TO INVOLVE A STATUS WHICH WOULD COME WITHIN THE PURVIEW OF THE STATUTORY AUTHORITIES CONTROLLING THE SALARIES AND PAY BENEFITS OF FEDERAL EMPLOYEES GENERALLY. OUR VIEW IS THAT A PERSON AWARDED SUCH A FELLOWSHIP WOULD NOT HOLD AN "OFFICE OR POSITION" UNDER THE UNITED STATES GOVERNMENT SUCH AS IS RESTRICTED BY 5 U.S.C. 59A. THEREFORE, IF OTHERWISE PROPER, WE SEE NO LEGAL OBJECTION TO PAYMENT TO LIEUTENANT COLONEL KAMRIN OF FULL RETIRED PAY INCIDENT TO HIS SERVICE IN THE ARMY. HENCE, IF OTHERWISE CORRECT, PAYMENT IS AUTHORIZED ON THE VOUCHER, WHICH VOUCHER IS RETURNED HEREWITH.

WE REACH THE FOREGOING CONCLUSION WITHOUT CONSIDERING THE POSSIBILITY THAT THE OFFICER IS EXEMPT FROM THE RESTRICTIONS OF 5 U.S.C. 59A BECAUSE OF HIS MILITARY STATUS. ASSUMING THAT HIS APPOINTMENT IN THE ARMY OF THE UNITED STATES WAS MADE UNDER THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, 10 U.S.C. 484 (1946 USED.), HIS RIGHT TO RECEIVE COMPENSATION AS A CIVILIAN EMPLOYEE WOULD COME WITHIN THE SCOPE OF OUR DECISION OF MAY 18, 1961, 40 COMP. GEN. 625, FOLLOWING THE CASE OF WATMAN V. UNITED STATES, CT. CL. NO. 189-59, DECIDED BY THE COURT OF CLAIMS ON MARCH 1, 1961, AND THE PROVISIONS OF 5 U.S.C. 59A WOULD BE INAPPLICABLE TO HIS RETIRED PAY.