B-150367, APRIL 2, 1963, 42 COMP. GEN. 556

COMPENSATION - DOUBLE - HOLDING TWO OFFICES - CIVILIAN POSITION AND MILITARY RETIRED STATUS - WARRANT OFFICERS A NAVY ENLISTED MAN WHO IS RETIRED IN A TEMPORARY CHIEF WARRANT OFFICER GRADE IN WHICH HE WAS SERVING AT THE TIME OF RETIREMENT, BUT WHO RECEIVES RETIRED PAY UNDER 10 U.S.C. 6326 ON THE BASIS OF HIS ENLISTED STATUS, DOES NOT BY REASON OF THE WARRANT OFFICER GRADE HAVE HIS RIGHTS OR BENEFITS AS AN ENLISTED MAN AFFECTED SO THAT AS AN ENLISTED MEMBER HE COMES WITHIN THE EXCEPTION IN THE DUAL OFFICE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, AND IS ENTITLED TO HOLD A CIVILIAN POSITION.

TO THE SECRETARY OF THE NAVY, APRIL 2, 1963:

REFERENCE IS MADE TO LETTER OF NOVEMBER 23, 1962, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING OUR DECISION WHETHER RETIRED MEMBERS OF THE REGULAR NAVY AND MARINE CORPS WHO HOLD A PERMANENT ENLISTED STATUS BUT WHO ARE PLACED ON THE RETIRED LIST IN THEIR TEMPORARY WARRANT OFFICER OR COMMISSIONED OFFICER GRADE, UNDER THE PROVISIONS OF 10 U.S.C. 6326, HOLD AN "OFFICE" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62. THE REQUEST WAS ASSIGNED SUBMISSION NO. SS-N-680 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

SECTION 62, 5 U.S.C. (ACT OF JULY 31, 1894, AS AMENDED), PROVIDES AS FOLLOWS:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; * * *. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, * * * SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

THE QUESTION PRESENTED IS ILLUSTRATED BY THE CASE OF CHIEF COMMUNICATIONS TECHNICIAN (W-3) HARRY G. SWEET, UNITED STATES NAVY,RETIRED. IT IS REPORTED THAT MR. SWEET ENLISTED IN THE UNITED STATES NAVY ON JULY 15, 1930. HE WAS PROMOTED AS A REGULAR ENLISTED MAN AND TEMPORARY WARRANT OFFICER TO THE GRADE OF CHIEF RADIO ELECTRICIAN (W-2) ON FEBRUARY 15, 1951. WHILE IT IS STATED THAT ON FEBRUARY 15, 1957, HE WAS PROMOTED TO TEMPORARY CHIEF COMMUNICATIONS TECHNICIAN (W-3) UNDER THE WARRANT OFFICER ACT OF 1954, 34 U.S.C. 135 NOTE (1952 ED., SUPP. III), THAT ACT WAS NO LONGER IN EFFECT AT THAT TIME. ITS RELEVANT PROVISIONS WERE THEN INCLUDED AMONG THOSE CODIFIED IN 10 U.S.C. 5596. ON OCTOBER 1, 1960, HE WAS PLACED ON THE RETIRED LIST IN THAT GRADE (W-3) UNDER THE PROVISIONS OF 10 U.S.C. 6326.

SECTION 6326, 10 U.S. CODE, PROVIDES AS FOLLOWS:

(A) EACH ENLISTED MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS WHO APPLIES FOR RETIREMENT AFTER COMPLETING 30 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES SHALL BE RETIRED BY THE PRESIDENT.

(B) FOR THE PURPOSE OF SUBSECTION (A),"ENLISTED MEMBER" INCLUDES A MEMBER OF THE REGULAR NAVY OR THE REGULAR MARINE CORPS WHO HOLDS A PERMANENT ENLISTED GRADE AND A TEMPORARY APPOINTMENT IN A COMMISSIONED OR WARRANT OFFICER GRADE.

(C) EACH PERSON RETIRED UNDER THIS SECTION---

(1) UNLESS OTHERWISE ENTITLED TO A HIGHER GRADE, SHALL BE RETIRED IN THE GRADE IN WHICH SERVING AT THE TIME OF RETIREMENT; AND

(2) UNLESS OTHERWISE ENTITLED TO A HIGHER PAY, IS ENTITLED TO RETIRED PAY AT THE RATE OF 75 PERCENT OF THE BASIC PAY TO WHICH HE WOULD BE ENTITLED IF SERVING ON ACTIVE DUTY IN THE PAY GRADE IN WHICH HE WAS SERVING ON THE DAY BEFORE RETIREMENT.

SINCE IT APPEARS THAT MR. SWEET WAS APPOINTED TO TEMPORARY GRADE W 3 UNDER THE PROVISIONS OF 10 U.S.C. 5596 SUCH STATUTORY PROVISIONS MUST BE CONSIDERED IN CONJUNCTION WITH THOSE OF 10 U.S.C. 6326. SUBSECTION 5596 (F) PROVIDES THAT THE TEMPORARY APPOINTMENTS MADE UNDER THAT SECTION "DO NOT CHANGE THE PERMANENT, PROBATIONARY, OR ACTING STATUS OF MEMBERS SO APPOINTED * * * OR ABRIDGE THEIR RIGHTS OR BENEFITS.' WHILE THE SIMILAR PROVISION CONTAINED IN SECTION 3 (B) OF THE WARRANT OFFICER ACT OF 1954, 34 U.S.C. 135A (B) (1952 ED., SUPP. III), IS APPLICABLE ONLY TO PERMANENT WARRANT OFFICERS TEMPORARILY APPOINTED TO A HIGHER GRADE, MR. SWEET'S RIGHTS ARE GOVERNED BY 10 U.S.C. 5596 SINCE HIS TEMPORARY PROMOTION TO GRADE W-3 NECESSARILY WAS ACCOMPLISHED UNDER SUCH PROVISIONS OF LAW, THE PROMOTION HAVING BEEN MADE ON FEBRUARY 15, 1957, AFTER THE ENACTMENT OF 10 U.S.C. 5596.

UNDER THE PROVISIONS OF 10 U.S.C. 6326, MR. SWEET WAS AUTHORIZED TO APPLY FOR RETIREMENT AS AN ,ENLISTED MEMBER OF THE REGULAR NAVY" AND TO BE RETIRED IN THE TEMPORARY WARRANT OFFICER GRADE IN WHICH HE WAS SERVING AT THE TIME OF RETIREMENT. OUR DECISIONS HAVE RECOGNIZED THAT IN CERTAIN SITUATIONS WHERE ENLISTED MEN ARE AUTHORIZED TO BE RETIRED IN AN ENLISTED STATUS AND ADVANCED TO OFFICER RANK FOR PAY AND OTHER PURPOSES, THEY DO NOT LOSE THE STATUS OF A RETIRED ENLISTED MAN AND THUS ARE EXCLUDED FROM THE APPLICATION OF THE 1894 ACT. SEE 26 COMP. GEN. 271. COMPARE 40 COMP. GEN. 622, ANSWER TO QUESTION 1.

IN 35 COMP. GEN. 657, 662, IT WAS HELD THAT AN ENLISTED MAN SERVING IN A TEMPORARY COMMISSIONED GRADE WHO WAS RETIRED IN THAT GRADE UNDER SECTION 6 OF THE ACT OF FEBRUARY 21, 1946, CH. 34, 60 STAT. 27, AS AMENDED, 34 U.S.C. 410B (1952 ED., SUPP. IV), UPON COMPLETION OF MORE THAN 20 YEARS' SERVICE, IS RETIRED IN HIS OFFICER STATUS AND HENCE HOLDS AN "OFFICE" WITHIN THE MEANING OF THAT TERM AS USED IN THE 1894 ACT. HOWEVER, A RIGHT TO RETIREMENT UNDER THE 1946 ACT, AS AMENDED, ACCRUED BY VIRTUE OF THE MEMBER'S STATUS AS AN OFFICER AND HIS SERVICE IN THAT STATUS. WHILE MR. SWEET WAS RETIRED IN HIS TEMPORARY CHIEF WARRANT OFFICER GRADE, HIS RIGHT TO RETIREMENT UNDER 10 U.S.C. 6326 ACCRUED TO HIM SOLELY BY VIRTUE OF HIS STATUS AS AN ENLISTED MAN. BASICALLY THEREFORE, HIS SITUATION MORE NEARLY APPROXIMATES THAT OF THE ENLISTED MAN DISCUSSED IN 26 COMP. GEN. 271, THAN THAT OF THE MEMBER INVOLVED IN 35 COMP. GEN. 657. IN SUCH CIRCUMSTANCES, AND SINCE MR. SWEET'S TEMPORARY W-3 APPOINTMENT DID NOT ABRIDGE HIS "RIGHTS OR BENEFITS" AS AN ENLISTED MAN, IT APPEARS PROPER TO REGARD HIM AS AN ENLISTED MAN INSOFAR AS THE 1894 ACT IS CONCERNED. COMPARE 31 COMP. GEN. 529.