B-18638, JULY 24, 1941, 21 COMP. GEN. 72

B-18638, JULY 24, 1941, 21 COMP. GEN. 72

DOUBLE COMPENSATION LIMITATIONS - APPLICABILITY TO RETIRED ARMY ENLISTED MEN RETIRED ARMY ENLISTED MEN ARE NOT SUBJECT TO THE DUAL COMPENSATION LIMITATIONS OF THE ACTS OF JULY 31, 1894, MAY 10, 1916, AND JUNE 30, 1932, EXCEPT THAT UNDER THE LATTER ACT AN ARMY ENLISTED MAN RETIRED ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER DURING THE WORLD WAR WHO ACCEPTS A CIVILIAN POSITION MUST HAVE HIS RETIRED PAY REDUCED TO A RATE NOT IN EXCESS OF THE RATE HE WOULD HAVE RECEIVED IF HE HAD RETIRED ON ENLISTED SERVICE, ONLY, IF THE COMBINED RATE OF THE SALARY OF THE CIVILIAN POSITION AND THE RETIRED PAY COMPUTED ON ACCOUNT OF COMMISSIONED SERVICE WOULD EXCEED $3,000 PER ANNUM. A RETIRED ARMY ENLISTED MAN WHOSE RETIRED PAY IS SO REDUCED AS TO EXCLUDE THE BENEFIT HE ACQUIRED UNDER THE ACT OF JUNE 6, 1924, TO BE RETIRED AS A WARRANT OFFICER ON ACCOUNT OF HAVING SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR, MAY BE EMPLOYED AS A MILITARY INSTRUCTOR IN THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS EVEN THOUGH THE SALARY RATE OF THE CIVILIAN POSITION AND HIS REDUCED RETIRED PAY EXCEEDS THE $3,000 PER ANNUM LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932.

COMPTROLLER GENERAL WARREN TO THE ACTING PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, JULY 24, 1941:

THE LATE PRESIDENT, BOARD OF COMMISSIONERS, SUBMITTED FOR MY CONSIDERATION THE MATTER PRESENTED IN HIS LETTER OF JULY 5, 1941, AS FOLLOWS:

THE SUPERINTENDENT OF SCHOOLS HAS REQUESTED THAT THERE BE SUBMITTED TO YOUR OFFICE FOR CONSIDERATION THE QUESTION AS TO WHETHER CAPTAIN ELIJAH REYNOLDS, UNITED STATES ARMY, RETIRED, WHO AT THE TIME OF HIS RETIREMENT WAS AN ENLISTED MAN IN THE UNITED STATES ARMY, MAY BE APPOINTED AS MILITARY INSTRUCTOR IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA, REGARDLESS OF RETIREMENT PAY AND COMPENSATION THAT HE WILL RECEIVE AS SUCH INSTRUCTOR FROM THE DISTRICT GOVERNMENT.

THE SUPERINTENDENT STATES THAT:

"THE NECESSITY FOR THIS RULING RESULTS FROM THE FACT THAT SEVERAL OF OUR MILITARY INSTRUCTORS ARE BEING ORDERED TO REPORT FOR ONE YEAR'S ACTIVE DUTY WITH THE REGULAR ARMY BEGINNING ON OR ABOUT FEBRUARY 7, 1941, MAKING IT NECESSARY FOR THE SCHOOL OFFICERS TO FILL THEIR POSITIONS TEMPORARILY. IT IS MOST DESIRABLE THAT AN OPINION FROM THE COMPTROLLER GENERAL SHOULD BE RENDERED AS SOON AS POSSIBLE AS THESE APPOINTMENTS SHOULD TAKE EFFECT IMMEDIATELY ON THE DEPARTURE OF THE INSTRUCTORS INVOLVED.'

THERE IS ALSO QUOTED BELOW A LETTER RECEIVED FROM THE FINANCE DEPARTMENT OF THE UNITED STATES ARMY, DATED DECEMBER 19, 1940, RELATIVE TO THE RIGHTS OF CAPTAIN REYNOLDS TO RECEIVE HIS RETIREMENT PAY AND AT THE SAME TIME BE EMPLOYED BY THE DISTRICT GOVERNMENT, INDICATING THAT IT WOULD NOT BE IN VIOLATION OF THE DUAL EMPLOYMENT STATUTES:

"1. THE RECORDS OF THIS OFFICE SHOW THAT YOU WERE RETIRED AS A MASTER SERGEANT, AND UNDER THE PROVISION OF SECTION 8, ACT OF JUNE 6, 1924 (43 STAT. 472; U.S.C. 10; 981), YOU ARE RECEIVING THE RETIRED PAY OF A WARRANT OFFICER ON ACCOUNT OF HAVING SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR. RETIRED ENLISTED MEN, RETIRED FOR ANY CAUSE, ARE EXEMPTED FROM THE ACTS OF JULY 31, 1894 (28 STAT. 205), AS AMENDED, AND MAY 10, 1916 (39 STAT. 120). IN THIS CONNECTION ATTENTION IS INVITED TO THE ACT OF MAY 31, 1924 (43 STAT. 245).

"2. ATTENTION IS FURTHER INVITED TO THE DECISION OF THE COMPTROLLER GENERAL (13 COMP. GEN. 60), WHICH READS AS FOLLOWS:

" "THE NATIONAL RECOVERY ADMINISTRATION MAY EMPLOY RETIRED ENLISTED PERSONNEL, WHO HAVE BEEN RETIRED ON ENLISTED SERVICE ONLY, AND FIX THEIR RATES OF COMPENSATION FOR SUCH CIVILIAN SERVICE ON THE SAME BASIS AS THAT FOR ANY OTHER OFFICER OR EMPLOYEE WITHOUT RESTRICTION OTHER THAN THE VALUE OF THE SERVICES AND SUCH EMPLOYEES WOULD BE ENTITLED TO CONTINUE TO RECEIVE THEIR RETIRED PAY.'

"3. ATTENTION IS FURTHER INVITED TO THE DECISION OF THE COMPTROLLER GENERAL (12 COMP. GEN. 38), WHEREIN IT IS STATED AS FOLLOWS:

" "IN APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932 (47 STAT. 406), LIMITING THE COMBINED RATE OF COMPENSATION IN THE CIVILIAN POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM, RETIRED PAY OF ENLISTED MEN ON ACCOUNT OF COMMISSIONED SERVICE UNDER THE TERMS OF THE ACT OF JUNE 6, 1924 (43 STAT. 472), SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE.'

"4. IN VIEW OF THE FACT THAT YOU WERE RETIRED AS A RETIRED ENLISTED MAN AND ON ACCOUNT OF HAVING SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR, YOU ARE ENTITLED TO YOUR COMMISSIONED RANK AND THE RETIRED PAY OF A WARRANT OFFICER. THERE IS NO RESTRICTION OF LAW WHICH PROHIBITS YOU FROM HOLDING ANY POSITION, THE ONLY RESERVATION IS THAT YOUR RETIRED PAY WILL BE REDUCED FROM THE PAY OF A WARRANT OFFICER TO THE PAY OF A MASTER SERGEANT.'

IN YOUR DECISION OF DECEMBER 29, 1938 (18 COMP. GEN. 573), THERE WAS QUOTED SECTION 204 OF THE ACT OF JUNE 30, 1932 (47 STAT. 404), WHICH PROVIDES:

"THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.'

IN THIS CASE THERE IS INVOLVED THE PROPOSED EMPLOYMENT OF A RETIRED ARMY OFFICER WHOSE RANK IS TO BE REDUCED FROM WARRANT OFFICER TO THAT OF MASTER SERGEANT, AND THIS FACT, OF COURSE, DISTINGUISHES IT FROM THE CASE CONSIDERED BY YOU UNDER DATE OF DECEMBER 29, 1938.

THE COMMISSIONERS HAVE BEEN ADVISED BY THE FINANCE DEPARTMENT OF THE WAR DEPARTMENT THAT CAPTAIN REYNOLDS WILL RECEIVE RETIRED PAY OF $133.87 PER MONTH, AND IT IS PROPOSED TO PAY HIM A SALARY OF $1,800 PER ANNUM AS MILITARY INSTRUCTOR IN THE PUBLIC SCHOOLS. THERE ARE SEVERAL TEACHERS IN THE PUBLIC SCHOOLS NOW RECEIVING SALARIES RANGING FROM $1,600 TO $2,800 WHO ARE ALSO ACTING AS MILITARY INSTRUCTORS. IN ORDER TO EMPLOY, A FEW YEARS AGO, A RETIRED OFFICER OF THE UNITED STATES ARMY, IT WAS NECESSARY TO OBTAIN SPECIAL LEGISLATION. SEE ACT OF JUNE 4, 1935 (49 STAT. 320).

IN VIEW OF THE FACT THAT THE PROPOSED SALARY AND THE PRESENT RETIREMENT PAY EXCEED THE $3,000 LIMITATION IMPOSED BY SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, IT IS REQUESTED THAT YOU ADVISE THE COMMISSIONERS WHETHER THEY ARE AUTHORIZED TO ACCEPT THE SERVICES OF CAPTAIN REYNOLDS, AND APPOINT HIM IN THE PUBLIC SCHOOL SYSTEM AT A SALARY WHICH, TOGETHER WITH HIS RETIRED PAY, WOULD EXCEED $3,000.

THE VIEW EXPRESSED BY THE FINANCE DEPARTMENT, UNITED STATES ARMY, TO THE EFFECT THAT RETIRED ENLISTED MEN OF THE ARMY ARE NOT SUBJECT TO ANY OF THE DUAL COMPENSATION STATUTES--- EXCEPT THAT UNDER THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AN ENLISTED MAN OF THE ARMY RETIRED ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER DURING THE WORLD WAR WHO ACCEPTS A CIVILIAN POSITION MUST HAVE HIS RETIRED PAY REDUCED TO A RATE NOT IN EXCESS OF THE RATE HE WOULD HAVE RECEIVED IF HE HAD BEEN RETIRED UPON THE BASIS OF ENLISTED SERVICES, ONLY, IF THE COMBINED RATE OF THE SALARY OF THE CIVILIAN POSITION AND THE RETIRED PAY COMPUTED ON ACCOUNT OF COMMISSIONED SERVICE WOULD EXCEED $3,000 PER ANNUM--- APPEARS TO BE CORRECT. 12 COMP. GEN. 37.

SECTION 204 OF THE ACT OF JUNE 30, 1932, 47 STAT. 404, PROHIBITING THE REEMPLOYMENT OF PERSONNEL RETIRED FOR AGE RELATES ONLY TO CIVILIAN PERSONNEL RETIRED UNDER LAWS APPLICABLE TO CIVILIAN PERSONNEL AND DOES NOT PROHIBIT THE EMPLOYMENT IN A CIVILIAN POSITION OF A RETIRED ENLISTED MAN OF THE ARMY.

REFERRING TO THE PENULTIMATE PARAGRAPH OF THE LETTER, SUPRA, IT IS UNDERSTOOD THAT THE AMOUNT OF $133.87 PER MONTH IS THE RATE OF RETIRED PAY TO WHICH CAPTAIN REYNOLDS WOULD BE ENTITLED AS A RETIRED ENLISTED MAN EXCLUDING THE BENEFIT HE ACQUIRED UNDER THE ACT OF JUNE 6, 1924, 43 STAT. 472, TO BE RETIRED AS A WARRANT OFFICER ON ACCOUNT OF HAVING SERVED AS A COMMISSIONED OFFICER DURING THE WORLD WAR. IF THAT BE THE FACT, THERE WOULD BE NO LEGAL OBJECTION TO HIS EMPLOYMENT AS MILITARY INSTRUCTOR IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA EVEN THOUGH THE SALARY RATE OF THE CIVILIAN POSITION AND HIS REDUCED RETIRED PAY EXCEED $3,000 PER ANNUM.