B-38279, FEBRUARY 26, 1946, 25 COMP. GEN. 612

B-38279, FEBRUARY 26, 1946, 25 COMP. GEN. 612

COMPENSATION - DOUBLE - APPLICABILITY OF LIMITATIONS TO WARRANT OFFICER RETIRED WITH RANK AND PAY OF COMMISSIONED WARRANT OFFICER A NAVY WARRANT OFFICER WHO WAS PLACED ON THE RETIRED LIST WITH THE RANK AND RETIRED PAY OF A COMMISSIONED WARRANT OFFICER PURSUANT TO THE PROVISIONS IN 34 U.S.C. 417 AND 390 IS TO BE REGARDED AS HAVING BEEN RETIRED "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, LIMITING TO $3,000 THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY, EVEN THOUGH SUCH OFFICER WAS SAVED THE RETIRED PAY OF A WARRANT OFFICER IF HIGHER THAN THAT OF HIS COMMISSIONED RANK WHICH WAS NOT ACTUALLY HELD PRIOR TO RETIREMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, FEBRUARY 26, 1946:

REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1945, REQUESTING A DECISION AS TO APPLICABILITY OF SECTION 212 OF THE ECONOMY ACT APPROVED JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, IN THE CASE OF CHIEF RADIO ELECTRICIAN THOMAS GARDNER RANDALL, U.S. NAVY, RETIRED, UNDER THE CONDITIONS SET FORTH IN A LETTER DATED JUNE 14, 1945, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, WHICH LETTER IS AS FOLLOWS:

REFS. (A) SECTION 1453, REVISED STATUTES.

(B) ACT OF MARCH 4, 1911 (36 STAT. 1267) AS AMENDED (34 U.S.

CODE 390).

(C) ACT OF AUGUST 29, 1916 (39 STAT. 578).

(D) SECTION 1 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE

ACT OF FEBRUARY 16, 1929 (37 U.S.C. 5).

(E) DECISION OF COMPTROLLER GENERAL A-11027 DATED 27 OCTOBER

1925, CITING 27 COMPTROLLER DECISION 512.

(F) SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS

AMENDED ( (5) U.S.C. 59A).

(G) DECISION OF COMPTROLLER GENERAL A-87457 DATED 6 AUGUST

1937.

(H) SECTION 8 OF THE ACT OF JUNE 16, 1942, AS AMENDED BY THE

ACT OF SEPTEMBER 7, 1944 (37 U.S.C. 108).

(I) DECISION OF COMPTROLLER GENERAL B-38279, DATED 19

NOVEMBER 1943.

ENCLS: (A) COPY OF BUREAU OF NAVIGATION LETTER PREPARED 12 APRIL

1928, 42062-73 OVER NAV-322-MAH, TO RADIO ELECTRICIAN

RANDALL.

(B) COPY OF BUREAU OF NAVIGATION LETTER DATED 3 MAY 1928,

NAV-324-RES, TO CHIEF RADIO ELECTRICIAN RANDALL.

(C) COPY OF SECRETARY OF THE NAVY LETTER DATED 30 SEPTEMBER

1930, NAV-324-RES TO CHIEF RADIO ELECTRICIAN RANDALL.

1. THE SUBJECT NAMED OFFICER ON 6 SEPTEMBER 1918 ACCEPTED TEMPORARY APPOINTMENT AS GUNNER ( RADIO) TO RANK FROM 20 AUGUST 1918, AND SERVED ON ACTIVE DUTY AS A WARRANT OFFICER UNTIL 25 APRIL 1928, DATE OF TRANSFER TO THE RETIRED LIST UNDER THE PROVISIONS OF 34 U.S.C. 390 AND 417. ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 394 HE WAS ISSUED A COMMISSION DATED 18 APRIL 1928 AS A CHIEF RADIO ELECTRICIAN ON THE RETIRED LIST TO RANK FROM 20 AUGUST 1924, SUCH DATE OF RANK BEING 6 YEARS FROM THE DATE OF RANK AS A WARRANT OFFICER (SEE SECTION 12 OF THE ACT OF MARCH 3, 1899, AS AMENDED BY THE ACT OF APRIL 27, 1904 (30 (33) STAT. 346) AND ACT OF FEBRUARY 15, 1929 (45 STAT. 1181), AS AMENDED (34 U.S.C. 331A).) ALTHOUGH THE SUBJECT NAMED OFFICER MAY HAVE BEEN ELIGIBLE FOR ADVANCEMENT TO CHIEF WARRANT OFFICER ON 20 AUGUST 1924, HE WAS NOT SO ADVANCED ON THE ACTIVE LIST, BUT ON EFFECTIVE DATE OF RETIREMENT HE WAS PLACED ON THE RETIRED LIST WITH THE RANK TO WHICH HIS SENIORITY ENTITLED HIM TO BE PROMOTED IN CONFORMITY WITH THE PROVISIONS OF 34 U.S. CODE 390. THEREFORE, UNDER THE RULING IN REFERENCE (G) HE WAS NOT ENTITLED, UNDER THE PROVISIONS OF THE ACT OF MARCH 4, 1913 (37 STAT. 892), TO PAY AND ALLOWANCES OF A COMMISSIONED WARRANT OFFICER FOR ANY PERIOD FROM 20 AUGUST 1924 TO 25 APRIL 1938, AS HE HAD NEVER SERVED ON THE ACTIVE LIST IN THAT CAPACITY.

2. CERTIFICATE OF CREDITABLE RECORD DURING FIRST 10 YEARS COMMISSIONED SERVICE WAS ISSUED BY THE SECRETARY OF THE NAVY ON 30 SEPTEMBER 1930, BUT IN VIEW OF THE FACT THAT UNDER THE PROVISIONS OF REFERENCE (D) THIS OFFICER WAS ONLY ENTITLED TO COUNT COMMISSIONED SERVICE FOR LONGEVITY AS WELL AS PERIOD PAY PURPOSES, HE WAS PAID FROM 16 FEBRUARY 1929 TO DATE HIS ACCOUNT WAS ADJUSTED UNDER ALNAV 200-44, RETIRED PAY BASED ON THE SAVED PAY OF A WARRANT OFFICER WITH OVER 12 YEARS SERVICE FOR PAY PURPOSES. UNDER THE PROVISIONS OF REFERENCE (H), RETROACTIVE TO 1 JUNE 1942, CHIEF RADIO ELECTRICIAN RANDALL IS AUTHORIZED TO INCLUDE, IN THE COMPUTATION OF RETIRED PAY TO WHICH ENTITLED AS A COMMISSIONED WARRANT OFFICER, PRIOR ENLISTED AND WARRANT SERVICE, AND ON 1 JUNE 1942, BECAME ENTITLED TO RETIRED PAY COMPUTED ON THE ACTIVE DUTY PAY PRESCRIBED FOR A COMMISSIONED WARRANT OFFICER, DURING FIRST TEN YEARS COMMISSIONED SERVICE, AND WITH OVER 12 YEARS' SERVICE FOR LONGEVITY PAY PURPOSES, SUCH PAY BEING IN EXCESS OF THE SAVED PAY OF A WARRANT OFFICER. THE ACT OF FEBRUARY 15, 1929, INSOFAR AS HERE PERTINENT, PROVIDES THAT OFFICERS WHO HAVE HERETOFORE BEEN COMMISSIONED CHIEF WARRANT OFFICERS SHALL, FOR ALL PURPOSES, BE REGARDED AS HAVING BEEN SO COMMISSIONED FROM THE DATE OF COMPLETION OF 6 YEARS SERVICE AS WARRANT OFFICER, WITH THE PROVISO THAT NO BACK PAY OR ALLOWANCES SHALL BE HELD TO HAVE ACCRUED PRIOR TO THE ENACTMENT OF SUCH ACT. THEREFORE, UNDER THE CITED PROVISION OF LAW AND DECISION OF THE COMPTROLLER GENERAL A-31617 OF 13 AUGUST 1931, THE CONSTRUCTIVE DATE OF COMMISSION AS CHIEF WARRANT OFFICER IN THIS CASE IS 20 AUGUST 1924; CONSEQUENTLY ON DATE OF RETIREMENT CHIEF RADIO ELECTRICIAN RANDALL HAD NO ACTUAL COMMISSIONED SERVICE, BUT HE DID HAVE CONSTRUCTIVE COMMISSIONED SERVICE AMOUNTING TO 3 YEARS 8 MONTHS AND 5 DAYS. (SEE ALSO 7 COMP. GEN. 736 (746) ).

3. CHIEF RADIO ELECTRICIAN RANDALL WAS EMPLOYED BY LOCAL DRAFT BOARD NO. 142, SELECTIVE SERVICE SYSTEM, SANTA BARBARA, CALIFORNIA, AT A SALARY OF $108 PER MONTH FROM 17 OCTOBER 1940 TO 31 JANUARY 1943, DURING WHICH PERIOD HE WAS ACTUALLY CREDITED RETIRED PAY AT THE RATE OF $141.75 PER MONTH, SUCH COMBINED RATES OF RETIRED AND CIVILIAN PAY BEING LESS THAN THE LIMITATION IMPOSED THEREON IN REFERENCE (F). ON AND AFTER 1 FEBRUARY 1943 HIS SALARY WAS INCREASED TO $150.00 PER MONTH, AND THE LATEST DATA AVAILABLE SHOWS THAT THE PAY ATTACHED TO HIS CIVILIAN EMPLOYMENT IS NOW $166.67 PER MONTH. EFFECTIVE 1 JUNE 1942, THIS OFFICER, UNDER THE PROVISIONS OF REFERENCE (H) BECAME ENTITLED TO RETIRED PAY AT THE RATE OF $157.50 PER MONTH, I.E. 75 PERCENT OF THE ACTIVE DUTY PAY PRESCRIBED FOR A CHIEF WARRANT OFFICER ON THE ACTIVE LIST WITH EQUIVALENT LENGTH OF SERVICE. REFERENCE (I) WHICH RELATES TO CLAIM SUBMITTED BY CHIEF RADIO ELECTRICIAN RANDALL IN CONNECTION WITH CIVILIAN COMPENSATION FROM 17 OCTOBER 1940 TO 31 JANUARY 1943, INFERS THAT THE RETIRED STATUS OF THIS OFFICER DOES NOT COME WITHIN THE PURVIEW OF REFERENCE (F) BUT, IN ORDER TO PROTECT THE DISBURSING OFFICER CARRYING HIS RETIRED PAY ACCOUNTS, IT IS CONSIDERED ADVISABLE TO SECURE A CONFIRMATION OF THIS IMPLIED RULING AFTER CONSIDERATION BY THE COMPTROLLER GENERAL OF THE ADDITIONAL DATA CONTAINED HEREIN. THEREFORE, IT IS RECOMMENDED THAT THIS MATTER BE REFERRED TO THE COMPTROLLER GENERAL FOR DETERMINATION.

SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59A, PROVIDES AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH THE ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A) PART I, PARAGRAPH I.

THE ASSUMPTION IN THE DECISION OF NOVEMBER 19, 1943, B-38279, WHERE THE QUESTION WAS NOT DIRECTLY INVOLVED, THAT MR. RANDALL DID NOT COME WITHIN SUCH PROVISIONS OF SECTION 212 OF THE ECONOMY ACT WAS BASED ON AN ADMINISTRATIVE REPORT TO THE EFFECT THAT HE HAD NOT BEEN RETIRED FOR OR ON ACCOUNT OF SERVICE AS A COMMISSIONED OFFICER. HOWEVER, IT APPEARS FROM THE STATEMENT OF SERVICE NOW SUBMITTED THAT ON APRIL 25, 1928, MR. RANDALL, WHILE SERVING AS A WARRANT OFFICER, WAS PLACED ON THE RETIRED LIST WITH THE COMMISSIONED RANK OF CHIEF RADIO ELECTRICIAN, AND FROM THAT DATE WAS ENTITLED TO RECEIVE THE RETIRED PAY OF A COMMISSIONED WARRANT OFFICER, BUT WAS SAVED THE RIGHT TO THE RETIRED PAY OF A WARRANT OFFICER IF HIGHER THAN THAT OF HIS COMMISSIONED WARRANT RANK. IT WAS HELD IN DECISION OF FEBRUARY 18, 1936, 15 COMP. GEN. 706, 709, IN THE SIMILAR CASE OF A BOATSWAIN WHO WAS RETIRED ON JUNE 26, 1928, WITH THE RANK OF CHIEF BOATSWAIN, IN ACCORDANCE WITH THE PROVISIONS OF 34 U.S.C. 417 AND 390, AND WAS ENTITLED TO THE RETIRED PAY OF THAT COMMISSIONED RANK, BUT RECEIVED RETIRED PAY COMPUTED ON THE PAY OF A WARRANT OFFICER, THAT SUCH PAY, NEVERTHELESS, WAS THE APPROPRIATE PAY OF HIS COMMISSIONED RANK BY REASON OF THE SAVING CLAUSE APPLICABLE IN SUCH CASES, AND THAT AS THE COMBINED RATES OF HIS CIVILIAN AND RETIRED PAY EXCEEDED, $3,000 PER ANNUM, THE PROVISIONS OF SECTION 212 OF THE ACT OF JUNE 30, 1932, WERE FOR APPLICATION. SEE, ALSO, 14 COMP. GEN. 842, AND DECISION OF AUGUST 6, 1937, A-87457. THE EFFECT OF THOSE DECISIONS IS THAT A PERSON RETIRED PURSUANT TO STATUTORY AUTHORITY WITH THE RANK AND PAY OF A COMMISSIONED OFFICER IS TO BE REGARDED AS HAVING BEEN RETIRED FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER WITHIN THE MEANING OF SECTION 212 OF THE ECONOMY ACT, SUPRA, ALTHOUGH THE COMMISSIONED RANK WAS NOT ACTUALLY HELD PRIOR TO RETIREMENT. CF. DECISION OF JANUARY 11, 1946, B-53119, 25 COMP. GEN. 521. IN THAT CONNECTION, IT MAY BE NOTED THAT UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 15, 1929, 45 STAT. 1180, MR. RANDALL WAS ENTITLED TO HAVE HIS COMMISSION AS A CHIEF RADIO ELECTRICIAN ANTEDATED TO AUGUST 20, 1924, GIVING HIM CONSTRUCTIVE COMMISSIONED SERVICE OF 3 YEARS, 8 MONTHS, AND 5 DAYS AS OF THE DATE OF HIS RETIREMENT WITH THAT RANK. UNDER THE PRINCIPLES OF THE CITED DECISIONS HE IS TO BE REGARDED AS RECEIVING RETIRED PAY FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER, WITHIN THE MEANING AND INTENT OF SECTION 212 OF THE ECONOMY ACT, THE COMBINED RATE OF HIS RETIRED PAY AND THE PAY OF HIS CIVILIAN POSITION UNDER THE UNITED STATES GOVERNMENT IS LIMITED BY THE STATUTE TO $3,000 PER ANNUM, AND, FOR SUCH PERIODS AS THE COMBINED RATE OF PAY EXCEEDS OR EXCEEDED THAT AMOUNT, HIS RETIRED PAY SHOULD BE ADJUSTED ACCORDINGLY.