B-56206, SEPTEMBER 9, 1946, 26 COMP. GEN. 160

B-56206, SEPTEMBER 9, 1946, 26 COMP. GEN. 160

COMPENSATION - DOUBLE - RETIRED ARMY OFFICER EMPLOYED AS ALTERNATE TO PART TIME EMPLOYEE A RETIRED ARMY OFFICER EMPLOYED AS ALTERNATE TO A PRINCIPAL SENIOR MEDICAL OFFICER DURING SUCH OFFICER'S ABSENCE FROM HIS PART TIME POSITION MAY NOT BE REGARDED AS THE INCUMBENT OF A "CIVILIAN OFFICE OR POSITION" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED AND CIVILIAN PAY, EXCEPT ON THOSE DAYS WHEN HE FILLS THE POSITION, AND ON EACH OF SUCH DAYS HIS RETIRED PAY SHOULD BE REDUCED SO THAT WHEN COMBINED WITH HIS CIVILIAN PAY FOR THAT DAY THE COMBINED RATE WILL NOT EXCEED THE $3,000 PER ANNUM LIMITATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, SEPTEMBER 9, 946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF FEBRUARY 25, 1946, AS FOLLOWS:

WHILE COGNIZANCE HAS BEEN TAKEN OF THE DECISIONS WHICH HAVE BEEN RENDERED BY YOUR OFFICE FROM TIME TO TIME AS TO VARIOUS SITUATIONS WHICH HAVE ARISEN IN CONNECTION WITH THE INTERPRETATION AND APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, THE FACTS IN THE PRESENT INSTANCE PRESENT AN ANGLE WHICH HAS NOT HERETOFORE BEEN SPECIFICALLY CONSIDERED BY YOU.

JAMES KENNETH KAUFMAN, C-4,576,602 IS ENTITLED TO RETIREMENT PAY UNDER SECTION 5, PUBLIC 18, 76TH CONGRESS, IN THE AMOUNT OF $196.87 MONTHLY EFFECTIVE APRIL 7, 1943. ON SEPTEMBER 21, 1943 HIS AWARD WAS REDUCED TO $138.48 BECAUSE OF HIS APPOINTMENT EFFECTIVE SEPTEMBER 22, 1943 AS SENIOR MEDICAL OFFICER IN THE VETERANS ADMINISTRATION, P AND S 5, TO ALTERNATE WITH ANOTHER PHYSICIAN UNDER THE FOLLOWING CONTRACT OF EMPLOYMENT:

"YOUR COMBINED SALARIES MAY NOT EXCEED $1,338.16 PER ANNUM, AND COMBINED HOURS OF DUTY MAY NOT EXCEED 64 HOURS A MONTH.'

ON SEPTEMBER 14, 1945, THE VETERAN ADVISED BY LETTER AS FOLLOWS:

"THIS IS TO NOTIFY YOU THAT I WAS APPOINTED ALTERNATE SENIOR MEDICAL OFFICER AT THE VETERANS FACILITY, MURFREESBORO, TENNESSEE, ON OCTOBER 22, 1943. THE BASIC SALARY IS $1,338.16 AND I HAVE WORKED APPROXIMATELY SIX TO TEN HOURS PER YEAR, RECEIVING LESS THAN $20.00 IN 1945.'

ON NOVEMBER 19, 1945, HE ADVISED FURTHER:

"YOUR LETTER OF NOVEMBER 16 WAS RECEIVED THIS MORNING. PLEASE REFER TO MAY LETTER OF SEPTEMBER 14, IN WHICH I STATED THAT I AM EMPLOYED AS ALTERNATE SENIOR MEDICAL OFFICER, DR. B. W. RAWLINS BEING SENIOR MEDICAL OFFICER.

" I AM CALLED ONLY WHEN DR. RAWLINS IS NOT AVAILABLE AND I AM PAID BY THE HOUR. THIS HAS NEVER EXCEEDED TEN HOURS A YEAR AND I HAVE RECEIVED NO MORE THAN $50.00 SINCE 1943.'

YOUR DECISION OF JANUARY 24, 1941, ADDRESSED TO THE SECRETARY OF COMMERCE, 29 COMP. GEN. 407, HAS BEEN NOTED, WHEREIN THE RETIRED OFFICER WAS EMPLOYED AS A PRINCIPAL CLERK, CAF-6 AT 95 CENTS PER HOUR WHEN ACTUALLY EMPLOYED, THE HOURS OF EMPLOYMENT PER MONTH BEING LIMITED TO NEVER EXCEED A TOTAL OF 90, SO THAT THE MAXIMUM ANNUAL COMPENSATION WHICH THE RETIRED OFFICER WOULD RECEIVE COULD NOT EXCEED 10,026 ANNUALLY, WHICH WHEN ADDED TO HIS RETIRED PAY OF $1,920 ANNUALLY MADE A TOTAL OF $2,946 A YEAR. WHILE IN THAT CASE THE AMOUNT OF SALARY WHICH COULD BE EARNED WAS LIMITED BY CONTRACT, IN THE PRESENT INSTANCE IT IS TO BE NOTED THAT THE AMOUNT OF SALARY WHICH THE EMPLOYEE CAN EARN IS ENTIRELY SUBJECT TO THE CONTROL OF DR. RAWLINS, THE PRINCIPAL SENIOR MEDICAL OFFICER.

IT MAY BE SAID, OF COURSE, THAT THE PHYSICIAN MADE A BAD CONTRACT, FOR OBVIOUSLY HE COULD HAVE AGREED TO PERFORM THE SERVICES WITHOUT COMPENSATION, THEREBY INSURING THAT HIS RETIRED PAY WOULD NOT BE REDUCED. IT SEEMS UNCONSCIONABLE THAT HIS RETIREMENT PAY SHOULD BE REDUCED BY REASON OF PERFORMANCE OF A FEW HOURS WORK.

THE THOUGHT SUGGESTS ITSELF THAT IN A SITUATION SUCH AS THIS IT MIGHT BE HELD THAT THE TOTAL AMOUNT EARNED DURING ANY PARTICULAR YEAR MIGHT BE COMPUTED AT THE END THEREOF AND THE RETIRED PAY INCREASED FOR THAT YEAR TO SUCH AN AMOUNT AS WOULD NOT WHEN ADDED TO THE SALARY ACTUALLY EARNED EXCEED $3,000 WITHOUT DOING VIOLENCE TO THE PROVISIONS OF THE STATUTE IN QUESTION; OR THAT AT LEAST HE BE PERMITTED TO REFUND THE COMPENSATION RECEIVED AND ELECT TO RECEIVE HIS FULL RETIRED PAY.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, PROVIDES:

(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 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 AN 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 RULE HAS BEEN ESTABLISHED SINCE SHORTLY AFTER SUCH PROVISIONS WERE ENACTED THAT THEY DO NOT PRECLUDE A PERMANENT FULL-TIME EMPLOYEE FROM RECEIVING HIS RETIRED PAY WITHOUT DEDUCTION FOR PERIODS OF ABSENCE FROM HIS CIVILIAN POSITION IN A NONPAY STATUS. 12 COMP. GEN. 448; 15 ID. 706, 709; A-48122, APRIL 1, 1933; A-50526, AUGUST 23, 1933. IN DECISION OF NOVEMBER 16, 1932, 12 COMP. GEN. 448, IT WAS SAID:

SECTION 212 OF THE ECONOMY ACT IS A RESTRICTION ON THE RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY. FOR ANY PERIOD AN OFFICER OR EMPLOYEE IS IN A NONPAY STATUS IN HIS CIVILIAN OFFICE OR POSITION--- OTHER THAN WHEN ON FURLOUGH UNDER SECTION 101 OF THE ECONOMY ACT--- THE RESTRICTION OF THE SAID SECTION 212 IS NOT APPLICABLE AND PAYMENT OF THE FULL AMOUNT OF HIS RETIRED PAY LESS PERCENTAGE REDUCTION UNDER SECTION 106 OF THE ECONOMY ACT IS AUTHORIZED.

WHILE A DIFFERENT RULE WAS FOLLOWED IN CASES INVOLVING PART-TIME EMPLOYEES (12 COMP. GEN. 256; A-46901, JULY 13, 1933) AND TEMPORARY EMPLOYEES (13 COMP. GEN. 448; 14 ID. 68), WHO WERE REGARDED, IN EFFECT, AS WORKING FULL TIME DURING THE PERIOD OF INCUMBENCY FOR THE PURPOSE OF COMPUTING THEIR ANNUAL RATE OF COMPENSATION AND THE RESULTING REDUCTION IN THE RATE OF THEIR RETIRED PAY DURING THE WHOLE OF SUCH PERIODS, IT WAS RECOGNIZED IN THE SUBSEQUENT DECISION OF JANUARY 24, 1941, 20 COMP. GEN. 407, THAT THE LATTER PRINCIPLE SHOULD NOT BE APPLIED IN CASES WHERE THE TOTAL OF THE RETIRED PAY PLUS THE CIVILIAN COMPENSATION WHICH COULD BE RECEIVED BY A PART-TIME EMPLOYEE IS LESS THAN $3,000 A YEAR, EVEN THOUGH THE FULL-TIME RATE WOULD EXCEED THAT AMOUNT. IT WAS HELD IN SUCH DECISION, QUOTING THE SYLLABUS, THAT:

SECTION 212 OF THE ACT OF JUNE 30, 1932, LIMITING TO $3,000 PER ANNUM THE COMBINED RATE OF RETIRED PAY AND CIVILIAN COMPENSATION OF RETIRED COMMISSIONED OFFICERS WHO ARE ALSO CIVILIAN GOVERNMENT EMPLOYEES, DOES NOT PRECLUDE PAYMENT OF ARMY RETIRED PAY AND CIVILIAN COMPENSATION WHERE THE CIVILIAN EMPLOYMENT IS ON A "WHEN ACTUALLY EMPLOYED" BASIS AND THE HOURS PER MONTH ARE SPECIFICALLY LIMITED IN THE APPOINTMENT SO THAT THE TOTAL AMOUNT OF RETIRED PAY AND CIVILIAN COMPENSATION POSSIBLE TO BE PAID IN A YEAR DOES NOT EXCEED $3,000, EVEN THOUGH THE COMBINED RATE COMPUTED ON A FULL-TIME PER ANNUM BASIS EXCEEDS $3,000.

IN THE PRESENT CASE, IT APPEARS THAT DR. KAUFMAN IS NOT THE PRINCIPAL INCUMBENT OF THE PART-TIME POSITION BUT IS ONLY AN ALTERNATE WHO HAS AGREED TO FILL THE POSITION WHEN DR. RAWLINS, THE PRINCIPAL SENIOR MEDICAL OFFICER, IS ABSENT. IN THAT SITUATION, DR. KAUFMAN IS NOT REASONABLY TO BE REGARDED AS THE INCUMBENT OF THE POSITION, EITHER WITHIN THE CONTEMPLATION OF THE STATUTE OR THE PRINCIPLES OF THE CITED DECISIONS, EXCEPT ON THOSE DAYS WHEN HE FILLS THE POSITION. IT MAY BE NOTED IN SUCH CONNECTION THAT THE STATUTE NOT ONLY REFERS TO THE "PERIOD OF SUCH INCUMBENCY" BUT RELATES TO THE "ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION" AND NOT TO THE ANNUAL RATE OF COMPENSATION OF SUCH POSITION.

ACCORDINGLY, YOU ARE ADVISED THAT DR. KAUFMAN'S RETIREMENT PAY ACCOUNT MAY BE ADJUSTED FROM THE DATE OF HIS APPOINTMENT AS SUCH ALTERNATE BY ALLOWING HIM HIS FULL RETIREMENT PAY EXCEPT FOR THE DAYS HE ACTUALLY FILLED THE POSITION. FOR EACH OF SUCH DAYS HE FILLED THE POSITION, HIS RETIREMENT PAY SHOULD BE REDUCED TO THE AMOUNT WHICH COMBINED WITH THE AMOUNT OF CIVILIAN COMPENSATION FROM THE POSITION RECEIVED FOR THAT DAY WILL NOT EXCEED THE PER ANNUM RATE OF $3,000 FIXED BY THE STATUTE.