B-59820, SEPTEMBER 18, 1946, 26 COMP. GEN. 205

B-59820, SEPTEMBER 18, 1946, 26 COMP. GEN. 205

DUAL EMPLOYMENT AND COMPENSATION RESTRICTIONS - RETIRED OFFICER HOLDING POSITION WITH UNITED STATES PROPERTY AND DISBURSING OFFICER A RETIRED WARRANT OFFICER APPOINTED BY A STATE ADJUTANT GENERAL AS CHIEF CLERK IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER DOES NOT HOLD AN OFFICE, INCOMPATIBLE OR OTHERWISE, UNDER THE FEDERAL GOVERNMENT OTHER THAN HIS OFFICE AS A RETIRED WARRANT OFFICER, ALTHOUGH COMPENSATED FROM ALLOTTED FEDERAL FUNDS, AND, THEREFORE, THE CONCURRENT RECEIPT OF RETIRED PAY AND CIVILIAN COMPENSATION IN SUCH POSITION WOULD NOT BE IN CONTRAVENTION OF THE DUAL EMPLOYMENT RESTRICTION OF SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED, THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, OR THE ADDITIONAL COMPENSATION PROHIBITION OF SECTION 1765, REVISED STATUTES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, SEPTEMBER 18, 1946:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1946, AS FOLLOWS:

THE ADJUTANTS GENERAL OF THE VARIOUS STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA ARE ALLOTTED FEDERAL FUNDS FOR THE HIRE OF ACCOUNTING AND CUSTODIAL CLERKS TO BE EMPLOYED IN THE OFFICES OF THE UNITED STATES PROPERTY AND DISBURSING OFFICERS.

THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR THE STATE OF MISSISSIPPI, ACTING FOR THE STATE ADJUTANT GENERAL, IS DESIROUS OF EMPLOYING AS CHIEF CLERK AT A SALARY OF $300 PER MONTH ONE HARRY R. WILSON WHO RETIRED FROM FEDERAL SERVICE 31 OCTOBER 1932 AT HIS OWN REQUEST, DRAWING THE RETIRED PAY OF A WARRANT OFFICER AT THE RATE OF $168.75 PER MONTH. THE FOLLOWING INFORMATION PERTAINING TO MR. WILSON HAS BEEN EXTRACTED FROM THE OFFICIAL NATIONAL GUARD REGISTER, 1943:

WILSON, HARRY R. 10109982 ( MISS) B--- OHIO 8 SEPT 82.

( NGUS ORD DEPT CAPT 23 APR 35.)

N.G. ( ORC ORD DEPT 1 LT 5 AUG 17 TO 21 JAN 18; ORD DEPT CAPT 13 APR 21 MAJ 3 DEC 28 TO 31 JULY 34); CAPT ORD DEPT 22 JUNE 34 TO 24 NOV 42. INACTIVE NG ORD DEPT CAPT 25 NOV 42.

FEDERAL PRIVATE SGT CAV 25 APR 101 TO 22 MAR 106; PRIVATE CPL SGT ORD/SGT CAV 25 MAY 107 TO 18 JAN 18; TSGT ORD DEPT 1 DEC 20 TO 28 DEC 20: WO 29 DEC 20 TO 31 OCT 32--- 1 LT ORD DEPT 22 JAN 18 TO 30NOV 20; CAPT ORD DEPT 25 SEPT 40 AUS MAJ 7 AUG 42 TO 30 SEPT 42.

IN CONNECTION WITH SUCH PROPOSED EMPLOYMENT, DOUBT HAS ARISEN AS TO WHETHER OR NOT THE DUAL OFFICE AND DUAL COMPENSATION ACTS OF (1) 31 JULY 1894 (28 STAT. 205, 5 U.S.C. 62), AS AMENDED, (2) 30 JUNE 1932 (47 STAT. 406, 5 U.S.C. 59A), AS AMENDED, AND (3) R.S. 1765 (5 U.S.C. 70), ARE APPLICABLE. ATTENTION IN THIS CONNECTION IS INVITED TO YOUR DECISIONS REPORTED IN 14 COMP. GEN. 916 AND 6 ID. 683.

SINCE DISBURSING OFFICERS OF THE ARMY ARE NOW DISBURSING FUNDS PREVIOUSLY DISBURSED BY UNITED STATES PROPERTY AND DISBURSING OFFICERS OF THE NATIONAL GUARD, AND IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY BE ISSUED TO SUCH DISBURSING OFFICERS AND TO THE FINANCE OFFICER PAYING THE RETIRED PAY OF MR. WILSON, YOUR DECISION IS REQUESTED AS TO WHETHER THE RETIRED WARRANT OFFICER MENTIONED ABOVE MAY BE EMPLOYED AS CHIEF CLERK IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR THE STATE OF MISSISSIPPI AND CONCURRENTLY RECEIVE RETIREMENT PAY FROM THE FEDERAL GOVERNMENT AS SUCH WARRANT OFFICER, WITHOUT REGARD TO THE PROVISIONS OF THE ABOVE-CITED ACTS.

A WARRANT OFFICER RETIRED FOR ANY CAUSE OTHER THAN "INJURIES RECEIVED IN BATTLE OR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY" HOLDS AN OFFICE UNDER THE UNITED STATES GOVERNMENT WITHIN THE PURVIEW OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AND, THEREFORE, COULD NOT HOLD ANOTHER OFFICE UNDER THE UNITED STATES GOVERNMENT WITH COMPENSATION ATTACHED IF EITHER THE RETIRED PAY OR THE COMPENSATION OF THE CIVILIAN POSITION AMOUNTS TO AS MUCH AS $2,500 PER ANNUM. 16 COMP. GEN. 232; 21 ID. 38. HOWEVER, IN 21 COMP. GEN. 305, IT WAS HELD, QUOTING FROM THE SYLLABUS---

ACCOUNTING AND CUSTODIAL EMPLOYEES SERVING IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR A STATE WHO ARE EMPLOYED BY THE STATE MILITARY AUTHORITIES, ALTHOUGH A PART OF THEIR COMPENSATION IS PAID FROM FEDERAL FUNDS, ARE NOT "EMPLOYEES OF THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THEY MAY NOT BE PAID UNDER SAID ACT, CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE, FOR ANNUAL LEAVE ACCRUED IN THEIR CIVILIAN POSITIONS.

IN VIEW OF THE FOREGOING DECISION, THE APPOINTMENT OF A RETIRED WARRANT OFFICER BY AUTHORITY OF THE ADJUTANT GENERAL OF THE STATE AS CHIEF CLERK IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR THE STATE OF MISSISSIPPI WOULD NOT RESULT IN THE PERSON HOLDING MORE THAN ONE OFFICE UNDER THE FEDERAL GOVERNMENT AND, THEREFORE, WOULD NOT BE IN CONTRAVENTION OF THE ACT OF JULY 31, 1894, REFERRED TO IN YOUR LETTER.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY THE ACT OF JULY 15, 1940, 54 STAT. 761, IS APPLICABLE ONLY TO OFFICERS RETIRED ON ACCOUNT OF COMMISSIONED SERVICE AND HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT. IT IS NOT APPARENT FROM YOUR SUBMISSION WHETHER THE RETIRED PAY OF THIS WARRANT OFFICER IS FOR OR ON ACCOUNT OF ANY COMMISSIONED SERVICE, BUT AS THE APPOINTMENT TO THE POSITION OF CHIEF CLERK WOULD NOT CONSTITUTE APPOINTMENT TO A CIVILIAN OFFICE OR POSITION UNDER THE FEDERAL GOVERNMENT, SAID SECTION 212 OF THE ACT OF JUNE 30, 1932, IS NOT FOR APPLICATION. 21 COMP. GEN. 305.

SECTION 1765, REVISED STATUTES, 5 U.S.C. 70, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

THIS SECTION OF THE REVISED STATUTES HAS BEEN HELD BY THE COURTS AS NOT APPLICABLE TO THE HOLDING OF TWO SEPARATE AND DISTINCT OFFICES OR POSITIONS WHICH ARE NOT INCOMPATIBLE WITH EACH OTHER, WHERE THE SALARY OF EACH IS FIXED BY LAW OR REGULATION, UNITED STATES V. SAUNDERS, 120 U.S. 126, AND, ACCORDINGLY, SAID SECTION IS NOT APPLICABLE TO THE PRESENT CASE.

THEREFORE, IN THE ABSENCE OF ANY REGULATION PRESCRIBED BY THE SECRETARY OF WAR FOR THE NATIONAL GUARD, PROHIBITING SUCH EMPLOYMENT, THERE IS PERCEIVED NO LEGAL OBJECTION TO THE PROPOSED APPOINTMENT AND THE CONTINUED PAYMENT OF THE RETIRED PAY.