B-61122, OCTOBER 28, 1946, 26 COMP. GEN. 271

B-61122, OCTOBER 28, 1946, 26 COMP. GEN. 271

DUAL COMPENSATION AND EMPLOYMENT STATUTE - APPLICABILITY TO NAVY ENLISTED MEN PLACED OR ADVANCED ON RETIRED LIST WITH COMMISSIONED RANK A RETIRED NAVY ENLISTED MAN WHO, AS PROVIDED BY SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, IS RETURNED TO INACTIVE STATUS WITH THE COMMISSIONED RANK HELD UNDER A TEMPORARY PROMOTION WHILE ON ACTIVE DUTY AFTER RETIREMENT DOES NOT HOLD THE "OFFICE" OF A RETIRED OFFICER BUT, RATHER, CONTINUES TO HOLD THE "OFFICE" OF AN ENLISTED MAN ON THE RETIRED LIST AND, THEREFORE, REMAINS WITHIN THE EXCEPTION OF RETIRED ENLISTED MEN FROM THE PROHIBITION IN THE ACT OF JULY 31, 1894, AS AMENDED, AGAINST THE APPOINTMENT TO, OR THE HOLDING OF, MORE THAN ONE OFFICE. RETIRED NAVY ENLISTED MEN WHO, AS PROVIDED BY SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, ARE RETURNED TO INACTIVE STATUS WITH RETIRED PAY COMPUTED ON THE PAY OF THE TEMPORARY COMMISSIONED RANK HELD WHILE ON ACTIVE DUTY AFTER RETIREMENT ARE TO BE REGARDED AS IN RECEIPT OF RETIRED PAY "FOR OR ON ACCOUNT OF" COMMISSIONED SERVICE WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO BE SUBJECT TO THE RESTRICTION THEREIN ON THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH MAY BE RECEIVED. NAVY ENLISTED MEN PLACED ON THE RETIRED LIST PURSUANT TO SECTION 8 (A) OF THE ACT OF JULY 24, 1941, OR RETIRED ENLISTED MEN ADVANCED THEREON PURSUANT TO SECTION 8 (B) OF SAID ACT, WITH RETIRED PAY COMPUTED ON THE PAY OF THE TEMPORARY ACTIVE-DUTY COMMISSIONED RANK HELD AT THE TIME OF INCURRENCE OF PHYSICAL DISABILITY, ARE TO BE REGARDED AS IN RECEIPT OF RETIRED PAY "FOR OR ON ACCOUNT OF" COMMISSIONED SERVICE WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SO AS TO BE SUBJECT TO THE RESTRICTION THEREIN ON THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY WHICH MAY BE RECEIVED. ENLISTED MEN OR RETIRED ENLISTED MEN OF THE NAVY WHO, PURSUANT TO SECTIONS 8 (A) OR 8 (B), OR SECTION 10, AS AMENDED, OF THE ACT OF JULY 24, 1941, BECOME ENTITLED TO RETIRED PAY COMPUTED ON THE PAY OF THEIR TEMPORARY ACTIVE-DUTY COMMISSIONED RANK MAY NOT WAIVE COMPUTATION ON SUCH BASIS AND ELECT TO RECEIVE RETIRED PAY BASED ON ENLISTED RATINGS, SO AS TO RENDER THEMSELVES EXEMPT FROM THE LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, ON THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY "FOR OR ON ACCOUNT OF" COMMISSIONED SERVICE WHICH MAY BE RECEIVED. STATEMENTS TO THE CONTRARY IN PRIOR DECISIONS NO LONGER WILL BE FOLLOWED. THE RESTRICTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, AGAINST THE RECEIPT BY RETIRED MILITARY, ETC., PERSONNEL OF RETIRED PAY AT A RATE WHICH, WHEN COMBINED WITH THE "ANNUAL RATE OF COMPENSATION" FROM A CIVILIAN POSITION, EQUALS OR EXCEEDS $3,000 PER ANNUM, HAS REFERENCE TO BASIC CIVILIAN COMPENSATION, AND, THEREFORE, THE SALARY DIFFERENTIAL PAYABLE IN CERTAIN CASES OF CIVILIAN EMPLOYMENT OUTSIDE THE CONTINENTAL UNITED STATES, BEING A PART OF BASIC COMPENSATION, IS FOR INCLUSION IN APPLYING SUCH RESTRICTION. THE MONETARY ALLOWANCE FOR QUARTERS, ETC., PRESCRIBED FOR CERTAIN CIVILIAN EMPLOYEES ON DUTY IN FOREIGN COUNTRIES IS NOT A PART OF BASIC COMPENSATION TO BE INCLUDED IN APPLYING THE RESTRICTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, AGAINST THE RECEIPT BY RETIRED MILITARY, ETC. PERSONNEL OF RETIRED PAY AT A RATE WHICH, WHEN COMBINED WITH THE "ANNUAL RATE OF COMPENSATION" FROM A CIVILIAN POSITION EQUALS OR EXCEEDS $3,000 PER ANNUM. IN THE CASE OF A RETIRED NAVY ENLISTED MAN, EMPLOYED IN A CIVILIAN POSITION WHEN RECALLED TO ACTIVE DUTY, WHO, AFTER RETURN TO INACTIVE STATUS, BECOMES ENTITLED UNDER THE ACT OF JULY 24, 1941, AS AMENDED, TO RETIRED PAY COMPUTED ON THE PAY OF HIS TEMPORARY ACTIVE-DUTY COMMISSIONED RANK, APPLICATION OF THE RESTRICTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, AS TO CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY ON ACCOUNT OF COMMISSIONED SERVICE DOES NOT CONSTITUTE AN ABRIDGMENT OF HIS REEMPLOYMENT RIGHTS UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED--- SUCH RESTRICTION BEING OPERATIVE IN RESPECT OF RETIRED PAY ONLY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 28, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 7, 1946, REFERENCE JAG:1II:1WG 100-1WARNER, JOHN 5/L16-4, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE DEPUTY CHIEF OF NAVAL PERSONNEL, DATED JULY 31, 1946, WITH RELATED CORRESPONDENCE, RELATIVE TO THE ELIGIBILITY OF CHIEF CARPENTER JOHN B. CONNOLLY, U.S. NAVY, RETIRED, TO HOLD A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT THE COMPENSATION FROM WHICH AMOUNTS TO OR EXCEEDS $2,500 PER ANNUM, AND, IF ELIGIBLE TO HOLD SUCH CIVILIAN POSITION, WHETHER HE MAY BE PAID THE RETIRED PAY OF A CHIEF CARPENTER CONCURRENTLY WITH THE COMPENSATION FROM HIS CIVILIAN POSITION, NOTWITHSTANDING THAT THE AGGREGATE INCOME FROM THE COMPENSATION OF HIS CIVILIAN POSITION AND HIS RETIRED PAY EXCEEDS $3,000 PER ANNUM.

IN CONNECTION WITH THE FOREGOING, YOUR DECISION IS REQUESTED ON THE QUESTIONS PRESENTED IN THE ENCLOSURE, AS FOLLOWS:

(A) WHETHER INDIVIDUALS INITIALLY RETIRED AS ENLISTED MEN FOR OTHER THAN PHYSICAL DISABILITY, WHO ARE ENTITLED TO RETIRED PAY BASED ON TEMPORARY COMMISSIONED RANK UNDER THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941 (55 STAT. 605; 34 U.S.C. 350I, SUPP. V), AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946 ( PUBLIC LAW 305- - 79TH CONGRESS), COME WITHIN THE PURVIEW OF THE ACT OF JULY 31, 1894 (28 STAT. 205), AS AMENDED (5 U.S.C. 62).

(B) WHETHER THE INDIVIDUALS INITIALLY RETIRED AS ENLISTED MEN FOR SERVICE, OR FOR PHYSICAL DISABILITY NOT INCURRED IN COMBAT WITH THE ENEMY OR AS A RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR, WHO ARE ENTITLED TO RETIRED PAY COMPUTED ON TEMPORARY COMMISSIONED RANK, COME WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932 (47 STAT. 406), AS AMENDED (5 US.C. 59A).

(C) WHETHER ENLISTED MEN PLACED ON, OR ADVANCED ON, THE RETIRED LIST IN TEMPORARY COMMISSIONED RANK PURSUANT TO SECTION 8 (A), (B) AND (C) OF THE ACT OF JULY 24, 1941 (55 STAT. 604; 34 U.S. CODE, 350G, SUPP. V), AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, SUPRA, COME WITHIN THE PURVIEW OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SUPRA.

(D) IF THE ANSWER TO QUESTIONS (B) AND (C) IS IN THE AFFIRMATIVE, MAY SUCH INDIVIDUALS EXEMPT THEMSELVES FROM THE APPLICABILITY OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SUPRA, BY ELECTING TO RECEIVE RETIRED PAY BASED ON ENLISTED RATING IN LIEU OF RETIRED PAY COMPUTED ON TEMPORARY RANK. IN THE CASE OF PERSONNEL WHO WERE REINSTATED TO FEDERAL CIVILIAN POSITIONS, OR WHO INITIALLY ACCEPTED FEDERAL CIVILIAN EMPLOYMENT PRIOR TO FEBRUARY 21, 1946, THE EFFECTIVE DATE OF PUBLIC LAW 305, SUPRA, YOUR DECISION IS REQUESTED AS TO THE DATE ON WHICH ELECTION TO RECEIVE RETIRED ENLISTED PAY BECOMES EFFECTIVE, I.E., IS SUCH ELECTION OPERATIVE FROM (1) DATE OF NOTICE OF DETERMINATION AS TO HIGHEST RANK IN WHICH THEY SERVED SATISFACTORILY; (2) FEBRUARY 21, 1946, DATE OF APPROVAL OF PUBLIC LAW 305, SUPRA; (3) DATE ELECTION IS EXERCISED, (4) DATE OF RETURN TO OR INITIAL ACCEPTANCE OF CIVILIAN EMPLOYMENT, AFTER RELEASE FROM ACTIVE DUTY, OR (5) DATE PLACED ON THE RETIRED LIST OR DATE RETURNED TO INACTIVE STATUS ON THE RETIRED LIST WITH TEMPORARY RANK AND RETIRED PAY BASED ON SUCH RANK IF EARLIER THAN DATE STATED IN (4/?

(E) IN THE EVENT THE ANSWER TO QUESTION (D) IS IN THE AFFIRMATIVE, WHETHER SUCH PERSONNEL WHO ELECT TO RECEIVE RETIRED ENLISTED PAY IN LIEU OF RETIRED PAY BASED ON TEMPORARY COMMISSIONED RANK DURING THE INCUMBENCY OF THEIR FEDERAL CIVILIAN POSITIONS MAY SUBSEQUENTLY REVERSE THEIR ELECTION AFTER THE TERMINATION OF THEIR CIVILIAN EMPLOYMENT.

IF IT IS HELD THAT RETIRED ENLISTED MEN WHO ARE ADVANCED TO TEMPORARY COMMISSIONED RANKS IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF FEBRUARY 21, 1946, SUPRA, ARE SUBJECT TO THE PROVISIONS OF THE DUAL COMPENSATION STATUTE ( ACT OF JUNE 30, 1932, AS AMENDED, SUPRA) DURING FEDERAL CIVILIAN EMPLOYMENT, YOUR FURTHER DECISION IS REQUESTED AS TO WHETHER THE DIFFERENTIAL OF 25 PERCENT APPLICABLE TO CERTAIN CIVILIAN PERSONNEL EMPLOYED IN FOREIGN COUNTRIES, OR MONETARY ALLOWANCE FOR QUARTERS, ETC., PROVIDED FOR CIVILIAN EMPLOYEES, WITH OR WITHOUT DEPENDENTS, ON DUTY IN FOREIGN COUNTRIES, IS TO BE INCLUDED IN DETERMINING THE PER ANNUM RATE OF CIVILIAN COMPENSATION.

THERE IS ALSO ENCLOSED HEREWITH THE FILE OF CORRESPONDENCE IN THE CASE OF COMMISSIONED WARRANT OFFICER JOHN R. WARNER, U.S. NAVY, RETIRED, WHO IS EMPLOYED IN A FEDERAL CIVILIAN POSITION AT THE CHARLESTON NAVAL SHIPYARD, CHARLESTON, S.C. YOUR DECISION IS REQUESTED AS TO WHETHER THE DUAL COMPENSATION STATUTE (1ACT OF JUNE 30, 1932, AS AMENDED, SUPRA) IS APPLICABLE TO THE CASE OF COMMISSIONED WARRANT OFFICER JOHN R. WARNER, RETIRED, DURING HIS EMPLOYMENT AS AFORESAID. IN THIS CONNECTION PARTICULAR ATTENTION IS INVITED TO SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED (50 U.S.C. 308, 357, SUPP. V, WAR, APPENDIX), WHICH PROVIDES IN PART, FOR RESTORATION TO THEIR FORMER FEDERAL CIVILIAN POSITIONS OR TO POSITIONS OF LIKE SENIORITY, STATUS, AND PAY OF PERSONS WHO ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940.

THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, AND SUBSEQUENT ACTS, 5 U.S.C. 62, 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; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

THE PROHIBITION CONTAINED IN THE FOREGOING PROVISIONS IS DIRECTED AGAINST THE APPOINTMENT TO OR THE HOLDING OF "AN OFFICE" TO WHICH COMPENSATION IS ATTACHED OF A PERSON WHO HOLDS AN "OFFICE" THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500. IN DECISION OF MAY 25, 1922, 1 COMP. GEN. 700, 702--- RENDERED PRIOR TO THE DATE OF THE AMENDMENT TO SAID 1894 LAW EXCLUDING RETIRED ENLISTED MEN FROM THE OPERATION OF THAT STATUTE--- IT WAS STATED:

ENLISTED MEN ON THE RETIRED LIST ARE NOW AS MUCH A PART OF THE ARMY OR NAVY, RESPECTIVELY, AS RETIRED COMMISSIONED OR WARRANT OFFICERS ARE. MERE NOMENCLATURE IS NOT MATERIAL, AND I SEE NO GROUND FOR DISTINCTION AMONG RETIRED ENLISTED MEN BETWEEN THOSE RANKING AS NONCOMMISSIONED OFFICERS OF THE ARMY OR PETTY OFFICERS OF THE NAVY AND THOSE RANKING BELOW SUCH NONCOMMISSIONED OR PETTY OFFICERS. THE TERM OF OFFICE AS USED IN THE ACT OF 1894 IS A BROAD GENERAL TERM WHICH HAS BEEN CONSTRUED TO INCLUDE ANY PERSON HOLDING A PLACE OR POSITION UNDER THE GOVERNMENT AND PAID FROM GOVERNMENT FUNDS. 26 COMP. DEC. 897: 1 COMP. GEN. 219. I MUST CONCLUDE, THEREFORE, THAT A RETIRED ENLISTED MAN OF THE ARMY OR NAVY HOLDS AN OFFICE WITH COMPENSATION ATTACHED WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894.

IN THE LIGHT OF THE FOREGOING STATEMENTS IT IS CLEAR THAT, GENERALLY, A RETIRED ENLISTED MAN HOLDS AN "OFFICE" WITHIN THE MEANING OF THE 1894 LAW AND BUT FOR THE PROVISION IN THE LAST SENTENCE THEREOF EXPRESSLY EXCLUDING " RETIRED ENLISTED MEN * * * RETIRED FOR ANY CAUSE" FROM THE OPERATION THEREOF, HE WOULD BE SUBJECT TO THE PROHIBITION CONTAINED THEREIN. HENCE, THE ANSWER TO QUESTION (A) PRESENTED IN YOUR LETTER, SUPRA, IS DEPENDENT UPON A DETERMINATION WHETHER SECTION 8 OF PUBLIC LAW 305, APPROVED FEBRUARY 21, 1946, AMENDING SECTION 10 OF THE ACT OF JULY 24, 1941, 55 STAT. 605, OPERATES TO CHANGE THE "OFFICE" HELD BY THE INDIVIDUALS MENTIONED FROM THAT OF THE "OFFICE" OF A RETIRED ENLISTED MAN ON THE RETIRED LIST TO THE "OFFICE" OF A RETIRED OFFICER ON THE RETIRED LIST.

THE ACT OF JULY 24, 1941, AUTHORIZES THE TEMPORARY APPOINTMENT OR ADVANCEMENT OF CERTAIN PERSONNEL OF THE NAVY AND MARINE CORPS--- INCLUDING RETIRED ENLISTED MEN ON ACTIVE DUTY--- IN TIME OF WAR OR NATIONAL EMERGENCY DETERMINED BY THE PRESIDENT. SECTION 10 OF THAT ACT AS AMENDED BY SECTION 8 OF THE ACT OF FEBRUARY 21, 1946, 60 STAT. 28, PROVIDES IN PERTINENT PART, AS FOLLOWS:

(A) PERSONNEL APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT MAY BE CONTINUED IN THEIR TEMPORARY STATUS DURING SUCH PERIOD AS THE PRESIDENT MAY DETERMINE, BUT NOT LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY OR, IN THE CASE OF RESERVE AND RETIRED PERSONNEL, NOT LONGER THAN THE PERIOD HEREIN SPECIFIED OR THE DATE OF RELEASE FROM ACTIVE DUTY WHICHEVER IS THE EARLIER AND IN NO CASE LONGER THAN SIX MONTHS AFTER THE TERMINATION OF WAR OR NATIONAL EMERGENCY. UPON THE TERMINATION OF THEIR TEMPORARY STATUS SUCH PERSONNEL ON THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS SHALL ASSUME THEIR PERMANENT STATUS AND THOSE OF THE RETIRED LIST AND OF THE RESPECTIVE RESERVE COMPONENTS, INCLUDING THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, SHALL HAVE, WHEN RETURNED TO AN INACTIVE STATUS, THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER A TEMPORARY APPOINTMENT, UNLESS ENTITLED TO THE SAME OR HIGHER GRADE AND RANK PURSUANT TO SECTION 8 OF THIS ACT, AS NOW OR HEREAFTER AMENDED.

(B) (1) PERSONNEL OF THE RETIRED LIST RETURNED TO AN INACTIVE STATUS WITH HIGHER RANK PURSUANT TO SUBSECTION (A) SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

(2) PERSONNEL OF THE ACTIVE LIST OF THE REGULAR NAVY AND MARINE CORPS AND PERSONNEL OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE APPOINTED OR ADVANCED UNDER THE AUTHORITY OF THIS ACT SHALL, WHEN SUBSEQUENTLY RETIRED, IF NOT OTHERWISE ENTITLED TO THE SAME OR HIGHER GRADE AND RANK OR RETIRED PAY, BE ADVANCED TO THE HIGHEST GRADE AND RANK IN WHICH, AS DETERMINED BY THE SECRETARY OF THE NAVY, THEY SERVED SATISFACTORILY UNDER TEMPORARY APPOINTMENTS, AND SHALL RECEIVE RETIRED PAY COMPUTED AT THE RATE PRESCRIBED BY LAW AND APPLICABLE IN EACH INDIVIDUAL CASE BUT BASED UPON SUCH HIGHER RANK.

(C) PERSONNEL OF THE CLASSES DESCRIBED ABOVE WHO HAVE BEEN RETIRED OR RELEASED FROM ACTIVE DUTY PRIOR TO THE DATE OF THIS AMENDMENT SHALL BE ENTITLED TO THE BENEFITS OF THIS SECTION FROM THE DATE OF RETIREMENT OR RELEASE, FROM ACTIVE DUTY, AS THE CASE MAY BE.

(D) PERSONNEL ACCORDED HIGHER RANK PURSUANT TO THIS SECTION SHALL, IF SUBSEQUENTLY ASSIGNED ACTIVE DUTY, BE RECALLED TO ACTIVE DUTY IN THE GRADES, RANKS OR RATINGS, WITH WHICH THEY WERE RETIRED OR RETURNED TO AN INACTIVE STATUS UNLESS UNDER OTHER PROVISIONS OF LAW THEY ARE ENTITLED TO HIGHER GRADES, RANKS, OR RATINGS.

UNDER THE PROVISIONS OF THE ABOVE-QUOTED SECTION, A RETIRED ENLISTED MAN WHO WAS RECALLED TO ACTIVE DUTY AND TEMPORARILY PROMOTED TO COMMISSIONED RANK WHILE ON ACTIVE DUTY IS ENTITLED, UPON RETURN TO AN INACTIVE STATUS, TO HAVE ON THE RETIRED LIST THE HIGHEST COMMISSIONED GRADE AND RANK IN WHICH HE SERVED SATISFACTORILY, AS DETERMINED BY THE SECRETARY OF THE NAVY, UNDER SUCH TEMPORARY PROMOTION. ALSO, HE IS ENTITLED TO HAVE HIS RETIRED PAY BASED UPON THE PAY PRESCRIBED FOR SUCH HIGHER RANK. RESPECTING THE EFFECT OF STATUTORY PROVISIONS RELATING TO THE RANK AND GRADE HELD ON THE RETIRED LIST AND THE RETIRED PAY TO BE PAID OFFICERS OF THE ARMY ON THE RETIRED LIST, IT WAS STATED IN THE OPINION OF THE COURT IN THE CASE OF WOOD V. UNITED STATES, 15 C.1CLS. 151, 160, AFFIRMED, 107 U.S. 414, AS FOLLOWS:

BY REVISED STATUTES, SECTION 1094, OFFICERS ON THE RETIRED LIST OF THE ARMY COMPOSE PART OF THE ARMY OF THE UNITED STATES, AND THEREFORE NO ONE CAN BE UPON THAT LIST WHO IS NOT AN OFFICER APPOINTED AS REQUIRED BY THE CONSTITUTION, ART, 2, S 2. BUT BEING SUCH OFFICER, THUS APPOINTED, OF ANY GRADE ON THE ACTIVE LIST, HE MAY BE RETIRED WITH A RANK HIGHER OR LOWER THAN THAT WHICH BELONGS TO HIS OFFICE WHENEVER CONGRESS SEES FIT SO TO PROVIDE. CONGRESS CANNOT APPOINT HIM TO A NEW AND DIFFERENT OFFICE, BECAUSE THE CONSTITUTION VESTS THE APPOINTING POWER IN THE PRESIDENT WITH THE ADVICE OF THE SENATE, OR IN CERTAIN CASES IN THE PRESIDENT ALONE, THE HEADS OF THE EXECUTIVE DEPARTMENTS, OR THE COURTS OF LAW; BUT CONGRESS MAY TRANSFER HIM TO THE RETIRED LIST, AND MAY CHANGE HIS RANK AND PAY AT ANY TIME, WITHOUT COMING IN CONFLICT WITH THAT PROVISION OF THE CONSTITUTION. THE STATEMENTS CONTAINED IN THE PORTION OF THE COURT'S OPINION QUOTED ABOVE WITH RESPECT TO OFFICERS OF THE ARMY NECESSARILY APPLY TO THE OTHER CLASSES OF PERSONNEL IN THE ARMY AND THE NAVY. THAT IS TO SAY, WHILE THE CONGRESS PROPERLY MAY DETERMINE THE RANK AND RETIRED PAY OF OFFICERS AND ENLISTED MEN ON THE RETIRED LISTS, IT CANNOT, BY LEGISLATIVE FIAT, APPOINT SUCH OFFICERS AND ENLISTED MEN TO NEW "OFFICES" OR CHANGE THE "OFFICE" WHICH THEY HOLD ON THE RETIRED LIST. HENCE, THE PROVISIONS OF SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED, SUPRA, WHILE AFFECTING THE RETIRED RANK AND THE RETIRED PAY OF OFFICERS AND ENLISTED MEN WITHIN THE PURVIEW THEREOF UPON RETIREMENT OR RETURN TO AN INACTIVE STATUS, PROPERLY MAY NOT BE VIEWED AS AFFECTING, IN ANY WAY, THE "OFFICE" HELD BY SUCH PERSONNEL. CONSEQUENTLY, A RETIRED ENLISTED MAN RETURNED TO INACTIVE STATUS WITH THE HIGHER COMMISSIONED GRADE OR RANK HELD UNDER A TEMPORARY PROMOTION WHILE ON ACTIVE DUTY PURSUANT TO THE PROVISIONS OF SECTION 10 OF THE 1941 STATUTE, AS AMENDED, STILL RETAINS THE ,OFFICE" OF AN ENLISTED MAN ON THE RETIRED LIST AND, THEREFORE, EXPRESSLY IS EXEMPT FROM THE INHIBITION OF THE 1894 LAW. QUESTION (A) IS ANSWERED ACCORDINGLY.

SECTION 212 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761, 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 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.

IT WILL BE OBSERVED THAT THE RESTRICTIONS CONTAINED IN SECTION 212, AS AMENDED, SUPRA, UNLIKE THE PROVISIONS OF THE 1894 STATUTE DISCUSSED ABOVE, ARE APPLICABLE REGARDLESS OF THE CHARACTER OF THE PARTICULAR OFFICE HELD. THAT IS TO SAY, IN THE APPLICATION OF THE 1932 ACT IT IS IMMATERIAL WHETHER THE OFFICE HELD IS THAT OF A RETIRED ENLISTED MAN OR THAT OF A RETIRED OFFICER. RATHER, ITS PROVISIONS ARE DIRECTED AGAINST THE RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY IN EXCESS OF A COMBINED ANNUAL RATE OF $3,000 WHEN SUCH RETIRED PAY IS "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' WERE IT NOT FOR THE PROVISIONS OF SECTION 10 (B) (1) OF THE ACT OF JULY 24, 1941, AS AMENDED BY THE ACT OF FEBRUARY 21, 1946, THE INDIVIDUALS DESCRIBED IN QUESTION (B) WOULD BE ENTITLED, UPON RETURN TO AN INACTIVE STATUS, TO RETIRED PAY BASED UPON THE PAY PRESCRIBED BY EXISTING LAW FOR THEIR ENLISTED GRADES, WHEREAS, BY THE OPERATION OF THE SAID SECTION 10, AS AMENDED, SUCH INDIVIDUALS, SOLELY BECAUSE OF THEIR TEMPORARY COMMISSIONED SERVICE, ARE ENTITLED TO HAVE THEIR RETIRED PAY COMPUTED ON THE BASIS OF THE PAY PRESCRIBED BY LAW FOR THE COMMISSIONED RANK HELD BY THEM ON THE RETIRED LIST. CONSEQUENTLY, IT IS CLEAR THAT SUCH INDIVIDUALS ARE IN RECEIPT OF RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 212, SUPRA, AND, THEREFORE, ARE WITHIN THE PURVIEW OF THAT SECTION. COMPARE 12 COMP. GEN. 37; 21 ID. 72; 25 ID. 521. QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE.

SECTIONS 8 (A), (B), AND (C), OF THE ACT OF JULY 24, 1941, 55 STAT. 604, REFERRED TO IN QUESTION (C), SUPRA, RESPECTIVELY PROVIDE:

(A) AN OFFICER OR ENLISTED MAN OF THE ACTIVE LIST OF THE REGULAR NAVY OR MARINE CORPS, OR AN ENLISTED MAN OF THE FLEET RESERVE OR FLEET MARINE CORPS RESERVE, WHO INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SHALL BE RETIRED IN SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(B) AN OFFICER OR ENLISTED MAN OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON FOR REASONS OTHER THAN PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

(C) AN OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS WHO WAS PLACED THEREON BY REASON OF PHYSICAL DISABILITY SHALL, IF HE INCURS PHYSICAL DISABILITY WHILE SERVING UNDER A TEMPORARY APPOINTMENT IN A HIGHER RANK, SUBJECT TO THE PROVISIONS OF SUBSECTION (E) HEREOF, BE ADVANCED ON THE RETIRED LIST TO SUCH HIGHER RANK WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE-DUTY PAY TO WHICH HE WAS ENTITLED WHILE SERVING IN THAT RANK.

IT WILL BE OBSERVED THAT SUBSECTION 8 (C), QUOTED ABOVE, HAS SPECIFIC REFERENCE TO ONLY AN ,OFFICER OF THE RETIRED LIST OF THE REGULAR NAVY OR MARINE CORPS.' HENCE, IT IS NOT UNDERSTOOD UPON WHAT BASIS AN ENLISTED MAN WOULD BE PLACED ON OR ADVANCED UPON THE RETIRED LIST UNDER THE PROVISIONS OF THAT SUBSECTION. UNDER THE PROVISIONS OF SUBSECTIONS 8 (A) AND 8 (B) ENLISTED MEN COMING WITHIN THE PURVIEW THEREOF ARE ENTITLED TO BE PLACED ON THE RETIRED LIST OR ADVANCED THEREON, AS THE CASE MAY BE, IN THE TEMPORARY COMMISSIONED RANK HELD AT THE TIME THE PHYSICAL DISABILITY IS INCURRED, WITH RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE ACTIVE- DUTY PAY TO WHICH ENTITLED WHILE SERVING IN THAT RANK. OBVIOUSLY, SUCH ENLISTED MEN, BEING ENTITLED TO RETIRED PAY BASED UPON THE ACTIVE-DUTY PAY OF THE COMMISSIONED RANK HELD BY THEM AT THE TIME OF INCURRING PHYSICAL DISABILITY, ARE RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES OF A COMMISSIONED OFFICER," AND, LIKE RETIRED ENLISTED MEN CONSIDERED UNDER QUESTION (B), SUPRA, ARE WITHIN THE SCOPE OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED. THEREFORE, QUESTION (C), SO FAR AS IT PERTAINS TO SUBSECTIONS 8 (A) AND 8 (B) OF THE ACT OF JULY 24, 1941, IS ANSWERED IN THE AFFIRMATIVE.

THE ONLY RIGHT OF ELECTION PROVIDED BY SECTION 212 OF THE ECONOMY ACT, AS AMENDED, SUPRA, IS THAT PERMITTED "WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM" AND, UNDER SUCH CIRCUMSTANCES, THE RIGHT IS LIMITED TO AN ELECTION BETWEEN THE PAY OF THE CIVILIAN OFFICE OR POSITION AND THE RETIRED PAY. HENCE, IT IS NOT UNDERSTOOD UPON WHAT BASIS THE INDIVIDUALS EMBRACED UNDER QUESTIONS (B) AND (C) MAY BE CONSIDERED AS HAVING A RIGHT OF ELECTION UNDER THE SAID SECTION 212 WITH RESPECT TO THE PARTICULAR BASIS UPON WHICH THEIR RETIRED PAY SHALL BE COMPUTED FOR THE PURPOSES OF THAT SECTION.

THE PROVISIONS OF SECTIONS 8 (A) AND (B) AND SECTION 10 OF THE ACT OF JULY 24, 1941, AS AMENDED BY PUBLIC LAW 305, GOVERN THE RETIRED PAY OF THE INDIVIDUALS REFERRED TO IN QUESTIONS (C) AND (B), RESPECTIVELY. NEITHER OF THE ABOVE SECTIONS CONFERS ANY RIGHT OF ELECTION UPON THE INDIVIDUALS COVERED THEREBY TO HAVE THEIR RETIRED PAY COMPUTED IN ANY OTHER MANNER THAN THAT PROVIDED IN SUCH SECTIONS. CONSEQUENTLY, THE RETIRED PAY OF SUCH INDIVIDUALS MUST BE COMPUTED FOR ALL PURPOSES ON THE BASIS THEREIN PRESCRIBED. STATED IN OTHER WORDS, INDIVIDUALS COVERED BY SUCH SECTIONS MAY NOT WAIVE THE INCREASED RETIRED PAY PROVIDED BY THOSE SECTIONS IN ORDER TO RECEIVE THE RETIRED PAY OF A LESSER AMOUNT WHICH THEY FORMERLY RECEIVED--- AS IN THE CASE OF ENLISTED MEN INITIALLY RETIRED AS ENLISTED MEN--- NOR MAY THEY ELECT TO RECEIVE IN LIEU OF THEIR STATUTORY RETIRED PAY A ,CONSTRUCTIVE" RETIRED PAY BASED UPON THEIR FORMER ENLISTED GRADE BUT WHICH THEY NEVER HAD RECEIVED, AS WOULD BE THE CASE OF INDIVIDUALS ON ACTIVE DUTY WHO WERE GIVEN TEMPORARY PROMOTIONS AS COMMISSIONED OFFICERS AND WHO WERE RETIRED SUBSEQUENT TO THE ENACTMENT OF PUBLIC LAW 305 AND WHO NOW ARE IN RECEIPT OF RETIRED PAY PURSUANT TO SECTION 10 (B) (2) OF THE 1941 STATUTE AS AMENDED BY PUBLIC LAW 305. IN THIS CONNECTION, IT MAY BE STATED THAT THE SAVING PROVISIONS CONTAINED IN SECTION 7 OF THE SAID ACT OF JULY 24, 1941, 55 STAT. 604, ARE NOT CONSIDERED AS IN ANY WISE AFFECTING THE RETIRED PAY TO WHICH SUCH INDIVIDUALS ARE ENTITLED.

FOR THE REASONS STATED ABOVE, THE QUERY PRESENTED IN THE FIRST SENTENCE OF QUESTION (D), IS ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY ANSWER TO THE VARIOUS OTHER SUBDIVISIONS OF THAT QUESTION, OR TO QUESTION (E). ANY STATEMENTS MADE IN CERTAIN PRIOR DECISIONS OF THIS OFFICE WHICH CONFLICT WITH THE ABOVE CONCLUSION NO LONGER WILL BE FOLLOWED.

THE PHRASE "ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION" APPEARING IN SECTION 212 OF THE ECONOMY ACT OF 1932 HAS REFERENCE TO THE BASIC COMPENSATION OF THE CIVILIAN OFFICE OR POSITION. SEE 22 COMP. GEN. 795. AND IT IS SETTLED THAT THE SALARY DIFFERENTIAL PAYABLE TO CERTAIN CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT EMPLOYED OUTSIDE THE CONTINENTAL UNITED STATES IS A PART OF BASIC COMPENSATION. COMP. GEN. 519; 22 ID. 769. HENCE, SUCH SALARY DIFFERENTIAL MUST BE INCLUDED IN THE COMPUTATION OF THE CIVILIAN COMPENSATION FOR THE PURPOSE OF SECTION 212. HOWEVER, THE MONETARY ALLOWANCE FOR QUARTERS, ETC., PRESCRIBED FOR CERTAIN CIVILIAN EMPLOYEES ON DUTY IN FOREIGN COUNTRIES IS NOT A PART OF THE BASIC COMPENSATION OF SUCH EMPLOYEES AND PROPERLY SHOULD BE EXCLUDED FROM THE COMPUTATION UNDER THAT SECTION. THE QUESTIONS PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER ARE ANSWERED ACCORDINGLY.

WITH RESPECT TO THE CASE OF COMMISSIONED WARRANT OFFICER JOHN R. WARNER, U.S. NAVY, RETIRED, REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, THE FILE SUBMITTED DISCLOSES THAT HE WAS RETIRED INITIALLY AS A CHIEF PETTY OFFICER (PRESUMABLY AT A DATE PRIOR TO 1941), AND DURING THE NATIONAL EMERGENCY WAS EMPLOYED IN A CIVILIAN CAPACITY AS " LEADINGMAN, ELECTRICIAN," AT THE CHARLESTON NAVY YARD; THAT HE WAS RECALLED TO ACTIVE DUTY AS A CHIEF PETTY OFFICER AND SUBSEQUENTLY GIVEN A TEMPORARY APPOINTMENT AS A COMMISSIONED WARRANT OFFICER; THAT UPON RELEASE FROM ACTIVE DUTY, HE REVERTED TO HIS PERMANENT RATING OF CHIEF PETTY OFFICER ON THE RETIRED LIST AND WAS RESTORED--- PRESUMABLY PURSUANT TO THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED--- TO HIS FORMER CIVILIAN POSITION OF " LEADINGMAN, ELECTRICIAN," WITH COMPENSATION AT A RATE IN EXCESS OF $2,500 PER ANNUM. PURSUANT TO THE PROVISIONS OF PUBLIC LAW 305, HIS RANK ON THE RETIRED LIST WAS CHANGED FROM THAT OF CHIEF PETTY OFFICER TO THAT OF COMMISSIONED WARRANT OFFICER AND HIS RETIRED PAY INCREASED AS PROVIDED BY THAT ACT. FURTHER APPEARS THAT UNDER DATE OF JULY 10, 1946 ( SPEED LETTER OIR-522; KLC), THE OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, DIRECTED THE TERMINATION OF MR. WARNER'S CIVILIAN EMPLOYMENT AS " LEADINGMAN, ELECTRICIAN," FOR THE STATED REASON THAT SUCH CIVILIAN EMPLOYMENT WAS IN VIOLATION OF THE PROVISIONS OF THE ACT OF JULY 31, 1894, SUPRA, AND SUGGESTED, IN EFFECT, THAT IF HIS RETIRED PAY IS LESS THAN $2,500, AND HE DESIRES TO ACCEPT A CIVILIAN POSITION WITH COMPENSATION AT A RATE LESS THAN $2,500, HE MAY DO SO, SUBJECT TO THE LIMITATIONS CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED.

THE CONCLUSION REACHED BY THE OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, THAT, UNDER THE CIRCUMSTANCES, THE ADVANCEMENT OF MR. WARNER ON THE RETIRED LIST TO THE RANK OF COMMISSIONED WARRANT OFFICER BROUGHT HIM WITHIN THE PURVIEW OF THE 1894 LAW, AND, THEREFORE, THAT HIS EMPLOYMENT IN A CIVILIAN CAPACITY AT A SALARY RATE IN EXCESS OF $2,500 PER ANNUM MUST BE TERMINATED, APPARENTLY HAS GIVEN RISE TO THE QUESTION CONCERNING THE APPLICABILITY IN SUCH CASES OF THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, AS AMENDED, RELATIVE TO THE REEMPLOYMENT RIGHTS OF PERSONS WHO ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SUBSEQUENT TO MAY 1, 1940. SECTION 8 OF THAT ACT, AS AMENDED (50 U.S.C. 308, 1940 ED., SUPP. V), PROVIDES, INTER ALIA, THAT, UNDER THE CONDITIONS STATED THEREIN, ANY SUCH PERSONS WHO LEFT A POSITION OTHER THAN A TEMPORARY ONE UNDER THE UNITED STATES GOVERNMENT, UPON RELEASE FROM SUCH SERVICE,"SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.'

WHILE THE CONCLUSION REACHED BY THE OFFICE OF INDUSTRIAL RELATIONS, NAVY DEPARTMENT, RESPECTING THE APPLICATION OF THE SAID 1894 LAW IN THE CASE OF MR. WARNER, GIVES RISE TO A CONSIDERATION OF THE PROVISIONS OF SECTION 8 OF THE SAID SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, AS POSSIBLY IN CONFLICT THEREWITH, IT WILL BE SEEN THAT IN ANSWER TO QUESTION (A), SUPRA, CONCERNING INDIVIDUALS HAVING THE SAME RETIRED STATUS AS THAT OF MR. WARNER, IT WAS HELD SUCH PERSONS ARE NOT SUBJECT TO THE PROVISIONS OF THE 1894 STATUTE. CONSEQUENTLY, MR. WARNER'S EMPLOYMENT IN A CIVILIAN CAPACITY AS " LEADINGMAN, ELECTRICIAN" AT A SALARY RATE IN EXCESS OF $2,500 PER ANNUM, NEED NOT BE TERMINATED, AND, THEREFORE, NO ABRIDGMENT OF HIS REEMPLOYMENT RIGHTS UNDER THE SELECTIVE TRAINING AND SERVICE ACT RESULTS FROM HIS ADVANCEMENT ON THE RETIRED LIST UNDER PUBLIC LAW 305. FURTHER, THE CONCLUSION HEREINBEFORE REACHED IN ANSWER TO QUESTION (B), SUPRA, THAT INDIVIDUALS IN THE SAME CATEGORY AS THAT OF MR. WARNER ARE SUBJECT TO THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT IN NOWISE AFFECTS HIS RIGHT UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT TO BE RESTORED TO HIS FORMER CIVILIAN POSITION OR TO A POSITION "OF LIKE SENIORITY, STATUS, AND PAY.' IN THAT CONNECTION, IT WILL BE NOTED THAT ANY REDUCTION REQUIRED BY THE SAID SECTION 212 EXPRESSLY IS OPERATIVE AGAINST RETIRED PAY--- AND NOT AGAINST THE COMPENSATION OF THE CIVILIAN OFFICE OR POSITION. OF COURSE, WHERE THE RETIRED PAY EXCEEDS $3,000 PER ANNUM AND AN ELECTION IS MADE, AS PROVIDED BY SECTION 212, TO RETAIN THE RETIRED PAY AND TO FOREGO THE COMPENSATION OF THE CIVILIAN OFFICE OR POSITION, SUCH ELECTION IS A MATTER OF PERSONAL PREFERENCE, AMOUNTING TO NOTHING MORE THAN A CHOICE OF RETIRED PAY OVER CIVILIAN COMPENSATION, A MATTER ENTIRELY WITHOUT THE SCOPE OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT.