B-67908, FEBRUARY 10, 1948, 27 COMP. GEN. 439

B-67908, FEBRUARY 10, 1948, 27 COMP. GEN. 439

COMPENSATION - DOUBLE - RETIRED ARMY OFFICER EMPLOYED BY PANAMA CANAL A RETIRED ARMY OFFICER EMPLOYED BY THE PANAMA CANAL IS ENTITLED, WITHOUT REGARD TO THE GENERAL DUAL COMPENSATION RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, TO HAVE HIS RETIRED PAY AND COMPENSATION RIGHTS DETERMINED IN ACCORDANCE WITH THE SPECIFIC PROVISIONS OF SECTION 4 OF THE PANAMA CANAL ACT, AS AMENDED, AUTHORIZING, IN EFFECT, THE PAYMENT OF FULL RETIRED PAY TO RETIRED COMMISSIONED OFFICERS HOLDING OFFICES OR POSITIONS WITH THE PANAMA CANAL BY PROVIDING FOR THE DEDUCTION OF THE AMOUNT OF RETIRED PAY FROM CIVILIAN COMPENSATION.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, FEBRUARY 10, 1948:

BY INDORSEMENT OF THE OFFICE OF THE CHIEF OF FINANCE, DATED JULY 8, 1947, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER OF JUNE 12, 1947, ENCLOSING A VOUCHER AND RELATED PAPERS COVERING THE CLAIM OF BRIGADIER GENERAL FRANK J. MCSHERRY, U.S. ARMY, RETIRED, FOR RETIRED PAY FOR THE PERIOD JANUARY 2, 1947, TO JUNE 30, 1947, DURING WHICH PERIOD, AND SUBSEQUENTLY, THE OFFICER HELD A TEMPORARY POSITION WITH THE PANAMA CANAL. YOU INDICATE THAT YOU HAVE SOME DOUBT RESPECTING THE APPLICABILITY OF SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, AND SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, IN SUCH CASES OF RETIRED MILITARY PERSONNEL EMPLOYED BY THE PANAMA CANAL, AND YOU REQUEST THAT YOU BE ADVISED AS TO THE CORRECT METHOD OF MAKING PAYMENT OF RETIRED PAY IN THE CASE OF BRIGADIER GENERAL MCSHERRY IN THE EVENT IT IS HELD THAT SUCH PAYMENT IS AUTHORIZED.

THE PROVISIONS OF SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561, AND RELATED PROVISIONS OF THE ACT OF MARCH 12, 1928, 45 STAT. 310 (WHICH, IN EFFECT, AMENDED THE SAID SECTION 4), WERE INCORPORATED, WITHOUT ANY SUBSTANTIAL CHANGE, IN THE CANAL ZONE CODE ESTABLISHED BY THE ACT OF JUNE 19, 1934, 48 STAT. 1122. SEE SECTIONS 5, 6, 81 AND 82, TITLE 2, OF SUCH CODE. THE SAID PROVISIONS ARE, IN PERTINENT PART, AS FOLLOWS (QUOTING FROM 48 U.S.C. 1305 AND 1305A.):

THE PRESIDENT IS AUTHORIZED TO GOVERN AND OPERATE THE PANAMA CANAL AND GOVERN THE CANAL ZONE, OR CAUSE THEM TO BE GOVERNED AND OPERATED, THROUGH A GOVERNOR OF THE PANAMA CANAL AND SUCH OTHER PERSONS AS HE MAY DEEM COMPETENT TO DISCHARGE THE VARIOUS DUTIES CONNECTED WITH THE CARE, MAINTENANCE, SANITATION, OPERATION, GOVERNMENT, AND PROTECTION OF THE CANAL AND CANAL ZONE. IF ANY OF THE PERSONS APPOINTED OR EMPLOYED AS AFORESAID SHALL BE PERSONS IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES, THE AMOUNT OF THE OFFICIAL SALARY PAID TO ANY SUCH PERSON SHALL BE DEDUCTED FROM THE AMOUNT OF SALARY OR COMPENSATION PROVIDED BY OR WHICH SHALL BE FIXED UNDER THE TERMS OF THIS SECTION. * * *

SECTION 1305 OF THIS TITLE SHALL NOT BE CONSTRUED AS REQUIRING THE DEDUCTION OF THE RETIRED PAY OR ALLOWANCES OF ANY RETIRED WARRANT OFFICER OR ENLISTED MAN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR THE TRAINING PAY, RETAINER PAY, OR ALLOWANCES OF ANY WARRANT OFFICER OR ENLISTED MAN OF THE RESERVE FORCES OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, FROM THE AMOUNT OF THE SALARY OR COMPENSATION PROVIDED BY OR FIXED UNDER THE TERMS OF SAID SECTION.

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

IN YOUR LETTER IT IS STATED THAT:

BRIGADIER GENERAL MCSHERRY WAS PLACED ON THE RETIRED LIST EFFECTIVE 31 OCTOBER 1946 BY REASON OF PHYSICAL DISABILITY INCIDENT TO THE SERVICE UNDER THE PROVISIONS OF REVISED STATUTES 1251, THE DISABILITY NOT BEING THE RESULT OF WOUNDS RECEIVED IN COMBAT OR AS A RESULT OF AN EXPLOSION OF AN INSTRUMENTALITY OF WAR.

IT IS WELL SETTLED THAT A RETIRED OFFICER OF THE ARMY REMAINS AN OFFICER OF THE UNITED STATES AND A MEMBER OF THE MILITARY SERVICE AFTER HIS RETIREMENT. 12 COMP. GEN. 531, 533; 15 ID. 1099, 1102; 16 ID. 47, 48; 23 ID. 272, 274; ID. 284, 286. MOREOVER, BY ENACTING THE ACT OF MARCH 12, 1928, SUPRA--- PROVIDING THAT SECTION 4 OF THE PANAMA CANAL ACT SHALL NOT BE CONSTRUED AS REQUIRING THE DEDUCTION OF THE RETIRED PAY OF ANY RETIRED WARRANT OFFICER OR ENLISTED MAN FROM THE AMOUNT OF HIS SALARY OR COMPENSATION FOR SERVICE UNDER THE PANAMA CANAL--- THE CONGRESS TACITLY RECOGNIZED THE APPLICABILITY OF THE SALARY DEDUCTION PROVISIONS OF THE SAID SECTION 4 TO RETIRED COMMISSIONED OFFICERS AND SANCTIONED THE CONTINUED APPLICABILITY OF SUCH PROVISIONS TO SUCH OFFICERS.

IN DECISION OF THIS OFFICE TO THE GOVERNOR OF THE PANAMA CANAL, 9 COMP. GEN. 221, 222, RENDERED ON NOVEMBER 23, 1929, PRIOR TO THE ENACTMENT OF SECTION 212 OF THE ECONOMY ACT, SUPRA, IT WAS STATED:

SECTION 4 OF THE PANAMA CANAL ACT AND THE SIMILAR PROVISION IN THE PRECEDING ACT OF JUNE 28, 1902, 32 STAT. 481, HAVE BEEN UNIFORMLY CONSTRUED TO REQUIRE THE DEDUCTION OF THE RETIRED PAY OF OFFICERS OF THE ARMY OR NAVY EMPLOYED UNDER THE PANAMA CANAL.

THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, AS AMENDED, SUPRA, ARE GENERAL IN NATURE AND, AS TO CASES NOT SPECIFICALLY EXCEPTED THEREFROM BY LAW, REQUIRE A REDUCTION IN THE RETIRED PAY OF ANY PERSON, NOT RETIRED FOR DISABILITY RESULTING FROM A SPECIFIED CAUSE, WHO IS ENTITLED TO SUCH RETIRED PAY ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER AND WHO HOLDS A FEDERAL (OR DISTRICT OF COLUMBIA) CIVIL OFFICE OR POSITION IF HIS RATE OF RETIRED PAY IS LESS THAN $3,000 PER ANNUM AND THE ANNUAL RATE OF RETIRED PAY PLUS THE ANNUAL RATE OF HIS CIVILIAN COMPENSATION EXCEEDS $3,000. WITH RESPECT TO CASES IN WHICH THE ANNUAL RATE OF RETIRED PAY IS $3,000 OR MORE, THE SAID PROVISIONS AUTHORIZE AN ELECTION BETWEEN THE CIVILIAN COMPENSATION AND THE RETIRED PAY.

THE OTHER STATUTORY PROVISIONS QUOTED ABOVE ARE SPECIFIC IN NATURE AND, WITH RESPECT TO COMMISSIONED MILITARY OR NAVAL PERSONNEL HOLDING OFFICES OR POSITIONS WITH THE PANAMA CANAL, SUCH PROVISIONS, IN EFFECT, AUTHORIZE THE PAYMENT OF THE FULL MILITARY OR NAVAL ACTIVE DUTY PAY OR RETIRED PAY BY PROVIDING FOR THE DEDUCTION OF THE AMOUNT OF SUCH PAY FROM THE SALARY OR COMPENSATION PAYABLE BY THE PANAMA CANAL. IN ADDITION, SUCH SPECIFIC PROVISIONS, HAVING BEEN INCLUDED IN THE CANAL ZONE CODE ESTABLISHED BY THE ACT OF JUNE 19, 1934, SUPRA, WERE CONSIDERED BY THE CONGRESS AND CONTINUED IN THE STATUTES TWO YEARS AFTER THE ENACTMENT OF SECTION 212, SUPRA.

IT IS A SETTLED PRINCIPLE OF STATUTORY CONSTRUCTION THAT A SPECIFIC STATUTORY PROVISION COVERING A GIVEN SUBJECT MATTER WILL PREVAIL OVER GENERAL LANGUAGE OF THE SAME OR ANOTHER STATUTE WHICH MIGHT OTHERWISE PROVE CONTROLLING. IN OTHER WORDS, TO THE EXTENT OF ANY IRRECONCILABLE CONFLICT BETWEEN A GENERAL PROVISION AND A SPECIFIC PROVISION, THE GENERAL PROVISION MUST YIELD TO THE SPECIFIC PROVISION AND OPERATE ONLY UPON SUCH CASES AS ARE NOT WITHIN THE SCOPE OF THE SPECIFIC PROVISION. SEE 26 COMP. GEN. 561, 563, 564, AND AUTHORITIES CITED THEREIN. SEE, ALSO, 50 AM. JUR. 562-565, SECTIONS 561-563.

IT SEEMS EVIDENT THAT THE PROVISIONS OF SECTION 212, AS AMENDED, SUPRA, AND THE COMPENSATION DEDUCTION PROVISIONS OF THE PANAMA CANAL CODE, SUPRA, MAY NOT BOTH BE FOLLOWED IN THE CASES OF RETIRED OFFICERS WHO ARE EMPLOYED BY THE PANAMA CANAL.

ACCORDINGLY, IT IS HELD THAT BRIGADIER GENERAL MCSHERRY'S RETIRED PAY AND COMPENSATION RIGHTS ARE FOR DETERMINATION IN ACCORDANCE WITH THE PERTINENT PROVISIONS OF THE CANAL ZONE CODE, SUPRA, AND WITHOUT REGARD TO THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT, AS AMENDED.

WITH RESPECT TO YOUR REQUEST AS TO THE METHOD OF MAKING PAYMENT OF RETIRED PAY IN THE CASE OF BRIGADIER GENERAL MCSHERRY, IT APPEARS THAT HE MAY HAVE RECEIVED THE ENTIRE AMOUNT OF THE COMPENSATION OF HIS OFFICE OR POSITION WITH THE PANAMA CANAL FOR THE PERIOD COVERED BY THE ABOVE- MENTIONED VOUCHER, AND THEREAFTER. IF HE HAS SO RECEIVED HIS FULL CIVILIAN COMPENSATION FOR ANY PERIOD OR PERIODS, IT WILL BE NECESSARY TO TAKE APPROPRIATE ACTION TO ADJUST THE MATTER SO AS TO REIMBURSE THE APPROPRIATION CHARGED WITH SUCH CIVILIAN COMPENSATION IN THE AMOUNT OF THE RETIRED PAY FOR SUCH PERIOD OR PERIODS. HENCE, THE SAID VOUCHER WILL BE RETAINED FOR TREATMENT AS A CLAIM, THE MATTER WILL BE DEVELOPED, AND APPROPRIATE ACTION THEREON WILL BE TAKEN BY THIS OFFICE.