B-72950, AUGUST 25, 1948, 28 COMP. GEN. 118

B-72950, AUGUST 25, 1948, 28 COMP. GEN. 118

COMPENSATION - DOUBLE - RETIRED PERSONNEL - COMMISSIONED AND ENLISTED SERVICE PAY INCLUDED IN RETIRED PAY COMPUTATION THE RESTRICTION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, AGAINST THE RECEIPT BY RETIRED MILITARY PERSONNEL OF CIVILIAN COMPENSATION AND RETIRED PAY IN EXCESS OF THE COMBINED RATE OF $3,000 PER ANNUM WHEN SUCH RETIRED PAY IS "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER," IS APPLICABLE IN THE CASE OF A FORMER ENLISTED MAN RETIRED AFTER MORE THAN 20 YEARS' SERVICE FOR SERVICE CONNECTED PHYSICAL DISABILITY WHOSE AVERAGE PAY FOR 6 MONTHS PRECEDING RETIREMENT, UPON WHICH HIS RETIRED PAY IS COMPUTED UNDER SECTION 3 OF THE ACT OF JUNE 30, 1941, INCLUDES PAY AS A COMMISSIONED OFFICER.

COMPTROLLER GENERAL WARREN TO COLONEL CARL WITCHER, DEPARTMENT OF THE ARMY, AUGUST 25, 1948:

THERE HAS BEEN RECEIVED BY ENDORSEMENT OF JANUARY 16, 1948, YOUR LETTER OF JANUARY 8, 1948, REQUESTING DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON A VOUCHER SUBMITTED THEREWITH IN FAVOR OF MASTER SERGEANT HUGH MATHESON, U.S. ARMY, RETIRED, IN THE AMOUNT OF $204.37 COVERING RETIRED PAY FOR THE MONTH OF DECEMBER 1947.

IT IS UNDERSTOOD THAT MR. MATHESON WAS APPOINTED A MASTER SERGEANT, U.S. ARMY, ON FEBRUARY 22, 1941; THAT HE WAS DISCHARGED AS AN ENLISTED MAN MAY 4, 1941, TO ACCEPT A COMMISSION AS MAJOR, ARMY OF THE UNITED STATES, AND THAT HE SERVED AS A MAJOR FROM MAY 5, 1941, TO JULY 10, 1945. ALSO, IT APPEARS THAT FOLLOWING HIS RELEASE FROM ACTIVE DUTY AS MAJOR ON JULY 10, 1945, AFTER HAVING SERVED OVER FOUR YEARS AS A COMMISSIONED OFFICER, HE REENLISTED ON JULY 14, 1945, AS A MASTER SERGEANT AND THAT BY PARAGRAPH 52, SPECIAL ORDERS NO. 250, DATED OCTOBER 19, 1945, HE WAS PLACED ON THE RETIRED LIST EFFECTIVE OCTOBER 31, 1945 (AFTER COMPLETING 20 YEARS, 6 MONTHS AND 20 DAYS' SERVICE), FOR PHYSICAL DISABILITY INCURRED IN LINE OF DUTY PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 30, 1941, 55 STAT. 394, 395, WHICH PROVIDES, IN PART, AS FOLLOWS:

SEC. 2. AN ENLISTED MAN OF THE REGULAR ARMY OR OF THE PHILIPPINE SCOUTS WHO HAS SERVED TWENTY YEARS OR MORE IN THE MILITARY FORCES OF THE UNITED STATES AND WHO HAS BECOME PERMANENTLY INCAPACITATED FOR ACTIVE SERVICE DUE TO PHYSICAL DISABILITY INCURRED IN LINE OF DUTY SHALL BE PLACED ON THE RETIRED LIST.

SEC. 3. WHEN AN ENLISTED MAN IS PLACED ON THE RETIRED LIST PURSUANT TO THE PROVISIONS OF THE NEXT PRECEDING SECTION HE SHALL RECEIVE 75 PERCENTUM OF THE AVERAGE PAY HE WAS RECEIVING FOR SIX MONTHS PRIOR TO HIS RETIREMENT

SEC. 5. ALL PERIODS OF SERVICE WHICH ARE NOW COUNTED UNDER PROVISIONS OF EXISTING LAW IN COMPUTING THE TIME NECESSARY TO ENABLE AN ENLISTED MAN TO RETIRE UPON COMPLETION OF THIRTY YEARS OF SERVICE SHALL BE CREDITED IN THE COMPUTATION OF THE TWENTY YEARS OF SERVICE NECESSARY TO CONFER ELIGIBILITY FOR RETIREMENT HEREUNDER.

ON FEBRUARY 23, 1947, SUBSEQUENT TO RETIREMENT, MR. MATHESON ACCEPTED EMPLOYMENT WITH THE VETERANS' ADMINISTRATION, PHILADELPHIA, PENNSYLVANIA, AT A SALARY OF $4,149.60 PER ANNUM, AND, PRESUMABLY, HE CONTINUED IN SUCH CIVILIAN EMPLOYMENT AT LEAST UNTIL THE END OF DECEMBER 1947. HIS RETIRED PAY IS COMPUTED UNDER THE ACT OF JUNE 30, 1941, SUPRA, ON THE BASIS OF 75 PERCENTUM OF THE AVERAGE PAY HE RECEIVED FOR SIX MONTHS PRIOR TO RETIREMENT AND, THEREFORE, SINCE HIS LAST SIX MONTHS OF SERVICE CONSISTED OF 3 MONTHS AND 17 DAYS AS A MASTER SERGEANT AND 2 MONTHS AND 13 DAYS AS A MAJOR, HIS RETIRED PAY IS COMPUTED ON A COMBINATION OF THE PAY OF AN ENLISTED MAN AND COMMISSIONED OFFICER. SEE 26 COMP. GEN. 767. YOU INDICATE THAT YOU ARE IN DOUBT WHETHER HE IS TO BE REGARDED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" WITHIN THE MEANING OF THE DUAL COMPENSATION RESTRICTION IMPOSED BY SECTION 212 OF THE ACT OF 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. 59 (A) ( WHICH 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 PERSONS 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 RESTRICTION CONTAINED IN THE SAID SECTION 212, AS AMENDED IS DIRECTED AGAINST THE RECEIPT OF CIVILIAN COMPENSATION AND RETIRED PAY IN EXCESS OF THE COMBINED ANNUAL RATE OF $3,000 WHEN SUCH RETIRED PAY IS "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' THE QUESTION IS WHETHER, UNDER THE CIRCUMSTANCES HERE INVOLVED, A RETIRED ENLISTED MAN IS TO BE REGARDED AS RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" BECAUSE THERE IS INCLUDED IN SUCH AVERAGE PAY--- AND, HENCE, RETIRED PAY--- THE PAY HE RECEIVED FOR THAT PORTION OF THE SIX MONTHS HE SERVED AS A COMMISSIONED OFFICER.

IN DECISION DATED JANUARY 11, 1946, 25 COMP. GEN. 521, IT WAS HELD THAT RETIRED ENLISTED MEN OF THE REGULAR NAVY RECEIVING RETIRED PAY AS OF THEIR ENLISTED GRADES ARE NOT TO BE REGARDED AS IN RECEIPT OF RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" MERELY BECAUSE A PERIOD OF SERVICE AS A TEMPORARY COMMISSIONED OFFICER MAY BE INCLUDED FOR LONGEVITY PAY IN THE COMPUTATION OF THE ACTIVE DUTY ENLISTED PAY ON WHICH THEIR RETIRED PAY IS DIRECTLY OR INDIRECTLY BASED, OR BECAUSE SUCH PERIOD WAS INCLUDED IN DETERMINING THEIR ELIGIBILITY FOR RETIREMENT AS ENLISTED MEN. IT WAS POINTED OUT IN THE SAID DECISION THAT THE RETIRED ENLISTED MEN THERE INVOLVED ACTUALLY WERE RECEIVING THE RETIRED PAY OF THEIR ENLISTED GRADES AND THAT THEIR COMMISSIONED SERVICE COULD BE COUNTED FOR LONGEVITY PAY PURPOSES AND TOWARD RETIREMENT AS ENLISTED MEN, IRRESPECTIVE OF WHETHER IT WAS COMMISSIONED OR ENLISTED SERVICES. ON THE OTHER HAND, IN CONSIDERING SECTION 8 OF THE ACT OF JUNE 6, 1924, 43 STAT. 472 (10 U.S.C. 981), WHICH AUTHORIZES RETIRED ENLISTED MEN OF THE ARMY WHO SERVED HONORABLY AS COMMISSIONED OFFICERS OF THE ARMY, ETC., AT SOME TIME BETWEEN APRIL 6, 1917, AND NOVEMBER 11, 1918, TO RECEIVE THE PAY OF RETIRED WARRANT OFFICERS, IT WAS CONCLUDED THAT SUCH ENLISTED MEN WERE RECEIVING RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER" SO AS TO BRING THEM WITHIN THE RESTRICTION CONTAINED IN SECTION 212 OF THE ACT OF JUNE 30, 1932, SUPRA. ALSO, SEE HAYES V. UNITED STATES, 88 C.CLS. 309.

IN THE PRESENT CASE, THE ENLISTED MAN'S RETIRED PAY IS COMPUTED ON THE BASIS OF THE AVERAGE PAY HE RECEIVED FOR SIX MONTHS PRECEDING HIS RETIREMENT, AND SINCE THERE IS INCLUDED IN SUCH AVERAGE PAY THE PAY HE RECEIVED AS A COMMISSIONED OFFICER DURING A PORTION OF SUCH SIX MONTHS' PERIOD, IT IS APPARENT THAT HIS RETIRED PAY IS BEING RECEIVED "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER," ESPECIALLY WHEN IT IS CONSIDERED THAT APPROXIMATELY 60 PERCENT OF HIS RETIRED PAY IS RECEIVED SOLELY BY REASON OF THE INCLUSION OF THE PAY OF HIS COMMISSIONED RANK. IS SOLELY BY REASON OF HIS COMMISSIONED SERVICE THAT A SUBSTANTIAL PORTION OF HIS RETIRED PAY IS COMPUTED ON THE BASIS OF THE PAY PRESCRIBED BY LAW FOR THE COMMISSIONED RANK HELD BY HIM DURING A PORTION OF THE 6-MONTH PERIOD PRECEDING HIS RETIREMENT. SEE 26 COMP. GEN. 271. WHILE IT MIGHT BE CONTENDED THAT ONLY THE DIFFERENCE BETWEEN THE RETIRED PAY HE WOULD HAVE RECEIVED AS AN ENLISTED MAN AND THE RETIRED PAY HE WOULD HAVE RECEIVED AS AN ENLISTED MAN AND THE RETIRED PAY HE IS RECEIVING BY REASON OF THE INCLUSION OF COMMISSIONED SERVICE ACTUALLY REPRESENTS RETIRED PAY RECEIVED FOR OR ON ACCOUNT OF COMMISSIONED SERVICE, THE LAW GOVERNING THE COMPUTATION OF HIS RETIRED PAY AUTHORIZED NO ALTERNATIVE BASIS FOR COMPUTING RETIRED PAY UNDER SUCH CIRCUMSTANCES. CF. 26 COMP. GEN. 711. THAT IS TO SAY, THE ACT OF JUNE 30, 1941, AUTHORIZES THE COMPUTATION OF RETIRED PAY ON THE BASIS OF THE AVERAGE PAY THE ENLISTED MAN RECEIVED FOR SIX MONTHS PRIOR TO RETIREMENT, AND THERE WOULD BE NO AUTHORITY FOR EXCLUDING FROM SUCH 6-MONTH AVERAGE COMPUTATION THE PERIOD DURING WHICH THE ENLISTED MAN SERVED AS A COMMISSIONED OFFICER, OR FOR ANY ASSUMPTION THAT THE ENLISTED MAN WOULD HAVE SERVED IN ANY PARTICULAR ENLISTED GRADE DURING THE ENTIRE 6-MONTH PERIOD BUT FOR THE FACT THAT HE SERVED AS A COMMISSIONED OFFICER. CF. 27 COMP. GEN. 129, 134. HENCE, IT MUST BE HELD THAT MASTER SERGEANT MATHESON IS 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 SINCE HIS RETIRED PAY IS LESS THAN $3,000 PER ANNUM, AND HIS CIVILIAN COMPENSATION IS IN EXCESS OF $3,000 PER ANNUM, THE CONCURRENT PAYMENT OF RETIRED PAY AND CIVILIAN COMPENSATION IS NOT AUTHORIZED.

ACCORDINGLY, PAYMENT ON THE VOUCHER, WHICH IS RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.