B-91556, JANUARY 27, 1950, 29 COMP. GEN. 312

B-91556, JANUARY 27, 1950, 29 COMP. GEN. 312

TRAVEL AND TRANSPORTATION EXPENSES - TERMINATION OF OVERSEAS POSITION FOR VIOLATION OF DUAL EMPLOYMENT STATUTE WHILE THE OVERSEAS CIVILIAN EMPLOYMENT OF A RETIRED ARMY WARRANT OFFICER WAS TERMINATED BY OPERATION OF THE DUAL EMPLOYMENT LIMITATIONS IN THE ACT OF JULY 31, 1894, AS OF THE DATE HIS CIVILIAN SALARY WAS INCREASED TO EXCEED $2,500 PER ANNUM, UPON FORMAL SEPARATION FROM THE CIVILIAN POSITION AT THE TIME OF DISCOVERY OF THE ILLEGALITY OF HIS EMPLOYMENT, THE TRAVEL AND TRANSPORTATION EXPENSES INCIDENT TO HIS RETURN TO THE UNITED STATES, IF AUTHORIZED, MAY BE PAID UNDER SECTION 7 OF THE ACT OF AUGUST 2, 1946, PROVIDED HIS RIGHTS THERETO ARE EXERCISED WITHIN A REASONABLE TIME.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, AMERICAN BATTLE MONUMENTS COMMISSION, JANUARY 27, 1950:

REFERENCE IS MADE TO LETTER OF DECEMBER 22, 1949, WRITTEN AT YOUR DIRECTION, REQUESTING A DECISION WHETHER THE PROVISIONS OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 806, AUTHORIZES YOUR COMMISSION TO RETURN A FORMER EMPLOYEE TO THE UNITED STATES AT GOVERNMENT EXPENSE, TOGETHER WITH HIS DEPENDENTS AND HOUSEHOLD EFFECTS, AS A RESULT OF HIS HAVING BEEN SEPARATED FROM THE ROLLS ON DECEMBER 21, 1949, FOLLOWING DISCOVERY THAT HE HAD BEEN HOLDING HIS POSITION IN CONTRAVENTION OF THE DUAL EMPLOYMENT ACT OF JULY 31, 1894 (5 U.S.C. 62). ALSO, ADVICE IS REQUESTED AS TO WHAT ACTION SHOULD BE TAKEN TOWARD SECURING REFUND OF THE SALARY PAID TO THE EMPLOYEE DURING THE PERIOD OF HIS ILLEGAL EMPLOYMENT.

THE PERTINENT FACTS, AS RECITED IN SAID LETTER, ARE AS FOLLOWS: THE EMPLOYEE IN QUESTION WAS SERVING AS SUPERINTENDENT OF THE MEXICO CITY NATIONAL CEMETERY AT A SALARY OF $2,694.96 WHEN THE FUNCTIONS AND PERSONNEL OF THE CEMETERY WERE TRANSFERRED TO YOUR COMMISSION BY EXECUTIVE ORDER NO. 9873, EFFECTIVE OCTOBER 1, 1947. HIS SEPARATION WAS EFFECTED ON DECEMBER 21, 1949, AFTER IT WAS DISCOVERED THAT HE ALSO WAS DRAWING RETIRED PAY AS A RETIRED WARRANT OFFICER, HIS CIVILIAN EMPLOYMENT THUS BEING IN VIOLATION OF THE SAID 1894 ACT. SINCE SUCH VIOLATION FIRST OCCURRED ON JULY 1, 1946, THE DATE ON WHICH THE EMPLOYEE'S CIVILIAN SALARY WAS INCREASED FROM $2,364 TO $2,694.96 PER ANNUM, AND SINCE THE CIVILIAN APPOINTMENT WAS VOID FROM THAT DATE, YOU ARE IN DOUBT WHETHER THE PAYMENT OF THE EXPENSES OF RETURNING HIM TO THE UNITED STATES IS PROPER UNDER THE PROVISIONS OF SECTION 7, PUBLIC LAW 600, SUPRA, 60 STAT. 808.

IT HAS BEEN ASCERTAINED INFORMALLY THAT THE EMPLOYEE'S RETIRED PAY AS AN ARMY WARRANT OFFICER DOES NOT EXCEED THE RATE OF $2,500 PER ANNUM AND THAT HIS RETIREMENT WAS NOT FOR DISABILITY WITHIN THE EXCEPTIONS PROVIDED BY THE 1894 ACT. ACCORDINGLY, THE SAID EMPLOYEE CLEARLY WAS IN VIOLATION OF THE SAID ACT FROM THE DATE ( JULY 1, 1946) ON WHICH HIS CIVILIAN SALARY WAS INCREASED TO A RATE EXCEEDING $2,500 PER ANNUM. THUS, ALL SALARY PAID TO HIM SUBSEQUENT TO THAT DATE WAS WITHOUT AUTHORITY OF LAW AND APPROPRIATE ACTION SHOULD BE TAKEN TO SECURE A REFUND THEREOF. SEE 21 COMP. GEN. 38; ID. 1129.

ALTHOUGH THE CIVILIAN EMPLOYMENT IN THE INSTANT CASE IN EFFECT WAS TERMINATED BY OPERATION OF LAW ON JULY 1, 1946--- THE DATE THE CIVILIAN SALARY WAS INCREASED TO A RATE IN EXCESS OF $2,500 PER ANNUM--- IN VIEW OF THE RECITED FACTS IT REASONABLY MAY BE CONCLUDED THAT THE DATE ON WHICH THE EMPLOYEE ACTUALLY WAS SEPARATED FROM THE ROLLS ( DECEMBER 21, 1949) MAY BE REGARDED AS CONTROLLING IN DETERMINING HIS RIGHT TO BE RETURNED AND TO HAVE HIS DEPENDENTS AND HOUSEHOLD EFFECTS RETURNED TO THE UNITED STATES AT GOVERNMENT EXPENSE. ACCORDINGLY, UNDER THE PROVISIONS OF SECTION 7 OF THE SAID ACT OF AUGUST 2, 1946, SUCH RETURN TRANSPORTATION MAY BE AUTHORIZED BY YOUR COMMISSION AND THE EXPENSES THEREOF PAID FROM APPROPRIATED FUNDS, PROVIDED, OF COURSE, THAT SUCH RIGHT TO RETURN BE EXERCISED BY THE EMPLOYEE WITHIN A REASONABLE TIME AFTER HE WAS DROPPED FROM THE ROLLS. COMPARE 28 COMP. GEN. 285.