B-148353, JUN. 9, 1964
Highlights
YOUR CIVILIAN EMPLOYMENT WAS TERMINATED ON JUNE 22. WAS PROHIBITED FROM HOLDING A CIVILIAN OFFICE UNDER THE FEDERAL GOVERNMENT BY REASON OF SECTION 2 OF THE ACT OF JULY 31. IN RECOMMENDING TO CONGRESS THE PROPOSED BILL WHICH WAS ENACTED AS PRIVATE LAW 88-9. SUCH OFFICERS WERE ALWAYS SUBJECT TO THE PROVISIONS OF THAT ACT. THE FACT THAT THROUGH A MISUNDERSTANDING OF THE LAW YOU AND OTHER RETIRED OFFICERS WERE ILLEGALLY EMPLOYED DOES NOT RELIEVE OUR OFFICE OF OUR RESPONSIBILITY TO TAKE APPROPRIATE ACTION TO INSURE THAT EXPENDITURES OF GOVERNMENT FUNDS CONFORM TO THE PURPOSES EXPRESSED BY CONGRESS. WAS RENDERED. THE EXTENT TO WHICH THE 1894 ACT WAS BEING MISINTERPRETED ADMINISTRATIVELY WITH RESPECT TO RETIRED TEMPORARY WARRANT OFFICERS WAS NOT KNOWN.
B-148353, JUN. 9, 1964
TO CHIEF WARRANT OFFICER HAROLD E. JOHNSON, RETIRED:
YOUR LETTER OF APRIL 23, 1964, ADDRESSED TO THE PRESIDENT, RELATIVE TO WHAT YOU REGARD AS DISCRIMINATION AGAINST YOU AS A RETIRED CHIEF WARRANT OFFICER OF THE UNITED STATES ARMY, HAS BEEN FORWARDED TO OUR OFFICE FOR REPLY.
YOU STATE THAT FOLLOWING YOUR RETIREMENT FROM THE ARMY IN 1960 YOU ACCEPTED APPOINTMENT AS A CIVILIAN EMPLOYEE IN THE OFFICE OF THE SURGEON GENERAL, UNITED STATES PUBLIC HEALTH SERVICE, ON SEPTEMBER 18, 1961. YOUR CIVILIAN EMPLOYMENT WAS TERMINATED ON JUNE 22, 1962, IN ACCORDANCE WITH OUR DECISION OF JUNE 6, 1962, B-148353, IN WHICH WE HELD THAT A TEMPORARY CHIEF WARRANT OFFICER OF THE ARMY OF THE UNITED STATES, RETIRED UNDER AUTHORITY OF 10 U.S.C. 1293, WAS PROHIBITED FROM HOLDING A CIVILIAN OFFICE UNDER THE FEDERAL GOVERNMENT BY REASON OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, UNLESS HE CAME WITHIN A SPECIFIC STATUTORY EXCEPTION. THE ACT OF JUNE 21, 1963, PRIVATE LAW 88-9, WAIVED APPLICATION OF SECTION 2 OF THE 1894 ACT WITH RESPECT TO YOU AND MR. ROBERT O. NELSON, A FORMER EMPLOYEE OF THE BUREAU OF OLD-AGE AND SURVIVORS INSURANCE, SOCIAL SECURITY ADMINISTRATION, WITH RESPECT TO THE SERVICE THERETOFORE PERFORMED BY EACH OF YOU IN GOOD FAITH, THE PERIOD OF YOUR SERVICE BEING SHOWN AS SEPTEMBER 18, 1961, TO JUNE 22, 1962, INCLUSIVE. HOWEVER, THAT ACT CONTAINED NO PROSPECTIVE WAIVER OF THE DUAL OFFICE ACT.
THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE REPORTED THAT MR. NELSON HAD BEEN RETIRED FROM ACTIVE SERVICE AS A CHIEF WARRANT OFFICER, W-4, ARMY OF THE UNITED STATES, WITHOUT COMPONENT, FOR LENGTH OF SERVICE UNDER 10 U.S.C. 1293 AND THAT HE HAD NEVER SERVED AS A MEMBER OF THE REGULAR ARMY OR OF A RESERVE COMPONENT. THE SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, IN RECOMMENDING TO CONGRESS THE PROPOSED BILL WHICH WAS ENACTED AS PRIVATE LAW 88-9, STATED THAT YOUR SERVICE PARALLELED THAT OF MR. NELSON.
CONTRARY TO YOUR BELIEF, OUR DECISION OF JUNE 6, 1962, B-148353, DID NOT PLACE TEMPORARY ARMY OF THE UNITED STATES WARRANT OFFICERS UNDER THE RESTRICTION OF THE DUAL OFFICE ACT. SUCH OFFICERS WERE ALWAYS SUBJECT TO THE PROVISIONS OF THAT ACT. THE FACT THAT THROUGH A MISUNDERSTANDING OF THE LAW YOU AND OTHER RETIRED OFFICERS WERE ILLEGALLY EMPLOYED DOES NOT RELIEVE OUR OFFICE OF OUR RESPONSIBILITY TO TAKE APPROPRIATE ACTION TO INSURE THAT EXPENDITURES OF GOVERNMENT FUNDS CONFORM TO THE PURPOSES EXPRESSED BY CONGRESS, AS PROVIDED IN SECTIONS 304 AND 312 OF THE ACT OF JUNE 10, 1921, CH. 18, 42 STAT. 24, 31 U.S.C. 44, 53.
AT THE TIME THE DECISION OF JUNE 6, 1962, WAS RENDERED, THE EXTENT TO WHICH THE 1894 ACT WAS BEING MISINTERPRETED ADMINISTRATIVELY WITH RESPECT TO RETIRED TEMPORARY WARRANT OFFICERS WAS NOT KNOWN. WHEN THE MATTER WAS BROUGHT MORE FULLY TO LIGHT IN CONNECTION WITH MATTERS CONSIDERED IN CONNECTION WITH OUR SIMILAR DECISION OF APRIL 2, 1963, B 141989, AND PROPOSED RELIEF LEGISLATION WAS INTRODUCED COVERING ALL THE RETIRED TEMPORARY WARRANT OFFICERS AFFECTED BY OUR DECISION OF APRIL 2, 1963, TOGETHER WITH OTHER LEGISLATIVE PROPOSALS RELATING TO DUAL OFFICE AND DUAL COMPENSATION MATTERS GENERALLY (INCLUDING REPEAL OF THE 1894 ACT), IT WAS CONCLUDED THAT THE BEST INTERESTS OF THE GOVERNMENT WOULD BE SERVED BY TAKING NO ACTION TO IMPLEMENT OUR DECISION UNTIL THE CONGRESS HAD AN OPPORTUNITY TO CONSIDER SUCH PROPOSED LEGISLATION. WE SO ADVISED THE SECRETARY OF DEFENSE BY LETTER OF MAY 17, 1963, B-141989. OUR CONCLUSION TO DEFER IMPLEMENTATION OF OUR DECISION WAS BASED PRIMARILY ON LEGISLATIVE PROPOSALS WHICH HAD NOT BEEN FORMULATED WHEN YOU WERE EMPLOYED BY THE GOVERNMENT.
THERE IS NOW PENDING BEFORE THE CONGRESS, H.R. 7381, A BILL TO SIMPLIFY, MODERNIZE AND CONSOLIDATE THE LAWS RELATING TO THE EMPLOYMENT OF CIVILIANS IN MORE THAN ONE POSITION AND THE LAWS CONCERNING THE CIVILIAN EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES. THAT BILL CONTAINS A RELIEF PROVISION COVERING RETIRED TEMPORARY ARMY OF THE UNITED STATES WARRANT OFFICERS AS WELL AS A PROVISION TO REPEAL THE 1894 ACT. IF RELIEF LEGISLATION IS NOT ENACTED BY CONGRESS, THE OFFICERS AFFECTED BY OUR DECISION OF APRIL 2, 1963, WILL BE SUBJECT TO SEPARATION AND COLLECTION ACTION. SINCE THE ACT OF JUNE 21, 1963, RELIEVED YOU FROM THE REQUIREMENT FOR REPAYMENT OF THE CIVILIAN SALARY ILLEGALLY RECEIVED BY YOU, IT APPEARS THAT YOU ARE, TO THAT EXTENT, IN A BETTER POSITION THAN SUCH OFFICERS AND THAT YOU HAVE RECEIVED PREFERENTIAL TREATMENT OVER THE MANY OTHER OFFICERS IN SIMILAR CIRCUMSTANCES WHO HAVE BEEN REQUIRED TO REPAY THE AMOUNTS RECEIVED BY THEM AS CIVILIAN SALARY.