(B-38691)

RETIRED ARMY WARRANT OFFICER HOLDING CIVILIAN POSITIONSALARY LIMITATIONS

The reclassification of a position, which is finally consummated, from grade CAF-6, $2300 per annum, to grade CAF-7, $2600 per annum, may not be regarded as void merely because the incumbent, a retired Army warrant officer, is prohibited by the dual compensation statute of July 31, 1894, as amended, from receiving salary in a civilian position at the rate of $2500 or more per annum, and, therefore, the said retired warrant officer may not be deemed to have continued in grade CAF-6 after the reclassification but, rather, he is required to refund the entire amount of salary paid in grade CAF-7 at the rate of $2600 per annum. 21 Comp. Gen. 38, distinguished.

A retired Army warrant officer who has been appointed to a civilian position and has received the salary thereof at a rate in excess of $2500 per annum, in contravention of the dual compensation statute of July 31, 1894, as amended, may not elect to retain the salary of the civilian position and refund his retired pay for the period involved, but, rather, the civilian salary paid must be refunded.

The words "salary or annual compensation" as used in the dual compensation statute of July 31, 1894, as amended, which provides that "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 *" refer to basic compensation of $2500 per annum, which is exclusive of overtime compensation authorized to be paid under the War Overtime Pay Act of 1943.

* *

Comptroller General Warren to the Secretary of War, December 16, 1943:

I have your letter of November 29, 1943, as follows:

It has come to my attention that on November 1, 1942, Joseph R. Tudor was appointed to a civilian position in the field service of the War Department, CAF-6, $2,300 per annum. Mr. Tudor is a retired warrant officer who was retired on account of age; his retired pay is less than $2,500 per annum. He was not retired on account of commissioned service. On March 16, 1943, the position which Mr. Tudor held was allocated by administrative action to CAF-7, $2,600 per annum, and an attempt was made to reclassify Mr. Tudor to that grade. He has been paid in the civilian position at the rate of $2,600 per annum subsequent to March 16, 1943.

Inasmuch as it has been consistently held that section 2 of the act of July 31, 1894 (28 Stat. 205), as amended (5 U. S. C. 62), prohibits the appointment of Mr. Tudor to a CAF-7 position, it would seem the attempted reclassification was void; that he has continued to retain his status as a civilian employee in grade CAF-6, $2,300 per annum; that he has been overpaid since March 16, 1943; and that he should refund that portion of the salary received in the civilian position subsequent to March 16, 1943, which is in excess of the amount he would have received in grade CAF-6 (see 21 Comp. Gen. 39). If the above is not correct, your advice is requested as to Mr. Tudor's status subsequent to March 16, 1943, and the amount he should refund. It should be stated in this connection that it is desired to continue to utilize the services of Mr. Tudor in grade CAF-6 if it is possible to do so.

In the event your decision is to the effect that Mr. Tudor may be deemed to have continued in grade CAF-6, your advice is requested as to whether overtime paid him in the civilian position under the provisions of the War Overtime Pay Act of 1943 (act of May 7, 1943, Public Law 49, 78th Cong.) is "salary or annual compensation" attached to the office within the meaning of those words as used in the act of July 31, 1894, supra (see in this connection your decision B-32233, dated February 12, 1943).

As Mr. Tudor is still employed under the above circumstances, an early decision will be appreciated.

The decision of July 16, 1941, 21 Comp. Gen. 38, 39, to which you refer, held as follows:

Section 2 of the act of July 31, 1894, as amended, 5 U. S. C. 62, provides as follows:

"62. Holding other lucrative office.-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 re tired for any cause, and retired officers of the Army, Navy, Marine Corps, o 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 (July 31, 1894, ch. 174, sec. 2, 28 Stat. 205; May 31, 1924, ch. 214, 43 Stat. 245; July 30, 1937, ch. 545, sec. 6, 50 Stat. 549, and June 25, 1938, ch. 694, sec. 1, 52 Stat. 1194)."

As James E. Young was retired as a warrant officer of the Army on account of age, his appointment and promotion to a civilian position with salary of $2,600 per annum effective October 25, 1940, would have been, as you state, in contravention of the dual compensation act of July 31, 1894, as amended, supra-there being for noting that the exception therein specified applies to officers only when retired for disability.

The dual payment at the rate of $2,000 per annum in his civilian position and at the rate of $1,665 per annum retired pay was not in contravention of section 6 of the act of May 10, 1916, as amended by the act of August 29, 1916, 39 Stat. 582; nor was it in contravention of section 212 of the Economy Act approved June 30, 1932, 47 Stat. 406, if, as appears, he was not retired on account of commissioned service. See 16 Comp. Gen. 332.

If, as reported, the appointment and promotion to $2,600 per annum was never consummated by the payment of salary at that rate, but rather, the employee was continued at the rate of $2,000 per annum in his civilian position, there would be no legal objection to a correction of the record to show cancellation of the promotion to $2,600 per annum; in which event the payment of his retired pay for the period here in question would be authorized, provided, of course, that his retired pay is not computed upon any period of commissioned service.

The rule stated in that case was based solely upon the facts there involved indicating that the reallocation of the position had never been consummated and that there was involved merely the clearing of the record of an incompleted administrative action. The rule stated in that case may not be applied in the instant case where it is clear that the reallocation of the position was finally consummated. The reclassification or reallocation of a position based upon the duties and responsibilities thereof, which is finally consummated, may not be regarded as void simply because of the fact that the incumbent of the position happens to be a retired warrant officer of the Army who, in the light of the decision quoted, infra, would be prohibited by operation of the 1894 statute from holding the position at the higher salary rate after reallocation.

In decision of October 17, 1921, 1 Comp. Gen. 219, 220, it was stated: The United States Supreme Court has held that public policy prohibits any attempt by unauthorized agreement with an officer of the United States, under guise of a condition or otherwise, to deprive him of the right to pay given by statute. Glavey v. United States, 182 U. S., 595. United States v. Andrews, 240 U. S., 90. Any attempt on the part of Col. Davis to relinquish his retired pay and restrict himself to the right to compensation as special assistant only would be ineffective for that purpose. As to the right of election between military pay fixed by statute and a civilian salary, see also, 23 Comp. Dec., 62.

See, also, 14 Comp. Gen. 289.

Hence, in line with said decision, Mr. Tudor may not elect to refund his retired pay but must refund the salary received in his civilian position for the period from and after March 16, 1943, the date of reallocation requiring the payment of the minimum salary rate of grade CAF-7, $2,600 per annum. Mr. Tudor may not be retained in a position in grade CAF-7, the minimum salary rate of which is $2,600 per annum but he may be appointed to and hold a civilian position in grade CAF-6 or lower, with a basic salary rate of less than $2,500 per annum.

your let

Referring to the question in the penultimate paragraph of your ter, while Mr. Tudor may not be deemed as having continued in grade CAF-6, nevertheless, if he should be appointed to, and should hold a position in grade CAF-6, you are advised that the words "salary or annual compensation" as used in the act of July 31, 1894, refer to basic compensation of $2,500 per annum exclusive of overtime compensation authorized to be paid under the War Overtime Pay Act of 1943, approved May 7, 1943, 57 Stat. 75, Public Law 49. Compare decision of February 12, 1943 (B-32233), 22 Comp. Gen. 795, to which you refer, and the decisions therein cited.

(B-38892)

TRAVELING EXPENSES-TEMPORARY OFFICIAL DUTY BY EMPLOYEES TRANSFERRED TO PRIVATE INDUSTRY UNDER WAR SERVICE REGULATIONS

Although the war service regulations with respect to Federal employees carried in a leave-without-pay status while serving in private industry confer no right in the employee to be returned to his former official station for a period of official duty, nevertheless, if such an employee whose services are needed for a short period in his former position will agree to serve as a private party without compensation, he may be reimbursed his expenses of travel to and from his former official station, either on an actual expense basis or in accordance with the Standardized Government Travel Regulations as may be agreed upon in advance.

Whether an administrative office requiring the temporary services of a former employee carried in a leave-without-pay status in his Federal position while serving in private industry in accordance with war service regulations is authorized or required to restore the employee to official duty during the period of his temporary services is an administrative matter, and not for consideration by this office, but should he be restored to his former position and paid salary, he must bear the cost of returning to duty at his former official station.

Comptroller General Warren to the President, United States Civil Service Commission, December 18, 1943:

I have your letter of December 13, 1943, as follows:

Pursuant to the provisions of Section 4 of War Service Regulation No. IX, promulgated under authority contained in Executive Order 9063, and War Manpower Commission Directive X, an employee of the Civil Service Commission was transferred to private industry. Under the terms of the regulation

mentioned, the conditions of the transfer provided reemployment_rights for the employee, and he has since been carried on the rolls of the Commission in a leave-without-pay status. The employee formerly was stationed in Washington, D. C.; however his travel to California to accept his new position did not involve expense to the Government.

Conditions have arisen which make it administratively desirable that this employee be requested to return to his official duty station in the Central Office of the Civil Service Commission in Washington, D. C., for a short period of time. His presence would be of material assistance in carrying on work with which he is familiar. However, the question arises as to whether the Commission is authorized to pay the cost of his transportation from California to Washington, D. C., and return, and the usual subsistence expenses en route to and from Washington. The travel is to be performed solely for the benefit of the Government, and at its request.

This does not appear to be a question of paying the cost of the employee's return to duty from a period of leave, as it is contemplated that his return to duty will be for a short period of time after which he will return to his position in private industry. The Commission can find no precedent covering the questions here involved. Accordingly, it would be very much appreciated if you would advise the Commission with reference to the following questions: 1. Under the conditions recited above is the Civil Service Commission authorized to defray, from appropriated funds, the cost of the employee's travel expenses to and from Washington, including the usual allowances provided for in the Standardized Government Travel Regulations?

2. Is the Commission authorized, or required to restore the employee to active duty and pay from the time he leaves his present residence for travel to Washington until the time he returns thereto after completing his assignments?

As it is planned to request the employee to visit Washington on January 19, 1944, your early decision will be appreciated.

I have examined carefully the War Manpower Commission Directive X and the War Service Regulation No. IX, but I find nothing therein having any bearing upon the matter presented. While said documents authorize certain reemployment benefits to an employee who enters private industry, they do not provide any right in the employee to be returned to his official station for official duty either for a short or long period while he is working for a private employer during which period he is required by the regulations to be carried in a leave without pay status in his Federal position. Even under the reemployment benefits provided for by the regulations, if and when such employee returns to official duty in his old position and at his former official station from furlough or leave without pay he is not relieved from bearing the expense of reporting for duty. It has been held that return from a furlough or leave without pay status is tantamount to reporting to the employee's first duty station and that the cost of such return must be borne by the employee. 14 Comp. Gen. 871; 17 id. 183; 21 id. 398; decision of September 4, 1936, A-79195. Compare decision of October 2, 1940, B-12385; 22 Comp. Gen. 825; 16 Comp. Gen. 481; 20 id. 322; and decision of July 14, 1937, A-86481.

However, there would appear to be no legal objection to regarding the former employee here involved as a private party during the period he is employed in private industry for the purpose for which his services are sought by the Commission. And, on that basis, if the Civil Service Commission actually has need of his services in such

a capacity in order to perform the duties imposed by law upon the Commission and for which its appropriations for traveling expenses are available, and he is willing to serve the Commission for a short period in that capacity without compensation, he may be reimbursed for his transportation and traveling expense from the place where he is working to Washington, D. C., his former official station, and return, under an agreement entered into in advance so providing for reimbursement of such expenses. See 3 Comp. Gen. 590; 8 id. 465; 21 id. 29, 409, 610.

Accordingly, referring to question 1, the former employee may be reimbursed his transportation and subsistence expenses under the conditions above set forth, either on an actual expense basis or in accordance with Standardized Government Travel Regulations as may be agreed upon in advance.

Referring to question 2, whether the Civil Service Commission is authorized or required to restore the employee to official duty is, of course, an administrative matter not for the consideration of this office. However, should he be restored to his former position and paid salary by the Commission he must bear the cost of returning to duty at his former official station, Washington, D. C.

(B-37986)

PAY-AVIATION DUTY-SCOPE OF RELIEF FROM FLIGHT REQUIREMENTS DURING PERIOD OF INCAPACITY FOR FLYING

Under section 10 of Executive Order No. 9195, specifying the conditions under which flight deficiencies in one period may be made up in a succeeding period and the conditions entitling personnel to aviation pay while incapacitated for flying, the 3-month period during which flights are not required of an Army officer who was injured in an aviation accident before meeting the flight requirements for the month in which injured includes the month of injury and subsequent months, but the officer is not relieved from the performance of flights necessary to qualify him for aviation pay for the month preceding the month of injury.

Assistant Comptroller General Yates to Capt. C. D. Elling, U. S. Army, December 20, 1943:

There has been received by endorsement dated October 25, 1943, your letter of September 10, requesting decision whether you are authorized to make payment on a voucher submitted therewith in favor of First Lieutenant Kendrick R. Bragg, Jr., AC, AUS, covering aviation pay for the period April 1 to July 31, 1943.

The certificate of Major Boris M. Zubko, AC, U. S. Army, contained in the file states:

I certify that 1st Lt. KENDRICK R. BRAGG, did not meet flight requirements in the month of April 1943 because he was enroute from combat zone, also he was in a travel status until May 23, 1943 also he was suspended from flying, due to injury received in aircraft accident, from May 24, 1943 to July 2, 1943. Accident occurred in line of duty and not due to his own misconduct.