B-154169, MAY 15, 1964

B-154169, MAY 15, 1964

TO CHIEF WARRANT OFFICER TERRENCE P. WHEATLEY, AUS, RETIRED:

REFERENCE IS MADE TO LETTER DATED MAY 12, 1964, FROM THE HONORABLE DANIEL B. BREWSTER, UNITED STATES SENATE, REGARDING THE APPLICATION OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, IN YOUR CASE.

THE CITED PROVISIONS OF LAW ARE AS FOLLOWS (QUOTING FROM 5 U.S.C. 62):

"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, AIR FORCE, 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, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR 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.'

IT APPEARS THAT YOU WERE RETIRED WHILE SERVING ON ACTIVE DUTY AS A TEMPORARY CHIEF WARRANT OFFICER (W-3), ARMY OF THE UNITED STATES WITHOUT COMPONENT, FOR YEARS OF SERVICE, UNDER 10 U.S.C. 1293, EFFECTIVE NOVEMBER 1, 1959, AND THAT YOU ALSO HELD A COMMISSION AS CAPTAIN IN THE UNITED STATES ARMY RESERVE, INACTIVE, AT THE TIME. IT FURTHER APPEARS THAT YOUR PRIMARY INTEREST IN THIS MATTER CONCERNS YOUR RIGHT TO ACCEPT AN APPOINTMENT AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT AT EDGEWOOD ARSENAL, MARYLAND, SINCE YOUR CURRENT EMPLOYMENT IS BEING TERMINATED DUE TO A REDUCTION IN FORCE EFFECTIVE MAY 17, 1964.

WHILE THE CONGRESS HAS ENACTED LAWS EXEMPTING A NUMBER OF CLASSES OF PERSONS FROM THE DUAL EMPLOYMENT RESTRICTIONS OF THE 1894 ACT, NO PROVISION OF LAW HAS BEEN FOUND WHICH EXTENDS SUCH EXEMPTION TO A MEMBER WHO WAS RETIRED AS A TEMPORARY WARRANT OFFICER, ARMY OF THE UNITED STATES WITHOUT COMPONENT, FOR YEARS OF SERVICE. UNDER THE PROVISIONS OF 10 U.S.C. 3448 (C) (2), TEMPORARY WARRANT OFFICERS ARE GRANTED THE BENEFITS OF ALL LAWS AND REGULATIONS APPLICABLE TO RETIREMENT, PENSIONS AND DISABILITY OF "MEMBERS OF THE ARMY ON ACTIVE DUTY.' SUCH PROVISIONS OF LAW DO NOT PURPORT TO GRANT ANY ADDITIONAL RIGHTS TO SUCH A TEMPORARY WARRANT OFFICER AFTER HE RETIRES, EVEN THOUGH HE MAY HAVE HAD AN INACTIVE RESERVE STATUS AT THE TIME. IN CONTRAST, SECTION 29 (D) OF THE ACT OF AUGUST 10, 1956, CH. 1041, 70A STAT. 632, 5 U.S.C. 30R (D), EXEMPTS MEMBERS WHO ARE RETIRED AS RESERVE OFFICERS, INCLUDING RETIRED RESERVE WARRANT OFFICERS, FROM THE DUAL EMPLOYMENT RESTRICTIONS OF THE 1894 ACT. IT FOLLOWS THAT IF A MEMBER IS RETIRED FOR YEARS OF SERVICE UNDER 10 U.S.C. 1293 IN THE STATUS OF A TEMPORARY WARRANT OFFICER, ARMY OF THE UNITED STATES WITHOUT COMPONENT, HIS PRESENT EMPLOYMENT BY THE FEDERAL GOVERNMENT IS CONTRARY TO THE CITED 1894 ACT. A SIMILAR CONCLUSION HAS BEEN REACHED BY THE COURT OF CLAIMS WITH RESPECT TO A RETIRED REGULAR WARRANT OFFICER. SEE RAINS V. UNITED STATES, CT.CL. NO. 114-60, DECIDED FEBRUARY 6, 1963.

IT APPEARING THAT YOU WERE SERVING ON ACTIVE DUTY AS A TEMPORARY WARRANT OFFICER (W-3) ON OCTOBER 31, 1959, AND WERE RETIRED IN, AND DRAW RETIRED PAY BASED ON THAT STATUS, AS INDICATED BY THE COPY OF YOUR RETIREMENT ORDERS DATED OCTOBER 8, 1959, THE PROVISIONS OF THE 1894 ACT OPERATE AS A BAR TO YOUR APPOINTMENT AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT UNLESS THE POSITION INVOLVED DOES NOT CONSTITUTE AN "OFFICE" WITHIN THE MEANING OF THE 1894 ACT BY REASON OF OTHER STATUTORY PROVISIONS. SEE B-141989, APRIL 2, 1963, COPY ENCLOSED. THERE IS NO INDICATION THAT THE POSITION TO WHICH YOU DESIRE TO BE APPOINTED AT EDGEWOOD ARSENAL DOES NOT CONSTITUTE AN OFFICE WITHIN THE MEANING OF THAT ACT. WHILE WE ADVISED THE SECRETARY OF DEFENSE ON MAY 17, 1963, B-141989, COPY ENCLOSED, THAT THIS OFFICE WOULD NOT REQUIRE IMMEDIATE REMOVAL FROM CIVILIAN EMPLOYMENT OF TEMPORARY WARRANT OFFICERS ALREADY APPOINTED IN VIOLATION OF THE 1894 ACT, NO SUCH APPOINTMENTS THEREAFTER WERE OR COULD HAVE BEEN AUTHORIZED.

FOLLOWING OUR DECISIONS MENTIONED ABOVE, THE DEPARTMENT OF THE ARMY ADOPTED THE POLICY OF REFRAINING FROM APPOINTING TO A CIVILIAN POSITION WITH THE GOVERNMENT ANY PERSON WHOSE SITUATION CAME WITHIN THE PURVIEW OF THOSE DECISIONS. NOTICE OF THAT POLICY WAS CONVEYED TO THE DIFFERENT MILITARY INSTALLATIONS BY DEPARTMENT OF THE ARMY MESSAGE 338872, DATED MAY 23, 1963. IT APPEARS THAT IN VIEW OF SUCH POLICY THE APPROPRIATE ARMY AUTHORITIES AT EDGEWOOD ARSENAL WILL NOT APPOINT YOU TO A NEW CIVILIAN POSITION EVEN IF SUCH POSITION IS TO BE FILLED ON MAY 18, 1964. SUCH POLICY IS BASED ON AND REQUIRED BY THE 1894 ACT AND THIS OFFICE MAY NOT SUGGEST THAT IT NOT BE FOLLOWED IN YOUR CASE.