in effect on 30 September 1949. In a decision dated 13 August 1951, B-102149, 31 Comp Gen 28, 1 Dig Ops, RETIRE § 67.1, a certain officer was held entitled under the fourth paragraph of sec 15 of the Pay Readjustment Act of 1942, 56 Stat 368, to have his disability retirement pay computed at 75 per centum of his active duty pay at the time of his retirement. Held: The officer in question, may now, after the effect of the law has been clarified by the above Comptroller General decision, rescind his prior election and become entitled to retirement pay under the laws in effect at the time of his retirement, as if the prior election had never been made. Such election appears to have been made before the effect of the pertinent statutory provisions was determined and under such circumstances it is concluded that the election may be rescinded. MS Comp Gen B-114649, 33 Comp Gen 71. 11 August 1953.

§ 67.7. Increase or decrease in disability rating.

See JAGA 1953/7865, supra § 31.7.

See Op CCCG 1954/8, supra § 23.1.

§ 69. Service Counted in Computing Retired Pay

§ 69.1. Generally.

Active service as an appointed aviation cadet in the Naval Reserve and Marine Corps Reserve is "service as a member of the uniformed services," within the meaning of sec 412 of the Career Compensation Act of 1949, 63 Stat 824; 37 USC 282; ML 1949, App C, relating to retirement, retirement pay, separation and severance pay for physical disability, and providing that the term "active service" shall be interpreted to mean for the personnel indicated therein "all service as a member of the uniformed services." MS Comp Gen B-98502, 32 Comp Gen 473. 22 April 1953.

Duty without pay under the provisions of sec 240, Armed Forces Reserve Act of 1952 (66 Stat 492; PL 476, 82d Cong.) may be considered the same as like duty with pay for the purpose of determining entitlement to retired pay under Title III, Army and Air Force Vitalization and Retirement Equalization Act of 1948. JAGA 1953/3714. 5 May 1953.

§ 69.5. National Guard service.

Service in the Pennsylvania National Guard between 21 April 1905 and 13 August 1916 is not “active service" for the purpose of determining the percentage factor to be used in computing retired pay under the formula prescribed in method (b) of sec 511 of the Career Compensation Act of 1949, ML 1949, App C. It long has been recognized that the term "active list" when used with reference to members of the uniformed services is used to denote members of the Regular components of such services as distinguished from members of the Reserve components and members on the retired list (see MS Comp Gen B-50542, 20 Aug 1945, 25 Comp Gen 203, 4 Bull. JAG 331; 26 Comp Gen 171). Nor does membership in the National Guard from 21 April 1905 to 13 August 1916 qualify as

active service as otherwise defined in sec 511, i.e., "active duty," "full-time training duty," and "other full-time duty provided for or authorized in the National Defense Act [of June 3, 1916], as amended," "including participation in exercises or performance of the duties provided for by secs 5, 81, 92, 94, 97, and 99 of the National Defense Act [of June 3, 1916], as amended." Under the well settled rules of statutory construction, the specific enumeration of the types of service which may be considered as active service within the purview of sec 511 precludes the view that the inclusion of other types of service not so enumerated was intended. (Distinguishing Price v. U. S., 121 Ct Cl 664, 2 Dig Ops, RETIRE § 51.15. See also 121 Ct Cl 81, 2 Dig Ops, RETIRE § 69.1.) MS Comp Gen B-114910, 33 Comp Gen 118. 11 September 1953.

§ 69.9. Service in Military or Naval Academy.

Cadet service at the United States Military Academy during the period 6 April 1917 to 11 November 1918 is not active service as a member of the military or naval forces of the United States so as to entitle a Regular Army officer retired during the fiscal year 1954 to retired pay under the provisions of the proposed Department of Defense Appropriation Act, 1954 (HR 5969, 83d Congress), by reason of such service. (Citing Gilmartin v. U. S. 109 F Supp 255.) JAGA 1953/5833. 9 July 1953.

§ 69.21. Service in Naval Auxiliary.

A Coast Guard officer had over 31 years creditable service for retirement under sec 433 (f) of Title 14, U. S. Code, and had over 25 years' creditable service for pay purposes under this section. At the time of his retirement he was in receipt of active duty pay of a lieutenant commander with over 22 but less than 26 years' service and he has since been receiving retired pay computed at the rate of 75 per cent of such active duty pay. He requested credit for active service as an engineer officer in the Naval Auxiliary for the period 16 October 1912 to 23 February 1917 so that his retired pay would be computed at the rate of 75 per cent of the pay of a lieutenant commander with more than 26 years' service. Held: The officer is not entitled to have his pay computed on the pay of a lieutenant commander with over 26 or 30 years' service. The service with the Naval Auxiliary may not be considered as creditable service for retired pay purposes, since only service as a civilian employee of the former Bureau of Marine Inspection and Navigation, Bureau of Customs, and the Coast Guard is creditable for pay purposes under sec 433 (f) of Title 14 of the U. S. Code. Nor can such service be considered as military service for the purpose of crediting the officer with 30 years' service, since service with the Naval Auxiliary for the period in question is considered civilian service with the Navy Department. Op CCCG 1952-1. 30 January 1952.

§ 71.1. Generally.

§ 71. Dual Compensation

A warrant officer who was retired as a Chief Quartermaster on twenty years' service under the provisions of 14 USC 355 and certified

as having served satisfactorily as a warrant officer for temporary service and who is receiving retired pay based upon the pay of a warrant officer is not prohibited from holding a civilian position with the United States government and receiving civilian compensation by the so-called Dual Office Statute of 31 July 1894 (5 USC 62) since such statute exempts retired enlisted men and the subject officer was retired as an enlisted man and never held the permanent rank of warrant officer. In this connection it has been held that enlisted members of the Navy who are retired as enlisted men and advanced on the retired list to the rank of a commissioned warrant officer or commissioned officer with the retired pay of such advanced rank, are not subject to the provisions of the 1894 statute for the reason that such enlisted men do not hold the office of a retired officer but rather continue to hold the office of an enlisted man on the retired list. (Citing 26 Comp Gen 271; 25 Comp Gen 521 and 28 Comp Gen 727.)

Held also: Nor was he prohibited from holding such civilian position by the so-called Dual Compensation Statute, sec 212 of the Economy Act of 1932 (5 USC 59a), since this statute applies to persons receiving retired pay for or on account of services as a commissioned officer. Retired pay computed on the basis of a warrant grade, as distinguished from a chief commissioned warrant grade, is not considered as retired pay for or on account of services as a commissioned officer. (Citing 16 Comp Gen 232; 25 Comp Gen 521, 531.) Op CCCG 1953/12. 4 August 1953.

An officer retired for physical disability on 26 October 1943 under the Act of 3 April 1939 (53 Stat 557) as amended (10 USC 456) accepted employment on 1 July 1947 as post librarian at a military reservation, with compensation being paid from the Central Post Fund at a rate in excess of $3000.00 per annum. Held: The officer was "holding a position under the United States Government” within the meaning of section 212 of the Economy Act of 1932 (PL 212, 72nd Congress, 47 Stat 406) as amended by Act of 15 July 1940 (54 Stat 760, 5 USC 59a). The limitations placed on retired pay by section 212 of the Economy Act of 1932, as amended, applies equally to employment whether paid from appropriated or non-appropriated funds so long as the non-appropriated funds are public funds and under the control of the United States government, or its officers, and any employment by an agency or instrumentality of the government, supported, and operated by non-appropriated funds, is nonetheless public by reason of such fact. (Citing 17 Comp Gen 787; 19 Comp Gen 191; 24 Comp Gen 771; 26 Comp Gen 122, 192; 28 Comp Gen 588; 92 Ct Cl 154.) Op JAGAF 1953/14. 231 April 1953.

An officer was retired for a physical disability which was not incurred in combat with an enemy of the United States nor was the result of an explosion of an instrumentality of war in line of duty. He was advised by the Veterans Administration that he was certified by the War Department for retirement pay and the letter set forth the provisions of sec 212 of the Economy Act of 30 June

1932 (PL 212, 72nd Cong, 47 Stat 406), as amended by Act of 15 July 1940 (54 Stat 760, 5 USC 59a). The letter erroneously stated that "The provisions of sec 212 are not applicable in your case, since the War Department states that the disability on which your retirement is predicated was incurred in combat." The officer, allegedly in reliance on the letter and in the belief that he was not subject to the Economy Act, took employment with the United States Coast & Geodetic Survey at a salary in excess of $3,000.

Held that:

-the officer, not falling within any of the provisions excepting him from the operation of the statute, is subject to sec 212 of the Economy Act of 1932, hence was overpaid from the date he accepted civilian employment with the government.

all further retirement pay should be suspended until the officer terminates employment with the governmental agency or his annual rate of compensation from such agency when combined with the retirement pay he is otherwise entitled to receive does not exceed $3,000 per annum.

- the letter from the Veterans Administration in which it was erroneously stated that the provisions of the Act were not applicable in this officer's case does not legally remove the officer from the operation of such statute. The United States cannot be estopped by the unauthorized acts of its agents or officers, or by their mistakes.

- the only policy that may properly be practiced in this and similar cases is to apply the mandatory provisions of the statute (see 30 Comp Gen Dec 525, 526). The Air Force is under no moral obligation to assist retired officers in obtaining some kind of relief in a case like this, notwithstanding how meritorious the case may be. Should the Air Force undertake to intervene in matters which to it appear to have merit and refuse to intervene in others such action could be considered as granting to the former class certain special and exclusive privileges denied the latter, conceivably resulting in greater unfavorable publicity than could possibly occur by reason of applying the law equally to all officers subjected to it.

it is difficult to believe that the officer placed any great reliance, if any, upon the advice contained in the Veterans Administration's letter to the effect that the provisions of sec 212 of the Economy Act did not apply to him because the War Department had stated that the disability on which his retirement was predicated was incurred in combat. He must have known that his disability was not incurred in combat. Op JAGAF 1953/19. 26 May 1953.

Section 2 of the Act of 31 July 1894 (28 Stat 205), as amended (5 USC 62), does not preclude a Reserve officer not on active duty and receiving retired pay under sec 5 of the Act of 31 July 1935 (49 Stat 507), as amended (10 USC 97(b)) from accepting a civilian position with a nonappropriated fund activity, nor would his retired status be affected by such acceptance.

Held also: The restrictions of sec 212 of the "Economy Act” of 30 June 1932 (47 Stat 406), as amended (5 USC 59a) would be applicable to the combined retired pay of the officer and the salary received from such civil position. JAGA 1953/7480. 11 September 1953.

An officer granted retirement pay pursuant to Title III of the Act of June 29, 1948 (62 Stat 1081, 1087), held a civilian position as purchasing agent in the Central Purchasing Office of the Far East Command. This purchasing office was established by the commanding officer of the Far East Command and was under the control and direction of such officer. The purchasing office was engaged in the purchase of commodities and articles for resale to Army and Air Force Central Exchanges, Navy Ships' Stores and Exchanges, etc. Held: While the funds used for the operation of the purchasing office are not appropriated by Congress, and while the salary of the retired officer is not paid from appropriated funds, inasmuch as the purchasing agency is an instrumentality of the United States, under the defense establishment, sec 212 of the Act of 30 June 1932, as amended, 5 USC 59a, is applicable. Accordingly, the officer cannot receive retired pay as a commissioned officer concurrently with compensation for the civilian position. (Citing MS Comp Gen 48550, 21 April 1945, 24 Comp Gen 771, 4 Bull JAG 171; MS Comp Gen B-81552, 17 December 1948, 28 Comp Gen 367, 8 Bull JAG 26.) MS Comp Gen B-118134, 33 Comp Gen 302. 19 January 1954.

§ 71.11. Employment by government contractors.

A retired Army officer requested information with respect to his retired pay should he accept a position with a university which would involve duties in connection with contracts between the school and governmental agencies, the salary for which would be paid from university funds derived partially from the contracts, and the extent to which he could participate in negotiations and other activities involving the contracts. Held: Generally, Federal funds paid to an educational institution pursuant to contract, in the absence of a condition of the contract prescribing the contrary, cease to be Federal funds after they have been receipted for by the institution, and no Federal law precludes a retired officer of the Regular Army employed by the institution from receiving concurrently his retirement pay and the salary paid to him by the institution from such funds. (See 14 Comp Gen 916; 20 Comp Gen 179; 23 Comp Gen 744; 25 Comp Gen 868; 28 Comp Gen 54.)

Held also: A retired officer of the Regular Army, even though not on active duty, is an "officer of the United States" within the meaning of Title 18, United States Code, sec 216, which prohibits such officer from acting in a representative capacity for another in negotiating for, or procuring or aiding to procure, any contract from any officer, department or agency of the United States Government. Section 283 further precludes a retired officer, not on active duty, from acting as an agent or attorney for prosecuting or assisting in the prosecution of any claim against the United States involving any subject matter with which he was directly connected