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B-133972 1 (1973-04-16)

handle is hein.gao/gaobaadwq0001 and id is 1 raw text is: 4A..t' -'- 4 COMPTROLLER GEHERAL OF THE UNITED TATE15 WASHINGTON. D.C 0541 44 )-3133972 Aprtl 16, 197336r' The M1onorable Arthur F. Sapson Actina Administrator General Services Administration Dear Kr, Sampson: Wle refer to the lotter of Septembpr 27, 1972, isned by you as Acting Administrator of General Services and lire Rupsiell' Eprin, Chairian of the Council on Envirovnental quality, ponccrning tle allomnce of .$420,86- -a competsation -t ,tohnJbJU eevrJ , during -period 'of t tem- porary intermittont emaployren~by the Council nn Enviroirnentnl Quality. Prior to the payment of nny compensation br oervces rendered it was discovered that an administrative error had been adae in making the ap- pointment to the civilian position inasmuch as , Wilmer was at that time on active duty as an enlisted member of the United States Navy. You recognize the well established rule that &' person op active duty tn the military forces of the United States may not. bt e4ployed to per- form cervices an a civilian employee of the Governmnt and that any member who by mistako or otherwise is so employed may not receaive the compensation of the civilian position. See 49 Comp, Gen. 444 (1970). However, you have submitted the question of paying Hr. Wilmor for the civilian services he pertormed for oil consideration in view of the fact that waiver of col- lection 4ction under 5 USC9 5584 would have been possible had the con- pensation in question been paid, You indicate thit GSA would havo authorized a waiver in this case since the total amount involved vau less than $500, since lie. Wilmer lid not wate a secret of the fact that he was on active military duty at he time of his employment, and since you consider Out collection of an tmount paid would have been against equity and good con- science and not in the interest of the United States. You feel that the discovery of Hr. lilner's erroncous appointment before any ct-rpensation had been paid to hirm for the services rendered shvuld not justify placing him in a worse position titan would have been the case had corapnsation been paid to him for such services. It is the poition of this Office that without regard to the pro- visions of 5 U.S.C. 5584, a nezber of the arned forces on active duty who ia mistakenly employed for service in a civilian capacity is entitled to retain any payments he has received for services performed under the rule applicable to do facto employnent. Compare 30 Conp, Gen. 175 (1958), 40 id. 51 (1960).,-Howver, under the do fncto rule the individuvl involved BEST DOCUMENT AVAILARLP . 7•-.

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