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B-208336 1 (1983-04-22)

handle is hein.gao/gaobadlaw0001 and id is 1 raw text is: THE COMPTROLLER GENERAL OECISION OF THE UNITED STATES WASHINGTON. 0. C. 20548 FILE: B-208336 DATE: April 22, 1983 MATTER OF: Fort Benjamin Harrison - Dual Compensation Act - Appropriated and Nonappropriated Fund Positions - DIGEST: Waiver Act Jurisdiction 1. Individual, who was working for non- appropriated fund activity, accepted a temporary full-time appointment in appropriated fund position and worked two jobs in excess of 40 hours per week. Employee has violated Dual Compensation Act, 5 U.S.C. § 5533(a), by working more than 40 hours per week in two positions as defined under section 5531(2). The test is not whether the positions are paid from appropri- ated funds, but whether the employee worked in positions as defined by the statute which expressly includes posi- tions in a nonappropriated fund instrumentality of the armed forces. 2. When an employee holding one position is appointed to another position in violation of dual compensation laws, a rebuttable presumption arises that the employee intended to give up his first position. The agency must determine from which position the erroneous pay- ments arose. In any event, the indebted- ness is owed to the United States, the collection of which is subject to waiver under 5 U.S.C. § 5584 (1976) and 4 C.F.R. Parts 91 and 92 (1982). The issue presented is whether an individual who is employed by the Department of the Army in both an appropri- ated fund position and a nonappropriated fund position at Fort Benjamin Harrison, Indiana, is in violation of the Dual Compensation Act, 5 U.S.C. § 5533(a). We hold that where an individual works in two positions for a total of more than 40 hours in a calendar week, he or she is in violation of the Dual Compensation Act, even though the salary of one position is paid from nonappropriated funds. ---%/J

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