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B-237117, Jul 12, 1991

B-237117 Jul 12, 1991
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Is applicable to retired Air Force officers coaching under personal services contracts with the Air Force Academy Athletic Association. 2. To retired Air Force officers providing full-time coaching services under contract with the Air Force Academy Athletic Association (AFAAA). /2/ We conclude that the restrictions are applicable. Gugat all retired from the Air Force between 1983 and 1987 and were qualified for retired pay. Vouchers have been submitted for a refund of the amount that was deducted. Were renewed for multiple year terms thereafter. Majors Minton and Baugman were each initially awarded multiple year contracts. Sec. 5532(b) because they have not been officially appointed as employees of the government.

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B-237117, Jul 12, 1991

MILITARY PERSONNEL - Pay - Dual compensation restrictions - Applicability - Personal services DIGEST: 1. The Dual Compensation Act, 5 U.S.C. Sec. 5531 et seq. (1988), is applicable to retired Air Force officers coaching under personal services contracts with the Air Force Academy Athletic Association. 2. Coaches with the Air Force Academy Athletic Association who initially occupy their positions under personal services contracts which terminate in 1 year or less qualify for the 30-day exception from dual compensation deductions for temporary employees at 5 U.S.C. Sec. 5532(d)(2).

Major William R. Minton et al., USAF (Retired):

This action responds to a request for a decision on the applicability of restrictions under the Dual Compensation Act, 5 U.S.C. Sec. 5531 et seq., to retired Air Force officers providing full-time coaching services under contract with the Air Force Academy Athletic Association (AFAAA). /2/ We conclude that the restrictions are applicable.

Background

Majors William R. Minton, Richard H. Enga, Richard W. Baughman and Richard F. Gugat all retired from the Air Force between 1983 and 1987 and were qualified for retired pay. After their retirements they each accepted positions as Head Basketball Coach, Assistant Football Coach, Head Wrestling Coach, and Head Tennis Coach respectively under personal services contracts with the AFAAA, a non-appropriated fund activity supervised by the Superintendent of the Air Force Academy. See 42 Comp.Gen. 73 (1962).

Minton, Enga and Baugman each had their retired pay reduced under 5 U.S.C. Sec. 5532(b), which provides for reductions in military retired pay for officers who simultaneously hold "positions" in the U.S. government and receive military retired pay. Vouchers have been submitted for a refund of the amount that was deducted. Gugat's retired pay has not previously been reduced for dual compensation purposes, but now also faces adjustment. Majors Enga and Gugat's initial contracts each ran for a period of 1 year or less, but were renewed for multiple year terms thereafter. Majors Minton and Baugman were each initially awarded multiple year contracts.

Based on our decision in Matter of Military Retirees, B-231565, November 14, 1988, AFAFC contends that the coaches do not hold "positions" for the purposes of 5 U.S.C. Sec. 5532(b) because they have not been officially appointed as employees of the government, and that reductions in retired pay for dual compensation purposes were therefore improper. AFAFC also asks whether Majors Enga and Gugat qualify for the 30-day exemption from deductions under 5 U.S.C. Sec. 5532(d)(2) because their initial contracts did not exceed 1 year and therefore they should be considered "employed on a temporary basis."

Persons employed through normal procedures in coaching and other positions in AFAAA, and similar organizations are subject to dual compensation restrictions. 42 Comp.Gen. 73 (1962). In B-200240, May 5, 1981, we determined that a military retiree employed as a basketball coach under a personal service contract by the Army Athletic Association, a similar non-appropriated fund activity, was subject to dual compensation restrictions. In that case, the right of government officials to supervise the duties of the coach was determinative in establishing that the coach occupied a "position" in the government even though other indicia of employment had been removed through the contract between the coach and the Association. We find nothing here to require a different result.

In Military Retirees, supra, we found that retired military and naval personnel who entered into contracts with the government under the authority of 10 U.S.C. Sec. 1091 to provide health care services were not subject to reductions in their retired pay under the dual compensation restrictions. Prior to the enactment of 10 U.S.C. Sec. 1091, the Army and the Air Force could contract with civilian physicians to provide non- personal services in military medical facilities. The law now permits all military services to contract with physicians and other direct health care providers on both a personal and non-personal service basis. These contracts are necessary when in house sources are insufficient to provide the needed medical care. DOD Instruction 6025.5, Feb. 27, 1985.

The distinction between the contract matter and Military Retirees is the authority given by 10 U.S.C. Sec. 1091 as noted in the decision's concluding sentences:

"the services of the health care personnel here in question have been obtained by contracts properly authorized under 10 U.S.C. Sec. 1091. The health care personnel do not hold established positions in the government."

Regarding the applicability of the 30-day exemption from deductions under 5 U.S.C. Sec. 5532(d), we have interpreted the phrase "employed on a temporary basis" as used in 5 U.S.C. Sec. 5532(d)(2) as "employment for a definite period of time of 1 year or less." 46 Comp.Gen. 366 (1966). We find that occupation of a "position" in the federal government under 5 U.S.C. Sec. 5531(2) for a definite period of time of 1 year or less qualifies persons working under personal services contracts for the 30-day exception from dual compensation deductions under 5 U.S.C. Sec. 5532(d)(2). Nothing in the subsequent extension of Major Enga and Major Gugat's contracts beyond 1 year overrides the temporary character of the initial relationship. Therefore, Majors Enga and Gugat are qualified for 30-day exemptions due to the temporary character of their first contracts with AFAAA.

The questions submitted are answered. The vouchers will be retained by the General Accounting Office.

/1/ This case was submitted for decision by the Chief, Accounting and Finance Division, Directorate of Resource Management, Air Force Accounting and Financing Center (AFAFC) through the Associate Deputy Assistant Comptroller for Accounting and Finance of the Air Force, and has been assigned submission number DO-AF-1495 for control purposes.

/2/ In contrast, in 54 Comp.Gen. 521 (1984), we found that an employee of the Naval Academy Athletic Association was not subject to the Dual Compensation Act because that group is purely voluntary organization not required by law or regulation to function under the Navy's jurisdiction, and therefore could not be regarded as a nonappropriated fund instrumentality of the federal government. See also 45 Comp.Gen. 289 (1965) (same conclusion with respect to the Marine Corps Association).

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