B-148232, MAR. 7, 1962

B-148232, MAR. 7, 1962

TO THE HONORABLE JOHN W. MACY, JR., CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

ON FEBRUARY 20, 1962, YOU REQUESTED OUR DECISION UPON THE QUESTION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE REEMPLOYMENT AFTER MILITARY SERVICE OF A RETIRED NAVAL OFFICER WOULD BE PRECLUDED BY THE DUAL OFFICE STATUTE OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62. THAT STATUTE READS, IN PERTINENT PART, AS FOLLOWS:

"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 * * *.'

YOU SAY THAT---

"COMMANDER J. P. HOBBS, SC, USN, WAS COMMISSIONED AS A RESERVE IN 1942, LEAVING HIS CIVIL-SERVICE POSITION TO ENTER MILITARY SERVICE. HE WAS TRANSFERRED TO THE REGULAR NAVY IN 1946. HE NOW SAYS THAT HE WILL BE RETIRED FOR YEARS OF SERVICE ON JULY 1, 1962, AND ASKS WHETHER THE DUAL EMPLOYMENT ACT, 5 U.S.C. 62, WILL PREVENT THE EXERCISE OF HIS REEMPLOYMENT RIGHTS.'

DURING THE EARLY 1940S, VARIOUS STATUTES WERE ENACTED GRANTING REEMPLOYMENT BENEFITS TO PERSONS ENTERING THE MILITARY AND NAVAL SERVICE.

SECTION 3 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 859, AS AMENDED, 50 APP. U.S.C. 403, GRANTED REEMPLOYMENT BENEFITS UNDER THE CONDITIONS SPECIFIED THEREIN TO EMPLOYEES OF THE RESERVE COMPONENTS OF THE LAND AND NAVAL FORCES WHO ARE ON ACTIVE DUTY OR WHO MAY BE ASSIGNED TO ACTIVE DUTY AND TO ANY PERSONS SO ORDERED IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES; SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, 50 APP. U.S.C. 308, GRANTED COMPARABLE REEMPLOYMENT BENEFITS TO PERSONS INDUCTED INTO THE LAND OR NAVAL FORCES FOR TRAINING AND SERVICE; SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941, 55 STAT. 627, AS AMENDED, 50 APP. U.S.C. 357, GRANTED REEMPLOYMENT BENEFITS COMPARABLE WITH THOSE PROVIDED INDUCTEES UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, TO ANY PERSON WHO SHALL HAVE ENTERED UPON ACTIVE DUTY AFTER MAY 1, 1940.

SECTION 3 OF THE ACT OF AUGUST 27, 1940, HAS BEEN OMITTED FROM THE CURRENT EDITION OF THE U.S.C. AS BEING OBSOLETE AND SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ALSO HAS BEEN OMITTED HAVING BEEN EXECUTED. SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941 WAS REPEALED BY SECTION 53 OF THE ACT OF AUGUST 10, 1956, 70A STAT, EXCEPT AS TO "RIGHTS AND DUTIES THAT MATURE" BEFORE THE EFFECTIVE DATE OF THE 1956 ACT.

WHILE THE OMISSION FROM THE U.S.C. OF SECTION 3 OF THE ACT OF AUGUST 27, 1940, AND SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT IS NOT CONCLUSIVE UPON THE QUESTION OF THE PRESENT EFFECT OF SUCH SECTIONS, THE OMISSION IS CONSISTENT WITH OUR VIEW THAT THOSE SECTIONS WOULD NOT EXCEPT COMMANDER HOBBS FROM THE DUAL EMPLOYMENT RESTRICTION CONTAINED IN THE ACT OF JULY 31, 1894. WE DO NOT REGARD COMMANDER HOBBS AS HAVING A RIGHT THAT MATURED PRIOR TO THE REPEAL OF SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941. WE SAY THIS BECAUSE THE RIGHT UNDER THAT SECTION DOES NOT ARISE UNTIL AN INDIVIDUAL HAS SATISFACTORILY COMPLETED A PERIOD OF MILITARY SERVICE. HERE, COMMANDER HOBBS WAS STILL IN THE SERVICE ON THE DATE OF THE REPEAL OF SECTION 7. THEREFORE, WHATEVER POTENTIAL RIGHT COMMANDER HOBBS MAY HAVE HAD UNDER SECTION 7 EXPIRED WITH THE REPEAL OF THAT SECTION.

MOREOVER, THE STATUTES REFERRED TO ABOVE WERE DESIGNED TO AFFORD REEMPLOYMENT TO THOSE EMPLOYEES WHOSE CIVILIAN CAREERS WERE INTERRUPTED BY REASON OF THEIR ENTRY INTO THE ARMED FORCES DURING THE PERIOD OF WAR OR EMERGENCY. THEY WERE DESIGNED TO ENABLE SUCH INDIVIDUALS TO RETURN TO THEIR CIVILIAN POSITIONS WITHOUT LOSS OF SENIORITY, STATUS,OR PAY WHEN THEY COMPLETED THE REQUIRED PERIOD OF MILITARY SERVICE.

COMMANDER HOBBS IN 1946, NEAR OR AFTER THE CESSATION OF HOSTILITIES APPARENTLY WAS AFFORDED THE OPPORTUNITY OF TRANSFERRING TO THE REGULAR NAVY. HE ACCEPTED THAT OPPORTUNITY, THUS ELECTING TO MAKE A CAREER OF THE NAVAL SERVICE. APPARENTLY HE HAS REMAINED CONTINUOUSLY IN THAT SERVICE SINCE THE DATE OF HIS TRANSFER AND EXPECTS TO RETIRE AS A REGULAR NAVY OFFICER ON JULY 1, 1962. NONE OF THE STATUTES REFERRED TO ABOVE WHICH GRANTED REEMPLOYMENT RIGHTS TO OFFICERS ENTERING THE MILITARY OR NAVAL SERVICE IS VIEWED AS CONFERRING INDEFINITE REEMPLOYMENT RIGHTS UPON PERSONS WHO VOLUNTARILY REMAINED IN THE MILITARY OR NAVAL SERVICE WHEN THEY COULD HAVE REVERTED TO A CIVILIAN STATUS AND WHO SUBSEQUENTLY RETIRE AS CAREER EMPLOYEES OF SUCH SERVICE.

WE HAVE NOT OVERLOOKED THE PROVISIONS OF SECTION 29 (B) OF THE ACT OF AUGUST 10, 1956, 5 U.S.C. 30R TO THE EFFECT THAT EACH RESERVE OF THE ARMED FORCES OR MEMBER OF THE NATIONAL GUARD WHO IS AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND WHO IS ORDERED TO ACTIVE DUTY IS ENTITLED UPON RELIEF FROM ACTIVE DUTY TO BE RESTORED TO THE POSITION HELD BY HIM WHEN ORDERED TO ACTIVE DUTY. THAT PROVISION, HOWEVER, APPLIES ONLY A RESERVE OR A MEMBER OF THE NATIONAL GUARD. WHEN COMMANDER HOBBS ACCEPTED A COMMISSION IN THE REGULAR NAVY HE RELINQUISHED HIS RESERVE STATUS AND, THEREFORE, SECTION 29 (B) IS NOT CONSIDERED TO BE APPLICABLE TO HIM.

IN VIEW OF THE FOREGOING FACTS AND CIRCUMSTANCES, OUR VIEW IS THAT THE DUAL OFFICE RESTRICTION CONTAINED IN THE ACT OF JULY 31, 1894, WOULD PRECLUDE COMMANDER HOBBS, UPON HIS RETIREMENT FROM THE REGULAR NAVY, FROM HOLDING A CIVILIAN OFFICE OR POSITION UNDER THE UNITED STATES.