B-178205, AUG 7, 1974

B-178205, AUG 7, 1974

PRECIS-UNAVAILABLE

SECRETARY OF DEFENSE

REFERENCE IS MADE TO LETTER DATED MAY 17, 1974, FROM MR. MARTIN R. HOFFMANN, SPECIAL ASSISTANT TO THE SECRETARY OF DEFENSE, RESPONDING ON YOUR BEHALF TO OUR LETTER B-178205, APRIL 17, 1974, CONCERNING THE SERVICE OF FOUR ACTIVE DUTY REGULAR MILITARY OFFICERS (2 AIR FORCE OFFICERS, 1 ARMY OFFICER, AND 1 NAVY OFFICER) IN THE OFFICE OF PETROLEUM ALLOCATION, DEPARTMENT OF THE INTERIOR, FOR A BRIEF TIME IN LATE NOVEMBER AND EARLY DECEMBER 1973.

IN OUR APRIL 17, 1974 LETTER WE INDICATED THAT SUCH OFFICERS' SERVICE IN THE OFFICE OF PETROLEUM ALLOCATION, DEPARTMENT OF THE INTERIOR, WOULD APPARENTLY SEPARATE THEM FROM THEIR ORGANIZATIONS, BRANCHES, OR UNITS, AND INTERFERE WITH THE PERFORMANCE OF THEIR MILITARY DUTIES, AND THUS, WOULD APPEAR TO HAVE BEEN IN CONTRAVENTION OF 10 U.S.C. 973(A) WHICH PROVIDES AS FOLLOWS:

"(A) NO OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY, REGULAR NAVY, REGULAR AIR FORCE, REGULAR MARINE CORPS, OR REGULAR COAST GUARD MAY ACCEPT EMPLOYMENT IF THAT EMPLOYMENT REQUIRES HIM TO BE SEPARATED FROM HIS ORGANIZATION, BRANCH, OR UNIT, OR INTERFERES WITH THE PERFORMANCE OF HIS MILITARY DUTIES."

IN THIS REGARD, WE POINTED OUT THAT THIS OFFICE HAS LONG HELD THAT THERE MUST BE STATUTORY AUTHORITY FOR DETAILING REGULAR OFFICERS ON THE ACTIVE LIST TO DUTY IN THE CIVIL BRANCHES OF THE GOVERNMENT. SEE 19 COMP. GEN. 826, 828 (1940). WE ALSO NOTED THAT THE ATTORNEY GENERAL HAS SIMILARLY SO HELD. 16 OP. ATTY. GEN. 499 (1880), 19 OP. ATTY. GEN. 600 (1890), AND 30 OP. ATTY. GEN. 184 (1913). AND, WE STATED THEREIN THAT WE WERE UNAWARE OF ANY STATUTORY AUTHORITY WHICH WOULD PERMIT THE DETAILING OF SUCH OFFICERS TO SERVE IN THE OFFICE OF PETROLEUM ALLOCATION.

THE SPECIAL ASSISTANT TO THE SECRETARY STATES THAT THE SECRETARIES OF THE MILITARY DEPARTMENTS HAVE BEEN ENDOWED BY CONGRESS WITH EXTREMELY BOOAD POWERS TO ASSING AND DETAIL MILITARY PERSONNEL. AS AN EXAMPLE, HE CITES 10 U.S.C. 3012(E) WHICH PROVIDES AS FOLLOWS IN RELATION TO THE SECRETARY OF THE ARMY:

"(E) THE SECRETARY, AS HE CONSIDERS APPROPRIATE, MAY ASSIGN, DETAIL, AND PRESCRIBE THE DUTIES OF MEMBERS OF THE ARMY AND CIVILIAN PERSONNEL OF THE DEPARTMENT OF THE ARMY."

AS THE SPECIAL ASSISTANT NOTES, 10 U.S.C. 80012(E) PROVIDES IDENTICAL AUTHORITY TO THE SECRETARY OF THE AIR FORCE IN RELATION TO THE AIR FORCE. SUCH EXPLICIT STATUTORY AUTHORITY IS NOT PROVIDED THE SECRETARY OF THE NAVY, HOWEVER, 10 U.S.C. 5031 ESTABLIHES HIM AS "THE HEAD OF THE DEPARTMENT OF THE NAVY" AND PROVIDES THAT HE SHALL ADMINISTER THE DEPARTMENT UNDER THE DIRECTION, AUTHORITY, AND CONTROL OF THE SECRETARY OF DEFENSE.

IN REGARD TO THESE STATUTES THE SPECIAL ASSISTANT'S LETTER STATES:

"THE TERMS OF THESE STATUTES ARE CLEARLY BROAD ENOUGH TO INCLUDE THE ASSIGNMENT OR DETAIL OF MILITARY PERSONNEL TO OTHER DEPARTMENTS AND AGENCIES OF THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, AN IMPLICIT LIMITATION ON THE GENERAL AUTHORITY OF THE SERVICE SECRETARIES TO DETAIL MILITARY PERSONNEL OUTSIDE THE DEPARTMENT OF DEFENSE IS THAT THE FUNCTIONS OR DUTIES OF THE PERSON DETAILED MUST BE IN FURTHERANCE OF A NATIONAL DEFENSE PURPOSE OR RESPONSIBILITY.

HE ALSO INDICATES THAT THE OFFICE OF PETROLEUM ALLOCATION WAS ESTABLISHED BY ORDER OF THE SECRETARY OF THE INTERIOR ON NOVEMBER 6 1973, WITH DELEGATED AUTHORITY REGARDING PETROLEUM PRODUCTS UNDER SECTION 203(A)(3) OF THE ECONOMIC STABLILIZATION ACT OF 1970, AS ADDED BY THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1973, PUBLIC LAW 83-28, APPROVED APRIL 30, 1973, 87 STAT. 27. SECTION 203(A)(3) AUTHORIZES THE ISSUANCE OF ORDERS AND REGULATIONS TO PROVIDE FOR "THE ESTABLISHMENT OF PRIORITIES OF USE AND FOR SYSTEMATIC ALLOCATION OF SUPPLIES OF PETROLEUM PRODUCTS INCLUDING CRUDE OIL ***." THE SPECIAL ASSISTANT INDICATES THAT THE OFFICE OF PETROLEUM ALLOCATION EXERCISED THIS STATUTORY AUTHORITY UNTIL DECEMBER 4. 1973, WHEN THAT AUTHORITY WAS DELEGATED TO THE ADMINISTRATOR OF THE FEDERAL ENERGY OFFICE.

THE SPECIAL ASSISTANT STATES THAT DURING THIS TIME PERIOD, WHICH WAS MARKED BY ACCELERATING FUEL SHORTAGES IN MANY REGIONS OF THE COUNTRY, THE OFFICE OF PETROLEUM ALLOCATION WAS RESPONSIBLE FOR THE DEVELOPMENT OF NATIONAL ALLOCATION POLICIES AND PRIORITIES AND FOR THE IMPLEMENTATION OF NATIONAL ALLOCATON PROGRAMS. HE FURTHER STATES THAT SINCE THE READINESS OF UNITED STATES FORCES IS CONTINGENT UPON UNINTERRUPTED SUPPLIES OF FUEL FOR OPERATIONS AND TRAINING, THERE WAS A COMPELLING NATIONAL DEFENSE INTEREST IN THE PROMPT AND EFFICIENT EXECUTION OF THE OFFICE OF PETROLEUM ALLOCATION'S ALLOCATION POLICIES AND PROGRAMS.

THE SPECIAL ASSISTANT STATES THAT FOR TIS REASON THE TEMPORARY DETAIL OF FOUR ACTIVE DUTY MILITARY OFFICERS TO THE OFFICE OF PETROLEUM ALLOCATION WAS REASONABLY IN FURTHERANCE OF A LEGITIMATE DEFENSE PURPOSE, AND CONSEQUENTLY, WAS WITHIN THE AUTHORITY AND DISCRETION OF THE SECRETARIES OF THEIR RESPECTIVE MILITARY DEPARTMENTS. HE ALSO STATES THAT, IN ADDITION, THE DETAIL OF THESE OFFICERS DID NOT VIOLATE THE PROVISIONS OF 10 U.S.C. 973(A) BECAUSE THE OFFICERS' RESPONSIBILITIES AT THE OFFICE OF PETROLEUM ALLOCATION WERE IN PURSUANCE OF THEIR ASSIGNED MILITARY DUTIES.

HE FURHTER INDICATES THAT THE ASSIGNMENTS OF THESE OFFICERS WERE IN RESPONSE TO THE REQUEST OF THE DEPARTMENT OF THE INTERIOR TO CONTRIBUTE PERSONNEL WITH THE APPROPRIATE EXPERTISE TO ASSIST IN THE EARLY DEVELOPMENT OF THE NATIONAL ENERGY EFFORT. HE FURHTER INDICATES THAT NOW THAT A COMPREHENSIVE ENERGY PROGRAM HAS BEEN IN FULL OPERATION FOR SIX MONTHS UNDER THE FEDERAL ENERGY OFFICE, THE DEPARTMENT OF DEFENSE IS CONFIDENT THAT THE SERVICES OF ACTIVE DUTY MILITARY PERSONNEL "WILL NOT BE REQUIRED TO AS GREAT AN EXTENT."

THE PROVISIONS OF 10 U.S.C. 973(A) ARE THE CODIFICATION OF STATUTES DERIVED FROM SECTION 31 OF THE ACT OF JULY 5, 1838, CH. 162, 5 STAT. 260, WHICH ORIGINALLY APPLIED ONLY TO ARMY OFFICERS. SECTION 4(A)(5)(A) OF PUBLIC LAW 90-235, APPROVED JANUARY 2, 1968, 81 STAT. 759, ENACTED 10 U.S.C. 973(A) IN ITS PRESENT FORM AND EXTENDED ITS APPLICATION TO INCLUDE OFFICERS OF THE REGULAR ARMY, REGULAR NAVY, REGULAR AIR FORCE, REGULAR MARINE CORPS AND REGULAR COAST GUARD.

AS WE STATED IN OUR APRIL 17, 1974 LETTER TO YOU, THE ATTORNEY GENERAL HELD IN 16 OP. ATTY. GEN. 499 (1880) THAT A PREDECESSOR STATUTE (SECTION 1224 R.S.) TO 10 U.S.C. 973(A) WOULD NOT PERMIT THE DETAIL OF AN ARMY OFFICER TO THE DEPARTMENT OF THE INTERIOR TO AID IN THE PERFORMANCE OF GEOLOGICAL SURVEY (A CLEARLY CIVIL WORK), ALTHOUGH IT WAS RECOGNIZED THAT SUCH A SURVEY MUST ALWAYS HAVE GREAT MILITARY VALUE. IN SO HOLDING, THE ATTORNEY GENERAL INDICATED THAT THE STATUTE WOULD NOT APPLY IF THE MILITARY OFFICER WERE TO PERFORM A STRICTLY MILITARY DUTY IN CONNECTION WITH THE SURVEY - SUCH AS HAVING CHARGE OF ITS ESCORT. SEE ALSO 19 OP. ATTY. GEN. 600 (1890) AND 30 OP. ATTY. GEN. 184 (1913). IN REGARD TO THE GENERAL QUESTION OF THE USE OF THE MILITARY FORCES FOR CIVIL FUNCTIONS SEE 33 OP ATTY. GEN. 562 (1923).

WE ALSO STATED IN THE APRIL 17, 1974 LETTER THAT IN VIEW OF 10 U.S.C. 973, AND PREDECESSOR STATUTES, THIS OFFICE HAS LONG HELD THAT THERE MUST BE STATUTORY AUTHORITY FOR DETAILING OFFICERS ON THE ACTIVE LIST TO DUTY IN THE CIVIL BRANCHES OF THE GOVERNMENT. SEE 19 COMP. GEN. 826, 828 (1940). WHILE WE RECOGNIZE THE VARIOUS SERVICE ASSIGN, DETAIL AND PRESCRIBE THE DUTIES OF THE PERSONNEL UNDER THEM, SECRETARIES' GENERAL AUTHORITY UNDER 10 U.S.C. 3012, 8012, OR 5031 TO IT IS OUR VIEW THAT SUCH GENERAL AUTHORITY IS SUBJECT TO THE SPECIFIC LIMITATIONS PROVIDED BY OTHER STATUTUES SUCH AS 10 U.S.C. 973 WHICH APPLY TO PARTICULAR CLASSES AND PARTICULAR SITUATIONS. THAT VIEW IS SUPPORTED BY THE GENERAL RULE OF STATUTORY CONSTRUCTION TO THE EFFECT THAT WHERE ONE STATUTE DEALS WITH A SUBJECT IN GENERAL TERMS, AND ANOTHER DEALS WITH A PART OF THE SAME SUBJECT IN A MORE DETAILED WAY, THE TWO SHOULD BE HARMONIZED IF POSSIBLE; BUT IF THERE IS ANY CONFLICT, THE MORE SPECIFIC STATUTE WILL PREVAIL. SEE SUTHERLAND, STATUTORY CONSTRUCTION, 4TH EDITION, VOL. 2A, 51.05, PAG 315.

IT SEEMS CLEAR THAT CONGRESS INTENDED THAT 10 U.S.C. 973 REMAIN EFFECTIVE SINCE, AS NOTED ABOVE, IN RECODIFYING THE STATUTE IN 1968, IT BROADENED ITS APPLICATION TO COVER ALL OF THE ARMED FORCES. IN THIS REGARD, IT IS TO BE NOTED THAT THERE HAS BEEN CONTINUING CONGRESSIONAL RECOGNITION OF THIS PROSCRIPTION BY INCLUDING SPECIFIC LANGUAGE IN VARIOUS STATUTES IN ORDER TO COVER SITUATIONS IN WHICH IT DESIRED MILITARY OFFICERS TO BE ASSIGNED OR DETAILED TO CIVILIAN AGENCIES. SEE THE FOLLOWING EXAMPLES OF STATUTES AUTHORIZING SUCH ASSIGNMENTS OR DETAILS: SECTION 41(C) OF THE ARMS CONTROL AND DISARMAMENT ACT, PUBLIC LAW 87-297, SEPTEMBER 26, 1961, 75 STAT. 635, 22 U.S.C. 2581(C) (ARMS CONTROL AND DISARMAMENT AGENCY); 10 U.S.C. 719 (ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION); 10 U.S.C. 713 (DEPARTMENT OF STATE); 23 U.S.C. 312 (BUREAU OF PUBLIC ROADS); AND SECTION 203(B)(12) OF THE NATIONAL AERONAUTICS AND SPACE ACT OF 1958, PUBLIC LAW 85-568, JULY 29, 1958, 72 STAT. 431, 42 U.S.C. 2473(B)(12) (ATIONAL AERONAUTICS AND SPACE ADMINISTRATION).

THUS, IT REMAINS OUR VIEW THAT STATUTORY AUTHORITY IS NECESSARY FOR THE DETAILING OR ASSIGNING OF REGULAR MILITARY OFFICERS TO DUTY IN THE CIVIL BRANCHES OF THE GOVERNMENT.

IN REGARD TO STATUTORY AUTHORITY FOR THE DETAIL OF THE OFFICERS IN QUESTION HERE WE NOTE THAT SECTION 212(E) OF THE ECONOMIC STABILIZATION ACT OF 1970 AS ADDED BY THE ECONOMIC STABILIZATION ACT AMENDMENTS OF 1971, PUBLIC LAW 92-210, 85 STAT. 743, 751, PROVIDES THAT THE PRESIDENT MAY REQUIRE THE DETAIL OF "EMPLOYEES" FROM ANY EXECUTIVE AGENCY TO CARRY OUT THE PURPOSES OF THE ACT. NO SPECIFIC PROVISION IS MADE FOR THE DETAIL OF REGULAR ACTIVE DUTY MILITARY OFFICERS. HOWEVER, SECTION 204 OF THE ACT PROVIDES IN PART THAT THE PRESIDENT MAY DELEGATE THE PERFORMANCE OF ANY FUNCTION UNDER THE ACT TO SUCH "OFFICERS, DEPARTMENTS, AND AGENCIES OF THE UNITED STATES AS HE DEEMS APPROPRIATE."

PURSUANT TO HIS AUTHORITY UNDER THE ECONOMIC STABILIZATION ACT OF 1970, AS AMENDED, THE PRESIDENT CREATED THE COST OF LIVING COUNCIL BY EXECUTIVE ORDER 11695, JANUARY 11, 1973, 3 C.F.R. P. 353 (1974). BY SECTION 2(A) OF THAT EXECUTIVE ORDER THE PRESIDENT DELEGATED TO THE CHAIRMAN OF THE COST OF LIVING COUNCIL "ALL THE POWERS AND DUTIES" CONFERRED UPON THE PRESIDENT BY THE ECONOMIC STABILIZATION ACT OF 1970, AS AMENDED. SECTION 4(B) OF EXECUTIVE ORDER 11695 AUTHORIZED THE CHAIRMAN TO REDELEGATE TO ANY AGENCY, INSTRUMENTALITY, OR OFFICIAL OF THE UNITED STATES ANY AUTHORITY UNDER THAT EXECUTIVE ORDER AND PROVIDED THAT HE MAY "UTILIZE THE SERVICES OF ANY OTHER AGENCY, FEDERAL OR STATE, AS MAY BE AVAILABLE OR APPROPRIATE." SECTION 4(C) PROVIDED AMONG OTHER THINGS, THAT ON REQUEST OF THE CHAIRMAN, EACH EXECUTIVE DEPARTMENT OR AGENCY SHALL PROVIDE SUCH OTHER ASSISTANCE IN CARRYING OUT THE PROVISIONS OF THE ORDER AS IS PERMITTED BY LAW.

PURSUANT TO SUCH AUTHORITY THE CHAIRMAN OF THE COST OF LIVING COUNCIL DELEGATED HIS AUTHORITY WITH RESPECT TO PETROLEUM PRODUCTS TO THE DIRECTOR OF THE ENERGY POLICY OFFICE. SEE COST OF LIVING COUNCIL ORDER 39, AUGUST 21, 1973, 6 C.F.R. P. 451 (1974). THE DIRECTOR OF THE ENERGY POLICY OFFICER REDELEGATED CERTAIN PARTS OF SUCH AUTHORITY TO THE SECRETARY OF THE INTERIOR BY ORDER DATED OCTOBER 19, 1973, 38 FED. REG. 29379 (1973), AND THE SECRETARY OF THE INTERIOR BY ORDER NO. 2956, NOVEMBER 6, 1973, ESTABLISHED THE OFFICE OF PETROLEUM ALLOCATION AND DELEGATED SUCH AUTHORITY TO ITS ADMINISTRATOR.

IT WAS APPARENTLY PURSUANT TO THAT DELEGATION OF AUTHORITY THAT THE DEPARTMENT OF THE INTERIOR REQUESTED THE DEPARTMENT OF DEFENSE TO CONTRIBUTE PERSONNEL. WHILE AS IS NOTED ABOVE, THE ECONOMIC STABILIZATION ACT OF 1970 DOES NOT SPECIFICALLY AUTHORIZE THE DETAIL OF MILITARY OFFICERS TO A CIVILIAN AGENCY, IT DOES AUTHORIZE THE PRESIDENT TO DELEGATE THE PERFORMANCE OF THE FUNCTIONS OF THE ACT TO OTHER "OFFICERS, DEPARTMENTS, AND AGENCIES," AND THE PRESIDENT DID DELEGATE SUCH AUTHORITY, WHICH AUTHORITY WAS EVENTUALLY REDELEGATED TO THE OFFICE OF PETROLEUM ALLOCATION.

ACCORDINGLY, WHILE THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, WE WILL NOT QUESTION FURTHER THE ASSIGNMENT OF THE MILITARY OFFICERS IN QUESTION TO THE OFFICE OF PETROLEUM ALLOCATION.

SINCERELY YOURS,

SIGNED ELMER B. STAATS

COMPTROLLER GENERAL OF THE UNITED STATES ..END :