A-51624, SEPTEMBER 1, 1938, 18 COMP. GEN. 213

A-51624: Sep 1, 1938

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IN WHICH IT WAS STATED THAT: "IT HAS LONG BEEN THE RULE THAT AN ENLISTED MAN OF THE ARMY MAY NOT. ARE NOT APPLICABLE TO ENLISTED MEN OF THE ARMY. DEC. 568 WAS DECIDED ON THE GROUNDS THAT THE COMPENSATION FOR ADDITIONAL DUTIES PERFORMED BY ENLISTED MEN WHILE ON FURLOUGH WAS NOT FIXED BY LAW OR REGULATION. WAS ADJUSTED SO THAT THE TOTAL RATE OF PAY WOULD BE WITHIN THE LIMIT OF $2. GEN. 40 WAS BASED. THIS DECISION CITED AND REFERRED TO ALL OF THE OTHER ABOVE DISCUSSED CASES IN SUPPORT OF THE STATEMENT THAT: "SO FAR AS AN ENLISTED MAN IS CONCERNED. UNTIL HIS ENLISTMENT IS TERMINATED. GEN. 40 WAS DETERMINED BY AN APPLICATION OF THE RULE THUS STATED. THE WAR DEPARTMENT WOULD LIKE TO BE ADVISED WHY AN ENLISTED MAN OF THE UNITED STATES ARMY SHOULD NOT BE ALLOWED TO ACCEPT COMPENSATION FROM THE WEATHER BUREAU FOR SERVICES AS EITHER AIRWAYS OBSERVER OR PAID RELIEF OBSERVER IN CASES WHERE SUCH EMPLOYMENT DOES NOT INTERFERE WITH THE PROPER PERFORMANCE OF HIS REGULAR DUTIES AS A SOLDIER AND DO NOT INVOLVE COMPENSATION FOR THE PERFORMANCE OF DUTIES WHICH ARE REQUIRED OF HIM UNDER HIS GENERAL OBLIGATIONS AS A SOLDIER.

A-51624, SEPTEMBER 1, 1938, 18 COMP. GEN. 213

COMPENSATION - DOUBLE - ENLISTED PERSONNEL IN CIVILIAN POSITIONS AN ARMY ENLISTED MAN MAY NOT BE COMPENSATED FOR SERVICES UNDER THE WEATHER BUREAU AS AIRWAYS OBSERVER, THE TIME OF ONE IN THE MILITARY SERVICE NOT BEING HIS OWN, HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES IN ANOTHER POSITION OR EMPLOYMENT BEING INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 1, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 21, 1938, IN REPLY TO REPORT TO YOU OF FEBRUARY 1, 1938, RESPECTING THE PERFORMANCE OF DUTIES OF AIRWAYS OBSERVERS FOR THE WEATHER BUREAU BY ENLISTED MEN OF THE UNITED STATES ARMY ON SIGNAL CORPS DUTY AT STATIONS OF THE ALASKA COMMUNICATION SYSTEM IN PART AS FOLLOWS:

YOUR LETTER OF FEBRUARY 1, 1938, REFERRED TO AND QUOTED THAT PART OF YOUR LETTER OF NOVEMBER 10, 1937, IN WHICH IT WAS STATED THAT:

"IT HAS LONG BEEN THE RULE THAT AN ENLISTED MAN OF THE ARMY MAY NOT, DURING THE PERIOD OF HIS ENLISTMENT, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY, BE EMPLOYED IN ANOTHER CAPACITY UNDER THE GOVERNMENT AND RECEIVE PAY THEREFOR, OTHER THAN THE PAY AND ALLOWANCES THAT ACCRUE TO HIM BY REASON OF HIS ENLISTED STATUS. SEE 15 OP.ATTY.GEN. 362; 18 COMP. DEC. 224; 22 ID. 259; 25 ID. 66; 26 ID. 568; 3 COMP. GEN. 40; U.S.C. 5:70; AND PARAGRAPH 1 (D) OF ARMY REGULATIONS 35-2320.'

THE CASES COVERED BY 15 OP.ATTY.GEN. 362 AND 18 COMP. DEC. 224 INVOLVED THE VIOLATION OF SECTION 35 OF THE ACT OF MARCH 3, 1863 (12 STAT. 736) WHICH PROHIBITED ENLISTED MEN FROM RECEIVING EXTRA PAY FOR SPECIAL SERVICES TO WHICH THEY HAD BEEN DETAILED. THE CASE COVERED BY 22 COMP. DEC. 259 INVOLVED THE EMPLOYMENT OF AN ENLISTED MAN IN THE PERFORMANCE OF DUTIES WHICH HE SHOULD BE REQUIRED TO PERFORM UNDER HIS GENERAL OBLIGATIONS AS A SOLDIER. THE CASE COVERED BY 25 COMP. DEC. 666 INVOLVED THE EMPLOYMENT OF AN ARMY OFFICER IN A CIVIL POSITION BY ANOTHER BRANCH OF THE GOVERNMENT IN VIOLATION OF THE PROVISIONS OF R.S. 1222 (U.S.C. 10:576), WHICH, HOWEVER, ARE NOT APPLICABLE TO ENLISTED MEN OF THE ARMY. IT APPEARS THAT THE CASE COVERED BY 26 COMP. DEC. 568 WAS DECIDED ON THE GROUNDS THAT THE COMPENSATION FOR ADDITIONAL DUTIES PERFORMED BY ENLISTED MEN WHILE ON FURLOUGH WAS NOT FIXED BY LAW OR REGULATION, BUT WAS ADJUSTED SO THAT THE TOTAL RATE OF PAY WOULD BE WITHIN THE LIMIT OF $2,000 PER ANNUM IMPOSED BY U.S.C. 5:58. ALSO, IT APPEARS THAT THE DECISION IN THE CASE OF 3 COMP. GEN. 40 WAS BASED, TO SOME EXTENT, UPON THE INSUFFICIENCY OF EVIDENCE AS TO THE AUTHORITY TO PLACE AN ENLISTED MAN ON LEAVE FOR TWO MONTHS APPARENTLY WITH A VIEW TO EMPLOYMENT IN A CIVIL POSITION DURING SUCH LEAVE. THIS DECISION CITED AND REFERRED TO ALL OF THE OTHER ABOVE DISCUSSED CASES IN SUPPORT OF THE STATEMENT THAT:

"SO FAR AS AN ENLISTED MAN IS CONCERNED, AND UNTIL HIS ENLISTMENT IS TERMINATED, HE MAY BE PAID ONLY THE PAY AND ALLOWANCES THAT ACCRUE TO HIM UNDER THE LAWS AND REGULATIONS APPLICABLE TO HIS ENLISTED STATUS.'

WHETHER THE DECISION IN 3 COMP. GEN. 40 WAS DETERMINED BY AN APPLICATION OF THE RULE THUS STATED, BY THE APPARENTLY IRREGULAR CIRCUMSTANCES IN CONNECTION WITH THE LEAVE OF ABSENCE, OR BY A COMBINATION OF BOTH, IT DOES NOT APPEAR THAT THE DECISIONS IN THE CASES CITED SUPPORT A CONCLUSION INVOLVING SUCH A GENERAL RULE WITH RESPECT TO ENLISTED MEN OF THE ARMY WHICH SHOULD SERVE AS A PRECEDENT IN THE DETERMINATION OF ALL FUTURE CASES WITHOUT REGARD TO THE FACTS AND CIRCUMSTANCES INVOLVED.

IN VIEW OF THE RULE LAID DOWN IN THE CASE OF U.S. V. SAUNDERS (120 U.S. 126) AND SUPPORTED BY OTHER COURT DECISIONS, TO THE EFFECT THAT THE PROVISIONS OF U.S.C. 5:70 DO NOT PREVENT A PERSON FROM HOLDING TWO DISTINCT OFFICES, APPOINTMENTS, OR POSITIONS NOT OTHERWISE FORBIDDEN AND NOT INCOMPATIBLE WITH EACH OTHER AND DRAWING THE SALARY ATTACHED TO EACH, THE WAR DEPARTMENT WOULD LIKE TO BE ADVISED WHY AN ENLISTED MAN OF THE UNITED STATES ARMY SHOULD NOT BE ALLOWED TO ACCEPT COMPENSATION FROM THE WEATHER BUREAU FOR SERVICES AS EITHER AIRWAYS OBSERVER OR PAID RELIEF OBSERVER IN CASES WHERE SUCH EMPLOYMENT DOES NOT INTERFERE WITH THE PROPER PERFORMANCE OF HIS REGULAR DUTIES AS A SOLDIER AND DO NOT INVOLVE COMPENSATION FOR THE PERFORMANCE OF DUTIES WHICH ARE REQUIRED OF HIM UNDER HIS GENERAL OBLIGATIONS AS A SOLDIER, AND THE COMBINED COMPENSATION RECEIVED DOES NOT EXCEED THE LIMIT IMPOSED BY U.S.C. 5:58.

THE MAKING OF WEATHER OBSERVATIONS IS NOT A PART OF THE DUTIES ASSIGNED TO ANY SIGNAL CORPS ENLISTED MAN OF THE ALASKA COMMUNICATION SYSTEM. SUCH COOPERATIVE ASSISTANCE AS IS RENDERED BY SIGNAL CORPS ENLISTED MEN OF THE ALASKA COMMUNICATION SYSTEM TO EITHER THE WEATHER BUREAU OR TO AN AIRWAYS OBSERVER APPOINTED AND PAID BY THE WEATHER BUREAU IS IN ADDITION TO HIS REGULARLY ASSIGNED DUTIES OR GENERAL OBLIGATIONS AS A SOLDIER.

THE DECISIONS HAVE BEEN UNIFORM IN DENYING PAY IN A GOVERNMENTAL CIVILIAN CAPACITY TO ONE IN THE MILITARY SERVICE IN THE ABSENCE OF A STATUTE SPECIFICALLY AUTHORIZING PAYMENT IN THE CIVILIAN CAPACITY. THE DECISIONS HAVE IN PART OR IN WHOLE RELIED UPON ONE OR ANOTHER STATUTE BUT THE UNIFORM ACTION SUGGESTS A BASIC REASON. WHILE SECTION 35 OF THE ACT OF MARCH 3, 1863, WAS CONSIDERED IN THE OPINION OF THE ATTORNEY GENERAL, REPORTED 15 OP.ATTY.GEN. 362, THAT SECTION PROHIBITING EXTRA PAY FOR ENLISTED MEN DETAILED TO SPECIAL SERVICE, THE QUESTION ACTUALLY CONSIDERED BY THE ATTORNEY GENERAL WAS WHETHER PAY IN ANOTHER CAPACITY MIGHT BE PAID. THE ENLISTED MAN IN THAT CASE WAS DETAILED TO DUTY AS A TELEGRAPH OPERATOR, AND WITH A VIEW APPARENTLY TO PAYING HIM THE PAY AUTHORIZED FOR A TELEGRAPH OPERATOR, IT WAS SOUGHT TO PLACE HIM ON FURLOUGH WITHOUT PAY AS AN ENLISTED MAN TO ENABLE HIM TO RECEIVE THE PAY APPERTAINING TO THE DUTY AND POSITION OF TELEGRAPH OPERATOR. THE ATTORNEY GENERAL IN DISCUSSING THE MATTER USED THE FOLLOWING LANGUAGE:

* * * ALL PARTS OF THIS ORDER, AS WELL AS THOSE OF THE PREVIOUS ORDER, ARE TO BE TAKEN TOGETHER, AND IT CANNOT BE CONSIDERED TO BE A FURLOUGH IN ANY PROPER SENSE OF THE TERM. THAT IS NOT A FURLOUGH WHICH DOES NOT RELEASE THE SOLDIER TEMPORARILY FROM HIS MILITARY SERVICE, BUT SIMPLY TRANSFERS HIM FROM ONE BRANCH OF THE SERVICE TO ANOTHER AND FROM ONE DUTY TO ANOTHER. THIS ORDER RELIEVES LINES FROM DUTY IN HIS COMPANY, BUT ORDERS HIM FOR DUTY TO ANOTHER MILITARY COMMANDER. IT IS IN ALL ESSENTIAL CHARACTERISTICS A DETAIL OF HIM TO THE PERFORMANCE OF THE DUTY WHICH HE AFTERWARDS DISCHARGED. IT IS NOT POSSIBLE, ALTHOUGH IT IS CALLED A FURLOUGH, WHEN IT IS ACCOMPANIED BY A DETAIL FOR OTHER AND DISTINCT DUTY, TO TREAT IT OTHERWISE THAN AS A DETAIL FOR SUCH DUTY. IT WILL BE OBSERVED THAT IN THE LETTER OF THE SECRETARY THE ORDER IS SO TREATED.

IT HAS ALSO BEEN SUGGESTED THAT THIS ORDER MAY BE TREATED AS A SUSPENSION OF THE SOLDIER FOR THE TIME BEING, AND THAT HE MAY THUS RECEIVE PAY SUITABLE TO THE IMPORTANT DUTY WHICH HE PERFORMED AS A TELEGRAPH OPERATOR.

IT IS IMPOSSIBLE TO GIVE THE ORDER THIS CONSTRUCTION, FOR IT IS NOT IN THE POWER OF THE SECRETARY TO SUSPEND THE ENLISTMENT OF A SOLDIER, RETAINING THE RIGHT TO RESUME HIS PROPER CONTROL OVER HIM AS AN ENLISTED MAN AT ANY DEFINITE OR INDEFINITE PERIOD. HE MAY DISCHARGE HIM FROM THE SERVICE ACCORDING TO THE CONTRACT WHICH IS MADE BY ENLISTMENT, BUT THE RIGHT TO SUSPEND THE CONTRACT DOES NOT EXIST UPON THE PART OF THE SECRETARY, EVEN WITH THE CONSENT OF THE SOLDIER. TO USE THE LANGUAGE OF ATTORNEY-GENERAL CLIFFORD (4 OPIN., 538): "THE EXECUTIVE DEPARTMENT HAS DISCRETIONARY AUTHORITY TO DISCHARGE BEFORE THE TERM OF SERVICE HAS EXPIRED, BUT HAS NO POWER TO VARY THE CONTRACT OF ENLISTMENT.'

I AM THEREFORE OF OPINION THAT NO CONTRACT TO PAY A MONTHLY SALARY TO AN ENLISTED MAN AS A TELEGRAPH OPERATOR COULD LEGALLY BE MADE. THE SOLDIER IS ENTITLED TO RECEIVE THE AMOUNT OF HIS PAY AND EMOLUMENTS AS A PRIVATE, AND NO MORE.

CONSIDERING THE VALUE OF THE SERVICES RENDERED BY PRIVATE LINES, I SHOULD BE VERY GLAD IN HIS INDIVIDUAL CASE, IF IT WERE IN MY POWER, TO COME TO A CONCLUSION DIFFERENT FROM THAT WHICH I HAVE STATED.

IT WILL BE OBSERVED THE CASE DID NOT TURN UPON THE PROVISIONS OF SECTION 35 OF THE ACT OF 1863 BUT THE ILLEGALITY OF ANY PAYMENT TO HIM IN THE CAPACITY OF TELEGRAPH OPERATOR IN EXCESS OF HIS PAY AND EMOLUMENTS AS A PRIVATE SOLDIER. THIS LANGUAGE RATHER BROADLY HINTS THAT IT IS THE STATUS OF THE SOLDIER WHICH LIMITS HIS PAY AND EMOLUMENTS TO THAT OF HIS GRADE AND LENGTH OF SERVICE AS AN ENLISTED MAN, AND NOTHING MORE.

YOU HAVE CALLED ATTENTION TO THE SAUNDERS CASE IN THE SUPREME COURT, BUT THAT CASE WAS PREDICATED ON THE COMPATIBILITY OF TWO CIVILIAN OFFICERS. THE QUESTION ARISES WHETHER THERE CAN BE A CIVILIAN EMPLOYMENT COMPATIBLE WITH AN ENLISTMENT OR OFFICE IN THE MILITARY SERVICE. STATUTES HAVE IN SOME CASES SPECIFICALLY DENIED TO OFFICERS OF THE ARMY PAY OR THE RIGHT TO HOLD A CIVIL OFFICE, BUT IT DOES NOT NECESSARILY FOLLOW THAT IN THE ABSENCE OF SUCH A STATUTE EMPLOYMENT IN A CIVIL CAPACITY OF ONE IN THE MILITARY SERVICE IS COMPATIBLE WITH SERVICE IN A MILITARY CAPACITY.

"ENLISTMENT IS A VOLUNTARY CONTRACT FOR MILITARY SERVICE FOR A CERTAIN TERM ENTERED INTO BY A CIVIL PERSON WITH THE UNITED STATES.' (WINTHROP,"MILITARY LAW AND PRECEDENTS," P. 538, WAR DEPARTMENT REPRINT.)

IN IN RE GRIMLEY, 137 U.S. 147, 34 L.ED. 636, THE SUPREME COURT USED THE FOLLOWING LANGUAGE WITH RESPECT TO AN ENLISTMENT IN THE ARMY:

* * * ENLISTMENT IS A CONTRACT; BUT IT IS ONE OF THOSE CONTRACTS WHICH CHANGES THE STATUS; AND, WHERE THAT IS CHANGED, NO BREACH OF THE CONTRACT DESTROYS THE NEW STATUS OR RELIEVES FROM THE OBLIGATIONS WHICH ITS EXISTENCE IMPOSES. * * *

BY ENLISTMENT THE CITIZEN BECOMES A SOLDIER. HIS RELATIONS TO THE STATE AND THE PUBLIC ARE CHANGED. HE ACQUIRES A NEW STATUS, WITH CORRELATIVE RIGHTS AND DUTIES; AND ALTHOUGH HE MAY VIOLATE HIS CONTRACT OBLIGATIONS, HIS STATUS AS A SOLDIER IS UNCHANGED. * * * AN ARMY IS NOT A DELIBERATIVE BODY. IT IS THE EXECUTIVE ARM. ITS LAW IS THAT OF OBEDIENCE. QUESTION CAN BE LEFT OPEN AS TO THE RIGHT TO COMMAND IN THE OFFICER, OR THE DUTY OF OBEDIENCE IN THE SOLDIER. * *

THE 61ST OF THE ARTICLES OF WAR CONSTITUTES IT A PENAL OFFENSE FOR ANY PERSON SUBJECT TO MILITARY LAW WHO FAILS TO REPORT AT THE FIXED TIME TO THE PROPERLY APPOINTED PLACE FOR DUTY OR GOES FROM THE SAME WITHOUT PROPER LEAVE. THAT CIVIL EMPLOYMENT IS INCOMPATIBLE WITH MILITARY SERVICE SEEMS ALSO TO HAVE BEEN THE VIEW OF THE SUPREME COURT AS EXPRESSED IN BADEAU V. THE UNITED STATES, 130 U.S. 439, 32 L.ED. 997. BADEAU WAS A RETIRED OFFICER OF THE ARMY WHO HAD BEEN APPOINTED TO DIPLOMATIC AND CONSULAR OFFICES AND HE WAS SUING FOR HIS PAY AS A RETIRED OFFICER. THE COURT THERE GAVE CONSIDERATION TO THE QUESTION OF COMPATIBILITY OF A RETIRED OFFICER OF THE ARMY HOLDING A CIVIL OFFICE WHICH REMOVED HIM FROM THE UNITED STATES AND USED THE FOLLOWING LANGUAGE:

* * * IT HAS BEEN DECIDED THAT A PERSON HOLDING TWO OFFICES OR EMPLOYMENTS UNDER THE GOVERNMENT, WHEN THE SERVICES RENDERED OR WHICH MIGHT BE REQUIRED UNDER THEM WERE NOT INCOMPATIBLE, IS NOT PRECLUDED FROM RECEIVING THE SALARY OR COMPENSATION OF BOTH. CONVERSE V. UNITED STATES, 21 HOW. 463; UNITED STATES V. BRINDLE, 110 U.S. 688. BUT THE TREASURY DEPARTMENT DID NOT APPARENTLY REGARD THIS CASE AS FALLING WITHIN THAT EXCEPTION, AND WE AGREE WITH THAT CONCLUSION. UNITED STATES V. SHOEMAKER, 7 WALL. 338; STANDBURY V. UNITED STATES, 8 WALL. 33; HOYT V. UNITED STATES, 10 HOW. 109, 141.

UNDER THE ACT OF 1875 RETIRED OFFICERS SITUATED AS THEREIN DESCRIBED, ARE SO FAR TAKEN OUT OF THE OPERATION OF THE ACT OF 1868 AS NOT TO BE HELD, IF THEY ACCEPT OR HOLD DIPLOMATIC OR CONSULAR APPOINTMENT, TO HAVE RESIGNED THEIR PLACES IN THE ARMY; BUT THIS DOES NOT CHANGE THE GENERAL POLICY OF THE LAW, AND DOES NOT ENTITLE THEM TO PAY AS ARMY OFFICERS DURING THE PERIOD OF TIME WHEN THEY ARE ABSENT FROM THEIR COUNTRY IN THE DISCHARGE OF CONTINUOUS OFFICIAL DUTIES INCONSISTENT WITH SUBJECTION TO THE RULES AND ARTICLES OF WAR, AND THE OTHER INCIDENTS OF MILITARY SERVICE. NOTWITHSTANDING SEC. 1223, SUCH OFFICERS, WHEN IN THE DIPLOMATIC OR CONSULAR SERVICE, MAY STILL BE BORNE ON THE RETIRED LIST, BUT CANNOT RECEIVE DOUBLE COMPENSATION.

IF IT IS INCOMPATIBLE AND AGAINST THE GENERAL POLICY OF THE LAW FOR A RETIRED OFFICER, WHO IS ONLY SUBJECT TO THE RULES AND ARTICLES OF WAR AND CERTAIN LIMITED OTHER INCIDENTS OF MILITARY SERVICE, TO HOLD A CIVIL OFFICE IN A FOREIGN COUNTRY, OBVIOUSLY, ANY APPOINTMENT IN THE CIVIL BRANCH OF THE GOVERNMENT WOULD BE INCOMPATIBLE WITH SERVICE ON THE ACTIVE LIST OF THE ARMY. THE FACT THAT DURING HOURS OF RELAXATION OR RELIEF FROM THE ACTUAL PERFORMANCE OF DUTIES THE INDIVIDUAL HAS TIME TO DEVOTE TO HIS PERSONAL AFFAIRS AND THAT NORMALLY SUCH TIME IS AVAILABLE FOR THE PERFORMANCE OF OTHER DUTIES IS NOT THE TEST. COMPATIBILITY IS DETERMINED BY THE INDIVIDUAL'S FREEDOM TO PERFORM BOTH SERVICES, THE ONE WITHOUT INTERFERENCE FROM THE OTHER. THE SUPERIOR--- THE CONTROLLING--- OBLIGATION TO RENDER MILITARY SERVICE THUS MAKES IMPOSSIBLE THE ACCEPTANCE WITHOUT QUALIFICATION OF ANOTHER OBLIGATION TO THE GOVERNMENT TO RENDER SERVICE IN A CIVILIAN CAPACITY AT THE SAME TIME. THE TIME OF ONE IN THE MILITARY SERVICE IS NOT HIS OWN, HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES TO THE GOVERNMENT IN ANOTHER POSITION OR EMPLOYMENT IS INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL. YOUR QUESTION IS ANSWERED ACCORDINGLY.