B-131514, JULY 22, 1957, 37 COMP. GEN. 39

B-131514: Jul 22, 1957

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MILITARY PERSONNEL - DUAL EMPLOYMENT PROHIBITION - RETIRED REGULAR ARMY OFFICER APPOINTED AS RESERVE OFFICER A RETIRED REGULAR ARMY OFFICER WHO IS APPOINTED AS A RESERVE OFFICER IN AN ASSIGNED STATUS IS REGARDED AS HOLDING TWO OFFICES WITHIN THE MEANING OF THE DUAL OFFICE PROHIBITION IN SECTION 2 OF THE ACT OF JULY 31. REFERS ONLY TO FEDERAL CIVILIAN EMPLOYMENT OF A RESERVIST AND IS NOT APPLICABLE TO A DUAL MILITARY STATUS. ARE AS FOLLOWS: 1. IN THE EVENT SUCH A DUAL STATUS IS AUTHORIZED MAY THE OFFICER PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING AND RECEIVE ACTIVE DUTY BASIC PAY OR INACTIVE DUTY COMPENSATION. ASSUMING THAT RETIRED PAY FOR THE PERTINENT PERIOD IS WAIVED? IT IS INDICATED IN THE DISCUSSION SET FORTH ON THIS MATTER IN COMMITTEE ACTION NO. 180 THAT PRESENT REGULATIONS AND PRACTICES GOVERNING APPOINTMENTS IN THE RESERVE FORCES OF THE UNITED STATES PROHIBIT THE APPOINTMENT OF MEMBERS OF THE REGULAR COMPONENTS.

B-131514, JULY 22, 1957, 37 COMP. GEN. 39

MILITARY PERSONNEL - DUAL EMPLOYMENT PROHIBITION - RETIRED REGULAR ARMY OFFICER APPOINTED AS RESERVE OFFICER A RETIRED REGULAR ARMY OFFICER WHO IS APPOINTED AS A RESERVE OFFICER IN AN ASSIGNED STATUS IS REGARDED AS HOLDING TWO OFFICES WITHIN THE MEANING OF THE DUAL OFFICE PROHIBITION IN SECTION 2 OF THE ACT OF JULY 31, 1894, 5 U.S.C. 62, AND THE EXEMPTION IN 5 U.S.C. 30R, REFERS ONLY TO FEDERAL CIVILIAN EMPLOYMENT OF A RESERVIST AND IS NOT APPLICABLE TO A DUAL MILITARY STATUS.

TO THE SECRETARY OF DEFENSE, JULY 22, 1957:

THE TWO QUESTIONS PRESENTED FOR DECISION IN MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 180, FORWARDED HERE WITH TRANSMITTAL LETTER DATED APRIL 15, 1957, BY THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER), ARE AS FOLLOWS:

1. MAY A RETIRED REGULAR ARMY OFFICER BECOME A MEMBER OF A RESERVE COMPONENT AND SERVE WITH A RESERVE UNIT IN AN ASSIGNED STATUS WITHOUT PREJUDICE TO HIS REGULAR ARMY STATUS?

2. IN THE EVENT SUCH A DUAL STATUS IS AUTHORIZED MAY THE OFFICER PERFORM ACTIVE DUTY FOR TRAINING OR INACTIVE DUTY TRAINING AND RECEIVE ACTIVE DUTY BASIC PAY OR INACTIVE DUTY COMPENSATION, AS APPROPRIATE, ASSUMING THAT RETIRED PAY FOR THE PERTINENT PERIOD IS WAIVED?

IT IS INDICATED IN THE DISCUSSION SET FORTH ON THIS MATTER IN COMMITTEE ACTION NO. 180 THAT PRESENT REGULATIONS AND PRACTICES GOVERNING APPOINTMENTS IN THE RESERVE FORCES OF THE UNITED STATES PROHIBIT THE APPOINTMENT OF MEMBERS OF THE REGULAR COMPONENTS, INCLUDING ACTIVE AND RETIRED MEMBERS. HOWEVER, IT IS POINTED OUT THAT THE ARMY JUDGE ADVOCATE GENERAL HAS RENDERED AN OPINION BASED ON THE PROVISIONS OF SECTION 29 (D), ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R (D), HOLDING THAT A REGULAR ARMY OFFICER "MAY ACCEPT AN APPOINTMENT AS A RESERVE OFFICER WITHOUT AFFECTING HIS STATUS AS A RETIRED REGULAR ARMY OFFICER.' DOUBT IS STATED TO HAVE ARISEN, HOWEVER, BY REASON OF THE PROVISIONS OF SECTION 2, ACT OF JULY 31, 1894, 28 STAT. 205, 5 U.S.C. 62, AS AMENDED, WHICH PROVIDES THAT (QUOTING FROM 5 U.S.C. 62):

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; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

THE ABOVE-QUOTED STATUTORY PROVISIONS CONSTITUTE AN ABSOLUTE BAR TO THE APPOINTMENT TO OR TO THE HOLDING OF "ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW" OF ANY PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500 AND WHOSE STATUS DOES NOT COME WITHIN ONE OF THE SEVERAL SPECIFIC EXEMPTIONS THEREIN EXPRESSLY PRESCRIBED. IT IS WELL ESTABLISHED THAT A RETIRED REGULAR OFFICER OF THE MILITARY SERVICES RECEIVING $2,500 OR MORE PER ANNUM IS WITHIN THE SCOPE OF THIS SECTION. SEE NOTES FOLLOWING F.C.A. 5, SECTION 62. FURTHERMORE, THE SPECIFIC EXEMPTIONS CONTAINED IN THE STATUTE WITH RESPECT TO RETIRED OFFICERS OF THE ARMY, NAVY, AIR FORCE, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AND ALSO WITH RESPECT TO THOSE RETIRED OFFICERS WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY CLEARLY DEMONSTRATE THAT THE STATUTE REACHES ALL OTHER RETIRED REGULAR OFFICERS OF THE UNIFORMED SERVICES.

MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES ARE ENTITLED TO PAY AND ALLOWANCES AS PRESCRIBED BY LAW FOR THE PERFORMANCE OF ACTIVE DUTY, ACTIVE DUTY FOR TRAINING, TRAINING DUTY, APPROPRIATE DUTY, ADMINISTRATIVE FUNCTIONS, ETC. 10 U.S.C. 683 (70A STAT. 31); 37 U.S.C. 301. MEMBERSHIP IN A RESERVE COMPONENT WOULD THUS SEEM TO CONSTITUTE THE HOLDING OF AN OFFICE TO WHICH COMPENSATION IS ATTACHED WITHIN THE SCOPE AND PURPOSE OF 5 U.S.C. 62 AND UNLESS SUBSECTION (D), SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, CAN BE HELD TO CONSTITUTE A FURTHER EXEMPTION FROM THE RESTRICTIONS OF 5 U.S.C. 62, IN THE CASE OF RETIRED REGULAR OFFICERS OF THE UNIFORMED SERVICES, THERE WOULD APPEAR TO BE NO PROPER BASIS, UNLESS OTHERWISE EXPRESSLY PROVIDED BY LAW, FOR THE APPOINTMENT OF A RETIRED REGULAR OFFICER AS A MEMBER OF A RESERVE COMPONENT OF AN ARMED FORCE.

SECTION 29 OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 30R, REENACTED AND GROUPED TOGETHER UNDER THE SINGLE TITLE " RESERVES AND NATIONAL GUARDSMEN WHO ARE FEDERAL EMPLOYEES" THE THEN EXISTING PROVISIONS OF SEVERAL SEPARATE LAWS GOVERNING THE CIVILIAN STATUS OF MEMBERS OF THE RESERVE COMPONENTS OF THE UNIFORMED SERVICES. THE FORMER PROVISIONS OF 10 U.S.C. 371, 371A, 371B; 32 U.S.C. 75 AND 76; AND 50 U.S.C. 981, WERE CONSOLIDATED IN SECTION 29 OF THE 1956 ACT. HOWEVER, IT APPEARS THAT NO CHANGE WAS INTENDED OR MADE WITH RESPECT TO THE SCOPE AND SUBSTANCE OF THE LAWS BEING REPLACED (SEE SECTION 49 (A), 70A STAT. 640) AND, CONSEQUENTLY, THE PROVISIONS OF SUBSECTION (D), FORMERLY SECTION 246, ACT OF JULY 9, 1952, 66 STAT. 495, 50 U.S.C. 981, SEEM TO RELATE SOLELY AND EXCLUSIVELY TO THE BASIC SUBJECT MATTER AND PURPOSES OF SECTION 29, I.E., THE CIVILIAN EMPLOYMENT STATUS OF A RESERVIST.

THUS, THE PROVISIONS OF SUBSECTION (D) OF SECTION 29 ARE APPLICABLE ONLY IN THE CASE OF AN INDIVIDUAL WHO IS A RESERVIST AND PROTECT SUCH A RESERVIST FROM THE DUAL EMPLOYMENT PROVISIONS OF LAW ONLY WITH RESPECT TO THE PURSUIT OF HIS CIVILIAN ACTIVITIES, INCLUDING CIVILIAN GOVERNMENT EMPLOYMENT. SUBSECTION (D) DOES NOT MENTION OR APPEAR TO AUTHORIZE A DUAL MILITARY STATUS SUCH AS A RETIRED STATUS IN THE REGULAR ARMY AND A RESERVE STATUS. UNDER THE STATUTES MENTIONED, WE ARE CONSTRAINED TO HOLD THAT THE APPOINTMENT OF A RETIRED OFFICER OF THE REGULAR ARMY AS A RESERVE OFFICER WOULD BE OF DOUBTFUL VALIDITY AND WOULD MAKE HIS STATUS AS A RETIRED OFFICER OR RESERVIST UNCERTAIN.

IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION PROVIDING FOR SUCH DUAL MILITARY STATUS, QUESTION 1 MUST BE ANSWERED IN THE NEGATIVE.