B-136906, SEPTEMBER 18, 1958, 38 COMP. GEN. 222

B-136906: Sep 18, 1958

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RECEIVED PAY AND ALLOWANCES FROM THE MILITARY SERVICE AND COMPENSATION FROM THE STATE DEPARTMENT IS TO BE REGARDED AS A MILITARY OFFICER ON DETAIL TO ANOTHER AGENCY AND IS ENTITLED TO RECEIVE ONLY THE PAY AND ALLOWANCES FROM THE MILITARY SERVICE AS PROVIDED IN SECTION 302 OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948. 1958: REFERENCE IS MADE TO THE EXCEPTIONS TAKEN BY OUR CIVIL ACCOUNTING AND AUDITING DIVISION AGAINST PAYMENTS OF CIVILIAN COMPENSATION CERTIFIED BY D. CONCURRENTLY WAS PAID HIS MILITARY PAY AND ALLOWANCES. THE RECORDS SHOW THAT WHILE LIEUTENANT MATHIAS WAS ON ACTIVE DUTY WITH THE ST MARINE DIVISION. ON COMPLETION OF WHICH TEMPORARY ADDITIONAL DUTY HE WAS TO RETURN TO HIS STATION AT CAMP PENDLETON AND RESUME HIS REGULAR DUTIES.

B-136906, SEPTEMBER 18, 1958, 38 COMP. GEN. 222

MILITARY PERSONNEL - DETAIL TO A CIVILIAN AGENCY - DOUBLE COMPENSATION AN OFFICER OF THE UNIFORMED SERVICES WHO DURING A PERIOD OF TEMPORARY ADDITIONAL DUTY WITH THE OFFICE OF INTERNATIONAL EDUCATION, DEPARTMENT OF STATE, RECEIVED PAY AND ALLOWANCES FROM THE MILITARY SERVICE AND COMPENSATION FROM THE STATE DEPARTMENT IS TO BE REGARDED AS A MILITARY OFFICER ON DETAIL TO ANOTHER AGENCY AND IS ENTITLED TO RECEIVE ONLY THE PAY AND ALLOWANCES FROM THE MILITARY SERVICE AS PROVIDED IN SECTION 302 OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, 22 U.S.C. 1452, AND THE OFFICER MAY NOT RETAIN THE ADDITIONAL COMPENSATION RECEIVED FROM THE STATE DEPARTMENT UNDER EITHER THE ASSIGNMENT PROVISIONS OF THE ACT OR THE GRANT PROVISIONS IN SECTION 801 OF THE ACT, 22 U.S.C. 1471.

TO THE SECRETARY OF STATE, SEPTEMBER 18, 1958:

REFERENCE IS MADE TO THE EXCEPTIONS TAKEN BY OUR CIVIL ACCOUNTING AND AUDITING DIVISION AGAINST PAYMENTS OF CIVILIAN COMPENSATION CERTIFIED BY D. HOYLMAN AND D. W. HOUSER, AS AUTHORIZED CERTIFYING OFFICERS, ON VOUCHERS NOS. 348412, 5609, 18012, 31916, 42560, AND 80103 OF THE JUNE, JULY, AUGUST AND OCTOBER 1956 ACCOUNTS OF J. F. CANNON, TREASURY DEPARTMENT, IN THE AMOUNT OF $1,292.28 AND $230.76, RESPECTIVELY, BECAUSE FIRST LIEUTENANT ROBERT BRUCE MATHIAS, USMCR, CONCURRENTLY WAS PAID HIS MILITARY PAY AND ALLOWANCES.

THE RECORDS SHOW THAT WHILE LIEUTENANT MATHIAS WAS ON ACTIVE DUTY WITH THE ST MARINE DIVISION, CAMP PENDLETON, CALIFORNIA, THE AMERICAN SPECIALIST DIVISION, INTERNATIONAL EDUCATIONAL EXCHANGE SERVICE, REQUESTED HIS SERVICE FOR PARTICIPATION IN A TOUR UNDER THE PROVISIONS OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, 62 STAT. 6, 22 U.S.C. 1431 NOTE. PURSUANT TO THIS REQUEST THE COMMANDANT OF THE MARINE CORPS UNDER DATE OF MAY 28, 1956, DIRECTED THE COMMANDING GENERAL, ST MARINE DIVISION ( REINF.), FLEET MARINE FORCE, CAMP PENDLETON, CALIFORNIA, TO ORDER LIEUTENANT MATHIAS TO REPORT BY JUNE 17, 1956, TO THE OFFICE OF THE INTERNATIONAL EDUCATIONAL EXCHANGE SERVICE, DEPARTMENT OF STATE, NEW YORK CITY, NEW YORK, FOR "FURTHER TEMPORARY ADDITIONAL DUTY" FOR A PERIOD OF APPROXIMATELY NINE WEEKS, ON COMPLETION OF WHICH TEMPORARY ADDITIONAL DUTY HE WAS TO RETURN TO HIS STATION AT CAMP PENDLETON AND RESUME HIS REGULAR DUTIES. THIS DIRECTIVE ALSO STATED THAT FUNDS FOR THIS FURTHER TEMPORARY ADDITIONAL DUTY, TO INCLUDE TRANSPORTATION FROM LOS ANGELES AND RETURN TO DUTY STATION, WERE TO BE PAID BY THE DEPARTMENT OF STATE. FORM DS-1006," UNITED STATES GOVERNMENT GRANT AUTHORIZATION," NO. 1110-6 DATED MAY 18, 1956, WAS ISSUED FOR THE PURPOSE OF ENABLING LIEUTENANT MATHIAS " TO SERVE AS A UNITED STATES SPECIALIST.' THIS AUTHORIZATION PROVIDED FOR TRAVEL FROM HIS HOME, TULARE, CALIFORNIA, TO NEW YORK, LISBON, CASABLANCA, TUNIS, TRIPOLI, LEOPOLDVILLE, NAIROBI, SALISBURY, KHARTOUM, ROME, LONDON, NEW YORK, WASHINGTON, AND RETURN TO TULARE, CALIFORNIA. IT ALSO PROVIDED FOR COMPENSATION AT THE RATE OF $700 PER MONTH, PAYABLE BI-WEEKLY IN THE AMOUNT OF $323.07, AND FOR PER DIEM AT THE MAXIMUM IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, EXCESS BAGGAGE AND FOR THE PURCHASE OF EDUCATIONAL MATERIALS IN AN AMOUNT NOT TO EXCEED $400, INCLUDING PACKING AND CARTAGE IF SHIPMENT WAS MADE VIA AIR FREIGHT. THIS GRANT WAS AMENDED TO INCLUDE CAIRO, PARIS, AND ADDIS ABABA IN THE ITINERARY AND TO INCREASE THE AMOUNT PROVIDED FOR THE PURCHASE OF EDUCATIONAL MATERIALS FROM $400 TO $655. PART 65.9, TITLE 22, CODE OF FEDERAL REGULATIONS, IS CITED IN THE AUTHORIZATION AS THE APPLICABLE REGULATION UNDER WHICH IT WAS ISSUED, SUCH REGULATION APPARENTLY BEING BASED ON SECTION 801 OF THE 1948 ACT, 22 U.S.C. 1471.

LIEUTENANT MATHIAS DEPARTED FROM TULARE, CALIFORNIA, ON JUNE 16, 1956, AND RETURNED TO LOS ANGELES, CALIFORNIA, ON AUGUST 20, 1956. THE RECORDS SHOW THAT THE AMOUNTS PAID LIEUTENANT MATHIAS FOR THE PERIOD OF HIS TEMPORARY ADDITIONAL DUTY INVOLVED, FROM JUNE 16, 1956, THROUGH AUGUST 20, 1956, WERE AS FOLLOWS:

CHART COMPENSATION AT $700 PER MONTH BY THE DEPARTMENT OF STATE--- $1,523.04 PER DIEM AND INCIDENTAL TRAVEL EXPENSES--------------------- - 715.85 PAY AND ALLOWANCES BY THE UNITED STATES MARINE CORPS----- 1,034.54

TOTAL AMOUNT PAID----------------------------------

$3,273.43

LIEUTENANT MATHIAS HAS SUGGESTED TO THE DEPARTMENT OF STATE THAT THE PROHIBITION CONTAINED IN 5 U.S.C. 62 WOULD APPLY TO THE PAYMENTS FOR HIS DUTY WITH THE DEPARTMENT OF STATE. HOWEVER, IT APPEARS THAT THERE IS INVOLVED HERE NO QUESTION REGARDING THE HOLDING OF MORE THAN ONE OFFICE WITHIN THE CONTEMPLATION OF THAT SECTION OF THE CODE. MOREOVER, THE DETERMINATIONS MADE IN OUR DECISION OF JUNE 19, 1952, 31 COMP. GEN. 670, AND OUR LETTER DATED AUGUST 13, 1957, B-132466, CITED BY THE DEPARTMENT IN REPLY TO THE EXCEPTIONS, WOULD NOT APPEAR TO BE FOR CONSIDERATION HERE, SINCE IN BOTH INSTANCES THERE WERE INVOLVED STUDY GRANTS IN CONNECTION WITH WHICH NO SALARY OR COMPENSATION WAS AUTHORIZED.

ALSO, THE SITUATION INVOLVING A "RETIRED ANNUITANT" CONCERNED IN B 95899, DATED JUNE 23, 1950, IS NOT APPLICABLE IN THIS CASE. IN THAT DECISION WE HELD THAT A GRANT UNDER SECTION 801 OF THE 1948 ACT TO A FORMER CIVILIAN EMPLOYEE OF THE GOVERNMENT WHO WAS RECEIVING A RETIREMENT ANNUITY WOULD NOT APPEAR TO VIOLATE ANY DUAL EMPLOYMENT OR DUAL COMPENSATION STATUTES. SUCH A RETIRED CIVILIAN ANNUITANT HAS NOT BEEN CONSIDERED AS HAVING THE STATUS OF AN EMPLOYEE. 10 COMP. GEN. 118. IN THIS CONNECTION, SECTION 401 OF THE UNITED STATES INFORMATION AND EDUCATIONAL EXCHANGE ACT OF 1948, 62 STAT. 8, 22 U.S.C. 1456, PROVIDES FOR THE UTILIZATION OF THE PERSONNEL OF OTHER GOVERNMENT AGENCIES IN CARRYING ON ANY ACTIVITY UNDER THE ACT. SECTION 301, 22 U.S.C. 1451, AUTHORIZES THE ASSIGNMENT OF ANY CITIZEN OF THE UNITED STATES CURRENTLY IN THE EMPLOYE OR SERVICE OF THE GOVERNMENT OF THE UNITED STATES, WITH THE APPROVAL OF THE GOVERNMENT OF THE UNITED STATES, WITH THE APPROVAL OF THE GOVERNMENT AGENCY IN WHICH SUCH PERSON IS EMPLOYES OR SERVING, TO COOPERATE WITH FOREIGN GOVERNMENTS. SECTION 302, 22 U.S.C. 1452, PROVIDES THAT, WHILE SO ASSIGNED FOR SERVICE TO OR IN COOPERATION WITH ANOTHER GOVERNMENT, SUCH A PERSON SHALL BE CONSIDERED, FOR THE PURPOSE OF PRESERVING HIS RIGHTS, ALLOWANCES, AND PRIVILEGES, AS SUCH,"AN OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES AND OF THE GOVERNMENT AGENCY FROM WHICH ASSIGNED AND HE SHALL CONTINUE TO RECEIVE COMPENSATION FROM THAT AGENCY.' THE SECTION FURTHER PROVIDES THAT SUCH PERSON MAY, UNDER PRESCRIBED REGULATIONS, RECEIVE ALLOWANCES SIMILAR TO THOSE ALLOWED UNDER SECTION 901 (3) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, 22 U.S.C. 1131 (3), AND THE PAYMENT THEREOF SHALL BE CONSIDERED AS MEETING THE REQUIREMENTS OF SECTIONS 1765 OF THE REVISED STATUTES, 5 U.S.C. 70. WHILE SUCH PROVISION EXEMPTS THE AUTHORIZED ALLOWANCES FROM THE RESTRICTIONS ON THE RECEIPT OF EXTRA ALLOWANCES BY AN OFFICER OR EMPLOYEE OF THE GOVERNMENT CONTAINED IN SECTION 1765 OF THE REVISED STATUTES, NO PROVISION HAS BEEN FOUND IN THE 1948 ACT EXEMPTING FROM THE DUAL COMPENSATION RESTRICTIONS ANY SALARY, PAY OR COMPENSATION PAID UNDER THAT ACT TO AN OFFICER OR EMPLOYEE OF THE GOVERNMENT. ALSO, AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE ACT FAILS TO DISCLOSE ANY EVIDENCE THAT THE MONEY APPROPRIATED THEREFOR WAS INTENDED TO BE AVAILABLE FOR THE PAYMENT OF MORE THAN ONE SALARY IN CONTRAVENTION OF THE DUAL EMPLOYMENT AND COMPENSATION STATUTES. ACCORDINGLY, IT IS OUR VIEW THAT SUCH PURPOSE CANNOT LEGALLY BE ACCOMPLISHED BY THE USE OF A GRANT UNDER SECTION 801 OF THE ACT RATHER THAN AN ASSIGNMENT UNDER SECTIONS 301 AND 302 OF THE ACT.

THE QUESTION INVOLVED HERE, THAT IS, WHETHER A PERSON IN THE ACTIVE MILITARY SERVICE MAY IN THE ABSENCE OF STATUTORY AUTHORITY BE EMPLOYED IN ANOTHER CAPACITY UNDER THE GOVERNMENT AND BE PAID THEREFOR IS NOT A NEW ONE. IN THIS CONNECTION, IT CONSISTENTLY HAS BEEN HELD THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, UNTIL HIS ACTIVE MILITARY SERVICE HAS TERMINATED HE MAY BE PAID ONLY THE PAY AND ALLOWANCES THAT ACCRUE TO HIM UNDER THE LAWS AND REGULATIONS APPLICABLE TO HIS MILITARY SERVICE. CF. 4 OP. ATTY. GEN. 138; 18 COMP. GEN. 213; ID. 526; 30 ID. 371.

THE SERVICES OF LIEUTENANT MATHIAS WERE REQUESTED BY THE DEPARTMENT OF STATE AND PURSUANT TO COMPETENT ORDERS OF THE MARINE CORPS HE WAS ASSIGNED TO THE DEPARTMENT OF STATE FOR FURTHER TEMPORARY ADDITIONAL DUTY WITH DIRECTIONS TO RETURN TO HIS REGULAR STATION AT CAMP PENDLETON, CALIFORNIA, AND RESUME HIS REGULAR DUTIES THERE AT THE COMPLETION OF THIS ASSIGNMENT. THE MARINE CORPS CONTINUED PAYMENTS OF HIS PAY AND ALLOWANCES FOR THE ENTIRE PERIOD INVOLVED AS PROVIDED BY SECTION 302 OF THE 1948 STATUTE. HENCE, THERE APPEARS TO BE NO QUESTION BUT THAT HIS STATUS, FOR PAY PURPOSES, WAS THAT OF AN OFFICER OF THE MARINE CORPS ON TEMPORARY DETAIL TO ANOTHER AGENCY FOR THE PERIOD OF JUNE 16 THROUGH AUGUST 20, 1956. FOLLOWS THAT THE COMPENSATION PAID LIEUTENANT MATHIAS BY THE DEPARTMENT OF STATE, IN THE AMOUNT OF $1,523.04 (IN ADDITION TO THE PAYMENTS BY THE MARINE CORPS OF PAY AND ALLOWANCES TOTALING $1,034.54) FOR THE PERIOD WAS ADDITIONAL COMPENSATION, TO WHICH HE WAS NOT ENTITLED UNDER THE PERTINENT STATUTES AND DECISIONS. ACCORDINGLY, THE MATTER IS BROUGHT TO YOUR ATTENTION FOR APPROPRIATE ACTION.