B-149050, JULY 27, 1962, 42 COMP. GEN. 58

B-149050, JULY 27, 1962, 42 COMP. GEN. 58

DETAILS - MILITARY PERSONNEL - UNITED NATIONS - DIRECT PAYMENT OF ALLOWANCES, ETC. MEMBERS OF THE ARMED FORCES DETAILED TO THE UNITED NATIONS UNDER SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, AS AMENDED, ARE NOT PROHIBITED BY SECTION 625 (H) OF PUBLIC LAW 87-195 (22 U.S.C. 2385 (H) (, RESTRICTING THE ACCEPTANCE OF COMPENSATION OR OTHER BENEFITS FROM FOREIGN COUNTRIES, FROM ACCEPTING DIRECTLY FROM THE UNITED NATIONS AN ALLOWANCE TO THE EXTENT OF THE DIFFERENCE BETWEEN STATION ALLOWANCES PRESCRIBED FOR MEMBERS ON PERMANENT DUTY IN THE AREA TO WHICH THEY ARE DETAILED AND THE AMOUNT RECEIVED FROM THE UNITED NATIONS AS MISSION SUBSISTENCE ALLOWANCE, THE RESTRICTION APPLYING ONLY TO UNITED STATES PERSONNEL PERFORMING FUNCTIONS UNDER PUBLIC LAW 87-195 AND NOT AFFECTING SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, ALSO, THE DETAIL TO THE UNITED NATIONS IS NOT CONSIDERED A DETAIL TO A FOREIGN COUNTRY WITHIN THE CONTEMPLATION OF THE RESTRICTION; THEREFORE, DETAILED ARMED FORCES PERSONNEL MAY ACCEPT AN ALLOWANCE DIRECTLY FROM THE UNITED NATIONS.

TO THE SECRETARY OF THE AIR FORCE, JULY 27, 1962:

BY LETTER OF MAY 21, 1962, THE UNDER SECRETARY OF THE AIR FORCE REQUESTED OUR DECISION AS TO THE ACCEPTANCE OF ALLOWANCES DIRECTLY FROM THE UNITED NATIONS BY MEMBERS OF THE ARMED FORCES DETAILED TO SERVE WITH THAT ORGANIZATION AND WHETHER THE JOINT TRAVEL REGULATIONS MAY BE REVISED TO PROVIDE THAT UNITED NATIONS MISSION PERSONNEL SHALL BE ENTITLED TO STATION ALLOWANCES AS PRESCRIBED IN CHAPTER 4, PART G OF THOSE REGULATIONS, BUT ONLY TO THE EXTENT THAT THE TOTAL ALLOWANCES PRESCRIBED FOR MEMBERS ON PERMANENT DUTY IN THE SAME AREA EXCEEDS THE AMOUNT THAT DETAILED PERSONNEL RECEIVE DIRECTLY FROM THE UNITED NATIONS AS MISSION SUBSISTENCE ALLOWANCE. THE REQUEST WAS ASSIGNED CONTROL NO. 62-11 BY THE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, AS AMENDED BY SECTION 5 OF THE ACT OF OCTOBER 10, 1949, 63 STAT. 735, 736 (22 U.S.C. 287D-1 (A) (1) (, PROVIDES THAT THE PRESIDENT IS AUTHORIZED, UNDER CERTAIN CONDITIONS, TO DETAIL TO THE UNITED NATIONS PERSONNEL OF THE ARMED FORCES TO SERVE AS OBSERVERS, GUARDS, OR IN ANY NONCOMBATANT CAPACITY. WHILE SO DETAILED, SUCH PERSONNEL ARE CONSIDERED FOR ALL PURPOSES AS ACTING IN THE LINE OF DUTY, INCLUDING THE RECEIPT OF PAY AND ALLOWANCES AS PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES. IT FURTHER PROVIDED THAT UPON AUTHORIZATION OR APPROVAL BY THE PRESIDENT, SUCH PERSONNEL MAY ACCEPT DIRECTLY FROM THE UNITED NATIONS (1) ANY OR ALL ALLOWANCES OR PERQUISITES TO WHICH THEY ARE OTHERWISE ENTITLED, AND (2) EXTRAORDINARY EXPENSES AND PERQUISITES INCIDENT TO SUCH DETAIL. BY EXECUTIVE ORDER NO. 10206, DATED JANUARY 19, 1951, THE PRESIDENT DELEGATED TO THE SECRETARY OF DEFENSE THE AUTHORITY TO AUTHORIZE PERSONNEL SO DETAILED TO ACCEPT THE ALLOWANCES AND EXTRAORDINARY EXPENSES MENTIONED IN THE ACT.

THE UNDER SECRETARY QUESTIONS WHETHER THE INVOLVED PERSONNEL OF THE ARMED FORCES MAY ACCEPT ALLOWANCES DIRECTLY FROM THE UNITED NATIONS, OR WHETHER THE PROVISION CONTAINED IN SUBSECTION 625 (H) OF PUBLIC LAW 87-195, 75 STAT. 451, 22 U.S.C. 2385 (H), PROHIBITS THE ACCEPTANCE OF SUCH ALLOWANCES. THAT SUBSECTION PROVIDES, AS FOLLOWS:

NOTWITHSTANDING ANY OTHER PROVISION OF LAW, OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT PERFORMING FUNCTIONS UNDER THIS ACT SHALL NOT ACCEPT FROM ANY FOREIGN COUNTRY ANY COMPENSATION OR OTHER BENEFITS. ARRANGEMENTS MAY BE MADE BY THE PRESIDENT WITH SUCH COUNTRIES FOR REIMBURSEMENT TO THE UNITED STATES GOVERNMENT OR OTHER SHARING OF THE COST OF PERFORMING SUCH FUNCTIONS.

BY ITS OWN TERMS THE RESTRICTION IS LIMITED TO THE ACCEPTANCE OF COMPENSATION OR OTHER BENEFITS FROM FOREIGN COUNTRIES BY OFFICERS OR EMPLOYEES PERFORMING FUNCTIONS UNDER THAT ACT. SECTION 503 OF THE SAME ACT, 22 U.S.C. 2311, PROVIDES THAT THE PRESIDENT IS AUTHORIZED TO FURNISH MILITARY ASSISTANCE TO ANY FRIENDLY COUNTRY OR INTERNATIONAL ORGANIZATION BY ASSIGNING OR DETAILING MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER PERSONNEL OF THE DEPARTMENT OF DEFENSE TO PERFORM DUTIES OF A NONCOMBATANT NATURE, INCLUDING THOSE RELATED TO TRAINING OR ADVICE. ALSO SECTION 627 OF THE ACT, 22 U.S.C. 2387, PROVIDES FOR DETAILING OFFICERS AND EMPLOYEES OF ANY AGENCY OF THE UNITED STATES GOVERNMENT TO FOREIGN GOVERNMENTS TO CARRY OUT THE PURPOSES OF THE ACT. APPARENTLY IT IS SUCH DETAILING OF PERSONNEL TO WHICH THE PROHIBITION IN SUBSECTION 625 (H) IS DIRECTED.

NEITHER PUBLIC LAW 87-195 NOR ITS LEGISLATIVE HISTORY SUGGESTS THAT THIS ACT WAS INTENDED AS AMENDING SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, AS AMENDED. THE LEGISLATIVE HISTORY OF SUBSECTION 625 (H) OF PUBLIC LAW 87-195 (PAGE 39, S.REPT. 612, 87TH CONG., 1ST SESS.) SHOWS THAT THIS PROVISION WAS TAKEN FROM SECTION 527 (E) OF THE MUTUAL SECURITY ACT OF 1954 AS ADDED BY SECTION 401 (E) OF PUBLIC LAW 85-477, 72 STAT. 269. THAT SUBSECTION (22 U.S.C. 1787 (C) READS AS FOLLOWS:

NOTWITHSTANDING THE PROVISIONS OF SECTION 712 OF TITLE 10, OR ANY OTHER LAW CONTAINING SIMILAR AUTHORITY, OFFICERS AND EMPLOYEES OF THE UNITED STATES PERFORMING FUNCTIONS UNDER THIS CHAPTER SHALL NOT ACCEPT FROM ANY FOREIGN NATION ANY COMPENSATION OR OTHER BENEFITS. ARRANGEMENTS MAY BE MADE BY THE PRESIDENT WITH SUCH NATIONS FOR REIMBURSEMENT TO THE UNITED STATES OR OTHER SHARING OF THE COST OF PERFORMING SUCH FUNCTIONS.

SUCH PROVISION WAS OFFERED BY SENATOR MANSFIELD AS AN AMENDMENT WHICH WAS INCORPORATED IN PUBLIC LAW 85-477 AND IT APPEARS FROM ITS LEGISLATIVE HISTORY (104 CONG.REC. 7449-7451 (1958) (, THAT HE WAS CONCERNED WITH THE ADMINISTRATION OF THE MILITARY ASSISTANCE PROGRAM IN LATIN AMERICAN COUNTRIES. UNDER THE PRACTICE THEN IN EFFECT, OFFICERS DETAILED TO THOSE COUNTRIES TO ADMINISTER THE PROGRAM WERE PERMITTED TO RECEIVE COMPENSATION AND OTHER BENEFITS FROM THE FOREIGN GOVERNMENT TO WHICH ASSIGNED. THE VIEW WAS EXPRESSED THAT UNDER THAT ARRANGEMENT THERE MAY BE A CONFLICT OF INTEREST AND EVEN OF LOYALTY IN SERVING THE FOREIGN GOVERNMENT AS WELL AS THE GOVERNMENT OF THE UNITED STATES. THERE IS NO INDICATION THAT THE RESTRICTION WAS INTENDED AS AFFECTING SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, AS AMENDED, NOR DOES IT APPEAR THAT THE UNITED NATIONS COULD PROPERLY BE CONSIDERED A FOREIGN NATION WITHIN THE CONTEMPLATION OF THE RESTRICTION. HENCE, IT IS CONCLUDED THAT SUBSECTION 625 (H) OF PUBLIC LAW 87-195 DOES NOT PROHIBIT THE ACCEPTANCE OF ALLOWANCES UNDER THE PROVISIONS OF SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, AS AMENDED. IN THE CIRCUMSTANCES, THE JOINT TRAVEL REGULATIONS MAY BE AMENDED IN THE MANNER SUGGESTED.