B-149422, AUGUST 3, 1962, 42 COMP. GEN. 73

B-149422: Aug 3, 1962

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TO A NAVY OFFICER RETIRED FOR DISABILITY WHO IS EMPLOYED AS HEAD FOOTBALL COACH BY THE AIR FORCE ACADEMY ATHLETIC ASSOCIATION. " THE TEST IS NOT WHETHER THE COMPENSATION AS COACH IS PAID FROM APPROPRIATED FUNDS BUT WHETHER THE THE POSITION IS AN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT. THE POSITION OF FOOTBALL COACH IS TO BE CONSIDERED AN APPOINTED ONE "UNDER THE UNITED STATES GOVERNMENT" SUBJECT TO THE DOUBLE COMPENSATION RESTRICTION AND THE RETIRED OFFICER IS NOT ENTITLED TO RETIRED PAY WHEN HIS COMPENSATION AS COACH IS IN EXCESS OF THE $10. IS ENTITLED TO RECEIVE HIS RETIRED PAY IN ADDITION TO SALARY AS A CIVILIAN EMPLOYEE. YOUR REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO.

B-149422, AUGUST 3, 1962, 42 COMP. GEN. 73

COMPENSATION - DOUBLE - CONCURRENT MILITARY RETIRED AND CIVILIAN SERVICE PAY - NONAPPROPRIATED FUND POSITIONS IN THE DETERMINATION OF THE APPLICABILITY TO THE DOUBLE COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 5 U.S.C. 59A, TO A NAVY OFFICER RETIRED FOR DISABILITY WHO IS EMPLOYED AS HEAD FOOTBALL COACH BY THE AIR FORCE ACADEMY ATHLETIC ASSOCIATION, A NONPROFIT AFFILIATED ORGANIZATION OPERATED UNDER DELEGATED AUTHORITY BY THE SUPERINTENDENT OF THE AIR FORCE ACADEMY ,UNDER THE GENERAL SUPERVISION OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE," THE TEST IS NOT WHETHER THE COMPENSATION AS COACH IS PAID FROM APPROPRIATED FUNDS BUT WHETHER THE THE POSITION IS AN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT; " THEREFORE, IN VIEW OF THE ORGANIZATION AND SUPERVISION OF THE ASSOCIATION UNDER OFFICERS OF THE AIR FORCE, THE POSITION OF FOOTBALL COACH IS TO BE CONSIDERED AN APPOINTED ONE "UNDER THE UNITED STATES GOVERNMENT" SUBJECT TO THE DOUBLE COMPENSATION RESTRICTION AND THE RETIRED OFFICER IS NOT ENTITLED TO RETIRED PAY WHEN HIS COMPENSATION AS COACH IS IN EXCESS OF THE $10,000 LIMITATION IN THE 1932 ACT.

TO COMMANDER M. M. ALEXANDER, DEPARTMENT OF THE NAVY, AUGUST 3, 1962:

BY SECOND ENDORSEMENT DATED JULY 11, 1962, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF JUNE 18, 1962, REQUESTING A DECISION WHETHER IN VIEW OF THE LIMITATIONS IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, CH. 314, 47 STAT. 416, AS AMENDED, 5 U.S.C. 59A, LIEUTENANT (JG) BENJAMIN S. MARTIN, USN, RETIRED, 447677, IS ENTITLED TO RECEIVE HIS RETIRED PAY IN ADDITION TO SALARY AS A CIVILIAN EMPLOYEE. YOUR REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. DO-N 662 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT ON AUGUST 1, 1949, LIEUTENANT MARTIN WAS TRANSFERRED TO THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY PURSUANT TO 34 U.S.C. 417 (1946 ED.). THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE NAVY HAS DETERMINED THAT THE DISABILITY FOR WHICH HE WAS RETIRED WAS NEITHER COMBAT INCURRED WITH AN ENEMY OF THE UNITED STATES NOR CAUSED BY AN INSTRUMENTALITY OF WAR SO AS TO EXEMPT HIM FROM THE RESTRICTIONS OF SECTION 212 OF THE ECONOMY ACT. IT IS FURTHER REPORTED THAT SINCE FEBRUARY 1, 1958, THE OFFICER HAS BEEN EMPLOYED AS HEAD FOOTBALL COACH BY THE UNITED STATES AIR FORCE ACADEMY ATHLETIC ASSOCIATION, UNITED STATES AIR FORCE ACADEMY, COLORADO, AND THAT HIS PRESENT ANNUAL SALARY IS $16,500. IT IS ASSUMED THAT SUCH SALARY IS PAID FROM NONAPPROPRIATED FUNDS. BECAUSE OF HIS DISABILITY RETIREMENT, THE OFFICER IS EXEMPT FROM THE DUAL OFFICE RESTRICTIONS CONTAINED IN THE ACT OF JULY 31, 1894, CH. 174, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62.

SECTION 212 OF THE ECONOMY ACT PROVIDES THAT AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT" SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY,TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER OF THE UNIFORMED SERVICES AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL ANNUAL RATE FROM BOTH SOURCES MORE THAN $10,000.

IT HAS BEEN HELD THAT THE TERM "OFFICE OR POSITION" AS USED IN THE 1932 LAW HAS A BROADER MEANING THAN THE TERM "OFFICE" AS USED IN THE 1894 LAW. WHILE EMPLOYMENT BY NONAPPROPRIATED FUND ACTIVITIES, SUCH AS POST EXCHANGES AND OFFICERS' MESSES, IS NOT CONSIDERED TO BE WITHIN THE PURVIEW OF THE TERM "OFFICE" AS USED IN THE 1894 LAW, SUCH EMPLOYEES CONSISTENTLY HAVE BEEN HELD TO OCCUPY AN "OFFICE OR POSITION" UNDER THE UNITED STATES GOVERNMENT AS THAT TERM IS USED IN THE DUAL COMPENSATION PROVISIONS OF THE 1932 LAW. SEE 36 COMP. GEN. 309. IN THIS CONNECTION, BY MEMORANDUM DATED SEPTEMBER 28, 1954, THE SECRETARY OF THE AIR FORCE AUTHORIZED THE SUPERINTENDENT OF THE UNITED STATES AIR FORCE ACADEMY TO FORM AN UNINCORPORATED, NONPROFIT ACADEMY AFFILIATED MEMBERSHIP ORGANIZATION, THAT IS, A NONMILITARY "ACTIVITY OF THE DEPARTMENT OF THE UNITED STATES AIR FORCE.' THE ASSOCIATION WAS DESIGNATED AS AN "OPERATING AGENCY, THROUGH WHICH THE SUPERINTENDENT OF THE UNITED STATES AIR FORCE ACADEMY WOULD EXERCISE CONTROL OVER THE PARTICIPATION OF THE CADETS OF THE AIR FORCE ACADEMY IN INTERCOLLEGIATE ATHLETICS. WHILE IT WAS STATED THAT THE ASSOCIATION WOULD NOT BE SUBJECT TO AIR FORCE REGULATION 176-1 AND RELATED AIR FORCE REGULATIONS AND POLICIES GOVERNING NONAPPROPRIATED FUNDS, THE OPERATION AND SUPERVISION OF THE ASSOCIATION'S ACTIVITIES WERE DELEGATED TO THE SUPERINTENDENT, WHO WAS MADE RESPONSIBLE THEREFOR, WITH EXPRESS AUTHORITY TO PRESCRIBE THE ORGANIZATION AND UTILIZE THE OFFICIALS NECESSARY FOR THE MANAGEMENT AND OPERATION OF THE ASSOCIATION AND ITS ACTIVITIES,"UNDER THE GENERAL SUPERVISION OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE.'

SECTION 1 OF THE ACT OF JUNE 19, 1952, CH. 444, 66 STAT. 138, 5 U.S.C. 15OK, PROVIDES, AS FOLLOWS:

CIVILIAN EMPLOYEES, COMPENSATED FROM NONAPPROPRIATED FUNDS, OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ARMY AND AIR FORCE MOTION PICTURE SERVICE, NAVY SHIP'S STORES ASHORE, NAVY EXCHANGES, MARINE CORPS EXCHANGES, COAST GUARD EXCHANGES, AND OTHER INSTRUMENTALITIES OF THE UNITED STATES UNDER THE JURISDICTION OF THE ARMED FORCES CONDUCTED FOR THE COMFORT, PLEASURE, CONTENTMENT, AND MENTAL AND PHYSICAL IMPROVEMENT OF PERSONNEL OF THE ARMED FORCES, SHALL NOT BE HELD AND CONSIDERED AS EMPLOYEES OF THE UNITED STATES FOR THE PURPOSE OF ANY LAWS ADMINISTERED BY THE CIVIL SERVICE COMMISSION OR THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT, AS AMENDED: PROVIDED, THAT THE STATUS OF THESE NONAPPROPRIATED FUND ACTIVITIES AS FEDERAL INSTRUMENTALITIES SHALL NOT BE AFFECTED.

THE LEGISLATIVE HISTORY OF THE ACT OF JUNE 19, 1952, SHOWS THAT THE ACT WAS PASSED BECAUSE THE CIVIL SERVICE COMMISSION BELIEVED THAT, IN VIEW OF THE DECISION IN THE CASE OF STANDARD OIL COMPANY OF CALIFORNIA V. JOHNSON, 316 U.S. 481 (1942), IT WOULD BE "NECESSARY TO CONSIDER PERSONS EMPLOYED IN THESE ACTIVITIES AS FEDERAL EMPLOYEES AND SUBJECT TO THE USUAL PERSONNEL LAWS.' SEE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE REPORT NO. 1206, TO ACCOMPANY S. 1828, 82D CONGRESS. THE 1952 ACT CLEARLY IMPLIES THAT EMPLOYEES OF THE INSTRUMENTALITIES THERE MENTIONED ARE CIVILIAN EMPLOYEES OF THE UNITED STATES FOR THE PURPOSE OF LAWS OTHER THAN THOSE THERE LISTED.

WHILE THE FACT THAT AN OFFICER OR EMPLOYEE IS NOT PAID FROM APPROPRIATED FUNDS MAY BE AN INDICATION OF A NON-FEDERAL EMPLOYMENT STATUS, IT HAS BEEN HELD THAT THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT IS NOT DEPENDENT UPON WHETHER THE COMPENSATION OF THE CIVILIAN POSITION IS PAID FROM APPROPRIATED FUNDS, THE CONTROLLING TEST BEING WHETHER THE CIVILIAN OFFICE OR POSITION SO HELD IS, IN FACT, AN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT.' SEE 24 COMP. GEN. 771; 26 ID. 122 AND 33 ID. 302. CF. UNITED STATES V. FORFARI, 268 F.2D 29 (1959), CERTIORARI DENIED, 361 U.S. 902.

IN THE LIGHT OF THE PROVISIONS OF THE MEMORANDUM DATED SEPTEMBER 28, 1954, THERE APPEARS TO BE NO BASIS FOR A CONCLUSION OTHER THAN THAT THE CIVILIAN POSITION IN QUESTION IS AN APPOINTIVE ONE ,UNDER THE UNITED STATES GOVERNMENT" AND, THEREFORE, IS WITHIN THE PURVIEW OF SECTION 212 OF THE ECONOMY ACT. IT APPEARS THAT THE CIVILIAN COMPENSATION PAID TO LIEUTENANT MARTIN FOR THE PERIOD FEBRUARY 1, 1958, TO MAY 31, 1962, WAS IN EXCESS OF THE $10,000 PER ANNUM LIMITATION PRESCRIBED BY SECTION 212, HE WAS NOT ENTITLED TO THE RETIRED PAY PAID TO HIM.