B-155038, OCTOBER 23, 1964, 44 COMP. GEN. 227

B-155038, OCTOBER 23, 1964, 44 COMP. GEN. 227

MILITARY PERSONNEL - ACCEPTANCE OF FOREIGN PRESENTS, EMOLUMENTS, ETC. - FOREIGN GOVERNMENT EMPLOYMENT - FLEET RESERVISTS. PAY - RETIRED - FOREIGN CITIZENSHIP EFFECT SINCE AN ENLISTED MEMBER OF THE NAVY WHO IS TRANSFERRED TO THE FLEET RESERVE CONTINUES TO BE SUBJECT TO CALL TO ACTIVE DUTY AND RECEIVES RETAINER PAY FOR MEMBERSHIP AND SERVICE IN THE FLEET RESERVE, A FLEET RESERVIST WHO ACCEPTS EMPLOYMENT WITH A FOREIGN GOVERNMENT, WITHOUT THE CONSENT OF CONGRESS, MUST BE REGARDED AS HOLDING AN "OFFICE" WITHIN THE MEANING OF ARTICLE I, SECTION 9, CLAUSE 8 OF THE UNITED STATES CONSTITUTION, PROHIBITING PERSONS HOLDING "OFFICES" FROM ACCEPTING EMOLUMENTS FROM A FOREIGN STATE, AND, THEREFORE, THE ACCEPTANCE OF SUCH EMPLOYMENT WOULD AFFECT THE MEMBER'S ENTITLEMENT TO RECEIVE RETAINER PAY. A MEMBER OF THE FLEET RESERVE WHO BECOMES A CITIZEN OF A FOREIGN COUNTRY, EITHER AFTER TRANSFER TO THE FLEET RESERVE OR TRANSFER TO THE RETIRED LIST, IS REGARDED AS HAVING TAKEN A VOLUNTARY ACTION INCONSISTENT WITH HIS OATH OF ALLEGIANCE TO THE UNITED STATES TO WARRANT TERMINATION OF RETAINER OR RETIRED PAY.

TO THE SECRETARY OF THE NAVY, OCTOBER 23, 1964:

REFERENCE IS MADE TO LETTER OF AUGUST 20, 1964, FROM THE UNDER SECRETARY OF THE NAVY, REQUESTING A DECISION AS TO (A) WHETHER THE ACCEPTANCE OF EMPLOYMENT WITH A FOREIGN GOVERNMENT--- WITHOUT THE CONSENT OF CONGRESS--- BY AN ENLISTED MEMBER OF THE REGULAR NAVY, HERETOFORE TRANSFERRED TO THE FLEET RESERVE, WOULD AFFECT HIS ENTITLEMENT TO CONTINUE TO RECEIVE RETAINER AY; (B) WHETHER HIS BECOMING A CITIZEN OF THE EMPLOYING FOREIGN GOVERNMENT WOULD AFFECT HIS ENTITLEMENT TO CONTINUE TO RECEIVE RETAINER PAY, AND (C) WHETHER THE RESULT WOULD BE THE SAME, IN EACH INSTANCE, IF HIS ACCEPTANCE OF EMPLOYMENT BY A FOREIGN GOVERNMENT OR ACQUISITION OF FOREIGN CITIZENSHIP SHOULD BE DEFERRED UNTIL AFTER THE DATE OF HIS PROSPECTIVE TRANSFER TO THE RETIRED LIST OF THE REGULAR NAVY UNDER THE PROVISIONS OF 10 U.S.C. 6331. THE REQUEST FOR DECISION HAS BEEN ASSIGNED SUBMISSION NO. SS-N 795 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

DOUBT ARISES IN REGARD TO QUESTION (A) BY REASON OF A POSSIBLE VIOLATION BY THE MEMBER OF THE EIGHTH CLAUSE OF ARTICLE 1, SECTION 9, OF THE UNITED STATES CONSTITUTION, WHICH PROVIDES AS FOLLOWS:

NO TITLE OF NOBILITY SHALL BE GRANTED BY THE UNITED STATES: AND NO PERSON HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THEM, SHALL, WITHOUT THE CONSENT OF THE CONGRESS, ACCEPT OF ANY PRESENT, EMOLUMENT, OFFICE, OR TITLE, OF ANY KIND WHATEVER, FROM ANY KING, PRINCE, OR FOREIGN STATE.

IT IS REPORTED THAT THE MEMBER INVOLVED WAS TRANSFERRED TO THE FLEET RESERVE ON MAY 1, 1963. HE HAD NO SERVICE AS EITHER AN OFFICER OR WARRANT OFFICER. HE IS A CITIZEN OF THE UNITED STATES BY BIRTH. AS A CONDITION OF EMPLOYMENT BY THE FOREIGN GOVERNMENT HE MAY BE REQUIRED TO ACQUIRE CITIZENSHIP IN THE FOREIGN COUNTRY, EITHER AT THE TIME OF HIS ACCEPTANCE OF EMPLOYMENT OR AT A LATER DATE.

ENLISTED MEMBERS OF THE REGULAR NAVY WHO HAVE COMPLETED 20 OR MORE YEARS OF ACTIVE SERVICE IN THE ARMED FORCES MAY, UPON THEIR OWN REQUEST, BE TRANSFERRED TO THE FLEET RESERVE AND ARE ENTITLED TO BE PAID "RETAINER PAY" UNDER THE PROVISIONS OF 10 U.S.C. 6330. UPON COMPLETION OF 30 YEARS' ACTIVE AND INACTIVE SERVICE, SUCH MEMBERS ARE TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY. UNLESS OTHERWISE ENTITLED TO HIGHER PAY, A MEMBER SO TRANSFERRED (TO THE RETIRED LIST OF THE REGULAR NAVY) IS ENTITLED TO BE PAID RETIRED PAY AT THE SAME RATE AS THE RETAINER PAY TO WHICH HE WAS ENTITLED AT THE TIME OF HIS TRANSFER TO THE RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 6331.

MEMBERS OF THE REGULAR NAVY WHO ARE TRANSFERRED TO THE FLEET RESERVE MAY BE ORDERED TO ACTIVE DUTY, WITHOUT THEIR CONSENT, IN TIME OF WAR OR NATIONAL EMERGENCY AND IN TIME OF PEACE MAY BE REQUIRED TO PERFORM ACTIVE DUTY FOR TRAINING. 10 U.S.C. 6485. IN SUCH CIRCUMSTANCES AND SINCE THEY RECEIVE COMPENSATION IN THE FORM OF RETAINER PAY FOR THEIR MEMBERSHIP AND SERVICE IN THE FLEET RESERVE, THERE APPEARS NO BASIS FOR A CONCLUSION THAT THEY DO NOT REMAIN A PART OF THE NAVAL SERVICE FOR DUTY AND PAY PURPOSES. IN VIEW OF THE HOLDING IN B-154213, SEPTEMBER 11, 1964, 44 COMP. GEN. 130, THAT A RETIRED ENLISTED MAN OF THE UNITED STATES COAST GUARD HOLDS AN "OFFICE" WITHIN THE MEANING OF THE ABOVE QUOTED CONSTITUTIONAL PROVISION, IT WOULD SEEM THAT, A FORTIORI, A MEMBER OF THE FLEET RESERVE MUST BE REGARDED AS HOLDING SUCH AN "OFFICE," SINCE HE MAY BE REQUIRED TO PERFORM ACTIVE DUTY IN TIME OF PEACE (FOR TRAINING), AS WELL AS IN TIME OF WAR OR NATIONAL EMERGENCY, AS IS TRUE IN THE CASE OF A RETIRED ENLISTED MAN. ACCORDINGLY, QUESTION (A) IS ANSWERED IN THE AFFIRMATIVE.

THE UNDER SECRETARY OF THE NAVY REFERS TO OUR DECISION DATED AUGUST 4, 1964, B-154218, 44 COMP. GEN. 51, AS FOR POSSIBLE APPLICATION IN THIS MATTER. IN THAT DECISION IT WAS HELD THAT WHILE CITIZENSHIP IS NOT A REQUIREMENT IN ALL CASES FOR ENLISTMENT IN THE ARMED FORCES, IF A RETIRED ENLISTED MEMBER OF A REGULAR COMPONENT OF THE ARMED FORCES IS A CITIZEN, IT WOULD SEEM THAT LOSS OF HIS CITIZENSHIP AS A RESULT OF HIS OWN VOLUNTARY ACTION BY ACQUIRING CITIZENSHIP IN A FOREIGN COUNTRY WOULD BE INCONSISTENT WITH HIS OATH OF ALLEGIANCE TO THE UNITED STATES (10 U.S.C. 501), AND THUS WOULD BE SO REPUGNANT TO HIS STATUS AS A MEMBER OF THE ARMED FORCES OF THE UNITED STATES AS TO WARRANT THE TERMINATION OF HIS RETIRED PAY. THE REASONING IN THAT CASE APPLIES WITH EQUAL FORCE TO A MEMBER OF THE FLEET RESERVE. ACCORDINGLY, QUESTION (B) IS ANSWERED IN THE AFFIRMATIVE. COMPARE 41 COMP. GEN. 715.

IN VIEW OF THE ANSWERS TO QUESTIONS (A) AND (B), QUESTION (C) MUST BE ANSWERED IN THE AFFIRMATIVE ALSO.