B-157727, NOV. 24, 1965, 45 COMP. GEN. 289

B-157727: Nov 24, 1965

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COMPENSATION - DOUBLE - EXEMPTIONS - DUAL COMPENSATION ACT - INDEPENDENT OFFICERS ORGANIZATION A MARINE CORPS OFFICER TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST FOR A DISABILITY THAT WAS NOT THE DIRECT RESULT OF DUTY IN AN ARMED CONFLICT OR CAUSED BY AN INSTRUMENTALITY OF WAR INCURRED IN LINE OF DUTY DURING A WAR WHO IS EMPLOYED AS BUSINESS MANAGER OF THE UNITED STATES MARINE CORPS ASSOCIATION IS NOT SUBJECT TO THE REDUCTION IN RETIRED PAY PRESCRIBED BY SECTION 201 (A) OF THE DUAL COMPENSATION ACT. ONE THAT IS NOT UNDER THE JURISDICTION OF THE MARINE CORPS. IS NOT A "NON-APPROPRIATED FUND INSTRUMENTALITY" OF THE UNITED STATES WITHIN THE MEANING OF SECTION 101 (3) OF THE ACT. NOTWITHSTANDING THE POSITIONS OF LEADERSHIP AND AUTHORITY IN THE ORGANIZATION ARE HELD BY MARINE CORPS OFFICERS.

B-157727, NOV. 24, 1965, 45 COMP. GEN. 289

COMPENSATION - DOUBLE - EXEMPTIONS - DUAL COMPENSATION ACT - INDEPENDENT OFFICERS ORGANIZATION A MARINE CORPS OFFICER TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST FOR A DISABILITY THAT WAS NOT THE DIRECT RESULT OF DUTY IN AN ARMED CONFLICT OR CAUSED BY AN INSTRUMENTALITY OF WAR INCURRED IN LINE OF DUTY DURING A WAR WHO IS EMPLOYED AS BUSINESS MANAGER OF THE UNITED STATES MARINE CORPS ASSOCIATION IS NOT SUBJECT TO THE REDUCTION IN RETIRED PAY PRESCRIBED BY SECTION 201 (A) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, THE ASSOCIATION, A VOLUNTARY ONE OBTAINING REVENUE FROM DUES, INVESTMENTS AND PUBLICATION OF A PERIODICAL, AND ONE THAT IS NOT UNDER THE JURISDICTION OF THE MARINE CORPS, IS NOT A "NON-APPROPRIATED FUND INSTRUMENTALITY" OF THE UNITED STATES WITHIN THE MEANING OF SECTION 101 (3) OF THE ACT, NOTWITHSTANDING THE POSITIONS OF LEADERSHIP AND AUTHORITY IN THE ORGANIZATION ARE HELD BY MARINE CORPS OFFICERS, AND THE OFFICER ON THE TEMPORARY DISABILITY RETIRED LIST EMPLOYED AS BUSINESS MANAGER OF THE MARINE CORPS ORGANIZATION IS ENTITLED TO RECEIVE RETIRED PAY WITHOUT ANY REDUCTION.

TO MAJOR GEORGE OPACIC, UNITED STATES MARINE CORPS, NOVEMBER 24, 1965:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1965, FORWARDED UNDER DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE NO. DO-MC-873, REQUESTING DECISION AS TO WHETHER YOU ARE REQUIRED TO REDUCE THE RETIRED PAY OF LIEUTENANT COLONEL ELERY G. POPPE, USMC, RETIRED, UNDER THE PROVISIONS OF SECTION 201 (A) OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484, 5 U.S.C. 3102 (A).

YOU STATE THAT COLONEL POPPE WAS TRANSFERRED TO THE TEMPORARY DISABILITY RETIRED LIST ON MAY 1, 1965, FOR A DISABILITY WHICH WAS NOT THE RESULT OF INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT OR CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR. ON MAY 10, 1965, HE WAS EMPLOYED AS BUSINESS MANAGER OF THE U.S. MARINE CORPS ASSOCIATION, BOX 1775, MARINE CORPS SCHOOLS, QUANTICO, VIRGINIA, AND THIS EMPLOYMENT RAISES THE QUESTION WHETHER THE "U.S. MARINE CORPS ASSOCIATION" IS A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES BRINGING EMPLOYMENT IN SUCH ASSOCIATION WITHIN THE DEFINITION OF "CIVILIAN OFFICE" IN SECTION 101 (3) OF THE DUAL COMPENSATION ACT, 5 U.S.C. 3101 (3).

SECTIONS 101 (3) AND 201 (A) OF THE DUAL COMPENSATION ACT ARE AS FOLLOWS:

SECTION 101 (3/---

"CIVILIAN OFFICE" MEANS A CIVILIAN OFFICE OR POSITION (INCLUDING A TEMPORARY, PART-TIME, OR INTERMITTENT POSITION), APPOINTIVE OR ELECTIVE, IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCH OF THE GOVERNMENT OF THE UNITED STATES (INCLUDING EACH CORPORATION OWNED OR CONTROLLED BY SUCH GOVERNMENT AND INCLUDING NON-APPROPRIATED FUND INSTRUMENTALITIES UNDER THE JURISDICTION OF THE ARMED FORCES) OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

SECTION 201 (A/---

EXCEPT AS PROVIDED BY SUBSECTIONS (B), (C), AND (E) OF THIS SECTION, A RETIRED OFFICER OF ANY REGULAR COMPONENT OF THE UNIFORMED SERVICES SHALL RECEIVE THE FULL SALARY OF ANY CIVILIAN OFFICE WHICH HE HOLDS, BUT DURING A PERIOD FOR WHICH HE RECEIVES SALARY, HIS RETIRED OR RETIREMENT PAY SHALL BE REDUCED TO AN ANNUAL RATE EQUAL TO THE FIRST $2,000 OF SUCH PAY PLUS ONE-HALF OF THE REMAINDER, IF ANY. IN THE OPERATION OF THE FORMULA FOR REDUCTION OF SUCH PAY UNDER THIS SUBSECTION, SUCH AMOUNT OF $2,000 SHALL BE INCREASED, FROM TIME TO TIME, BY APPROPRIATE PERCENTAGE, IN DIRECT PROPORTION TO EACH INCREASE IN SUCH PAY EFFECTED PURSUANT TO THE PROVISIONS OF SECTION 1401A (B) OF TITLE 10, U.S.C. TO REFLECT CHANGES IN THE CONSUMER PRICE INDEX.

THE CONSTITUTION OF THE ASSOCIATION DOES NOT LIMIT MEMBERSHIP TO MEMBERS AND FORMER MEMBERS OF THE MARINE CORPS, IT BEING PROVIDED THAT MEMBERSHIP THEREIN "SHALL BE OPEN TO UNITED STATES CITIZENS.' HOWEVER, THE SAME ARTICLE LIMITS GOVERNING MEMBERSHIP TO THOSE MARINE CORPS OFFICERS CURRENTLY HOLDING CERTAIN SPECIFIED POSITIONS OF LEADERSHIP AND AUTHORITY IN THE MARINE CORPS. THE COMMANDANT OF THE MARINE CORPS IS DESIGNATED AS PRESIDENT OF THE ASSOCIATION, THE STATED PURPOSES OF WHICH ARE: TO DISSEMINATE KNOWLEDGE OF THE MILITARY ART AND SCIENCE AMONG THE MEMBERS, AND TO PROVIDE FOR THEIR PROFESSIONAL ADVANCEMENT; TO FOSTER THE SPIRIT AND PRESERVE THE TRADITIONS OF THE UNITED STATES MARINE CORPS; TO INCREASE THE EFFICIENCY THEREOF; AND TO FURTHER THE INTERESTS OF THE MILITARY AND NAVAL SERVICES IN ALL WAYS NOT INCONSISTENT WITH THE GOOD OF THE GENERAL GOVERNMENT.

THE ASSOCIATION'S FUNDS REPRESENT REVENUE OBTAINED FROM MEMBERSHIP DUES, INCOME FROM INVESTMENTS, AND PROFITS FROM PUBLICATION OF A PERIODICAL "THE MARINE CORPS GAZETTE.' THE CONSTITUTION REQUIRES AN ANNUAL AUDIT OF THE BOOKS BY A REPRESENTATIVE FROM THE INSPECTION DIVISION, HEADQUARTERS, U.S. MARINE CORPS.

THE ENCLOSURES FURNISHED WITH YOUR LETTER INDICATE THAT THE MARINE CORPS DOES NOT REGARD THE ASSOCIATION AS A "NONAPPROPRIATED FUND ACTIVITY" FOR THE PURPOSE OF COVERAGE BY THE COMPOSITE INSURANCE PROGRAM AND REGARDS IT AS A PRIVATE UNINCORPORATED ASSOCIATION EXEMPT FROM PAYMENT OF TAXES, INCLUDING UNEMPLOYMENT COMPENSATION TAX. THE INFORMATION FURNISHED DOES NOT SHOW WHETHER GOVERNMENT FACILITIES ARE USED BY THE ASSOCIATION IN THE CONDUCT OF ITS BUSINESS BUT SUCH USE, IN ITSELF, WOULD NOT BE SUFFICIENT TO REQUIRE A RULING THAT THE ASSOCIATION IS A NONAPPROPRIATED FUND ACTIVITY OF THE UNITED STATES. SEE 42 COMP. GEN. 208.

ALTHOUGH THE ASSOCIATION OPERATES UNDER THE GENERAL SUPERVISION OF THE COMMANDANT OF THE MARINE CORPS, WHO IS DESIGNATED AS ITS PRESIDENT, AND THE GOVERNING MEMBERS ARE LIMITED TO THOSE MARINE CORPS OFFICERS WHO OCCUPY CERTAIN BILLETS IN THE CORPS, IT APPEARS THAT SUCH DESIGNATIONS AND RESTRICTIONS WERE SELF-IMPOSED BY THE MEMBERS OF THE ASSOCIATION RATHER THAN BEING REQUIRED BY LAW OR REGULATION. THERE IS NOTHING IN THE INFORMATION FURNISHED WHICH WOULD INDICATE THAT AUTHORITY OF THE COMMANDANT OF THE MARINE CORPS WAS A REQUISITE TO ESTABLISHMENT OF THE ASSOCIATION OR THAT IT WAS ESTABLISHED UNDER THE PROVISIONS OF PARAGRAPH 3 OF SECTION 7010, MARINE CORPS MANUAL, GOVERNING ESTABLISHMENT OF NONAPPROPRIATED FUND ACTIVITIES FOR MILITARY PERSONNEL. APPARENTLY, NO SUPERVISION OVER THE ASSOCIATION IS EXERCISED BY MARINE CORPS PERSONNEL OR CIVILIAN EMPLOYEES OF THE GOVERNMENT AS A PART OF THEIR OFFICIAL DUTIES. COMPARE SECTION 7010 12A (B) OF THE MARINE CORPS MANUAL.

SINCE THE MARINE CORPS ASSOCIATION IS A PURELY VOLUNTARY ORGANIZATION, NOT REQUIRED BY LAW OR REGULATION TO FUNCTION UNDER THE JURISDICTION OF THE MARINE CORPS IN ANY WAY, THERE IS NO BASIS FOR HOLDING THAT IT IS A "NON-APPROPRIATED FUND INSTRUMENTALITY" OF THE UNITED STATES WITHIN THE MEANING OF SECTION 101 (3) OF THE DUAL COMPENSATION ACT. ACCORDINGLY COLONEL POPPE'S RETIRED PAY IS NOT SUBJECT TO REDUCTION UNDER SECTION 201 (A) OF THAT ACT.