B-165534, DEC. 17, 1968

B-165534: Dec 17, 1968

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R. KELLIHER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4. YOUR LETTER WAS FORWARDED HERE WITH HEADQUARTERS UNITED STATES AIR FORCE LETTER DATED OCTOBER 28. WAS ASSIGNED AIR FORCE REQUEST NO. 4 MONTHS AND 27 DAYS OF SERVICE FOR PAY PURPOSES AND THAT AS A RETIRED REGULAR OFFICER HE IS SUBJECT TO THE PROVISIONS OF THE DUAL COMPENSATION ACT. HE IS EMPLOYED AS EQUIPMENT MANAGER. WHICH WAS REPEALED BY SECTION 402 (A) (20) OF THE DUAL COMPENSATION ACT. THE TEST IS NOT WHETHER THE COMPENSATION AS COACH IS PAID FROM APPROPRIATED FUNDS BUT WHETHER THE POSITION IS AN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT.'. IT WAS FURTHER HELD THAT IN VIEW OF THE ORGANIZATION AND OPERATION OF THE ASSOCIATION UNDER THE SUPERVISION OF OFFICERS OF THE AIR FORCE.

B-165534, DEC. 17, 1968

TO LIEUTENANT COLONEL J. R. KELLIHER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1968, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER IN THE AMOUNT OF $3,850.16 REPRESENTING RETIRED PAY WITHHELD FROM MAJOR ARCHIE L. WEATHERLY, FR 4 6176, USAF, RETIRED, FOR THE PERIOD FROM AUGUST 4, 1966, THROUGH JULY 31, 1968, UNDER SECTION 201 (A) OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484, NOW 5 U.S.C. 5532. YOUR LETTER WAS FORWARDED HERE WITH HEADQUARTERS UNITED STATES AIR FORCE LETTER DATED OCTOBER 28, 1968, AND WAS ASSIGNED AIR FORCE REQUEST NO. DO-AF-1024 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT MAJOR WEATHERLY RETIRED JULY 31, 1966, UNDER THE PROVISIONS OF 10 U.S.C. 8911 WITH 23 YEARS, 4 MONTHS AND 27 DAYS OF SERVICE FOR PAY PURPOSES AND THAT AS A RETIRED REGULAR OFFICER HE IS SUBJECT TO THE PROVISIONS OF THE DUAL COMPENSATION ACT. HE IS EMPLOYED AS EQUIPMENT MANAGER, AIR FORCE ACADEMY ATHLETIC ASSOCIATION, AIR FORCE ACADEMY, COLORADO.

IN OUR DECISION OF AUGUST 3, 1962, B-149422, 42 COMP. GEN. 73, WE HELD THAT IN THE DETERMINATION OF THE APPLICABILITY OF THE DUAL COMPENSATION RESTRICTION IN SECTION 212 OF THE ECONOMY ACT OF 1932, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A (1958 ED.), WHICH WAS REPEALED BY SECTION 402 (A) (20) OF THE DUAL COMPENSATION ACT, TO A RETIRED NAVY OFFICER EMPLOYED AS HEAD FOOTBALL COACH BY THE AIR FORCE ACADEMY ATHLETIC ASSOCIATION,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 POSITION IS AN OFFICE OR POSITION "UNDER THE UNITED STATES GOVERNMENT.' IT WAS FURTHER HELD THAT IN VIEW OF THE ORGANIZATION AND OPERATION OF THE ASSOCIATION UNDER THE SUPERVISION OF OFFICERS OF THE AIR FORCE, THE POSITION IN QUESTION WAS ONE "UNDER THE UNITED STATES GOVERNMENT" AND THE RETIRED OFFICER WAS SUBJECT TO THE LIMITATION OF THE 1932 ACT.

THE PRESENT LAW RESTRICTS THE AMOUNT OF RETIRED PAY A RETIRED OFFICER OF A REGULAR COMPONENT OF THE UNIFORMED SERVICES MAY RECEIVE WHILE HOLDING A "POSITION" IN ACCORDANCE WITH THE REDUCTION FORMULA CONTAINED IN 5 U.S.C. 5532 (B). "POSITION" IS DEFINED IN 5 U.S.C. 5531 (2) AS INCLUDING A CIVILIAN OFFICE OR POSITION APPOINTIVE OR ELECTIVE IN "A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES.'

YOU RAISE THE QUESTION AS TO WHETHER THE RATIONALE IN THE AUGUST 3, 1962, DECISION CAN BE APPLIED TO CONCLUDE THAT THE POSITION HELD BY MAJOR WEATHERLY IS AN APPOINTIVE POSITION IN A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES NOTWITHSTANDING THE SPECIFIC EXEMPTION OF THE ASSOCIATION FROM REGULATIONS AND POLICIES GOVERNING NONAPPROPRIATED FUNDS, THAT IS, WHETHER THE EXEMPTION FROM AIR FORCE REGULATION 176-1 AND RELATED REGULATIONS RELATIVE TO NONAPPROPRIATED FUNDS IS THE SOLE TEST OF THE APPLICABILITY OF 5 U.S.C. 5532 (B).

BY MEMORANDUM DATED SEPTEMBER 28, 1954, OF THE OFFICE OF THE SECRETARY OF THE AIR FORCE, THE SUPERINTENDENT OF THE AIR FORCE ACADEMY WAS AUTHORIZED TO FORM AN AIR FORCE ACADEMY ATHLETIC ASSOCIATION WHICH SHOULD BE "AN UNINCORPORATED, NON-PROFIT, ACADEMY AFFILIATED MEMBERSHIP ORGANIZATION.' IT WOULD BE "A NON-MILITARY ORGANIZATION" BUT WOULD BE "AN ACTIVITY OF THE DEPARTMENT OF THE AIR FORCE.' THE IMMEDIATE CONTROL, OPERATION AND SUPERVISION OF ITS ACTIVITIES WERE DELEGATED TO THE SUPERINTENDENT, UNITED STATES AIR FORCE ACADEMY, WITH EXPRESS AUTHORITY TO PRESCRIBE THE ORGANIZATION AND UTILIZE THE OFFICIALS NECESSARY FOR THE MANAGEMENT AND OPERATION OF SAID ASSOCIATION AND ITS ACTIVITIES UNDER THE GENERAL SUPERVISION OF THE CHIEF OF STAFF, UNITED STATES AIR FORCE. IT WAS FURTHER PROVIDED THAT SINCE THE ASSOCIATION SHOULD BE AN ACTIVITY OF THE DEPARTMENT OF THE AIR FORCE, ITS OPERATION WOULD BE SUBJECT TO THE GENERAL SUPERVISORY PROCESS OF THE SECRETARY OF THE AIR FORCE.

SINCE IT WAS CONCLUDED IN THE DECISION OF AUGUST 3, 1962, THAT EMPLOYMENT WITH THE AIR FORCE ACADEMY ATHLETIC ASSOCIATION CONSTITUTED THE HOLDING OF AN OFFICE OR POSITION UNDER THE UNITED STATES GOVERNMENT AND BY THE PLAIN TERMS OF THE MEMORANDUM OF SEPTEMBER 28, 1964, UNDER WHICH THE ASSOCIATION WAS FORMED IT IS AN ACTIVITY UNDER THE JURISDICTION OF THE DEPARTMENT OF THE AIR FORCE, IT IS CLEAR THAT THE ASSOCIATION IS "A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES.' IN VIEW THEREOF, IT MUST BE CONCLUDED THAT A RETIRED REGULAR OFFICER EMPLOYED BY THE ASSOCIATION HOLDS A POSITION WITHIN THE PURVIEW OF 5 U.S.C. 5531 (2) AND 5532 (B). TO HOLD OTHERWISE WOULD BE TO RECOGNIZE THE RIGHT OF THE SECRETARY OF THE AIR FORCE TO EXEMPT INDIVIDUALS FROM THE RESTRICTIONS OF THE DUAL COMPENSATION ACT WHERE NO RIGHT OF EXEMPTION EXISTS.

ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF THE VOUCHER AND IT WILL BE RETAINED HERE.