B-167018, JUN. 25, 1969, 48 COMP. GEN. 796

B-167018: Jun 25, 1969

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ABSENT AN INDICATION IN THE LEGSILATIVE HISTORY THAT THE PHRASE WAS USED IN A RESTRICTIVE OR LIMITED SENSE AND IN VIEW OF THE INDICATION THAT EXPANSION OF THE JUNIOR ROTC PROGRAMS WAS INTENDED. EMPLOYMENT OF RETIRED MEMBERS THE EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES BY A SECONDARY SCHOOL THAT IS AN INSTRUMENTALITY OF THE UNINCORPORATED TERRITORY OF THE GOVERNMENT OF GUAM AS ADMINISTRATORS OR INSTRUCTORS IN A JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM IS NOT PROHIBITED UNDER THE DUAL PAY AND DUAL EMPLOYMENT PROVISIONS OF 5 U.S.C. 5531 5533. ABSENT AN INDICATION IN THE DUAL COMPENSATION ACT OR ITS LEGISLATIVE HISTORY OF THE INTENT TO EXPAND THE COVERAGE OF THE ACT TO OFFICES OR POSITIONS IN TERRITORIES WHICH HAD NOT BEEN INCLUDED IN THE PREVIOUSLY EXISTING DUAL COMPENSATION LAWS THAT WERE REPEALED.

B-167018, JUN. 25, 1969, 48 COMP. GEN. 796

GUAM--JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAMS--ESTABLISHMENT THE PHRASE "THROUGHOUT THE NATION" AS USED IN 10 U.S.C. 2031 (A) AUTHORIZING THE ESTABLISHMENT AND MAINTENANCE OF JUNIOR RESERVE OFFICERS' TRAINING CORPS UNITS MAY BE CONSIDERED TO INCLUDE THE UNINCORPORATED TERRITORY OF GUAM, ABSENT AN INDICATION IN THE LEGSILATIVE HISTORY THAT THE PHRASE WAS USED IN A RESTRICTIVE OR LIMITED SENSE AND IN VIEW OF THE INDICATION THAT EXPANSION OF THE JUNIOR ROTC PROGRAMS WAS INTENDED. THEREFORE, APPROPRIATED FUNDS MAY BE USED TO SUPPORT A JUNIOR ROTC UNIT IF ESTABLISHED AT GEORGE WASHINGTON SENIOR HIGH SCHOOL, MANGILAO, GUAM, AN INSTRUMENTALITY OF THE UNINCORPORATED TERRITORY OF THE GOVERNMENT OF GUAM ESTABLISHED, MAINTAINED, AND OPERATED PURSUANT TO THE AUTHORITY IN SECTION 29 (B) OF THE ORGANIC ACT OF GUAM. MILITARY PERSONNEL--RESERVE OFFICERS' TRAINING CORPS--PROGRAMS AT EDUCATIONAL INSTITUTIONS--EMPLOYMENT OF RETIRED MEMBERS THE EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES BY A SECONDARY SCHOOL THAT IS AN INSTRUMENTALITY OF THE UNINCORPORATED TERRITORY OF THE GOVERNMENT OF GUAM AS ADMINISTRATORS OR INSTRUCTORS IN A JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM IS NOT PROHIBITED UNDER THE DUAL PAY AND DUAL EMPLOYMENT PROVISIONS OF 5 U.S.C. 5531 5533, ABSENT AN INDICATION IN THE DUAL COMPENSATION ACT OR ITS LEGISLATIVE HISTORY OF THE INTENT TO EXPAND THE COVERAGE OF THE ACT TO OFFICES OR POSITIONS IN TERRITORIES WHICH HAD NOT BEEN INCLUDED IN THE PREVIOUSLY EXISTING DUAL COMPENSATION LAWS THAT WERE REPEALED. IN ADDITION THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 (10 U.S.C. 2031 (D)) AUTHORIZES THE EMPLOYMENT OF RETIRED MEMBERS IN JUNIOR ROTC PROGRAMS AND PRESCRIBES THE BASIS FOR PAYMENT TO THE MEMBERS.

TO THE SECRETARY OF THE ARMY, JUNE 25, 1969:

REFERENCE IS MADE TO THE LETTER DATED MAY 14, 1969, WITH ENCLOSURES FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS), PRESENTING SEVERAL QUESTIONS ARISING OUT OF THE APPLICATION FOR THE ESTABLISHMENT OF A JUNIOR RESERVE OFFICERS' TRAINING CORPS UNIT AT GEORGE WASHINGTON SENIOR HIGH SCHOOL, MANGILAO, GUAM.

THE FIRST QUESTION PRESENTED IS WHETHER APPROPRIATED FUNDS MAY BE EXPENDED TO SUPPORT A JUNIOR ROTC UNIT, IF ESTABLISHED ON GUAM. THIS QUESTION APPARENTLY ARISES BECAUSE THERE IS SOME DOUBT AS TO WHETHER THE TERRITORIAL STATUS OF GUAM PERMITS IT TO BE INCLUDED WITHIN THE WORDS "THROUGHOUT THE NATION" AS USED IN THE SENTENCE CONTAINED IN 10 U.S.C. 2031 (A) WHICH PROVIDES THAT "THE PRESIDENT SHALL PROMULGATE REGULATIONS PRESCRIBING THE STANDARDS AND CRITERIA TO BE FOLLOWED BY THE MILITARY DEPARTMENTS IN SELECTING THE INSTITUTIONS AT WHICH UNITS ARE TO BE ESTABLISHED AND MAINTAINED AND SHALL PROVIDE FOR THE FAIR AND EQUITABLE DISTRIBUTION OF SUCH UNITS THROUGHOUT THE NATION."

ASSUMING A POSITIVE RESPONSE TO THE FIRST QUESTION THE NEXT QUESTION PRESENTED IN THE LETTER IS WHETHER GEORGE WASHINGTON SENIOR HIGH SCHOOL, MANGILAO, GUAM, IS CONSIDERED TO BE PART OF THE "LEGISLATIVE, EXECUTIVE OR JUDICIAL BRANCH OF THE GOVERNMENT OF THE UNITED STATES" WITHIN THE MANING OF 5 U.S.C. 5531. UNDER THE PROVISIONS OF 5 U.S.C. 5531 THE TERM "POSITION" IS DEFINED FOR THE PURPOSES OF 5 U.S.C. 5532 AND 5533, DEALING WITH DUAL PAY AND DUAL EMPLOYMENT, AS "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 A GOVERNMENT CORPORATION AND A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES) OR IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA."

THE LAST QUESTION PRESENTED IN THE LETTER IS "DO THE RESTRICTIONS ON THE EMPLOYMENT OF RETIRED REGULAR MEMBERS APPLY TO THESE MEMBERS WHEN EMPLOYED TO CONDUCT JUNIOR ROTC AT SCHOOLS CONSIDERED TO BE PART OF THE GOVERNMENT OF THE UNITED STATES WITHIN THE MEANING OF 5 U.S.C. 5531?"

THE ISLAND OF GUAM WAS CEDED TO THE UNITED STATES FROM SPAIN AT THE END OF THE SPANISH-AMERICAN WAR BY ARTICLE II OF THE TREATY OF PEACE BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF SPAIN, SIGNED AT PARIS ON DECEMBER 10, 1898, 30 STAT. 1754.

SECTION 3 OF THE ORGANIC ACT OF GUAM, APPROVED AUGUST 1, 1950, 64 STAT. 384, 48 U.S.C. 1421A, DECLARES GUAM TO BE AN "UNINCORPORATED TERRITORY OF THE UNITED STATES AND THE CAPITAL AND SEAT OF GOVERNMENT THEREOF SHALL BE LOCATED AT THE CITY OF AGANA, GUAM." SECTION 4 OF THE SAME ACT, 48 U.S.C. 1421L, AMENDED CHAPTER II OF THE NATIONALITY ACT OF 1940 SO AS TO DECLARE CERTAIN PERSONS BORN IN OR INHABITANTS OF THE ISLAND OF GUAM TO BE CITIZENS OF THE UNITED STATES.

SECTION 3 OF THE ACT ALSO PROVIDES THAT THE GOVERNMENT OF GUAM "SHALL CONSIST OF THREE BRANCHES, EXECUTIVE, LEGISLATIVE, AND JUDICIAL, AND ITS RELATIONS WITH THE FEDERAL GOVERNMENT SHALL BE UNDER THE GENERAL ADMINISTRATIVE SUPERVISION OF THE HEAD OF SUCH CIVILIAN DEPARTMENT OR AGENCY OF THE GOVERNMENT OF THE UNITED STATES AS THE PRESIDENT MAY DIRECT." EFFECTIVE AUGUST 1, 1950, ADMINISTRATION OF THE ISLAND WAS TRANSFERRED FROM THE SECRETARY OF THE NAVY TO THE SECRETARY OF THE INTERIOR.

SECTION 29 (B) OF THE ORGANIC ACT OF GUAM, 48 U.S.C. 1421G (B), PROVIDES THAT THE GOVERNOR "SHALL PROVIDE AN ADEQUATE PUBLIC EDUCATIONAL SYSTEM OF GUAM, AND TO THAT END SHALL ESTABLISH, MAINTAIN, AND OPERATE PUBLIC SCHOOLS AT SUCH PLACES IN GUAM AS MAY BE NECESSARY."

NEITHER THE PHRASE "THROUGHOUT THE NATION" NOR THE WORD "NATION" IS DEFINED IN THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964, PUBLIC LAW 88-647, APPROVED OCTOBER 13, 1964, 78 STAT. 1063, WHICH BECAME 10 U.S.C. 2031 ET SEQ. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT TO SPECIFICALLY INDICATE THE LEGISLATIVE INTENTION IN USING THOSE TERMS, AND THERE ARE NO GENERALLY ACCEPTED DEFINITIONS OF THOSE TERMS WHICH WOULD BE HELPFUL. HOWEVER, THERE IS NOTHING TO INDICATE THAT THE TERMS WERE USED IN ANY RESTRICTIVE OR LIMITED SENSE. IT DOES APPEAR THAT CONSIDERABLE EXPANSION OF THE JUNIOR ROTC PROGRAM WAS INTENDED. SEE, FOR EXAMPLE, PAGE 4 OF S. REPT. NO. 1514 OF AUGUST 20, 1964, IN WHICH IT IS STATED:

THE COMMITTEE INTENT IS THAT THE JUNIOR ROTC PROGRAM BE EXPANDED ON AN EQUITABLE GEOGRAPHIC BASIS BY ESTABLISHING AS MANY AS 200 UNITS EACH YEAR FROM THE BEST QUALIFIED INSTITUTIONS THAT APPLY FOR SUCH UNITS, UP TO THE MAXIMUM OF 1,200 UNITS.

ENCLOSED WITH THE DEPUTY ASSISTANT SECRETARY'S LETTER OF MAY 14, 1969, WAS A COPY OF A LETTER DATED JANUARY 8, 1969, TO THE DEPUTY ASSISTANT SECRETARY, RESERVE AFFAIRS, ASSISTANT SECRETARY OF DEFENSE, FROM THE DIRECTOR, OFFICE OF TERRITORIES, UNITED STATES DEPARTMENT OF THE INTERIOR, WHICH CONCLUDES WITH THE OPINION THAT A JUNIOR ROTC PROGRAM CAN BE ESTABLISHED ON GUAM PURSUANT TO THE PROVISIONS OF SECTION 2031 OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964.

IT IS OUR UNDERSTANDING THAT GEORGE WASHINGTON SENIOR HIGH SCHOOL, MANGILAO, GUAM, IS AN INSTRUMENTALITY OF THE UNINCORPORATED TERRITORY OF THE GOVERNMENT OF GUAM ESTABLISHED, MAINTAINED, AND OPERATED PURSUANT TO AUTHORITY OF SECTION 29 (B) OF THE ORGANIC ACT OF GUAM, SUPRA.

IN VIEW OF THE ABOVE IT IS OUR CONCLUSION THAT GUAM MAY BE INCLUDED IN THE PHRASE "THROUGHOUT THE NATION" AS CONTAINED IN 10 U.S.C. 2031 (A). THEREFORE, APPROPRIATED FUNDS MAY BE USED TO SUPPORT A JUNIOR ROTC UNIT, IF ESTABLISHED AT GEORGE WASHINGTON SENIOR HIGH SCHOOL, MANGILAO, GUAM. COMPARE OUR DECISION DATED DECEMBER 5, 1966, 46 COMP. GEN. 548, IN WHICH IT WAS CONCLUDED THAT THE ISLAND OF GUAM MAY BE CONSIDERED "OUTSIDE * * * THE UNITED STATES" WITHIN THE MEANING OF THAT PHRASE AS USED IN THE SECOND PARAGRAPH OF 36 U.S.C. 138B RELATING TO CERTAIN AUTHORITY OF THE AMERICAN BATTLE MONUMENTS COMMISSION.

THE FOLLOWING IS APPLICABLE TO THE LAST TWO QUESTIONS PRESENTED.

WE HAVE CONSISTENTLY RECOGNIZED A DISTINCTION BETWEEN EMPLOYMENT BY A TERRITORIAL GOVERNMENT AND EMPLOYMENT BY THE GOVERNMENT OF THE UNITED STATES.

IN OUR DECISION OF JUNE 28, 1946, 25 COMP. GEN. 912, WE HELD THAT SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406 (THEN 5 U.S.C. 59A) DID NOT PROHIBIT THE CONCURRENT RECEIPT OF RETIRED PAY FROM THE UNITED STATES BY A RETIRED OFFICER OF THE ARMY AND SALARY AS AN ADJUTANT GENERAL OF THE THEN TERRITORY OF HAWAII, PAID FROM TERRITORIAL FUNDS. OUR DECISION OF MARCH 24, 1948, 27 COMP. GEN. 522, HELD THAT THE ADJUTANT GENERAL OF PUERTO RICO WHOSE COMPENSATION IS PAID FROM TERRITORIAL FUNDS AS AN OFFICER OF THE TERRITORY MAY ACCEPT AN APPOINTMENT AS STATE DIRECTOR OF SELECTIVE SERVICE RECORDS WITHOUT RESULTING IN THE HOLDING OF MORE THAN ONE FEDERAL OFFICE IN VIOLATION OF ANY OF THE FEDERAL DUAL COMPENSATION STATUTES.

IN OUR DECISION OF DECEMBER 22, 1955, 35 COMP. GEN. 369, WE HELD THAT, EMPLOYEES OF THE GOVERNMENT OF GUAM WHO RECEIVED SALARIES IN ACCORDANCE WITH THE PROVISIONS OF SECTION 26 (D) OF THE ORGANIC ACT OF GUAM 48 U.S.C. 1421D ARE NOT EMPLOYEES OF THE UNITED STATES WITHIN THE PURVIEW OF SECTIONS 5537 AND 6322 OF TITLE 5 OF THE UNITED STATES CODE (FORMERLY SECTIONS 30N AND 30O) WHICH CONCERN FEES FOR JURY SERVICE AND THE GRANTING OF COURT LEAVE TO EMPLOYEES OF THE UNITED STATES SERVING AS JURORS. DECISION OF SEPTEMBER 4, 1963, 43COMP. GEN. 227, CONCLUDED THAT QUARTERS RENTED BY THE GOVERNMENT OF GUAM TO FEDERAL EMPLOYEES TRAVELING ON OFFICIAL BUSINESS WERE NOT FURNISHED BY A FEDERAL GOVERNMENT AGENCY WITHIN THE PURVIEW OF SECTION 6.7 OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS.

IN AN UNPUBLISHED DECISION OF FEBRUARY 12, 1953, B-112015, TO THE SECRETARY OF THE INTERIOR, WE HELD THAT THE PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, SUPRA, WERE NOT APPLICABLE TO A RETIRED COMMISSIONED OFFICER OF THE ARMED FORCES EMPLOYED IN A DEPARTMENT OF THE GOVERNMENT OF SAMOA.

THE DUAL COMPENSATION STATUTES, INCLUDING SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, SUPRA, WHICH ARE REFERRED TO IN SOME OF THE ABOVE DECISIONS, WERE REPEALED BY THE PROVISIONS OF THE DUAL COMPENSATION ACT, APPROVED AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 484. THAT DUAL COMPENSTION ACT FORMED THE BASIS FOR THE DUAL COMPENSATION PROVISIONS OF 5 U.S.C. 5531 ET SEQ. WHEN THE LAWS RELATING TO THE ORGANIZATION OF THE GOVERNMENT OF THE UNITED STATES AND TO ITS CIVILIAN OFFICERS AND EMPLOYEES, GENERALLY, WERE REVISED, CODIFIED, AND ENACTED AS TITLE 5 OF THE U.S.C. ENTITLED "GOVERNMENT ORGANIZATION AND EMPLOYEES" BY PUBLIC LAW 89-554, APPROVED SEPTEMBER 6, 1966, 80 STAT. 378.

THERE IS NOTHING IN THE DUAL COMPENSATION ACT OR IN ITS LEGISLATIVE HISTORY TO INDICATE AN INTENTION ON THE PART OF CONGRESS TO EXPAND ITS COVERAGE TO OFFICES OR POSITIONS IN THE TERRITORIES WHICH HAD NOT BEEN INCLUDED WITHIN THE PROVISIONS OF THE PREVIOUSLY EXISTING DUAL COMPENSATION LAWS WHICH IT REPEALED. THEREFORE IT IS OUR CONCLUSION THAT THE DUAL PAY AND DUAL EMPLOYMENT PROVISIONS OF 5 U.S.C. 5531 ET SEQ. WHICH ARE BASED UPON THE PROVISIONS OF THE DUAL COMPENSATION ACT WOULD NOT BE APPLICABLE TO PERSONS EMPLOYED BY AN INSTITUTION OF THE GOVERNMENT OF GUAM AS ADMINISTRATORS OR INSTRUCTORS IN A JUNIOR ROTC PROGRAM. WHATEVER DOUBT MIGHT ARISE, BECAUSE PERSONS SO EMPLOYED MIGHT BE CONSIDERED AS ENGAGED IN THE PERFORMANCE OF FEDERAL FUNCTIONS AUTHORIZED BY FEDERAL STATUTE AND THEREFORE BY ANALOGY COME WITHIN THE PURVIEW OF OUR DECISION OF AUGUST 6, 1956, 36 COMP. GEN. 84, APPEARS TO BE RESOLVED BY THE PROVISIONS OF THE RESERVE OFFICERS' TRAINING CORPS VITALIZATION ACT OF 1964 IN 10 U.S.C. 2031 (D) AS FOLLOWS:

SEC. 2031. JUNIOR RESERVE OFFICERS' TRAINING CORPS

(D) INSTEAD OF, OR IN ADDITION TO, DETAILING NONCOMMISSIONED AND COMMISSIONED OFFICERS ON ACTIVE DUTY UNDER SUBSECTION (C) (1), THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY AUTHORIZE QUALIFIED INSTITUTIONS TO EMPLOY AS ADMINISTRATORS AND INSTRUCTORS IN THE PROGRAM, RETIRED NONCOMMISSIONED AND COMMISSIONED OFFICERS, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, WHOSE QUALIFICATIONS ARE APPROVED BY THE SECRETARY AND THE INSTITUTION CONCERNED AND WHO REQUEST SUCH EMPLOYMENT, SUBJECT TO THE FOLLOWING:

(1) RETIRED MEMBERS SO EMPLOYED ARE ENTITLED TO RECEIVE THEIR RETIRED OR RETAINER PAY AND AN ADDITIONAL AMOUNT OF NOT MORE THAN THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY, AND ONE HALF OF THAT ADDITIONAL AMOUNT SHALL BE PAID TO THE INSTITUTION CONCERNED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FROM FUNDS APPROPRIATED FOR THAT PURPOSE.

(2) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, SUCH A RETIRED MEMBER IS NOT, WHILE SO EMPLOYED, CONSIDERED TO BE ON ACTIVE DUTY OR INACTIVE DUTY TRAINING FOR ANY PURPOSE.

WE UNDERSTAND THAT THE PURPOSE OF THE PROVISIONS QUOTED ABOVE WAS TO AVOID THE APPLICATION OF THE DUAL COMPENSATION STATUTES AND OTHER RESTRICTIVE STATUTES IN EXISTENCE AT THE TIME THE LEGISLATION WAS BEING CONSIDERED WHICH MIGHT HAVE AFFECTED THE EMPLOYMENT OF RETIRED MEMBERS OF THE ARMED SERVICES BY QUALIFIED SECONDARY SCHOOLS IN THE JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM. SEE OUR DECISION OF OCTOBER 28, 1963, TO THE TERM SECRETARY OF THE ARMY, 43 COMP. GEN. 421.

THE LIMITATIONS IN 10 U.S.C. 2031 (D) SUPRA ARE, OF COURSE, APPLICABLE TO PERSONS EMPLOYED IN ACCORDANCE WITH ITS AUTHORITY.

IT IS BELIEVED THAT THE ABOVE DISPOSES OF THE LAST TWO QUESTIONS PRESENTED IN THE LETTER.