B-37074, OCTOBER 14, 1943, 23 COMP. GEN. 272

B-37074: Oct 14, 1943

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TO ASSIGN "PERSONNEL OF THE ARMY" FOR DUTY AS COURIERS OF THE DEPARTMENT OF STATE AND TO PAY SUCH PERSONNEL THE SAME TRAVELING EXPENSES AS ARE AUTHORIZED FOR FOREIGN SERVICE OFFICERS IS BROAD ENOUGH TO INCLUDE THE ASSIGNMENT OF PERSONNEL OF THE RETIRED LISTS OF THE ARMY TO SUCH DUTIES. WITHOUT COMPENSATION OTHER THAN THAT TO WHICH HE IS ENTITLED AS A RETIRED OFFICER. IS NOT WITHIN THE SAID PROHIBITION. ARE NOT APPLICABLE TO THE RETIRED OFFICERS OF THE ARMY. WITHOUT COMPENSATION OTHER THAN THAT TO WHICH HE IS ENTITLED AS A RETIRED OFFICER OF THE ARMY. THAT IS. THE SAME TRAVELING EXPENSES AS ARE AUTHORIZED FOR FOREIGN SERVICE OFFICERS. 1943: THERE WAS RECEIVED SEPTEMBER 20. WHEN SO ASSIGNED THEY MAY RECEIVE THE SAME TRAVELING EXPENSES AS ARE AUTHORIZED FOR OFFICERS OF THE FOREIGN SERVICE.

B-37074, OCTOBER 14, 1943, 23 COMP. GEN. 272

APPOINTMENT OF RETIRED ARMY OFFICER AS STATE DEPARTMENT COURIER - TRAVELING EXPENSES, ETC. THE PROVISION IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1944, AUTHORIZING THE PRESIDENT, IN HIS DISCRETION, TO ASSIGN "PERSONNEL OF THE ARMY" FOR DUTY AS COURIERS OF THE DEPARTMENT OF STATE AND TO PAY SUCH PERSONNEL THE SAME TRAVELING EXPENSES AS ARE AUTHORIZED FOR FOREIGN SERVICE OFFICERS IS BROAD ENOUGH TO INCLUDE THE ASSIGNMENT OF PERSONNEL OF THE RETIRED LISTS OF THE ARMY TO SUCH DUTIES. THE PROHIBITION IN SECTION 3679, REVISED STATUTES, AS AMENDED, AGAINST THE ACCEPTANCE OF VOLUNTARY SERVICE BY THE GOVERNMENT RELATES TO VOLUNTARY SERVICES RENDERED BY PRIVATE INDIVIDUALS WITHOUT AUTHORIZATION OF LAW AND NOT TO THE ASSIGNMENT OF PERSONS HOLDING OFFICE UNDER THE GOVERNMENT TO THE PERFORMANCE OF ADDITIONAL DUTIES OR THE DUTIES OF ANOTHER POSITION WITHOUT ADDITIONAL COMPENSATION, AND, THEREFORE, THE ASSIGNMENT OF A RETIRED OFFICER OF THE ARMY, WITH HIS CONSENT, TO THE DUTIES OF COURIER FOR THE THE DEPARTMENT OF STATE, AS A RETIRED OFFICER, IN AN INACTIVE STATUS, WITHOUT COMPENSATION OTHER THAN THAT TO WHICH HE IS ENTITLED AS A RETIRED OFFICER, IS NOT WITHIN THE SAID PROHIBITION. THE RESTRICTION AGAINST THE REAPPOINTMENT OF PERSONS RETIRED FOR AGE CONTAINED IN SECTION 204 OF THE ACT OF JUNE 30, 1932, RELATING TO PERSONS RENDERING CIVILIAN SERVICE FOR THE GOVERNMENT PRIOR TO RETIREMENT, AND THE SIMILAR RESTRICTION IN SECTION 2 OF THE ACT OF JANUARY 24, 1942, RELATING TO PERSONS RECEIVING ANNUITIES UNDER SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, ARE NOT APPLICABLE TO THE RETIRED OFFICERS OF THE ARMY, SO THAT THE ASSIGNMENT OF A RETIRED ARMY OFFICER AS A COURIER OF THE DEPARTMENT OF STATE, WITHOUT COMPENSATION OTHER THAN THAT TO WHICH HE IS ENTITLED AS A RETIRED OFFICER OF THE ARMY, WOULD NOT BE PRECLUDED BY SUCH RESTRICTIONS. A RETIRED ARMY OFFICER ASSIGNED, IN AN INACTIVE STATUS AS A RETIRED OFFICER, TO DUTY AS A COURIER OF THE DEPARTMENT OF STATE PURSUANT TO THE PROVISION IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1944, AUTHORIZING THE PRESIDENT TO ASSIGN "PERSONNEL OF THE ARMY" TO SUCH DUTY, MAY BE PAID TRAVELING EXPENSES ON THE BASIS AUTHORIZED IN THE ACT FOR PERSONNEL SO ASSIGNED, THAT IS, THE SAME TRAVELING EXPENSES AS ARE AUTHORIZED FOR FOREIGN SERVICE OFFICERS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 14, 1943:

THERE WAS RECEIVED SEPTEMBER 20, 1943, YOUR UNDATED LETTER (REFERENCE FA) AS FOLLOWS:

THE DEPARTMENT HAS UNDER CONSIDERATION RECOMMENDING TO THE PRESIDENT THE ASSIGNMENT OF COLONEL ELI E. BENNETT (0-2557), COAST ARTILLERY CORPS, FOR DUTY AS A COURIER OF THE DEPARTMENT OF STATE UNDER AUTHORITY CONTAINED IN THE " DEPARTMENT OF STATE APPROPRIATION ACT, 1944" READING AS FOLLOWS:

"THE PRESIDENT IN HIS DISCRETION, MAY ASSIGN PERSONNEL OF THE ARMY, NAVY, TREASURY DEPARTMENT, OR FEDERAL WORKS AGENCY FOR DUTY AS INSPECTORS OF BUILDING OWNED OR OCCUPIED BY THE UNITED STATES IN FOREIGN COUNTRIES, OR AS INSPECTORS OR SUPERVISORS OF BUILDINGS UNDER CONSTRUCTION OR REPAIR BY OR FOR THE UNITED STATES IN FOREIGN COUNTRIES, UNDER THE JURISDICTION OF THE DEPARTMENT OF STATE, OR FOR DUTY AS COURIERS OF THE DEPARTMENT OF STATE, AND WHEN SO ASSIGNED THEY MAY RECEIVE THE SAME TRAVELING EXPENSES AS ARE AUTHORIZED FOR OFFICERS OF THE FOREIGN SERVICE, PAYABLE FROM THE APPLICABLE APPROPRIATIONS OF THE DEPARTMENT OF STATE.'

COLONEL BENNETT WILL ATTAIN THE AGE OF SIXTY YEARS ON OCTOBER 18, 1943, AND HIS RETIREMENT FROM ACTIVE SERVICE IN THE ARMY BECOMES EFFECTIVE ON OCTOBER 31, 1943. BY DIRECTION OF THE PRESIDENT, HE WILL BE PLACED ON "ACTIVE DUTY" EFFECTIVE NOVEMBER 1, 1943 UNTIL DECEMBER 26, 1943, WHEN HE WILL BE RELIEVED FROM ACTIVE DUTY. HE IS NOW ON LEAVE TO EXPIRE NOT LATER THAN DECEMBER 26, 1943.

IT IS UNDERSTOOD THAT, AS AN ARMY OFFICER RETIRED OTHER THAN FOR "INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITIES INCURRED IN LINE OF DUTY," COLONEL BENNETT WILL BE REGARDED TO HOLD AN OFFICE WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62). ACCORDINGLY, IT IS BELIEVED THAT, UNDER ESTABLISHED PRECEDENT WITH RESPECT TO THE STATUTE CITED, THE DEPARTMENT IS ESTOPPED FROM APPOINTING COLONEL BENNETT TO A POSITION IN THE FOREIGN SERVICE TO WHICH COMPENSATION IS ATTACHED. HOWEVER, AS THE OFFICER WILL DRAW HIS RETIRED PAY, THE DEPARTMENT ASSUMES THAT THIS UTILIZATION OF HIS SERVICES IN THE CAPACITY OF DIPLOMATIC COURIER WILL NOT BE CONSTRUED AS A VIOLATION OF THE PROVISION IN THE STATUTES WHICH PROHIBITS THE ACCEPTANCE OF VOLUNTARY SERVICES (31 U.S.C. 665). I SHOULD BE GLAD TO RECEIVE YOUR CONFIRMATION OF THIS, AND ALSO THAT THE PROPOSED ACTION WOULD NOT CONTRAVENE THE PROHIBITION UPON THE EMPLOYMENT OF PERSONS RETIRED FOR AGE (5 U.S.C. 715A).

YOUR OPINION IS ALSO DESIRED ON THE QUESTION WHETHER ANY OBJECTION WOULD EXIST TO PAYMENT OF TRAVELING EXPENSES OF THE OFFICER, AND HIS PER DIEM, FROM THE APPLICABLE APPROPRIATIONS AVAILABLE TO THE DEPARTMENT OF STATE, AND SUBJECT TO THE PROVISIONS OF THE SUBSISTENCE EXPENSE ACT AND THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, NOTWITHSTANDING THAT HE WILL BE RECEIVING RETIRED PAY IN EXCESS OF $3,000 PER ANNUM.

THE QUOTED PROVISION OF THE DEPARTMENT OF STATE APPROPRIATION ACT, 1944, 57 STAT. 282, PUBLIC NO. 105, 78TH CONGRESS, APPROVED JULY 1, 1943, AUTHORIZES THE PRESIDENT, IN HIS DISCRETION, TO ASSIGN "PERSONNEL OF THE ARMY" FOR DUTY AS COURIERS OF THE DEPARTMENT OF STATE. THAT A RETIRED OFFICER OF THE ARMY IS A PART OF THE "PERSONNEL OF THE ARMY" APPEARS NOT SUBJECT TO QUESTION. SEE 10 U.S.C. 4. SEE, ALSO, UNITED STATES V. TYLER, 105 U.S. 244. HENCE, THE AUTHORIZATION SO PROVIDED IS BROAD ENOUGH TO INCLUDE PERSONNEL OF THE RETIRED LISTS OF THE ARMY.

THE PROVISION PROHIBITING THE ACCEPTANCE OF VOLUNTARY SERVICE FOR THE GOVERNMENT, TO WHICH YOU REFER, IS CONTAINED IN SECTION 3679, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 27, 1906, 34 STAT. 48, 49, 31 U.S.C. 665, IN PERTINENT PART AS FOLLOWS:

NO EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT OF THE UNITED STATES SHALL EXPEND, IN ANY ONE FISCAL YEAR, ANY SUM IN EXCESS OF APPROPRIATIONS MADE BY CONGRESS FOR THAT FISCAL YEAR, OR INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION FOR THE FUTURE PAYMENT OF MONEY IN EXCESS OF SUCH APPROPRIATIONS UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW. NOR SHALL ANY DEPARTMENT OR ANY OFFICER OF THE GOVERNMENT ACCEPT VOLUNTARY SERVICE FOR THE GOVERNMENT OR EMPLOY PERSONAL SERVICE IN EXCESS OF THAT AUTHORIZED BY LAW, EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF PROPERTY. * * *

IT HAS BEEN HELD THAT SUCH PROHIBITION AGAINST THE ACCEPTANCE OF VOLUNTARY SERVICE RELATES TO VOLUNTARY SERVICES RENDERED BY PRIVATE PERSONS WITHOUT AUTHORIZATION OF LAW, SUCH AS MIGHT AFFORD A BASIS FOR FUTURE CLAIMS AGAINST THE GOVERNMENT, AND NOT TO THE ASSIGNMENT OF PERSONS HOLDING OFFICE UNDER THE GOVERNMENT TO THE PERFORMANCE OF ADDITIONAL DUTIES OR THE DUTIES OF ANOTHER POSITION WITHOUT ADDITIONAL COMPENSATION. SEE 30 OP. ATTY. GEN. 51; ID. 129; 34 ID. 490. INASMUCH AS THE CONTEMPLATED ASSIGNMENT PRESUPPOSES THE DUTIES OF COLONEL BENNETT AS COURIER FOR THE STATE DEPARTMENT WILL BE PERFORMED WITHOUT COMPENSATION OTHER THAN THAT TO WHICH HE IS ENTITLED AS A RETIRED OFFICER OF THE ARMY, AN ASSIGNMENT TO SUCH DUTIES WOULD NOT APPEAR TO BE WITHIN THE SAID PROHIBITION. MOREOVER, IT SEEMS CLEAR THAT NEITHER THE RESTRICTION AGAINST THE REEMPLOYMENT OF PERSONS RETIRED FOR AGE TO WHICH YOU REFER, SECTION 204 OF THE ACT OF JUNE 30, 1932, 47 STAT. 404, 5 U.S.C. 715A, NOR THE SIMILAR PROVISION IN SECTION 2 OF THE ACT OF JANUARY 24, 1942, 56 STAT. 14, 15; 5 U.S.C. SUPP. II, 715 (B) WOULD PRECLUDE THE PROPOSED ASSIGNMENT. AS THE FIRST PROVISION RELATES TO PERSONS RENDERING CIVILIAN SERVICE FOR THE GOVERNMENT PRIOR TO RETIREMENT AND THE LATTER PROVISION RELATES TO PERSONS RECEIVING ANNUITIES UNDER THE PROVISIONS OF SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, 5 U.S.C. SUPP. II, 691; ID. 693, IT IS APPARENT THAT NEITHER PROVISION APPLIES TO RETIRED ARMY OFFICERS.

THE PRESIDENT IS AUTHORIZED TO ASSIGN MILITARY PERSONNEL FOR DUTY AS COURIERS OF THE DEPARTMENT OF STATE, AND THE PRESIDENT HAS AUTHORITY TO ORDER RETIRED ARMY OFFICERS TO ACTIVE DUTY. SEE SECTION 127A OF THE NATIONAL DEFENSE ACT, AS AMENDED, 41 STAT. 785, 10 U.S.C. 992; SECTION 1 OF THE ACT OF AUGUST 27, 1940, 54 STAT. 858, AS AMENDED, 50 U.S.C. SUPP. II ( WAR APPENDIX) 401, AND SECTION 6 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, 50 U.S.C. SUPP. II ( WAR APPENDIX) 356. UNDER SUCH PROVISIONS, IT APPEARS THE PRESIDENT COULD ORDER COLONEL BENNETT TO ACTIVE DUTY AND ASSIGN HIM TO THE DUTIES WITH THE DEPARTMENT OF STATE HERE CONTEMPLATED. IF THE PRESIDENT ASSIGNS COLONEL BENNETT, WITH HIS CONSENT, AS A RETIRED OFFICER OF THE ARMY IN AN INACTIVE STATUS, TO SUCH DUTIES, THE ASSIGNMENT WOULD ACCOMPLISH THE SAME GENERAL PURPOSE AS WOULD BE ACCOMPLISHED WERE THE OFFICER ORDERED TO ACTIVE DUTY AND SO ASSIGNED, AND THERE WOULD APPEAR NO REASON FOR CONCLUDING THAT THE GREATER AUTHORITY WOULD NOT COMPREHEND THE LESSER. COMPARE 14 COMP. GEN. 355.

IF SO ASSIGNED, COLONEL BENNETT WILL BE ENTITLED TO THE SAME TRAVELING EXPENSES OR PER DIEM IN LIEU THEREOF AS ARE AUTHORIZED FOR OFFICERS OF THE FOREIGN SERVICE, AS STIPULATED IN THE PROVISION OF THE 1944 APPROPRIATION ACT QUOTED IN YOUR LETTER. SEE, IN THIS CONNECTION, 14 COMP. GEN. 355.