B-50542, AUGUST 20, 1945, 25 COMP. GEN. 203

B-50542, AUGUST 20, 1945, 25 COMP. GEN. 203

ARMY OFFICERS ACCEPTING CIVIL OFFICE THE PROVISIONS OF SECTION 1222, REVISED STATUTES, THAT THE COMMISSION OF AN "OFFICER OF THE ARMY ON THE ACTIVE LIST" SHALL BE VACATED UPON ACCEPTANCE OF A CIVIL OFFICE, BEING APPLICABLE TO REGULAR ARMY OFFICERS ONLY, THE DECISION OF JULY 11, 1945, 25 COMP. GEN. 38, INSOFAR AS IT RELATES TO THE APPLICABILITY OF SAID SECTION 1222 IN THE CASE OF ARMY OFFICERS ACCEPTING EMPLOYMENT WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION DURING TERMINAL LEAVE FROM THE MILITARY SERVICE, IS NOT TO BE REGARDED AS APPLYING TO OFFICERS OF THE ARMY OF THE UNITED STATES OTHER THAN THOSE OF THE REGULAR ARMY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 20, 1945:

I HAVE YOUR LETTER OF JULY 31, 1945, AS FOLLOWS:

SINCE THE WAR DEPARTMENT IS DESIROUS OF ISSUING PROPER AND COMPREHENSIVE ADVICE TO MILITARY PERSONNEL WHO MAY SEEK EMPLOYMENT WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION YOUR DECISION WAS REQUESTED, UNDER DATE OF 14 JUNE 1945, AS TO WHETHER EMPLOYMENT OF MILITARY PERSONNEL BY THAT ADMINISTRATION, WHILE ON TERMINAL LEAVE OR IN A RETIREMENT STATUS, WOULD SERVE TO SUBJECT SUCH PERSONNEL TO THE PROHIBITIONS CONTAINED IN THE DUAL OFFICE OR DUAL COMPENSATION LAWS CITED IN MY LETTER, OR RESULT IN THE VACATION OF THEIR ARMY COMMISSIONS UNDER R.S. 1222.

IN REPLY TO MY REQUEST FOR DECISION THERE WAS RECEIVED IN THE WAR DEPARTMENT YOUR DECISION B-50542, DATED 11 JULY 1945, WHEREIN, IN CONNECTION WITH THE PROVISIONS OF R.S. 1222 IT WAS HELD THAT "AN OFFICER OF THE ARMY IS "ON THE ACTIVE LIST" DURING AUTHORIZED LEAVE OF ABSENCE WHETHER THE LEAVE BE TAKEN DURING ACTIVE SERVICE OR AS TERMINAL LEAVE IMMEDIATELY PRIOR TO FINAL DISCHARGE FROM THE ACTIVE SERVICE," AND THAT "THE ACCEPTANCE OF AN OFFICE OR POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION BY AN OFFICER OF THE ARMY ON THE ACTIVE LIST DURING TERMINAL LEAVE FROM THE MILITARY SERVICE WOULD VACATE HIS COMMISSION AS AN ARMY OFFICER EFFECTIVE THE DAY HE ACCEPTS THE CIVIL OFFICE.'

IN VIEW OF THE OPINIONS OF THE ATTORNEY GENERAL OF THE UNITED STATES IN 22 OP. ATTY. GEN. 88 AND 39 OP. ATTY. GEN. 197, WHICH HOLD THAT SECTION 1222 OF THE REVISED STATUTES IS APPLICABLE ONLY TO OFFICERS OF THE REGULAR ARMY, DOUBT HAS ARISEN AS TO WHETHER THE DECISION OF YOUR OFFICE OF 11 JULY 1945, SUPRA, UNQUALIFIED AS ITS LANGUAGE IS WHERE REFERENCE IS MADE TO "AN OFFICER OF THE ARMY," IS TO BE DEEMED TO INCLUDE OFFICERS OF THE NATIONAL GUARD, RESERVE CORPS, OR OF THE ARMY OF THE UNITED STATES, OR IS TO BE CONSTRUED AS LIMITED ONLY TO OFFICERS OF THE REGULAR ARMY IN ACCORDANCE WITH THE VIEWS OF THE ATTORNEY GENERAL EXPRESSED IN THE OPINIONS CITED SUPRA. YOUR DECISION IS THEREFORE REQUESTED AS TO THE PROPER INTERPRETATION TO BE PLACED ON THE DECISION OF 11 JULY 1945 IN THIS RESPECT, AND IN VIEW OF THE FACT THAT REPLIES TO INQUIRIES RECEIVED, AS WELL AS THE ISSUANCE OF INSTRUCTIONS TO DISBURSING OFFICERS IN THE MATTER OF THE PAYMENT FOR PERIODS OF TERMINAL LEAVE, ARE BEING HELD IN ABEYANCE PENDING CLARIFICATION OF THIS MATTER, AN EARLY DECISION IN THIS MATTER WOULD BE APPRECIATED.

IN THIS GENERAL CONNECTION IT MIGHT BE STATED THAT WHILE YOUR DECISION UNDER DISCUSSION (B-50542) SETTLES THE QUESTION THAT UNDER R.S. 1222 AN EMPLOYMENT WITH UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION WOULD BE THE ACCEPTANCE OF AN OFFICE WHICH WOULD VACATE THE COMMISSION OF AN OFFICER OF THE ARMY, THE IMPLICATIONS FLOWING FROM SAID DECISION, IF SECTION 1222 OF THE REVISED STATUTES IS APPLICABLE TO OFFICERS OTHER THAN THOSE OF THE REGULAR ARMY, ARE VERY IMPORTANT SINCE MANY OFFICERS OF THE NATIONAL GUARD, RESERVE, AND ARMY OF THE UNITED STATES WHILE ON TERMINAL LEAVE WILL DOUBTLESS ACCEPT OTHER FEDERAL, AS WELL AS STATE, LOCAL AND OTHER NON-FEDERAL OFFICES DURING THE PERIOD OF TERMINAL LEAVE, AND APPROPRIATE INSTRUCTIONS COVERING THIS LARGER GROUP OF OFFICERS ON TERMINAL LEAVE WITH REFERENCE TO SUCH EMPLOYMENTS SHOULD BE ISSUED AT THE EARLIEST POSSIBLE DATE.

SECTION 1222, REVISED STATUTES, PROVIDES AS FOLLOWS:

SEC. 1222. NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.

THE ARMY OF THE UNITED STATES IS COMPOSED, INTER ALIA, OF THE REGULAR ARMY, THE NATIONAL GUARD OF THE UNITED STATES, THE NATIONAL GUARD WHILE IN THE SERVICE OF THE UNITED STATES, THE OFFICERS' RESERVE CORPS, THE ORGANIZED RESERVES, THE ENLISTED RESERVE CORPS, OFFICERS TEMPORARILY APPOINTED UNDER THE ACT OF SEPTEMBER 22, 1941, 55 STAT. 728, AND PERSONS ENLISTED OR INDUCTED IN TIME OF WAR OR EMERGENCY. SECTION 1222, REVISED STATUTES, HAS REFERENCE TO AN "OFFICER OF THE ARMY ON THE ACTIVE LIST" AND, WHILE THE PHRASE "OFFICER OF THE ARMY"--- STANDING ALONE--- MIGHT BE VIEWED AS INCLUDING AN OFFICER OF ANY OF THE COMPONENTS OF THE ARMY OF THE UNITED STATES OR ONE TEMPORARILY APPOINTED THEREIN, WITHOUT REGARD TO COMPONENT, IT LONG HAS BEEN RECOGNIZED THAT THE TERM "ACTIVE LIST," WITH REFERENCE TO OFFICERS OF THE ARMY, GENERALLY IS USED TO DENOTE OFFICERS OF THE REGULAR ARMY OTHER THAN THOSE--- AND AS DISTINGUISHED FROM THOSE--- ON THE "RETIRED LIST" AND THAT SUCH TERM GENERALLY HAS NO APPLICATION TO OTHER OFFICERS OF THE ARMY OF THE UNITED STATES.

AS EARLY AS 1898, IN THE OPINION OF THE ATTORNEY GENERAL, 22 OP. ATTY. GEN. 88, CITED IN YOUR LETTER, IT WAS HELD THAT SECTION 1222, REVISED STATUTES, APPLIES TO REGULAR ARMY OFFICERS ONLY, AND THAT A PERSON WHO WAS APPOINTED A COMMISSIONED OFFICER IN THE VOLUNTEER ARMY WHILE HOLDING A CIVIL OFFICE AS ATTORNEY GENERAL OF THE STATE OF SOUTH DAKOTA, DID NOT VACATE HIS COMMISSION IN THE VOLUNTEER ARMY UNDER THE PROVISIONS OF SECTION 1222, REVISED STATUTES, SUPRA, FOR THE REASON THAT HE WAS NOT AN "OFFICER OF THE ARMY ON THE ACTIVE LIST" WITHIN THE MEANING OF THE SAID STATUTE. IT WAS SAID IN THAT OPINION:

TITLE XIV, OF THE REVISED STATUTES, WHICH REGULATES THE ARMY OF THE UNITED STATES, CONTAINS SECTIONS WHICH IN TERMS ARE APPLICABLE ONLY TO THE VOLUNTEER ARMY, SECTIONS WHICH IN TERMS ARE APPLICABLE ONLY TO THE REGULAR ARMY, AND SECTIONS WHOSE APPLICABILITY DEPENDS UPON THE CHARACTER OF THEIR PROVISIONS. SECTIONS WHICH IN LANGUAGE ARE RESTRICTED, OR IN PROVISIONS ARE APPROPRIATE ONLY TO THE PERMANENT ESTABLISHMENT--- THE REGULAR ARMY--- CAN NOT, OF COURSE, BE HELD TO APPLY TO THE VOLUNTEER ARMY.

FOR EXAMPLE, CHAPTER TWO OF TITLE XIV, PROVIDING FOR THE RETIREMENT OF ARMY OFFICERS, CLEARLY HAS NO APPLICATION TO THE VOLUNTEER ARMY, ORGANIZED FOR SIMPLY TEMPORARY SERVICE. THIS CHAPTER CREATES TWO LISTS OF REGULAR ARMY OFFICERS--- THE ACTIVE AND THE RETIRED LIST--- A DISTINCTION WHICH DOES NOT OBTAIN IN THE VOLUNTEER ARMY. WHEN, THEREFORE, SECTION 1222 PLACES A RESTRICTION ON EVERY "ARMY OFFICER ON THE ACTIVE LIST," IT PLAINLY REFERS TO REGULAR ARMY OFFICERS. AN ARMY OFFICER ON THE ACTIVE LIST IS ONE NOT ONLY ACTIVELY BUT PERMANENTLY ENGAGED IN THE MILITARY SERVICE OF THE GOVERNMENT. HAVING CHOSEN THE ARMY FOR HIS CAREER, AND BEING ACTIVELY ENGAGED THEREIN, THE STATUTE PROPERLY PROHIBITS HIM FROM ACCEPTING OR EXERCISING THE FUNCTIONS OF A CIVIL OFFICE.

WHILE AN OFFICER IN THE VOLUNTEER ARMY MAY BE SAID TO BE ACTIVELY ENGAGED IN THE MILITARY SERVICE, HE IS NOT PERMANENTLY SO ENGAGED. HE IS CALLED OUT TO MEET AN EMERGENCY, AND MUST BE DISCHARGED WHEN THE PURPOSE FOR WHICH HE ENTERED THE SERVICE HAS BEEN ACCOMPLISHED. UNLIKE THE REGULAR ARMY OFFICER, HE HAS NOT SELECTED THE MILITARY SERVICE FOR A PROFESSION. HE HAS SIMPLY RESPONDED TO A PATRIOTIC CALL, AND EXPECTS, WHEN THE WAR IS OVER, TO RETURN TO CIVIL LIFE. HIS TERM OF MILITARY SERVICE IS UNCERTAIN AND CONTINGENT. HE MAY BE TAKEN FROM HIS CIVIL DUTIES FOR A FEW MONTHS, FOR A YEAR, FOR TWO YEARS AT THE MOST. THE GOVERNMENT DOES NOT NEED NOR DEMAND A COMPLETE AND FINAL SEVERANCE OF HIS RELATIONS WITH CIVIL LIFE.

IN THE LATER OPINION OF THE ATTORNEY GENERAL, 39 OP. ATTY. GEN. 197, CITED IN YOUR LETTER, THE PRINCIPLES OF THE PRIOR OPINION WERE FOLLOWED AND IT WAS CONCLUDED THAT SECTION 1222, REVISED STATUTES, DID NOT APPLY TO A MEMBER OF THE OFFICERS RESERVE CORPS WHO ACCEPTED A POSITION WITH THE DEPARTMENT OF AGRICULTURE AND PERFORMED THE DUTIES THEREOF WHILE ON TERMINAL LEAVE PENDING RELEASE FROM ACTIVE DUTY WITH THE ARMY.

IN THE DECISION OF JULY 11, 1945, 25 COMP. GEN. 38, TO WHICH YOU REFER, IT WAS SAID THAT THE ACCEPTANCE OF AN OFFICE OR POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION BY AN "OFFICER OF THE ARMY ON THE ACTIVE LIST" DURING TERMINAL LEAVE FROM THE MILITARY SERVICE WOULD VACATE HIS COMMISSION AS AN ARMY OFFICER. THAT STATEMENT, AS TO THE CLASS OF OFFICERS INVOLVED, WAS IN THE EXPRESS LANGUAGE CONTAINED IN SECTION 1222, REVISED STATUTES, AND THERE WAS NO REASON OR INTENT TO ASSIGN A DIFFERENT MEANING TO THOSE WORDS OR TO DISAGREE WITH THE CONSTRUCTION PLACED THEREON BY THE ATTORNEY GENERAL ALMOST 50 YEARS AGO AND FOLLOWED SINCE THAT TIME. YOU ARE ADVISED, THEREFORE, THAT THE SAID DECISION, INSOFAR AS THE PROVISIONS OF SECTION 1222, REVISED STATUTES, ARE CONCERNED, IS NOT TO BE UNDERSTOOD AS APPLICABLE TO OFFICERS OTHER THAN THOSE OF THE REGULAR ARMY.