B-58952, JULY 11, 1946, 26 COMP. GEN. 15

B-58952, JULY 11, 1946, 26 COMP. GEN. 15

ARMY OFFICERS - DETAIL TO UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION IN VIEW OF SECTION 201 OF THE ACT OF JUNE 30, 1944, PROVIDING THAT OFFICERS OF THE GOVERNMENT DETAILED TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION SHALL RETAIN THE "RIGHTS, BENEFITS, PRIVILEGES, AND STATUS" OF AN OFFICER OF THE GOVERNMENT, THE DETAIL OF ANY ARMY OFFICER ON THE ACTIVE LIST TO THE ADMINISTRATION, WITH HIS ARMY PAY AND ALLOWANCES FOR THE ACCOUNT OF THE ADMINISTRATION AS PROVIDED BY SAID SECTION 201, WOULD NOT JEOPARDIZE HIS COMMISSION OR RANK, NOTWITHSTANDING THE INHIBITIONS OF SECTIONS 1222 AND 1224, REVISED STATUTES, REGARDING THE CIVILIAN EMPLOYMENT OF ARMY OFFICERS. AN ARMY OFFICER ON DETAIL TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION PURSUANT TO SECTION 201 OF THE ACT OF JUNE 30, 1944, MAY RECEIVE PAYMENT FROM THE ADMINISTRATION FOR OFFICIAL EXPENSES, NOT PERSONAL TO THE OFFICER, PROVIDED PAYMENT IS MADE ON THE BASIS OF EXPENSES ACTUALLY INCURRED AND NOT IN THE FORM OF A COMMUTED ALLOWANCE. IN VIEW OF THE PROHIBITION IN THE ACT OF MARCH 3, 1917, AGAINST GOVERNMENT OFFICERS OR EMPLOYEES RECEIVING ANY SALARY, OR SUPPLEMENT THERETO, FROM SOURCES OTHER THAN THE GOVERNMENT IN CONNECTION WITH SERVICES AS SUCH OFFICERS OR EMPLOYEES, AN ARMY OFFICER ON DETAIL TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION FOR DUTY IN CHINA, PURSUANT TO SECTION 201 OF THE ACT OF JUNE 30, 1944, WOULD BE PROHIBITED FROM RECEIVING AN ALLOWANCE FROM THE ADMINISTRATION TO SUPPLEMENT HIS ARMY PAY AND ALLOWANCES IN ORDER TO MEET INCREASED LIVING COSTS IN CHINA DUE TO INFLATION.

ASSISTANT COMPTROLLER GENERAL YATES TO THE DIRECTOR GENERAL, UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, JULY 11, 1946:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 1, 1946, RELATIVE TO THE PROPOSED DETAIL OF AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION TO BE IN CHARGE OF OPERATIONS IN CHINA, IN CONNECTION WITH WHICH YOU ASK THE FOLLOWING QUESTIONS:

1. WILL HIS COMMISSION AND RANK BE JEOPARDIZED?

2. OWING TO WILD INFLATION IN CHINA, IT WILL BE NECESSARY FOR UNRRA TO PROVIDE HIM, IN ADDITION TO HIS REGULAR ARMY PAY, WITH AN ALLOWANCE TO MEET DISBURSEMENTS IN THE SHAPE OF UNFORESEEN EXPENSES, ENTERTAINMENT, AND HOUSEHOLD NECESSITIES. THIS WOULD COME ENTIRELY FROM UNRRA FUNDS. YOU WILL UNDERSTAND, OF COURSE, THAT THE WHOLE PURPOSE OF THE EXPENSE ALLOWANCE IS TO PERMIT THE MAINTAINING AND KEEPING OF A FAMILY IN THE UNITED STATES, WHILE AT THE SAME TIME BEING ABLE TO CONFRONT THE EXORBITANT COST OF PROPER LIVING IN CHINA. IS THIS PERMISSIBLE?

WHILE THE STATUTES PRESCRIBING THE JURISDICTION OF THIS OFFICE DO NOT PERMIT THE RENDERING OF AUTHORITATIVE DECISIONS EXCEPT UPON THE REQUEST OF A DISBURSING OFFICER, CERTAIN CERTIFYING OFFICERS, OR THE HEAD OF AN EXECUTIVE DEPARTMENT OR OTHER GOVERNMENT ESTABLISHMENT, OR IN CONNECTION WITH THE REVIEW OF SPECIFIC CLAIMS THAT HAVE BEEN SUBMITTED TO THE GENERAL ACCOUNTING OFFICE (SEE 31 U.S.C. 74, THIRD PARAGRAPH AND SECTIONS 3 AND 4 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876), THE FOLLOWING MATTERS RELATING TO YOUR INQUIRY MAY BE NOTED, PARTICULARLY IN VIEW OF THE GOVERNMENT'S INTEREST IN THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION UNDER APPROPRIATIONS MADE BY THE CONGRESS FOR PARTICIPATION BY THE UNITED STATES IN THE WORK OF SUCH INTERNATIONAL ORGANIZATION.

SECTIONS 1222 AND 1224, REVISED STATUTES, PROVIDE 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.

SEC. 1224. NO OFFICER OF THE ARMY SHALL BE EMPLOYED ON CIVIL WORKS OR INTERNAL IMPROVEMENTS, OR BE ALLOWED TO ENGAGE IN THE SERVICE OF ANY INCORPORATED COMPANY, OR BE EMPLOYED AS ACTING PAYMASTER OR DISBURSING AGENT OF THE INDIAN DEPARTMENT, IF SUCH EXTRA EMPLOYMENT REQUIRES THAT HE SHALL BE SEPARATED FROM HIS COMPANY, REGIMENT, OR CORPS, OR IF IT SHALL OTHERWISE INTERFERE WITH THE PERFORMANCE OF THE MILITARY DUTIES PROPER.

IN DECISION OF JULY 11, 1945, 25 COMP. GEN. 38, AS AMPLIFIED BY DECISION OF AUGUST 20, 1945, 25 COMP. GEN. 203, IT WAS HELD THAT THE TERM "CIVIL OFFICE" AS USED IN SECTION 1222, REVISED STATUTES, SUPRA, INCLUDES NOT ONLY A FEDERAL OFFICE, BUT ALSO A NON-FEDERAL OFFICE SUCH AS WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION--- AN INTERNATIONAL AGENCY--- AND, THEREFORE, THAT THE ACCEPTANCE OF AN OFFICE OR POSITION WITH SUCH ADMINISTRATION BY AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY DURING TERMINAL LEAVE FROM MILITARY SERVICE WOULD VACATE SUCH OFFICER'S COMMISSION EFFECTIVE ON THE DATE OF THE ACCEPTANCE OF THE CIVIL OFFICE. COMPARE DECISION OF MARCH 28, 1946, B 56625, 25 COMP. GEN. 677, HOLDING IN EFFECT THAT THE SAID SECTION 1222, REVISED STATUTES, DOES NOT APPLY WHERE AN ARMY OFFICER ACCEPTS A CIVIL APPOINTMENT UNDER THE FEDERAL GOVERNMENT WHILE ON TERMINAL LEAVE, AS EXPRESSLY AUTHORIZED BY THE SUBSEQUENT ACT OF NOVEMBER 21, 1945, 59 STAT. 584 ( PUBLIC LAW 226).

BE THAT AS IT MAY, APPARENTLY THERE IS HERE INVOLVED A PROPOSED DETAIL OF AN OFFICER ON THE ACTIVE LIST OF THE REGULAR ARMY TO DUTY WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, AND NOT THE APPOINTMENT OF SUCH AN OFFICER TO AN OFFICE OR POSITION IN THAT ORGANIZATION. DECISION OF APRIL 1, 1944, 23 COMP. GEN. 744, IT WAS POINTED OUT THAT THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION IS NOT A FEDERAL AGENCY, BUT AN INTERNATIONAL AGENCY, AND THE FUNDS APPROPRIATED BY THE CONGRESS FOR THIS NATION'S PARTICIPATION THEREIN, BEING INTERMINGLED WITH GRANTS MADE BY OTHER ALLIED UNITED NATIONS, LOSE THEIR STATUS AS FEDERAL FUNDS. UNDER SUCH CIRCUMSTANCES, THE DETAIL OF ANY OFFICERS OR EMPLOYEES OF THE GOVERNMENT TO DUTY WITH THAT ADMINISTRATION ORDINARILY WOULD BE PRECLUDED. HOWEVER, SECTION 201 OF THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION PARTICIPATION APPROPRIATION ACT, 1945, 58 STAT. 629, PROVIDES IN PART: * * * PROVIDED, THAT * * * (2) THE APPROPRIATIONS, FUNDS, OR ACCOUNTS OF ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY SHALL BE REIMBURSED OR CREDITED FROM SUMS ALLOCATED HEREUNDER, EXCEPT AS HEREINAFTER PROVIDED, FOR ANY SUPPLIES OR SERVICES PROCURED FROM SUCH APPROPRIATIONS OR FUNDS OR BY USE OF SUCH ACCOUNTS AND FURNISHED FOR ANY OF THE PURPOSES HEREOF; * * * PROVIDED FURTHER, THAT ANY OFFICER OR EMPLOYEE OF ANY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY WHO IS DETAILED TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION AND COMPENSATED HEREUNDER, EITHER DIRECTLY OR BY REIMBURSEMENT OF APPLICABLE APPROPRIATIONS OR FUNDS, SHALL, WHILE SO DETAILED, RETAIN AND BE ENTITLED TO THE RIGHTS, BENEFITS, PRIVILEGES, AND STATUS OF AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND OF THE DEPARTMENT, INDEPENDENT ESTABLISHMENT, OR AGENCY FROM WHICH DETAILED. ( ITALICS SUPPLIED.)

SUBSEQUENT APPROPRIATION ACTS FOR UNITED STATES PARTICIPATION IN THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION HAVE PROVIDED THAT THE FUNDS THEREBY APPROPRIATED WERE TO BE AVAILABLE FOR EXPENDITURE IN THE MANNER SPECIFIED IN THE SAID 1945 APPROPRIATION ACT. SEE, FOR EXAMPLE, THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION PARTICIPATION ACT, 1946, PUBLIC LAW 259, APPROVED DECEMBER 14, 1945, 59 STAT. 609, AND THE FIRST DEFICIENCY APPROPRIATION ACT, 1946, PUBLIC LAW 269, APPROVED DECEMBER 28, 1945, 59 STAT. 634.

WHILE THE LANGUAGE QUOTED FROM THE SAID APPROPRIATION ACT DOES NOT IN EXPRESS TERMS AUTHORIZE THE DETAIL OF OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT TO THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, THE VIEW THAT SUCH WAS THE INTENT OF THE CONGRESS APPEARS NECESSARILY REQUIRED. OTHERWISE, THE QUOTED PROVISO RELATING TO SUCH DETAILS WOULD BE RENDERED MEANINGLESS. ASSUMING THAT THE OFFICER IN QUESTION WILL BE PAID THE PAY AND ALLOWANCES TO WHICH HE IS ENTITLED AS AN OFFICER OF THE ARMY BY THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, EITHER DIRECTLY OR BY REIMBURSEMENT OF THE APPLICABLE WAR DEPARTMENT APPROPRIATIONS, PURSUANT TO THE PROVISO, HIS DETAIL TO DUTY WITH YOUR ADMINISTRATION ON THAT BASIS WOULD APPEAR TO BE WITHIN SUCH STATUTORY AUTHORITY, NOTWITHSTANDING THE PROVISIONS OF SECTIONS 1222 AND 1224, REVISED STATUTES. CF. 19 COMP. GEN. 826. THE PROVISO EXPRESSLY STIPULATES THAT ANY OFFICER OR EMPLOYEE SO DETAILED SHALL RETAIN HIS RIGHTS, BENEFITS, PRIVILEGES AND STATUS AS SUCH OFFICER OR EMPLOYEE. YOU MAY BE ADVISED, THEREFORE, THAT IN THE OPINION OF THIS OFFICE THE DETAIL OF THE OFFICER IN QUESTION UNDER SUCH CIRCUMSTANCES WOULD NOT JEOPARDIZE HIS COMMISSION OR RANK.

WITH RESPECT TO YOUR SECOND QUESTION, REGARDING THE PAYMENT OF CERTAIN ADDITIONAL ALLOWANCES BY UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION, NO OBJECTION IS PERCEIVED TO THE PAYMENT OF OFFICIAL EXPENSES, NOT PERSONAL TO THE OFFICER, PROVIDED SUCH PAYMENTS ARE MADE ON THE BASIS OF EXPENSES ACTUALLY INCURRED AND NOT IN THE FORM OF A COMMUTED ALLOWANCE. AS TO ALLOWANCES TO MEET INCREASED LIVING COSTS IN CHINA DUE TO INFLATION AND OTHER FACTORS, YOUR ATTENTION IS INVITED TO THE PROVISION CONTAINED IN THE ACT OF MARCH 3, 1917, 39 STAT. 1106, 5 U.S.C. 66, AS FOLLOWS:

NO GOVERNMENT OFFICIAL OR EMPLOYEE SHALL RECEIVE ANY SALARY IN CONNECTION WITH HIS SERVICES AS SUCH AN OFFICIAL OR EMPLOYEE FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES, EXCEPT AS MAY BE CONTRIBUTED OUT OF THE TREASURY OF ANY STATE, COUNTY, OR MUNICIPALITY, AND NO PERSON, ASSOCIATION, OR CORPORATION SHALL MAKE ANY CONTRIBUTION TO, OR IN ANY WAY SUPPLEMENT THE SALARY OF, ANY GOVERNMENT OFFICIAL OR EMPLOYEE FOR THE SERVICES PERFORMED BY HIM FOR THE GOVERNMENT OF THE UNITED STATES. ANY PERSON VIOLATING ANY OF THE TERMS OF THIS SECTION SHALL BE DEEMED GUILTY OF A MISDEMEANOR, AND UPON CONVICTION THEREOF SHALL BE PUNISHED BY A FINE OF NOT LESS THAN $1,000 OR IMPRISONMENT FOR NOT LESS THAN SIX MONTHS, OR BY BOTH SUCH FINE AND IMPRISONMENT AS THE COURT MAY DETERMINE. ( ITALICS SUPPLIED.)

SINCE THE SAID SECTION 201 OF THE SAID UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION PARTICIPATION APPROPRIATION ACT OF 1945, IN EFFECT PROVIDES THAT OFFICERS AND EMPLOYEES OF THE GOVERNMENT DETAILED TO YOUR ADMINISTRATION SHALL, DURING SUCH DETAIL, REMAIN OFFICERS OR EMPLOYEES OF THE AGENCY FROM WHICH DETAILED, THE PAYMENT OF AN ALLOWANCE TO ENABLE THE OFFICER TO MEET THE HIGHER LIVING COSTS IN CHINA WOULD SUPPLEMENT THE PAY AND ALLOWANCES RECEIVED BY HIM FOR SERVICES PERFORMED AS AN OFFICER OF THE ARMY, AND, HENCE, SUCH PAYMENT WOULD SEEM CLEARLY TO BE PROHIBITED BY THE SAID ACT OF MARCH 3, 1917. SEE 18 COMP. GEN. 460. HOWEVER, IN THIS CONNECTION YOUR ATTENTION IS INVITED TO A PROVISION CONTAINED FOR SOME YEARS IN THE ANNUAL MILITARY APPROPRIATION ACTS UNDER THE HEAD " CONTINGENCIES OF THE ARMY," WHICH ALSO APPEARS IN THE 1946 APPROPRIATION BILL FOR THE MILITARY ESTABLISHMENT ( H.R. 6837, 79TH CONGRESS), FOR ACTUAL AND NECESSARY EXPENSES OR PER DIEM IN LIEU THEREOF, AS MAY BE DETERMINED AND APPROVED BY THE SECRETARY OF WAR, FOR MILITARY AND CIVILIAN PERSONNEL IN AND UNDER THE MILITARY ESTABLISHMENT ON SPECIAL DUTY IN FOREIGN COUNTRIES.