B-59392, SEPTEMBER 16, 1946, 26 COMP. GEN. 192

B-59392, SEPTEMBER 16, 1946, 26 COMP. GEN. 192

APPLICABILITY OF FEDERAL DUAL COMPENSATION AND EMPLOYMENT STATUTES TO ARMY EMERGENCY RELIEF EMPLOYMENTS THE ARMY EMERGENCY RELIEF, A CHARITABLE AND BENEVOLENT CORPORATION ORGANIZED FOR THE BENEFIT OF PERSONNEL OF THE ARMY OF THE UNITED STATES, WHICH, WHILE DIRECTED BY WAR DEPARTMENT OFFICIALS BY VIRTUE OF THEIR OFFICE AND ADMINISTERED, FOR THE MOST PART, BY GOVERNMENT PERSONNEL, CONDUCTS ITS LAWFUL FUNCTIONS WITHOUT INTERFERENCE OR ASSISTANCE BY THE GOVERNMENT, IS NOT AN AGENCY OF THE GOVERNMENT AND, THEREFORE, A RETIRED ARMY OFFICER MAY BE EMPLOYED BY THE ARMY EMERGENCY RELIEF WITHOUT REGARD TO THE DUAL COMPENSATION LIMITATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, OR THE DUAL EMPLOYMENT RESTRICTION OF SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 16, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 20, 1946, AS FOLLOWS:

IT IS PROPOSED THAT THE ARMY EMERGENCY RELIEF EMPLOYED IN A CIVILIAN CAPACITY RETIRED ARMY OFFICERS WHO WOULD BE PAID FOR THEIR SERVICES UNDER SUCH EMPLOYMENT FROM ARMY EMERGENCY RELIEF FUNDS.

THE ARMY EMERGENCY RELIEF IS AN ORGANIZATION INCORPORATED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA IN FEBRUARY OF 1942. COPIES OF THE CERTIFICATE OF INCORPORATION AND THE BYLAWS IN EFFECT AS OF 15 APRIL 1943 (WHICH ARE STILL IN EFFECT) ARE ENCLOSED FOR YOUR INFORMATION AND READY REFERENCE. IT WILL BE NOTED FROM THE CERTIFICATE OF INCORPORATION THAT THE PARTICULAR BUSINESS AND OBJECTS OF SAID CORPORATION GENERALLY STATED ARE TO COLLECT AND HOLD FUNDS, AND TO RELIEVE DISTRESS OF PERSONNEL OF THE ARMY OF THE UNITED STATES AND THEIR DEPENDENTS. A REFERENCE TO THE BYLAWS WILL DISCLOSE THE CORPORATE STRUCTURE AND ORGANIZATION OF THE ARMY EMERGENCY RELIEF.

IT MIGHT BE STATED FOR YOUR FURTHER INFORMATION THAT DURING WORLD WAR II THE ARMY EMERGENCY RELIEF RECEIVED IN CONTRIBUTIONS, MEMBERSHIPS, AND FROM ENTERTAINMENTS, MORE THAN $21,000,000.00, AND DISBURSED IN LOANS AND GRANTS TO ASSIST MILITARY PERSONNEL AND THEIR DEPENDENTS IN EMERGENCY FINANCIAL NEEDS OVER $18,000,000.00. A GREAT PORTION OF THE FUNDS DISBURSED HAS BEEN DUE TO SICKNESS, REQUIRING MEDICAL CARE AND HOSPITALIZATION, OF DEPENDENTS OF MILITARY PERSONNEL WHO WERE UNABLE TO FINANCE SUCH MEDICAL CARE AND HOSPITALIZATION.

IT WILL BE READILY APPRECIATED THAT RELIEF FROM WORRY ABOUT THEIR FAMILIES ON THE PART OF SOLDIERS OVERSEAS UNQUESTIONABLY INCREASED THE MORALE AND FIGHTING EFFICIENCY OF OUR TROOPS. THE ACCOMPLISHMENTS OF THE ARMY EMERGENCY RELIEF HAVE BEEN SO HELPFUL TO PERSONNEL OF THE ARMY DURING THE PERIOD OF ACTIVE HOSTILITIES THAT THE CONTINUATION OF SUCH AGENCY AS A RELIEF ORGANIZATION IS DEEMED HIGHLY DESIRABLE FOR THE POST-WAR PERIOD. FUNDS FOR THE OPERATION OF THE ARMY EMERGENCY RELIEF HAVE BEEN RAISED BY GENEROUS AMERICAN CITIZENS FOR THE EXPRESS PURPOSE OF ASSISTING SOLDIERS AND THEIR FAMILIES IN EMERGENCY NEEDS. NO APPROPRIATED MONEY HAS BEEN DISBURSED BY, OR ON ACCOUNT OF, THE ARMY EMERGENCY RELIEF FOR RELIEF PURPOSES, NOR HAS ANY MONEY FROM NON APPROPRIATED FUNDS, SUCH AS, POST EXCHANGE FUNDS, MOTION PICTURE FUNDS, ENLISTED CLUB FUNDS, BEEN UTILIZED BY THE ARMY EMERGENCY RELIEF.

UNDER PRESENT DEMOBILIZATION POLICIES OF THE WAR DEPARTMENT, AS THE AUTHORIZED STRENGTH OF THE ARMY IS DECREASED, IT HAS BEEN FOUND DESIRABLE TO EMPLOY, IF LEGALLY POSSIBLE, RETIRED OFFICERS OF THE ARMY IN CONNECTION WITH THE OPERATIONS AND FUNCTIONS OF THE CORPORATION. THE EMPLOYMENT OF SUCH RETIRED OFFICERS IS HIGHLY ADVANTAGEOUS FOR THE FOLLOWING REASONS--- FIRST, THEY HAVE INTIMATE KNOWLEDGE OF THE PROBLEMS OF THE SOLDIERS AND THEIR FAMILIES, AND NOT BEING SUBJECT TO FOREIGN SERVICE OR CHANGE OF STATION, EXCEPT AS MAY BE FOUND NECESSARY IN CONNECTION WITH ARMY EMERGENCY RELIEF ACTIVITIES, THEIR SERVICES WOULD BE AVAILABLE TO THE CORPORATION CONTINUOUSLY, AND, SECONDLY, IF THE RETIRED OFFICERS CAN RETAIN THEIR RETIRED PAY AND ONLY THE DIFFERENCE BETWEEN ACTIVE DUTY PAY AND RETIRED PAY PAID FROM ARMY EMERGENCY RELIEF FUNDS, THE OVERHEAD EXPENSES OF THE ARMY EMERGENCY RELIEF FUND, WHICH IS STRICTLY A CHARITABLE FUND, CAN BE KEPT AT A LOW AMOUNT. IN FURTHERANCE OF THIS CONTEMPLATED ACTION, THE BOARD OF MANAGERS HAS AUTHORIZED THE PAYMENT TO SUCH RETIRED OFFICERS FROM ARMY EMERGENCY RELIEF FUNDS OF THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY THEY WOULD RECEIVE WERE THEY ON ACTIVE DUTY.

BY REASON OF THE NATURE OF THE FUNDS WHICH WOULD BE UTILIZED TO PAY SUCH RETIRED OFFICERS BY THE ARMY EMERGENCY RELIEF, IT IS THE VIEW OF THIS DEPARTMENT THAT THE PROVISIONS OF SECTION 212 OF THE ACT OF 30 JUNE 1932, 47 STAT. 406, 5 U.S.C. 59A, OR THE PROVISIONS OF THE ACT OF 31 JULY 1894, 28 STAT. 205, 5 U.S.C. 62, WOULD NOT BE APPLICABLE. HOWEVER, THE MATTER IS NOT ENTIRELY FREE FROM DOUBT, REQUIRING THEREFORE YOUR DECISION IN THE PREMISES.

IN ORDER THAT THE RETIRED OFFICERS MAY BE ADVISED OF THEIR RIGHTS UNDER THE CIRCUMSTANCES DISCLOSED, AND THAT THE WAR DEPARTMENT MAY ISSUE APPROPRIATE INSTRUCTIONS TO THE FINANCE OFFICERS MAKING PAYMENT OF THEIR RETIRED PAY, YOUR DECISION IS ACCORDINGLY REQUESTED AS TO WHETHER ARMY OFFICERS RETIRED FOR (A) LENGTH OF SERVICE OR (B) INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY (OTHER THAN DISABILITY INCURRED IN COMBAT WITH AN ENEMY OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR), MAY BE EMPLOYED IN A CIVILIAN ACT OF 30 JUNE 1932, SUPRA, AND THE ACT OF 31 JULY 1894, SUPRA.

IN VIEW OF THE DESIRE OF THE CORPORATION TO PERFECT ITS ARRANGEMENTS FOR THE POST-WAR PERIOD AS EARLY AS POSSIBLE, YOUR PROMPT DECISION ON THE QUESTION PRESENTED WILL BE APPRECIATED.

SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED BY SECTION 3 OF THE ACT OF JULY 15, 1940, 54 STAT. 761, 5 U.S.C. 59A, IS AS FOLLOWS:

(A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR FOR DISABILITIES RESULTING FROM AN EXPLOSION OF AN INSTRUMENTALITY OF WAR IN LINE OF DUTY DURING AN ENLISTMENT OR EMPLOYMENT AS PROVIDED IN VETERANS REGULATION NUMBERED 1 (A), PART I, PARAGRAPH I.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, IS AS FOLLOWS:

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT.

FROM THE COPY OF " CERTIFICATE OF INCORPORATION" AND THE COPY OF BY LAWS, RECEIVED WITH YOUR LETTER, IT APPEARS THAT " ARMY EMERGENCY RELIEF" IS A NONSTOCK, NONPROFIT, CHARITABLE AND BENEVOLENT CORPORATION ORGANIZED UNDER THE LAWS OF THE DISTRICT OF COLUMBIA ( D.C. CODE: TITLE 20, CHAPTER 6, CURRENT EDITION; TITLE 5, CHAPTER 5, 1930 EDITION) FOR THE PRIMARY PURPOSE OF COLLECTING, HOLDING AND USING FUNDS CONTRIBUTED BY PRIVATE INDIVIDUALS OR GROUPS,"TO RELIEVE DISTRESS OF PERSONNEL OF THE ARMY OF THE UNITED STATES AND THEIR DEPENDENTS, INCLUDING DEPENDENTS OF HONORABLY RETIRED OR DISCHARGED AND DECEASED PERSONNEL THEREOF, TO PROVIDE FOR THEIR EDUCATION, AND TO SECURE EMPLOYMENT FOR HONORABLY RETIRED OR DISCHARGED PERSONNEL AND THEIR DEPENDENTS AND THE DEPENDENTS OF DECEASED PERSONNEL.'

ALTHOUGH THE THREE ORIGINAL INCORPORATORS OF ARMY EMERGENCY RELIEF WERE OFFICIALS OF THE WAR DEPARTMENT AND CERTAIN OFFICIALS OF THE WAR DEPARTMENT AUTOMATICALLY BECOME PRINCIPAL OFFICERS OF THE SAID CORPORATION BY REASON OF BEING SUCH WAR DEPARTMENT OFFICIALS, AND ALTHOUGH IT APPEARS THAT THE AFFAIRS OF THE CORPORATION ARE, FOR THE MOST PART, ADMINISTERED BY WAR DEPARTMENT AND ARMY PERSONNEL, IT SEEMS CLEAR THAT THE CORPORATION IS NOT AN AGENCY OF THE UNITED STATES GOVERNMENT, AND THAT AS A "BODY POLITIC AND CORPORATE" IT MAY CONDUCT ITS LAWFUL AFFAIRS, WITHIN THE SCOPE OF ITS CHARTER, WITHOUT INTERFERENCE OR ASSISTANCE BY THE UNITED STATES GOVERNMENT OR BY ANY DEPARTMENT, AGENCY OR OFFICER THEREOF, AS SUCH, EXCEPT TO THE EXTENT THAT THE INHERENT NATURE OF ITS ACTIVITIES MAY REQUIRE. CF. B-56268 DATED JUNE 20, 1946.

IT FOLLOWS THAT A PERSON EMPLOYED IN A CIVILIAN CAPACITY BY ARMY EMERGENCY RELIEF DOES NOT HOLD, BY REASON OF SUCH EMPLOYMENT,"A CIVILIAN OFFICE OR POSITION * * * UNDER THE UNITED STATES GOVERNMENT * * * OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, SUPRA, OR "ANY OTHER OFFICE (IN OR UNDER THE UNITED STATES GOVERNMENT) TO WHICH COMPENSATION IS ATTACHED" WITHIN THE MEANING OF SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED, SUPRA. SEE 8 COMP. DEC. 443; A-53436 DATED FEBRUARY 10, 1934. CF. 14 COMP. GEN. 916; 15 ID. 580.