Applicability of the Dual Compensation Act to the Head Basketball Coach, U.S. Military Academy

The Assistant Secretary of the Army for Installations, Logistics and Financial Management requested an advance decision regarding the applicability of the Dual Compensation Act to the head basketball coach at the U.S. Military Academy. The issues were whether the Army Athletic Association, which employs the coach, was a nonappropriated fund instrumentality and, if so, whether the coach occupies a position in the Government and therefore was subject to the Act. The Act provides that a retired officer of a regular component of a uniformed service who holds a position is entitled to receive the full pay of the position but, during the period for which he receives pay, his retired or retainer pay shall be reduced. The Assistant Secretary stated that the coach performed a duty and was compensated under the terms and conditions of a contract with the Army Athletic Association. In a prior decision, GAO concluded that the Naval Academy Athletic Association was a purely voluntary organization, not required by law or regulation to function under the jurisdiction of the Navy, and therefore cannot be regarded as a nonappropriated fund instrumentality of the Government. The submission appeared to confuse the activities of these athletic associations with the criteria which qualify a particular association as a nonappropriated fund instrumentality. While the activities of the two associations may indeed be similar, this was not sufficient in itself to conclude that because the Navy Association was not such an instrumentality, neither was the Army Association. Although the Army Athletic Association has been recognized as a unique nonappropriated fund instrumentality by the Secretary and was granted exceptions from the regulatory controls placed upon other such Army instrumentalities, this did not operate to remove the Association from the class of instrumentality referred to in the Act. Similarly, although the Association was granted authority to employ certain athletic department personnel using individualized contracts spelling out the terms provided in regulations applicable to other employees, this does not change the fact that such personnel are employees who occupy positions within the meaning of the Act. Accordingly, the head basketball was subject to the restrictions imposed by the Act.