B-201504 April 20, 1981

B-201504: Apr 20, 1981

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Virginia 22212 Dear Major Meyer: This is in response to your December 9. 1980 request for an advisory opinion on whether active duty military personnel assigned to the United States Army Intelligence and Security Command who are permitted to work during their off-duty hours for civilian firms. 82d (1976) a decision of the Comptroller General is not being rendered on your request. We are providing the following information. The Comptroller General has held that officers and enlisted personnel serving on extended active duty in the uniformed services may not be employed during their off-duty hours in civilian positions which are paid for by appropriated funds since this would violate the long-standing rule that active military service is incompatible with Federal civilian service. 46 Comp.

B-201504 April 20, 1981

Major Carl F. Meyer, Jr. JAGC Deputy Staff Judge Advocate United States Army Intelligence and Security Command Arlington Hall Station Arlington, Virginia 22212

Dear Major Meyer:

This is in response to your December 9, 1980 request for an advisory opinion on whether active duty military personnel assigned to the United States Army Intelligence and Security Command who are permitted to work during their off-duty hours for civilian firms, under contract with the Government, which provide custodial services, would be receiving "extra pay for extra services" thereby violating 5 U.S.C. Sec. 5536 (1976). Pursuant to 31 U.S.C. Secs. 74, 82d (1976) a decision of the Comptroller General is not being rendered on your request. However, for your assistance, we are providing the following information.

The Comptroller General has held that officers and enlisted personnel serving on extended active duty in the uniformed services may not be employed during their off-duty hours in civilian positions which are paid for by appropriated funds since this would violate the long-standing rule that active military service is incompatible with Federal civilian service. 46 Comp. Gen. 400 (1976). Moreover, section 1765, Revised Statutes (a predecessor to 5 U.S.C. Sec. 5536) has been interpreted to preclude a Federal employee form receiving compensation from a private source to render services which he is required to perform as part of his official duty. 3 Comp. Gen. 128 (1923).

Additionally, any resolution of this question would also entail discerning whether there are civilians, capable of performing the services, who are denied this opportunity because the civilian firms have hired military members. See 10 U.S.C. Sec. 974 (1976), and Jenkins v. Rumsfeld, 412 F.Supp. 1177 (D.C. Va. 1976).

Finally, the Army should consider whether the use of off-duty members to provide custodial services at their duty site would be compatible with Army Regulation 600-50, paragraph 2-6a. Specifically, it should be noted that sub-paragraph 2-6s(3), among other things, would prohibit the member from performing custodial services at their duty site if this action "reasonably can be expected to create a conflict or the appearance of conflicts of interest."

If it is still deemed necessary to seek a Comptroller General decision on the matter, we suggest that, in accordance with 31 U.S.C. Secs. 74, 82d, it be requested by the appropriate accountable officer or agency official and submitted through the usual agency channels with a complete statement of the facts involved.

We trust this information will be helpful to you.

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