B-133972, NOVEMBER 14, 1966, 46 COMP. GEN. 400

B-133972: Nov 14, 1966

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MILITARY PERSONNEL - CIVILIAN SERVICE EMPLOYMENT - INCOMPATIBILITY WITH ACTIVE MILITARY SERVICE OFFICERS AND ENLISTED PERSONNEL SERVING ON EXTENDED ACTIVE DUTY IN THE UNIFORMED SERVICES MAY NOT BE EMPLOYED DURING THEIR OFF-HOURS IN CIVILIAN POSITIONS WHICH ARE PAID FOR BY APPROPRIATED FUNDS. 1964 OF THE DUAL COMPENSATION ACT NOT HAVING CHANGED THE LONG- STANDING RULE THAT ACTIVE MILITARY SERVICE IS INCOMPATIBLE WITH CONCURRENT FEDERAL CIVILIAN SERVICE. 1966: REFERENCE IS MADE TO LETTER OF AUGUST 16. FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION "AS TO WHETHER IT IS LEGALLY OBJECTIONABLE" TO EMPLOY IN CIVILIAN POSITIONS DURING THEIR OFF -DUTY HOURS OFFICERS OR ENLISTED PERSONNEL SERVING ON EXTENDED ACTIVE DUTY IN THE ARMED FORCES.

B-133972, NOVEMBER 14, 1966, 46 COMP. GEN. 400

MILITARY PERSONNEL - CIVILIAN SERVICE EMPLOYMENT - INCOMPATIBILITY WITH ACTIVE MILITARY SERVICE OFFICERS AND ENLISTED PERSONNEL SERVING ON EXTENDED ACTIVE DUTY IN THE UNIFORMED SERVICES MAY NOT BE EMPLOYED DURING THEIR OFF-HOURS IN CIVILIAN POSITIONS WHICH ARE PAID FOR BY APPROPRIATED FUNDS, THE ENACTMENT ON AUGUST 19, 1964 OF THE DUAL COMPENSATION ACT NOT HAVING CHANGED THE LONG- STANDING RULE THAT ACTIVE MILITARY SERVICE IS INCOMPATIBLE WITH CONCURRENT FEDERAL CIVILIAN SERVICE.

TO THE SECRETARY OF DEFENSE, NOVEMBER 14, 1966:

REFERENCE IS MADE TO LETTER OF AUGUST 16, 1966, FROM THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTING DECISION "AS TO WHETHER IT IS LEGALLY OBJECTIONABLE" TO EMPLOY IN CIVILIAN POSITIONS DURING THEIR OFF -DUTY HOURS OFFICERS OR ENLISTED PERSONNEL SERVING ON EXTENDED ACTIVE DUTY IN THE ARMED FORCES. IT APPEARS THTA THE CIVILIAN POSITIONS CONTEMPLATED WOULD INVOLVE JOBS IN ACTIVITIES SUCH AS COMMISSARIES OR FIRE DEPARTMENTS LOCATED ON MILITARY INSTALLATIONS WHICH ARE PAID FROM APPROPRIATED FUNDS.

THE MATTER IS THE SUBJECT OF A DISCUSSION CONTAINED IN DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE ACTION NO. 380 WITH RESPECT TO THE FOLLOWING:

WHEN MAY OFFICER AND ENLISTED PERSONNEL ON EXTENDED ACTIVE DUTY IN THE ARMED FORCES BE EMPLOYED IN THEIR OFF-DUTY HOURS IN CIVILIAN POSITIONS WHICH ARE PAID FOR BY APPROPRIATED FUNDS?

IT IS INDICATED THAT ASIDE FROM ANY LEGAL RESTRICTIONS, EMPLOYMENT OF THE DESCRIPTION COVERED BY THE QUESTION IS POSSIBLE IN SOME INSTANCES WHERE THE TIME REQUIREMENTS OF THE ACTIVE DUTY MILITARY ASSIGNMENT PERMIT OFF- DUTY TIME SUFFICIENT TO ENGAGE IN CIVILIAN EMPLOYMENT AND THAT SUCH CIVILIAN EMPLOYMENT COULD BE ON A TEMPORARY, FULL-TIME, PART-TIME, OR INTERMITTENT BASIS.

REFERENCE IS MADE TO 37 COMP. GEN. 255 WHICH REFLECTS THE RULE LONG FOLLOWED BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT DENYING PAY FOR DUTIES PERFORMED IN A GOVERNMENT CIVILIAN CAPACITY BY A MEMBER OF A MILITARY SERVICE, IN THE ABSENCE OF A STATUTE SPECIFICALLY AUTHORIZING PAYMENT IN THE CIVILIAN CAPACITY. REFERENCE IS MADE, ALSO, TO DECISION OF MARCH 11, 1948, 27 COMP. GEN. 510, AND THE FACT THAT THE PROVISIONS OF THE ACT OF MAY 10, 1916, CH. 117, 39 STAT. 120, AS AMENDED, 5 U.S.C. 58 (1952 ED.), RELATING TO DOUBLE SALARIES AND WHICH WERE DISCUSSED IN CONNECTION WITH THE CONCLUSION REACHED IN THAT DECISION, WERE EXPRESSLY REPEALED BY SECTION 402 (A) (14) OF THE DUAL COMPENSATION ACT OF AUGUST 19, 1964, PUBLIC LAW 88-448, 78 STAT. 493. IN ADDITION, IT IS POINTED OUT THAT SECTION 402 (B) OF THE 1964 LAW REPEALED ALL OTHER PROVISIONS OF LAW, GENERAL OR SPECIFIC, INCONSISTENT WITH THE 1964 LAW OR THE AMENDMENTS MADE BY THAT ACT.

COMMITTEE ACTION NO. 380 NOTES THAT, WITH CERTAIN EXCEPTIONS NOT PERTINENT TO THE QUESTION AT HAND, SECTION 301 OF THE 1964 ACT, NOW CODIFIED AS SECTION 5533, TITLE 5 U.S.C. (PUBLIC LAW 89-554, SEPTEMBER 6, 1966, 80 STAT. 483, 484), LIMITS THE RECEIPT OF CIVILIAN BASIC COMPENSATION TO NOT "MORE THAN AN AGGREGATE OF 40 HOURS OF WORK IN 1 CALENDAR WEEK (SUNDAY THROUGH SATURDAY)" IN THE CASE OF CIVILIAN PERSONNEL SERVING IN MORE THAN ONE CIVILIAN POSITION. THE DISCUSSION STATES THAT WHILE IT IS KNOWN THAT CHANGING ECONOMIC AND EMPLOYMENT CONDITIONS NECESSITATED SUBSTANTIAL REVISION IN THE GOVERNMENT'S BASIC POLICY CONCERNING DUAL COMPENSATION AND DUAL EMPLOYMENT, IT IS NOT KNOWN TO WHAT EXTENT THE 1964 LAW MAY HAVE ALTERED THE LEGISLATIVE POLICY WITH RESPECT TO THE CIVILIAN EMPLOYMENT OF MILITARY PERSONNEL SERVING ON EXTENDED ACTIVE DUTY.

THE QUESTION WHETHER A PERSON IN THE ACTIVE MILITARY SERVICE MAY BE EMPLOYED IN A CIVILIAN CAPACITY IN THE FEDERAL GOVERNMENT AND BE PAID FROM APPROPRIATED FUNDS FOR THE CIVILIAN POSITION HAS BEEN CONSIDERED MANY TIMES. IT CONSISTENTLY HAS BEEN HELD THAT IN THE ABSENCE OF A STATUTE EXPRESSLY SO PROVIDING ONLY THE PAY AND ALLOWANCES THAT ACCRUE UNDER THE LAWS AND REGULATIONS APPLICABLE TO THE MILITARY SERVICE CONCERNED, PROPERLY MAY BE PAID. SEE 38 COMP. GEN. 222, AND THE DECISIONS CITED THEREIN AT PAGE 224. THE BASIS UNDERLYING THIS RULE WAS SUMMARIZED IN THE DECISION OF MARCH 11, 1948 (27 COMP. GEN. 510), IN THE STATEMENT:

ASIDE FROM THE QUESTION OF DUAL COMPENSATION, HOWEVER, IT HAS BEEN HELD REPEATEDLY BY THIS OFFICE THAT THE HOLDING OF A CIVILIAN FEDERAL POSITION WHILE RECEIVING ACTIVE DUTY PAY AS A MEMBER OF THE ARMED FORCES IS INCOMPATIBLE WITH MILITARY DUTY, ACTUAL OR POTENTIAL. * * *

ALSO, SEE DECISION OF FEBRUARY 19, 1954, 33 COMP. GEN. 368, DEALING WITH THE INCOMPATIBILITY OF CONCURRENT CIVILIAN AND MILITARY EMPLOYMENT IN THE CASE OF ENLISTED MEMBERS OF THE UNIFORMED SERVICES EMPLOYED AS EMERGENCY PICKUP LABOR FOR USE IN THE SUPPRESSION OF FOREST AND RANGE FIRES IN ALASKA. AFTER REFERRING, IN THAT DECISION, TO THE HOLDING IN 27 COMP. GEN. 510 THAT MILITARY SERVICE IS INCOMPATIBLE WITH FEDERAL CIVILIAN SERVICE, IT WAS FURTHER STATED:

* * * FROM TIME TO TIME PRIVATE BILLS HAVE BEEN INTRODUCED IN THE CONGRESS SEEKING RELIEF FOR ENLISTED PERSONNEL WHO HAVE CONCURRENTLY RECEIVED COMPENSATION AS CIVILIAN EMPLOYEES OF THE GOVERNMENT. SITUATIONS INVOLVING BOTH THE 1916 STATUTE AND THE ELEMENT OF COMPATIBILITY, SOME OF SUCH BILLS HAVE FAILED OF ENACTMENT, SOME HAVE BEEN VETOED BY THE PRESIDENT AND STILL OTHERS HAVE BEEN ENACTED INTO LAW. HOWEVER, IN NO CASE COMING TO THE ATTENTION OF THIS OFFICE HAS THE CONGRESS FAILED TO GIVE RECOGNITION TO THE ESTABLISHED RULES AFFECTING SUCH EMPLOYMENT--- RELIEF, IF GRANTED, BEING ON THE GROUNDS THAT NOTWITHSTANDING PROVISIONS OF LAW TO THE CONTRARY, THE EQUITIES IN PARTICULAR CASES ARE SUCH AS TO WARRANT ACTION FAVORABLE TO THE CLAIMANTS.

IN REFERENCE TO THE RESTRICTION PLACED UPON OFFICERS OF THE ARMY ON THE ACTIVE LIST BY SECTION 1222, REVISED STATUTES (NOW CODIFIED IN 10 U.S.C. 3544 AS TO ARMY OFFICERS AND IN 10 U.S.C. 8544 AS TO OFFICERS OF THE AIR FORCE), IT WAS STATED AT PAGE 888 IN DECISION OF JUNE 14, 1941, 20, GEN. 885:

* * * THAT SECTION WAS A STATUTORY EXPRESSION OF THE INCOMPATIBILITY INHERENT IN THE HOLDING OF A CIVIL OFFICE--- STATE OR FEDERAL--- BY AN ARMY OFFICER ON THE ACTIVE LIST.

THE LEGISLATIVE HISTORY OF THE DUAL COMPENSATION ACT OF 1964 MAKES NO REFERENCE WHATEVER TO THE QUESTION WHETHER A PERSON IN THE ACTIVE MILITARY SERVICE MAY BE EMPLOYED IN A CIVILIAN CAPACITY UNDER THE FEDERAL GOVERNMENT AND BE PAID THEREFOR FROM APPROPRIATED FUNDS IN ADDITION TO RECEIVING ACTIVE DUTY MILITARY PAY AND ALLOWANCES. IT IS EXTREMELY UNLIKELY THAT IF A CHANGE IN THE LAW AS TO THE MATTER HERE INVOLVED HAD BEEN CONTEMPLATED, CONGRESS, AFTER CONSIDERING VARIOUS ASPECTS OF DUAL COMPENSATION AND DUAL EMPLOYMENT FOR SEVERAL YEARS, WOULD FULLY SET OUT IN TITLE II OF THE 1964 LAW THE RIGHTS AND LIMITATIONS OF RETIRED MEMBERS OF THE UNIFORMED SERVICES WHO ACCEPT CIVILIAN FEDERAL EMPLOYMENT AND COMPLETELY OMIT LANGUAGE DEALING WITH THE PROBLEM OF THE EMPLOYMENT OF ACTIVE DUTY MILITARY PERSONNEL IN FEDERAL CIVILIAN JOBS, PARTICULARLY WHEN THAT VERY PROBLEM, OVER THE COURSE OF MANY YEARS HAD BEEN THE SUBJECT OF NUMEROUS DECISIONS BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. HAD THE CONGRESS HAD ANY INTENTION OF ABOLISHING OR MODIFYING THE RULE OF INCOMPATIBILITY IN THESE SITUATIONS IT WOULD SEEM THAT IN ENACTING THIS NEW LAW DEALING WITH THE MATTER OF DUAL COMPENSATION GENERALLY, CLEAR AND APPROPRIATE LANGUAGE TO THAT EFFECT WOULD HAVE BEEN INCLUDED.

IN DECISION OF SEPTEMBER 1, 1938, 18 COMP. GEN. 213, IT WAS STATED AT PAGE 215:

* * * STATUTES HAVE IN SOME CASES SPECIFICALLY DENIED TO OFFICERS OF THE ARMY PAY OR THE RIGHT TO HOLD A CIVIL OFFICE, BUT IT DOES NOT NECESSARILY FOLLOW THAT IN THE ABSENCE OF SUCH A STATUTE EMPLOYMENT INTA CIVIL CAPACITY OF ONE IN THE MILIATRY SERVICE IS COMPATIBLE WITH SERVICE IN A MILITARY CAPACITY. SINCE THE 1964 DUAL COMPENSATION ACT APPARENTLY WAS BASED ON THE VIEW THAT IT IS INCOMPATIBLE AND AGAINST THE GENERAL POLICY OF THE LAW FOR A RETIRED OFFICER OF THE MILITARY SERVICE TO HOLD A FEDERAL CIVILIAN POSITION EXCEPT UNDER THE SPECIFIC CONDITIONS PRESCRIBED IN TITLE II OF THAT LAW (SEE SECTIONS 5531 AND 5532, TITLE 5, U.S. CODE, AS CODIFIED BY PUBLIC LAW 89-554), WE DO NOT BELIEVE WE SHOULD IMPUTE TO THE CONGRESS WHICH ENACTED THAT LAW AN INTENT TO ALTER, IN ANY WAY, THE GENERAL RULE OF LONGSTANDING THAT THE APPOINTMENT OF AN OFFICER OF THE UNIFORMED SERVICES TO A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT WOULD BE INCOMPATIBLE WITH HIS ACTIVE MILITARY SERVICE. SEE 10 U.S.C. 3544 AND 8544, ABOVE REFERRED TO. THE SAME REASONING WOULD APPLY WITH RESPECT TO ENLISTED MEMBERS OF THE UNIFORMED SERVICES. AS FURTHER STATED IN 18 COMP. GEN. 213 (AT PAGES 216 AND 217):

* * * THE FACT THAT DURING HOURS OF RELAXATION OR RELIEF FROM THE ACTUAL PERFORMANCE OF DUTIES THE INDIVIDUAL HAS TIME TO DEVOTE TO HIS PERSONAL AFFAIRS AND THAT NORMALLY SUCH TIME IS AVAILABLE FOR THE PERFORMANCE OF OTHER DUTIES IS NOT THE TEST. COMPATIBILITY IS DETERMINED BY THE INDIVIDUAL'S FREEDOM TO PERFORM BOTH SERVICES, THE ONE WITHOUT INTERFERENCE FROM THE OTHER. THE SUPERIOR--- THE CONTROLLING--- OBLIGATION TO RENDER MILITARY SERVICE THUS MAKES IMPOSSIBLE THE ACCEPTANCE WITHOUT QUALIFICATION OF ANOTHER OBLIGATION TO THE GOVERNMENT TO RENDER SERVICE IN A CIVILIAN CAPACITY AT THE SAME TIME. THE TIME OF ONE IN THE MILITARY SERVICE IS NOT HIS OWN, HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES TO THE GOVERNMENT IN ANOTHER POSITION OR EMPLOYMENT IS INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL. * * *

WE HAVE FOUND NOTHING IN PUBLIC LAW 88-488 OR ELSEWHERE IN THE STATUTES WHICH WOULD JUSTIFY A MODIFICATION OR REVERSAL OF THE PRECEDENTS ESTABLISHING AND FOLLOWING THE POLICY OF VIEWING CONCURRENT FEDERAL CIVILIAN EMPLOYMENT AND ACTIVE MILITARY SERVICE AS INCOMPATIBLE. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.