B-206554 L/M, MAR 25, 1982

B-206554 L/M, MAR 25, 1982

DIGEST: BECAUSE MILITARY RETIRED PAY GENERALLY IS BASED ON A CONTINUING MILITARY STATUS, RETIRED MEMBER MAY BE SUBJECT TO DISCONTINUANCE OF RETIRED PAY IF HE SERVES IN THE ARMED FORCES OF SOUTH AFRICA, SUCH SERVICE BEING INCOMPATIBLE WITH STATUS AS MEMBER OF THE ARMED FORCES OF UNITED STATES. RECEIPT OF EMOLUMENTS FOR SERVICE IN THE ARMED FORCES OF ANOTHER COUNTRY ALSO VIOLATES ARTICLE I, SECTION 9, CLAUSE 8, OF THE UNITED STATES CONSTITUTION. EXCEPTION EXISTS WHERE RETIREMENT PAY IS NOT BASED ON CONTINUING MILITARY STATUS.

CHARLES MCC. MATHIAS, JR., UNITED STATES SENATE:

THIS IS IN RESPONSE TO YOUR FEBRUARY 17, 1982 REQUEST FOR OUR VIEWS ON WHETHER ONE OF YOUR CONSTITUENTS MAY CONTINUE TO RECEIVE HIS UNITED STATES ARMY RETIRED PAY IF HE SERVES IN THE ARMED FORCES OF SOUTH AFRICA. SINCE WE DO NOT KNOW WHETHER YOUR CONSTITUENT IS A RETIRED OFFICER OR ENLISTED MEMBER, REGULAR OR RESERVE, OR UNDER WHAT PROVISION OF LAW HE RETIRED, WE ARE UNABLE TO PROVIDE A DEFINITE ANSWER AT THIS TIME. WE HOPE, HOWEVER, THAT THE FOLLOWING INFORMATION WILL BE HELPFUL.

WE RECENTLY HAD OCCASION TO CONSIDER THE ISSUE PRESENTED BY YOUR REQUEST IN OUR DECISION MATTER OF SNYDER, 58 COMP.GEN. 566 (1979). THAT CASE CONCERNED THE EFFECT ON THE RETIRED PAY OF A RETIRED REGULAR ARMY OFFICER IF HE WERE REQUIRED TO SERVE IN THE ISRAEL DEFENSE FORCES FOR 3 OR 4 WEEKS EACH YEAR AS A RESULT OF HIS HAVING ACQUIRED ISRAELI CITIZENSHIP. WE HELD THAT BECAUSE THE OFFICER WOULD BE SUBJECT TO THE ORDERS AND REQUIREMENTS OF THE FOREIGN ARMED FORCE, SUCH SERVICE WOULD BE INCOMPATIBLE WITH HIS STATUS AS AN OFFICER OF THE UNITED STATES WHO IS SUBJECT TO THE LAWS, REGULATIONS, AND ORDERS GOVERNING MEMBERS OF THE UNITED STATES ARMY, INCLUDING THE UNIFORM CODE OF MILITARY JUSTICE, RECALL TO ACTIVE DUTY REQUIREMENTS, AND HIS OATH OF OFFICE. WE SAID FURTHER THAT SUCH SERVICE WOULD VIOLATE THE CONSTITUTIONAL PROVISION THAT PROHIBITS ANY PERSON HOLDING AN OFFICE OF PROFIT OR TRUST UNDER THE UNITED STATES GOVERNMENT FROM ACCEPTING ANY EMOLUMENT, OFFICE, OR TITLE FROM A FOREIGN STATE WITHOUT CONGRESSIONAL CONSENT. U. S. CONST., ART. I, SEC. 9, CLAUSE 8. WE HELD THAT IN THOSE CIRCUMSTANCES, SHOULD THE RETIRED OFFICER SERVE IN THE FOREIGN ARMED FORCE WITHOUT ENACTMENT OF AUTHORIZING LEGISLATION, WE COULD NOT APPROVE CONTINUED RETIRED PAY PAYMENTS TO HIM.

THE SNYDER CASE CONCERNED ONLY A RETIRED REGULAR OFFICER, AND WE HAVE NOT HAD OCCASION TO CONSIDER SPECIFICALLY WHETHER SERVICE IN A FOREIGN ARMED FORCE WOULD BE INHERENTLY INCOMPATIBLE WITH THE STATUS OF A RETIRED ENLISTED MEMBER OR A RETIRED RESERVE. THE STATUS OF RESERVES AND ENLISTED MEMBERS IS, HOWEVER, IN MANY WAYS SIMILAR TO THAT OF REGULAR OFFICERS. TO THE CONSTITUTIONAL PROHIBITION, WE HAVE HELD THAT IT APPLIES ALSO TO CERTAIN RETIRED ENLISTED MEMBERS AND RESERVES. SEE 44 COMP.GEN. 130 (1964) AND 41 COMP.GEN. 715, 719 (1962).

THE VIEWS EXPRESSED HERE ARE BASED ON THE GENERAL RULE THAT A MEMBER'S RETIRED PAY IS RECEIVED AS A RESULT OF HIS CONTINUING MILITARY STATUS. CERTAIN CASES, HOWEVER, RETIRED PAY IS NOT BASED ON A CONTINUING MILITARY STATUS AND WOULD NOT, THEREFORE, BE AFFECTED IF THAT STATUS WERE LOST. SUCH CASES, AN INDIVIDUAL COULD CONTINUE TO RECEIVE INCOMPATIBLE WITH A CONTINUING MILITARY STATUS. SEE RETIRED PAY EVEN IF HE WERE TO ENGAGE IN ACTIVITIES THAT WOULD BE 37 COMP.GEN. 207 (1957) CONCERNING CERTAIN DISABILITY RETIREMENTS, AND 48 COMP.GEN. 699 (1969) CONCERNING CERTAIN NON -REGULAR RETIREES RECEIVING RETIRED PAY UNDER 10 U.S.C. SEC. 1331.

IN CONCLUSION, UNLESS YOUR CONSTITUENT'S CASE FALLS WITHIN ONE OF THE EXCEPTIONS NOTED ABOVE, HE MAY BE SUBJECT TO LOSS OF HIS MILITARY RETIRED PAY IF HE SERVES IN THE ARMED FORCES OF SOUTH AFRICA IN THE ABSENCE OF SPECIFIC AUTHORIZING LEGISLATION.

THE MATERIALS YOU SENT US ARE BEING RETURNED AS YOU REQUESTED, ALONG WITH COPIES OF THE DECISIONS REFERRED TO ABOVE.