B-150096, AUGUST 5, 1963, 43 COMP. GEN. 119

B-150096, AUGUST 5, 1963, 43 COMP. GEN. 119

DETAILS - MILITARY PERSONNEL - FOREIGN ASSISTANCE PROGRAMS - LEAVE SINCE COMMISSIONED OFFICER PERSONNEL OF THE COAST GUARD WHO ARE ASSIGNED OR DETAILED TO DUTY WITH A FOREIGN GOVERNMENT OUTSIDE THE UNITED STATES UNDER AUTHORITY OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2151- 2406, CONTINUE THEIR STATUS IN THE ACTIVE SERVICE OF THE ARMED FORCES DURING THE OVERSEAS ASSIGNMENT AND ARE NOT REGARDED AS CIVILIAN OFFICERS OR EMPLOYEES WITHIN THE PURVIEW OF THE ANNUAL AND SICK LEAVE ACT OF 1951, THE MEMBERS ARE ENTITLED TO THE LEAVE BENEFITS AUTHORIZED INCIDENT TO THEIR MEMBERSHIP IN THE ARMED FORCES UNDER 10 U.S.C. 701 (A).

TO THE SECRETARY OF THE TREASURY, AUGUST 5, 1963:

THE ASSISTANT SECRETARY OF THE TREASURY HAS SUBMITTED FOR AN ADVANCE DECISION BY LETTER OF MAY 27, 1963, THE QUESTION WHETHER COMMISSIONED OFFICER PERSONNEL OF THE UNITED STATES COAST GUARD WHO HAVE BEEN OR MAY BE ASSIGNED OR DETAILED UNDER AUTHORITY OF THE FOREIGN ASSISTANCE ACT OF 1961 (PUBLIC LAW 87-195, SEPTEMBER 4, 1961, 75 STAT. 424-463, 22 U.S.C. 2151- 2406) TO ASSIST THE INDONESIAN GOVERNMENT IN ESTABLISHING NAVIGATIONAL AIDS AND MARITIME COMMUNICATION IN THAT COUNTRY ARE ENTITLED TO LEAVE AS MEMBERS OF THE ARMED FORCES UNDER THE PROVISIONS OF 10 U.S.C. 701 (A), OR AS EMPLOYEES UNDER THE PROVISIONS OF 5 U.S.C. 2062.

IN DECISION OF DECEMBER 7, 1962, B-150096, 42 COMP. GEN. 296, WE HELD THAT THE ASSIGNMENT OF COMMISSIONED OFFICER PERSONNEL OF THE UNITED STATES COAST GUARD FOR THE PURPOSE OF PERFORMING FUNCTIONS OUTSIDE THE UNITED STATES UNDER AUTHORITY OF SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961, 75 STAT. 450, 22 U.S.C. 2385 (D) (1) (SUPP. III), APPEARS PERMISSIBLE, SINCE THE PHRASE "OFFICERS OR EMPLOYEES" AS USED THEREIN INCLUDES "MEMBERS OF THE ARMED FORCES OF THE UNITED STATES GOVERNMENT"--- SECTION 644 (J), 75 STAT. 462, 22 U.S.C. 2403 (J/--- AND THE TERM "ARMED FORCES" OF THE UNITED STATES MEANS THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD--- SECTION 644 (B), 75 STAT. 461, 22 U.S.C. 2403 (B).

SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961 PROVIDES AS FOLLOWS:

(D) FOR THE PURPOSE OF PERFORMING FUNCTIONS UNDER THIS ACT OUTSIDE THE UNITED STATES THE PRESIDENT MAY---

(1) EMPLOY OR ASSIGN PERSONS, OR AUTHORIZE THE EMPLOYMENT OR ASSIGNMENT OF OFFICERS OR EMPLOYEES BY AGENCIES OF THE UNITED STATES GOVERNMENT, WHO SHALL RECEIVE COMPENSATION AT ANY OF THE RATES PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED (22 U.S.C. 801 ET SEQ.), TOGETHER WITH ALLOWANCES AND BENEFITS THEREUNDER; AND PERSONS SO EMPLOYED OR ASSIGNED SHALL BE ENTITLED, EXCEPT TO THE EXTENT THAT THE PRESIDENT MAY SPECIFY OTHERWISE IN CASES IN WHICH THE PERIOD OF EMPLOYMENT OR ASSIGNMENT EXCEEDS THIRTY MONTHS, TO THE SAME BENEFITS AS ARE PROVIDED BY SECTION 528 OF THAT ACT FOR PERSONS APPOINTED TO THE FOREIGN SERVICE RESERVE, AND THE PROVISIONS OF SECTION 1005 OF THAT ACT SHALL APPLY IN THE CASE OF SUCH PERSONS, EXCEPT THAT POLICYMAKING OFFICIALS SHALL NOT BE SUBJECT TO THAT PART OF SECTION 1005 OF THAT ACT WHICH PROHIBITS POLITICAL TESTS; * * *

MILITARY PERSONNEL OF THE ARMED FORCES OF THE UNITED STATES GOVERNMENT WHO ARE ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER AUTHORITY OF THE ABOVE-QUOTED STATUTORY PROVISIONS ARE ENTITLED TO RECEIVE COMPENSATION AT ANY OF THE RATES PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, "TOGETHER WITH ALLOWANCES AND BENEFITS THEREUNDER.' IN VIEW OF THE PROVISIONS OF 5 U.S.C. 70 (BARRING EXTRA ALLOWANCES) THE COMPENSATION, ALLOWANCES AND BENEFITS AUTHORIZED TO BE PAID TO SUCH MILITARY PERSONNEL BY SECTION 625 (D) (1) OF THE 1961 ACT MAY NOT BE CONSIDERED AS AUTHORIZED IN ADDITION TO THEIR MILITARY PAY AND ALLOWANCES.

HENCE WE CONCLUDED IN THE DECISION OF DECEMBER 7, 1962, THAT THE ONLY ITEMS OF COMPENSATION, ALLOWANCES AND BENEFITS WHICH ACCRUE TO MEMBERS OF THE ARMED FORCES OF THE UNITED STATES GOVERNMENT ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER AUTHORITY OF SECTION 625 (D) (1/---

* * * ARE THE COMPENSATION, ALLOWANCES AND BENEFITS PRESCRIBED FOR FOREIGN SERVICE RESERVE AND STAFF PERSONNEL IN THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, AND THAT THE RIGHT TO RECEIVE MILITARY PAY AND ALLOWANCES (TRAVEL, TRANSPORTATION, SUBSISTENCE, QUARTERS, ETC., AND OTHER PRIVILEGES AND BENEFITS INCIDENT TO SUCH MILITARY STATUS), ARE SUSPENDED FOR THE PERIOD OF SUCH DETAIL OR ASSIGNMENT. * * * IT WAS ALSO STATED IN THE DECISION OF DECEMBER 7, 1962, THAT---

ALTHOUGH THE MEMBER DOES NOT RECEIVE "BASIC PAY" AS SUCH TERM IS USED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 * * * WHILE ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER SECTION 625 (D) (1) OF THE 1961 ACT, HE DOES REMAIN IN THE ACTIVE SERVICE AND EXCEPT FOR THE SPECIFIC PROVISIONS OF SECTION 625 (D) (1) WOULD OTHERWISE BE ENTITLED TO THE COMPENSATION PRESCRIBED THEREFOR. * * * THAT STATEMENT WAS MADE IN RESPONSE TO QUESTION 4 IN THE DECISION OF DECEMBER 7, 1962, AS TO WHETHER AN OFFICER WHO BECOMES PHYSICALLY DISABLED WHILE ASSIGNED TO THE AID PROGRAM WOULD BE ENTITLED TO (MILITARY) DISABILITY RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 61, TITLE 10, UNITED STATES CODE. IN REACHING AN AFFIRMATIVE REPLY TO THAT QUESTION IT WAS POINTED OUT THAT THERE IS NOTHING IN THE FOREIGN ASSISTANCE ACT OF 1961 OR ITS LEGISLATIVE HISTORY TO SUGGEST THAT CONGRESS INTENDED TO DENY RETIREMENT PRIVILEGES UNDER CHAPTER 61, TITLE 10, U.S.C. TO MEMBERS OF THE ARMED FORCES WHILE ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER THAT ACT.

IN VIEW OF THE LANGUAGE APPEARING IN THE DECISION OF DECEMBER 7, 1962, THE SPECIFIC QUESTION NOW RAISED IN THE LETTER OF MAY 27, 1963, RELATES TO THE ANNUAL AND SICK LEAVE STATUS OF COMMISSIONED OFFICER PERSONNEL OF THE UNITED STATES COAST GUARD WHILE ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER AUTHORITY OF SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961.

THE FOREIGN SERVICE ACT OF 1946, CH. 957, 60 STAT. 999-1040, 22 U.S.C. 801, ET SEQ. (1946 ED.), ENACTED AUGUST 13, 1946, TO IMPROVE, STRENGTHEN AND EXPAND THE FOREIGN SERVICE OF THE UNITED STATES, ESTABLISHED IN SECTION 401 (60 STAT. 1002, 22 U.S.C. 861 (1946 ED.) ( THE SEVERAL CATEGORIES OF PERSONNEL, INCLUDING FOREIGN SERVICE RESERVE OFFICERS AND FOREIGN SERVICE STAFF OFFICERS AND EMPLOYEES, COMPRISING THE FOREIGN SERVICE OF THE UNITED STATES. IN TITLE IX OF THE ACT (60 STAT. 1025-1030, 22 U.S.C. 1131-1158) CERTAIN SPECIFIC ALLOWANCES AND BENEFITS WERE PRESCRIBED FOR OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE, INCLUDING THOSE IN THE FOREIGN SERVICE RESERVE AND FOREIGN SERVICE STAFF. SECTION 931 OF THE ACT AUTHORIZED THE SECRETARY OF STATE, IN HIS DISCRETION, TO GRANT ANNUAL LEAVE UNDER THE CONDITIONS AND TO THE EXTENT THEREIN PRESCRIBED, AND SECTION 932 RELATED TO SICK LEAVE (60 STAT. 1028, 22 U.S.C. 1146 AND 1147, RESPECTIVELY (1946 ED.)

THE ANNUAL AND SICK LEAVE PRIVILEGES OF PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES, INCLUDING MEMBERS OF THE FOREIGN SERVICE RESERVE AND FOREIGN SERVICE STAFF, WERE GOVERNED BY THE PROVISIONS OF SECTIONS 931 AND 932 OF THE FOREIGN SERVICE ACT OF 1946 UNTIL THOSE TWO SECTIONS WERE REPEALED EFFECTIVE JANUARY 6, 1952, BY SECTION 207 (A) (6) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, CH. 631, APPROVED OCTOBER 30, 1951, 65 STAT. 682. SECTION 202 (A) OF THAT ACT, 65 STAT. 679, 5 U.S.C. 2061 (A), IN PERTINENT PART PROVIDED, WITH THE EXCEPTIONS LISTED IN SUBSECTION (B) THEREOF, 5 U.S.C. 2061 (B), NOT HERE MATERIAL, THAT "EXCEPT AS PROVIDED IN SUBSECTION (B), THIS TITLE (ACT) SHALL APPLY TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES * * *.'

IN THE ACT OF JULY 2, 1953, CH. 178, 67 STAT. 136, SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 WAS AMENDED BY ADDING SUBSECTION (C), 5 U.S.C. 2061 (C), PROVIDING IN PERTINENT PART:

(C) (1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AND OFFICERS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, INCLUDING OFFICERS OF CORPORATIONS WHOLLY OWNED OR CONTROLLED BY THE UNITED STATES:

(A) PERSONS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, OR BY THE PRESIDENT ALONE, WHOSE RATES OF BASIC COMPENSATION EXCEED THE MAXIMUM RATE PROVIDED IN THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED;

(B) PERSONS WHO RECEIVE COMPENSATION IN ACCORDANCE WITH SECTION 411 OF THE FOREIGN SERVICE ACT OF 1946; AND

(C) SUCH OTHER OFFICERS (EXCEPT POSTMASTERS, UNITED STATES ATTORNEYS, AND UNITED STATES MARSHALS) AS MAY BE DESIGNATED BY THE PRESIDENT.

THE PROVISIONS OF SECTION 202 (C) (1) (A), 5 U.S.C. 2061 (C) (1) (A), WERE RESTRICTED IN THEIR SCOPE AND OPERATION BY THE ACT APPROVED JULY 28, 1956, CH. 770, SECTION 17, 70 STAT. 708, 22 U.S. CODE 1151, ADDING SECTION 936 TO THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, READING AS FOLLOWS:

SEC. 936. THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. 2061 AND THE FOLLOWING), SHALL APPLY TO CAREER MINISTERS AND FOREIGN SERVICE OFFICERS, WHO ARE NOT SERVING AS CHIEFS OF MISSION OR WHO ARE NOT SERVING IN A POSITION IN THE DEPARTMENT WHICH REQUIRES APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND TO FOREIGN SERVICE RESERVE OFFICERS WHO ARE COMMISSIONED AS DIPLOMATIC OR CONSULAR OFFICERS, OR BOTH, IN ACCORDANCE WITH SECTION 524 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, NOTWITHSTANDING THE PROVISIONS OF SECTION 202 (C) (1) (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.

IT WILL BE NOTED THAT SECTION 936 WAS THE ONLY PROVISION PERTAINING TO ANNUAL AND SICK LEAVE BENEFITS CONTAINED IN TITLE IX OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, WHEN SECTION 625 (D) (1) WAS ENACTED INTO LAW ON SEPTEMBER 4, 1961, AS PART OF THE FOREIGN ASSISTANCE ACT OF 1961, AND THOSE PROVISIONS DO NOT APPEAR TO GRANT ANY LEAVE BENEFITS TO THE COAST GUARD PERSONNEL HERE INVOLVED. ALSO, SINCE THE ASSIGNMENT OF SUCH COMMISSIONED OFFICER PERSONNEL TO DUTY OUTSIDE THE UNITED STATES UNDER AUTHORITY OF SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961 "DOES NOT TERMINATE THE INDIVIDUAL'S MEMBERSHIP IN THE ARMED FORCES OF THE UNITED STATES" AND "THE MEMBER REMAINS IN THE "ACTIVE SERVICE" OF THE ARMED FORCES"--- SEE ANSWERS TO QUESTIONS 2 AND 3 IN DECISION OF DECEMBER 7, 1962--- IT SEEMS OBVIOUS THAT SUCH AN INDIVIDUAL IS NOT A "CIVILIAN" OFFICER OR EMPLOYEE OF THE UNITED STATES WITHIN THE PURVIEW OF SECTION 202 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. HENCE, SINCE THE SOLE EXCEPTION NOW CONTAINED IN TITLE IX OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED (SECTION 936), DOES NOT APPEAR APPLICABLE IN THE CASE OF COMMISSIONED OFFICER PERSONNEL OF THE UNITED STATES COAST GUARD PERFORMING DUTY OUTSIDE THE UNITED STATES UNDER AUTHORITY OF SECTION 625 (D) (1) OF THE 1961 LAW, SUCH COMMISSIONED OFFICER PERSONNEL WOULD BE LEFT WITHOUT ANY ANNUAL OR SICK LEAVE BENEFITS DURING THE PERIOD OF THEIR ASSIGNMENT OUTSIDE THE UNITED STATES UNLESS THEIR MILITARY LEAVE STATUS UNDER THE PROVISIONS OF 10 U.S.C. 701-704, AS NOW PRESCRIBED IN SECTION 3, PUBLIC LAW 87-649, SEPTEMBER 7, 1962, 76 STAT. 492, REMAINS UNDISTURBED. WE DO NOT BELIEVE THAT CONGRESS INTENDED THAT MEMBERS OF THE ARMED FORCES OF THE UNITED STATES ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER AUTHORITY OF SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961 SHOULD BE WITHOUT ANNUAL AND SICK LEAVE BENEFITS AND, THEREFORE, IT IS CONCLUDED THAT SUCH MEMBERS ARE ENTITLED TO THE LEAVE BENEFITS AUTHORIZED FOR THEM INCIDENT TO THEIR MEMBERSHIP IN THE ARMED FORCES. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.