B-150096, DECEMBER 7, 1962, 42 COMP. GEN. 296

B-150096: Dec 7, 1962

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IS PERMISSIBLE UNDER SECTION 625 (D) (1). TO POSITIONS UNDER THE FOREIGN ASSISTANCE ACT OF 1961 IS AUTHORIZED. THE REEMPLOYMENT OF RETIRED PERSONNEL AS EXPERTS OR CONSULTANTS UNDER THE FOREIGN ASSISTANCE ACT OF 1961 IS PERMISSIBLE. THE COMPENSATION OF SUCH RETIRED OFFICERS IS SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF 5 U.S.C. 59A. THE RIGHT OF COMMISSIONED PERSONNEL OF THE UNITED STATES COAST GUARD ASSIGNED TO PROGRAMS UNDER THE FOREIGN ASSISTANCE ACT TO THEIR PAY AND ALLOWANCES IS SUSPENDED DURING THE PERIOD OF THE ASSIGNMENT AND THEY MAY ONLY RECEIVE THE COMPENSATION. SUCH PERIOD IS CREDITABLE FOR SUBSEQUENT COMPUTATION OF MILITARY PAY WHEN THE OFFICER RESUMES A PAY STATUS UNDER THE CAREER COMPENSATION ACT OF 1949.

B-150096, DECEMBER 7, 1962, 42 COMP. GEN. 296

COAST GUARD - COMMISSIONED PERSONNEL - DETAILED TO FOREIGN ASSISTANCE PROGRAMS - AUTHORITY MILITARY PERSONNEL - RETIRED - REEMPLOYMENT - FOREIGN ASSISTANCE PROGRAMS COAST GUARD - COMMISSIONED PERSONNEL - DETAILED TO FOREIGN ASSISTANCE PROGRAMS - COMPENSATION. COAST GUARD - COMMISSIONED PERSONNEL - SERVICE CREDITS - CIVILIAN SERVICE. DETAILS - MILITARY PERSONNEL - FOREIGN ASSISTANCE PROGRAMS - DISABILITY DURING DETAIL. COAST GUARD - COMMISSIONED PERSONNEL - DETAILED TO FOREIGN ASSISTANCE PROGRAMS - RETIREMENT THE ASSIGNMENT OF COMMISSIONED OFFICER PERSONNEL OF THE UNITED STATES COAST GUARD TO AID THE INDONESIAN GOVERNMENT UNDER REIMBURSABLE AGREEMENTS WITH THE AGENCY FOR INTERNATIONAL DEVELOPMENT PURSUANT TO SECTION 632 (B) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2392 (B) (SUPP. III), IS PERMISSIBLE UNDER SECTION 625 (D) (1), 22 U.S.C. 2385 (D) (1) (SUPP. III), OF THE ACT, WHICH PROVIDES FOR THE ASSIGNMENT OF OFFICERS OR EMPLOYEES OF THE UNITED STATES TO PERFORM FUNCTIONS OUTSIDE THE UNITED STATES, THE PHRASE "OFFICERS AND EMPLOYEES" AS DEFINED IN SECTION 644 (J) INCLUDING MEMBERS OF THE ARMED FORCES AND THE TERM "ARMED FORCES" OF THE UNITED STATES IN SECTION 644 (B) MEANING THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD; THEREFORE, SECTION 633 (C) OF THE ACT, REMOVING THE DUAL OFFICE RESTRICTIONS OF 10 U.S.C. 3544 (B) AND 8544 (B), THE ASSIGNMENT OF COMMISSIONED OFFICERS OF THE COAST GUARD, AS WELL AS OTHER MEMBERS OF THE ARMED FORCES, TO POSITIONS UNDER THE FOREIGN ASSISTANCE ACT OF 1961 IS AUTHORIZED. THE REEMPLOYMENT OF RETIRED PERSONNEL AS EXPERTS OR CONSULTANTS UNDER THE FOREIGN ASSISTANCE ACT OF 1961 IS PERMISSIBLE, SECTION 626 (B) OF THE ACT, 22 U.S.C. 2386 (B) (SUPP. III), AUTHORIZING THE EXEMPTION OF RETIRED MILITARY OFFICERS OR CIVILIAN EMPLOYEES FROM ANY LAW LIMITING THEIR REEMPLOYMENT, OR GOVERNING THE SIMULTANEOUS RECEIPT OF COMPENSATION AND RETIRED PAY OR ANNUITIES, AND SECTION 626 (C), 22 U.S.C. 2386 (C) (SUPP. III), REMOVING RETIRED OFFICERS OF ANY OF THE SERVICES MENTIONED IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, FROM THE DUAL OFFICE RESTRICTIONS OF 5 U.S.C. 62, HOWEVER, THE COMPENSATION OF SUCH RETIRED OFFICERS IS SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF 5 U.S.C. 59A. MEMBERS OF THE ARMED FORCES ASSIGNED TO PERFORM FUNCTIONS OUTSIDE THE UNITED STATES UNDER SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2385 (D) (SUPP. III), WHICH AUTHORIZES COMPENSATION, ALLOWANCES, AND BENEFITS TO ASSIGNED PERSONNEL AT 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., MAY ONLY BE PAID IN ACCORDANCE WITH SECTION 625 (D) (1) OF THE 1961 ACT IN THE ABSENCE OF STATUTORY EXEMPTION OF THE EXTRA ALLOWANCE RESTRICTIONS OF 5 U.S.C. 70; THEREFORE, THE RIGHT OF COMMISSIONED PERSONNEL OF THE UNITED STATES COAST GUARD ASSIGNED TO PROGRAMS UNDER THE FOREIGN ASSISTANCE ACT TO THEIR PAY AND ALLOWANCES IS SUSPENDED DURING THE PERIOD OF THE ASSIGNMENT AND THEY MAY ONLY RECEIVE THE COMPENSATION, ALLOWANCES, AND BENEFITS PRESCRIBED FOR THE FOREIGN SERVICE RESERVE AND STAFF. ALTHOUGH A MEMBER OF THE ARMED FORCES WHEN ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE COMPENSATION, ALLOWANCES, AND BENEFITS PRESCRIBED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946, THE SUSPENSION OF HIS ACTIVE DUTY MILITARY PAY AND ALLOWANCES DURING THE PERIOD OF THE ASSIGNMENT DOES NOT TERMINATE HIS MEMBERSHIP IN THE ARMED FORCES OF THE UNITED STATES, AND SUCH PERIOD IS CREDITABLE FOR SUBSEQUENT COMPUTATION OF MILITARY PAY WHEN THE OFFICER RESUMES A PAY STATUS UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, AND, THEREFORE, THE PERIOD OF ASSIGNMENT OF COAST GUARD OFFICERS SERVING UNDER FOREIGN ASSISTANCE ACT PROGRAMS IS CREDITABLE FOR QUALIFICATION FOR RETIREMENT UNDER 14 U.S.C. 231 AND 232. WHEN A MEMBER OF THE ARMED FORCES WHO WHILE ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2385 (D) (SUPP. III), BECOMES PHYSICALLY DISABLED, HE IS ENTITLED TO DISABILITY RETIRED PAY UNDER 10 U.S.C., CHAPTER 61, NOTWITHSTANDING THAT DURING THE PERIOD OF THE ASSIGNMENT HE IS NOT IN RECEIPT OF "BASIC PAY" AS THE TERM IS USED IN THE CHAPTER, THE MEMBER'S ACTIVE SERVICE STATUS REMAINING UNCHANGED, AND EXCEPT FOR SECTION 625 (D) (1) OF THE 1961 ACT PRESCRIBING THE COMPENSATION, ALLOWANCES, AND BENEFITS PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946, DURING THE PERIOD OF THE ASSIGNMENT, HE WOULD HAVE BEEN ENTITLED TO MILITARY PAY AND ALLOWANCES, AND THE LEGISLATIVE HISTORY OF THE FOREIGN ASSISTANCE ACT OF 1961 EVIDENCING NO CONTRARY INTENT, THERE IS NO REQUIREMENT TO DENY DISABILITY RETIREMENT PRIVILEGES TO COMMISSIONED OFFICER PERSONNEL OF THE COAST GUARD BECAUSE THEIR COMPENSATION WHILE ASSIGNED TO DUTY UNDER THE ACT IS NOT DENOMINATED "BASIC .' A COMMISSIONED OFFICER OF THE UNITED STATES COAST GUARD WHO DURING A PERIOD OF ASSIGNMENT OUTSIDE THE UNITED STATES UNDER SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961, 22 U.S.C. 2385 (D) (SUPP. III), WHICH REQUIRES PAYMENT OF COMPENSATION, ALLOWANCES, AND BENEFITS AT RATES PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, COMPLETED 20 YEARS OF ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH WAS ACTIVE COMMISSIONED SERVICE, PRIOR TO THE ASSIGNMENT IS ELIGIBLE FOR RETIREMENT UNDER 14 U.S.C. 232 WHILE ASSIGNED TO THE PROGRAM, THE SUSPENSION OF THE MILITARY PAY AND ALLOWANCES FOR THE PERIOD OF ASSIGNMENT DURING WHICH THE OFFICER WAS PAID IN ACCORDANCE WITH SECTION 625 (D) (1) OF THE 1961 ACT NOT TERMINATING HIS "ACTIVE DUTY" STATUS AS A MEMBER OF THE ARMED FORCES.

TO THE SECRETARY OF THE TREASURY, DECEMBER 7, 1962:

REFERENCE IS MADE TO LETTER OF OCTOBER 9, 1962, FROM THE ACTING ASSISTANT SECRETARY OF THE TREASURY, REQUESTING DECISION ON SEVERAL QUESTIONS PERTAINING TO THE ACTIVE DUTY AND RETIRED PAY STATUS OF 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, 75 STAT. 424-463, 22 U.S.C. 2151-2406 (SUPP. III), TO ASSIST THE INDONESIAN GOVERNMENT IN ESTABLISHING NAVIGATIONAL AIDS AND MARITIME COMMUNICATIONS IN THAT COUNTRY.

THE LETTER OF OCTOBER 9, 1962, AND THE SEVERAL ENCLOSURES RECEIVED THEREWITH, DISCLOSE THAT ON JULY 9, 1962, YOU CONSENTED TO THE REQUEST OF THE ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT, DEPARTMENT OF STATE, SUBMITTED UNDER AUTHORITY OF SECTION 632 (B) OF THE 1961 ACT, 75 STAT. 453, 22 U.S.C. 2392 (B) (SUPP. III),"TO ENTER INTO AN UNDERSTANDING WITH THE U.S. COAST GUARD TO FURNISH THE REQUIRED ASSISTANCE ON A REIMBURSABLE FINANCING BASIS.' IT FURTHER APPEARS FROM THE ENCLOSURES (UNDER THE HEADING "ADMINISTRATIVE ARRANGEMENTS" IN ANNEX A) THAT THE COAST GUARD "WILL DETERMINE THE GRADES OF POSITIONS FOR ALL PERSONNEL ON ITS ROLLS AND WILL ADMINISTER ITS PERSONNEL, INCLUDING ANNUAL AND SICK LEAVE, IN ACCORDANCE WITH USCG PROCEDURES" AND THAT---

THE PROVISIONS OF SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961, AS AMENDED, ARE HEREBY MADE APPLICABLE TO PERSONNEL OF USCG SERVING OVERSEAS UNDER AID SERVICE AGREEMENTS OR ON DETAIL. ACCORDINGLY, PAY, ALLOWANCES, DIFFERENTIALS, TRAVEL, LEAVE, HOUSING, AND OTHER BENEFITS AND ARRANGEMENTS UNDER THE FOREIGN SERVICE ACT AND REGULATIONS ARE APPLICABLE EXCEPT AS MODIFIED OR LIMITED BY AID ADMINISTRATIVE REGULATIONS OR BY LAW OR REGULATION AFFECTING MILITARY PERSONNEL.

IT IS NOTED THAT THE ITALICIZED PHRASE "OR BY LAW OR REGULATION AFFECTING MILITARY PERSONNEL" HAS BEEN LINED OUT. IN ANY EVENT, IT IS FURTHER PROVIDED THAT SUCH PROVISIONS "WILL APPLY FROM DATE OF DETACHMENT FROM LAST PERMANENT DUTY STATION AND WILL TERMINATE UPON REPORTING TO NEXT PERMANENT DUTY STATION AFTER COMPLETION OF TOUR OF DUTY IN CONNECTION WITH THIS PROJECT.'

THE ADMINISTRATIVE ARRANGEMENTS ALSO PROVIDE THAT THE COAST GUARD WILL AUTHORIZE AND PAY TO PERSONNEL ON ITS PAYROLL "BASIC SALARIES, FOREIGN POST DIFFERENTIALS, AND SEPARATION AND TRANSFER ALLOWANCES, WHEN APPLICABLE" AND THAT AID WILL PAY DIRECTLY TO COAST GUARD PERSONNEL "SUCH OTHER ALLOWANCES AND REIMBURSEMENTS AS MAY BE MOST READILY PAID IN LOCAL CURRENCY (E.G., ALLOWANCE FOR LOCAL TRAVEL, POST ALLOWANCE, QUARTERS ALLOWANCE, EDUCATION ALLOWANCE, ETC.).' UNDER THE HEADING ,BUDGET AND FINANCE" IT IS PROVIDED THAT THE COAST GUARD AND AID "WILL JOINTLY DEVELOP ANNUALLY A BUDGET" AND ON THE BASIS OF SUCH BUDGETS,"AID WILL AUTHORIZE USCG TO INCUR EXPENSES AND USCG WILL BILL AID QUARTERLY FOR REIMBURSEMENT OF SUCH EXPENSES.'

THE REQUEST OF THE ADMINISTRATOR, AGENCY FOR INTERNATIONAL DEVELOPMENT, WAS PRESENTED TO YOU UNDER AUTHORITY OF SUBSECTION (B) OF SECTION 632 OF THE 1961 ACT WHICH PROVIDES THAT ANY OFFICER OF THE UNITED STATES GOVERNMENT CARRYING OUT FUNCTIONS UNDER THE ACT "MAY UTILIZE THE SERVICES (INCLUDING DEFENSE SERVICES) AND FACILITIES OF * * * ANY AGENCY OF THE UNITED STATES GOVERNMENT AS THE PRESIDENT SHALL DIRECT, OR WITH THE CONSENT OF THE HEAD OF SUCH AGENCY * * *.'

SECTION 632, 22 U.S.C. 2392 (SUPP. III), IN GENERAL, GOVERNS THE ALLOCATION OF FUNDS MADE AVAILABLE FOR CARRYING OUT THE PURPOSES OF THE ACT AND PROVIDES FOR REIMBURSEMENT AMONG AGENCIES. IN THAT CONNECTION, SUBSECTION (D) OF SECTION 632, 75 STAT. 454, 22 U.S.C. 2392 (D) (SUPP. III), INSOFAR AS HEREIN APPLICABLE, DIRECTS THAT "REIMBURSEMENT SHALL BE MADE TO ANY UNITED STATES GOVERNMENT AGENCY, FROM FUNDS AVAILABLE FOR USE UNDER PART II, FOR ANY ASSISTANCE FURNISHED UNDER PART II FROM, BY, OR THROUGH SUCH AGENCY.' SUBSECTION (D) FURTHER PROVIDES THAT "SUCH REIMBURSEMENT SHALL BE IN AN AMOUNT EQUAL TO THE VALUE (AS DEFINED IN SECTION 644 (M) ( OF THE DEFENSE ARTICLES OR OF THE DEFENSE SERVICES (OTHER THAN SALARIES OF MEMBERS OF THE ARMED FORCES OF THE UNITED STATES), OR OTHER ASSISTANCE FURNISHED, PLUS EXPENSES ARISING FROM OR INCIDENT TO OPERATIONS UNDER PART II.'

UNDER THE "ADMINISTRATIVE ARRANGEMENTS" IN ANNEX A, PREVIOUSLY QUOTED, THE PROVISIONS OF SECTION 625 (D) (1) OF THE 1961 ACT, 22 U.S.C. 2385 (D) (1) (SUPP. III), ARE MADE APPLICABLE TO PERSONNEL OF THE UNITED STATES COAST GUARD SERVING OVERSEAS UNDER AID SERVICES AGREEMENTS OR ON DETAIL. SECTION 625 OF THE ACT, 22 U.S.C. 2385 (SUPP. III), GOVERNS THE EMPLOYMENT OF PERSONNEL AND SUBSECTION (D), 75 STAT. 450, 22 U.S.C. 2385 (D) (SUPP. III), IS 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; AND

(2) UTILIZE SUCH AUTHORITY, INCLUDING AUTHORITY TO APPOINT AND ASSIGN PERSONNEL FOR THE DURATION OF OPERATIONS UNDER THIS ACT, CONTAINED IN THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, AS THE PRESIDENT DEEMS NECESSARY TO CARRY OUT FUNCTIONS UNDER THIS ACT; AND SUCH PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, AS THE PRESIDENT DEEMS APPROPRIATE SHALL APPLY TO PERSONNEL APPOINTED OR ASSIGNED UNDER THIS PARAGRAPH, INCLUDING IN ALL CASES THE PROVISIONS OF SECTION 528 OF THAT ACT: PROVIDED, HOWEVER, THAT THE PRESIDENT MAY BY REGULATION MAKE EXCEPTIONS TO THE APPLICATION OF SECTION 528 IN CASES IN WHICH THE PERIOD OF THE APPOINTMENT OR ASSIGNMENT EXCEEDS THIRTY MONTHS: PROVIDED, FURTHER, THAT FOREIGN SERVICE RESERVE OFFICERS APPOINTED OR ASSIGNED PURSUANT TO THIS PARAGRAPH SHALL RECEIVE WITHIN-CLASS SALARY INCREASES IN ACCORDANCE WITH SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE.

THE PHRASE "OFFICERS OR EMPLOYEES" AS USED IN SECTION 625 (D) (1) INCLUDES "MEMBERS OF THE ARMED FORCES OF THE UNITED STATES GOVERNMENT" --- SEE SECTION 644 (J), 75 STAT. 462, 22 U.S.C. 2304 (J) (SUPP. III/--- AND THE TERM "ARMED FORCES" OF THE UNITED STATES MEANS THE ARMY, NAVY, AIR FORCE, MARINE CORPS, AND COAST GUARD. SEE SECTION 644 (B), 75 STAT. 461, 22 U.S.C. 2403 (B) (SUPP. III). THEREFORE, THE ASSIGNMENT OF COMMISSIONED OFFICER PERSONNEL OF THE UNITED STATES COAST GUARD FOR THE PURPOSE OF PERFORMING FUNCTIONS OUTSIDE THE UNITED STATES UNDER FOREIGN ASSISTANCE ACT OF 1961 APPEARS PERMISSIBLE UNDER SECTION 625 (D) (1), WHICH SECTION EXPRESSLY PROVIDES (1) THAT SUCH PERSONNEL "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, TOGETHER WITH ALLOWANCES AND BENEFITS THEREUNDER, AND (2) BE ENTITLED TO THE REINSTATEMENT BENEFITS PRESCRIBED IN SECTION 528 OF THAT ACT, 22 U.S.C. 928, UNLESS OTHERWISE SPECIFIED BY THE PRESIDENT IN CASES WHERE THE ASSIGNMENT EXCEEDS THIRTY MONTHS.

IN VIEW OF THE LANGUAGE OF SECTION 625 (D) (1), QUOTED ABOVE, YOU HAVE SUBMITTED THE FOLLOWING QUESTIONS:

1. IS THE COMMISSIONED OFFICER ASSIGNED TO THIS PROGRAM ENTITLED TO RECEIVE COMPENSATION AT A RATE PROVIDED FOR 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 AS SET FORTH IN SECTION 625 (D) (1) OF PUBLIC LAW 87-195?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD THE PERIOD BE CREDITABLE FOR SUBSEQUENT COMPUTATION OF MILITARY PAY WHEN THE OFFICER RESUMES PAY UNDER THE CAREER COMPENSATION ACT OF 1949, AS AMENDED?

3. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD THE PERIOD BE CREDITABLE FOR QUALIFICATION FOR RETIREMENT UNDER THE PROVISIONS OF 14 U.S.C. 231 AND 232?

4. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, AND WHILE ASSIGNED TO THE AID PROGRAM THE OFFICER BECOMES PHYSICALLY DISABLED, WOULD HE BE ENTITLED TO DISABILITY RETIRED PAY UNDER THE PROVISIONS OF CHAPTER 61 OF TITLE 10, U.S. CODE?

5. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, AND THE OFFICER HAD COMPLETED 20 YEARS ACTIVE SERVICE, AT LEAST 10 YEARS OF WHICH HAVING BEEN ACTIVE COMMISSIONED SERVICE, PRIOR TO HIS ASSIGNMENT TO THE AID PROGRAM, WOULD HE BE ELIGIBLE FOR RETIREMENT PURSUANT TO 14 U.S.C. 232 WHILE ASSIGNED TO THE PROGRAM?

UNDER SECTION 503 OF THE FOREIGN ASSISTANCE ACT OF 1961, 75 STAT. 435, 22 U.S.C. 2311 (SUPP. III), THE PRESIDENT IS AUTHORIZED TO FURNISH MILITARY ASSISTANCE (PART II OF THE ACT) ON SUCH TERMS AND CONDITIONS AS HE MAY DETERMINE TO ANY FRIENDLY COUNTRY OR INTERNATIONAL ORGANIZATION BY---

(D) ASSIGNING OR DETAILING MEMBERS OF THE ARMED FORCES OF THE UNITED STATES AND OTHER PERSONNEL OF THE DEPARTMENT OF DEFENSE TO PERFORM DUTIES OF A NONCOMBATANT NATURE, INCLUDING THOSE RELATED TO TRAINING OR ADVICE.

THIS SPECIFIC STATUTORY AUTHORIZATION, WHEN VIEWED TOGETHER WITH THE PROVISIONS OF SECTION 633 (C), 75 STAT. 455, 22 U.S.C. 2393 (C) (SUPP. III), REMOVING THE DUAL OFFICE RESTRICTIONS OF 10 U.S.C. 3544 (B) AND 8544 (B) AS TO COMMISSIONED OFFICERS OF THE REGULAR ARMY AND REGULAR AIR FORCE, RESPECTIVELY, AND THE DEFINITION OF THE PHRASE "OFFICER OR EMPLOYEE" IN SECTION 644 (J), AS INCLUDING MEMBERS OF THE ARMED FORCES OF THE UNITED STATES GOVERNMENT, DISCLOSES A CONGRESSIONAL INTENT TO AUTHORIZE THE DETAIL OR ASSIGNMENT OF MEMBERS OF THE ARMED FORCES TO CERTAIN POSITIONS UNDER THE FOREIGN ASSISTANCE ACT OF 1961.

IN THE CASE OF RETIRED PERSONNEL EMPLOYED AS EXPERTS OR CONSULTANTS, SPECIFIC PROVISION IS FOUND IN SECTION 626 (B), 75 STAT. 451, 22 U.S.C. 2386 (B) (SUPP. III), TO EXEMPT SUCH PERSONS FROM ANY LAW LIMITING THE REEMPLOYMENT OF RETIRED OFFICERS OR EMPLOYEES OR GOVERNING THE SIMULTANEOUS RECEIPT OF COMPENSATION AND RETIRED PAY OR ANNUITIES. SECTION 626 (C), 22 U.S.C. 2386 (C) (SUPP. III), IT IS PROVIDED THAT, NOTWITHSTANDING THE PROVISIONS OF 5 U.S.C. 62 (DUAL OFFICE RESTRICTIONS), ANY RETIRED OFFICER OF ANY OF THE SERVICES MENTIONED IN THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 231 NOTE, MAY HOLD ANY OFFICE OR APPOINTMENT UNDER THE FOREIGN ASSISTANCE ACT OF 1961, BUT THE COMPENSATION OF ANY SUCH RETIRED OFFICER SHALL BE SUBJECT TO THE DUAL COMPENSATION PROVISIONS OF 5 U.S.C. 59A (SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, AS AMENDED).

IN THE ABSENCE OF ANY STATUTORY EXEMPTION FROM THE RESTRICTIONS OF 5 U.S.C. 70 (EXTRA ALLOWANCES), THE COMPENSATION, ALLOWANCES, AND BENEFITS PRESCRIBED IN SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961 MAY NOT BE CONSIDERED AS AUTHORIZED IN THE CASE OF MEMBERS OF THE ARMED FORCES OF THE U.S. GOVERNMENT IN ADDITION TO THEIR MILITARY PAY AND ALLOWANCES. UNDER THE CLEAR MEANING OF THE LANGUAGE "SHALL RECEIVE COMPENSATION, ETC., " AS USED IN SECTION 625 (D) (1), SUCH COMPENSATION, ALLOWANCES AND BENEFITS CONSTITUTE THE SOLE AMOUNTS PAYABLE UNDER THE 1961 ACT TO MILITARY PERSONNEL DURING THE PERIOD OF ANY SUCH ASSIGNMENT. THIS CONNECTION, COMPARE THE PROVISIONS OF SECTIONS 627 AND 628 OF THE ACT, 75 STAT. 452, 22 U.S.C. 2387 AND 2388 (SUPP. III), RESPECTIVELY, WHICH AUTHORIZE THE DETAIL OR ASSIGNMENT OF ANY OFFICER OR EMPLOYEE (WHICH WOULD INCLUDE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES GOVERNMENT) TO FOREIGN GOVERNMENTS OR INTERNATIONAL ORGANIZATIONS. IN SUCH CASES SECTION 629 (A), 22 U.S.C. 2389 (A) (SUPP. III), EXPRESSLY PROVIDES THAT, WHILE SO ASSIGNED OR DETAILED, ANY OFFICER OR EMPLOYEE "SHALL BE CONSIDERED, FOR THE PURPOSE OF PRESERVING HIS ALLOWANCES, PRIVILEGES, RIGHTS, SENIORITY, OR OTHER BENEFITS AS SUCH, AN OFFICER OR EMPLOYEE OF THE UNITED STATES GOVERNMENT AND OF THE AGENCY OF THE UNITED STATES GOVERNMENT FROM WHICH DETAILED OR ASSIGNED, AND HE SHALL CONTINUE TO RECEIVE COMPENSATION, ALLOWANCES, AND BENEFITS FROM FUNDS APPROPRIATED TO THAT AGENCY OR MADE AVAILABLE TO THAT AGENCY" UNDER THE FOREIGN ASSISTANCE ACT OF 1961. SECTION 629 (B), 22 U.S.C. 2389 (B) (SUPP. III), IN PERTINENT PART PROVIDES THAT ANY OFFICER OR EMPLOYEE SO ASSIGNED OR DETAILED "IS AUTHORIZED TO RECEIVE UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, REPRESENTATION ALLOWANCES SIMILAR TO THOSE ALLOWED UNDER SECTION 901 OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED (22 U.S.C. 1131).' SECTION 629 (B) FURTHER PROVIDES THAT THE AUTHORIZATION OF SUCH ALLOWANCES AND OTHER BENEFITS AND THE PAYMENT THEREOF OUT OF ANY APPROPRIATIONS AVAILABLE THEREFOR "SHALL BE CONSIDERED AS MEETING ALL THE REQUIREMENTS OF SECTION 1765 OF THE REVISED STATUTES (5 U.S.C. 70).' HENCE, WE CONCLUDE 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) OF THE FOREIGN ASSISTANCE ACT OF 1961 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), IS SUSPENDED FOR THE PERIOD OF SUCH DETAIL OR ASSIGNMENT. QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE, SINCE THE SUSPENSION OF THE INDIVIDUAL'S ACTIVE DUTY PAY AND ALLOWANCE STATUS IN THE ARMED FORCES DURING THE ACTUAL PERIOD OF ASSIGNMENT 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.

AS STATED IN THE ANSWER TO QUESTION 2 ABOVE, AN INDIVIDUAL'S MEMBERSHIP IN THE ARMED FORCES OF THE UNITED STATES IS NOT TERMINATED BY ASSIGNMENT TO DUTY OUTSIDE THE UNITED STATES PURSUANT TO THE PROVISIONS OF SECTION 625 (D) (1) OF THE FOREIGN ASSISTANCE ACT OF 1961. THERE IS NOT EVIDENT ANY LEGISLATIVE INTENT TO SUSPEND THE "ACTIVE DUTY" STATUS OF A MEMBER OF THE ARMED FORCES WHILE SO ASSIGNED AND IT IS OUR VIEW THEREFORE THAT THE MEMBER REMAINS IN THE "ACTIVE SERVICE" OF THE ARMED FORCES. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

ALTHOUGH THE MEMBER DOES NOT RECEIVE "BASIC PAY" AS SUCH TERM IS USED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949 (NOW CHAPTER 61, TITLE 10, U.S. CODE), 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. ONE OF THE PURPOSES OF THE "BASIC PAY" REQUIREMENT CONTAINED IN TITLE IV OF THE CAREER COMPENSATION ACT OF 1949, FROM WHICH THE PROVISIONS OF CHAPTER 61 OF TITLE 10, U.S. CODE, WERE DERIVED, WAS TO INSURE A PROMPT AND CONTEMPORANEOUS ADMINISTRATIVE DETERMINATION OF THE MEMBER'S DISABILITY STATUS WHILE STILL IN THE ACTIVE SERVICE AND IN RECEIPT OF BASIC PAY. THERE IS NOTHING IN THE FOREIGN ASSISTANCE ACT OF 1961 OR ITS LEGISLATIVE HISTORY TO SUGGEST THAT THE CONGRESS INTENDED TO DENY DISABILITY RETIREMENT PRIVILEGES UNDER CHAPTER 61, TITLE 10, U.S. CODE, TO MEMBERS OF THE ARMED FORCES WHILE ASSIGNED TO DUTY OUTSIDE THE UNITED STATES UNDER THAT ACT AND SUCH A CONCLUSION WOULD NOT APPEAR JUSTIFIABLE SIMPLY BECAUSE THEIR COMPENSATION WHILE SO ASSIGNED IS NOT DENOMINATED "BASIC PAY.' QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

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