B-117504, NOVEMBER 18, 1953, 33 COMP. GEN. 229

B-117504, NOVEMBER 18, 1953, 33 COMP. GEN. 229

PAY - FLEET ADMIRALS ON ACTIVE LIST NOT ON ACTIVE DUTY - EMPLOYMENT BY CONTRACTOR FURNISHING NAVAL SUPPLIES OR WAR MATERIALS TO GOVERNMENT A FLEET ADMIRAL "ON THE ACTIVE LIST OF THE NAVY BUT NOT EMPLOYED ON ACTIVE DUTY," WHO ACCEPTS EMPLOYMENT AS A TECHNICAL ADVISER ON A PART TIME BASIS WITH A COMPANY FURNISHING NAVAL SUPPLIES OR WAR MATERIALS TO THE GOVERNMENT, MAY NOT, UNDER THE ACT OF JUNE 10, 1896, AS AMENDED--- SO LONG AS HE REMAINS ON THE ACTIVE LIST--- BE PAID ANY PAY AND ALLOWANCES BY THE GOVERNMENT, EVEN THOUGH SUCH OFFICER IS NOT ENGAGED IN SELLING, CONTRACTING FOR THE SALE, OR NEGOTIATING FOR THE SALE OF SUCH SUPPLIES OR MATERIALS TO THE GOVERNMENT.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, NOVEMBER 18, 1953:

REFERENCE IS MADE TO LETTER OF OCTOBER 23, 1953, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR REQUESTING DECISION WITH RESPECT TO THE APPLICATION OF THE ACT OF JUNE 10, 1896, AS AMENDED, 34 U.S.C. 883, IN THE CASE OF A FLEET ADMIRAL "ON THE ACTIVE LIST OF THE NAVY BUT NOT EMPLOYED ON ACTIVE DUTY" IN THE EVENT SUCH OFFICER ACCEPTS EMPLOYMENT AS A TECHNICAL ADVISER ON A PART TIME BASIS WITH A COMPANY FURNISHING NAVAL SUPPLIES OR WAR MATERIALS TO THE GOVERNMENT. IT IS STATED THAT THE OFFICER WOULD BE EMPLOYED IN A TECHNICAL CAPACITY ONLY, AND THAT HE WOULD NOT BE ENGAGED IN SELLING, CONTRACTING FOR THE SALE, OR NEGOTIATING FOR THE SALE OF NAVAL SUPPLIES OR WAR MATERIALS TO THE GOVERNMENT.

THE SUBMISSION INVITES ATTENTION TO THE PROVISIONS OF THE ACT OF MARCH 23, 1946, 60 STAT. 59, READING AS FOLLOWS:

THAT THE PRESIDENT IS HEREBY AUTHORIZED, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO APPOINT TO THE PERMANENT GRADE OF GENERAL OF THE ARMY ANY INDIVIDUAL WHO SHALL HAVE SERVED IN SUCH GRADE AFTER DECEMBER 14, 1944, AND BEFORE AUGUST 14, 1945, AND TO APPOINT TO THE PERMANENT GRADE OF FLEET ADMIRAL OF THE UNITED STATES NAVY ANY INDIVIDUAL WHO SHALL HAVE SERVED IN SUCH GRADE AFTER DECEMBER 14, 1944, AND BEFORE DECEMBER 14, 1945. THE OFFICERS APPOINTED UNDER THE PROVISIONS OF THIS SECTION SHALL TAKE RANK IN THE MANNER PROVIDED IN THE ACT OF DECEMBER 14, 1944 ( PUBLIC LAW 482, SEVENTY-EIGHTH CONGRESS), AND SHALL RECEIVE THE PAY AND ALLOWANCES PRESCRIBED BY SECTION 4 OF SUCH ACT. ANY OFFICER ON THE ACTIVE LIST, OR ANY RETIRED OFFICER, WHO IS APPOINTED UNDER THE PROVISIONS OF THIS SECTION AND WHO HAS BEEN OR MAY HEREAFTER BE RETIRED OR RELIEVED FROM ACTIVE DUTY, SHALL BE ENTITLED TO HAVE HIS NAME PLACED ON THE RETIRED LIST WITH THE HIGHEST GRADE OR RANK HELD BY HIM ON THE ACTIVE LIST OR WHILE ON ACTIVE DUTY, AND SHALL BE ENTITLED TO RECEIVE THE SAME PAY AND ALLOWANCES WHILE ON THE RETIRED LIST AS OFFICERS APPOINTED UNDER THIS SECTION ARE ENTITLED TO RECEIVE WHILE ON ACTIVE DUTY.

34 U.S.C. 883, PROVIDES AS FOLLOWS:

AFTER JULY 22, 1935 NO PAYMENT SHALL BE MADE FROM APPROPRIATIONS MADE BY CONGRESS TO ANY OFFICER IN THE NAVY OR MARINE CORPS ON THE ACTIVE LIST WHILE SUCH OFFICER IS EMPLOYED, AFTER JUNE 30, 1897, BY ANY PERSON OR COMPANY FURNISHING NAVAL SUPPLIES OR WAR MATERIALS TO THE GOVERNMENT, AND SUCH EMPLOYMENT IS MADE UNLAWFUL AFTER SAID DATE: PROVIDED, THAT NO PAYMENT SHALL BE MADE FROM APPROPRIATIONS MADE BY CONGRESS TO ANY RETIRED OFFICER IN THE NAVY OR MARINE CORPS WHO FOR HIMSELF OR FOR OTHERS IS ENGAGED IN THE SELLING OF, CONTRACTING FOR THE SALE OF, OR NEGOTIATING FOR THE SALE OF, TO THE NAVY OR THE NAVY DEPARTMENT, ANY NAVAL SUPPLIES OR WAR MATERIAL. ( ITALICS SUPPLIED.)

THE PROHIBITION IN 34 U.S.C. 883 IS ABSOLUTE WITH RESPECT TO ANY OFFICER OF THE NAVY "ON THE ACTIVE LIST.' SINCE THE FLEET ADMIRAL IS ON THE ACTIVE LIST THE FACT THAT HE MAY NOT BE ON ACTIVE DUTY IS NOT MATERIAL. NEITHER IS IT MATERIAL THAT THE FLEET ADMIRAL "WOULD NOT FOR HIMSELF OR FOR OTHERS BE ENGAGED IN SELLING" ETC. TO THE GOVERNMENT, AS STATED IN THE SUBMISSION, BECAUSE THE INHIBITION RESPECTING ACTIVE LIST OFFICERS IS AGAINST THEIR EMPLOYMENT BY ANY PERSON OR COMPANY FURNISHING SUPPLIES, ETC. TO THE GOVERNMENT. IT FOLLOWS THAT SO LONG AS HE REMAINS ON THE ACTIVE LIST OF THE NAVY THE FLEET ADMIRAL MAY NOT BE PAID ANY PAY AND ALLOWANCE BY THE GOVERNMENT WHILE EMPLOYED BY A COMPANY FURNISHING NAVAL SUPPLIES OR WAR MATERIALS TO THE GOVERNMENT.