B-179164, NOV 29, 1973, 53 COMP GEN 377

B-179164, NOV 29, 1973, 53 COMP GEN 377

MILITARY PERSONNEL - RESERVE OFFICERS' TRAINING CORPS - PROGRAMS AT EDUCATIONAL INSTITUTIONS - MARINE CORPS JUNIOR OFFICERS' TRAINING CORPS THE ESTABLISHMENT UNDER 10 U.S.C. 2031 OF A MARINE CORPS JUNIOR RESERVE OFFICERS' TRAINING CORPS UNIT AT AN INDIAN HIGH SCHOOL FUNDED BY THE FEDERAL GOVERNMENT IS NOT PRECLUDED SINCE THE ESTABLISHMENT OF THE CORPS IN "PUBLIC AND PRIVATE SECONDARY EDUCATIONAL INSTITUTIONS" IS NOT RESTRICTED TO NONGOVERNMENTAL INSTITUTIONS, AND RETIRED MEMBERS OF THE UNIFORMED SERVICES EMPLOYED AS ADMINISTRATORS AND INSTRUCTORS ARE REQUIRED TO BE PAID UNDER 10 U.S.C. 2031(D)(1), WHICH PROVIDES FOR RETENTION OF RETIRED OR RETAINER PAY BE A MEMBER AND PAYMENT BY THE SCHOOL TO THE MEMBER OF AN ADDITIONAL AMOUNT OF NOT MORE THAN THE DIFFERENCE BETWEEN SUCH PAY AND ACTIVE DUTY PAY AND ALLOWANCES, HALF OF WHICH IS REIMBURSABLE BY THE APPROPRIATE SERVICE. HOWEVER, THE GENERAL SCHEDULE APPOINTMENTS OF AN OFFICER AND FLEET RESERVIST, WITH CIVIL SERVICE COMMISSION APPROVAL, NEED NOT BE REVOKED, AND ANY RESULTANT DUAL COMPENSATION PAYMENTS MAY BE WAIVED, BUT FUTURE PAYMENTS TO THE MEMBERS ARE COMPENSABLE UNDER SECTION 2031(D)(1), AND INCIDENT TO THE GS APPOINTMENTS, THE SCHOOL MAY NOT BE REIMBURSED FOR ADDITIONAL AMOUNTS PAID THE MEMBERS.

TO J. J. BURKHOLDER, UNITED STATES MARINE CORPS, NOVEMBER 29, 1973:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 27, 1973 (FILE REFERENCE RP- JJB-DM), REQUESTING AN ADVANCE DECISION RELATING TO THE ESTABLISHMENT OF A MARINE CORPS JUNIOR RESERVE OFFICERS' TRAINING CORPS UNIT AT THE PHOENIX INDIAN HIGH SCHOOL, PHOENIX, ARIZONA, UNDER THE PROVISIONS OF 10 U.S.C. 2031, IN THE CIRCUMSTANCES DESCRIBED. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY LETTER DATED JULY 6, 1973, FROM THE COMMANDANT OF THE MARINE CORPS AND HAS BEEN ASSIGNED CONTROL NUMBER DO-MC-1198 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

YOU SAY THAT THE PHOENIX INDIAN HIGH SCHOOL, WHICH IS OPERATED BY THE BUREAU OF INDIAN AFFAIRS OF THE DEPARTMENT OF INTERIOR AND FUNDED BY FUNDS APPROPRIATED TO THAT AGENCY, ENTERED INTO AN AGREEMENT WITH THE UNITED STATES MARINE CORPS TO ESTABLISH A MARINE CORPS JUNIOR RESERVE OFFICERS' TRAINING CORPS AT THE SCHOOL UNDER THE AUTHORITY OF 10 U.S.C. 2031. THAT AGREEMENT, APPROVED BY THE MARINE CORPS ON FEBRUARY 3, 1969, PROVIDED THAT THE SCHOOL WILL EMPLOY RETIRED MARINE CORPS OFFICERS AND RETIRED ENLISTED MEMBERS TO CONDUCT MILITARY SCIENCE COURSES AND MILITARY ACTIVITIES. ALSO PROVIDED THAT RETIRED PERSONNEL SO EMPLOYED ARE ENTITLED TO RECEIVE THEIR ANNUAL RETIRED PAY AND AN ADDITIONAL AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THEIR ANNUAL RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY. IT FURTHER PROVIDED THAT THE SCHOOL (1) WOULD BE THE EMPLOYING AGENCY, (2) WOULD PAY THE FULL "ADDITIONAL AMOUNT" DUE THE RETIRED MEMBERS ON A PAY SCHEDULE IDENTICAL TO THAT IN EFFECT FOR OTHER FACULTY MEMBERS, AND (3) WOULD BE REIMBURSED FOR ONE HALF OF THE "ADDITIONAL AMOUNT" SO PAID TO THE RETIRED MEMBERS.

YOU SAY THAT PRIOR TO SEPTEMBER 1972, THE HIGH SCHOOL CONTRACTED WITH A NONFEDERAL ORGANIZATION (IN THIS CASE WE UNDERSTAND IT TO BE THE WHITE MOUNTAIN INDIAN TRIBE) TO HIRE AND PAY THE MCJROTC INSTRUCTORS. YOU INDICATE THAT THE REASON FOR THIS ARRANGEMENT WAS THAT THE BUREAU OF INDIAN AFFAIRS EXPRESSED THE VIEW THAT IF THE SCHOOL EMPLOYED THE TWO INDIVIDUALS IN QUESTION AS DIRECT-HIRE EMPLOYEES AS INSTRUCTORS FOR THEIR JUNIOR ROTC PROGRAM, SUCH EMPLOYMENT WOULD SUBJECT THEM TO THE IMPLICATIONS OF THE DUAL COMPENSATION LAWS.

SUBSEQUENT TO THEIR EMPLOYMENT AT THE SCHOOL UNDER THE TERMS OF THE CONTRACT WITH THE WHITE MOUNTAIN APACHE TRIBE, THAT CONTRACT, AS WELL AS SEVERAL OTHER SIMILAR CONTRACTS, WERE EXAMINED BY OUR OFFICE AND WERE DETERMINED TO BE IN VIOLATION OF FEDERAL REGULATIONS APPLICABLE TO THE OPERATION OF THE SCHOOL. THE BASIS FOR THAT DETERMINATION APPARENTLY, WAS THAT SUCH AN ARRANGEMENT WAS DEEMED TO BE A PERSONAL SERVICE CONTRACT WHEREIN IT APPEARED THAT THE INDIAN TRIBE WAS MERELY A CONDUIT THROUGH WHICH AN EMPLOYER-EMPLOYEE RELATIONSHIP WAS CREATED BETWEEN INDIVIDUALS AND THE PHOENIX INDIAN SCHOOL, WITH THE INDIAN TRIBE LEVYING AN ADDITIONAL CHARGE AGAINST THE SCHOOL FOR CONTRACT ADMINISTRATION.

ON SEPTEMBER 18, 1972, COLONEL CLAY A. BOYD, 525 92 30 21, UNITED STATES MARINE CORPS, RETIRED, AND MASTER SERGEANT WILLIAM M. WECKERLY, 483 48 25 99, FLEET MARINE CORPS RESERVE, THE MCJROTC INSTRUCTORS AT THE SCHOOL UNDER THE EARLIER CONTRACT ARRANGEMENT WERE GIVEN TEMPORARY APPOINTMENTS AS GENERAL SCHEDULE EMPLOYEES AT THE GS-9 AND GS-6 LEVEL, RESPECTIVELY. YOU SAY THAT HEADQUARTERS MARINE CORPS, UPON BEING FURNISHED WITH A COPY OF THESE APPOINTMENTS, EXPRESSED THE VIEW THAT THE APPOINTMENTS WERE WITHOUT LAWFUL EFFECT, BEING INCONSISTENT WITH BOTH 10 U.S.C. 2031(D)(1) AND THE TERMS OF THE MCJROTC AGREEMENT REFERRED TO ABOVE. HEADQUARTERS MARINE CORPS SUGGESTED TO THE BUREAU OF INDIAN AFFAIRS THAT THESE TEMPORARY APPOINTMENTS BE REVOKED AS OF THEIR EFFECTIVE DATE AND THAT COLONEL BOYD'S AND MASTER SERGEANT WECKERLY'S EMPLOYMENT AS MCJROTC INSTRUCTORS BE REEFFECTED IN SUCH A MANNER AS TO INSURE THAT THEIR EMPLOYMENT AS MCJROTC INSTRUCTORS AT THE SCHOOL AND THEIR RATE OF COMPENSATION CONFORM TO THAT AUTHORIZED BY 10 U.S.C. 2031 AND THE REFERRED -TO AGREEMENT BETWEEN THE MARINE CORPS AND THE SCHOOL.

IT IS YOUR UNDERSTANDING THAT IN THE LIGHT OF 48 COMP. GEN. 796 (1969), HEADQUARTERS MARINE CORPS VIEW THE PROVISIONS OF 10 U.S.C. 2031 AS BEING APPLICABLE TO THE INSTANT SITUATION EVEN THOUGH THE PHOENIX INDIAN HIGH SCHOOL IS OPERATED AND FUNDED BY THE UNITED STATES GOVERNMENT.

YOU SAY THAT IN RESPONSE TO THE ABOVE SUGGESTION, THE DEPARTMENT OF INTERIOR REQUESTED OF THE UNITED STATES CIVIL SERVICE COMMISSION THAT SCHEDULE A EXCEPTIONS BE GRANTED TO POSITION OF ADMINISTRATORS AND INSTRUCTORS IN JUNIOR ROTC UNITS IN SCHOOLS OPERATED BY THE BUREAU OF INDIAN AFFAIRS. IN REPLY TO THE EXCEPTION REQUEST, THE CHIEF, CAREER SERVICE DIVISION, BUREAU OF RECRUITING AND EXAMINING, UNITED STATES CIVIL SERVICE COMMISSION, APPARENTLY ADVISED THAT NO BASIS COULD BE FOUND FOR SUBMITTING SUCH A RECOMMENDATION FOR THE APPROVAL OF THE COMMISSION. YOU INDICATE THAT IT WAS ALSO STATED IN THAT REPLY THAT THEIR OFFICE OF THE GENERAL COUNSEL DETERMINED THAT THE REDUCTION-IN MILITARY-RETIREMENT PAY PROVISION (5 U.S.C. 5532) DOES APPLY TO COLONEL BOYD'S APPOINTMENT AND THAT THE PROVISIONS OF 10 U.S.C. 2031(D)(1) APPLIES ONLY TO NONGOVERNMENTAL INSTITUTIONS.

BECAUSE OF THE DOUBT EXPRESSED AS TO THE APPLICABILITY OF 10 U.S.C. 2031 TO THE ESTABLISHMENT OF THE MCJROTC UNIT AT THE PHOENIX INDIAN HIGH SCHOOL UNDER THE PRESENT ARRANGEMENT AND THE EFFECT OF 5 U.S.C. 5532 ON COLONEL BOYD'S ENTITLEMENT TO RETIRED PAY AS THE RESULT OF HIS APPOINTMENT UNDER THE GENERAL SCHEDULE AS THE MCJROTC ADMINISTRATOR AT THE SCHOOL, YOU ASK THE FOLLOWING QUESTIONS:

1. THE SCHOOL HAS NOT BEEN REIMBURSED FOR ANY PART OF THE "ADDITIONAL AMOUNT" IT PAID TO COLONEL BOYD AND MASTER SERGEANT WECKERLY FOR PERIODS AFTER 17 SEPTEMBER 1972. IS REIMBURSEMENT TO THE SCHOOL AUTHORIZED FOR ONE-HALF THE DIFFERENCE BETWEEN THEIR RETIRED OR RETAINER PAY AND THE SALARY RECEIVED BY THEM SINCE 18 SEPTEMBER 1972, NOT TO EXCEED ONE-HALF THE DIFFERENCE BETWEEN SUCH RETIRED OR RETAINER PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY?

2. AM I REQUIRED TO REDUCE COLONEL BOYD'S RETIRED PAY UNDER 5 U.S.C. 5532 AS A RESULT OF HIS TEMPORARY APPOINTMENT OF 18 SEPTEMBER 1972 TO THE GENERAL SCHEDULE POSITION OF TRAINING ADMINISTRATOR, MCJROTC, PHOENIX INDIAN HIGH SCHOOL?

3. IF IT IS HELD THAT THE SCHOOL MAY BE REIMBURSED, AND COLONEL BOYD'S RETIRED PAY MUST BE REDUCED UNDER 5 U.S.C. 5532, SHOULD THE DIFFERENCE BETWEEN HIS "RETIRED PAY" AND THE ACTIVE DUTY PAY AND ALLOWANCES HE WOULD RECEIVE IF ORDERED TO ACTIVE DUTY BE COMPUTED BY USING HIS RETIRED PAY BEFORE APPLICATION OF THE DUAL COMPENSATION REDUCTION, OR HIS RETIRED PAY REMAINING AFTER THAT REDUCTION HAS BEEN MADE?

IN VIEW OF THE INDICATED STATEMENTS BY THE OFFICE OF THE GENERAL COUNSEL, UNITED STATES CIVIL SERVICE COMMISSION, WE WILL CONSIDER AT THE OUTSET THE QUESTION WHETHER THE PROVISIONS OF 10 U.S.C. 2031 ARE APPLICABLE TO GOVERNMENTAL INSTITUTIONS SUCH AS THE PHOENIX INDIAN SCHOOL.

SECTION 2031 OF TITLE 10, U.S. CODE, PROVIDES IN PERTINENT PART:

(A) THE SECRETARY OF EACH MILITARY DEPARTMENT SHALL ESTABLISH AND MAINTAIN A JUNIOR RESERVE OFFICERS' TRAINING CORPS, ORGANIZED INTO UNITS, AT PUBLIC AND PRIVATE SECONDARY EDUCATIONAL INSTITUTIONS WHICH APPLY FOR A UNIT AND MEET THE STANDARDS AND CRITERIA PRESCRIBED PURSUANT TO THIS SECTION.

THE LEGISLATIVE HISTORY OF THIS LAW INDICATES THAT ITS PURPOSE WAS TO EXPAND THE NUMBER OF JROTC PROGRAMS AT QUALIFIED SECONDARY SCHOOLS. FIND NOTHING IN THE LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT CONGRESS INTENDED TO RESTRICT THE MEANING OF THE PHRASE "PUBLIC AND PRIVATE SECONDARY EDUCATIONAL INSTITUTIONS" TO ONLY NONGOVERNMENTAL INSTITUTIONS. SINCE THE INDICATED PURPOSE WAS TO EXPAND THE THEN EXISTING PROGRAM, IT IS OUR VIEW THAT THE PROVISIONS OF 10 U.S.C. 2031 SHOULD BE LIBERALLY CONSTRUED AND NOT BE INTERPRETED SO AS TO PRECLUDE OR DISCOURAGE THE ESTABLISHMENT OF A JUNIOR ROTC PROGRAM AT ANY PARTICULAR TYPE OF SECONDARY INSTITUTION, IF OTHERWISE QUALIFIED, AND THAT A JUNIOR ROTC PROGRAM UNDER 10 U.S.C. 2031 MAY BE ESTABLISHED IN GOVERNMENTAL INSTITUTIONS, SUCH AS THE PHOENIX INDIAN HIGH SCHOOL. CF. 48 COMP. GEN. 796 (1969).

AUTHORITY FOR THE EMPLOYMENT OF RETIRED MEMBERS OF THE UNIFORMED SERVICES BY SCHOOLS PARTICIPATING IN THE JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM IS CONTAINED IN SUBSECTION 2031(D) OF TITLE 10, U.S. CODE, WHICH PROVIDES IN PERTINENT PART:

(D) INSTEAD OF, OR IN ADDITION TO, DETAILING OFFICERS AND NONCOMMISSIONED OFFICERS ON ACTIVE DUTY UNDER SUBSECTION (C)(1), THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED MAY AUTHORIZE QUALIFIED INSTITUTIONS TO EMPLOY, AS ADMINISTRATORS AND INSTRUCTORS IN THE PROGRAM, RETIRED OFFICERS AND NONCOMMISSIONED OFFICERS, AND MEMBERS OF THE FLEET RESERVE AND FLEET MARINE CORPS RESERVE, WHOSE QUALIFICATIONS ARE APPROVED BY THE SECRETARY AND INSTITUTION CONCERNED AND WHO REQUEST SUCH EMPLOYMENT, SUBJECT TO THE FOLLOWING:

(1) RETIRED MEMBERS SO EMPLOYED ARE ENTITLED TO RECEIVE THEIR RETIRED OR RETAINER PAY AND AN ADDITIONAL AMOUNT OF NOT MORE THAN THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY, AND ONE HALF OF THAT ADDITIONAL AMOUNT SHALL BE PAID TO THE INSTITUTION CONCERNED BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED FROM FUNDS APPROPRIATED FOR THAT PURPOSE.

UNDER THE PROVISIONS OF CLAUSE (1) OF THAT SUBSECTION SUCH MEMBERS EMPLOYED BY THE INSTITUTIONS AS ADMINISTRATORS AND INSTRUCTORS IN THE PROGRAMS ARE ENTITLED TO RECEIVE THEIR RETIRED OR RETAINER PAY AND AN "ADDITIONAL AMOUNT" OF "NOT MORE THAN" THE DIFFERENCE BETWEEN THEIR RETIRED OR RETAINER PAY AND THE "ACTIVE DUTY PAY AND ALLOWANCES WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY."

PARAGRAPH V.B.2.A., DEPARTMENT OF DEFENSE DIRECTIVE NO. 1205.13, DATED OCTOBER 17, 1968, WHICH DIRECTIVE WAS PROMULGATED PURSUANT TO THE AUTHORITY OF 10 U.S.C. 2031, PROVIDES IN PART:

RETIRED PERSONNEL SO EMPLOYED SHALL RECEIVE THEIR RETIRED OR RETAINER PAY AND AN ADDITIONAL AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THEIR RETIRED PAY AND THE ACTIVE DUTY PAY AND ALLOWANCES, EXCLUDING HAZARDOUS DUTY PAY, WHICH THEY WOULD RECEIVE IF ORDERED TO ACTIVE DUTY. THE INSTITUTION IS THE EMPLOYING AGENCY AND SHALL PAY THE FULL ADDITIONAL AMOUNT DUE TO THE INDIVIDUAL EMPLOYED.

IT WOULD THUS SEEM REASONABLY CLEAR THAT UNDER THE PROSCRIPTION OF BOTH THE LAW AND THE REGULATIONS, THE MAXIMUM AS WELL AS THE MINIMUM "ADDITIONAL AMOUNT" WHICH MAY BE PAID BY AN EMPLOYING INSTITUTION TO RETIRED MEMBERS UNDER THE PROVISIONS OF 10 U.S.C. 2031 FOR THE PERFORMANCE OF THESE DUTIES IS ESTABLISHED AND THAT THE TOTAL PAYMENT BY THE INSTITUTION FOR SUCH EMPLOYMENT MAY NOT EXCEED THE DIFFERENCE BETWEEN THEIR RETIRED PAY ENTITLEMENT AND THE ACTIVE DUTY PAY AND ALLOWANCES TO WHICH THEY WOULD BE ENTITLED TO RECEIVE IF SERVING ON ACTIVE DUTY. CF. 46 COMP. GEN. 647 (1967).

DURING THE PERIOD INVOLVED, BOTH COLONEL BOYD AND MASTER SERGEANT WECKERLY WERE EMPLOYED AS ADMINISTRATORS AND INSTRUCTORS AT THE PHOENIX INDIAN HIGH SCHOOL UNDER THE GENERAL SCHEDULE AS A GS-9 AND GS-6, RESPECTIVELY. AS A RESULT, COMPENSATION FOR THEIR EMPLOYMENT WAS SET, NOT IN THE AMOUNT PRESCRIBED BY 10 U.S.C. 2031(D)(1), BUT RATHER BY THE RATES PRESCRIBED FOR GENERAL SCHEDULE EMPLOYEES UNDER THE PROVISIONS OF SUBCHAPTER III, CHAPTER 53 OF TITLE 5, U.S. CODE, WHICH AMOUNT MAY BE MORE OR LESS THAN THAT AUTHORIZED UNDER SUBSECTION 2031(D).

HEADQUARTERS MARINE CORPS HAS SUGGESTED, HOWEVER, THAT THESE APPOINTMENTS ARE WITHOUT LAWFUL EFFECT, THAT THEY SHOULD BE REVOKED AS OF THEIR EFFECTIVE DATE AND THAT THE MEMBERS' EMPLOYMENT BE REEFFECTED IN SUCH A MANNER AS TO ENSURE THAT THEIR EMPLOYMENT AND RATE OF COMPENSATION CONFORM TO 10 U.S.C. 2031(D) AND THE AGREEMENT. WHILE IN OUR OPINION THE BETTER VIEW IS THAT 10 U.S.C. 2031(D) CONSTITUTES THE SOLE AUTHORITY FOR THE EMPLOYMENT OF RETIRED MEMBERS AS ADMINISTRATORS AND INSTRUCTORS IN JROTC PROGRAMS, SUBSECTION 10 U.S.C. 2031(D) DOES NOT SPECIFICALLY STATE THAT IT IS THE SOLE AUTHORITY FOR THE EMPLOYMENT OF RETIRED MEMBERS IN JROTC PROGRAMS, AND UNDER 5 U.S.C. 5103 THE CSC IS VESTED WITH BROAD AUTHORITY TO DETERMINE WHICH SPECIFIC POSITIONS ARE SUBJECT TO THE CLASSIFICATION PROVISIONS. IN VIEW THEREOF AND SINCE THE APPOINTMENTS TO THE GS POSITIONS WERE MADE WITH THE EXPRESS APPROVAL OF THE CSC, WE ARE NOT REQUIRED TO CONCLUDE THAT SUCH APPOINTMENTS MUST BE REVOKED RETROACTIVELY, ESPECIALLY SINCE THE DUTIES EMBRACED UNDER SUCH APPOINTMENTS MAY HAVE COVERED BROADER RANGE OF RESPONSIBILITIES THAN THOSE CONTEMPLATED BY 10 U.S.C. 2031(D).

HENCEFORTH, HOWEVER, ANY RETIRED MEMBER EMPLOYED PRIMARILY AS AN ADMINISTRATOR OR INSTRUCTOR IN A JROTC PROGRAM AT A GOVERNMENT OPERATED SCHOOL SHOULD BE PAID ONLY IN ACCORDANCE WITH 10 U.S.C. 2031(D) WHICH PRESCRIBES A BASIS FOR PAYMENT THAT IS WHOLLY INCONSISTENT WITH THAT PROVIDED BY THE CLASSIFICATION PROVISIONS CONTAINED IN TITLE 5, U.S.C. WHEN A RETIRED MEMBER IS EMPLOYED IN ACCORDANCE WITH 10 U.S.C. 2031 IT HAS BEEN HELD THAT HE IS NOT SUBJECT TO THE DUAL COMPENSATION PROVISIONS CONTAINED IN 5 U.S.C. 5531 AND 5532. SEE 48 COMP. GEN. 796 (1969). THAT DECISION WE STATED:

WE UNDERSTAND THAT THE PURPOSE OF THE PROVISIONS QUOTED ABOVE (10 U.S.C. 2031(D)) WAS TO AVOID THE APPLICATION OF THE DUAL COMPENSATION STATUTES AND OTHER RESTRICTIVE STATUTES IN EXISTENCE AT THE TIME THE LEGISLATION WAS BEING CONSIDERED WHICH MIGHT HAVE AFFECTED THE EMPLOYMENT OF RETIRED MEMBERS OF THE ARMED SERVICES BY QUALIFIED SECONDARY SCHOOLS IN THE JUNIOR RESERVE OFFICERS' TRAINING CORPS PROGRAM. SEE OUR DECISION OF OCTOBER 28, 1963, TO THE THEN SECRETARY OF THE ARMY, 43 COMP. GEN. 421.

ON THE OTHER HAND, WE DO NOT BELIEVE THAT SUCH EXCEPTION IS APPLICABLE WHERE THE EMPLOYMENT OF A RETIRED MEMBER IS NOT EFFECTED UNDER THE SPECIFIC TERMS OF 10 U.S.C. 2031(D) EVEN THOUGH HE MAY BE PERFORMING A FUNCTION SIMILAR TO THAT CONTEMPLATED UNDER SUCH SECTION. CONSEQUENTLY, YOUR SECOND QUESTION AS TO WHETHER COLONEL BOYD'S RETIRED PAY IS REQUIRED TO BE REDUCED AS A RESULT OF HIS EMPLOYMENT AS TRAINING ADMINISTRATOR, MCJROTC, PHOENIX INDIAN HIGH SCHOOL, UNDER A TEMPORARY APPOINTMENT TO THE GENERAL SCHEDULE, IS ANSWERED IN THE AFFIRMATIVE.

BASED ON THE INFORMATION CONTAINED IN THE FILE, AND SINCE COLONEL BOYD IS SUBJECT TO THE RESTRICTION IN 5 U.S.C. 5532(B), IT WOULD APPEAR THAT HE MAY HAVE RECEIVED AN OVERPAYMENT OF RETIRED PAY AS A RESULT OF HIS EMPLOYMENT AT THE PHOENIX INDIAN HIGH SCHOOL, BEGINNING SEPTEMBER 18, 1972. IF THAT IS THE CASE, APPROPRIATE STEPS SHOULD BE TAKEN TO ESTABLISH THE AMOUNT OF THAT OVERPAYMENT AND TO NOTIFY COLONEL BOYD OF HIS INDEBTEDNESS. IN THIS CONNECTION THE PROVISIONS OF 10 U.S.C. 2774, AS ADDED BY THE ACT OF OCTOBER 2, 1972, PUBLIC LAW 92-453, 86 STAT. 758, AUTHORIZE THE WAIVER OF CERTAIN CLAIMS OF THE UNITED STATES. INDEBTEDNESS ARISING OUT OF AN OVERPAYMENT OF RETIRED PAY MAY BE CONSIDERED FOR WAIVER UNDER THESE PROVISIONS. THEREFORE, SHOULD AN INDEBTEDNESS ACTUALLY BE ESTABLISHED IN COLONEL BOYD'S CASE, THE ERRONEOUS PAYMENT APPROPRIATELY MAY BE CONSIDERED FOR WAIVER.

AS TO THE QUESTION WHETHER THE PHOENIX INDIAN HIGH SCHOOL MAY BE REIMBURSED UNDER THE PROVISIONS OF 10 U.S.C. 2031(D) FOR ONE-HALF THE DIFFERENCE BETWEEN THE MEMBERS' RETIRED OR RETAINER PAY AND THE SALARY RECEIVED BY THEM SINCE SEPTEMBER 18, 1972, REIMBURSEMENT BY THE SECRETARY OF THE MILITARY DEPARTMENT CONCERNED UNDER CLAUSE (1) DEPENDS ON WHETHER THE MEMBERS IN QUESTION WERE ENTITLED TO RECEIVE PAYMENT UNDER THOSE PROVISIONS. SINCE WE VIEW THE STATUS OF THE TWO RETIRED MEMBERS AS NOT COMING WITHIN THE SCOPE OF 10 U.S.C. 2031(D) AFTER THEIR APPOINTMENTS TO GS POSITIONS, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE. IN VIEW OF OUR RESPONSE AS TO THE INAPPLICABILITY OF 10 U.S.C. 2031(D)(1) IN THIS CASE, YOUR THIRD QUESTION REQUIRES NO ANSWER.