Assistant Comptroller General Yates to the Secretary of War, July 15, 1947: I have your letter of June 13, 1947, as follows:

The Chief of Engineers has been informed that the International Bank for Reconstruction and Development is considering the employment of one or more retired officers of the Corps of Engineers on an annual salary basis in connection with engineering projects upon which the Bank may be required to act. It is the view of this Department that the Bank is an international agency and that the principles enunciated in your opinions of July 11, 1945 and August 20, 1945 (25 Comp. Gen. 38 and 203) with respect to employment of retired Army officers by the United Nations Relief and Rehabilitation Administration, would apply to the employment of retired officers by the International Bank.

Since the War Department is desirous of issuing proper and comprehensive advice to military personnel who may be asked to accept employment with the International Bank for Reconstruction and Development, your decision is requested as to whether military personnel may be employed by the Bank, while on terminal leave or in a retirement status, and, if so, will such personnel be entitled to receive their active or retired pay while so employed.

The International Bank for Reconstruction and Development was organized for the purpose of assisting in the reconstruction and development of territories of member nations by facilitating the investment of capital for productive purposes; promoting private foreign investment by means of guarantees or participations in loans and other investments made by private investors and, when private capital is not available, providing funds out of its own capital; promoting long-range balanced growth of international trade, etc. The Bank came into existence on December 27, 1945, when the Articles of Agreement of the International Bank for Reconstruction and Development were accepted and signed on behalf of governments-including the United States having approximately 80 percent of the total capital stock subscriptions allocated to the 44 nations represented at the United Nations Monetary and Finance Conference held at Bretton Woods, New Hampshire, in July 1944. Article II, section 3 (a), of the said Articles of Agreement requires that each member nation subscribe to a minimum number of shares of the Bank's authorized capital stock of $10,000,000,000. Under Article V, section 14, of the said Articles of Agreement, the Bank's Board of Governors is authorized to determine what part of the Bank's net income, after making provision for reserves, shall be allocated to surplus and what part, if any, shall be distributed to member nations. By the act of July 31, 1945, 59 Stat. 512, 514, the Congress authorized the President to accept membership in the Bank on behalf of the United States and also authorized the Secretary of the Treasury to use as a public debt transaction not to exceed $4,125,000,000 of the proceeds of any securities thereafter issued under the Second Liberty Bond Act, as amended, to finance the United States subscription to the International Monetary Fund and the International Bank for Reconstruction and Develop

ment. Thus, it clearly appears that the Bank is an international agency, rather than a Federal agency. Also, since the administrative expenses of the Bank are to be paid from operating profits-or capital contributions in the event of an operating deficit-it appears the funds authorized by the Congress for the payment of the subscription of the United States to the Bank's capital stock will be intermingled with funds provided by other member nations, and, as such, will lose their status as Federal funds. 23 Comp. Gen. 744.

In decision of July 11, 1945, B-50542, 25 Comp. Gen. 38, referred to in your letter, there was considered the question of whether the employment of military personnel by the United Nations Relief and Rehabilitation Administration, while on terminal leave or in a retirement status, would subject such personnel to the prohibitions contained in the dual office or dual compensation acts of May 10, 1916, 39 Stat. 120, as amended by the act of August 29, 1916, 39 Stat. 582; July 31, 1894, 28 Stat. 205, as amended; and section 1222, Revised Statutes, which provides that the commission of an "officer of the Army on the active list" shall be vacated upon acceptance of a civil office; or the limitation of $3,000 per annum on combined salary and retired pay imposed by section 212 of the Economy Act of June 30, 1932, 47 Stat. 406. In that decision, it was stated in part as follows:

The statutes, supra [section 1 of the Joint Resolution of March 28, 1944, 58 Stat. 126, section 201, the act of June 30, 1944, 58 Stat. 629], support the statement made in the decision of April 1, 1944, 23 Comp. Gen. 744, to the effect that the United Nations Relief and Rehabilitation Administration is an international agency, rather than a Federal agency. Also, it is understood that the salaries of the personnel referred to in your letter are to be paid from that part of the appropriation, supra, which has been or will be turned over to the Director General as a contribution to the Administration's administrative expense fund as contemplated under Article IV, V, and VI of the Agreement herein before referred to. If that is the situation none of the dual compensation statutes cited in the concluding paragraph of your letter (acts of May 10, 1916, as amended by the act of August 29, 1916, 39 Stat. 582; July 31, 1894, 28 Stat. 205, as amended, and section 212 of the act of June 30, 1932, 47 Stat. 406) would be contravened if military personnel accepted appointment or employment with the United Nations Relief and Rehabilitation Administration during terminal leave from the military service or upon retirement from the military service That is to say, said statutes prohibiting dual appointments or employments, or payment of more than one salary to the same person during the same period of time in the Federal service would have no application to dual appointments or employments or payment of more than one salary in a Federal office or position and in an office or position under the United Nations Relief and Rehabilitation Administration.

Section 1222, Revised Statutes, provides as follows:

*

"Accepting or holding civil office.-No officer of the Army on the active list shall hold any civil office, whether by election or appointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and his commission shall be thereby vacated."

An officer of the Army is "on the active list" during authorized leave of absence whether the leave be taken during active service or as terminal leave immediately prior to final discharge from the active service. It has been held that the term "civil office," as used in section 1222, Revised Statutes, is not limited to a Federal civil office, but includes, also, a State office-a non-Federal office. See 13 Ops. Atty. Gen. 310, cited in 19 Comp. Gen. 826, at page 828. Upon the

basis of the same reasoning a civil office with an international agency—another class of non-Federal office--must be regarded as a "civil office" within the meaning of section 1222, Revised Statutes.

You are advised, therefore, that a retired officer of the Army may accept an office or position with the United Nations Relief and Rehabilitation Administration, the salary of which is payable from contributed administrative expense funds, without regard to any of the dual compensation statutes, but that the acceptance of an office or position with the United Nations Relief and Rehabilitation Administration by an officer of the Army on the active list during terminal leave from the military service would vacate his commission as an Army officer effective the day he accepts the civil office.

In decision of August 20, 1945, B-50542, 25 Comp. Gen. 203, also referred to in your letter, it was further emphasized that section 1222, Revised Statutes, has reference only to an "officer of the Army on the active list" and that such phrase generally is used to denote officers of the Regular Army other than those-and as distinguished from those on the "retired list" and that such phrase generally has no application to other officers of the Army of the United States. And in decision of November 2, 1945, 25 Comp. Gen. 377, it was held, quoting the syllabus that:

The temporary employment by a State of an Army officer on the active list during terminal leave prior to retirement to direct the construction of a particular State project under a position which does not require an oath of office or have compensation or title fixed by law may not be regarded as employment in a "civil office" within the contemplation of section 1222, Revised Statutes, such as would vacate his commission upon acceptance of such employment, and, therefore, the officer would be entitled to his otherwise proper active duty pay and allowances while so employed.

The conclusion reached in said decisions respecting the application of the dual compensation laws to Army officers on the retired list would appear equally for application to retired officers who accept employment with the International Bank for Reconstruction and Development. However, with respect to that part of the decisions, supra, to the effect that under section 1222, Revised Statutes, the acceptance of an office with the United Nations Relief and Rehabilitation Administration by an officer of the Army on the active list during terminal leave would vacate his commission in the Army, attention is invited to Public Law 226, approved November 21, 1945, 59 Stat. 584, enacted subsequent to the said decisions. The latter act provides that any person who, subsequent to May 1, 1940, shall have performed active duty in the armed forces may, while on terminal leave, enter or reenter "employment of the Government of the United States, its Territories or possessions, or the District of Columbia (including any corporation created under authority of an Act of Congress which is either wholly controlled or wholly owned by the Government of the United States, or any department, agency, or establishment thereof, whether or not the employees thereof are paid from funds appropriated by Congress)," and receive, in addition to compensation for such employment, pay

and allowances from the armed forces for the unexpired portion of such terminal leave. Section 2 (d) of the said act, 59 Stat. 585, provides, also, for payment for unused leave of any such person who enters the employment of a State, or any political subdivision thereof. In decision of March 28, 1946, B-56625, 25 Comp. Gen. 677, to Colonel Carl Witcher, Finance Department, U. S. Army, it was stated generally with respect to the effect of the said act of November 21, 1945, upon the provisions of section 1222, Revised Statutes, as applied to military personnel who accept positions with the Federal Government during a period of terminal leave pending release from active duty or retirement, as follows (page 679):

* Moreover, an examination of the legislative history of the said act of November 21, 1945, discloses that the provisions of section 1222, along with the various statutes prohibiting dual employment and the receipt of double compensation, were particularly brought to the attention of the Congressional committees considering the proposed legislation. And that it was the intent of the Congress to authorize the benefits provided by the said 1945 statute notwithstanding the provisions of such laws, including section 1222, Revised Statutes, clearly appears from House Report No. 1163, accompanying S. 1036 (which, as amended by the House of Representatives, became the act of November 21, 1945), wherein specific mention is made of section 1222, Revised Statutes, as well as the dual employment and dual compensation statutes, as constituting existing legislation the provisions of which were intended to be avoided by enactment of the bill. Hence, it is concluded that in enacting the said act of November 21, 1945, the Congress intended that for the period of terminal leave from the armed forces such statute would supersede the provisions of section 1222, Revised Statutes, as well as the dual compensation statutes and any other law to the contrary, and that the benefits of the statute were to extend to members of the Regular Army as well as to members of other components of the armed forces.

While that decision clearly recognized that the act of November 21, 1945, superseded the provisions of section 1222, Revised Statutes, insofar as concerns periods during which officers of the Army on the active list are on terminal leave pending release from active duty or retirement, the said act refers to military personnel who enter or reenter the employment of "a State, or any political subdivision thereof" or "the Government of the United States, its Territories or possessions, or the District of Columbia (including any corporation created under authority of an Act of Congress which is either wholly controlled or wholly owned by the Government of the United States, or any department, agency or establishment thereof." As hereinbefore pointed out, the International Bank for Reconstruction and Development is an international agency whose capital stock is owned by various governments, and, consequently, it is not expressly included in the language of such act. However, the express enumeration in the act of the "employment" that any person may enter or reenter while on terminal leave from the armed forces without forfeiting his military pay does not appear to have been intended restrictively so as to preclude such persons on terminal leave from entering or reentering

the employment of other than a State, the Federal Government, etc., but rather as broadly removing the theretofore existing restrictions contained in the dual office and dual compensation laws, as well as section 1222, Revised Statutes, so as to permit such persons to accept employment, generally, without regard to such restrictive statutes, while on terminal leave from the armed forces. Explaining the need for such legislation it was pointed out in House Report No. 1163, accompanying S. 1036 (which, as amended by the House of Representatives, became the act of November 21, 1945), that under then existing laws, members of the armed forces on terminal leave might accept private employment without forfeiting the pay and allowances to which they were entitled while on terminal leave, but that such members might not accept employment in civil positions under the Federal Government and receive compensation for such employment concurrently with the receipt of their military pay and allowances; and that officers of the Army on the active list were prohibited by section 1222 of the Revised Statutes from holding civil office.

It does not appear that the employment here involved would constitute the holding of a civil office within the meaning of section 1222, Revised Statutes. Cf. 25 Comp. Gen. 377. However that may be, in view of the broad purpose sought to be accomplished by the enactment of the said Public Law 226, approved November 21, 1945, it is the view of this office that officers of the Army on the active list may, while on terminal leave pending release from active duty or retirement, accept such employment with the International Bank for Reconstruction and Development without vacating their commissions in the Army.

Accordingly, in response to the questions presented in the concluding paragraph of your letter, it is concluded that military personnel—including retired officers and officers on the active list of the Armywho may accept employment with the said Bank, while on terminal leave pending release from active duty or retirement, will be entitled to their active duty pay and allowances while so employed, in addition to the compensation attached to their employment with the Bank; and that officers on the retired list not on active duty may receive their retired pay, in addition to the compensation attached to their employment with the Bank, without regard to the dual office and dual compensation laws.

(B-67785)

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