(Sanitized)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP84-00709R000400070060-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 9, 2016
• Document Release Date: June 6, 2001
• Sequence Number: 60
• Publication Date: March 15, 1948
• Content Type: MEMO

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OGC Has Reviewed
STATINTL
1,,eft Personnel Branch 15 March 1948
Assistant General Counsel
Reference is made to your memorandum to this office,
dated 9 :':'arch 1948, concerning the abceee subject. The form 57
and Special Cr-ors No. 43, dated 20 February 1946, encloued
Ir your memorandum are returned herewith. You request advice
whether subject may be employed by CIA as a Consultant at
5.0C per do' without making it necessary that he relinquish
his retirement pay while so employed.
2. It 1 obvious that Section 58 of Title 5 of the USCA
is not applicable since Section 59 of that Title specifically
states twit C'ection 5 Nill not apply to retired officers of
the Army. There is for eonsideration whether that subject
would ceme within the terms of Section 62 of Title 5, USCA.
However, &:ection 62 provides that retired officers of the
Army whe have been retired for injuries or incapacity incurred
411 in line of duty hnil not, within the meaning of Section 62,
be construed to hold or to have held an office during such
retireeent. Upon reading the retirement orders of subject
(6pecie1 Orders ic. 3, dated 20 February 1946), we feel that
Lang doer, not hold an office within the meaning of Section 62.
There remeins for censideratione Section 212 of the Economy
Act, included in the USCA as Section 59a of Title 5, which reads
I s follows:
?
"int. ALUILLaialtiLUSKLig-IMILLt. of retiri4
2ty as com-iusioned.grricer An the Armv."Rgyx4A1=1,
C a ; d!INUAL19-11UVELY?U21.20112
Servicl. a After June 30, 1932, no person
holdinz a civilian office or pcsition, appointive or
elective, under the United States Government or the
municipal government of the District of Columbia
or under any corporation, the majority of the stoek
ot which is owned by the United States, shall be
entitled, during the period of such incumbency, to ?
retired pay from the United States for or on accotInt
of services maell commissioned officer in any of the
services mentioned in Title 37, at a rate in excess
of an amount which when combined With the annual rata -
or compensation from each civilian office or position,
makes the tntal rate from both eources more than
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.13,000; and when the retired pay amounts to or
exceeds the rete of 11,000 per annum such person
shall be entitled to the pa7 of the civilian office
or position or the retire-1 pay, whichever he may elect.
As used in this section, the term "retired pay" shall
be censtrued to Include credits for all service that
lawfully 7ay enter into the computation thereof.
b) This section shall not apply to any person
whose retired pow, plus civilian pay, amounts to
less than 0,0001 Erailati, Tet this section shall
not apply to regular or emergeney cemmissioned efficers
retired for disability incurred in combat with an
enemy of the United States or for disabilities reeultine
frost an explosion of an instrumentality of Year in line
of duty during an enlistment or employment as provides
in Veterans Reellation Numbered I. (a), part Ito para-
graph 1. June 30, 1932, t. 314, .k212, 47 Stat. 406,
an amended Jurgy 15; 1940, e. 626, 0, 54 Stat. 763.0
1. In 26 Comp. Gen. 501, dated 17 January 1947, it is
steted that GO has not had occasion to pass upon the question of
whether an offleer of the armed forces retired for disability,
mno is employed se m consultant upmn a fee basis, holds a "civilian
office or ponition", within the neaning cf those words as used in
section 212 nf the Economy Act. The term "compensation" in its
renerally accepted nerning embreces both "fees" and "salary" at
well es remuneretien received in any ?thereto= for services
rendered. The particular ease cited is one in whit!!! the Vetersesl
itaminl,atrstlon was involved, an the Comptroller stated:
"It would not appear the consultants the Veteran'
Adminintretion is desiroua of employing in the instant
matter w!ll perform or supervise duties and responsie
billties lepeeed by law upon the agency, or be under
the administrative control of an official of the
Goverm-ent in the usual sense. On the contrary, it
is undbratood that their employment will be in an
advisory cepacity".
The onion goes on to state that their duties will consist pri-
marily ef expreesine their views end giving their opinions and
recemeenAstions upon particular problems and enestions presented
to them for consideretion in consultation or otherwise by admini-
strativn effieers of th,N Government. Thereors, it Is concluded
in the opinion thet employment by Veterans' Administration of
former officers of the armed forces, retiree for disability, as
consultults upon a fee basis would not be in contravention of
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el 212 of the Economy Act -- no cound reason biting perceived
for regarding them as occupying an "office or position" vithin
the meaning of those terms as loped in said statute. The Veterans'
Administration had specifically pointed out that the Compensation
of such consultants was based on a specific amount per visit as
eifferfrtlated ri-om a per annway per diem, or other element basis.
4. In 26 Comp. Oen. 720, dated 31 March 1947, the Navy
Department desire, to employ a former Navy cfficer, retired for
Atimbility, by a personal service contract for employment. It
was held that persons employed by contract to perform duties
imposed by law upon an agency, end who are subject to control
and supervision of seministrative officers are employees holding
position under the United States Government. A naval officer
retired for disability incident to the aervice but not in combat
with the enemy, who is employed under a contract to perform
purely personal services, is subject to the provisions of Section
712 of the Feonomy Act (5 USCA 59a).
5. Iour merorantIllm of 9 4arch 1948 furnishes no intication
of the pronosed duties for 111111111111ii Conaequertly, this
office is not in a nosition to answer your specific! que STATINTLstion.
There shoulfi be sutrnitted 9 detailed explanation of the &Ales
which would be performed by the subject, On receipt of such
erplenstion, we shR11 be pleased to furnish yoa with our opinion
It:lather or not it rill be necessary that he elect to receive
Ma retired pay or the proposed per diem of $35.00 per day as
compensation for his services.
General CounselOSnmes
CCi
AY
STATINTL
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Ic
STATINTL