Whether a Commissioned Military Officer May Retain His Commission If He Accepts a Presidential Appointment as Administrator of General Services or a Presidential Designation as Acting Administrator ( 1979 )

April 10, 1979
79-23 MEMORANDUM FOR THE GENERAL
COUNSEL, GENERAL SERVICES
ADMINISTRATION
Military Officer—Appointments to Civil Office—
Administrator of General Services—Effect on
Military Office— 10 U.S.C. § 973; 40 U.S.C.
§ 751(c)
This responds to your letter o f March 27, 1979, inquiring: first, whether
a commissioned military officer can retain his commission if he accepts a
Presidential designation as Acting A dm inistrator o f General Services; and
second, whether the officer can retain his commission if subsequently ap­
pointed as Adm inistrator. In our opinion, both questions must be
answered in the negative; indeed, we believe that he may not be designated
as Acting Adm inistrator. Section 973(b) o f Title 10 U.S. Code, provides:
(b) Except as otherwise provided by law, no officer on the active
list o f the Regular Army, Regular Navy, Regular Air Force,
Regular Marine Corps, or Regular Coast G uard may hold a civil
office by election or appointm ent, whether under the United
States, a Territory or possession, or a State. The acceptance of
such a civil office or the exercise o f its functions by such an of­
ficer terminates his military appointm ent.
(We assume that the officer in question is on the active list.) The accept­
ance o f a civilian office or the exercise o f its functions by such an officer
thus terminates his military appointm ent unless otherwise provided by
law.
With respect to your first question, the legal mem orandum o f law o f
your office takes the position that such an exception is found in § 101(c)
o f the Federal Property and Administrative Services Act o f 1949, 40
U .S.C . § 751(c). It provides in substance that, in the event o f a vacancy in
the Office o f the A dm inistrator o f General Services, the Deputy A d­
m inistrator shall be Acting Adm inistrator o f General Services unless the
President shall designate “ another officer o f the G overnm ent.”
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Although you have not raised the issue, a threshold question is whether
a commissioned military officer on the active list is “ another officer o f the
Governm ent” within the meaning o f § 101(c). Your m em orandum points
to the close relationship between § 101(c) and the provisions o f the Va­
cancy Act, 5 U .S.C . §§ 3345-3349, in particular 5 U.S.C. § 3347. That sec­
tion authorizes the President to fill a vacancy in an executive or military
department on a temporary basis by directing an officer in an Executive or
military departm ent, appointed by the President by and with the advice
and consent o f the Senate, to perform the duties o f the office during the
vacancy.' While it is true that the Vacancy Act itself is not applicable to
the General Services Adm inistration,2 the interpretation given o f the
phrase in § 3347 “ officer in an executive or military departm ent” has a
significant bearing on the meaning o f “ officer o f the G overnm ent” in
§ 101(c).
Attorney General Wickersham ruled in 1909 that not every commis­
sioned military officer is “ an officer in a departm ent” eligible to be
designated by the President under R.S. § 179, the predecessor o f 5 U.S.C.
§ 3347. 28 Op. A .G . 95. He concluded that the only military officers eligi­
ble for designation under R.S. § 179 are those who hold statutory offices
in a departm ent, such as the chiefs o f its several bureaus, whose appoint­
ments are provided for by law (pp. 97-98). Again, in 1919 Attorney
General Palmer ruled that while the War Department is an executive
departm ent, the Army is not a part o f the W ar Departm ent, so that an of­
ficer in the Army is not by virtue of that fact alone an officer in the
Department o f the Army. 31 Op. A .G . 471. This distinction between the
military departm ents and the military services was also recognized by the
Comptroller o f the Treasury and the Comptroller General. 19 Comp. Dec.
834 (1913); 17 Comp. Gen. 1066 (1938).
We realize, o f course, that 5 U.S.C. § 3347 uses the term “ officer in an
Executive or military departm ent,” while the corresponding language of
§ 101(c) reads “ another officer o f the G overnm ent.” Both statutes,
however, deal with the same subject m atter—the tem porary filling of
vacancies in the executive branch. Hence, they are in pari materia and
should be interpreted in a manner consistent with one another. United
States v. Jefferson Electric C o., 291 U.S. 386, 396 (1934); Hynes v.
Grimes Packing Co., 337 U.S. 86, 116 (1949). We cannot impute to C on­
gress the intent that a commissioned military officer on active duty cannot
serve in an acting capacity in any o f the executive or military departm ents,
1 We also assume that the officer in question has been appointed by the President with the
advice and consent o f the Senate. Pursuant to 5 U .S.C . § 3348 such a direction cannot endure
for more than 30 days beginning with the date when the vacancy occurred. It should be noted
that § 101(c) does not contain a time limitation.
2 The General Services Adm inistration is not one o f the executive or military departm ents
enumerated in 5 U .S.C . §§ 101, 102, but an independent establishment as defined in 5 U.S.C.
§ 104. Moreover, we believe that the special provisions o f § 101(c) supersede the general pro­
visions o f the Vacancy Act.
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but is nevertheless qualified to serve as an Acting Adm inistrator of
General Services. We therefore conclude that the phrase “ officer o f the
Governm ent” in § 101(c) must be given the same meaning as “ officer in an
Executive or military departm ent” used in 5 U .S.C . § 3347. It follows that
a commissioned military officer can be designated Acting Administrator
o f General Services only if he holds a statutory position in a military
departm ent. As far as we know, the military officer here involved does not
hold such a position.
But even if § 101(c) were to be construed to the effect that a military of­
ficer is an officer o f the Government within the meaning o f that provision,
it would not constitute a provision to the contrary within the meaning of
10 U .S.C . § 973(b). That section embodies an im portant policy designed to
maintain civilian control o f the Government. In Riddle v. Warner, 522 F.
(2d) 882, 884 (1st Cir. 1975) the court, while commenting on the history of
the legislation from which 10 U .S.C . § 973(b) is derived, pointed out:
A comment by the chairman o f the reporting committee,
however, shows that a principal concern o f the bill’s proponents
was to assure civilian preeminence in government, i.e., to prevent
the military establishment from insinuating itself into the civil
branch o f government and thereby growing “ param ount” to it.
See Cong. Globe, 41st Cong., 2d Sess. App. 150 (1870).3
T hat policy cannot be overcome implicitly by a broad and vague
statutory authority to designate an Acting A dm inistrator in the absence o f
express language stating that such designation is to be effective not­
withstanding the m andate o f 10 U .S.C . § 973(b). W here Congress wishes
to permit a military officer to occupy a civilian position on an acting basis
without forfeiting his commission, it has done so explicitly. See 10 U.S.C.
§§ 3017(b), 5036(c), 8017(b). We therefore are compelled to conclude that
even if § 101(c) were to be construed to authorize the President to
designate a military officer to be Acting Adm inistrator o f General Serv­
ices, his acceptance o f that office4 or the exercise o f its functions would
result in the term ination o f the officer’s military appointm ent.
We therefore conclude that a military officer who does not occupy a
statutory office in a military departm ent is not eligible for designation as
Acting A dm inistrator o f General Services and that, in any event, accept­
ance o f that office or the exercise o f its functions would result in the ter­
mination o f his military commission.
‘ For the legislative history o f that bill, see also C o n g r e s s i o n a l G l o b e 41st C ong., 2d
Sess., pp. 3394-3404.
4 The position o f an acting officer may not comply with the formal requirements o f tenure,
duration, emolum ents, and duties postulated as the elements o f an “ office” in United States
v. Hartwell, 73 U.S. (6 W all.) 385, 393 (1868). The A ttorneys General, however, have ruled
that if the prohibitions o f the predecessor statute 10 U .S.C . § 973(b) “ are to have any
substantial operatio n ,” the term “ officer” must be given a nontechnical interpretation and
that the policy o f the statute points to a very broad interpretation o f the term “ civil officer.”
15 O p. A .G . 551, 553 (1876); 18 O p. A .G . 11, 12 (1884); 35 O p. A .G . 187, 189 (1927).
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Your second question asks whether a military officer could be ap­
pointed Adm inistrator o f General Services without forfeiting his commis­
sion. Your request and the mem orandum o f law attached to it do not con­
tain any authority in support o f that proposition. We are also not aware o f
any pertinent exceptions to the prohibition o f 10 U.S.C. § 973(b). I there­
fore am constrained to answer the question in the negative.
John M. Harm on
Assistant A ttorney General
Office o f Legal Counsel
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