That statement was made in response to question 4 in the decision of December 7, 1962, as to whether an officer who becomes physically disabled while assigned to the AID Program would be entitled to (military) disability retired pay under the provisions of Chapter 61, Title 10, United States Code. In reaching an affirmative reply to that question it was pointed out that there is nothing in the Foreign Assistance Act of 1961 or its legislative history to suggest that Congress intended to deny retirement privileges under Chapter 61, Title 10, United States Code, to members of the Armed Forces while assigned to duty outside the United States under that act.

In view of the language appearing in the decision of December 7, 1962, the specific question now raised in the letter of May 27, 1963, relates to the annual and sick leave status of commissioned officer personnel of the United States Coast Guard while assigned to duty outside the United States under authority of section 625 (d) (1) of the Foreign Assistance Act of 1961.

The Foreign Service Act of 1946, Ch. 957, 60 Stat. 999-1040, 22 U.S.C. 801, et seq. (1946 Ed.), enacted August 13, 1946, to improve, strengthen and expand the Foreign Service of the United States, established in section 401 (60 Stat. 1002, 22 U.S.C. 861 (1946 Ed.)) the several categories of personnel, including Foreign Service Reserve officers and Foreign Service staff officers and employees, comprising the Foreign Service of the United States. In Title IX of the act (60 Stat. 1025–1030, 22 U.S.C. 1131-1158) certain specific allowances and benefits were prescribed for officers and employees of the Foreign Service, including those in the Foreign Service Reserve and Foreign Service Staff. Section 931 of the act authorized the Secretary of State, in his discretion, to grant annual leave under the conditions and to the extent therein prescribed, and section 932 related to sick leave (60 Stat. 1028, 22 U.S.C. 1146 and 1147, respectively (1946 Ed.)).

The annual and sick leave privileges of personnel of the Foreign Service of the United States, including members of the Foreign Service Reserve and Foreign Service Staff, were governed by the provisions of sections 931 and 932 of the Foreign Service Act of 1946 until those two sections were repealed effective January 6, 1952, by section 207(a) (6) of the Annual and Sick Leave Act of 1951, Ch. 631, approved October 30, 1951, 65 Stat. 682. Section 202 (a) of that act, 65 Stat. 679, 5 U.S.C. 2061 (a), in pertinent part provided, with the exceptions listed in subsection (b) thereof, 5 U.S.C. 2061 (b), not here material, that "Except as provided in subsection (b), this title [act] shall apply to all civilian officers and employees of the United States *." [Italics supplied.]

In the act of July 2, 1953, Ch. 178, 67 Stat. 136, section 202 of the Annual and Sick Leave Act of 1951 was amended by adding subsection (c), 5 U.S.C. 2061 (c), providing in pertinent part:

(c) (1) This title shall not apply to the following officers in the executive branch of the Government and officers of the government of the District of Columbia, including officers of corporations wholly owned or controlled by the United States:

(A) persons appointed by the President by and with the advice and consent of the Senate, or by the President alone, whose rates of basic compensation exceed the maximum rate provided in the General Schedule of the Classification Act of 1949, as amended;

(B) persons who receive compensation in accordance with section 411 of the Foreign Service Act of 1946; and

(C) such other officers (except postmasters, United States attorneys, and United States marshals) as may be designated by the President.

The provisions of section 202 (c) (1) (A), 5 U.S.C. 2061 (c) (1) (A), were restricted in their scope and operation by the act approved July 28, 1956, Ch. 770, section 17, 70 Stat. 708, 22 U.S. Code 1151, adding section 936 to the Foreign Service Act of 1946, as amended, reading as follows:

Sec. 936. The Annual and Sick Leave Act of 1951, as amended (5 U.S.C. 2061 and the following), shall apply to career ministers and Foreign Service officers, who are not serving as chiefs of mission or who are not serving in a position in the Department which requires appointment by the President, by and with the advice and consent of the Senate, and to Foreign Service Reserve officers who are commissioned as diplomatic or consular officers, or both, in accordance with section 524 of the Foreign Service Act of 1946, as amended, notwithstanding the provisions of section 202(c) (1) (A) of the Annual and Sick Leave Act of 1951, as amended.

It will be noted that section 936 was the only provision pertaining to annual and sick leave benefits contained in Title IX of the Foreign Service Act of 1946, as amended, when section 625 (d) (1) was enacted into law on September 4, 1961, as part of the Foreign Assistance Act of 1961, and those provisions do not appear to grant any leave benefits to the Coast Guard personnel here involved. Also, since the assignment of such commissioned officer personnel to duty outside the United States under authority of section 625 (d) (1) of the Foreign Assistance Act of 1961 "does not terminate the individual's membership in the Armed Forces of the United States" and "the member remains in the 'active service' of the Armed Forces"-see answers to questions 2 and 3 in decision of December 7, 1962-it seems obvious that such an individual is not a "civilian" officer or employee of the United States within the purview of section 202 (a) of the Annual and Sick Leave Act of 1951, as amended. Hence, since the sole exception now contained in Title IX of the Foreign Service Act of 1946, as amended (section 936), does not appear applicable in the case of commissioned officer personnel of the United States Coast Guard performing duty outside the United States under authority of section 625 (d)(1) of the 1961 law, such commissioned officer personnel would be left without

any annual or sick leave benefits during the period of their assignment outside the United States unless their military leave status under the provisions of 10 U.S.C. 701-704, as now prescribed in section 3, Public Law 87-649, September 7, 1962, 76 Stat. 492, remains undisturbed. We do not believe that Congress intended that members of the Armed Forces of the United States assigned to duty outside the United States under authority of section 625 (d) (1) of the Foreign Assistance Act of 1961 should be without annual and sick leave benefits and, therefore, it is concluded that such members are entitled to the leave benefits authorized for them incident to their membership in the Armed Forces. The question presented is answered accordingly.

[B-151771]

Awards Suggestions, Etc.-Authority-Inventions Outside Position

A nuclear physics invention which was developed outside the normal requirements of the duties of the position by an employee who received an award under Title X of the Classification Act of 1949, which authorizes awards for increased efficiency and economy in administration, may not be regarded as a contribution in the area of “administration” which pertains to organization, methods, procedures and utilization of personnel resulting in savings so as to be properly for award under Title X; therefore, if the award under Title X is set aside, the employee may receive a beneficial suggestion award under Title III of the Government Employees' Incentive Awards Act of 1954.

To the Secretary of the Navy, August 5, 1963:

On June 11, 1963, the Under Secretary of the Navy asked whether the Department of the Navy was precluded from making a beneficial suggestion award under the Government Employees' Incentive Awards Act of 1954, 68 Stat. 1112, 5 U.S.C. 2121-2123, to Dr. Alvin Radkowsky because he previously had been the recipient of an award of $750 for the same suggestion under Title X of the act of October 25, 1949, 63 Stat. 971, 5 U.S.C. 1152, which Title now is superseded.

In that regard the Under Secretary urges that nothing in Title X would have precluded an award under section 14 of the act of August 2, 1946, 60 Stat. 809, 5 U.S.C. 116a, also superseded, though the acceptance of a cash award under section 14 would have constituted an agreement that the use by the United States of the suggestion, for which the award was made should not form the basis of a further claim against the Government. Section 102 ́s) of Title X. 5 US.C. 1152(e) (1952 Ed.), provided only that a wash award under that Tibe would be in lieu of a reward for superior accomplishment her section 702, Title VII of the 1942 act, & US.C. 1122 (132 FA.,. While we concur in the Under Secretary's view that the express language of Title X does not sperically prohibit an award under

I

section 14 of Public Law 600, or possibly under Title III of the Government Employees' Incentive Awards Act, Public Law 763; nevertheless, an award under section 14 of Public Law 600 would have barred a claim under Title X. Similarly, an award under Title X would have precluded an award under Title VII of the same act. In short, there is substantial evidence in the statutes referred to that the Congress would not have viewed favorably a policy of dual awards.

The purpose of the awards authorized by Title X of the 1949 statute is shown by reference to section 1002(b) of that act, 5 U.S.C. 1152(b) (1952 Ed.), which reads in part as follows:

(b) It shall be the duty of the Efficiency Awards Committee (1) to identify those supervisors and employees within the department whose superior accomplishments have contributed to outstanding efficiency and economy in administration

Individual cash awards under this section were limited to not to exceed an amount equal to three steps in the applicable grade. Title X appears to have been enacted to meet a specific need in the field of administration repeatedly adverted to by Senator Russell B. Long in his conduct of the hearings on S. 558 and related bills concerning the revision of the Classification Act of 1923, as amended, 5 U.S.C. 661, et seq. (1946 Ed.). See Hearings before a Subcommittee of the Committee on Post Office and Civil Service, United States Senate, 81st Congress on S. 558, S. 559, S. 1762, S. 1772, S. 1790, May 1949. Senator Long consistently sought to develop the idea that employees and supervisors should be rewarded for contributing to efficiency and economy in administration. The objective of the authorizing legislation appears to have been limited. '

We note that H.R. 4586, 79th Congress—an earlier version of H.R. 6533, which became Public Law 600-authorized cash awards for suggestions and "inventions" resulting in improvement or economy in the operation of the Government. While the language "or inventions" subsequently was deleted from the bill that became law, still section 14, as enacted, was broader than the area covered by Title X. Where Title X authorizes awards only for increased efficiency and economy in administration, section 14 authorizes awards for improvement or economy in the various phases of operation of the Government and would appear to cover suggestions or inventions of the type made by Dr. Radkowsky. These awards were for adopted suggestions outside the normal requirements of the duties of the employee's position.

In the light of the history of Title X, our view is that the term "administration" is used as a word of art pertaining primarily to organization, methods, procedures, and utilization of personnel and that awards under that Title should have been limited to savings resulting from improvements in those areas. Section 4 (6) of Bureau of the

Budget Circular No. A-8, Supplement No. 1, February 28, 1950, provides that a cash award under Title X may be granted to an employee for savings made in the conduct of his own operations. In contrast, the contribution of Dr. Radkowsky is described as an invention, as a new concept in the field of nuclear physics, and as a principle developed outside the normal requirements of the duties of his position.

Because of the nature of Dr. Radkowsky's contribution, we are of the opinion that Title X was not a proper authority under which to make his award, since the contribution cannot be said to be one in the area of administration as that term is used in Title X. Therefore, if that award be set aside we are aware of no legal reason in this particular case why his contribution may not be considered for an award under Title III of Public Law 763.

[B-151843]

Pay-Retired-Annuity Elections for Dependents-Time for Election-Elections on Date of Amendatory Act

A member of the uniformed services with nearly 16 years of service who executed a survivorship annuity election for his wife on October 4, 1961, the same day that the President signed Public Law 87-381 which restricted from participation in the Retired Serviceman's Family Protection Plan the beneficiaries of members electing under the plan who retire for physical disability before completing 18 years of service and thereafter die of a service-connected disability, may not have the election considered as an election made before the date of the act to come within the savings provisions in section 8 and while the time the President signed the act on October 4, 1961, is not material, there is no evidence that actually proves that the act was signed after the time that the member executed his election; therefore, a survivor annuity is not payable to the widow incident to the member's death in December 1961 as the result of a service-connected disability.

To Lieutenant Colonel J. L. Clancy, Department of the Army, August 5, 1963:

By first indorsement, dated July 3, 1963, the Office of the Chief of Finance, Department of the Army, forwarded your letter dated May 24, 1963, requesting an advance decision as to the propriety of effecting a survivor annuity payment under the Uniformed Services Contingency Option Act of 1953, 67 Stat. 501, 10 U.S.C. 1431, et seq. (1958 Ed.), of $3,308.88, covering the period December 1, 1961, to April 30, 1963, on a voucher stated in favor of Ruby P. Munford, as unremarried widow of Major Robert A. Munford, O57448, retired, deceased. Your request was allocated D.O. Number 713 by the Department of Defense Military Pay and Allowance Committee.

It appears from the copies of the documents and papers accompanying the voucher that one Captain Rognar P. Johnson, Jr., Assistant Chief, Military Personnel Branch, Brooke General Hospital, Fort Sam Houston, Texas, on October 2, 3, and 4, 1961, counseled Major