DEAR ADMIRAL NIMITZ:

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP60-00442R000100030062-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 9, 2016
• Document Release Date: August 10, 2000
• Sequence Number: 62
• Publication Date: March 7, 1951
• Content Type: LETTER

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COMPTROLLER GENERAL OF THE UNITED STATES
Washington 25
B-101555 March 7, 1951
Fleet Admiral Chester W. Nimitz, Chairman
President's Commission on Internal Security
and Individual Bights
Pursuant to your request, there has been referred to this Office
for decision the question whether you legally may accept the compen-
sation as Chairman of the President's Commission on Internal Se-
curity and Individual Rights in addition to the pay ana allowances
you now receive as Fleet Admiral of the Navy.
The said Commission was established by Executive Order No. 10207
dated January 23, 1951, for the specific purpose of studying problems
of providing for the internal security of this country and at the
same time protecting the rights and freedom of individuals. It is
charged with the duty of making a report to the President of its
findings and conclusions, And, under the terms of the said Executive
order, unless otherwise directed by the President, it shall cease
to exist 30 days after presentation of its final report. The
President designated you as Chairman of the Commission and by letter
dated January 30, 1951, fixed the compensation of the Chairman and
each member of the Commission at the rate of $75 per day "for each
day that he is engaged in the business of the Commission or is travel-
ing in connection with such business." Traveling expenses also were
authorized in accordance with the provisions of section 5 of the
act of August 2, 1946, 5 U.S.C. (73b-2).
With respect to your status as a Fleet Admiral, it is understood
from the information available in this Office that you are on the
active list of the Navy in that capacity and receive the;active-duty
pay and allowances attached thereto,
Aside from the rule long recognized by this Office that active
duty in the armed forces is incompatible with a civilian employ-
ment status (18 Comp. Gen. 213 , 27 id. 510), there are two statutes
which operate to restrict civilian employment by the Goverment of
naval officers receiving active-duty pay.
The act of July 31, 1894, 5 U.S.C. 62, provides that:
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"No person who holds an office the salary or annual compensation
attached to which amounts to the sum of two thousand five hundred
dollars shall be appointed to or hold any other office to which
compensation is attached unless specially authorized thereto by law
***', If
In the instant case, it appears that since the functions of the
Commission in question are restricted to the accomplishment of a
specific objective, it necessarily is of a temporary duration,
and the Chairman and members thereof would not be regarded as holding
an office within the meaning of that term as used in the above-quoted
act. 13 Comp. Gen. 44+8; 14 id. 68. But, since the compensation
payable to the members of the Commission, as well as the active-duty
pay of a Fleet Admiral, is "salary" within the legal definition of
that term) the receipt of both compensations concurrently would be
in contravention of the act of May 10, 1.916, as amended, 5 U.S,C.
58, 5};(18 Comp. Gen. 526), which provides (quoting from the U. S.
Code):
" 58.
Double salaries.
"Unless otherwise specifically authorized by law, no money appro-
priated by any act shall be available for payment to any person re-
ceiving more than one salary when the combined amount of said salaries
exceeds the sum of $2,000 per annum.
11$ 9 59. Same; exceptions-retired officers and enlisted men of
Army Navy, Marine Corps, or Coast Guard 'or officerand enlisted
men of militia.
"Section 58 of this title shall not apply to retired officers
or enlisted men of the Army, Navy, Marine Corps, or Coast Guard, or
to officers and enlisted men of the 0r~;anized Militia and Naval
Militia in the several States, Territories, and the District of
Columbia."
Although application of the foregoing provisions is predicated
upon the basis that you are on the active list of the Navy as a
Fleet Admiral, this Office is aware of the circumstances connected
with your status in that respect and recognizes that there are some
grounds for the view that you might come within the spirit of the
above-quoted exception thereto, i.e., by considering your status as
being in the nature of a retired Navy officer, but receiving the. pay
and allowances of one in the active naval service. However, it should
be pointed out that even if such view be adopted the facts of your
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case would, nevertheless, fall squarely within the provisions of
section 212 of the act of June 30, 1932, 5 U.S.C. 59a, which are
in pertinent part as follows:
"(a) After June 30, 1932, no person holding a civilian office
or position, appointive or elective, under the United States Govern-
ment or the municipal government of the District of Columbia or
under any corporation, the majority of the stock of 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 account
of services as a 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 rate of compensation from such civilian office or
position, makes the total rate from both sources more that $3,00(); and
when the retired pay amounts to or exceeds the rate of $3,000 per
annum such person shall be entitled to the pay of the civilian office
or position or the retired pay, whichever he may elect. * * *"
Thus, in either event the result would be substantially the same
in that you would be precluded from receiving both emoluments con-
currently. Your original letter of February 18 to Mr. Harold E.
Benson and also the letter of February 15 to him from the Department
of the Navy are returned herewith as requested.
Sincerely yours,
(Signed) FRANK L. YATES
Acting Comptroller General
of the United States
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