position in the Soil Conservation Service from December 26, 1935, he acquired a status for classification in the civil service, pursuant to the provisions of the act of April 27, 1935, c. 85, sec. 4 (2), 49 Stat. 163, 164, and section 6 of Civil Service Rule II. The Commission believes, however, that section 1222 of the Revised Statutes rendered the civil and military positions heretofore described incompatible, with the result that the military status of Mr. Morris precluded civil employment of him in another branch of the Government. The Department of Agriculture feels that the civil appointment was legal but that acceptance of it by Mr. Morris vacated his commission as a Reserve officer. The Judge Advocate General of the Army, on the other hand, is of the opinion that an officer in the Officers' Reserve Corps of the Army, under the circumstances of this case, legally may be appointed to a civil office under the Government while on military leave of absence with pay from active duty with the Army.

The specific questions presented by the Commission are: "(1) Whether Mr. Morris was legally appointed to a civilian position while in an active duty status with the United States Army;

"(2) If such appointment could not legally have been consummated, whether any adjustment of military service may now be effected, such as retroactive termination, prior to December 26, 1935, and refund of appropriate salary; and "(3) If answer to (2) is in the affirmative, under what conditions?"

The pertinent statutory provisions are as follows:

"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." (R. S. sec 1222; U. S. C., title 10, sec. 576.)

"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

(Act of July 31, 1894, c. 174, sec. 2, 28 Stat. 162, 205, as amended; U. S. C., title 5, sec. 62.)

Section 1222 of the Revised Statutes does not make Army officers ineligible for or preclude appointment of them to civil office. In fact, it contemplates that they may accept civil appointments and prescribes the consequences: that by doing so they cease to be officers of the Army and vacate their commissions. It follows, therefore, that the appointment of Mr. Morris as junior agronomist was not prohibited even if it be assumed that within the meaning of the section while on active duty with the Army he was an officer of the Army on the active list and that the two offices under consideration are incompatible. The decisions of the Comptroller of the Treasury to which my attention has been called are not to the contrary (24 Comp. Dec. 502; 25 Comp. Dec. 666). They merely held that civil employment would not be authorized while officers continued to retain their commissions in the Army. The officers there involved had not accepted civil appointment and the consequences of so doing were not considered.

However, in my opinion section 1222 is not applicable to Mr. Morris because his status as a Reserve officer on active duty with the Army was quite different from that of an officer of the Regular Army on the active list. The distinction is evidenced by the various statutes respecting Reserve officers and the practice of the War Department over a period of many years.

The Army of the United States consists, among other branches, of the Regular Army and the Officers' Reserve Corps (act of June 15, 1933, c. 87, sec. 1, 48 Stat. 153). The Officers' Reserve Corps was created by section 37 of the National Defense Act of 1916 for the purpose of providing a reserve of officers available for military service when needed (act of June 3, 1916, sec. 37, as amended by sec. 3 of the act of June 15, 1933, supra, 48 Stat. 154). Appointments, which are for a period of 5 years, are made by the President alone in grades below that of brigadier general, and with the consent of the Senate in the case of general

officers (48 Stat. 151). Although Reserve officers are commissioned in the Army of the United States, they are Reserve officers and not officers of the Regular Army (48 Stat. 154). By virtue of their commissions or active duty with the Army they do not embark exclusively on military careers, and except during emergencies expressly declared by the Congress they may not be employed on active duty for more than 15 days in any 1 calendar year without their consent (sec. 37 (a) of the National Defense Act of 1916, as amended by sec. 32 of the act of June 4, 1920, c. 227, 41 Stat. 759, 776; U. S. C., title 10, sec. 369).

While not on active duty members of the Officers' Reserve Corps are not deemed to be officers or employees of the United States, or persons holding any office of trust or profit or discharging any official function under or in connection with any department of the Government (48 Stat. 154, 155, supra). Officers and employees of the United States or of the District of Columbia who are members of the Officers' Reserve Corps are entitled to leave of absence from their duties without loss of pay, time, or efficiency rating on all days not exceeding 15 in any 1 calendar year during which they are ordered to duty with troops or at field exercises, or for instructions, and when relieved are to be restored to the positions held when ordered to duty (act of May 12, 1917, c. 12, 40 Stat. 40, 72; U. S. C., title 10, sec. 371).

The statute contemplates that upon completion of their military service Reserve officers will be returned to their normal pursuits in civil life. Although they have elected to perform military service when needed, their vocations are in civil life and not in the Army. Unlike officers of the Regular Army, Reserve officers may be discharged at any time in the discretion of the President (48 Stat. 154, supra). Also, unlike officers of the Regular Army, they are not entitled to retirement or retired pay and are eligible for pensions only for disability incurred in line of duty while in active service or while serving with the Army (sec. 47 (b) of the National Defense Act of 1916, amended by sec. 34 of the act of June 4, 1920, c. 227, 41 Stat. 777, 778). Reserve officers are not entitled to military pay and allowances

except while on active duty, including duty for training purposes, when they receive the pay and allowances of officers of the Regular Army (sec. 37 (a), National Defense Act of 1916, as amended, supra; act of March 4, 1923, c. 281, sec. 1, 42 Stat. 1507; U. S. C., title 10, secs. 361, 366).

A situation analogous to that now under consideration was presented in the case of an officer in the Volunteer Army during the war with Spain. The Solicitor General in an opinion of June 10, 1898, approved by Attorney General Griggs held that section 1222 of the Revised Statutes applied only to officers of the Regular Army and not to an officer in the Volunteer Army. In the course of his opinion, which seems equally applicable to officers of the Officers' Reserve Corps, the Solicitor General observed:

"When, therefore, section 1222 places a restriction on every 'Army officer on the active list,' it plainly refers to Regular Army officers. An Army officer on the active list is one not only actively but permanently engaged in the military service of the Government. Having chosen the Army for his career, and being actively engaged therein, the statute properly prohibits him from accepting or exercising the functions of a civil office.

"While an officer in the Volunteer Army may be said to be actively engaged in the military service, he is not permanently so engaged. He is called out to meet an emergency, and must be discharged when the purpose for which he entered the service has been accomplished. Unlike the Regular Army officer, he has not selected the military service for a profession. He has simply responded to a patriotic call, and expects, when the war is over, to return to civil life. His term of military service is uncertain and contingent. He may be taken from his civil duties for a few months, for a year, for 2 years at the most. The Government does not need nor demand a complete and final severance of his relations with civil life. He may be able to make arrangements to bridge over his absence, and on his return resume his former work. Whether he is to be permitted to do this, and retain a civil office during a temporary absence, is a matter for determination by those to

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whom he is accountable for the proper discharge of the duties of such office." [22 Op. 88, 90.]

The Judge Advocate General of the Army in his "second endorsement" of October 11, 1938, expressed the view, concurred in by the War Department October 13, 1938, that:

"The foregoing opinion [22 Op. 88, supra] has been considered as authority for the view that section 1222, Revised Statutes, applies only to officers of the Regular Army on active duty, and has been followed by the War Department for many years (JAG 210.4, Sept. 5, 1918; JAG 013.2, Sept. 30, 1918; JAG 210.4, Nov. 4, 1918)."

There is no indication that the temporary active duty status of Mr. Morris interfered in any way with the holding of the civil office or the performance of its duties or that his occupancy of the civil office or the exercise of its functions interfered with his duties as a member of the Officers' Reserve Corps. Under the circumstances I do not think that the two positions were incompatible.

Adverting, in conclusion, to the act of July 31, 1894, supra, as amended, the prohibition therein applies only to one who holds an office the salary or annual compensation attached to which amounts to the sum of $2,500. The Judge Advocate General advises that the military rate of pay to which Mr. Morris was entitled on December 26, 1935, while on active duty was $125 per month and that the rental and subsistence allowances were $40 and $18 per month, respectively. I have also been advised informally by the Department of Agriculture that during the period from December 26, 1935, to January 16, 1936, the annual compensation of Mr. Morris as junior agronomist amounted to $2,000. Since the salary or annual compensation attached to each office was less than $2,500, Mr. Morris was not rendered ineligible either for appointment to the position of junior agronomist or to hold the office in the Officers' Reserve Corps.

For the reasons indicated, your first question is answered in the affirmative and it is, therefore, unnecessary to answer the other two.

Respectfully,

HOMER CUMMINGS.