       Whether a Military Officer May Continue on Terminal
        Leave After He Is Appointed to a Federal Civilian
           Position Covered by 10 U.S.C. § 973(b)(2)(A)
An active duty military officer on terminal leave who meets the requirements of 5 U.S.C. § 5334a may
  continue on terminal leave status after his appointment or election to a position covered by 10
  U.S.C. § 973(b)(2)(A).

                                                                                  March 24, 2016

     MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY GENERAL COUNSEL
                DEPARTMENT OF HOMELAND SECURITY

   You asked whether an active duty military officer on terminal leave may con-
tinue on terminal leave status after being appointed or elected to a position
covered by 10 U.S.C. § 973(b)(2)(A), a provision that prohibits active duty
military officers from holding certain civilian offices in the federal government.1
We advised you orally and by e-mail that a military officer appointed or elected to
such a position may continue on terminal leave status.2 This opinion further
memorializes and explains the basis for that advice. In brief, section 973(b)(2)(A)
provides that an active duty military officer may hold a covered position if doing
so is “otherwise authorized by law,” and another statute, 5 U.S.C. § 5534a,
specifically permits “[a] member of a uniformed service” on “terminal leave” to
accept “a civilian office or position in the Government of the United States” and to
“receive the pay of that office or position in addition to pay and allowances from
the uniformed service for the unexpired portion of the terminal leave.” In light of 5
U.S.C. § 5534a, an officer on terminal leave status is in our view “authorized by
law” to serve in a position covered by 10 U.S.C. § 973(b)(2)(A).

                                                 I.

   We begin with the relevant background and statutory text. Section 973(b)(2)(A)
of title 10 of the United States Code generally prohibits active duty military


    1
      E-mail for Rosemary Hart, Office of Legal Counsel, from Joseph B. Maher, Principal Deputy
General Counsel, U.S. Department of Homeland Security (June 23, 2015 6:58 PM) (“Maher E-mail”).
    2
      See E-mail for Joseph B. Maher, Principal Deputy General Counsel, U.S. Department of Home-
land Security, from Brian M. Boynton, Deputy Assistant Attorney General, Office of Legal Counsel
(Aug. 20, 2015 2:33 PM). In reaching this conclusion, we also considered the views of the Department
of Defense, as expressed in a telephone conversation between Brian M. Boynton, Deputy Assistant
Attorney General, Office of Legal Counsel, Paul S. Koffsky, Deputy General Counsel, Department of
Defense, Steven T. Strong, Associate Deputy General Counsel, Department of Defense, Joseph B.
Maher, Principal Deputy General Counsel, U.S. Department of Homeland Security, and Neal Swartz,
Associate General Counsel, U.S. Department of Homeland Security, on June 29, 2015.




                                                 1
                  Opinions of the Office of Legal Counsel in Volume 40


officers from holding certain high-level civilian offices in the federal government.
In particular, it provides:

       Except as otherwise authorized by law, an officer to whom this sub-
       section applies may not hold, or exercise the functions of, a civil of-
       fice in the Government of the United States—

          (i) that is an elective office;

          (ii) that requires an appointment by the President by and with the
          advice and consent of the Senate; or

          (iii) that is a position in the Executive Schedule under sections
          5312 through 5317 of title 5.

Paragraph 1 of section 973(b) explains that the prohibition on holding or exercis-
ing the functions of covered offices applies to “regular officer[s] of an armed force
on the active-duty list (and . . . regular officer[s] of the Coast Guard on the active
duty promotion list),” as well as to retired and reserve officers serving on active
duty in certain circumstances.
    Your question concerns the application of section 973(b)(2)(A)’s prohibition on
federal civil office holding to members of the military on terminal leave. “‘Termi-
nal leave’ is ‘a term of art originating during World War II’ meaning ‘a leave of
absence granted at the end of one’s period of service.’” Rate of Accrual of Annual
Leave by a Civilian Employee Appointed While on Terminal Leave Pending
Retirement From One of the Uniformed Services, 31 Op. O.L.C. 218, 218 (2007)
(quoting Terry v. United States, 97 F. Supp. 804, 806 (Ct. Cl. 1951)). An officer
on terminal leave is considered to be on active duty status. See id. at 219; see also
Madsen v. United States, 841 F.2d 1011, 1013 (10th Cir. 1987) (“Terminal leave,
or leave taken prior to discharge, is statutorily defined as active duty service.”
(citing 10 U.S.C. § 701(e) (1982))). Thus, a military officer on terminal leave is
subject to section 973(b)(2)(A)’s general prohibition.
    A different statute, 5 U.S.C. § 5534a, establishes rules for dual pay and em-
ployment during an officer’s period of terminal leave. In relevant part, section
5534a provides:

       A member of a uniformed service who has performed active service
       and who is on terminal leave pending separation from, or release
       from active duty in, that service under honorable conditions may ac-
       cept a civilian office or position in the Government of the United
       States, its territories or possessions, or the government of the District
       of Columbia, and he is entitled to receive the pay of that office or
       position in addition to pay and allowances from the uniformed ser-
       vice for the unexpired portion of the terminal leave.



                                            2
             Whether a Military Officer May Continue on Terminal Leave


   As you pointed out in your request for advice, under one view of these statutes,
“[section] 5534a serves as an affirmative authority [for military members on
terminal leave to hold covered positions] that fits within the qualification of
[section] 973(b)(2)(A) stating that its prohibition applies ‘[e]xcept as otherwise
authorized by law.’” Maher E-mail. Under another view, “[section] 973[(b)(2)(A)]
provides the more specific rule regarding military officers appointed to certain
[civilian positions in the federal government] and would therefore prohibit
continuation of military status (i.e., terminal leave) upon appointment” to a
covered position. Id. The Department of Defense (“DoD”) holds the latter view.
For the reasons explained below, we believe the first is the better reading of the
two statutes, and therefore conclude that an officer on terminal leave status is
“authorized by law” to hold a position covered by section 973(b)(2)(A).

                                        II.

                                        A.

   We first analyze the text of sections 973(b)(2)(A) and 5534a. The Supreme
Court has explained that, where two statutes govern the same subject matter, “‘the
rule is to give effect to both if possible.’” Morton v. Mancari, 417 U.S. 535, 551
(1974) (quoting United States v. Borden Co., 308 U.S. 188, 198 (1939)); see also,
e.g., FCC v. NextWave Personal Commc’ns, 537 U.S. 293, 304 (2003); J.E.M. Ag
Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 143–44 (2001); Vimar
Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995); Ruckel-
shaus v. Monsanto Co., 467 U.S. 986, 1018 (1984). “Only where a harmonious
construction of two statutes is impossible should one be construed as overriding or
implicitly repealing the other.” The Department of Justice Inspector General’s
Access to Information Protected by the Federal Wiretap Act, Rule 6(e) of the
Federal Rules of Criminal Procedure, and Section 626 of the Fair Credit Report-
ing Act, 39 Op. O.L.C. ___, *7 (July 20, 2015) (citing Morton, 417 U.S. at 551),
http://www.justice.gov/olc/opinions.htm.
   Although section 973(b)(2)(A) and section 5534a govern the same subject
matter—whether active duty military officers may hold civilian positions in the
federal government—they are not, in our view, irreconcilable. As described above,
section 973(b)(2)(A) provides that active duty officers may not hold certain
federal civilian offices “except as otherwise authorized by law.” 10 U.S.C.
§ 973(b)(2)(A). Section 5534a permits active duty military members on terminal
leave to accept civilian offices and to be paid as employees of the federal govern-
ment. In other words, pursuant to section 5534a, active duty military members,
including officers, who are on terminal leave are specifically “authorized by law”
to hold civilian offices. Officers to whom section 973(b)(2)(A) would otherwise
apply are therefore exempted from the statute’s prohibition by virtue of their
terminal leave status. In contrast, officers who are not on terminal leave and are



                                        3
                 Opinions of the Office of Legal Counsel in Volume 40


not “otherwise authorized by law” to hold covered positions remain subject to
section 973(b)(2)(A). So understood, section 973(b)(2)(A) and section 5534a do
not conflict, but rather co-exist as part of a single, coherent statutory scheme.
    As noted above, DoD disagrees with this interpretation. As we understand its
position, DoD believes section 973(b)(2)(A)’s “otherwise authorized by law”
exception covers only statutes that refer to specific civilian offices, and not
statutes like section 5534a that authorize a class of active duty officers to hold
civilian positions. Further, in DoD’s view, section 973(b)(2)(A) is more specific
than section 5534a and was enacted later in time. As a result, DoD believes that
section 973(b)(2)(A) must be understood to override section 5534a. See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (where
“a general permission or prohibition is contradicted by a specific prohibition or
permission . . . the specific provision is construed as an exception to the general
one”); Tenn. Gas Pipeline Co. v. FERC, 626 F.2d 1020, 1022 (D.C. Cir. 1980)
(finding that a “latter law” controls an earlier one (citing C. Dallas Sands, 2A
Sutherland on Statutory Construction § 51.03, at 300 (4th ed. 1972))).
    We disagree with this position for a number of reasons. Most fundamentally,
we believe section 973(b)(2)(A)’s “otherwise authorized by law” exception
includes authorization under section 5534a. DoD is correct that Congress has
enacted statutes specifically authorizing active duty officers to hold certain
positions subject to section 973(b)(2)(A)’s prohibition. See 10 U.S.C. § 528
(authorizing military officers to hold certain positions in the Intelligence Commu-
nity, including CIA Director); see also id. §§ 3017(b), 5036(c), 8017(b) (1982)
(noting that, if an active duty military officer temporarily acted as Secretary of the
Army, Navy, or Air Force, such service should not “be considered as the holding
of a civil office within the meaning of section 973(b)”); cf. 40 U.S.C. § 311(c)
(authorizing the Administrator of the General Services Administration to “use the
services” of “armed services personnel” “[n]otwithstanding section 973 of title
10”). But nothing in the provision’s text indicates that the “otherwise authorized
by law” exception should be read to apply only to those statutes, and not to more
general authorizations, as its plain language would suggest. The provision does
not, for example, prohibit a military officer from holding a covered position
“except as otherwise authorized by a statute expressly referring to section 973(b),”
or “except as otherwise authorized by a statute referring to a specified position.”
The provision’s “otherwise authorized by law” clause also does not list specific
statutes authorizing active duty officers to hold particular civilian offices. Com-
pare 16 U.S.C. § 2403(b)(1) (“It is unlawful for any person, unless authorized by a
permit issued under this chapter . . . to dispose of any waste in Antarctica (except
as otherwise authorized by the Act to Prevent Pollution from Ships)”). Absent
some basis in the language of section 973(b)(2)(A) to construe the phrase “other-
wise authorized by law” narrowly, and in light of the principle that competing
statutes should be interpreted harmoniously whenever possible, we see no reason
to exclude section 5534a from the reach of section 973(b)(2)(A)’s exception.



                                          4
              Whether a Military Officer May Continue on Terminal Leave


    Because 10 U.S.C. § 973(b)(2)(A) can be read in harmony with 5 U.S.C.
§ 5534a, there is no need to resort to the canons of statutory construction on which
DoD relies—the “rule of relative specificity” and the principle that a later-enacted
statute will control an earlier one. See, e.g., Nat’l Cable & Telecomm. Ass’n v.
Gulf Power Co., 534 U.S. 327, 335–36 (2002) (“It is true that specific statutory
language should control more general language when there is a conflict between
the two. Here, however, there is no conflict.”); Nat’l Ass’n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 662 (2007) (“We will not infer a statutory
repeal unless the later statute expressly contradict[s] the original act or unless such
a construction is absolutely necessary . . . in order that [the] words [of the later
statute] shall have any meaning at all.” (alterations in original) (internal quotation
marks omitted)). But even if those canons were applicable, neither would compel
the reading of the relevant statutory provisions DoD advances.
    We agree that section 973(b)(2)(A) is more specific than section 5534a with
respect to the federal civilian positions it covers. It applies only to elected,
presidentially appointed, and Executive Schedule offices, while section 5534a
applies to all civilian offices and positions in the federal government. Additional-
ly, section 973(b)(2)(A) applies only to “officer[s]” in the military, while section
5534a applies to all “member[s] of a uniformed service.” But section 5534a is
more specific with respect to the status of the active duty military members to
whom it applies. Where section 973(b)(2)(A) applies to all “regular officer[s] of
an armed force on the active-duty list (and . . . regular officer[s] of the Coast
Guard on the active duty promotion list),” as well as to certain retired and reserve
officers, see 10 U.S.C. § 973(b)(1), section 5534a applies only to members of the
military on terminal leave. Section 5534a thus applies to a category of military
members in a very specific situation: those who are nearing the end of their
military service and are using the unexhausted portion of their accumulated leave
prior to separation. As we have previously noted, where competing statutory
provisions are “more specific” in one respect but “less specific” in another, the
rule of relative specificity is unhelpful in resolving the conflict between them. See
Restrictions on Travel by Voice of America Correspondents, 23 Op. O.L.C. 192,
195 n.2 (1999) (“We cannot resolve the issue by turning to the principle that,
absent a clear intention to the contrary, a specific statute controls a general one.
Although the statutes on which the State Department relies are the more specific
ones on the question of safety, they are less specific on the question of VOA’s
freedom to report the news.” (citation omitted)); cf. Gulf War Veterans Health
Statutes, 23 Op. O.L.C. 49, 52 (1999) (finding the rule inconclusive where “the
two provisions are at the same order of specificity”). Accordingly, we do not
believe the rule of relative specificity would be dispositive here even if it applied.
    We are also unpersuaded by DoD’s reliance on the principle that a later enact-
ment controls an earlier one. Although, as explained below, section 973(b) was
amended to take its current form in 1983, the prohibition on military officers
serving in federal civilian offices has existed in some form since 1870. The



                                          5
                 Opinions of the Office of Legal Counsel in Volume 40


authorization for military members on terminal leave to hold civilian offices, in
contrast—now section 5534a—originated in 1945. It is thus unclear how this
“later in time” canon would apply here. Moreover, even if section 973(b)(2)(A)
were in all relevant respects a later-enacted provision, we do not believe its
priority of enactment would be sufficient to demonstrate that it was intended to
override section 5534a. The Supreme Court has explained that “[w]hile a later
enacted statute . . . can sometimes operate to amend or even repeal an earlier
statutory provision . . . , ‘repeals by implication are not favored’ and will not be
presumed unless the ‘intention of the legislature to repeal [is] clear and manifest.’”
Defenders of Wildlife, 551 U.S. at 662 (quoting Watt v. Alaska, 451 U.S. 259, 267
(1981) (alteration in original)). Here, DoD’s reading would compel the conclusion
that the 1983 amendment to section 973(b) implicitly repealed section 5534a, at
least with respect to the military officers subject to section 973(b)(2)(A)’s
prohibition and the federal civilian offices to which the prohibition applies. But
nothing in the language of section 973(b)(2)(A) makes such an intent “clear and
manifest.”
   We thus conclude that the text of section 973(b)(2)(A) and section 5534a sup-
ports the conclusion that military officers on terminal leave who satisfy the
requirements of section 5534a may hold covered federal civilian offices notwith-
standing the general prohibition in section 973(b)(2)(A).

                                         B.

    In light of the plain language of section 973(b)(2)(A)’s “otherwise authorized
by law” exception, there is no need to consider the legislative history of section
973(b)(a)(A) and section 5534a. To the extent that that history is considered,
however, it supports the conclusion drawn from the text of the provisions, and
affirmatively suggests that Congress intended section 5534a to operate as an
exception to section 973(b)(2)(A).
    The prohibition on active duty military officers holding civilian positions dates
back to the years immediately following the Civil War. In 1870, Congress enacted
a statute providing that “it shall not be lawful for any officer of the Army of the
United States on the active list to hold any civil office, whether by election or
appointment, and any such officer accepting or exercising the functions of a civil
office shall at once cease to be an officer of the army, and his commission shall be
vacated thereby.” Act of July 15, 1870, ch. 294, § 18, 16 Stat. 315, 319. This
prohibition appeared as section 1222 of the Revised Statutes and was made part of
the United States Code in the 1925 edition as 10 U.S.C. § 576. See Rev. Stat.
§ 1222 (1st ed. 1875), 18 Stat. pt. 1, at 215 (“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.”);
10 U.S.C. § 576 (1925) (same).



                                          6
              Whether a Military Officer May Continue on Terminal Leave


   Section 5534a originated in the post-World War II period. Facing an influx of
soldiers returning from the War, Congress sought to ensure that members of the
military would not be forced to choose between forfeiting unused leave and taking
civilian positions in the federal government. A committee report accompanying
the precursor to section 5534a explained that, under then-current law, “[a]lthough
members of the armed forces on terminal leave may accept private employment
without forfeiting the pay and allowances to which they are entitled while on
terminal leave, they may not . . . accept employment in civilian positions under the
Federal Government and receive compensation for such employment concurrently
with the receipt of military pay and allowances.” H.R. Rep. No. 79-1163, at 1
(1945). To address that problem, Congress enacted the Act of November 21, 1945.
In relevant part, that law provided:

      Any person, who, subsequent to May 1, 1940, shall have performed
      active service in the armed forces, may, while on terminal leave
      pending separation from or release from active duty in such service
      under honorable conditions, enter or reenter employment of the
      Government of the United States, its Territories, or possessions, or
      the District of Columbia . . . and, in addition to compensation for
      such employment, shall be entitled to receive pay and allowances
      from the armed forces for the unexpired portion of such terminal
      leave at the same rates and to the same extent as if he had not entered
      or reentered such employment.

Pub. L. No. 79-226, sec. 1, § 2(a), 59 Stat. 584, 584; see also H.R. Rep. No. 79-
1163, at 2 (explaining the purpose of the proposed legislation).
   Notably, the committee report on the 1945 statute specifically cited the precur-
sor to section 973(b)(2)(A)—section 1222 of the Revised Statutes—as one of the
statutory obstacles to Army officers holding civilian positions in the federal
government. See H.R. Rep. No. 79-1163, at 1 (“Section 1222 of the Revised
Statutes also prohibits any officer of the Army on the active list from holding
civilian office.”). The report’s reference to section 1222 suggests that, at least in
the relevant House committee’s view, the new provision was intended to override
that limitation. And, citing this legislative history, the Comptroller General
concluded in 1946 that the 1945 precursor to section 5534a did just that. See 25
Comp. Gen. 677, 679 (1946). As the Comptroller General explained:

      [A]n examination of the legislative history of the said act of Novem-
      ber 21, 1945, discloses that the provisions of section 1222, along
      with the various statutes prohibiting dual employment and the receipt
      of double compensation, were particularly brought to the attention of
      the Congressional committee considering the proposed legislation.
      And that it was the intent of the Congress to authorize the benefits




                                         7
                    Opinions of the Office of Legal Counsel in Volume 40


        provided by the said 1945 statute notwithstanding the provisions of
        such laws, including section 1222, Revised Statutes, clearly appears
        from House Report 1163, accompanying S. 1036 (which, as amend-
        ed by the House of Representatives, became the act of November 21,
        1945), wherein specific mention is made of section 1222, Revised
        Statutes, as well as the dual employment and dual compensation
        statutes, as constituting existing legislation the provisions of which
        were intended to be avoided by enactment of the bill.

Id.3
    The relevant statutory provisions were subsequently revised and transferred,
but none of these changes suggests that Congress had a different view of the
relationship between the two provisions. In 1956, the precursor to section 973(b)
was amended and recodified as 10 U.S.C. § 3544(b). See Pub. L. No. 84-1028,
70A Stat. 1, 203 (1956). The language “[e]xcept as otherwise provided by law”
was added at this time. According to the Historical and Revision Notes in the 1958
version of the United States Code, “the words ‘Except as otherwise provided by
law’ [we]re inserted, since other laws enacted after the date of enactment of [10
U.S.C. § 576] authorize the performance of the functions of certain civil offices.”
10 U.S.C. § 3544 (1958) (Historical and Revision Notes). Although this statement
appears to refer to laws permitting Army officers to occupy particular civilian
offices, it does not in our view suggest that the phrase “[e]xcept as otherwise
provided by law” should be read—contrary to its plain language—to include only
those statutes. Moreover, nothing in the legislative history of the 1956 recodifica-
tion indicates an intent to alter the prior understanding—reflected in the legislative
history of the Act of November 21, 1945 and the 1946 Comptroller General
opinion relying on that history—that the terminal leave provision operated as an
exception to the prohibition on Army officers serving in federal civilian positions.
    In 1967, the terminal leave provision previously added in 1945 was revised and
codified at 5 U.S.C. § 5534a. See Pub. L. No. 90-83, § 22, 81 Stat. 195, 199–200
(1967). The new section 5534a was in relevant parts the same as the current
version. In 1968, the prohibition on active duty Army officers holding civilian
offices, then codified at 10 U.S.C. § 3544(b), was expanded to cover officers of
the Navy, Air Force, Marine Corps, and Coast Guard, and was recodified as 10
U.S.C. § 973(b). See Pub. L. No. 90-235, § 4(a)(5)(A), 81 Stat. 753, 759 (1968).
At that time, section 973(b) provided:




   3
     The Comptroller General affirmed this position in 1965. See 45 Comp. Gen. 180, 181 (1965) (“In
decision of March 28, 1946, 25 Comp. Gen. 677, we held that the provisions of [the Act of Nov. 2.
1045] supersede the provisions of section 1222, Revised Statutes . . . .”).




                                                8
                      Whether a Military Officer May Continue on Terminal Leave


             Except as otherwise provided by law, no officer on the active list of
             the Regular Army, Regular Navy, Regular Air Force, Regular Ma-
             rine Corps, or Regular Coast Guard may hold a civil office by elec-
             tion or appointment, whether under the United States, a Territory or
             possession, or a State. The acceptance of such a civil office or the
             exercise of its functions by such an officer terminates his military
             appointment.

Id.
   In 1983, our office concluded that 10 U.S.C. § 973(b) barred Judge Advocate
General officers from being appointed as Special Assistant United States Attor-
neys to prosecute petty offenses on military reservations. See Memorandum for
William P. Tyson, Director, Executive Office for United States Attorneys, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:
Applicability of 10 U.S.C. § 973(b) to JAG Officers Assigned to Prosecute Petty
Offenses Committed on Military Reservations (May 17, 1983). In response to that
decision, Congress amended section 973(b) to limit the offices that active duty
military officers were prohibited from holding. See Department of Defense
Authorization Act, Pub. L. No. 98-94, tit. X, sec. 1002(a), § 973(b)(2)(A), 97 Stat.
614, 655 (1983). Under the amended version, the prohibition on holding federal
civilian offices applied, as it does today, only to an office that “is an elective
office,” that “requires an appointment by the President by and with the advice and
consent of the Senate,” or that “is a position in the Executive Schedule under
sections 5312 through 5317 of title 5.” Id. Congress also made clear that active
duty officers assigned or detailed to federal civilian offices not covered by the
prohibition could hold those offices or exercise their functions. Id. § 973(b)(2)(B).
The legislative history of the 1983 amendment to section 973(b) confirms that the
provision was narrowed in response to the OLC opinion. See S. Rep. No. 98-174,
at 232–34 (1983); see also H.R. Rep. No. 98-352, at 233 (1983) (Conf. Rep.).4 It


      4
          As the Committee report explained:
             The Committee has been advised by the Department of Defense that the Assistant At-
             torney General, Office of Legal Counsel, of the Department of Justice, has recently is-
             sued an opinion that the practice of appointing military commissioned officers as Spe-
             cial Assistant United States Attorneys is now considered to offend the prohibitions of
             section 973(b) of Title 10, United States Code. However, that same opinion suggests
             that legislation be sought to amend section 973(b) to permit the continuation of this
             longstanding and successful practice. The Department of Defense has requested such
             legislation.
             Therefore, the Committee recommends a provision to amend section 973(b) of Title
             10 to permit the continuation of this practice of utilizing military attorneys as Special
             Assistant United States Attorneys.
S. Rep. No. 98-174, at 233.




                                                        9
                 Opinions of the Office of Legal Counsel in Volume 40


makes no mention of any intention to displace the prior understanding that section
5534a provides an exception to the general prohibition on military officers holding
federal civilian offices.
   In sum, the legislative history of the 1945 statute that was the predecessor to
section 5534a indicates that the provision was intended to create an exception to
the general prohibition on military officers holding civilian offices in the federal
government that had been in force since 1870. Nothing in the history of subse-
quent amendments to the two provisions provides any basis to conclude that
Congress intended these amendments to achieve a different result.

                                         C.

   The conclusion that section 5534a provides an exception to the general prohibi-
tion of § 973(b)(2)(A) is also consistent with prior advice given by this Office. In a
July 5, 1973 memorandum to the Attorney General, our Office considered whether
the military appointment of General Alexander M. Haig, Jr., the Vice Chief of
Staff of the Army, had terminated pursuant to section 973(b) when he “was called
to the White House to assume many of the responsibilities formerly held by H.R.
Haldeman.” Memorandum for the Attorney General, from Robert G. Dixon, Jr.,
Assistant Attorney General, Office of Legal Counsel, Re: Status of General
Alexander M. Haig, Jr. (July 5, 1973) (internal quotation marks omitted). The
facts surrounding General Haig’s service in the White House were not clear at the
time the memorandum was written. Among other things, the Office did not know
“whether the as yet undisclosed arrangement between the President and General
Haig had the effect of placing the General on terminal leave.” Id. at 9. The
memorandum concluded, however, that even “[i]f the facts that are developed
show that General Haig was put on terminal leave by the President acting in the
capacity of Commander in Chief, it would appear that 10 U.S.C. 973(b) was not
violated.” Id. at 3. The memorandum explained that the Comptroller General (in
the 1946 opinion discussed above) had “interpreted the act of November 21, 1945,
59 Stat. 584, now 5 U.S.C. 5534a, as exempting officers on terminal leave from
the prohibition of what is now 10 U.S.C. 973(b).” Id. at 7 (citing 25 Comp. Gen.
677); see also id. at 9 (“[T]he Comptroller General has ruled, as shown above, that
by virtue of 5 U.S.C. 5534a, military officers on terminal leave are not subject to
the prohibitions of 10 U.S.C. 973(b).”).
   The Office later provided informal advice to the Department of Defense about
whether a Vice Admiral who was willing to retire from the military could be
appointed to a position in the Department of Interior before his active duty service
concluded. Our Office “advised that 10 U.S.C. 973(b) would not be a barrier to the
appointment if the Admiral were placed on terminal leave since 5 U.S.C. 5534a
makes an exception to the prohibition on military officers holding civil office if
they are on terminal leave.” Memorandum to Files, from Mary C. Lawton, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Inquiry from DOD on



                                         10
              Whether a Military Officer May Continue on Terminal Leave


exceptions to 10 U.S.C. 973(b) (Oct. 30, 1973) (citing 25 Comp. Gen. 677 and 45
Comp. Gen. 180); see also Memorandum to Files, from Edward S. Lazowska,
Office of the Assistant Solicitor General, Re: Proposed Appointment of Major
General Robert McGowan Littlejohn as War Assets Administrator (July 2, 1946)
(noting the restrictions on civilian federal employment imposed by section 1222 of
the Revised Statutes, the predecessor to 10 U.S.C. § 973(b), but concluding that
“as soon as General Littlejohn is placed on terminal leave pending his retirement
from the Army he may accept appointment as Administrator . . . under the
provisions of the act of November 21, 1945,” the predecessor to 5 U.S.C.
§ 5534a).
   Although these prior writings predated the 1983 amendment to section 973(b),
we do not believe that that amendment—which narrowed the scope of section
973(b)—altered the provision in ways that are material to the question whether a
military officer on terminal leave status is “otherwise authorized by law” to hold a
covered civilian office.

                                        III.

   For the foregoing reasons, we conclude that an active duty military officer on
terminal leave who meets the requirements of 5 U.S.C. § 5534a may continue on
terminal leave status after his appointment or election to a position covered by 10
U.S.C. § 973(b)(2)(A).

                                              KARL R. THOMPSON
                                    Principal Deputy Assistant Attorney General
                                              Office of Legal Counsel




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