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December 9, 2022
Foreign Government Employment by Armed Services Retirees
Background
In 2021, the Washington Post filed Freedom of Information
Act requests with the Department of Defense (DOD) and
Department of State (DOS) for the records associated with
retired general and flag officers who had obtained approvals
required by federal law for employment with a foreign
government. Information released by DOD and DOS was
later published in a series of news articles [see Washington
Post, Foreign Servants (Oct. 18, 2022)]. This In Focus
examines the process through which a retiree of a regular
component of an armed service in a military department of
the United States (regular retiree) obtains approval to work
for a foreign government. The In Focus also contains a
review of other federal restrictions that apply to this work.
Regular Retirees and Continued Military Status
Regular retirees typically are servicemembers in the regular
component of an armed service who qualified for retirement
based on full-time service and are entitled to pay. This pay is
based on the permanent obligation of a regular retiree to
serve if recalled to duty (10 U.S.C. §688). As such, this service
obligation places regular retirees in a continued military status.
Consequently, they also remain subject to the Uniform Code
of Military justice [UCMJ; 10 U.S.C. 802 (Art. 2)].
Error! Not a valid bookmark self-reference. lists the laws
and policies applicable to DOD and DOS approval
processes for regular retirees.
Table I. Foreign Government Employment
Regular Retiree Approval Process
Law and Policy Purpose
U.S. Cons., Art. I, Sec. 9, Cl. 8 Employment Prohibition
37 U.S.C. §908 Employment Exception
22 C.F.R. Part 3a DOS Process
AR 600-291 Army Process
AFI 36-2913 Air Force Process
NAVSOP-1778 Navy Process
DOD 7000.14-R, V. 7B, Ch. 5, 6 Loss of Retired Pay
Eimoluments Clause Prohibitions
Due to concerns over possible undue influence by foreign
nations, the emoluments clause of the U.S. Constitution
prohibits federal office holders from receiving gifts, salary,
honoraria, consulting fees, or travel expenses from a foreign
government, unless otherwise authorized by Congress.
Members of the armed services, including active, reserve,
and National Guard forces, are classified as office holders
under this clause. Regular retirees are included in this
classification based on their continued military status.
Exception to the Emoluments Clause Probitions
Although foreign emoluments generally are prohibited,
Congress has authorized foreign government employment
by regular retirees in certain cases (P.L. 95-105, §509).
Under this consent, if the service secretary concerned
approves a request to work for a foreign government, the
Secretary of State must then make the final decision on this
request, but must first establish whether the employment
would harm U.S. foreign relations given the continued
military status of the regular retiree (22 C.F.R. §3a.5).
Unintended Foreign Government Employment
Even if the links between a foreign state and foreign employer
are not apparent, unwittingly accepting foreign government
employment is still prohibited. DOD cautions regular retirees
to exercise due diligence by ensuring a foreign employer that
ostensibly is not affiliated with a foreign state is not in fact
owned, operated, or controlled by a foreign government.
Loss of Retired Pay for Actions in a Foreign State
DOD will reduce the retired pay of regular retirees found to
have accepted unapproved foreign government employment
by the amount received as compensation for this work;
however, these retirees can still request approval of this
employment. The full entitlement to retired pay will resume
if a belated request is approved, but DOD will not restore
previously reduced amounts as such approvals cannot be
retroactive. Whether foreign government employment is
approved or unapproved, regular retirees who relinquish
U.S. citizenship to work for a foreign state, or for any other
reason, will lose their entitlement to regular retired pay, as
DOD deems loss of U.S. nationality incompatible with the
continued military status of regular retirees.
Employment Does Not Include Military Service
The congressional consent for regular retirees to accept civil
employment with a foreign government does not extend to
activities that DOD or DOS would consider military service.
Currently, the only congressional authorization for regular
retirees to perform foreign military service is in the armed
forces of a newly democratic nation (10 U.S.C. §1060). DOD
policy requires loss of retired pay if a retiree's foreign military
service is unapproved, but there is no specific offense in the
UCM that makes such service subject to punitive measures.
Persons not Prohibited by the Emokuments Clause
Former servicemembers who no longer have a military
status are not considered federal office holders based on
their former service. Except for reasons other than military
service, foreign government employment by these former
servicemembers typically would not be prohibited:
* Reserve Component retirees (receiving retired pay);
* Disability retirees of the armed services; and](ViewImageLocal?handle=hein.crs/govejrm0001&div=1&collection=&method=preview&ext=.png&size=3)