A-43204, JULY 14, 1932, 12 COMP. GEN. 37

A-43204, JULY 14, 1932, 12 COMP. GEN. 37

ECONOMY ACT - MILITARY PERSONNEL UNLESS SPECIFICALLY EXEMPTED, ALL COMMISSIONED OFFICERS AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, AND OTHER SERVICES MENTIONED IN THE PAY READJUSTMENT ACT OF JUNE 10, 1922, COME WITHIN THE PROVISIONS OF SECTION 101 (B) OF THE ACT OF JUNE 30, 1932, 47 STAT. 399, REQUIRING A 30- DAY LEGISLATIVE FURLOUGH WITHOUT PAY DURING THE FISCAL YEAR 1933, AND THOSE EXEMPTED WHOSE RATE OF PAY IS MORE THAN $1,000 PER ANNUM ARE SUBJECT TO A REDUCTION IN COMPENSATION OF 8 1/3 PERCENT. SECTION 103 OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, SUSPENDS DURING THE FISCAL YEAR 1933 ALL RIGHTS OF THE MILITARY PERSONNEL, EXCEPT ENLISTED MEN, TO RECEIVE LEAVE OF ABSENCE WITH PAY OTHER THAN ABSENCES DUE TO SICKNESS, INCLUDING "ORDINARY LEAVE" AND "LEAVE ON HALF PAY," NOTWITHSTANDING SUCH LEAVE MAY HAVE ACCRUED PRIOR TO JULY 1, 1932. IF A YEAR OF SERVICE IS LESS THAN 12 MONTHS DUE TO CONDITIONS OVER WHICH THE OFFICERS AND EMPLOYEES HAVE NO CONTROL, SUCH AS THE LENGTH OF THE SCHOOL YEAR OR TERM OF COURT HERETOFORE ESTABLISHED AND NOT GENERALLY SUSCEPTIBLE TO CHANGE BY ADMINISTRATIVE ACTION, THE REMAINDER OF THE PERIOD OF THE YEAR WHEN NO SERVICE MAY BE PERFORMED IS NOT "ANNUAL LEAVE OF ABSENCE" WITHIN THE MEANING OF SECTION 103 OF THE ACT OF JUNE 30, 1932. THEREFORE, SAID ACT DOES NOT AFFECT ABSENCE OF THE SUPERINTENDENT OF THE MILITARY ACADEMY FOR PERIOD OF SUSPENSION OF ORDINARY ACADEMIC DUTIES; ABSENCE OF PROFESSORS, ASSISTANT PROFESSORS, INSTRUCTORS, AND OTHER OFFICERS OF THE MILITARY ACADEMY DURING SUSPENSION OF ORDINARY ACADEMIC DUTIES, ABSENCE OF CADETS OF THE MILITARY ACADEMY DURING THE SUMMER MONTHS AND AT CHRISTMAS WHEN AUTHORIZED; ABSENCE OF MIDSHIPMEN AT THE NAVAL ACADEMY, AND CADETS AT THE COAST GUARD ACADEMY FOR PERIODS OF SUSPENSION OF ACADEMIC DUTIES, THE ABSENCE OF OFFICERS ON DUTY EXCLUSIVELY AS INSTRUCTORS AT THE SERVICE SCHOOLS DURING THE SUSPENSION OF THEIR SCHOOL DUTIES. LEAVE OF ABSENCE WITH PAY FOR SUCH PERSONNEL DURING PERIODS OF THE YEAR WHEN SERVICE IS REQUIRED WOULD BE PROHIBITED, AND THEIR PAY IS SUBJECT TO THE PERCENTAGE REDUCTIONS REQUIRED IN SECTION 105 (D) OF THE ECONOMY ACT. GRADUATION LEAVE OF CADETS AT THE MILITARY ACADEMY AFTER BEING COMMISSIONED SECOND LIEUTENANTS IS "ANNUAL LEAVE" AND RIGHTS THERETO ARE SUSPENDED DURING THE FISCAL YEAR 1933. THE ABSENCE OF CIVIL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD OR RESERVES, NOT EXCEEDING 15 CALENDAR DAYS IN ANY ONE CALENDAR YEAR FOR PURPOSES OF TRAINING OR MILITARY DUTY, IS NOT "ANNUAL LEAVE" THE RIGHTS TO WHICH ARE SUSPENDED DURING THE FISCAL YEAR 1933. ALL LEAVE OF ABSENCE NECESSARILY GRANTED FOR THE CONVENIENCE OF THE GOVERNMENT TO ARMY OFFICERS ABOUT TO BE RETIRED, EXCEPT OFFICERS RETIRED FOR PHYSICAL DISABILITY BY ACTION OF AN ARMY RETIRING BOARD, MUST BE WITHOUT PAY. APPLICATION OF THE LEGISLATIVE FURLOUGH OF 30 CALENDAR DAYS REQUIRED UNDER SECTION 101 (B) OF THE ACT OF JUNE 30, 1932, 47 STAT. 399, TO OFFICERS ON FOREIGN DUTY OR ON BOARD SHIP, IS AN ADMINISTRATIVE PROBLEM AND IF IMPRACTICABLE OF APPLICATION TO THEM, THEIR PAY IS SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY SECTION 105 (D) OF THE ACT. CONTRACT SURGEONS OF THE ARMY ARE NOT EXEMPTED FROM THE OPERATION OF THE ECONOMY ACT. DURING THE FISCAL YEAR 1933 A BRIGADIER GENERAL OR OFFICER OF CORRESPONDING RANK WHOSE TOTAL PAY AND ALLOWANCES ARE LIMITED TO $7,500 PER ANNUM BY SECTION 8 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, WOULD BE ENTITLED TO RECEIVE DURING ONE CALENDAR MONTH'S LEGISLATIVE FURLOUGH WITHOUT PAY, UNDER THE TERMS OF SECTION 101 (B) OF THE ACT OF JUNE 30, 1932, 47 STAT. 399, ONLY THAT PORTION OF THE RATE OF $7,500 PER ANNUM WHICH REPRESENTS ALLOWANCES. SECTIONS 206 (A), 207, 208, 209, 210, AND 803 OF THE ECONOMY ACT RENDER INOPERATIVE SECTION 3 OF THE NAVY APPROPRIATION ACT OF JUNE 30, 1932, 47 STAT. 421, AS WELL AS ALL LAWS GOVERNING PAYMENT OF MILEAGE AND TRAVEL ALLOWANCE, WHETHER BY AIR OR OTHERWISE, EXCEPT THE SUBSISTENCE EXPENSE ACT OF 1926, AND THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AUTHORIZING REIMBURSEMENT ON A MILEAGE BASIS FOR USE OF PRIVATELY OWNED AUTOMOBILES ON OFFICIAL BUSINESS, AND LIMIT REIMBURSEMENT OF TRAVEL ALLOWANCE OF "OFFICERS OF THE SERVICES MENTIONED IN THE PAY READJUSTMENT ACT OF 1922" TO AMOUNTS AS PRESCRIBED BY THOSE STATUTES AND ADMINISTRATIVE REGULATIONS ISSUED PURSUANT THERETO. IN APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, LIMITING THE COMBINED RATE OF COMPENSATION IN THE CIVILIAN POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM, RETIRED PAY OF ENLISTED MEN ON ACCOUNT OF COMMISSIONED SERVICE UNDER THE TERMS OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE. THE PURPOSE OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, IS TO LIMIT THE COMBINED RATE OF COMPENSATION IN THE CIVILIAN OFFICE OR POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM, AND THE LOSS SUSTAINED IN THE CIVILIAN OFFICE OR POSITION BY OPERATION OF THE 5-DAY WEEK, LEGISLATIVE FURLOUGH, OR PERCENTAGE REDUCTION, MAY BE MADE UP BY PAYMENT OF RETIRED PAY NOT IN EXCESS OF THE COMBINED RATE OF $3,000 PER ANNUM TO THE EXTENT THAT RETIRED PAY AS REDUCED BY SECTION 106 OF THE STATUTE IS AVAILABLE FOR THAT PURPOSE. AUTOMATIC INCREASES OF PAY OF ENLISTED MEN ON ACCOUNT OF PROMOTION AND LENGTH OF SERVICE ARE NOT PROHIBITED DURING THE FISCAL YEAR 1933 BY THE PROVISIONS OF SECTION 201 OF THE ACT OF JUNE 30, 1932, 47 STAT. 403.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, JULY 14, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 1, 1932, WHEREIN YOU PRESENT FOR DECISION A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF THE PROVISIONS OF THE ACT OF JUNE 30, 1932, PUBLIC NO. 212, 47 STAT. 382. YOU CONCLUDE YOUR SUBMISSION AS FOLLOWS:

THE FOREGOING SUBMISSION IS CONCURRED IN BY THE SECRETARY OF THE TREASURY, THE SECRETARY OF THE NAVY, AND THE SECRETARY OF COMMERCE.

THE NUMBERED PARAGRAPHS FROM 2 TO 16 INCLUSIVE, WILL BE STATED AND CONSIDERED IN THE ORDER APPEARING IN YOUR LETTER.

2. SECTION 101 (B) PROVIDES THAT EACH OFFICER OR EMPLOYEE RECEIVING COMPENSATION ON AN ANNUAL BASIS AT A RATE OF MORE THAN $1,000 PER ANNUM SHALL BE FURLOUGHED WITHOUT COMPENSATION FOR ONE MONTH, OR ITS EQUIVALENT. IT IS BELIEVED THAT UNLESS SPECIALLY EXEMPTED, ALL COMMISSIONED OFFICERS AND WARRANT OFFICERS OF THE ARMY, NAVY, MARINE CORPS, AND OTHER SERVICES MENTIONED IN THE PAY READJUSTMENT ACT OF JUNE 10, 1922, SOME MEMBERS OF THE ARMY NURSE CORPS, AND MANY OF THE DEPARTMENTAL AND FIELD EMPLOYEES COME WITHIN THE PROVISIONS OF THIS SUBSECTION. WITH RESPECT TO THESE CLASSES YOUR DECISION IS REQUESTED AS TO---

(A) WHETHER IN THE INTEREST OF GOOD ADMINISTRATION THE AMOUNT BY WHICH EACH INDIVIDUAL'S ANNUAL COMPENSATION IS REDUCED MAY BE DEDUCTED FROM HIS PAY IN EQUAL MONTHLY INSTALLMENTS THROUGHOUT THE YEAR, IRRESPECTIVE OF THE TIME THE FURLOUGH IS TAKEN, OR WHETHER DEDUCTION MUST BE MADE FOR THE SAME PERIOD IN WHICH THE FURLOUGH IS TAKEN. OR, IF A FLAT PERCENTAGE IS DEDUCTED FROM AN INDIVIDUAL'S PAY EACH MONTH, MAY HE TAKE LEAVE WITH PAY AT SUCH TIME AS HE MAY DESIRE WITHOUT ADDITIONAL DEDUCTION BEING MADE DURING SUCH ABSENCE.

2. SECTIONS 101 (B) AND (C) AND SECTION 102 OF THE ACT OF JUNE 30, 1932, PUBLIC NO. 212, 47 STAT. 399, PROVIDE AS FOLLOWS:

DURING THE FISCAL YEAR ENDING JUNE 30, 1933---

(B) EACH OFFICER OR EMPLOYEE RECEIVING COMPENSATION ON AN ANNUAL BASIS AT THE RATE OF MORE THAN $1,000 PER ANNUM SHALL BE FURLOUGHED WITHOUT COMPENSATION FOR ONE CALENDAR MONTH, OR FOR SUCH PERIODS AS SHALL IN THE AGGREGATE BE EQUIVALENT TO ONE CALENDAR MONTH, FOR WHICH LATTER PURPOSE TWENTY-FOUR WORKING DAYS (COUNTING SATURDAY AS ONE-HALF DAY) SHALL BE CONSIDERED AS THE EQUIVALENT OF ONE CALENDAR MONTH: PROVIDED, THAT WHERE THE NATURE OF THE DUTIES OF ANY SUCH OFFICER OR EMPLOYEE RENDER IT ADVISABLE, THE PROVISIONS OF SUBSECTION (A) MAY BE APPLIED IN LIEU OF THE PROVISIONS OF THIS SUBSECTION: PROVIDED FURTHER, THAT NO OFFICER OR EMPLOYEE SHALL, WITHOUT HIS CONSENT, BE FURLOUGHED UNDER THIS SUBSECTION FOR MORE THAN FIVE DAYS IN ANY ONE CALENDAR MONTH: PROVIDED FURTHER, THAT THE RATE OF COMPENSATION OF ANY EMPLOYEE FURLOUGHED UNDER THE PROVISIONS OF THIS ACT SHALL NOT BE REDUCED BY REASON OF THE ACTION OF ANY WAGE BOARD DURING THE FISCAL YEAR 1933.

(C) IF THE APPLICATION OF THE PROVISIONS OF SUBSECTIONS (A) AND (B) TO ANY OFFICER OR EMPLOYEE WOULD REDUCE HIS RATE OF COMPENSATION TO LESS THAN $1,000 PER ANNUM SUCH PROVISIONS SHALL BE APPLIED TO HIM ONLY TO THE EXTENT NECESSARY TO REDUCE HIS RATE OF COMPENSATION TO $1,000 PER ANNUM.

SEC. 102. NO OFFICER OR EMPLOYEE SHALL BE EXEMPTED FROM THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101, EXCEPT IN THOSE CASES WHERE THE PUBLIC SERVICE REQUIRES THAT THE POSITION BE CONTINUOUSLY FILLED AND A SUITABLE SUBSTITUTE CAN NOT BE PROVIDED, AND THEN ONLY WHEN AUTHORIZED OR APPROVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES. THE DIRECTOR OF THE BUREAU OF THE BUDGET SHALL REPORT TO CONGRESS ON THE FIRST MONDAY IN DECEMBER IN 1932 AND 1933 THE EXEMPTIONS MADE UNDER THIS SECTION DIVIDED ACCORDING TO SALARY, GRADE, AND CLASS.

THE CLASSES OF PERSONS MENTIONED IN THIS PARAGRAPH OF YOUR LETTER ARE ALL WITHIN THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE" APPEARING IN SECTION 104 OF THE STATUTE AND ARE, THEREFORE, SUBJECT TO THE PROVISIONS OF SECTION 101 (A), (B), OR (C), UNLESS SPECIALLY EXEMPTED BY THE PRESIDENT OF THE UNITED STATES BECAUSE "THE PUBLIC SERVICE REQUIRES THAT THE POSITIONS BE CONTINUOUSLY FILLED AND A SUITABLE SUBSTITUTE CAN NOT BE PROVIDED.' IN THE EVENT OF SUCH EXEMPTION THE EMPLOYEES WOULD BE SUBJECT TO A REDUCTION IN COMPENSATION OF 8 1/3 PERCENT UNDER THE TERMS OF SECTION 105 (D) (6). THE QUESTION PRESENTED IN QUESTION 2 (A) OF YOUR LETTER HAS BEEN FULLY ANSWERED IN GENERAL DECISION OF JULY 8, 1932, A-43276, 12 COMP. GEN. 16.

YOUR NEXT QUESTION IS STATED BY YOU AS FOLLOWS:

3. SECTION 103 OF THE ACT OF JUNE 30, 1932, PROVIDES AS FOLLOWS:

"ALL RIGHTS NOW CONFERRED OR AUTHORIZED TO BE CONFERRED BY LAW UPON ANY OFFICER OR EMPLOYEE TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY ARE HEREBY SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933.'

THE TERM "ANNUAL LEAVE" HAS NEVER BEEN APPLIED TO LEAVES GRANTED TO COMMISSIONED OFFICERS OR WARRANT OFFICERS OF ANY OF THE SERVICES COVERED BY THE PAY READJUSTMENT ACT OF 1922. IN THESE SERVICES AND WITH REFERENCE TO THE PERSONNEL JUST STATED, THE TERMS "ORDINARY LEAVE" AND "SICK LEAVE" AND "LEAVE ON HALF PAY" ARE USED. FURTHERMORE, SECTION 1265 OF THE REVISED STATUTES (U.S.C. 10:841), DEALING WITH THE ARMY PROVIDES AS FOLLOWS:

"OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND AWAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR. WHEN ABSENT WITHOUT LEAVE, THEY SHALL FORFEIT ALL PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.'

R.S. 1265 WAS AMENDED BY THE ACT OF JULY 29, 1876 (18 STAT. 43; U.S.C. 10:842), SO AS TO MAKE THE LEAVE WITH PAY CUMULATIVE FOR FOUR YEARS. THE PHRASE "ANNUAL LEAVE" DOES NOT APPEAR IN THOSE STATUTES. IT IS UNDERSTOOD THAT PRIOR TO THE ORIGINAL ENACTMENT OF R.S. 1265 (AUGUST 3, 1861) THERE WAS NO LIMIT UPON THE GRANTING OF LEAVES OF ABSENCE TO OFFICERS, AND IN FACT THERE IS NONE TO-DAY, EXCEPT THAT R.S. 1265, AS AMENDED, LIMITS THE PERIOD FOR WHICH FULL PAY MAY BE ALLOWED. SIMILAR STATUTES ARE IN EFFECT DEALING WITH THE OTHER SERVICES MENTIONED IN THE PAY READJUSTMENT ACT OF 1922.

4. CONSIDERING THE FACT THAT THE CONGRESS IN PASSING THE SO-CALLED ECONOMY ACT HERE UNDER CONSIDERATION WAS DEALING LARGELY WITH CIVILIAN OFFICERS AND EMPLOYEES, WHO HAVE AN EXPRESS CLASS OF LEAVE DENOMINATED "ANNUAL LEAVE" (ACT MARCH 15, 1898; 30 STAT. 316; U.S.C. 5:30), YOUR DECISION IS REQUESTED AS TO WHETHER SECTION 103 OF THE ACT OF JUNE 30, 1932, DEALING WITH ANNUAL LEAVE HAS ANY APPLICATION TO MILITARY PERSONNEL OF THE UNITED STATES. (SEE 1 COMP. GEN. 454.)

3 AND 4. IN DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A 43056, 12 COMP. GEN. 9, IT WAS STATED AS FOLLOWS:

THE TERM "ANNUAL LEAVE" REFERS TO ALL "VACATION" LEAVE OF ABSENCE WITH PAY AUTHORIZED BY LAW AND/OR REGULATION FOR EACH YEAR, WHETHER BASED ON THE CALENDAR, FISCAL, OR SERVICE YEAR, FOR THE PERSONAL PLEASURE, CONVENIENCE, OR BENEFIT OF THE OFFICER OR EMPLOYEE, BUT DOES NOT INCLUDE SICK, QUARANTINE, AND MILITARY LEAVE. RIGHTS TO ANNUAL LEAVE, AS THUS DEFINED, AS WELL AS TO ALL BENEFITS INCIDENT THERETO, ARE SUSPENDED DURING THE FISCAL YEAR 1933, IRRESPECTIVE OF WHETHER THE LEAVE RIGHTS HERETOFORE HAVE BEEN GRANTED ABSOLUTELY BY STATUTE OR ALLOWED WITHIN ADMINISTRATIVE DISCRETION.

THE PLAIN PURPOSE OF THE ENACTMENT IS TO EFFECT A SAVING OR ECONOMY TO THE GOVERNMENT DURING THE FISCAL YEAR 1933, AND IT MUST BE CONSTRUED AND APPLIED TO EFFECTUATE THAT PURPOSE. IN THE ABSENCE OF ANY PROVISION IN THE STATUTE LIMITING THE SUSPENSION TO ANNUAL LEAVE WHICH WOULD BE EARNED OR ACCRUE DURING THE FISCAL YEAR 1933, THERE IS NO ALTERNATIVE BUT TO HOLD THAT THE SUSPENSION APPLIES, ALSO, TO RIGHTS TO ALL ANNUAL LEAVE ACCRUED OR EARNED AND UNUSED PRIOR TO JULY 1, 1932.

WHILE IT IS TRUE THE TERM "ANNUAL LEAVE" IS MORE GENERALLY APPLIED TO CIVILIAN PERSONNEL, THERE IS NOTHING APPEARING IN THE TERMS OF SECTION 103 OF THE ACT OF JUNE 30, 1932, OR OTHERWISE IN THE STATUTE, WHICH REASONABLY MAY BE CONSIDERED AS JUSTIFYING A CONCLUSION THAT THE TERMS OF SECTION 103, SUSPENDING ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933, WERE NOT INTENDED TO APPLY TO MILITARY PERSONNEL AS WELL AS TO THE CIVILIAN PERSONNEL. IT IS TO BE OBSERVED IN THIS CONNECTION THAT THE PROVISIONS OF SECTION 103 APPEAR UNDER TITLE I AND THAT SECTION 104 (A) DEFINES THE TERM "OFFICER AND EMPLOYEE" WHEN USED IN THAT TITLE, NOTING CERTAIN EXCEPTIONS, AMONG WHICH IS "/8) THE ENLISTED PERSONNEL OF THE ARMY, NAVY, COAST GUARD, AND MARINE CORPS; " THOSE NOT WITHIN THE EXCEPTION MUST THEREFORE BE SUBJECT TO THE PROVISIONS OF SECTION 103.

IT IS IMMATERIAL WHAT DESIGNATION OR TERM IS GIVEN IN STATUTE OR REGULATION TO LEAVE OF ABSENCE WITH PAY TO "ANY OFFICER OR EMPLOYEE.' SEE DECISION TO THE GOVERNOR OF THE PANAMA CANAL, DATED JULY 9, 1932, A-43069, 12 COMP. GEN. 17. THE PLAIN PURPOSE OF THE STATUTE IS TO SUSPEND THE GRANTING OF LEAVE WITH PAY DURING THE FISCAL YEAR 1933 WHEN LEGISLATIVE FURLOUGHS WITHOUT PAY ARE REQUIRED. THE CONGRESS RECOGNIZED THAT TO GRANT LEAVE OF ABSENCE WITH PAY WOULD BE ENTIRELY INCONSISTENT WITH THE REQUIREMENT FOR FURLOUGHS WITHOUT PAY AND WOULD ELIMINATE OR CURTAIL THE SAVING REQUIRED. YOU ARE ADVISED, THEREFORE, THAT SECTION 103 OF THE ACT OF JUNE 30, 1932, IS APPLICABLE TO MILITARY PERSONNEL EXCEPT ENLISTED MEN AS SET FORTH IN SECTION 104 (8) AND SUSPENDS, DURING THE FISCAL YEAR 1933, ALL RIGHTS TO RECEIVE LEAVE DESIGNATED AS "ORDINARY LEAVE" AND ,LEAVE ON HALF PAY.'

THE NEXT QUESTIONS (5) AND (6) ARE AS FOLLOWS:

5. IN ADDITION TO THE ORDINARY LEAVE OF ABSENCE AUTHORIZED BY R.S. 1265, AS AMENDED, AND SIMILAR STATUTES, THE FOLLOWING NAMED PERSONNEL MAY BE GRANTED UNDER EXISTING LAW AND REGULATIONS, LEAVE OF ABSENCE WITHOUT DEDUCTION OF PAY OR ALLOWANCES:

(A) THE SUPERINTENDENT, UNITED STATES MILITARY ACADEMY, FOR THE PERIOD OF THE SUSPENSION OF THE ORDINARY ACADEMIC DUTIES, ACT OF AUGUST 9, 1912. (37 STAT. 252; U.S.C. 10:744.)

(B) PROFESSORS, ASSISTANT PROFESSORS, INSTRUCTORS, AND OTHER OFFICERS OF THE UNITED STATES MILITARY ACADEMY, FOR THE PERIOD OF THE SUSPENSION OF THE ORDINARY ACADEMIC DUTIES. (R.S. 1330; U.S.C. 10:1144.)

(C) CADETS OF THE UNITED STATES MILITARY ACADEMY ARE GRANTED FURLOUGHS WITH PAY DURING THE SUMMER VACATION, ABOUT 2 1/2 MONTHS, INTERVENING BETWEEN THEIR SECOND AND THIRD YEARS AT THE ACADEMY. (PAR. 148, REGULATIONS FOR THE UNITED STATES MILITARY ACADEMY, 1931.)

(D) CADETS OF THE UNITED STATES MILITARY ACADEMY, EXCEPT THE FOURTH CLASS (1ST YEAR), ARE GRANTED FURLOUGHS WITH PAY FOR THE PERIOD OF SUSPENSION OF DUTIES DURING THE CHRISTMAS HOLIDAYS EACH YEAR. (PAR. 148, REGULATIONS FOR THE UNITED STATES MILITARY ACADEMY, 1931.)

(E) GRADUATES OF THE UNITED STATES MILITARY ACADEMY, GRADUATION LEAVE (3 MONTHS), AFTER BEING COMMISSIONED AS SECOND LIEUTENANTS. ACT OF DECEMBER 20, 1886, (24 STAT. 351; U.S.C. 10:1150). ALSO SEE ACT OF JULY 9, 1918 (40 STAT. 892; U.S.C. 10:445). THIS LEAVE IS NOT NOW CHARGED TO THESE OFFICERS.

(F) MIDSHIPMEN AT THE UNITED STATES NAVAL ACADEMY AND CADETS AT THE COAST GUARD ACADEMY ARE GRANTED LEAVE WITH PAY FOR PERIODS OF SUSPENSION OF ACADEMIC DUTIES.

(G) OFFICERS ON DUTY EXCLUSIVELY AS INSTRUCTORS AT THE SERVICE SCHOOLS DURING THE SUSPENSION OF THEIR SCHOOL DUTIES. ACT OF MARCH 23, 1910 (36 STAT. 244; U.S.C. 10:843).

(H) CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD, ON ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST DEFENSE TRAINING. SECTION 80, ACT OF JUNE 3, 1916 (39 STAT. 203; U.S.C. 32:75).

(I) CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS, THE FLEET NAVAL RESERVE, AND THE MARINE CORPS RESERVE, DURING SUCH PERIODS, NOT EXCEEDING FIFTEEN CALENDAR DAYS IN ANY ONE CALENDAR YEAR, AS THEY MAY BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES FOR INSTRUCTION. SEE ACT MAY 12, 1917 (40 STAT. 72; U.S.C. 10:371), AND ACT FEB. 28, 1925 (43 STAT. 1090).

6. SHOULD YOUR ANSWER TO THE QUESTION IN PARAGRAPH 4 WITH RESPECT TO THE APPLICATION OF SECTION 103 OF THE ECONOMY ACT BE IN THE AFFIRMATIVE, YOUR FURTHER DECISION IS REQUESTED AS TO---

(1) WHICH, IF ANY, OF THE CLASSES OF LEAVE ENUMERATED IN PARAGRAPH 5 (A) TO (I), INCLUSIVE, ABOVE, ARE AFFECTED BY THE PROVISIONS OF SAID SECTION 103, AND

(2) WHETHER CREDITS FOR LEAVE WITH PAY HERETOFORE OR HEREAFTER ACCRUING TO OFFICERS UNDER R.S. 1265, AS AMENDED, AND SIMILAR STATUTES, ARE SUSPENDED DURING THE FISCAL YEAR 1933. 5 AND 6. ABSENCE FROM PLACE OF DUTY AS DISTINGUISHED FROM ABSENCE FROM DUTY, WHEN ACTUAL SERVICE MAY NOT BE RENDERED NOR DUTIES PERFORMED, IS NOT, BY ANY REASONABLE APPLICATION OF THE PHRASE "ANNUAL LEAVE OF ABSENCE WITH PAY" WITHIN THE MEANING OF THE STATUTE; THAT IS TO SAY, IF A YEAR OF SERVICE IS LESS THAN 12 MONTHS DUE TO CONDITIONS OVER WHICH THE OFFICERS AND EMPLOYEES HAVE NO CONTROL, SUCH AS THE LENGTH OF THE SCHOOL YEAR, OR A TERM OF COURT HERETOFORE ESTABLISHED, AND NOT GENERALLY SUSCEPTIBLE TO CHANGE BY ADMINISTRATIVE ACTION, THE REMAINDER OF THE PERIOD OF THE YEAR WHEN NO SERVICE MAY BE PERFORMED IS NOT "ANNUAL LEAVE OF ABSENCE" WITHIN THE MEANING OF SECTION 103 OF THE STATUTE. THEREFORE, IF NO DUTIES ARE REQUIRED OTHER THAN DURING ACADEMY OR SCHOOL SESSIONS, THE PERIODS WHEN NO SERVICE MAY BE PERFORMED BY THE OFFICERS AND CADETS DESIGNATED UNDER PARAGRAPHS 5 (A), (B), (C), (D), (F), AND (G) DO NOT CONSTITUTE "ANNUAL LEAVE OF ABSENCE" AND THE RIGHTS OR PRIVILEGES THERETO ARE NOT AFFECTED BY THE PROVISIONS OF SECTION 103 OF THE ACT. OF COURSE, LEAVE OF ABSENCE WITH PAY FOR SUCH PERSONNEL DURING THE PERIOD WHEN SERVICE IS REQUIRED WOULD BE PROHIBITED. SECTION 105 (D) (6) OF THE ACT PROVIDES:

SEC. 105. DURING THE FISCAL YEAR ENDING JUNE 30, 1933---

(D) IN THE CASE OF THE FOLLOWING PERSONS THE RATE OF COMPENSATION IS REDUCED AS FOLLOWS: IF MORE THAN $1,000 PER ANNUM BUT LESS THAN $10,000 PER ANNUM, 8 1/3 PERCENTUM; IF $10,000 PER ANNUM OR MORE, BUT LESS THAN $12,000 PER ANNUM, 10 PERCENTUM; IF $12,000 PER ANNUM OR MORE, BUT LESS THAN $15,000 PER ANNUM, 12 PERCENTUM; IF $15,000 PER ANNUM OR MORE, BUT LESS THAN $20,000 PER ANNUM, 15 PERCENTUM; IF $20,000 PER ANNUM OR MORE, 20 PERCENTUM.

(6) OFFICERS AND EMPLOYEES (AS DEFINED IN SECTION 104 (A) ( OCCUPYING POSITIONS THE NATURE OF THE DUTIES AND PERIODS OF WORK OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101.

UNDER THIS SECTION THE CLASSES OF PERSONNEL ABOVE MENTIONED WOULD BE SUBJECT TO 8 1/3 PERCENT REDUCTION IN COMPENSATION IF IT IS FOUND IMPRACTICABLE TO APPLY THE LEGISLATIVE FURLOUGH TO THEM. RELATIVE TO PARAGRAPH 5 (E), I AM CONSTRAINED TO HOLD THAT THE LEAVE OF GRADUATES OF THE UNITED STATES MILITARY ACADEMY AFTER BEING COMMISSIONED AS SECOND LIEUTENANTS UNDER THE STATUTES MENTIONED IS "ANNUAL LEAVE OF ABSENCE WITH PAY" WITHIN THE MEANING AND INTENT OF SECTION 103 OF THE ACT OF JUNE 30, 1932, AND ALL RIGHTS THERETO ARE SUSPENDED DURING THE FISCAL YEAR 1933.

REFERRING TO THE PERIODS OF MILITARY TRAINING OF CIVILIAN EMPLOYEES MENTIONED IN PARAGRAPHS 5 (H) AND (I), IN DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43056, IT WAS HELD "THAT THE RIGHT TO MILITARY LEAVE, AS THAT TERM IS COMMONLY UNDERSTOOD IN THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS, IS NOT AFFECTED BY THE ENACTMENT HERE UNDER CONSIDERATION.' SEE ALSO DECISION OF JULY 9, 1932, A-43069, TO THE GOVERNOR OF THE PANAMA CANAL, WHEREIN IT IS STATED: "THE SO CALLED MILITARY LEAVE IS, IN FACT, MERELY A RELEASE FROM DUTY IN ONE POSITION FOR THE PERFORMANCE OF DUTY IN ANOTHER UNDER A STATUTE PROVIDING SPECIFICALLY THAT IT SHALL BE WITHOUT LOSS OF PAY, TIME, ETC.'

THE ABOVE ANSWERS QUESTION 6 (1). YOUR QUESTION 6 (2) IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF JULY 8, 1932, A-43056, AND DECISION OF JULY 9, 1932, A-43069, SUPRA.

7. DOES SECTION 103 PRECLUDE MEMBERS OF THE ARMY AND NAVY NURSE CORPS, RECEIVING LESS THAN $1,000 PER ANNUM, FROM RECEIVING ANY LEAVE WITH PAY? SEE SECTION 101 (B).

7. EXCEPT FOR ABSENCES DUE TO PERSONAL ILLNESS, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. DECISION OF JULY 8, 1932, A-43126, 12 COMP. GEN. 11, TO THE PUBLIC PRINTER, ANSWERS QUESTIONS 6 AND 7.

8. IN THE CASES OF OFFICERS ABOUT TO BE RETIRED, IT HAS BEEN THE ADMINISTRATIVE PRACTICE, IN SOME CASES, FOR THE CONVENIENCE OF THE GOVERNMENT TO ORDER THEM TO THEIR HOMES TO AWAIT RETIREMENT OR TO AWAIT ORDERS. (SEE PAR. 12, A.R. 605-115.) UNDER THESE CONDITIONS IS AN OFFICER ENTITLED TO ACTIVE DUTY PAY?

8. PARAGRAPHS 12 (B) AND (C) OF A.R. 605-115 PROVIDE AS FOLLOWS:

B. RETIREMENT UPON ACTION OF RETIRING BOARD; AFTER MORE THAN 30 YEARS' SERVICE.--- SUCH LEAVE OF ABSENCE AS IS DUE MAY, UPON REQUEST, BE GRANTED BY THE WAR DEPARTMENT TO---

(1) OFFICERS TO BE RETIRED FOR PHYSICAL DISABILITY, BY REASON OF THE ACTION OF AN ARMY RETIRING BOARD.

(2) OFFICERS TO BE RETIRED UPON THEIR OWN APPLICATION, AFTER MORE THAN 30 YEARS' SERVICE.

C. RETIREMENT UPON ACTION OF PROMOTION BOARD; AT 64 YEARS OF AGE.--- SUCH LEAVE OF ABSENCE AS IS DUE UP TO THE DATE OF RETIREMENT MAY, UPON REQUEST, BE GRANTED BY THE WAR DEPARTMENT TO---

(1) OFFICERS TO BE RETIRED BY REASON OF FAILURE TO QUALIFY PHYSICALLY FOR PROMOTION.

(2) OFFICERS TO BE RETIRED AT 64 YEARS OF AGE.

SICK LEAVE OR ABSENCES DUE TO PERSONAL ILLNESS HAVE BEEN HELD NOT TO BE "ANNUAL LEAVE OF ABSENCE WITH PAY" WITHIN THE MEANING OF SECTION 103, ACT OF JUNE 30, 1932, AND THAT THE RIGHTS THERETO HAVE NOT BEEN SUSPENDED DURING THE FISCAL YEAR 1933. SEE DECISIONS OF JULY 8, 1932, A-43056, AND JULY 9, 1932, A-43069, SUPRA. ACCORDINGLY, IT REASONABLY MAY BE CONSIDERED THAT LEAVE OF ABSENCE PRIOR TO RETIREMENT OF OFFICERS UNDER B (1) OF THE QUOTED ARMY REGULATION MAY BE GRANTED WITH ACTIVE DUTY PAY AS SICK LEAVE OR LEAVE DUE TO PERSONAL ILLNESS OF THE OFFICER. IT IS BELIEVED TO BE THE PURPOSE AND INTENT OF THE STATUTE THAT LEAVE OF ABSENCE WITH PAY PRIOR TO RETIREMENT UNDER THE CONDITIONS PRESCRIBED IN PARAGRAPH B (2) AND C (1) OR (2) OF THE ABOVE QUOTED ARMY REGULATION MAY NOT BE GRANTED DURING THE FISCAL YEAR 1933. ACCORDINGLY, ALL SUCH LEAVE AS IS NECESSARILY GRANTED TO OFFICERS FOR THE CONVENIENCE OF THE GOVERNMENT MUST BE WITHOUT PAY.

9. IN MANY CASES OF OFFICERS ON FOREIGN DUTY OR ON BOARD SHIP IT IS IMPRACTICABLE FOR EXTENDED PERIODS FOR THEM TO AVAIL THEMSELVES OF LEAVE OF ABSENCE. HOW WILL THE FURLOUGH BE APPLIED IN SUCH CASES? IN THIS CONNECTION ATTENTION IS INVITED TO SECTION 105 (D) (6).

9. APPLICATION OF THE LEGISLATIVE FURLOUGH OF 30 CALENDAR DAYS TO THE VARIOUS CLASSES OF PERSONNEL IS AN ADMINISTRATIVE PROBLEM. SECTION 105 (D) (6) OF THE ACT, TO WHICH YOU REFER, PROVIDES FOR A PERCENTAGE REDUCTION IN COMPENSATION FOR OFFICERS AND EMPLOYEES OCCUPYING POSITIONS, THE NATURE OF THE DUTIES AND PERIODS OF WORK OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE 5-DAY WEEK, OR LEGISLATIVE FURLOUGH.

10. SECTION 104 (A) (11) EXEMPTS COMPENSATION PAID UNDER THE TERMS OF ANY CONTRACT IN EFFECT ON THE DATE OF ENACTMENT OF THE ACT, IF SUCH COMPENSATION MAY NOT LAWFULLY BE REDUCED. DOES THIS EXEMPTION APPLY TO CONTRACT SURGEONS PROVIDED FOR IN SECTION 10, ACT JUNE 3, 1916 (39 STAT. 171), AS AMENDED BY SEC. 10, ACT OF JUNE 4, 1920 (41 STAT. 766; U.S.C. 10:81/?

10. SECTION 18 OF THE ACT OF FEBRUARY 2, 1901, 31 STAT. 752, PROVIDES IN PART:

... THAT IN EMERGENCIES THE SURGEON GENERAL OF THE ARMY, WITH THE APPROVAL OF THE SECRETARY OF WAR, MAY APPOINT AS MANY CONTRACT SURGEONS AS MAY BE NECESSARY, AT A COMPENSATION NOT TO EXCEED ONE HUNDRED AND FIFTY DOLLARS PER MONTH ...

CONTRACT SURGEONS ARE A COMPONENT PART OF THE MEDICAL DEPARTMENT OF THE ARMY. ACT OF JUNE 4, 1920, 41 STAT. 766. SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, PROVIDES THAT: ,CONTRACT SURGEONS SERVING FULL TIME SHALL HAVE THE PAY * * * AUTHORIZED FOR OFFICERS SERVING IN THEIR SECOND PAY PERIOD.' SERVICE AS A FULL-TIME CONTRACT SURGEON MAY BE COUNTED TOWARD LONGEVITY, SECTION 1 OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AND TOWARD RETIREMENT, ACT OF MAY 29, 1928, 45 STAT. 996. IT IS UNDERSTOOD THAT IN THE EXISTING FORM OF CONTRACTS ENTERED INTO WITH SURGEONS, IT IS PROVIDED: "IT IS MUTUALLY AGREED AND UNDERSTOOD THAT THIS CONTRACT SHALL CONTINUE AT LEAST ONE MONTH, IF NOT SOONER DETERMINED BY THE SURGEON GENERAL OF THE ARMY.' 10 COMP. GEN. 173. THERE IS NOTHING APPEARING IN THESE STATUTES, OR THE REGULATIONS AND CONTRACTS ISSUED THEREUNDER, PRECLUDING THE REDUCTION OF THE EXISTING RATE OF COMPENSATION OF CONTRACT SURGEONS. YOU ARE ADVISED,THEREFORE, THAT CONTRACT SURGEONS ARE NOT WITHIN THE EXCEPTION (11) OF PARAGRAPH (A) OF SECTION 104 OF THE ACT OF JUNE 30, 1932.

11. SECTION 8 OF THE PAY READJUSTMENT ACT OF JUNE 10, 1922, PROVIDES:

"THAT WHEN THE TOTAL OF BASE PAY, SUBSISTENCE, AND RENTAL ALLOWANCES EXCEEDS $7,500.00 FOR OFFICERS SERVING IN THE GRADE OF BRIGADIER GENERAL OF THE ARMY AND OF THE MARINE CORPS, REAR ADMIRAL (LOWER HALF) OF THE NAVY, COMMODORE OF THE NAVY, AND SURGEON GENERAL OF THE PUBLIC HEALTH SERVICE, AND $9,700.00 FOR THOSE SERVING IN THE GRADE OF MAJOR GENERAL OF THE ARMY AND OF THE MARINE CORPS, AND REAR ADMIRAL (UPPER HALF) OF THE NAVY, THE AMOUNT OF THE ALLOWANCES TO WHICH SUCH OFFICER IS ENTITLED SHALL BE REDUCED BY THE AMOUNT OF THE EXCESS ABOVE $7,500.00 OR $9,700.00, RESPECTIVELY.'

IF A BRIGADIER GENERAL, OR OFFICER OF CORRESPONDING RANK, WHOSE TOTAL PAY AND ALLOWANCES ARE LIMITED TO $7,500.00, IS ON FURLOUGH WITHOUT PAY FOR AN ENTIRE CALENDAR MONTH, TO WHAT ALLOWANCES WILL HE BE ENTITLED FOR THAT MONTH?

11. SECTION 104 (B) OF THE STATUTE PROVIDES:

(B) THE TERM "COMPENSATION" MEANS ANY SALARY, PAY, WAGE, ALLOWANCE (EXCEPT ALLOWANCES FOR SUBSISTENCE, QUARTERS, HEAT, LIGHT, AND TRAVEL), OR OTHER EMOLUMENTS PAID FOR SERVICES RENDERED IN ANY CIVILIAN OR NONCIVILIAN OFFICE, POSITION, OR EMPLOYMENT * * *.

THERE IS NO PURPOSE OR INTENT EXPRESSED OR IMPLIED IN THIS DEFINITION, OR OTHERWISE IN THE STATUTE, EITHER TO INCREASE THE RATE AUTHORIZED BY LAW OR REGULATION FOR ALLOWANCES WHICH ARE EXCEPTED FROM "COMPENSATION," OR TO SAVE ANY "OFFICER" OR "EMPLOYEE," AS THOSE TERMS ARE DEFINED IN SECTION 104, FROM LOSS OF COMPENSATION BY THE OPERATION OF THE 5-DAY WEEK, LEGISLATIVE FURLOUGH, OR PERCENTAGE REDUCTION IN COMPENSATION. THEREFORE, DURING THE FISCAL YEAR 1933, A BRIGADIER GENERAL, OR OFFICER OF CORRESPONDING RANK, WHOSE TOTAL PAY AND ALLOWANCES ARE LIMITED TO $7,500 PER ANNUM, WOULD BE ENTITLED TO RECEIVE DURING ONE ENTIRE CALENDAR MONTH'S LEGISLATIVE FURLOUGH WITHOUT PAY ONLY THAT PORTION OF THE RATE OF $7,500 PER ANNUM WHICH REPRESENTED ALLOWANCES. THAT IS, THE MAXIMUM APPLIES TO PAY AS HERETOFORE FIXED. THE PAY ACCOUNT SHOULD BE STATED BY CREDITING THE PAY AS PERMANENTLY FIXED AND CREDITING THE ALLOWANCES TO MAKE THE TOTAL MAXIMUM AUTHORIZED, $7,500, AND REDUCING THAT TOTAL BY 8 1/3 PERCENT OF THE ITEM OF PAY. FOR EXAMPLE, THE ACCOUNT WOULD BE STATED: PAY-------- ---------------------------------------- $6,000.00 TWO SUBSISTENCE ALLOWANCES, AT 52 CENTS PER DAY----- 379.60 SIX RENTAL ALLOWANCES, AT $18 PER MONTH--- $1,296--- REDUCED BY $155.60 TO BRING THE TOTAL OF PAY AND ALLOWANCES TO THE MAXIMUM AUTHORIZED------------- -- 1,120.40

-------- $7,500.00 LESS ONE MONTH'S PAY, OR 8 1/3 PERCENT THEREOF-------- ------- 500.00

MAXIMUM PAY AND ALLOWANCES--------------------------- 7,000.00

12. SECTION 206 SUSPENDS ALL PROVISIONS OF LAW WHICH AUTHORIZE THE PAYMENT OF MILEAGE TO OFFICERS, AND SUBSTITUTES, IN LIEU THEREOF, THE TRAVEL ALLOWANCES PROVIDED FOR CIVILIAN EMPLOYEES. IN ADDITION TO THE LAWS AUTHORIZING THE PAYMENT OF MILEAGE TO OFFICERS, THERE ARE NUMEROUS OTHER LAWS PROVIDING FOR TRAVEL EXPENSES FOR OFFICERS, E.G., SECTION 12 OF THE ACT OF JUNE 10, 1922, AS AMENDED BY THE ACT OF MARCH 2, 1931, (46 STAT. 461; U.S.C. 37:20), WHICH PROVIDES FOR PAYMENT TO OFFICERS OF ACTUAL AND NECESSARY TRAVELING EXPENSES NOT TO EXCEED $8 PER DAY, OR IN LIEU THEREOF, PER DIEM ALLOWANCES AT RATES NOT TO EXCEED $6 PER DAY WHILE TRAVELING BY AIR. A CAREFUL STUDY OF SECTION 206 WOULD INDICATE THAT THE VARIOUS LAWS PROVIDING FOR TRAVEL EXPENSES OTHER THAN MILEAGE REMAIN IN FULL FORCE AND EFFECT. A DECISION IS REQUESTED AS TO WHETHER THE PROVISIONS OF THIS ACT OR THOSE OF ANY OTHER ACT OR ACTS AUTHORIZING PAYMENT OF TRAVEL EXPENSES ON OTHER THAN A MILEAGE BASIS ARE SUSPENDED BY SECTION 206. IN THIS CONNECTION ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 3 OF THE PENDING NAVAL APPROPRIATION BILL, H.R. 11452.

12. SECTION 206 (A) OF THE STATUTE PROVIDES:

(A) ALL PROVISIONS OF LAW WHICH AUTHORIZE THE PAYMENT OF MILEAGE TO OFFICERS OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C., TITLE 37) ARE HEREBY SUSPENDED AND IN LIEU THEREOF SUCH OFFICERS SHALL BE ENTITLED TO ALLOWANCES FOR TRAVEL ONLY AS PROVIDED FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT, AND THE SUBSISTENCE EXPENSE ACT OF 1926, AS MODIFIED BY THIS ACT, AND BY THE ACT OF FEBRUARY 14, 1931 (SUPP. V, U.S. CODE, TITLE 5, SEC. 73A), SHALL APPLY TO SUCH TRAVEL: PROVIDED, THAT ALL APPROPRIATIONS AVAILABLE FOR THE PAYMENT OF SUCH MILEAGE DURING THE FISCAL YEAR 1933 SHALL BE CONSTRUED AS BEING AVAILABLE FOR THE PAYMENT OF THE ALLOWANCES HEREIN PROVIDED.

THE EFFECT OF THIS IS (1) TO SUSPEND THE LAWS AUTHORIZING PAYMENT OF MILEAGE; (2) TO PROVIDE FOR PAYMENT OF ALLOWANCES FOR TRAVEL "ONLY AS PROVIDED FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT; " AND (3) TO AUTHORIZE SUCH ALLOWANCES FOR TRAVEL PURSUANT TO THE "SUBSISTENCE EXPENSE ACT OF 26," AS MODIFIED BY THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AUTHORIZING REIMBURSEMENT FOR USE OF PRIVATELY OWNED AUTOMOBILES ON A MILEAGE BASIS. SECTIONS 207 AND 208 MODIFY THE SUBSISTENCE EXPENSE ACT OF 1926 TO ELIMINATE ALL REIMBURSEMENT ON AN ACTUAL EXPENSE BASIS AND TO LIMIT REIMBURSEMENT FOR TRAVEL TO A PER DIEM ALLOWANCE NOT TO EXCEED THE RATE OF $5 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES AND AN AVERAGE OF $6 BEYOND THE LIMITS OF THE CONTINENTAL UNITED STATES. SECTION 210 OF THE STATUTE PROVIDES: THE PROVISIONS OF ALL ACTS HERETOFORE ENACTED INCONSISTENT WITH SECTIONS 207, 208, AND 209 ARE, TO THE EXTENT OF SUCH INCONSISTENCY, HEREBY REPEALED, AND SUCH SECTIONS SHALL TAKE EFFECT ON JULY 1, 1932.

SECTION 803 PROVIDES:

THE PROVISIONS OF PART 2 HEREIN ARE HEREBY MADE APPLICABLE TO THE APPROPRIATIONS AVAILABLE FOR THE FISCAL YEAR 1933, WHETHER CONTAINED IN THIS ACT OR IN ACTS PRIOR OR SUBSEQUENT TO THE DATE OF THE APPROVAL OF THIS ACT.

SECTION 3 OF THE NAVY APPROPRIATION ACT OF JUNE 30, 1932 PUBLIC NO. 216, 47 STAT. 421, TO WHICH YOU REFER, PROVIDES AS FOLLOWS:

NO PART OF ANY APPROPRIATION MADE BY THIS ACT SHALL BE USED TO PAY THE ACTUAL EXPENSES OF SUBSISTENCE IN EXCESS OF $6 EACH FOR ANY ONE CALENDAR DAY OR PER DIEM ALLOWANCE FOR SUBSISTENCE IN EXCESS OF THE RATE OF $5 FOR ANY ONE CALENDAR DAY TO ANY OFFICER OR EMPLOYEE OF THE UNITED STATES IN A TRAVEL STATUS, AND PAYMENT ACCORDINGLY SHALL BE IN FULL, NOTWITHSTANDING ANY OTHER STATUTORY PROVISION.

CONSIDERING THESE STATUTORY PROVISIONS TOGETHER, THE EFFECT IS TO RENDER INOPERATIVE SECTION 3 OF THE NAVY APPROPRIATION ACT, ABOVE QUOTED, AS WELL AS ALL LAWS GOVERNING PAYMENT OF MILEAGE AND TRAVEL ALLOWANCE, WHETHER BY AIR OR OTHERWISE, EXCEPT THE SUBSISTENCE EXPENSE ACT OF 1926 AND THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AND TO LIMIT REIMBURSEMENT OF TRAVEL ALLOWANCE OF ,OFFICERS OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922" TO AMOUNTS AS PRESCRIBED BY THOSE STATUTES AND ADMINISTRATIVE REGULATIONS ISSUED PURSUANT THERETO. IN THIS CONNECTION SEE EXECUTIVE ORDER NO. 5870, DATED JUNE 30, 1932. THE QUESTION PRESENTED IN PARAGRAPH 12 IS ANSWERED IN THE AFFIRMATIVE.

13. SECTION 212 PLACES CERTAIN LIMITATIONS ON THE AMOUNTS OF RETIRED PAY PAYABLE ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY READJUSTMENT ACT OF 1922, WHO HOLD CERTAIN OFFICES, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT 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. THERE ARE ON THE RETIRED LIST OF THE VARIOUS SERVICES SEVERAL THOUSAND ENLISTED MEN WHO, UNDER THE PROVISIONS OF THE ACT OF JUNE 6, 1924 (43 STAT. 472; U.S.C. 10:981 AND 34:999), RECEIVE THE RETIRED PAY OF RETIRED WARRANT OFFICERS OF EQUAL LENGTH OF SERVICE, AND WHO, UNDER THE ACT OF MAY 7, 1932 (PUBLIC NO. 123) ARE NOW ENTITLED TO BE ADVANCED IN RANK ON THE RETIRED LIST TO THE HIGHEST COMMISSIONED GRADES HELD BY THEM DURING THE WORLD WAR OR THE SPANISH-AMERICAN WAR. WITHIN THE MEANING OF SECTION 212, ARE SUCH RETIRED ENLISTED MEN TO BE REGARDED AS PERSONS RECEIVING RETIRED PAY "ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER? " IF SO, WILL THE REDUCTION REDUCE THEIR RETIRED PAY BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE?

13. SECTION 104 (A) (8) EXCEPTS ENLISTED PERSONNEL OF CERTAIN-NAMED SERVICES FROM THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE.' SECTION 104 (B) EXCEPTS RETIRED PAY OF ENLISTED PERSONNEL FROM THE TERM "COMPENSATION.' SECTION 106 EXEMPTS RETIRED PAY OF ENLISTED MEN OF CERTAIN SERVICES FROM PERCENTAGE REDUCTIONS. SECTION 212 PRESCRIBES A LIMITATION APPLICABLE TO COMPENSATION FOR CIVILIAN SERVICE AND RETIRED PAY "FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER.' THESE SECTIONS OF THE STATUTE SHOW AN INTENTION THAT RETIRED PAY FOR THE NAMED ENLISTED SERVICES SHALL NOT BE AFFECTED BY THE OPERATION OF THE ACT. THE ACT OF JUNE 6, 1924, 43 STAT. 472, PURSUANT TO WHICH THE ENLISTED MEN, MENTIONED IN PARAGRAPH 13 OF YOUR LETTER, ARE GRANTED RETIRED PAY ON ACCOUNT OF COMMISSIONED SERVICE, CONTAINS THE FOLLOWING SAVING CLAUSE:

* * * PROVIDED FURTHER, NOTHING IN THIS ACT SHALL OPERATE TO PREVENT ANY PERSON FROM RECEIVING THE PAY AND ALLOWANCES OF HIS GRADE, RANK, OR RATING ON THE RETIRED LIST WHEN SUCH PAY AND ALLOWANCES EXCEED THE PAY TO WHICH HE WOULD BE ENTITLED UNDER THIS ACT BY VIRTUE OF HIS COMMISSIONED SERVICE.

CONSIDERING THIS SAVING CLAUSE IN CONNECTION WITH THE EXEMPTIONS IN THE ECONOMY ACT IN FAVOR OF RETIRED PAY OF ENLISTED MEN, IT REASONABLY MAY BE CONCLUDED THAT IN THE APPLICATION OF SECTION 212 OF THE LATTER STATUTE THE RETIRED PAY OF THE ENLISTED MEN MENTIONED IN PARAGRAPH 13 OF YOUR LETTER SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE.

14. IN APPLYING THE PROVISIONS OF SECTION 212, IF A RETIRED OFFICER WITH RETIRED PAY OF $2,900 PER ANNUM IS EMPLOYED IN A CIVIL OFFICE OR POSITION WITH SALARY OF $2,800 PER ANNUM, WILL HE BE ENTITLED TO A NET AMOUNT OF $3,000 OR MUST A DEDUCTION BE MADE FROM THE $3,000?

14. THE PURPOSE OF SECTION 212 IS TO LIMIT THE COMBINED RATE OF COMPENSATION IN A CIVILIAN OFFICE OR POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM. IN THE ILLUSTRATION GIVEN, THERE WOULD BE PAYABLE A NET RATE OF $3,000 PER ANNUM. SINCE THE LIMITATION ON THE COMBINED RATE IS EFFECTIVE "ONLY AFTER THE DATE OF ENACTMENT OF THIS ACT," THE LOSS SUSTAINED IN THE CIVILIAN OFFICE OR POSITION BY OPERATION OF THE 5-DAY WEEK, LEGISLATIVE FURLOUGH, OR PERCENTAGE REDUCTION MAY BE MADE UP BY PAYMENT OF RETIRED PAY, NOT IN EXCESS OF THE COMBINED RATE OF $3,000 PER ANNUM, TO THE EXTENT THAT RETIRED PAY, AS REDUCED BY SECTION 106 OF THE STATUTE, IS AVAILABLE FOR THAT PURPOSE.

15. THE PAY OF ENLISTED MEN HAVING BEEN EXEMPTED BY SECTIONS 104 AND 106 OF THE ACT, ARE AUTOMATIC INCREASES ON ACCOUNT OF PROMOTIONS AND LENGTH OF SERVICE PROHIBITED BY THE PROVISIONS OF SECTION 201?

15. SECTION 201 OF THE STATUTE PROVIDES AS FOLLOWS:

ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.

THE TERMS "CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES" AS HERE USED DO NOT APPEAR TO HAVE RELATION TO THE ENLISTED PERSONNEL. ACCORDINGLY, THE QUESTION IS ANSWERED IN THE NEGATIVE.

16. SEVERAL OF THE QUESTIONS COVERED BY THIS LETTER HAVE PREVIOUSLY BEEN SUBMITTED TO YOU IN LESS DETAIL IN WAR DEPARTMENT LETTER OF JUNE 29, 1932.

16. IT IS BELIEVED THAT THE QUESTIONS PRESENTED IN YOUR LETTER OF JUNE 29, 1932, HAVE BEEN ANSWERED HEREIN.