A-37251, MARCH 21, 1932, 11 COMP. GEN. 356

A-37251, MARCH 21, 1932, 11 COMP. GEN. 356

OFFICERS AND EMPLOYEES HOLDING STATE OFFICES - PUBLIC HEALTH SERVICE AS SECTION 1222, REVISED STATUTES, FORBIDS THE HOLDING OF A CIVIL OFFICE BY AN OFFICER OF THE ARMY ON THE ACTIVE LIST, AND AS SECTION 9 OF THE ACT OF APRIL 9, 1930, 46 STAT. 151, ASSIMILATES THE PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE TO THE PAY OF OFFICERS OF THE MEDICAL CORPS OF THE ARMY, A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE IS NOT ENTITLED TO HALF PAY WHILE SERVING AS HEALTH OFFICER OF A STATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MARCH 21, 1932:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 18, 1931, REQUESTING DECISION AS THE PAY STATUS OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WHILE SERVING AS HEALTH OFFICERS OF STATES AND WHETHER UNDER THE PROVISIONS OF SECTION 1265, REVISED STATUTES, AND THE ACT OF FEBRUARY 19, 1897, 29 STAT. 554, SUCH OFFICERS CAN BE GRANTED LEAVE OF ABSENCE ON HALF PAY DURING THE PERIOD OF SUCH ASSIGNMENTS, ATTENTION BEING ALSO INVITED TO SECTION 9 OF THE ACT OF APRIL 9, 1930, 46 STAT. 151.

THE PUBLIC HEALTH SERVICE, AS IT IS NOW CONSTITUTED AND DESIGNATED, HAD ITS ORIGIN IN THE FORMER MARINE-HOSPITAL SERVICE ESTABLISHED FOR THE CARE OF SICK AND DISABLED SEAMEN BY THE ACT OF JULY 16, 1798, 1 STAT. 605. THE PROVISIONS OF SAID ACT WERE ADMINISTERED BY DIRECTORS OF THE MARINE- HOSPITAL SERVICE IN THE VARIOUS PORTS OF THE UNITED STATES, WHO WERE NOMINATED AND APPOINTED BY THE PRESIDENT. THE ACT OF JANUARY 4, 1889, 25 STAT. 639, PROVIDED THAT THEREAFTER MEDICAL OFFICERS IN THE MARINE- HOSPITAL SERVICE SHOULD BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AFTER PASSING AN EXAMINATION IN THE MEDICAL OFFICERS OF THE SERVICE, CONDUCTED ACCORDING TO RULES PREPARED SEVERAL BRANCHES OF MEDICINE, SURGERY, AND HYGIENE BEFORE A BOARD OF BY THE SUPERVISING SURGEON GENERAL AND APPROVED BY THE SECRETARY OF THE TREASURY AND THE PRESIDENT.

THE ACT OF FEBRUARY 19, 1897, 29 STAT. 554, PROVIDES:

* * * THAT THE SECRETARY OF THE TREASURY IS HEREBY AUTHORIZED, IN HIS DISCRETION, TO GRANT TO THE MEDICAL OFFICERS OF THE MARINE HOSPITAL SERVICE COMMISSIONED BY THE PRESIDENT, WITHOUT DEDUCTION OF PAY, LEAVES OF ABSENCE FOR THE SAME PERIODS OF TIME AND IN THE SAME MANNER AS IS NOW AUTHORIZED TO BE GRANTED TO OFFICERS OF THE ARMY BY THE SECRETARY OF WAR.

THE ACT OF JULY 1, 1902, 32 STAT. 712, CHANGED THE NAME OF THE UNITED STATES MARINE-HOSPITAL SERVICE TO PUBLIC HEALTH AND MARINE HOSPITAL SERVICE OF THE UNITED STATES, AND PROVIDED THAT THE PRESIDENT SHOULD PRESCRIBE RULES FOR THE CONDUCT OF SAID SERVICE AND REGULATIONS RESPECTING ITS INTERNAL ADMINISTRATION AND DISCIPLINE.

THE ACT OF FEBRUARY 3, 1905, 33 STAT. 650, PROVIDED THAT THE PUBLIC HEALTH AND MARINE-HOSPITAL SERVICE SHOULD REMAIN UNDER THE JURISDICTION OF THE TREASURY DEPARTMENT UNTIL OTHERWISE THEREAFTER SPECIFICALLY PROVIDED BY LAW. THE ACT OF AUGUST 14, 1912, 37 STAT. 309, CHANGED THE NAME OF THE PUBLIC HEALTH AND MARINE-HOSPITAL SERVICE TO THE PUBLIC HEALTH SERVICE.

SECTION 1265, REVISED STATUTES, WHICH IS INCLUDED WITH OTHER SECTIONS RELATING TO THE ARMY, PROVIDES:

OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING 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.

SECTION 9 OF THE ACT OF APRIL 9, 1930, SUPRA, PROVIDES:

HEREAFTER COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, AFTER EXAMINATION UNDER REGULATIONS APPROVED BY THE PRESIDENT, SHALL BE PROMOTED ACCORDING TO THE SAME LENGTH OF SERVICE AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED FOR OFFICERS OF CORRESPONDING GRADES OF THE MEDICAL CORPS OF THE ARMY, * * *

WITH SEVERAL EXCEPTIONS NOT PERTINENT TO THE QUESTION HEREIN CONSIDERED.

THE QUESTION TO BE DETERMINED IS WHETHER THE ACT LAST QUOTED, ASSIMILATING COMMISSIONED OFFICERS IN THE PUBLIC HEALTH SERVICE TO OFFICERS OF THE MEDICAL CORPS OF THE ARMY, MAY BE CONSTRUED AS AUTHORIZING HALF PAY DURING THE PERIOD OF ASSIGNMENT OF PUBLIC HEALTH OFFICERS AS STATE HEALTH OFFICERS.

IT HAS BEEN HELD UNDER THE PROVISIONS OF THE ACT OF MAY 18, 1920, 41 STAT. 603, UNDER WHICH THE PAY AND ALLOWANCES OF OFFICERS OF THE COAST AND GEODETIC SURVEY WERE ASSIMILATED TO THE PAY AND ALLOWANCES PRESCRIBED FOR THE OFFICERS OF THE NAVY, THAT OFFICERS OF THE COAST AND GEODETIC SURVEY GRANTED LEAVES OF ABSENCE WILL BE ENTITLED TO THE SAME PAY AS OFFICERS OF THE NAVY OF THE SAME RANK WOULD BE ENTITLED TO RECEIVE UNDER THE SAME CIRCUMSTANCES. SEE 1 COMP. GEN. 454, AND THE DECISIONS THEREIN CITED.

SECTION 1222, REVISED STATUTES, PROVIDES:

NO OFFICER OF THE ARMY ON 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.

SECTION 1265, REVISED STATUTES, IS A RESTRICTIVE STATUTE LIMITING THE PAY OF AN OFFICER OF THE ARMY TO HALF PAY WHEN ABSENT FROM DUTY IN EXCESS OF LEAVE THEREIN AUTHORIZED FOR CAUSES OTHER THAN THROUGH SICKNESS OR WOUNDS OR WAITING ORDERS. SECTION 1222, REVISED STATUTES, OPERATES TO CUT OFF THE RIGHT TO HALF PAY WHILE ABSENT IF SUCH ABSENCE IS BY REASON OF HOLDING A CIVIL OFFICE, SINCE BY THE HOLDING OF SUCH OFFICE HE CEASES TO BE AN OFFICER OF THE ARMY AND HIS COMMISSION IS VACATED.

SECTION 9 OF THE ACT OF APRIL 29, 1930, SUPRA, ASSIMILATES THE PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE TO THE PAY OF OFFICERS OF THE MEDICAL CORPS OF THE ARMY, AND ITS EFFECT IS TO GIVE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE THE RIGHT TO THE SAME PAY AS OFFICERS OF THE MEDICAL CORPS OF THE ARMY BUT NO MORE.

THE PROVISIONS OF SECTION 1222, REVISED STATUTES, EXTEND TO STATE OFFICES AS WELL AS TO OFFICES UNDER THE UNITED STATES. SEE 13 OP.ATTY.GEN. 310. IN THIS CONNECTION, SEE ALSO 1 COMP. GEN. 499.

SINCE AN OFFICER OF THE MEDICAL CORPS OF THE ARMY WOULD NOT BE ENTITLED TO HALF PAY WHILE SERVING AS THE HEALTH OFFICER OF A STATE, IT MUST BE HELD THAT A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE IS NOT ENTITLED TO HALF PAY WHILE SERVING AS HEALTH OFFICER OF A STATE.