A-51441, DECEMBER 6, 1933, 13 COMP. GEN. 161

A-51441: Dec 6, 1933

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LEAVES OF ABSENCE - MILITARY - POSTAL SERVICE EMPLOYEE A MEMBER OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS IS NOT ENTITLED TO MILITARY LEAVE FROM HIS CIVILIAN POSITION IN THE POSTAL SERVICE. THE PAYMENT OF SALARY TO THE CIVILIAN POSITION IS PROHIBITED. 1933: I HAVE YOUR LETTER OF OCTOBER 7. REQUESTING DECISION WHETHER A POST -OFFICE CLERK WHO IS A MEMBER OF THE OFFICERS' RESERVE CORPS AND WHO HAS APPLIED FOR 6 MONTHS' LEAVE OF ABSENCE FROM HIS DUTIES IN THE POST OFFICE TO ENABLE HIM TO PERFORM ACTIVE SERVICE AS AN OFFICER OF THE ARMY WITH THE CIVILIAN CONSERVATION CORPS. IS ENTITLED TO 15 DAYS' MILITARY LEAVE WITH PAY UNDER THE PROVISIONS OF THE ACT OF MAY 12.

A-51441, DECEMBER 6, 1933, 13 COMP. GEN. 161

LEAVES OF ABSENCE - MILITARY - POSTAL SERVICE EMPLOYEE A MEMBER OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS IS NOT ENTITLED TO MILITARY LEAVE FROM HIS CIVILIAN POSITION IN THE POSTAL SERVICE, UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72. IF THE COMBINED RATES OF PAY IN THE CIVILIAN POSITION AND THE ACTIVE DUTY PAY AND ALLOWANCES AS A RESERVE OFFICER OF THE ARMY EXCEED $2,000 PER ANNUM, THE PAYMENT OF SALARY TO THE CIVILIAN POSITION IS PROHIBITED. IF EITHER THE CIVILIAN SALARY OR THE ACTIVE DUTY PAY AND ALLOWANCES OF HIS RANK IN THE ARMY AMOUNTS TO $2,500 PER ANNUM OR MORE, THE ELECTION TO PERFORM ACTIVE DUTY AS A RESERVE OFFICER WOULD OPERATE TO SEVER HIS CONNECTION WITH THE POSTAL SERVICE UNDER THE ACT OF JULY 31, 1894, 28 STAT. 205, WITH THE RIGHT OF RESTORATION AS PROVIDED IN THE ACT OF MAY 12, 1917, 40 STAT. 72.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, DECEMBER 6, 1933:

I HAVE YOUR LETTER OF OCTOBER 7, 1933, REQUESTING DECISION WHETHER A POST -OFFICE CLERK WHO IS A MEMBER OF THE OFFICERS' RESERVE CORPS AND WHO HAS APPLIED FOR 6 MONTHS' LEAVE OF ABSENCE FROM HIS DUTIES IN THE POST OFFICE TO ENABLE HIM TO PERFORM ACTIVE SERVICE AS AN OFFICER OF THE ARMY WITH THE CIVILIAN CONSERVATION CORPS, IS ENTITLED TO 15 DAYS' MILITARY LEAVE WITH PAY UNDER THE PROVISIONS OF THE ACT OF MAY 12, 1917, 40 STAT. 72, WHICH PROVIDES AS FOLLOWS:

* * * THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.

THE LAW QUOTED AUTHORIZES LEAVE OF ABSENCE TO MEMBERS OF THE OFFICERS' RESERVE CORPS WITHOUT LOSS OF PAY, ETC., ONLY "ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION.' ACTIVE SERVICE AS AN OFFICER OF THE ARMY WITH THE CIVILIAN CONSERVATION CORPS MAY NOT BE REGARDED AS DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, AND, THEREFORE, THE GRANTING OF MILITARY LEAVE WITH PAY UNDER THE CONDITIONS SHOWN IN YOUR LETTER IS NOT AUTHORIZED.

DECISION IS REQUESTED, ALSO, WHETHER A POSTAL EMPLOYEE WHO IS A MEMBER OF THE OFFICERS' RESERVE CORPS AND IS CALLED TO ACTIVE DUTY UNDER THE CIRCUMSTANCES STATED, IS TO BE CONSIDERED A DUAL OFFICE HOLDER WITHIN THE MEANING OF SECTION 38, POSTAL LAWS AND REGULATIONS, PAGE 27, WHICH SECTION IS A RECITAL OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, 39 STAT. 120, 582.

SECTION 37 (A) OF THE ACT OF JUNE 3, 1916, 39 STAT. 189, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 775, PROVIDES THAT EXCEPT IN TIME OF NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS A RESERVE OFFICER SHALL NOT BE EMPLOYED ON ACTIVE DUTY MORE THAN 15 DAYS IN ANY CALENDAR YEAR WITHOUT HIS CONSENT. IT IS, THEREFORE, ASSUMED IN THE INSTANT CASE THAT THE PROPOSED EMPLOYMENT ON ACTIVE DUTY FOR 6 MONTHS IS WITH THE CONSENT OF THE RESERVE OFFICER; THAT IS, HE HAS ELECTED TO PERFORM ACTIVE DUTY AS A RESERVE OFFICER RATHER THAN CONTINUE IN HIS POST OFFICE POSITION.

AS IT WOULD BE OBVIOUSLY IMPOSSIBLE FOR A MEMBER OF THE OFFICERS' RESERVE CORPS TO PERFORM THE DUTIES OF HIS CIVILIAN POSITION WHILE ON ACTIVE DUTY UNDER HIS RESERVE COMMISSION AND THE DUTY IS NOT SUCH AS ENTITLES HIM TO MILITARY LEAVE FROM HIS CIVILIAN POSITION UNDER THE ACT OF MAY 12, 1917, SUPRA, HE WOULD NOT BE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION EXCEPT FOR SUCH PERIOD OF ANNUAL LEAVE WITH PAY TO WHICH HE MAY BE ENTITLED AND PROVIDED THE COMBINED RATES OF PAY FROM HIS CIVILIAN POSITION AND MILITARY DUTIES WOULD NOT EXCEED THE RATE OF $2,000 PER ANNUM. THE PROVISIONS OF THE ACT OF MAY 10, 1916, SUPRA, ARE DIRECTED AGAINST THE USE OF APPROPRIATIONS AND, IF THE COMBINED RATES OF PAY EXCEED $2,000 PER ANNUM, WOULD PROHIBIT THE PAYMENT OF SALARY IN THE CIVILIAN POSITION WHILE IN RECEIPT OF THE PAY AND ALLOWANCES OF HIS RANK AS AN ARMY OFFICER EVEN FOR SUCH PORTION OF THE ABSENCE AS MIGHT BE

AND IF EITHER THE EMPLOYEE'S CIVILIAN SALARY OR THE ACTIVE-DUTY PAY AND ALLOWANCES OF HIS RANK IN THE ARMY AMOUNTS TO $2,500 PER ANNUM OR MORE, SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, WOULD PROHIBIT THE HOLDING BY HIM OF THE TWO OFFICES, AND THE ACCEPTANCE BY HIM OF THE PROPOSED EMPLOYMENT ON ACTIVE DUTY IN THE ARMY WOULD OPERATE TO SEVER HIS CONNECTION WITH THE POSTAL SERVICE, BUT THE ACT OF MAY 12, 1917, 40 STAT. 72, PROVIDES:

* * * THAT MEMBERS OF THE OFFICERS' RESERVE CORPS WHO ARE IN THE EMPLOY OF THE UNITED STATES GOVERNMENT OR OF THE DISTRICT OF COLUMBIA AND WHO ARE ORDERED TO DUTY BY PROPER AUTHORITY SHALL, WHEN RELIEVED FROM DUTY, BE RESTORED TO THE POSITIONS HELD BY THEM WHEN ORDERED TO DUTY.