A-81252, FEBRUARY 17, 1937, 16 COMP. GEN. 767

A-81252: Feb 17, 1937

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IS ENTITLED. FOR SUCH AUTHORIZED ANNUAL LEAVE AS MAY HAVE BEEN GRANTED TO HIM. IT WAS HELD THAT GEORGE PLAYFAIR. WAS NOT ENTITLED TO LEAVE PAY AS A CIVIL EMPLOYEE AT THE WASHINGTON NAVY YARD FOR THE PERIOD AUGUST 28 TO SEPTEMBER 3. WAS APPLIED. SPECIFIC PROVISION TO THAT EFFECT WOULD HAVE BEEN MADE IN THE STATUTE AND. PLAYFAIR IS NOT ENTITLED TO THE COMPENSATION OF HIS CIVILIAN POSITION WHILE IN THE TRAINING DUTY STATUS AS A MEMBER OF THE FLEET MARINE CORPS RESERVE IN EXCESS OF FIFTEEN DAYS. IS REQUESTED ON THE BASIS OF THE REQUIREMENT OF THE THIRD PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT APPROVED FEBRUARY 28. IS TO DENY TO A MEMBER OF THE NAVAL RESERVE THE RIGHT TO THE COMPENSATION OF THE CIVILIAN POSITION AND THE PAY PROVIDED BY LAW FOR MEMBERS OF THE NAVAL RESERVE WHILE ON TRAINING DUTY.

A-81252, FEBRUARY 17, 1937, 16 COMP. GEN. 767

COMPENSATION - CIVILIAN POSITIONS - MEMBERS OF FLEET MARINE CORPS RESERVE - TRAINING DUTY IN EXCESS OF 15 DAYS A CIVILIAN EMPLOYEE MEMBER OF THE FLEET MARINE CORPS RESERVE ORDERED TO TRAINING DUTY FOR A PERIOD IN EXCESS OF 15 DAYS, IS ENTITLED, UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, TO BOTH THE SALARY OR COMPENSATION OF HIS CIVILIAN POSITION AND THE PAY AND ALLOWANCES OF HIS RATING IN THE RESERVE NOT ONLY FOR 15 DAYS OF MILITARY LEAVE, BUT, ALSO, FOR SUCH AUTHORIZED ANNUAL LEAVE AS MAY HAVE BEEN GRANTED TO HIM.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, FEBRUARY 17, 1937:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 9, 1937, IN PERTINENT PART, AS FOLLOWS:

IN YOUR DECISION OF NOVEMBER 4, 1936, A-81252, IT WAS HELD THAT GEORGE PLAYFAIR, CORPORAL, FLEET MARINE CORPS RESERVE, WAS NOT ENTITLED TO LEAVE PAY AS A CIVIL EMPLOYEE AT THE WASHINGTON NAVY YARD FOR THE PERIOD AUGUST 28 TO SEPTEMBER 3, 1936, WHILE ABSENT ON TRAINING DUTY AS A MEMBER OF THE FLEET MARINE CORPS RESERVE IN EXCESS OF FIFTEEN DAYS.

IN THE PLAYFAIR CASE THE REASONING ADOPTED IN THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES OF OCTOBER 23, 1923 (3 COMP. GEN. 246), WAS APPLIED, NAMELY, THAT IF IT HAD BEEN THE LEGISLATIVE INTENT TO PERMIT MEMBERS OF THE NAVAL RESERVE TO RECEIVE PAY AS CIVILIAN EMPLOYEES OF THE GOVERNMENT IN ADDITION TO ACTIVE SERVICE PAY WHILE ON A PRACTICE CRUISE, SPECIFIC PROVISION TO THAT EFFECT WOULD HAVE BEEN MADE IN THE STATUTE AND, IN THE ABSENCE OF ANY SUCH STATUTORY PROVISION APPLICABLE TO MEMBERS OF THE NAVAL RESERVE, MR. PLAYFAIR IS NOT ENTITLED TO THE COMPENSATION OF HIS CIVILIAN POSITION WHILE IN THE TRAINING DUTY STATUS AS A MEMBER OF THE FLEET MARINE CORPS RESERVE IN EXCESS OF FIFTEEN DAYS.

RECONSIDERATION OF THE DECISION OF NOVEMBER 4, 1936, IS REQUESTED ON THE BASIS OF THE REQUIREMENT OF THE THIRD PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT APPROVED FEBRUARY 28, 1925 (43 STAT. 1081; 34 U.S.C., SEC. 753), WHICH PROVISO READS AS FOLLOWS:

"AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY OR ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT.'

THE EFFECT OF THE DECISION OF NOVEMBER 4, 1936, IS TO DENY TO A MEMBER OF THE NAVAL RESERVE THE RIGHT TO THE COMPENSATION OF THE CIVILIAN POSITION AND THE PAY PROVIDED BY LAW FOR MEMBERS OF THE NAVAL RESERVE WHILE ON TRAINING DUTY, EXCEPT WHEN ON MILITARY LEAVE, NOTWITHSTANDING THE FACT THAT SUCH MEMBER HAS TO HIS CREDIT ANNUAL LEAVE IN HIS CIVILIAN STATUS. IN THE CITED DECISION OF OCTOBER 23, 1923, THERE WAS CONSIDERED THE QUESTION OF THE RIGHT OF AN EMPLOYEE OF THE BUREAU OF FISHERIES TO THE SALARY OF HIS CIVILIAN POSITION WHILE ON ANNUAL LEAVE AND SERVING AS A MEMBER OF THE FORMER NAVAL RESERVE FORCE ON A PRACTICE CRUISE. THERE WAS QUOTED IN THAT DECISION THE FOLLOWING PROVISION FROM THE ACT OF AUGUST 29, 1916 (39 STAT. 588):

"NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FORCE FROM ACCEPTING EMPLOYMENT IN ANY BRANCH OF THE PUBLIC SERVICE, EXCEPT AS AN OFFICER OR ENLISTED MAN IN ANY BRANCH OF THE MILITARY SERVICE OF THE UNITED STATES OR ANY STATE THEREOF, NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO HIS RETAINER PAY.'

AND WITH REFERENCE TO THIS PROVISION IT WAS STATED IN THE DECISION:

"UNDER THIS PROVISION THE RECEIPT OF RETAINER PAY BY A MEMBER OF THE NAVAL RESERVE FORCE CANNOT OPERATE TO DEPRIVE HIM OF THE SALARY, PAY, OR COMPENSATION OF ANY POSITION HE MAY HOLD IN THE CIVIL SERVICE OF THE GOVERNMENT, EVEN THOUGH THE COMBINED AMOUNT OF SUCH RETAINER PAY PLUS THE SALARY, PAY, OR COMPENSATION OF SUCH POSITION SHOULD EXCEED $2,000 PER ANNUM; BUT THE QUESTION HERE PRESENTED INVOLVES ACTIVE SERVICE PAY AND NOT RETAINER PAY, AND IT MUST BE ASSUMED THAT IF IT HAD BEEN THE INTENT TO PERMIT MEMBERS OF THE NAVAL RESERVE FORCE TO RECEIVE PAY AS CIVILIAN EMPLOYEES OF THE GOVERNMENT IN ADDITION TO ACTIVE SERVICE PAY WHILE ON A PRACTICE CRUISE, SPECIFIC PROVISION TO THAT EFFECT WOULD HAVE BEEN MADE IN THE STATUTE. THERE APPEARS TO BE NO STATUTORY PROVISION APPLICABLE TO THE NAVAL RESERVE FORCE SIMILAR TO THE PROVISION IN THE ACT OF MAY 12, 1917, 40 STAT. 72, RELATIVE TO THE OFFICERS' RESERVE CORPS OF THE ARMY.'

THE DECISION OF NOVEMBER 4, 1936, RESTED ON THE DECISION OF OCTOBER 23, 1923, UNDER THE ASSUMPTION THAT THE LAST PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT OF FEBRUARY 28, 1925 (43 STAT. 1081), QUOTED IN FIRST PART OF YOUR LETTER, WAS "IDENTICAL INSOFAR AS HERE MATERIAL" WITH THE PROVISION OF THE ACT OF AUGUST 29, 1916, CONSIDERED IN THE DECISION OF OCTOBER 23, 1923. IT NOW APPEARS, HOWEVER, THAT THERE IS A MATERIAL DIFFERENCE BETWEEN THE TWO PROVISIONS IN THAT WHEREAS THE PROVISION IN THE ACT OF AUGUST 29, 1916, AUTHORIZED A MEMBER OF THE NAVAL RESERVE FORCE TO RECEIVE PAY AND ALLOWANCES INCIDENT TO A CIVILIAN EMPLOYMENT "IN ADDITION TO HIS RETAINER PAY," THE PROVISION IN THE ACT OF FEBRUARY 28, 1925, AUTHORIZED A MEMBER OF THE NAVAL RESERVE TO RECEIVE PAY AND ALLOWANCES INCIDENT TO A CIVILIAN EMPLOYMENT "IN ADDITION ADDITION TO HIS RETAINER PAY," THE PROVISION IN THE ACT OF FEBRUARY 28, 1925, AUTHORIZED A MEMBER OF THE NAVAL RESERVE TO RECEIVE PAY AND ALLOWANCES INCIDENT TO CIVILIAN EMPLOYMENT "IN ADDITION TO ANY PAY OR ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT.' SAID ACT, IN ADDITION TO PROVIDING FOR DRILL PAY, ETC., PROVIDES FOR PAY AND ALLOWANCES FOR THE MEMBERS WHILE ON AUTHORIZED TRAINING DUTY WITH THEIR CONSENT FOR PERIODS IN EXCESS OF THE 15 DAYS WITH RESPECT TO WHICH SECTION 36 OF THE ACT PROVIDES:

* * * THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA, WHO ARE MEMBERS OF THE NAVAL RESERVE, 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 ARE EMPLOYED, UNDER ORDERS, ON TRAINING DUTY FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

THEREFORE, GEORGE PLAYFAIR, A MEMBER OF THE FLEET MARINE CORPS RESERVE OCCUPYING A CIVILIAN POSITION AT THE WASHINGTON NAVY YARD, WHO WAS ORDERED TO PERFORM 15 DAYS TRAINING DUTY FROM AUGUST 13 TO 27, 1936, INCLUSIVE, UNDER SECTION 20 OF THE ACT OF FEBRUARY 28, 1925, IS ENTITLED TO RECEIVE BOTH HIS SALARY OR COMPENSATION IN THE CIVILIAN POSITION AND THE PAY AND ALLOWANCES OF HIS RATING IN THE RESERVE, NOT ONLY FOR THE 15 DAYS OF HIS MILITARY LEAVE BUT, ALSO FOR SUCH AUTHORIZED ANNUAL LEAVE AS MAY HAVE BEEN GRANTED TO HIM. THE DECISION OF NOVEMBER 4, 1936, IS MODIFIED ACCORDINGLY.