A-84393, APRIL 23, 1937, 16 COMP. GEN. 953

A-84393: Apr 23, 1937

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ARE NOT IN THE ACTUAL SERVICE OF THE UNITED STATES. THEREFORE ARE NOT WITHIN THE PROHIBITION OF THE ACT OF JULY 31. THE ANNUAL COMPENSATION OR SALARY OF WHICH IS $2. AT THAT TIME MAJOR OLSON WAS A CUSTOMS-PATROL INSPECTOR AT $2. THE BUREAU OF CUSTOMS WAS OF THE OPINION THAT IT WOULD BE NECESSARY FOR HIM. THIS MATTER WAS PRESENTED TO THE CHIEF. WHEREIN IT IS STATED THAT MAJOR OLSON COULD LEGALLY HAVE BEEN GRANTED LEAVE OF ABSENCE WITHOUT PAY FROM HIS CIVIL POSITION WHILE ATTENDING THE COMMAND AND GENERAL STAFF SCHOOL. IS ALSO ENCLOSED. YOUR DECISION IS REQUESTED ON THE FOLLOWING POINTS: 1. TO WHICH HE WOULD ORDINARILY HAVE BEEN ENTITLED? 3. IS HE NOW ENTITLED TO ACCRUED ANNUAL LEAVE STANDING TO HIS CREDIT ON THE DATE OF SEPARATION?

A-84393, APRIL 23, 1937, 16 COMP. GEN. 953

CIVILIAN EMPLOYEE ATTENDING MILITARY-SERVICE SCHOOL AS NATIONAL GUARD OFFICER - ANNUAL AND MILITARY LEAVE - RESIGNATION FROM CIVILIAN POSITION AND SUBSEQUENT REINSTATEMENT - EFFECT ON ANNUAL LEAVE NOT TAKEN PRIOR TO SEPARATION THE RESIGNATION OF A FEDERAL EMPLOYEE, ALSO A NATIONAL GUARD OFFICER, DULY ACCEPTED BY COMPETENT AUTHORITY AND UNREVOKED PRIOR TO ITS EFFECTIVE DATE, ALTHOUGH MISTAKENLY REQUIRED UNDER THE ADMINISTRATIVE BELIEF THAT PAYMENT AS SUCH OFFICER FOR ATTENDANCE AT A COURSE OF STUDY AT A MILITARY- SERVICE SCHOOL OF THE UNITED STATES UNDER AUTHORITY OF SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 44 STAT. 674, WITHOUT SEPARATION FROM THE CIVILIAN POSITION, WOULD CONTRAVENE THE DUAL COMPENSATION STATUTES, MAY NOT NOW BE REVOKED, NOR MAY THE EMPLOYEE BE PAID FOR ANNUAL LEAVE ACCRUED BUT NOT TAKEN PRIOR TO THE SEPARATION OR CREDITED THEREWITH NOTWITHSTANDING HIS SUBSEQUENT REINSTATEMENT IN HIS FORMER CIVILIAN POSITION. SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, DOES NOT AUTHORIZE THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY FROM A CIVILIAN POSITION UNDER THE FEDERAL GOVERNMENT TO AN OFFICER OF THE NATIONAL GUARD WHILE IN ATTENDANCE UNDER ORDERS AT A MILITARY SCHOOL FOR THE PURPOSE OF PURSUING A COURSE OF INSTRUCTION UNDER THE PROVISIONS OF SECTION 99 OF SAID ACT. NATIONAL GUARD OFFICERS ATTENDING MILITARY-SERVICE SCHOOLS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 44 STAT. 674, ARE NOT IN THE ACTUAL SERVICE OF THE UNITED STATES, AND THEREFORE ARE NOT WITHIN THE PROHIBITION OF THE ACT OF JULY 31, 1894, 28 STAT. 205, PROHIBITING THE APPOINTMENT OF ANY PERSON OF THE UNITED STATES WHO HOLDS AN OFFICE, THE ANNUAL COMPENSATION OR SALARY OF WHICH IS $2,500 OR MORE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, APRIL 23, 1937:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 3, 1937, AS FOLLOWS:

UNDER DATE OF JANUARY 29, 1936, THE ACTING ADJUTANT GENERAL FOR THE STATE OF MONTANA, BY SPECIAL ORDER NO. 8 (COPY OF EXTRACT ENCLOSED) DIRECTED MAJOR CLARENCE H. OLSON, INFANTRY, ASST. G-3, 41ST DIVISION, MONTANA NATIONAL GUARD, TO PROCEED TO THE COMMAND AND GENERAL STAFF SCHOOL, FORT LEAVENWORTH, KANSAS, AND REPORT TO THE COMMANDANT THEREOF AS A STUDENT FOR THE NATIONAL GUARD AND RESERVE OFFICERS COURSE.

AT THAT TIME MAJOR OLSON WAS A CUSTOMS-PATROL INSPECTOR AT $2,100 PER ANNUM ON THE FORCE OF THE COLLECTOR OF CUSTOMS AT GREAT FALLS, MONTANA, AND REQUESTED LEAVE WITHOUT PAY IN ORDER TO ATTEND THE ABOVE NAMED SCHOOL.

AS THE PER ANNUM RATE OF PAY AND ALLOWANCES OF MAJOR OLSON'S RANK IN THE NATIONAL GUARD AMOUNTED TO MORE THAN $2,500, THE BUREAU OF CUSTOMS WAS OF THE OPINION THAT IT WOULD BE NECESSARY FOR HIM, IN VIEW OF THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, TO RESIGN FROM HIS POSITION IN THE CUSTOMS SERVICE. MAJOR OLSON ACCORDINGLY RESIGNED, EFFECTIVE AT THE CLOSE OF BUSINESS ON MARCH 14, 1936.

UNDER DATE OF DECEMBER 24, 1936, THIS MATTER WAS PRESENTED TO THE CHIEF, NATIONAL GUARD BUREAU, WAR DEPARTMENT, AND A COPY OF HIS REPLY, DATED JANUARY 4, 1937, WHEREIN IT IS STATED THAT MAJOR OLSON COULD LEGALLY HAVE BEEN GRANTED LEAVE OF ABSENCE WITHOUT PAY FROM HIS CIVIL POSITION WHILE ATTENDING THE COMMAND AND GENERAL STAFF SCHOOL, IS ALSO ENCLOSED.

YOUR DECISION IS REQUESTED ON THE FOLLOWING POINTS:

1. MAY MAJOR OLSON'S RESIGNATION BE REVOKED AT THIS TIME?

2. IF REVOKED, MAY PAYMENT NOW BE MADE TO HIM FOR MILITARY AND ANNUAL LEAVE WITH PAY, EFFECTIVE MARCH 15, 1936, TO WHICH HE WOULD ORDINARILY HAVE BEEN ENTITLED?

3. IF NOT REVOKED, IS HE NOW ENTITLED TO ACCRUED ANNUAL LEAVE STANDING TO HIS CREDIT ON THE DATE OF SEPARATION?

MAJOR OLSON WAS REINSTATED IN HIS FORMER POSITION AS A CUSTOMS PATROL INSPECTOR ON NOVEMBER 2, 1936.

PARAGRAPH 1 OF SPECIAL ORDERS NO. 8, DATED OFFICE OF THE ADJUTANT GENERAL, STATE OF MONTANA, JANUARY 29, 1936, IS WORDED AS FOLLOWS:

BY AUTHORITY OF THE SECRETARY OF WAR, CONTAINED IN LETTER FROM THE CHIEF, NATIONAL GUARD BUREAU, DATED JANUARY 20, 1936, MAJOR CLARENCE H. OLSON, INFANTRY, ASST. G-3, 41ST DIVISION, MONTANA NATIONAL GUARD, WILL PROCEED ON MARCH 12, 1936, FROM SWEET GRASS, MONTANA, TO THE COMMAND AND GENERAL STAFF SCHOOL, FORT LEAVENWORTH, KANSAS, REPORTING TO THE COMMANDANT, THE COMMAND AND GENERAL STAFF SCHOOL, ON MARCH 15, 1936, AS A STUDENT FOR THE NATIONAL GUARD AND RESERVE OFFICERS COURSE, COMMENCING MARCH 16, 1936, AND ENDING JUNE 18, 1936. UPON COMPLETION OF THE COURSE, OR WHEN RELIEVED BY THE COMMANDANT, THE COMMAND AND GENERAL STAFF SCHOOL, MAJOR CLARENCE H. OLSON WILL RETURN TO HIS HOME. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE.

SECTION 99 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 44 STAT. 674, IS PRESUMABLY THE STATUTE UNDER WHICH MR. OLSON WAS ORDERED TO ATTEND THE NATIONAL GUARD AND RESERVE OFFICERS' COURSE PURSUANT TO THE QUOTED ORDERS. THAT SECTION PROVIDES:

UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, THE SECRETARY OF WAR MAY, UPON THE RECOMMENDATION OF THE GOVERNOR OF ANY STATE OR TERRITORY, OR THE COMMANDING GENERAL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA, AUTHORIZE A LIMITED NUMBER OF SELECTED OFFICERS, WARRANT OFFICERS, OR ENLISTED MEN OF THE NATIONAL GUARD TO ATTEND AND PURSUE A REGULAR COURSE OF STUDY AT ANY MILITARY-SERVICE SCHOOL OF THE UNITED STATES, EXCEPT THE UNITED STATES MILITARY ACADEMY * * * AND ANY SUCH OFFICER, OR WARRANT OFFICER, SHALL RECEIVE, OUT OF ANY NATIONAL GUARD ALLOTMENT OF FUNDS AVAILABLE FOR THE PURPOSE, THE PAY AND ALLOWANCES PROVIDED IN THE PAY READJUSTMENT ACT OF JUNE 10, 1922, FOR OFFICERS AND WARRANT OFFICERS OF THE NATIONAL GUARD WHEN AUTHORIZED BY LAW TO RECEIVE FEDERAL PAY AND THE TRAVEL ALLOWANCES PROVIDED IN SECTION 12 THEREOF. * *

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED AUGUST 29, 1916, 39 STAT. 582, PROVIDES:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR TO OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA: * * *.

WHILE ATTENDING SERVICE SCHOOLS UNDER SECTION 99 OF THE NATIONAL DEFENSE ACT, OFFICERS OF THE NATIONAL GUARD, ALTHOUGH ENTITLED TO PAY AND ALLOWANCES OF THEIR GRADE IN THE NATIONAL GUARD UNDER AN APPROPRIATION MADE BY CONGRESS, ARE NOT IN THE ACTUAL SERVICE OF THE UNITED STATES, AND THEY ARE NOT THEREFORE WITHIN THE PROHIBITIONS OF THE ACT OF JULY 31, 1894, 28 STAT. 205, PROHIBITING THE APPOINTMENT OF ANY PERSON UNDER THE UNITED STATES WHO HOLDS AN OFFICE, THE ANNUAL COMPENSATION OR SALARY ATTACHED TO WHICH IS $2,500 OR MORE. SEE A 10481, DATED JULY 29, 1925, TO THE SECRETARY OF THE TREASURY; SECTION 38 OF THE NATIONAL DEFENSE ACT AS AMENDED BY SECTION 4 OF THE ACT OF JUNE 15, 1933, 48 STAT. 155.

UNDER THE CIRCUMSTANCES AND THE LAW, IT APPEARS THERE WAS NO LEGAL REQUIREMENT FOR MR. OLSON'S RESIGNATION FROM HIS CIVILIAN EMPLOYMENT AS A CONDITION PRECEDENT TO REPORTING AND SERVING AS AN OFFICER OF THE NATIONAL GUARD AT THE COURSE OF INSTRUCTIONS UNDER THE ORDERS OF JANUARY 29, 1936. ADMINISTRATIVELY HE LAWFULLY COULD HAVE BEEN GRANTED LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION BUT IT APPEARS HE WAS ACTUALLY SEPARATED FROM HIS CIVILIAN POSITION MARCH 14, 1936, AND WAS NOT REINSTATED UNTIL NOVEMBER 2, 1936.

ANSWERING YOUR FIRST QUESTION, YOU ARE INFORMED THAT UPON THE FACTS STATED THE EMPLOYEE WAS LEGALLY AND EFFECTIVELY SEPARATED FROM HIS CIVILIAN POSITION BY RESIGNATION MARCH 14, 1936, AND THEREAFTER CEASED TO BE AN EMPLOYEE OF THE GOVERNMENT. THE AUTHORITIES SEEM AGREED THAT A RESIGNATION OF AN EMPLOYEE DULY ACCEPTED BY COMPETENT AUTHORITY MAY NOT BE REVOKED AFTER RESIGNATION BECOMES EFFECTIVE. THE EFFECT OF DECIDED CASES IS THAT A VALID RESIGNATION AND AN UNCONDITIONAL ACCEPTANCE THEREOF UNREVOKED PRIOR TO THE DATE THE RESIGNATION TAKES EFFECT OPERATES TO REMOVE AN EMPLOYEE FROM THE SERVICE AND NOTHING SHORT OF A NEW APPOINTMENT CAN EFFECT A RESTORATION. SEE MIMMACK V. UNITED STATES, 96 U.S. 426, 24 L.ED. 1067; UNITED STATES V. CORSON, 114 U.S. 620, 29 L.ED. 254; MONTGOMERY V. UNITED STATES, 19 CT.CLS. 370; ALSO, EBERLEIN V. UNITED STATES, 257 U.S. 82, 66 L.ED. 140.

IN THIS CONNECTION, ATTENTION IS INVITED TO THE RECENT DECISION OF THIS OFFICE DATED MARCH 30, 1937, A-84582, 16 COMP. GEN. 899, WHEREIN IT WAS STATED IN PART:

THE ACT OF MARCH 14, 1936, MAKES A GRANT OF LEAVE IN KIND ONLY, THAT IS, THE RIGHT TO BE ABSENT FROM DUTY FOR THE PRESCRIBED PERIOD WITHOUT LOSS OF PAY WHILE RETAINING A STATUS AS ONE OF THE ,CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" INCLUDED WITHIN THE PURVIEW OF THE LAW. THERE IS NO PROVISION OF THE LAW, EXPRESSED OR IMPLIED, AUTHORIZING A PAYMENT IN LIEU OF LEAVE NOT GRANTED TO A FORMER OFFICER OR EMPLOYEE WHO NO LONGER HAS A STATUS UPON WHICH THE STATUTE MAY OPERATE. HENCE, AFTER AN EMPLOYEE BECOMES LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE, THERE IS NO AUTHORITY TO RESTORE HIM TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE WHICH HAD ACCRUED BUT WAS NOT TAKEN PRIOR TO SUCH SEPARATION.

THIS OFFICE HAS RECOGNIZED THE FACT THAT THE STATUTE, UNLIKE CERTAIN PRIOR LEAVE ACTS, MAKES IT THE PLAIN DUTY OF ADMINISTRATIVE OFFICERS TO GRANT THE LEAVE, BUT THERE MUST BE RECOGNIZED, ALSO, THE FACT THAT NO REMEDY HAS BEEN PROVIDED TO OFFICERS AND EMPLOYEES WHO DO NOT RECEIVE THE LEAVE PRIOR TO THEIR SEPARATION FROM THE SERVICE BECAUSE OF ADMINISTRATIVE FAILURE OR REFUSAL TO COMPLY WITH THE STATUTE. THE GRANTING OF LEAVE IS ENTIRELY AN ADMINISTRATIVE RESPONSIBILITY, AND MISUNDERSTANDINGS OR NEGLIGENCE IN THE ADMINISTRATION OF THE LAW MAY NOT FORM THE BASIS OF A CLAIM AGAINST APPROPRIATED MONEYS FOR ADDITIONAL COMPENSATION.

IN VIEW OF THE NEGATIVE ANSWER TO QUESTION NO. 1, IT IS UNNECESSARY TO ANSWER YOUR SECOND QUESTION EXCEPT TO STATE FOR YOUR INFORMATION THAT UNDER SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, MILITARY LEAVE OF ABSENCE WITH PAY FROM A CIVILIAN POSITION UNDER THE GOVERNMENT MAY NOT BE GRANTED TO AN OFFICER OF THE NATIONAL GUARD WHILE ATTENDING UNDER ORDERS A MILITARY SCHOOL FOR THE PURPOSE OF PURSUING A COURSE OF INSTRUCTION UNDER THE PROVISIONS OF SECTION 99 OF THE NATIONAL DEFENSE ACT. SEE 1 COMP. GEN. 256.

YOUR QUESTION NO. 3 IS ANSWERED IN THE NEGATIVE ON AUTHORITY OF 16 COMP. GEN. 212, WHERE IT WAS STATED (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE SEPARATED FROM THE SERVICE WITHOUT PREJUDICE WHO IS REINSTATED OR REAPPOINTED AFTER A BREAK IN SERVICE IS NOT ENTITLED UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, TO LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SEPARATION.

STATING THE QUESTION IN ANOTHER WAY, DOES THE REAPPOINTMENT AFTER A HIATUS RESULTING FROM A COMPLETE SEPARATION REVIVE THE RIGHT TO THE LEAVE OF ABSENCE WHICH WAS LOST BECAUSE NOT TAKEN AT THE TIME OF SEPARATION? THE PRECISE SITUATION HERE PRESENTED DOES NOT APPEAR TO HAVE BEEN EXPRESSLY COVERED BY THE ACT OF MARCH 14, 1936, OR BY THE REGULATIONS OF THE PRESIDENT ISSUED PURSUANT TO SECTION 7 OF THE ACT. HOWEVER, SECTION 5 OF EXECUTIVE ORDER 7409, DATED JULY 9, 1936, PRESCRIBING REGULATIONS RELATING TO ANNUAL LEAVE OF GOVERNMENT EMPLOYEES, PROVIDES:

EMPLOYEES TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH ACCUMULATED LEAVE AND CHARGED WITH UNACCRUED LEAVE ADVANCED.

THIS SECTION PROVIDES SPECIFICALLY THAT EMPLOYEES SHALL BE CREDITED WITH ACCUMULATED LEAVE ONLY WHEN REAPPOINTED WITHOUT BREAK IN SERVICE TO ANOTHER PERMANENT POSITION. MR. OLSON, HAVING BEEN APPOINTED NOVEMBER 2, 1936, FOLLOWING HIS RESIGNATION OF MARCH 14, 1936, IS NOT LAWFULLY ENTITLED TO ACCRUED LEAVE STANDING TO HIS CREDIT ON THE DATE OF SEPARATION.