A-88216, AUGUST 19, 1937, 17 COMP. GEN. 174

A-88216: Aug 19, 1937

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OF OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE ALSO MEMBERS OF THE OFFICERS' RESERVE CORPS AND WHOSE APPOINTMENTS HAVE BEEN TERMINATED OR WHO HAVE BEEN PLACED ON A FURLOUGH OR LEAVE WITHOUT PAY BASIS. THE ACT INVOLVED NOT OPERATING TO INCREASE THE CIVILIAN PAY WHICH WOULD OTHERWISE HAVE BEEN RECEIVED BUT MERELY SAVING THE EMPLOYEE FROM LOSS OF PAY UNDER HIS CIVILIAN APPOINTMENT. IS AS FOLLOWS: IT IS REQUESTED THAT DECISION BE GIVEN ON THE QUESTIONS PRESENTED BELOW: (1) A REGULAR CIVIL SERVICE EMPLOYEE OF THE ENGINEER DEPARTMENT AT LARGE. WHO IS A RESERVE OFFICER OF THE ARMY. QUESTION: IS THE EMPLOYEE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY.

A-88216, AUGUST 19, 1937, 17 COMP. GEN. 174

LEAVES OF ABSENCE - MILITARY - OFFICERS AND EMPLOYEES GRANTED ACCUMULATED ANNUAL LEAVE PRIOR TO TERMINATION OF APPOINTMENT, FURLOUGH WITHOUT PAY, ETC. THE ORDERING TO ACTIVE MILITARY DUTY UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72, OF OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE ALSO MEMBERS OF THE OFFICERS' RESERVE CORPS AND WHOSE APPOINTMENTS HAVE BEEN TERMINATED OR WHO HAVE BEEN PLACED ON A FURLOUGH OR LEAVE WITHOUT PAY BASIS, EFFECTIVE UPON THE EXPIRATION OF ACCRUED ANNUAL LEAVE, DOES NOT REQUIRE A MODIFICATION OF THE ADMINISTRATIVE ACTION SO AS TO EXTEND THE CIVILIAN PAY STATUS BEYOND THE DATE ORIGINALLY FIXED, THE ACT INVOLVED NOT OPERATING TO INCREASE THE CIVILIAN PAY WHICH WOULD OTHERWISE HAVE BEEN RECEIVED BUT MERELY SAVING THE EMPLOYEE FROM LOSS OF PAY UNDER HIS CIVILIAN APPOINTMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, AUGUST 19, 1937:

YOUR LETTER OF AUGUST 5, 1937, IS AS FOLLOWS:

IT IS REQUESTED THAT DECISION BE GIVEN ON THE QUESTIONS PRESENTED BELOW:

(1) A REGULAR CIVIL SERVICE EMPLOYEE OF THE ENGINEER DEPARTMENT AT LARGE, WHO IS A RESERVE OFFICER OF THE ARMY, WHO HAS BEEN GRANTED THE ANNUAL LEAVE ACCRUED TO HIS CREDIT, WITH NOTICE THAT UPON WITHOUT PAY BECAUSE OF REDUCTION IN FORCE, HAS BEEN ORDERED TO ACTIVE MILITARY DUTY UNDER THE PROVISIONS OF THE ARMY APPROPRIATION ACT DATED MAY 12, 1917 (40 STAT. 40, 72), SUCH DUTY COMMENCING DURING THE PERIOD OF ACCRUED ANNUAL LEAVE.

QUESTION: IS THE EMPLOYEE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY, AND IS HIS ACCRUED ANNUAL LEAVE WITH PAY TO BE EXTENDED BEYOND THE DATE ORIGINALLY SET, A NUMBER OF DAYS EQUAL TO THE MILITARY DUTY?

(2) AN EMPLOYEE WHO WAS APPOINTED WITHOUT REFERENCE TO CIVIL SERVICE RULES IN THE ENGINEER DEPARTMENT, AND WHO HAS BEEN GRANTED LEAVE HIS DISCHARGE WITHOUT PREJUDICE BECAUSE OF REDUCTION IN FORCE WILL BECOME EFFECTIVE, IS ORDERED TO MILITARY DUTY UNDER THE PROVISIONS OF THE ACT ABOVE REFERRED TO, FOR A PERIOD NOT TO EXCEED 15 DAYS.

QUESTION: IS THE EMPLOYEE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY, AND IS HIS ACCRUED ANNUAL LEAVE WITH PAY TO BE EXTENDED, BEYOND THE DATE ORIGINALLY SET, A NUMBER OF DAYS EQUAL TO THE MILITARY DUTY?

(3) AN EMPLOYEE WHO WAS APPOINTED WITHOUT REFERENCE TO CIVIL SERVICE RULES IN THE ENGINEER DEPARTMENT HAS BEEN GRANTED HIS ACCRUED ANNUAL LEAVE AND, EFFECTIVE UPON THE EXPIRATION OF THAT LEAVE, HE HAS BEEN GRANTED LEAVE WITHOUT PAY. THIS EMPLOYEE HAS BEEN ORDERED TO ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF THE ACT ABOVE REFERRED TO FOR A PERIOD NOT TO EXCEED 15 DAYS, SUCH DUTY COMMENCING DURING THE PERIOD OF ANNUAL LEAVE.

QUESTION: IS THE EMPLOYEE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY, AND MAY HIS ACCRUED ANNUAL LEAVE BE EXTENDED, BEYOND THE DATE ORIGINALLY SET, FOR A NUMBER OF DAYS EQUAL TO THE MILITARY DUTY?

(4) A REGULAR CIVIL SERVICE EMPLOYEE WHO HAS BEEN ALLOWED THE ANNUAL LEAVE DUE HIM, AFTER WHICH HE IS TO BE FURLOUGHED WITHOUT PAY, HAS BEEN ORDERED TO MILITARY DUTY ON THE DATE IMMEDIATELY FOLLOWING THE EXPIRATION OF THE ANNUAL LEAVE.

QUESTION: IS THIS EMPLOYEE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY?

(5) AN EMPLOYEE WHO WAS APPOINTED WITHOUT REFERENCE TO CIVIL SERVICE RULES HAS BEEN ALLOWED THE ANNUAL LEAVE DUE HIM, WITH NOTICE THAT FOLLOWING THE ANNUAL LEAVE HE WILL BE IN STATUS OF LEAVE WITHOUT PAY. HAS BEEN ORDERED TO ACTIVE MILITARY DUTY ON THE DATE IMMEDIATELY FOLLOWING THAT OF EXPIRATION OF THE ANNUAL LEAVE.

QUESTION: IS THIS EMPLOYEE ENTITLED TO THE PAY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY?

(6) A REGULAR CIVIL SERVICE EMPLOYEE HAD BEEN GRANTED THE ANNUAL LEAVE TO WHICH HE WAS ENTITLED, WITH NOTICE THAT UPON TERMINATION OF THE LEAVE HE WOULD BE FURLOUGHED WITHOUT PAY. BEFORE THE DATE OF COMMENCEMENT OF THE ANNUAL LEAVE HE RECEIVED NOTICE TO REPORT FOR ACTIVE MILITARY DUTY UNDER THE PROVISION OF LAW ABOVE REFERRED TO,THE MILITARY DUTY TO BEGIN ON THE DATE ON WHICH THE ANNUAL LEAVE WAS TO HAVE COMMENCED.

QUESTION: MAY THE EMPLOYEE BE PAID THE SALARY OF HIS CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY, AND UPON TERMINATION OF THE MILITARY DUTY MAY THE ANNUAL LEAVE TO WHICH HE WAS ENTITLED BE ALLOWED HIM?

THE ACT OF MAY 12, 1917, 40 STAT. 72, PROVIDES AS FOLLOWS:

PROVIDED FURTHER, 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 FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

IN DECISION OF JUNE 6, 1932, 11 COMP. GEN. 469, WHEREIN WAS CONSIDERED THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1089, APPLICABLE TO MEMBERS OF THE NAVAL RESERVE, IN TERMS SIMILAR TO THE ACT HERE UNDER CONSIDERATION, IT WAS STATED AS FOLLOWS:

* * * THE STATUTE DOES NOT AUTHORIZE PAY FOR TRAINING DUTY, BUT SIMPLY SAVES CIVILIAN PAY, TC., TO WHICH OTHERWISE ENTITLED FOR A PERIOD NOT IN EXCESS OF 15 DAYS IN ANY ONE CALENDAR YEAR WHEN UNDERGOING TRAINING BY REASON OF MEMBERSHIP IN THE NAVAL RESERVE.

THE FOLLOWING APPEARS IN DECISION OF AUGUST 15, 1932, 12 COMP. GEN. 241, 242, WHEREIN IS CONSIDERED THE STATUTE HERE INVOLVED.

WHILE THE RIGHT TO LEAVE OF ABSENCE WITHOUT LOSS OF PAY FOR MILITARY TRAINING OR SERVICE PURSUANT TO PROPER ORDERS IS AN ABSOLUTE RIGHT GRANTED BY STATUTE AND MAY NOT BE LEGALLY DENIED BY ADMINISTRATIVE ACTION, THERE IS NO LOSS OF PAY WHERE THE EMPLOYEE AT THE TIME HE WAS IN ATTENDANCE AT THE TRAINING WAS NOT OTHERWISE IN A STATUS ENTITLING HIM TO PAY. FOR INSTANCE, IT COULD NOT SERIOUSLY BE CONTENDED THAT AN EMPLOYEE ON AN EXTENDED VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY OR UNDER AN ADMINISTRATIVE FURLOUGH UNDER THE PROVISIONS OF SECTION 216 OF THE ECONOMY ACT COULD RESTORE HIMSELF TO PAY STATUS FOR A PERIOD OF 15 DAYS DURING SUCH ABSENCE BY PERFORMING MILITARY SERVICE OR TRAINING PURSUANT TO PROPER MILITARY ORDERS. THERE IS NO LEGAL BASIS FOR APPLYING A DIFFERENT RULE WHERE THE PERIOD OF MILITARY TRAINING OR SERVICE IS DURING A PERIOD OF LEGISLATIVE FURLOUGH. SINCE NO INVOLVED ANY "LOSS OF PAY" IN TAKING MILITARY TRAINING OR SERVICE DURING SUCH PERIOD.

THERE IS NO REQUIREMENT OF LAW THAT THE CIVILIAN PAY STATUS OF ANY OF THE EMPLOYEES MUST BE EXTENDED SOLELY FOR THE PURPOSE OF GRANTING MILITARY LEAVE WITH PAY. THE STATUTE SAVES AN EMPLOYEE FROM LOSS OF PAY HE OTHERWISE WOULD HAVE RECEIVED UNDER HIS APPOINTMENT AS A CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT, BUT DOES NOT REQUIRE A MODIFICATION OF NECESSARY ADMINISTRATIVE ACTION FURLOUGHING OR SEPARATING AN EMPLOYEE SO AS TO INCREASE THE AMOUNT OF PAY THE EMPLOYEE OTHERWISE WOULD HAVE RECEIVED.