A-94840, JUNE 3, 1938, 17 COMP. GEN. 1049

A-94840: Jun 3, 1938

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IS NOT ENTITLED TO CIVILIAN COMPENSATION WHILE HE REMAINED IN THE ARMY. REFUND OF THE FULL AMOUNT OF SUCH COMPENSATION RECEIVED PRIOR TO HIS DISCHARGE FROM THE ARMY IS REQUIRED. IS AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED IN THE CASE OF DAVID H. WHO WAS PROBATIONALLY APPOINTED ON FEBRUARY 2. WILLETTS INTO THE SERVICE FAILED TO NOTE THAT HE WAS AT THE TIME AN ENLISTED MAN OF THE ARMY IN A FURLOUGH STATUS. IMMEDIATE STEPS WERE TAKEN TO WITHHOLD FURTHER SALARY PAYMENTS. THERE ARE NOW BEING HELD TWO SALARY CHECKS FOR THE MONTH OF APRIL 1938. DURING MY ENLISTMENT I WAS STATIONED AT FORT SLOCUM. THE LETTER WAS SHOWN TO MY COMMANDING OFFICER. AS IT DID NOT STATE DEFINITELY THAT I HAD A POSITION TO GO TO I WAS GIVEN TO UNDERSTAND THAT I COULD NOT BE DISCHARGED UNLESS I HAD AN AFFIDAVIT SHOWING I HAD A POSITION TO ACCEPT. "3.

A-94840, JUNE 3, 1938, 17 COMP. GEN. 1049

COMPENSATION - CIVILIAN SERVICES BY ARMY ENLISTED MAN AS ENLISTED MAN GRANTED FURLOUGH FOR THE PURPOSE OF SEEKING FEDERAL CIVILIAN EMPLOYMENT AS A CONDITION TO HIS PURCHASE OF A DISCHARGE FROM THE ARMY, IS NOT ENTITLED TO CIVILIAN COMPENSATION WHILE HE REMAINED IN THE ARMY, AND REFUND OF THE FULL AMOUNT OF SUCH COMPENSATION RECEIVED PRIOR TO HIS DISCHARGE FROM THE ARMY IS REQUIRED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, JUNE 3, 1938:

YOUR LETTER OF MAY 5, 1938, IS AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED IN THE CASE OF DAVID H. WILLETTS, WHO WAS PROBATIONALLY APPOINTED ON FEBRUARY 2, 1938, FROM CIVIL SERVICE CERTIFICATE NO. H-73, AS AN UNDER CLERK, CAF-1, AT A SALARY RATE OF $1,260 PER ANNUM, IN THE DEPARTMENTAL SERVICE, AND ASSIGNED FOR DUTY AT BALTIMORE, MARYLAND. HE ENTERED ON DUTY AT BALTIMORE ON FEBRUARY 7, 1938, AND HAS PERFORMED CONTINUOUS SERVICE SINCE THAT DATE.

THE PERSONS RESPONSIBLE FOR INDUCTING MR. WILLETTS INTO THE SERVICE FAILED TO NOTE THAT HE WAS AT THE TIME AN ENLISTED MAN OF THE ARMY IN A FURLOUGH STATUS, WHICH FACT DID NOT COME TO THE ATTENTION OF THE PAY ROLL UNIT UNTIL APRIL 6. IMMEDIATE STEPS WERE TAKEN TO WITHHOLD FURTHER SALARY PAYMENTS, AND THERE ARE NOW BEING HELD TWO SALARY CHECKS FOR THE MONTH OF APRIL 1938, PENDING YOUR DECISION. MR. WILLETTS HAD ALREADY RECEIVED AND CASHED SALARY CHECKS FOR THE PAY PERIODS FEBRUARY 7-15, FEBRUARY 16-28, MARCH 1-15, AND MARCH 16-31, 1938.

THE FOLLOWING STATEMENT FROM MR. WILLETTS, DATED MAY 2, 1938, EXPLAINS THE CHAIN OF EVENTS LEADING FROM HIS FURLOUGH OF 60 DAYS TO HIS DISCHARGE FROM THE ARMY ON APRIL 11, 1938:

"1. DURING MY ENLISTMENT I WAS STATIONED AT FORT SLOCUM, N.Y., AND I RECEIVED A LETTER FROM THE SOCIAL SECURITY BOARD NOTIFYING ME OF A PROBABLE APPOINTMENT, COULD I BE READY TO START WORK BY FEBRUARY 1ST. IMMEDIATELY ASKED THE SOCIAL SECURITY BOARD FOR AN EXTENSION OF ONE MONTH TO GIVE ME TIME TO BE DISCHARGED BY PURCHASE; WHICH COULD NOT BE GRANTED. THE BOARD NOTIFIED ME THAT I SHOULD BE READY TO ACCEPT EMPLOYMENT NO LATER THAN FEB. 1ST.

"2. THE LETTER WAS SHOWN TO MY COMMANDING OFFICER, AND AS IT DID NOT STATE DEFINITELY THAT I HAD A POSITION TO GO TO I WAS GIVEN TO UNDERSTAND THAT I COULD NOT BE DISCHARGED UNLESS I HAD AN AFFIDAVIT SHOWING I HAD A POSITION TO ACCEPT.

"3. IN ORDER TO BE READY BY FEB. 1ST TO ACCEPT EMPLOYMENT I REQUESTED, AND WAS GRANTED, A FURLOUGH OF 60 DAYS IN CASE I SHOULD BE CALLED TO WORK.

"4. AFTER WORKING UNTIL MARCH 3RD I SENT IN MY APPLICATION REQUESTING DISCHARGE BY PURCHASE WHICH WAS APPROVED; THEN I REQUESTED TO BE DISCHARGED IN THE THIRD CORPS AREA WHICH WAS ALSO GRANTED, AND I WAS DISCHARGED APRIL 11TH, AND AM WORKING FOR THE SOCIAL SECURITY BOARD, AND HAVE NOT RECEIVED PAY FOR THE MONTH OF APRIL.'

FROM THE FOREGOING STATEMENT IT WOULD APPEAR THAT MR. WILLETTS ACTED IN ACCORDANCE WITH INSTRUCTIONS FROM HIS COMMANDING OFFICER. HE ASKED THE SOCIAL SECURITY BOARD'S OFFICE AT BALTIMORE FOR AN EXTENSION OF A MONTH TO ALLOW HIM TIME TO BE DISCHARGED BY PURCHASE, BUT WAS NOTIFIED THAT HE SHOULD BE READY TO ACCEPT EMPLOYMENT NOT LATER THAN FEBRUARY 1, 1938. ACCORDINGLY REQUESTED AND WAS GRANTED A FURLOUGH OF 60 DAYS FROM THE ARMY, IN THE EVENT THAT HE SHOULD BE CALLED FOR DUTY.

IN VIEW OF THE FACT THAT MR. WILLETTS DID NOT MISREPRESENT HIS MILITARY STATUS, BUT, ON THE CONTRARY, INDICATED ON VARIOUS FORMS WHICH HE EXECUTED THAT HE WAS ON FURLOUGH FROM THE ARMY, IT WOULD APPEAR THAT HIS APPOINTMENT IN THIS INSTANCE WAS AN ADMINISTRATIVE ERROR, FOR WHICH MR. WILLETTS SHOULD NOT BE REQUIRED TO SUFFER.

IT IS REQUESTED THAT YOU ADVISE THE BOARD WHETHER MR. WILLETTS HAS THE PRIVILEGE OF REFUNDING PAY RECEIVED FROM THE ARMY FOR THE PERIOD OF DUAL SERVICE INVOLVED OR WHETHER HE MUST BE REQUIRED TO REFUND PAY RECEIVED AS A CIVIL EMPLOYEE FOR THAT PERIOD.

IN DECISION OF JULY 21, 1923, 3 COMP. GEN. 40, 41, IT WAS HELD AS FOLLOWS:

THE QUESTION WHETHER A PERSON IN THE MILITARY SERVICE MAY IN THE ABSENCE OF A STATUTE BE EMPLOYED IN ANOTHER CAPACITY UNDER THE GOVERNMENT AND BE PAID THEREFOR IS NOT A NEW ONE. SO FAR AS AN ENLISTED MAN IS CONCERNED, AND UNTIL HIS ENLISTMENT IS TERMINATED, HE MAY BE PAID ONLY THE PAY AND ALLOWANCES THAT ACCRUE TO HIM UNDER THE LAWS AND REGULATIONS APPLICABLE TO HIS ENLISTED STATUS. 15 OP.ATTY.GEN., 362; 18 COMP. DEC., 224. SEE ALSO FOR A CASE SOMEWHAT SIMILAR TO THE PRESENT ONE, 22 COMP. DEC., 259. AND SEE ALSO 26 COMP. DEC., 568; 25 ID., 666.

SEE ALSO ARMY REGULATIONS 35-2320, PARAGRAPH 1 (D).

THE ACTION OF THE ARMY OFFICERS IN GRANTING FURLOUGH TO ENLISTED MAN, DAVID H. WILLETTS, FOR THE PURPOSE OF SEEKING EMPLOYMENT AS A CONDITION TO HIS PURCHASE OF A DISCHARGE FROM THE ARMY MAY NOT BE REGARDED AS HAVING AUTHORIZED HIS APPOINTMENT IN A CIVILIAN POSITION OR THE PAYMENT TO HIM OF CIVILIAN COMPENSATION WHILE HE REMAINED IN THE ARMY. ACCORDINGLY, MR. WILLETTS SHOULD BE REQUIRED TO REFUND THE FULL AMOUNT OF CIVILIAN COMPENSATION RECEIVED PRIOR TO HIS DISCHARGE FROM THE ARMY.