A-96323, JULY 28, 1938, 18 COMP. GEN. 94

A-96323: Jul 28, 1938

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STATUS ACTIVE DUTY OF AN ARMY RESERVE OFFICER WITH THE CIVILIAN CONSERVATION CORPS IS NOT DUTY WITH TROOPS OR AT FIELD EXERCISES. IS AS FOLLOWS: ON JUNE 14. RILEY WAS ORDERED TO REPORT FOR DUTY WITH THE CIVILIAN CONSERVATION CORPS AT CAMP BEAUREGARD. RILEY WAS APPOINTED AS AN UNDER CLERK AT $1. THIS FURLOUGH WITHOUT PAY WAS GRANTED UNTIL SUCH TIME AS WE COULD SUBMIT TO YOU THE FOLLOWING TWO QUESTIONS: (1) MAY MR. RILEY BE CARRIED IN A FURLOUGH WITHOUT PAY STATUS WHILE HE IS IN AN ACTIVE DUTY STATUS WITH THE CIVILIAN CONSERVATION CORPS WITHOUT VIOLATING THE DUAL COMPENSATION LAWS? IF YOUR ANSWER IS IN THE NEGATIVE THIS OFFICE WILL AMEND THE FURLOUGH ACTION AND TERMINATE MR. RILEY IN A FURLOUGH WITHOUT PAY STATUS WHILE HE IS IN AN ACTIVE DUTY STATUS WITH THE CIVILIAN CONSERVATION CORPS MAY ANY UNUSED LEAVE TO HIS CREDIT ON JUNE 21 BE CARRIED FORWARD UNTIL HIS RETURN TO ACTIVE DUTY WITH THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS.

A-96323, JULY 28, 1938, 18 COMP. GEN. 94

CIVILIAN EMPLOYEE ALSO RESERVE OFFICER ON ACTIVE DUTY WITH CIVILIAN CONSERVATION CORPS - DOUBLE COMPENSATION, MILITARY LEAVE, FURLOUGH WITHOUT PAY, AND ANNUAL LEAVE, STATUS ACTIVE DUTY OF AN ARMY RESERVE OFFICER WITH THE CIVILIAN CONSERVATION CORPS IS NOT DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, WITHIN THE MEANING OF THE MILITARY LEAVE OF ABSENCE WITH PAY ACT OF MAY 12, 1917, 40 STAT. 72, BUT A CIVILIAN EMPLOYEE OF THE GOVERNMENT ORDERED WITH HIS CONSENT TO SUCH ACTIVE DUTY AS AN ARMY RESERVE OFFICER, ALTHOUGH NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY DURING SUCH SERVICE, MAY BE FURLOUGHED WITHOUT PAY FROM HIS CIVILIAN POSITION FOR THE PERIOD INVOLVED, THE FURLOUGHING WITHOUT PAY, HOWEVER, OPERATING AS A FORFEITURE OF ANY ACCRUED UNUSED ANNUAL LEAVE AT THE TIME OF FURLOUGH. WHERE THE COMBINED RATE OF COMPENSATION OF A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND ACTIVE DUTY PAY AS AN ARMY RESERVE OFFICER WITH THE CIVILIAN CONSERVATION CORPS EXCEEDS $2,000 PER ANNUM, THE DUAL COMPENSATION STATUTE OF 1916, AS AMENDED, 39 STAT. 582, PRECLUDES BOTH PAYMENTS DURING THE SAME PERIOD, EVEN DURING ANY PERIOD THE EMPLOYEE MIGHT BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY FROM HIS CIVILIAN POSITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE GOVERNOR, FARM CREDIT ADMINISTRATION, JULY 28, 1938:

YOUR LETTER OF JULY 6, 1938, IS AS FOLLOWS:

ON JUNE 14, 1938, THE REGIONAL MANAGER OF THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS, TENNESSEE, REQUESTED THAT A SIX MONTHS' FURLOUGH WITHOUT PAY BE GRANTED TO AN EMPLOYEE OF THAT OFFICE, NAMELY, MR. WILLIAM B. RILEY, JR., FOR THE REASON THAT MR. RILEY WAS ORDERED TO REPORT FOR DUTY WITH THE CIVILIAN CONSERVATION CORPS AT CAMP BEAUREGARD, ALEXANDRIA, LOUISIANA, EFFECTIVE ON JUNE 21, 1938, AS FIRST LIEUTENANT, OFFICERS' RESERVE CORPS.

MR. RILEY WAS APPOINTED AS AN UNDER CLERK AT $1,200, EO-3 IN THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS ON FEBRUARY 3, 1938. BEFORE RECEIVING HIS APPOINTMENT WITH THE MEMPHIS OFFICE, MR. RILEY HAD SERVED AS A FIRST LIEUTENANT IN THE CIVILIAN CONSERVATION CORPS, WITH HEADQUARTERS AT FORT OGLETHORPE, GEORGIA, FOR APPROXIMATELY FOUR YEARS (FROM JUNE 1933 TO MAY 1937).

WE SUGGESTED TO THE REGIONAL MANAGER OF THE MEMPHIS OFFICE, IN RESPONSE TO HIS REQUEST OF JUNE 14, 1938, THAT MR. RILEY TAKE HIS ANNUAL LEAVE AS FAR AS POSSIBLE PRIOR TO JUNE 21, 1938, THE DATE HE REPORTED FOR DUTY WITH THE CIVILIAN CONSERVATION CORPS, AND STATED THAT ON HIS RETURN TO DUTY WITH THE MEMPHIS OFFICE WE WOULD ENDEAVOR TO OBTAIN FOR MR. RILEY ANY ACCRUED LEAVE NOT USED PRIOR TO JUNE 21. WE STATED FURTHER THAT WE HAD APPROVED THE REQUEST FOR SIX MONTHS' FURLOUGH WITHOUT PAY FOR MR. RILEY, EFFECTIVE ON JUNE 21, 1938.

THIS FURLOUGH WITHOUT PAY WAS GRANTED UNTIL SUCH TIME AS WE COULD SUBMIT TO YOU THE FOLLOWING TWO QUESTIONS:

(1) MAY MR. RILEY BE CARRIED IN A FURLOUGH WITHOUT PAY STATUS WHILE HE IS IN AN ACTIVE DUTY STATUS WITH THE CIVILIAN CONSERVATION CORPS WITHOUT VIOLATING THE DUAL COMPENSATION LAWS? IF YOUR ANSWER IS IN THE NEGATIVE THIS OFFICE WILL AMEND THE FURLOUGH ACTION AND TERMINATE MR. RILEY'S SERVICES EFFECTIVE AT THE CLOSE OF BUSINESS ON JUNE 20, 1938.

(2) IF THE DUAL COMPENSATION LAWS WOULD NOT BE VIOLATED BY CARRYING MR. RILEY IN A FURLOUGH WITHOUT PAY STATUS WHILE HE IS IN AN ACTIVE DUTY STATUS WITH THE CIVILIAN CONSERVATION CORPS MAY ANY UNUSED LEAVE TO HIS CREDIT ON JUNE 21 BE CARRIED FORWARD UNTIL HIS RETURN TO ACTIVE DUTY WITH THE EMERGENCY CROP AND FEED LOAN OFFICE AT MEMPHIS, TENNESSEE, OR MUST THIS UNUSED LEAVE BE FORFEITED? MR. RILEY HAD TO HIS CREDIT, ON JUNE 21, 1938, UNUSED ANNUAL LEAVE IN THE AMOUNT OF 4 DAYS AND 3 HOURS, AND UNUSED SICK LEAVE IN THE AMOUNT OF 1 DAY, 5 HOURS, AND 15 MINUTES.

IT IS UNDERSTOOD THAT A RESERVE OFFICER'S ACCEPTANCE OF A CALL OF THIS KIND IS ENTIRELY VOLUNTARY ON HIS PART. HOWEVER, IN VIEW OF THE TEMPORARY NATURE OF THE ASSIGNMENT AND ITS IMPORTANT GOVERNMENTAL PURPOSE, IT IS HOPED THAT YOU MAY FIND IT POSSIBLE TO RULE THAT MR. RILEY MAY BE CARRIED ON FURLOUGH WITHOUT PAY, AND THAT THE LEAVE REGULATIONS, WHICH PROHIBIT THE GRANTING OF LEAVE WITHOUT PAY UNTIL AFTER ALL ACCRUED ANNUAL LEAVE HAS BEEN TAKEN, DO NOT APPLY TO A CASE OF THIS KIND.

YOUR ANSWERS TO THE ABOVE QUESTIONS WILL BE VERY MUCH APPRECIATED.

SECTION 6 OF THE ACT OF JUNE 28, 1937, 50 STAT. 320, ESTABLISHING THE CIVILIAN CONSERVATION CORPS, PROVIDES AS FOLLOWS:

THE PRESIDENT MAY ORDER RESERVE OFFICERS OF THE ARMY AND OFFICERS OF THE NAVAL AND MARINE RESERVES AND WARRANT OFFICERS OF THE COAST GUARD TO ACTIVE DUTY WITH THE CORPS UNDER THE PROVISIONS OF SECTION 37A OF THE NATIONAL DEFENSE ACT AND THE ACT OF FEBRUARY 28, 1925, RESPECTIVELY.

SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776, PROVIDES AS FOLLOWS:

RESERVE OFFICERS ON ACTIVE DUTY.--- TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE PRESIDENT MAY ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD; BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN FIFTEEN DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT. A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY. WHEN ON ACTIVE DUTY HE SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS AN OFFICER OF THE REGULAR ARMY OF THE SAME GRADE AND LENGTH OF ACTIVE SERVICE, AND MILEAGE FROM HIS HOME TO HIS FIRST STATION AND FROM HIS LAST STATION TO HIS HOME, BUT SHALL NOT BE ENTITLED TO RETIREMENT OR RETIRED PAY.

THE ACT OF MAY 12, 1917, 40 STAT. 72, 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 FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED AUGUST 29, 1916, 39 STAT. 582, PROVIDES IN PART AS FOLLOWS:

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: * * *

THE STATUTE FIRST QUOTED SPECIFICALLY AUTHORIZES THE PRESIDENT TO ORDER RESERVE OFFICERS OF THE ARMY TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS UNDER THE PROVISIONS OF THE SECOND STATUTE QUOTED, UNDER WHICH THERE IS NO LIMITATION ON THE TIME THE PRESIDENT MAY ORDER SUCH RESERVE OFFICERS TO ACTIVE DUTY WITH THEIR CONSENT. ACTIVE DUTY OF A RESERVE OFFICER OF THE ARMY WITH THE CIVILIAN CONSERVATION CORPS IS NOT DUTY WITH TROOPS OR AT FIELD EXERCISES OR FOR INSTRUCTION AND DOES NOT COME WITHIN THE TERMS OF THE THIRD STATUTE QUOTED. ACCORDINGLY, A CIVILIAN EMPLOYEE OF THE GOVERNMENT WHO IS ORDERED WITH HIS CONSENT TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS AS A RESERVE OFFICER IS NOT ENTITLED TO THE BENEFITS OF SAID STATUTE, THAT IS, HE IS NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY.

HOWEVER, AS THE ACT ESTABLISHING THE CIVILIAN CONSERVATION CORPS AUTHORIZES THE PRESIDENT TO ORDER RESERVE OFFICERS TO ACTIVE DUTY WITH THE CORPS, INCLUDING CIVILIAN OFFICERS AND EMPLOYEES, AND ALSO AUTHORIZES THE PRESIDENT TO UTILIZE THE SERVICES OF SUCH DEPARTMENTS OR AGENCIES OF THE GOVERNMENT AS HE MAY DEEM NECESSARY TO CARRY OUT THE PURPOSES OF THE ACT (SEE SECS. 12 AND 13), IT IS REASONABLE TO CONCLUDE THAT A CIVILIAN EMPLOYEE MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED, BE FURLOUGHED WITHOUT PAY FROM HIS CIVILIAN POSITION DURING THE PERIOD HE IS ON ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY. QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE. IF THE COMBINED RATE OF COMPENSATION IN THE CIVILIAN POSITION AND ACTIVE DUTY PAY AS A RESERVE OFFICER EXCEEDS $2,000 PER ANNUM, AS IN THE INSTANT CASE, THE DUAL COMPENSATION STATUTE OF 1916, SUPRA, WOULD PRECLUDE BOTH PAYMENTS DURING THE SAME PERIOD, EVEN DURING ANY PERIOD THE EMPLOYEE MIGHT BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY FROM HIS CIVILIAN POSITION.

SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED LEAVE AND CURRENT LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT EMPLOYEES INJURED IN LINE OF DUTY MAY TAKE LEAVE WITHOUT PAY, IF DESIRED, COVERING THEIR ABSENCE DUE TO SUCH INJURY INSTEAD OF COVERING SUCH TIME BY ANNUAL LEAVE; AND DURING ABSENCE BECAUSE OF SUCH INJURY AND WHILE BEING PAID BY THE EMPLOYEES' COMPENSATION COMMISSION, EMPLOYEES SHALL CONTINUE TO EARN LEAVE, WHICH SHALL, HOWEVER, BE GRANTED ONLY IN THE EVENT OF THEIR RETURN TO ACTUAL DUTY.

THIS REGULATION PRECLUDES THE GRANTING OF LEAVE OR FURLOUGH WITHOUT PAY FOR ANY PURPOSE WITH THE ONE EXCEPTION MENTIONED IN THE REGULATIONS UNTIL ALL ANNUAL LEAVE HAS BEEN EXHAUSTED. HENCE, IT WOULD FOLLOW THAT, IF FURLOUGH WITHOUT PAY BE GRANTED AN EMPLOYEE TO PERMIT HIM TO SERVE WITH THE CIVILIAN CONSERVATION CORPS ON ACTIVE DUTY AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, SUCH FURLOUGH OR LEAVE WITHOUT PAY BEING IN EFFECT A SEPARATION FROM OR A BREAK IN THE SERVICE, ANY ACCRUED UNUSED ANNUAL LEAVE AT THE TIME SUCH FURLOUGH OR LEAVE IS GRANTED MUST BE REGARDED AS FORFEITED. QUESTION (2) IS ANSWERED ACCORDINGLY.