A-97579, SEPTEMBER 17, 1938, 18 COMP. GEN. 236

A-97579: Sep 17, 1938

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LEAVES OF ABSENCE - MILITARY - OFFICERS' RESERVE CORPS - VOLUNTARY AND INVOLUNTARY ACTIVE DUTY A CIVILIAN EMPLOYEE OF THE UNITED STATES WHO IS ALSO A MEMBER OF THE OFFICERS' RESERVE CORPS. IS ENTITLED. OFFICIALS AT THE BOSTON NAVY YARD ARE UNDER THE IMPRESSION THAT MILITARY LEAVE CANNOT BE GRANTED DUE TO INSTRUCTIONS RECEIVED IN REFERENCE (B). IT IS BELIEVED THAT THERE HAS BEEN A MISINTERPRETATION OF THE DECISION OF THE ACTING COMPTROLLER GENERAL OF JUNE 22. IT IS REQUESTED THAT THE DECISION IN REFERENCE (B) BE RECONSIDERED DUE TO THE APPARENT MISINTERPRETATION OF THE ACTING COMPTROLLER GENERAL'S DECISION. THIS MISINTERPRETATION IS APPARENTLY DUE TO A MISUNDERSTANDING OF THE TYPE OF ACTIVE DUTY PERFORMED AS REGULAR ARMY PAY.

A-97579, SEPTEMBER 17, 1938, 18 COMP. GEN. 236

LEAVES OF ABSENCE - MILITARY - OFFICERS' RESERVE CORPS - VOLUNTARY AND INVOLUNTARY ACTIVE DUTY A CIVILIAN EMPLOYEE OF THE UNITED STATES WHO IS ALSO A MEMBER OF THE OFFICERS' RESERVE CORPS, IS ENTITLED, UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72, TO MILITARY LEAVE OF ABSENCE "WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" WHEN ORDERED TO ACTIVE DUTY FOR TRAINING, OR FOR INSTRUCTION, TC., FOR A PERIOD NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR WHETHER THE ORDER BE WITH OR WITHOUT THE OFFICER'S CONSENT. 16 COMP. GEN. 1103, INVOLVING A PERIOD LONGER THAN 15 DAYS, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 17, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 27, 1938, FORWARDING FOR CONSIDERATION THE REQUEST OF NELSON E. SPURLING, CIVILIAN EMPLOYEE OF THE BOSTON NAVY YARD, FOR APPROVAL OF AN APPLICATION FOR MILITARY LEAVE, AS FOLLOWS:

1. IN APPLYING FOR MILITARY LEAVE TO COVER THE PERIOD OF ACTIVE DUTY TRAINING FROM JUNE 12 TO JUNE 25, 1938, BOTH DATES INCLUSIVE, AS ORDERED BY REFERENCE (C), OFFICIALS AT THE BOSTON NAVY YARD ARE UNDER THE IMPRESSION THAT MILITARY LEAVE CANNOT BE GRANTED DUE TO INSTRUCTIONS RECEIVED IN REFERENCE (B). IT IS BELIEVED THAT THERE HAS BEEN A MISINTERPRETATION OF THE DECISION OF THE ACTING COMPTROLLER GENERAL OF JUNE 22, 1937, A-86944, IN REFERENCE (B) REGARDING ITS APPLICATION TO THE WAR DEPARTMENT SPECIAL ORDERS IN REFERENCE (C).

2. IT IS REQUESTED THAT THE DECISION IN REFERENCE (B) BE RECONSIDERED DUE TO THE APPARENT MISINTERPRETATION OF THE ACTING COMPTROLLER GENERAL'S DECISION. THIS MISINTERPRETATION IS APPARENTLY DUE TO A MISUNDERSTANDING OF THE TYPE OF ACTIVE DUTY PERFORMED AS REGULAR ARMY PAY, ALLOWANCES, TRANSPORTATION AND SERVICE CREDIT WERE RECEIVED. IN THIS CONNECTION, ATTENTION IS INVITED TO ARMY REGULATIONS 140-5, SECTION VIII, AND SECTION IX WHICH DESCRIBES THE TYPES OF DUTY IN TIME OF PEACE.

SPECIAL ORDERS OF THE WAR DEPARTMENT DATED MAY 9, 1938 (REFERENCE C), ARE AS FOLLOWS:

45. BY DIRECTION OF THE PRESIDENT, EACH OF THE FOLLOWING-NAMED SECOND LIEUTENANTS OF THE ORDNANCE DEPARTMENT RESERVE IS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY, EFFECTIVE 12 JUNE, 1938. ON THAT DATE EACH OFFICER WILL PROCEED WITHOUT DELAY FROM THE PLACE INDICATED AFTER HIS NAME TO RARITAN ARSENAL, METUCHEN, NEW JERSEY, REPORTING IN PERSON UPON ARRIVAL TO THE COMMANDING OFFICER THEREAT FOR TRAINING. EACH OFFICER CONCERNED WILL RANK FROM 12 JUNE, 1938.

NELSON ELIOT SPURLING (0-359069), 51 CHESTER AVENUE, WALTHAM, MASSACHUSETTS.

EACH OFFICER WILL BE RELIEVED FROM DUTY IN TIME TO ENABLE HIM TO ARRIVE AT HIS HOME ON 25 JUNE, 1938, ON WHICH DATE HE WILL REVERT TO INACTIVE STATUS. FD 1037 P1-0121 A 1505-8. THE TRAVEL DIRECTED IS NECESSARY IN THE MILITARY SERVICE. FD 1037 P1-0621 A 1505-8. (AG. 210312, ORD.-RES.) (9 MAY, 38.)

IT IS CONFIRMED BY COMPETENT AUTHORITY THAT CLAIMANT WAS "ON ACTIVE DUTY AT RARITAN ARSENAL, METUCHEN, NEW JERSEY, FROM JUNE 12, 1938, TO JUNE 25, 1938, BOTH DATES INCLUSIVE, IN COMPLIANCE WITH PARAGRAPH 45, SPECIAL ORDERS NUMBER 108, WAR DEPARTMENT, DATED MAY 9, 1938.'

JUNE 8, 1938, THE COMMANDANT OF THE NAVY YARD, BOSTON, MASSACHUSETTS, WAS NOTIFIED BY THE ASSISTANT SECRETARY OF THE NAVY (REFERENCE B), AS FOLLOWS:

1. MILITARY LEAVE WITH PAY MAY NOT BE GRANTED TO A CIVIL EMPLOYEE WHO HOLDS A COMMISSION IN THE ORDNANCE DEPARTMENT RESERVE OF THE OFFICERS RESERVE CORPS, U.S. ARMY, AND WHO, IN COMPLIANCE WITH WAR DEPARTMENT'S SPECIAL ORDERS NO. 108 OF MAY 9, 1938, PAGE 7, PARAGRAPH 45, IS, WITH HIS CONSENT, ORDERED TO AND PERFORMS ACTIVE DUTY, EFFECTIVE FROM JUNE 12, 1938. IN THIS CONNECTION, ATTENTION IS INVITED TO A DECISION OF THE ACTING COMPTROLLER GENERAL OF JUNE 22, 1937, A-86944, IN WHICH IT IS HELD THAT---

"THE PROVISIONS OF THE ACT OF MAY 12, 1917, 40 STAT. 72, REGARDING THE RIGHT OF OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS TO LEAVE OF ABSENCE ,WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" WHEN ORDERED TO DUTY WITH TROOPS FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR WITH RESTORATION WHEN RELIEVED FROM DUTY TO THE POSITIONS HELD BY THEM WHEN ORDERED TO DUTY, HAS NO APPLICATION TO VOLUNTARY ACTIVE DUTY IN TIME OF PEACE UNDER ORDERS ISSUED WITH THEIR CONSENT, AND IT IS NOT OBLIGATORY TO GRANT ANY FORM OF LEAVE OTHER THAN THE 15 DAYS' MILITARY LEAVE IN SUCH CASES.'

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

* * * 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 * * *

THE STATUS OF CLAIMANT APPEARS TO HAVE FULFILLED ALL OF THE CONDITIONS OF THIS STATUTE. HE WAS ORDERED BY COMPETENT AUTHORITY AS A MEMBER OF THE OFFICERS' RESERVE CORPS TO TRAINING OR FOR INSTRUCTION FOR A PERIOD OF LESS THAN 15 DAYS. THE DECISION OF THIS OFFICE OF JUNE 22, 1937, A-86944, 16 COMP. GEN. 1103, DOES NOT CONTAIN THE LANGUAGE QUOTED ABOVE. THE DECISION INVOLVED A PERIOD FROM MARCH 15 TO JUNE 20, 1936, MORE THAN 15 DAYS, AND THE DECISION IS CONTAINED IN THE FOLLOWING PARAGRAPH:

UNDER THE PLAIN TERMS OF THE ACT OF MAY 12, 1937, CITED, YOU WERE AUTHORIZED TO GRANT MAJOR KERR "LEAVE OF ABSENCE" FROM HIS DUTIES AS AN OFFICER OR EMPLOYEE OF THE GOVERNMENT "WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" DURING SUCH PERIOD HE WAS ORDERED TO ACTIVE DUTY FOR INSTRUCTION AS A MEMBER OF THE OFFICERS' RESERVE CORPS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR, 1 COMP. GEN. 554; 2 ID. 30; A.D. 7477, FEBRUARY 28, 1923; A-83515, FEBRUARY 18, 1937, BUT, HE WAS NOT ENTITLED TO ANY PAY AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT FOR ANY PART OF THE PERIOD HE WAS ORDERED TO ACTIVE DUTY FOR INSTRUCTION, WITH HIS CONSENT, IN EXCESS OF 15 DAYS, AS OBVIOUSLY THE AGGREGATE OF THE ACTIVE SERVICE PAY AND ALLOWANCES OF HIS GRADE AS A MEMBER OF THE OFFICERS' RESERVE CORPS ON ACTIVE DUTY, PLUS THE SALARY OF HIS CIVIL POSITION WAS AT A RATE IN EXCESS OF $2,000. SEE 3 COMP. GEN. 116; ID. 246.

THE LAST PARAGRAPH OF THE DECISION WAS AS FOLLOWS:

IN REGARD TO THE LAST SENTENCE (CLAUSE) OF THE ACT OF MAY 12, 1917, QUOTED BY YOU, IT WAS STATED IN A-51441, JUNE 22, 1935, THAT SUCH PROVISION HAS NO APPLICATION TO VOLUNTARY ACTIVE DUTY ENTERED UPON IN TIME OF PEACE UNDER ORDERS ISSUED WITH THE CONSENT OF THE EMPLOYEE, AND IT IS NOT OBLIGATORY TO GRANT ANY FORM OF LEAVE OTHER THAN THE 15 DAYS' MILITARY LEAVE.

IT IS IMMATERIAL WHETHER A RESERVE OFFICER IS ORDERED VOLUNTARILY OR INVOLUNTARILY TO ACTIVE DUTY FOR TRAINING OR FOR INSTRUCTION, ETC., UNDER THE QUOTED STATUTE FOR A PERIOD NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.

ASSUMING THAT CLAIMANT HAS HAD NO OTHER MILITARY LEAVE DURING THE CALENDAR YEAR 1938, THE EMPLOYEE IS ENTITLED TO THE MILITARY LEAVE COVERING THE PERIOD IN QUESTION.