B-12196, SEPTEMBER 20, 1940, 20 COMP. GEN. 167

B-12196: Sep 20, 1940

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MAY NOT BE PAID THEIR CIVILIAN COMPENSATION (FOR ACCRUED ANNUAL LEAVE) FOR PERIODS DURING WHICH THEY ARE ENTITLED TO PAY FOR MILITARY OR NAVAL SERVICE UNLESS THE COMBINED RATE OF THE CIVILIAN SALARY AND THE MILITARY OR NAVAL PAY DOES NOT EXCEED THE MAXIMUM OF $2. THEIR RIGHTS UPON RESTORATION OR RETURN TO ACTIVE CIVILIAN DUTY AS PROVIDED BY SAID ACTS WOULD BE THE SAME WHETHER THEY ARE SEPARATED OR CARRIED ON THE ROLLS IN A NONPAY STATUS. THE ACCRUED UNUSED ANNUAL LEAVE TO A CIVILIAN EMPLOYEE'S CREDIT AT THE TIME HE IS ORDERED TO MILITARY OR NAVAL SERVICE. 940: I HAVE YOUR LETTER OF SEPTEMBER 5. YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING POINTS: (1) MAY CIVILIAN EMPLOYEES WHO ARE MEMBERS OF THE NAVAL RESERVE WHEN RECALLED TO ACTIVE DUTY BE INDEFINITELY FURLOUGHED AND RECEIVE CIVILIAN PAY FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE.

B-12196, SEPTEMBER 20, 1940, 20 COMP. GEN. 167

CIVILIAN EMPLOYEES ORDERED TO ACTIVE MILITARY DUTY - LEAVES OF ABSENCE, ETC. A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE WHEN CALLED TO ACTIVE DUTY WITH THE NAVY MAY BE PAID THE COMPENSATION OF HIS CIVILIAN POSITION DURING ANNUAL LEAVE AND, ALSO, FOR THE SAME PERIOD, ACTIVE DUTY PAY AND ALLOWANCES AS A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY. CIVILIAN EMPLOYEES OF THE GOVERNMENT INDUCTED INTO THE MILITARY AND NAVAL FORCES PURSUANT TO THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, OR ORDERED TO ACTIVE MILITARY DUTY AS MEMBERS OF THE NATIONAL GUARD OR THE OFFICERS' RESERVE CORPS OF THE ARMY PURSUANT TO THE TERMS OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, MAY NOT BE PAID THEIR CIVILIAN COMPENSATION (FOR ACCRUED ANNUAL LEAVE) FOR PERIODS DURING WHICH THEY ARE ENTITLED TO PAY FOR MILITARY OR NAVAL SERVICE UNLESS THE COMBINED RATE OF THE CIVILIAN SALARY AND THE MILITARY OR NAVAL PAY DOES NOT EXCEED THE MAXIMUM OF $2,000 PER ANNUM PERMITTED UNDER THE DOUBLE COMPENSATION ACT OF MAY 10, 1916, AS AMENDED. CIVILIAN EMPLOYEES OF THE GOVERNMENT INDUCTED INTO THE MILITARY AND NAVAL FORCES PURSUANT TO THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, OR ORDERED TO ACTIVE DUTY AS MEMBERS OF THE NATIONAL GUARD OR THE OFFICERS' RESERVE CORPS OF THE ARMY PURSUANT TO THE TERMS OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, MAY BE EITHER SEPARATED FROM THE SERVICE OR FURLOUGHED WITHOUT PAY FROM THEIR CIVILIAN POSITIONS DURING THEIR MILITARY OR NAVAL SERVICE, BUT THEIR RIGHTS UPON RESTORATION OR RETURN TO ACTIVE CIVILIAN DUTY AS PROVIDED BY SAID ACTS WOULD BE THE SAME WHETHER THEY ARE SEPARATED OR CARRIED ON THE ROLLS IN A NONPAY STATUS. UNDER THE TERMS OF SECTION 9 (B) OF THE UNIFORM ANNUAL LEAVE REGULATIONS AND PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, AS AMENDED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, THE ACCRUED UNUSED ANNUAL LEAVE TO A CIVILIAN EMPLOYEE'S CREDIT AT THE TIME HE IS ORDERED TO MILITARY OR NAVAL SERVICE, PURSUANT TO EITHER OF SAID STATUTES MAY BE RECREDITED TO HIM UPON HIS RETURN TO ACTIVE CIVILIAN SERVICE REGARDLESS OF WHETHER HE BE SEPARATED FROM HIS CIVILIAN POSITION, BY RESIGNATION OR OTHERWISE, OR BE FURLOUGHED OR GRANTED LEAVE WITHOUT PAY DURING SUCH MILITARY OR NAVAL SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY, SMITHSONIAN INSTITUTION, SEPTEMBER 20, 940:

I HAVE YOUR LETTER OF SEPTEMBER 5, 1940, AS FOLLOWS:

IN CONNECTION WITH THE RECALL OF CIVILIAN EMPLOYEES TO ACTIVE DUTY WITH THE ARMED FORCES OF THE GOVERNMENT, YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING POINTS:

(1) MAY CIVILIAN EMPLOYEES WHO ARE MEMBERS OF THE NAVAL RESERVE WHEN RECALLED TO ACTIVE DUTY BE INDEFINITELY FURLOUGHED AND RECEIVE CIVILIAN PAY FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, EVEN THOUGH SUCH LEAVE EXTENDS BEYOND THE DATE OF ENTRY ON ACTIVE SERVICE IN THE NAVY?

(2) DOES YOUR RULING ON QUESTION (1) APPLY SHOULD EMPLOYEES OTHER THAN MEMBERS OF THE NAVAL RESERVE BE ORDERED TO ACTIVE MILITARY DUTY?

(3) IT HAS BEEN THE POLICY OF THIS OFFICE TO REQUIRE THE RESIGNATIONS OF EMPLOYEES ORDERED ON ACTIVE DUTY WITH THE ARMED FORCES. IN ORDER THAT NO HARDSHIP MAY BE WORKED AGAINST THOSE WHO HAVE BEEN ASKED TO RESIGN IT IS DESIRED, IF YOUR RULING ON QUESTIONS (1) AND (2) IS IN THE AFFIRMATIVE, TO REINSTATE THOSE EMPLOYEES SO THAT THEY MAY BE PAID FOR THEIR UNUSED ANNUAL LEAVE. MAY THIS BE DONE?

SINCE THE DATE OF YOUR SUBMISSION THERE HAS BEEN ENACTED THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, PUBLIC, NO. 783, SECTION 8 OF WHICH, AS HEREINAFTER SET FORTH, HAS AN IMPORTANT BEARING UPON YOUR QUESTIONS NUMBERED (2) AND (3).

QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE. SEE 19 COMP. GEN. 880; ALSO, DECISION OF SEPTEMBER 13, 1940, B-12172, 20 COMP. GEN. 151.

SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, PROVIDES IN PERTINENT PART AS FOLLOWS:

SEC. 8. (A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. IN ADDITION, EACH PERSON WHO IS INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE SHALL BE GIVEN A PHYSICAL REEXAMINATION AT THE BEGINNING OF SUCH TRAINING AND SERVICE AND A MEDICAL STATEMENT SHOWING ANY PHYSICAL DEFECTS NOTED UPON SUCH EXAMINATION; AND UPON THE COMPLETION OF HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B), EACH SUCH PERSON SHALL BE GIVEN ANOTHER PHYSICAL EXAMINATION AND SHALL BE GIVEN A MEDICAL STATEMENT SHOWING ANY INJURIES, ILLNESSES OR DISABILITIES SUFFERED BY HIM DURING SUCH PERIOD OF TRAINING AND SERVICE.

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY;

(C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER RESTORATION.

(D) SECTION 3 (C) OF THE JOINT RESOLUTION ENTITLED " JOINT RESOLUTION TO STRENGTHEN THE COMMON DEFENSE AND TO AUTHORIZE THE PRESIDENT TO ORDER MEMBERS AND UNITS OF RESERVE COMPONENTS AND RETIRED PERSONNEL OF THE REGULAR ARMY INTO ACTIVE MILITARY SERVICE," APPROVED AUGUST 27, 1940, IS AMENDED TO READ AS FOLLOWS:

"/C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE AND OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS ORDERED INTO SUCH SERVICE, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.'

UNDER THE ABOVE-QUOTED STATUTORY PROVISIONS IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION EITHER TO SEPARATE EMPLOYEES FROM CIVILIAN SERVICE OR TO FURLOUGH THEM WITHOUT PAY DURING THE PERIOD OF ACTIVE MILITARY DUTY TO WHICH THEY ARE ORDERED AS MEMBERS OF THE NATIONAL GUARD OR AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 APPROVED AUGUST 27, 1940, AS AMENDED, OR DURING THE PERIOD THEY ARE INDUCTED INTO THE LAND OR NAVAL FORCES OF THE UNITED STATES FOR TRAINING AND SERVICE PURSUANT TO THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA. WHETHER EMPLOYEES BE SEPARATED FROM THEIR CIVILIAN POSITIONS BY RESIGNATION OR OTHERWISE, OR BE CARRIED ON THE ROLL IN A NONPAY STATUS DURING THE PERIOD OF SUCH MILITARY SERVICE, THEIR RIGHTS OR BENEFITS UPON RESTORATION OR RETURN TO ACTIVE CIVILIAN DUTY AS CONTEMPLATED UNDER SECTION 8, SUPRA, WOULD BE THE SAME. NO RIGHT OR BENEFIT TO RECEIVE THE SALARY OR COMPENSATION--- AS FOR LEAVE OR OTHERWISE--- OF A CIVILIAN POSITION UNDER THE UNITED STATES GOVERNMENT DURING ANY SUCH PERIOD OF MILITARY OR NAVAL SERVICE IS GRANTED BY THE STATUTE ABOVE QUOTED. HENCE, THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, WOULD PROHIBIT THE PAYMENT OF ANY SALARY OF A CIVILIAN POSITION WHILE ENTITLED TO ACTIVE DUTY PAY IN THE ARMY OR NAVY (OTHER THAN EMPLOYEES ON ANNUAL LEAVE WHO ARE MEMBERS OF THE NAVAL RESERVE), IF THE COMBINED RATE OF THE CIVILIAN SALARY AND MILITARY OR NAVAL COMPENSATION EXCEEDS $2,000 PER ANNUM. SEE DECISION DATED SEPTEMBER 18, 1940, B-12291, 20 COMP. GEN. 158, AND DECISIONS THEREIN CITED. OF COURSE, IF THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND PAY FOR SERVICE IN THE LAND OR NAVAL FORCES DOES NOT EXCEED $2,000 PER ANNUM, EMPLOYEES MAY BE PAID THE COMPENSATION OF THEIR CIVILIAN POSITIONS DURING ANNUAL LEAVE TO THEIR CREDIT IF ADMINISTRATIVELY GRANTED EVEN THOUGH SUCH PERIOD EXTENDS BEYOND THE DATE OF ENTRY IN THE MILITARY OR NAVAL SERVICE.

REFERRING TO QUESTION (2), THEREFORE, THE EMPLOYEES MAY BE, BUT ARE NOT REQUIRED TO BE, INDEFINITELY FURLOUGHED WITHOUT PAY DURING ACTIVE MILITARY SERVICE REQUIRED BY PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, AS AMENDED, OR DURING ACTIVE MILITARY OR NAVAL SERVICE REQUIRED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, BUT THEY MAY BE GRANTED THEIR ACCRUED ANNUAL LEAVE OF ABSENCE WITH PAY FROM THEIR CIVILIAN POSITIONS ONLY IF THE COMBINED RATE OF THE COMPENSATION IN THEIR CIVILIAN POSITION AND THEIR PAY FOR MILITARY OR NAVAL SERVICE DOES NOT EXCEED $2,000 PER ANNUM.

SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, PROVIDES AS FOLLOWS:

SEC. 9. LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT

(B) AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY.

THIS REGULATIONS OPERATES TO SAVE TO AN EMPLOYEE THE ACCRUED UNUSED ANNUAL LEAVE TO HIS CREDIT WHEN REPORTING FOR ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY FOR RECREDITING TO HIM UPON RETURN TO HIS CIVILIAN POSITION, AND THIS CONSTITUTES A BENEFIT WITHIN THE MEANING OF THE WORDS "OTHER BENEFITS OFFERED BY THE EMPLOYER ( UNITED STATES GOVERNMENT PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEE FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS (INDUCTED OR ORDERED)" AS USED IN SECTION 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND SECTION 3 (C) OF PUBLIC RESOLUTION NO. 96, AS AMENDED BY SECTION 8 (D) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.

REFERRING TO QUESTION (3), THEREFORE, I HAVE TO ADVISE THAT THE ACCRUED UNUSED ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE UPON REPORTING FOR SERVICE IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, PURSUANT TO EITHER OF THE STATUTES HEREIN CONSIDERED, MAY BE RECREDITED TO HIM UPON HIS RETURN TO ACTIVE CIVILIAN SERVICE REGARDLESS OF WHETHER HE BE SEPARATED BY RESIGNATION OR OTHERWISE, OR BE FURLOUGHED OR GRANTED LEAVE WITHOUT PAY DURING SUCH MILITARY OR NAVAL SERVICE.