B-12291, SEPTEMBER 18, 1940, 20 COMP. GEN. 158

B-12291: Sep 18, 1940

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THE NAVAL RESERVE ARE NOT ENTITLED TO ANY MILITARY LEAVE OF ABSENCE WITH PAY WHILE ON ACTIVE DUTY WITH THE ARMY. SINCE UNDER THE TERMS OF SAID RESOLUTION THEY ARE ENTITLED TO BE CONSIDERED AS ON FURLOUGH OR LEAVE OF ABSENCE FROM THEIR CIVILIAN POSITIONS DURING THEIR ACTIVE MILITARY SERVICE. A MEMBER OF THE OFFICERS' RESERVE CORPS WHO IS ORDERED TO ACTIVE DUTY WITH THE ARMY. IS SUBJECT TO THE DUAL COMPENSATION PAYMENT PROHIBITION OF SECTION 6 OF THE ACT OF MAY 10. HIS CIVILIAN POSITION IS NOT A STATUTORY OFFICE BUT ONE ADMINISTRATIVELY CREATED UNDER A LUMP SUM APPROPRIATION. IS EXEMPTED FROM THE PROHIBITION IN SECTION 2 OF THE ACT OF JULY 31. A CIVILIAN EMPLOYEE MEMBER OF THE NATIONAL GUARD CALLED INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES IS SUBJECT TO THE DUAL COMPENSATION PAYMENT PROHIBITION OF SECTION 6 OF THE ACT OF MAY 10.

B-12291, SEPTEMBER 18, 1940, 20 COMP. GEN. 158

CIVILIAN EMPLOYEES ORDERED TO ACTIVE MILITARY DUTY - LEAVES OF ABSENCE, ETC. CIVILIAN EMPLOYEE MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, THE NATIONAL GUARD, AND THE NAVAL RESERVE ARE NOT ENTITLED TO ANY MILITARY LEAVE OF ABSENCE WITH PAY WHILE ON ACTIVE DUTY WITH THE ARMY, AND NAVY IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC RES. NO. 96, AUGUST 27, 1940, AS DISTINGUISHED FROM ANNUAL TRAINING DUTY. THE PROHIBITION IN SECTION 2 OF THE ACT OF JULY 31, 1894, AGAINST HOLDING TWO POSITIONS WHERE THE ANNUAL COMPENSATION OF ONE AMOUNTS TO $2,500 DOES NOT REQUIRE THAT CIVILIAN EMPLOYEES VACATE THEIR CIVILIAN POSITIONS WHEN ORDERED TO ACTIVE MILITARY DUTY IN ACCORDANCE WITH THE PROVISIONS OF PUBLIC RES. NO. 96, AUGUST 27, 1940, AS AMENDED, BY REASON OF BEING MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, OR OF THE NATIONAL GUARD, SINCE UNDER THE TERMS OF SAID RESOLUTION THEY ARE ENTITLED TO BE CONSIDERED AS ON FURLOUGH OR LEAVE OF ABSENCE FROM THEIR CIVILIAN POSITIONS DURING THEIR ACTIVE MILITARY SERVICE. A MEMBER OF THE OFFICERS' RESERVE CORPS WHO IS ORDERED TO ACTIVE DUTY WITH THE ARMY--- AS DISTINGUISHED FROM TRAINING DUTY--- AND WHOSE SALARY AS A CIVILIAN EMPLOYEE OF THE GOVERNMENT EXCEEDS $2,000 PER ANNUM, IS SUBJECT TO THE DUAL COMPENSATION PAYMENT PROHIBITION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, AND THEREFORE MAY NOT BE PAID COMPENSATION AS A CIVILIAN DURING THE PERIOD HE RECEIVES ACTIVE DUTY PAY WITH THE ARMY, NOTWITHSTANDING HE HAS TO HIS CREDIT ACCRUED UNUSED ANNUAL LEAVE IN HIS CIVILIAN POSITION. WHERE A CIVILIAN EMPLOYEE MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY HAS BEEN ORDERED TO ACTIVE DUTY WITH THE ARMY IN ACCORDANCE WITH PUBLIC RES. NO. 96, AUGUST 27, 1940, AND HIS CIVILIAN POSITION IS NOT A STATUTORY OFFICE BUT ONE ADMINISTRATIVELY CREATED UNDER A LUMP SUM APPROPRIATION, THERE MAY BE ADMINISTRATIVELY CREATED AN ADDITIONAL IDENTICAL POSITION WHICH MAY BE FILLED EITHER BY A TEMPORARY OR PROBATIONAL INDEFINITE APPOINTMENT DURING HIS ABSENCE. THE PROVISIONS OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, DO NOT PROHIBIT THE GRANTING OF LEAVE WITHOUT PAY TO A CIVILIAN EMPLOYEE FOR THE PURPOSE OF ACCEPTING ACTIVE MILITARY DUTY WITH THE ARMY AS A MEMBER OF THE OFFICERS' RESERVE CORPS. UNDER THE PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY WITH THE NAVY MAY RECEIVE THE COMPENSATION OF HIS CIVILIAN POSITION DURING ANNUAL LEAVE AND, ALSO, FOR THE SAME PERIOD, ACTIVE DUTY PAY AND ALLOWANCES AS AN OFFICER OF THE NAVAL RESERVE ON ACTIVE DUTY. UNDER THE PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY WITH THE NAVY, IS EXEMPTED FROM THE PROHIBITION IN SECTION 2 OF THE ACT OF JULY 31, 1894, AGAINST HOLDING TWO POSITIONS WHERE THE ANNUAL COMPENSATION OF ONE AMOUNTS TO $2,500. A CIVILIAN EMPLOYEE MEMBER OF THE NATIONAL GUARD CALLED INTO ACTIVE MILITARY SERVICE OF THE UNITED STATES IS SUBJECT TO THE DUAL COMPENSATION PAYMENT PROHIBITION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED, AND, THEREFORE, MAY NOT BE PAID CIVILIAN COMPENSATION FOR ANY PERIOD HE RECEIVES ACTIVE DUTY PAY WITH THE ARMY IF THE COMBINED RATE EXCEEDS $2,000, EVEN THOUGH HE HAS ACCRUED UNUSED ANNUAL LEAVE TO HIS CREDIT IN HIS CIVILIAN POSITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 18, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 10, 1940, AS FOLLOWS:

AN EMPLOYEE OF THIS COMMISSION, THE ASSOCIATE CHIEF OF THE INVESTIGATIONS DIVISION, P-6, $5,600 PER ANNUM, WHO IS ALSO A MAJOR IN THE OFFICERS' RESERVE CORPS (TOTAL PAY AND ALLOWANCES APPROXIMATELY $5,300), MAY RECEIVE AN EARLY CALL TO ACTIVE DUTY, AND THE COMMISSION, THEREFORE, DESIRES INFORMATION CONCERNING LEAVES OF ABSENCE WHICH MAY BE GRANTED TO HIM IF HE IS ORDERED TO ACTIVE MILITARY DUTY FOR AN EXTENDED PERIOD BEYOND THE 15 DAYS FOR MILITARY LEAVE.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, READS AS FOLLOWS:

"NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF $2,500 SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW.'

IN VIEW OF THE ABOVE STATUTORY PROHIBITION THIS OFFICE REQUESTS TO BE ADVISED: (1) WHETHER IT IS AUTHORIZED TO GRANT TO THE EMPLOYEE IN QUESTION LEAVE WITHOUT PAY DURING THE PERIOD HE MAY BE ORDERED TO ACTIVE MILITARY DUTY; (2) IF THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE IS THERE ANY LIMITATION ON THE AMOUNT OF SUCH LEAVE THAT MAY BE GRANTED; (3) MAY THIS EMPLOYEE BE GRANTED ANNUAL LEAVE WITH PAY TO WHICH HE MAY BE ENTITLED WHILE AWAY FROM HIS CIVILIAN POSITION FOR ACTIVE MILITARY DUTY WITHOUT VIOLATING THE PROVISIONS OF THE ACT OF JULY 31, 1894, SUPRA?

YOU WILL NOTE THAT SHOULD THIS EMPLOYEE BE PERMITTED TO TAKE LEAVE WITHOUT PAY WHILE ON ACTIVE MILITARY DUTY SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS WOULD PRESERVE HIS ACCUMULATED AND CURRENT ACCRUED LEAVE.

IF EXTENDED LEAVE WITHOUT PAY MAY BE GRANTED THIS EMPLOYEE FOR THE PURPOSE OF ACCEPTING ACTIVE DUTY WITH THE OFFICERS' RESERVE CORPS MAY HIS POSITION BE FILLED DURING HIS ABSENCE BY CREATING AN ADDITIONAL IDENTICAL POSITION, OR BY CREATING AN "ACTING" POSITION (THE "ACTING" POSITION TO BE DROPPED WHEN THE REGULAR EMPLOYEE RETURNS TO HIS POSITION), AND FILLING SUCH POSITION EITHER BY TEMPORARY OR PROBATIONAL INDEFINITE APPOINTMENT?

SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120 PROVIDES:

"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 * * *.'

DO THE PROVISIONS OF THIS ACT PROHIBIT THE GRANTING OF LEAVE WITHOUT PAY TO A CIVILIAN EMPLOYEE RECEIVING LESS THAN $2,500 PER ANNUM FOR THE PURPOSE OF ACCEPTING ACTIVE MILITARY DUTY WITH THE OFFICERS' RESERVE CORPS?

WOULD A DIFFERENT RULING BE MADE ON THE ABOVE QUESTIONS SHOULD LEAVE OF ABSENCE BE REQUESTED FOR ACTIVE DUTY WITH THE NAVAL RESERVE, NATIONAL GUARD, OR ANY OF THE SEVERAL RESERVE ORGANIZATIONS?

THE ACT OF AUGUST 27, 1940 ( PUB. RES. NO. 96, 76TH CONG.) AUTHORIZING THE PRESIDENT TO CALL OUT THE NATIONAL GUARD AND OTHER RESERVE UNITS FOR ACTIVE MILITARY DUTY WILL BRING UP NUMEROUS CASES OF THIS KIND, AND THE COMMISSION WOULD LIKE TO HAVE THE WHOLE QUESTION DECIDED AT ONE TIME. YOUR EARLY CONSIDERATION OF THE QUESTIONS PRESENTED WILL BE APPRECIATED.

SINCE THE DATE OF YOUR SUBMISSION THERE HAS BEEN ENACTED THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, SECTION 8 (D) OF WHICH, AS HEREINAFTER SET FORTH, HAS AN IMPORTANT BEARING UPON THE QUESTION CONCERNING THE APPLICATION OF THE 1894 ACT, QUOTED IN YOUR LETTER.

SECTIONS 1 AND 2 OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, PROVIDES AS FOLLOWS:

THAT DURING THE PERIOD ENDING JUNE 30, 1942, THE PRESIDENT BE, AND IS HEREBY, AUTHORIZED FROM TIME TO TIME TO ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR A PERIOD OF TWELVE CONSECUTIVE MONTHS EACH, ANY OR ALL MEMBERS AND UNITS OF ANY OR ALL RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES (EXCEPT THAT ANY PERSON IN THE NATIONAL GUARD OF THE UNITED STATES UNDER THE AGE OF 18 YEARS SO ORDERED INTO THE ACTIVE MILITARY SERVICE SHALL BE IMMEDIATELY ISSUED AN HONORABLE DISCHARGE FROM THE NATIONAL GUARD OF THE UNITED STATES), AND RETIRED PERSONNEL OF THE REGULAR ARMY, WITH OR WITHOUT THEIR CONSENT, TO SUCH EXTENT AND IN SUCH MANNER AS HE MAY DEEM NECESSARY FOR THE STRENGTHENING OF THE NATIONAL DEFENSE: PROVIDED, THAT THE MEMBERS AND UNITS OF THE RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES ORDERED INTO ACTIVE FEDERAL SERVICE UNDER THIS AUTHORITY SHALL NOT BE EMPLOYED BEYOND THE LIMITS OF THE WESTERN HEMISPHERE EXCEPT IN THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES, INCLUDING THE PHILIPPINE ISLANDS.

SEC. 2. ALL NATIONAL GUARD, RESERVE, AND RETIRED PERSONNEL ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES UNDER THE FOREGOING SPECIAL AUTHORITY SHALL FROM THE DATES ON WHICH THEY ARE RESPECTIVELY REQUIRED BY SUCH ORDER TO REPORT FOR DUTY IN SUCH SERVICE, BE SUBJECT TO THE RESPECTIVE LAWS AND REGULATIONS RELATING TO ENLISTMENTS, REENLISTMENTS, EMPLOYMENT, CONDUCT, RIGHTS, AND PRIVILEGES, AND DISCHARGE OF SUCH PERSONNEL IN SUCH SERVICE TO THE SAME EXTENT IN ALL PARTICULARS AS IF THEY HAD BEEN ORDERED INTO SUCH SERVICE UNDER EXISTING GENERAL STATUTORY AUTHORIZATIONS. ( ITALICS SUPPLIED.) ALSO, SECTION 3 (A) OF THE ACT DESIGNATES AS "ACTIVE DUTY" THE SERVICE TO BE PERFORMED UNDER ORDERS ISSUED PURSUANT TO SAID RESOLUTION.

THE FIRST PARAGRAPH OF YOUR LETTER WOULD INDICATE THAT YOU ASSUME CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT WHO ARE CALLED FOR ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF THE QUOTED STATUTE WILL BE ENTITLED TO MILITARY LEAVE OF ABSENCE (NOT EXCEEDING 15 DAYS) WITH PAY. IN DECISION OF NOVEMBER 21, 1939, 19 COMP. GEN. 513, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

MEMBERS OF THE OFFICERS' RESERVE CORPS WHO ARE ALSO CIVILIAN GOVERNMENT EMPLOYEES, ARE NOT ENTITLED TO MILITARY LEAVE WITHOUT LOSS OF TIME OR PAY WHEN THEY ARE ORDERED FOR INDEFINITE DUTY WITH THE REGULAR ARMY IN AN EMERGENCY, THE OFFICERS' RESERVE CORPS MILITARY LEAVE ACT OF MAY 12, 1917, 40 STAT. 72, BEING LIMITED IN ITS APPLICATION TO THE REGULAR ANNUAL TRAINING PERIODS OF NOT TO EXCEED FIFTEEN DAYS IN EACH CALENDAR YEAR TO WHICH SUCH OFFICERS ARE AUTHORIZED TO BE ORDERED WITHOUT THEIR CONSENT. SEE, ALSO, DECISION OF JUNE 28, 1916, 22 COMP. DEC. 704, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

OFFICERS OR EMPLOYEES OF THE UNITED STATES WHO ARE MEMBERS OF THE NATIONAL GUARD AND ARE CALLED OUT, NOT FOR "FIELD OR COAST DEFENSE TRAINING" UNDER THE ACT OF JUNE 3, 1916 (39 STAT. 203), BUT BY ORDER OF THE PRESIDENT, FOR THE NATIONAL DEFENSE, ARE NOT ENTITLED, WHILE IN CAMP PENDING THEIR MUSTER INTO THE MILITARY SERVICE OF THE UNITED STATES TO "MILITARY" LEAVE FROM THEIR CIVIL EMPLOYMENT, BUT MAY RECEIVE THEIR REGULAR SALARIES AS SUCH CIVIL OFFICERS OR EMPLOYEES FOR SUCH PERIOD PRIOR TO THEIR MUSTER IN AS IS COVERED BY THE REGULAR ANNUAL LEAVE THAT MAY BE GRANTED THEM UNDER EXISTING LAW, PROVIDED THE ACT OF MAY 10, 1916, RELATIVE TO ADDITIONAL COMPENSATION, IS NOT THEREBY VIOLATED. ALSO, REFERENCE IS MADE TO 16 COMP. GEN. 1103; 18 ID. 94; AND DECISION OF AUGUST 29, 1940, B-11916, 20 COMP. GEN. 118.

IN ACCORDANCE WITH THE ABOVE DECISIONS I HAVE TO ADVISE THAT ALL MILITARY LEAVE OF ABSENCE WITH PAY IS LIMITED TO PERIODS OF ANNUAL TRAINING AS DISTINGUISHED FROM ACTIVE DUTY. UNDER THE PLAIN TERMS OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, QUOTED IN PERTINENT PART ABOVE, MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY AND MEMBERS OF THE NATIONAL GUARD WHEN CALLED TO MILITARY SERVICE THEREUNDER WOULD BE ON ACTIVE MILITARY DUTY WITH THE ARMY, AS DISTINGUISHED FROM ANNUAL TRAINING DUTY, AND, ACCORDINGLY, THEY WOULD NOT BE ENTITLED TO ANY MILITARY LEAVE OF ABSENCE WITH PAY. THE SAME RULE IS APPLICABLE TO MEMBERS OF THE NAVAL RESERVE WHO ARE CALLED TO ACTIVE DUTY AS DISTINGUISHED FROM TRAINING DUTY. SEE 19 COMP. GEN. 880.

SECTION 3 (B) AND (C) OF PUBLIC RESOLUTION NO. 96, AS AMENDED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, PROVIDE, IN PERTINENT PART, AS FOLLOWS:

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH ACTIVE DUTY OR SUCH 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 ACTIVE DUTY OR 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 ACTIVE MILITARY SERVICE, SHALL BE SO RESTORED WITH 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 ORDERED INTO SUCH SERVICE, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.

SECTION 5 OF THE CITED PUBLIC RESOLUTION PROVIDES:

ALL LAWS AND PARTS OF LAWS IN CONFLICT HEREWITH ARE HEREBY SUSPENDED TO THE EXTENT THAT THEY MAY BE IN CONFLICT WITH ANY PROVISION HEREOF.

IN 24 COMP. DEC. 604 IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE AN ASSISTANT UNITED STATES DISTRICT ATTORNEY, WHO WAS AN OFFICER OF THE NATIONAL GUARD OF A STATE, WAS MUSTERED INTO THE FEDERAL SERVICE AS A MAJOR AT A SALARY IN EXCESS OF $2,500 PER ANNUM, HE WAS PRECLUDED UNDER THE ACT OF JULY 31, 1894, FROM CONTINUING TO HOLD THE CIVIL OFFICE AND CANNOT BE PAID THE SALARY THEREOF FOR ANY PERIOD AFTER MUSTER INTO THE MILITARY SERVICE, WHETHER HE BE GRANTED LEAVE OF ABSENCE FROM THE CIVIL OFFICE OR OTHERWISE. IN THE TEXT OF THAT DECISION, FOLLOWING THE QUOTATION OF THE 1894 ACT, ON PAGE 605, IT WAS STATED:

IT WILL BE SEEN FROM THE ABOVE THAT THE LAW PROHIBITS THE APPOINTMENT TO AN OFFICE WHEN THE APPOINTEE CONTINUES TO HOLD AN OFFICE THE COMPENSATION OF WHICH IS $2,500 OR OVER. BY ACCEPTING A COMMISSION AS MAJOR AND SERVING THEREUNDER, THUS ELECTING TO HOLD THIS MILITARY OFFICE WITH SALARY IN EXCESS OF $2,500 PER ANNUM, THE CLAIMANT VACATED HIS CIVILIAN OFFICE AND BECAME AN OFFICER OF THE ARMY IN ACTIVE SERVICE. WHETHER OR NOT HE RESIGNED THE OFFICE OF ASSISTANT UNITED STATES ATTORNEY, THE HOLDING OF SUCH OFFICE WAS INCONSISTENT WITH HIS MILITARY STATUS. AND HOLDING, AS HE DID, A MILITARY OFFICE, THE COMPENSATION OF WHICH AMOUNTED TO $2,500, HE WAS PRECLUDED UNDER THE ACT OF JULY 31, 1894, SUPRA, FROM HOLDING ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. SEE, ALSO, 23 COMP. DEC. 287; 1 COMP. GEN. 700; 2 ID. 649; 3 ID. 913.

UNDER THE DECISIONS LAST ABOVE QUOTED AND CITED, IN WHICH WERE CONSTRUED AND APPLIED THE PROVISIONS OF THE 1894 ACT, THE EMPLOYEE INVOLVED IN THE INSTANT CASE WOULD BE PRECLUDED FROM HOLDING THE CIVILIAN POSITION WHILE HOLDING A MILITARY OFFICE UPON ENTRY INTO THE MILITARY SERVICE UNDER THE TERMS OF THE CITED PUBLIC RESOLUTION. THAT IS TO SAY, HIS CIVILIAN POSITION DURING SUCH MILITARY SERVICE WOULD BE AUTOMATICALLY VACATED. HOWEVER, IN VIEW OF SECTION 3 OF THE RESOLUTION, AS AMENDED, SUPRA, PROVIDING FOR THE RESTORATION TO THE CIVILIAN POSITION UPON COMPLETION OF THE MILITARY SERVICE AND THAT, UPON SUCH RESTORATION, THE TIME SO SERVED IN THE MILITARY SERVICE SHALL BE CONSIDERED "AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE," THE DECISIONS REFERRED TO ARE NOT APPLICABLE TO THE SITUATION HERE PRESENTED. UNDER THE STATUTE APPLICABLE HERE IT IS IMMATERIAL, INSOFAR AS THE RIGHTS OF THE EMPLOYEE UNDER THE PROVISIONS OF SECTION 3 (B) AND (C) OF THE PUBLIC RESOLUTION, SUPRA, ARE CONCERNED, WHETHER HE IS OR IS NOT ACTUALLY GRANTED LEAVE OF ABSENCE OR FURLOUGH.

ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE AND QUESTION (2) IN THE NEGATIVE.

REFERRING TO QUESTION (3), THE GRANTING OF ANNUAL LEAVE OF ABSENCE WITH PAY IN THE SITUATION PRESENTED WOULD CONSTITUTE A VIOLATION OF THE TERMS OF THE DUAL COMPENSATION ACT OF 1916. SEE 16 COMP. GEN. 1103; ALSO, DECISION OF AUGUST 20, 1940, B-11916, 20 COMP. GEN. 118.

IT IS UNDERSTOOD THAT THE POSITION OF ASSISTANT CHIEF OF THE INVESTIGATIONS DIVISION IS NOT A STATUTORY OFFICE, BUT HAS BEEN ADMINISTRATIVELY CREATED UNDER A LUMP-SUM APPROPRIATION. IF SO, THERE MAY BE ADMINISTRATIVELY CREATED AN ADDITIONAL IDENTICAL POSITION WHICH MAY BE FILLED EITHER BY A TEMPORARY OR PROBATIONAL INDEFINITE APPOINTMENT DURING THE ABSENCE OF THE EMPLOYEE IN QUESTION. SEE 20 COMP. GEN. 9, 12. THE QUESTION CONTAINED IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE. SEE 18 COMP. GEN. 1010.

REFERRING TO THE PENULTIMATE PARAGRAPH OF YOUR LETTER, IT HAS BEEN HELD THAT BY REASON OF THE PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1176, MEMBERS OF THE NAVAL RESERVE MAY RECEIVE THE COMPENSATION OF THEIR CIVILIAN POSITIONS DURING ANNUAL LEAVE AND, ALSO, ACTIVE PAY AND ALLOWANCES WHEN ON ACTIVE DUTY WITH THE NAVY. 19 COMP. GEN. 880. THE SAME PROVISION OF LAW, OF COURSE, WOULD EXEMPT MEMBERS OF THE NAVAL RESERVE ON ACTIVE DUTY FROM THE PROHIBITION CONTAINED IN THE DUAL COMPENSATION ACT OF 1894. DECISION B-12172, DATED SEPTEMBER 13, 1940, 20 COMP. GEN. 151.

THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, EXPRESSLY EXCEPTS "OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA.' HOWEVER, THIS EXCEPTION HAS BEEN CORRECTLY HELD AS NOT APPLICABLE TO MEMBERS OF THE ORGANIZED MILITIA AFTER THEY HAVE BEEN MUSTERED INTO THE FEDERAL SERVICE. 22 COMP. DEC. 661; ID. 704; 23 ID. 89; ID. 364. ACCORDINGLY, THE EXCEPTION WOULD NOT APPLY TO MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES WHEN CALLED TO ACTIVE MILITARY DUTY AND THEY COULD NOT BE BE PAID THE SALARY OF THEIR CIVILIAN POSITIONS FOR ANY PERIOD OF ANNUAL LEAVE WHILE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR ACTIVE DUTY WITH THE ARMY IF THE COMBINED RATE EXCEEDS $2,000 PER ANNUM. UNDER THE RULE STATED IN ANSWER TO QUESTION (1) AND IN ANSWER TO THE QUESTION IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER, MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES MAY BE, BUT ARE NOT REQUIRED TO BE, CARRIED ON THE CIVILIAN ROLL IN A NONPAY STATUS FOR THE PERIOD OF THEIR ACTIVE MILITARY DUTY REQUIRED UNDER THE PROVISIONS OF THE ACT OF AUGUST 27, 1940.