B-12673, NOVEMBER 13, 1940, 20 COMP. GEN. 257

B-12673: Nov 13, 1940

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SINCE CIVIL EMPLOYMENT IS INCOMPATIBLE WITH HIS OBLIGATION AS A SOLDIER. HIS ENLISTMENT MUST BE CONSIDERED TO HAVE VACATED HIS CIVIL POSITION. ANY ACCRUED ANNUAL LEAVE TO THE CREDIT OF A CIVILIAN EMPLOYEE AT THE TIME HE VACATED HIS CIVILIAN POSITION BY VOLUNTARILY ENLISTING IN THE REGULAR ARMY IS FORFEITED. A CIVILIAN EMPLOYEE MEMBER OF A RESERVE COMPONENT OF THE ARMY WHO WAS ORDERED TO ACTIVE DUTY WITH HIS CONSENT. 1940: THERE HAVE BEEN CONSIDERED THE QUESTIONS PRESENTED IN YOUR LETTER OF OCTOBER 1. IF YOUR ANSWERS TO QUESTION 1 AND/OR QUESTION 2 ARE IN THE AFFIRMATIVE. IF YOUR ANSWERS TO QUESTION 1 AND/OR QUESTION 2 ARE IN THE NEGATIVE. MAY ANY ANNUAL LEAVE TO THE CREDIT OF SUCH AN EMPLOYEE AT THE TIME OF SEPARATION BE RECREDITED TO HIM IF AND WHEN HE IS RESTORED TO HIS FORMER CIVILIAN POSITION? 5.

B-12673, NOVEMBER 13, 1940, 20 COMP. GEN. 257

OFFICERS AND EMPLOYEES - EFFECT OF ENLISTMENT IN REGULAR ARMY OR ACTIVE DUTY AS RESERVIST A CIVILIAN EMPLOYEE WHO VOLUNTARILY ENLISTED IN THE REGULAR ARMY, EITHER FOR 1 OR 3 YEARS--- NOT BEING WITHIN THE PROVISIONS OF THE ACTS OF AUGUST 27, 1940, AND SEPTEMBER 16, 1940, WHICH ENTITLE CIVILIAN PERSONNEL ORDERED OR INDUCTED INTO THE MILITARY OR NAVAL SERVICE UNDER THOSE ACTS TO BE CONSIDERED AS ON LEAVE WITHOUT PAY FROM THEIR CIVILIAN POSITIONS DURING THEIR MILITARY OR NAVAL SERVICE--- MAY NOT BE GRANTED LEAVE WITHOUT PAY FOR THE PERIOD OF HIS MILITARY SERVICE, SINCE CIVIL EMPLOYMENT IS INCOMPATIBLE WITH HIS OBLIGATION AS A SOLDIER, AND HIS ENLISTMENT MUST BE CONSIDERED TO HAVE VACATED HIS CIVIL POSITION. ANY ACCRUED ANNUAL LEAVE TO THE CREDIT OF A CIVILIAN EMPLOYEE AT THE TIME HE VACATED HIS CIVILIAN POSITION BY VOLUNTARILY ENLISTING IN THE REGULAR ARMY IS FORFEITED. UNDER THE PROVISIONS OF SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS OF MARCH 20, 1940, A CIVILIAN EMPLOYEE MEMBER OF A RESERVE COMPONENT OF THE ARMY WHO WAS ORDERED TO ACTIVE DUTY WITH HIS CONSENT, PURSUANT TO THE PROVISIONS OF 10 U.S.C. 369 (PRIOR TO THE PASSAGE OF PUBLIC RES. 96 OF AUGUST 27, 1940) MAY BE RESTORED TO DUTY FOLLOWING HIS MILITARY SERVICE AND RECREDITED WITH ANNUAL LEAVE WHICH HE HAD ACCRUED IN HIS CIVILIAN POSITION PRIOR TO THE PERIOD OF ACTIVE MILITARY DUTY. 20 COMP. GEN. 167, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, NOVEMBER 13, 1940:

THERE HAVE BEEN CONSIDERED THE QUESTIONS PRESENTED IN YOUR LETTER OF OCTOBER 1, 1940, AS OLLOWS:

1. MAY AN EMPLOYEE OF THIS AGENCY WITH A SALARY EITHER $2,500 PER ANNUM OR BELOW $2,500, NOT A MEMBER OF A RESERVE COMPONENT OF THE ARMY OR NAVY, NOT ORDERED INTO SERVICE UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, APPROVED AUGUST 27, 1940, AND NOT INDUCTED INTO THE SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHO HAS ENLISTED VOLUNTARILY IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES ON OR AFTER SEPTEMBER 16, 1940, THE EFFECTIVE DATE OF THE SELECTIVE TRAINING AND SERVICE ACT, BE GRANTED LEAVE OF ABSENCE WITHOUT PAY FROM HIS CIVILIAN POSITION FOR AN INDEFINITE PERIOD FOR MILITARY SERVICE?

2. MAY LEAVE OF ABSENCE WITHOUT PAY BE GRANTED TO AN EMPLOYEE UNDER THE CONDITIONS OUTLINED IN QUESTION 1, WHO VOLUNTARILY ENLISTED PRIOR TO SEPTEMBER 16, 1940? (FOR EXAMPLE, AN EMPLOYEE OF THIS AGENCY ENLISTED SEPTEMBER 14, 1940 AS A FLYING CADET IN THE AIR CORPS, UNITED STATES ARMY, AND HAS REQUESTED LEAVE OF ABSENCE TO COVER SUCH SERVICE.)

3. IF YOUR ANSWERS TO QUESTION 1 AND/OR QUESTION 2 ARE IN THE AFFIRMATIVE, COULD SUCH AN EMPLOYEE BE PAID FOR ANNUAL LEAVE TO HIS CREDIT AFTER ENTRY INTO ACTIVE MILITARY SERVICE IF THE COMBINED PAY OF HIS TWO POSITIONS DOES NOT EXCEED $2,000 PER ANNUM?

4. IF YOUR ANSWERS TO QUESTION 1 AND/OR QUESTION 2 ARE IN THE NEGATIVE, MAY ANY ANNUAL LEAVE TO THE CREDIT OF SUCH AN EMPLOYEE AT THE TIME OF SEPARATION BE RECREDITED TO HIM IF AND WHEN HE IS RESTORED TO HIS FORMER CIVILIAN POSITION?

5. MAY AN EMPLOYEE OF THIS AGENCY, WHO IS A MEMBER OF A RESERVE COMPONENT OF THE ARMY, WITH A SALARY ABOVE $2,500 PER ANNUM IN HIS CIVILIAN POSITION, WHO LEFT HIS PERMANENT POSITION ON AUGUST 22, 1940 (PRIOR TO THE PASSAGE OF PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, SUPRA), FOR VOLUNTARY ACTIVE DUTY WITH THE ARMY FOR A PERIOD OF THREE MONTHS, BE GRANTED LEAVE OF ABSENCE WITHOUT PAY FROM HIS CIVILIAN POSITION FOR THE PERIOD OF THE MILITARY SERVICE?

(1) THE FIRST QUESTION DOES NOT SPECIFY UNDER WHAT PARTICULAR STATUTORY AUTHORITY THE EMPLOYEE ,ENLISTED VOLUNTARILY," BUT IT IS ASSUMED AN ORIGINAL ENLISTMENT IN THE REGULAR ARMY IS REFERRED TO, EITHER FOR A PERIOD OF 1 OR 3 YEARS, UNDER SECTION 27 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 628. THE STATUS OF AN ENLISTED MAN UNDER THE MILITARY LAW HAS BEEN CONSIDERED IN A NUMBER OF DECISIONS OF THE SUPREME COURT AND THE ACCOUNTING OFFICERS, AND IN OPINIONS OF THE ATTORNEY GENERAL; AND IT HAS CONSISTENTLY BEEN REGARDED THAT, IN THE ABSENCE OF EXPRESS STATUTORY PROVISIONS PERMITTING IT, THE CIVIL EMPLOYMENT OF A PERSON IN THE MILITARY SERVICE IS INCOMPATIBLE WITH HIS OBLIGATION AS A SOLDIER--- AN OBLIGATION WHICH REQUIRES HIS FULL-TIME INTEGRATION AND SUBJECTION TO SUPERIOR MILITARY AUTHORITY FOR THE TERM OF HIS ENLISTMENT, AND WHICH, ALSO, NEGATIVES THE EXISTENCE OF ANY CIVILIAN AUTHORITY TO GRANT HIM "LEAVE," WHETHER WITHOUT PAY OR OTHERWISE. SEE THE SIXTY-FIRST ARTICLE OF WAR, 41 STAT. 801, AS WELL AS DECISION OF THIS OFFICE DATED SEPTEMBER 1, 1938, 18 COMP. GEN. 213, WHERE THE AUTHORITIES ARE COLLECTED AND DISCUSSED. COMPARE, IN THIS CONNECTION, THE CASES NOTED AT 12 A.L.R. 929, 26 ID. 142. THE SUBJECT OF YOUR FIRST QUESTION, THEREFORE, MUST BE CONSIDERED TO HAVE DISQUALIFIED HIMSELF FROM CIVIL SERVICE AND TO HAVE VACATED HIS CIVIL POST WHEN HE ENLISTED IN THE MILITARY SERVICE, AND, FOR THAT REASON, HE CANNOT BE REGARDED AS ON LEAVE THEREFROM.

THE RECENT STATUTES REFERRED TO IN YOUR FIRST QUESTION HAVE ENACTED A DIFFERENT RESULT FOR THE CIVILIAN PERSONNEL WHO ARE CALLED INTO SERVICE UNDER THEIR AUTHORITY. SEE 20 COMP. GEN. 158; ID. 167 (B-12291 OF SEPTEMBER 18, 1940, AND B-12196 OF SEPTEMBER 20, 1940, RESPECTIVELY). SUCH PROVISIONS (SEE SECTION 8 OF THE ACT OF SEPTEMBER 16, 1940, PUBLIC NO. 783) DO NOT PURPORT TO COVER ANY OTHERS WHO ARE IN THE MILITARY SERVICE, AND IN VIEW OF THE INHERENT DIFFERENCES DISTINGUISHING THE STATUS OF THE REGULAR ARMY FROM THAT OF THE PERSONS INDUCTED UNDER THESE ACTS, IT IS NOT TO BE PRESUMED THAT THE STATUTES ARE INTENDED TO BE BROADER THAN THEIR TERMS IMPLY.

(2) IT FOLLOWS THAT A NEGATIVE ANSWER IS REQUIRED TO THE SECOND QUESTION ALSO, AND THIS WOULD APPLY WITH PARTICULAR FORCE TO THE FLYING CADETS IN THE ARMY AIR CORPS VIEW OF THE SERVICE TO WHICH THEY AGREE IN THEIR CONTRACTS OF ENLISTMENT--- THERE BEING FOR NOTING IN THIS CONNECTION THE PROVISIONS OF ARMY REGULATIONS 615-160, PARAGRAPH 1 D, AS FOLLOWS:

EACH APPLICANT FOR APPOINTMENT AS A FLYING CADET WILL SIGN AN AGREEMENT, WITH THE CONSENT OF HIS PARENTS, OR GUARDIAN, IF A MINOR, BY WHICH HE WILL AGREE---

(1) TO ENLIST FOR 3 YEARS AS A FLYING CADET OF THE AIR CORPS, WITH THE UNDERSTANDING THAT UPON COMPLETION OF THE COURSE OF INSTRUCTION AT THE AIR CORPS TRAINING CENTER, WHICH NORMALLY REQUIRES 1 YEAR, HE WILL BE DISCHARGED AS A FLYING CADET.

(2) TO REMAIN UNMARRIED DURING THE PERIOD OF TRAINING AS A FLYING CADET.

(3) TO SERVE 3 YEARS AS A SECOND LIEUTENANT, AIR CORPS RESERVE, ON ACTIVE DUTY, UNLESS SOONER RELIEVED BY COMPETENT AUTHORITY.

(3) THE ANSWERS TO QUESTIONS NOS. 1 AND 2 BEING IN THE NEGATIVE, NO ANSWER IS REQUIRED TO QUESTION (3).

(4) AS IN OTHER CASES OF SEPARATION FROM A CIVILIAN POSITION, ANY ACCRUED LEAVE REMAINING TO THE CREDIT OF, AND NOT TAKEN BY THE EMPLOYEE AT THE TIME HE LEAVES THE SERVICE TO ENLIST, IS FORFEITED, 18 COMP. GEN. 94. THEREFORE, QUESTION 4 IS ANSWERED IN THE NEGATIVE.

(5) WHILE THE EMPLOYEE IS REFERRED TO AS HAVING LEFT HIS PERMANENT POSITION FOR VOLUNTARY ACTIVE DUTY FOR A PERIOD OF 3 MONTHS IT IS ASSUMED THAT SUCH EMPLOYEE WAS ORDERED TO ACTIVE DUTY WITH HIS CONSENT PURSUANT TO THE PROVISIONS OF 10 U.S.C. 369, READING AS FOLLOWS:

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. ( JUNE 3, 1916, C. 134, SEC. 37A; JUNE 4, 1920, C. 227, SUBCHAPTER I, SEC. 32, 41 STAT. 776.) IF THAT BE THE SITUATION, AND IF IT BE YOUR PURPOSE TO RESTORE HIM TO DUTY FOLLOWING HIS MILITARY DISCHARGE AND RECREDIT HIM ANNUAL LEAVE PREVIOUSLY ACCRUED, THERE WOULD APPEAR TO BE FOR APPLICATION THE PROVISIONS OF SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384 OF MARCH 29, 1940, 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. ( ITALICS SUPPLIED.) SEE, IN THAT CONN%CTION, QUESTION NO. 3, AND THE ANSWER THERETO, IN DECISION OF SEPTEMBER 20, 1940, B-12196, 20 COMP. GEN. 167. QUESTION 5 IS ANSWERED ACCORDINGLY.