B-13451, JANUARY 15, 1941, 20 COMP. GEN. 375

B-13451, JANUARY 15, 1941, 20 COMP. GEN. 375

LEAVES OF ABSENCE - MILITARY - NAVAL RESERVIST ON ACTIVE DUTY A NAVAL RESERVE OFFICER ORDERED TO ACTIVE DUTY IN TIME OF EMERGENCY AS DECLARED BY THE PRESIDENT AND ASSIGNED TO DUTY INVOLVING INSTRUCTION OR TRAINING IS NOT, BY REASON OF SUCH ASSIGNMENT, ENTITLED TO THE BENEFITS OR SUBJECTED TO THE LIMITATIONS WHICH WOULD BE APPLICABLE IF HE WERE ORDERED TO TRAINING DUTY UNDER THE NAVAL RESERVE ACT OF 1938, AND, ALTHOUGH HE IS ALSO A CIVILIAN EMPLOYEE OF THE GOVERNMENT, HE IS NOT ENTITLED TO THE MILITARY LEAVE PROVIDED BY SECTION 9 OF SAID ACT FOR TRAINING DUTY. COMP. GEN. 282, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, JANUARY 15, 1941:

I HAVE YOUR LETTER OF DECEMBER 26, 1940, WITH WHICH YOU FORWARDED LETTER DATED DECEMBER 6, 1940, FROM THE CHIEF OF THE BUREAU OF SUPPLIES AND ACCOUNTS, AND AN INDORSEMENT THEREON DATED DECEMBER 11, 1940, BY THE CHIEF OF THE BUREAU OF NAVIGATION, REQUESTING RECONSIDERATION OF DECISION OF NOVEMBER 26, 1940, 20 COMP. GEN. 282,"TO THE EXTENT THAT SUCH DECISION HOLDS THAT THE DUTY PERFORMED BY LT. COMDR. CURTIS C. SHEARS, DE-V (G), UNITED STATES NAVAL RESERVE, UNDER ORDERS DATED JULY 19, 1940, IS TRAINING DUTY.'

THE DECISION REFERRED TO WAS RENDERED TO THE CHAIRMAN OF THE FEDERAL TRADE COMMISSION IN ANSWER TO CERTAIN QUESTIONS SUBMITTED BY HIM RELATIVE TO A PROPOSED PAYMENT TO SHEARS AS A CIVILIAN EMPLOYEE UNDER AN APPROPRIATION WHICH IS FOR EXPENDITURE BY THE COMMISSION. HENCE, SAID DECISION, AS SUCH, MAY NOT BE RECONSIDERED AT YOUR REQUEST. HOWEVER, IN THE COURSE OF THAT DECISION IT WAS SAID THAT THE DUTY TO WHICH SHEARS, AS AN OFFICER OF THE NAVAL RESERVE HAD BEEN ORDERED UNDER NAVY DEPARTMENT ORDERS OF JULY 19, 1940, WAS TRAINING DUTY AS DISTINGUISHED FROM ACTIVE DUTY; AND IT IS WITH RESPECT TO THAT CLASSIFICATION OF DUTY UNDER SUCH ORDERS TO OFFICERS OF THE NAVAL RESERVE THAT YOUR REQUEST FOR RECONSIDERATION RELATES.

THE ORDER OF JULY 19, 1940, SO FAR AS MATERIAL TO THIS CONSIDERATION, IS AS FOLLOWS:

SUBJECT: ACTIVE DUTY WITH FULL PAY AND ALLOWANCES--- CHARGEABLE AGAINST APPROPRIATION," PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL.'

REFERENCES: (A) EXECUTIVE ORDER OF SEPTEMBER 8, 1939,

(B) NAVAL APPROPRIATION ACT FOR CURRENT FISCAL YEAR.

1. IN ACCORDANCE WITH REFERENCE (A) AND (B), SUBJECT TO THE EXECUTION OF OATH AND ACCEPTANCE OF YOUR COMMISSION AS A LIEUTENANT COMMANDER, DE-V (G), U.S. NAVAL RESERVE, AND SUBJECT TO YOUR CONSENT AND THE EXECUTION OF ENCLOSURE (A), YOU WILL REPORT FOR PHYSICAL EXAMINATION AS DIRECTED IN THE FIRST ENDORSEMENT HEREON.

2. IF FOUND PHYSICALLY QUALIFIED, ON AUGUST 7, 1940, YOU WILL REPORT TO THE ASSISTANT SECRETARY OF WAR, WAR DEPARTMENT, FOR DUTY IN ATTENDANCE UPON A COURSE OF INSTRUCTION AT THE ARMY INDUSTRIAL COLLEGE, WASHINGTON, D.C.

IT WILL BE NOTED THE BEGINNING DATE OF THE ACTIVE DUTY WAS INDICATED BUT NO TERMINATION WAS SHOWN; THAT THE SUBJECT WAS " ACTIVE DUTY WITH FULL PAY AND ALLOWANCES" CHARGEABLE AGAINST THE NAMED APPROPRIATION; AND THAT REFERENCE WAS MADE TO THE EXECUTIVE ORDER OF SEPTEMBER 8, 1939, AND THE NAVAL APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR. BECAUSE OF THE NATURE OF THE DUTY ASSIGNED THE OFFICER UNDER HIS ORDERS (ATTENDANCE UPON A COURSE OF INSTRUCTION) AND OF OTHER CORRESPONDENCE WHICH WAS SUBMITTED WITH THE FEDERAL TRADE COMMISSION'S REQUEST FOR DECISION, IT WAS CONCLUDED IN THE DECISION OF NOVEMBER 26, 1940, THAT THE OFFICER WAS ASSIGNED TO TRAINING DUTY AND, THEREFORE, ENTITLED TO MILITARY LEAVE UNDER THE PROVISIONS IN SECTION 9 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1177, HEREINAFTER QUOTED. CERTAINLY, COLLOQUIALLY, THE OFFICER WAS ASSIGNED TO TRAINING DUTY, BUT BECAUSE OF THE TECHNICAL MEANING ATTACHED TO THE TERMS "ACTIVE DUTY FOR RAINING" AND "ACTIVE DUTY" WITHOUT SUCH QUALIFICATION, UNDER THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, TOGETHER WITH THE REFERENCES IN THE ORDERS TO THE APPROPRIATION ACT AND THE EXECUTIVE ORDER, THE EFFECT OF THE DECISION WITH RESPECT TO ORDERS TO OTHER OFFICERS OF THE NAVAL RESERVE SIMILARLY SITUATED, BOTH IN THE PAST AND IN THE FUTURE, PROMPTS YOU TO QUESTION THE SOUNDNESS OF THE DETERMINATION THAT THE OFFICER WAS, IN FACT, ON "TRAINING DUTY" WITHIN THE MEANING OF THAT TERM AS USED IN THE NAVAL RESERVE ACT OF 1938 AND THUS ENTITLED TO THE BENEFITS AND SUBJECT TO THE LIMITATIONS OF THAT STATUS.

SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, PROVIDES THAT THE NAVAL RESERVE SHALL BE COMPOSED OF PERSONS AS THEREIN DESCRIBED WHO "OBLIGATE THEMSELVES TO SERVE IN THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS.' SECTION 5 OF THE ACT PROVIDES THAT ANY MEMBER OF THE NAVAL RESERVE---

* * * MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: * * * PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY MAY RELEASE ANY MEMBER FROM ACTIVE DUTY EITHER IN TIME OF WAR OR IN TIME OF PEACE.

SECTION 7 OF THE ACT PROVIDES PAY FOR COMMISSIONED OFFICERS OF THE NAVAL RESERVE "WHEN EMPLOYED ON ACTIVE DUTY OR ON TRAINING DUTY WITH PAY.' SECTION 9 CONTAINS A PROVISO--- HEREINBEFORE REFERRED TO--- AS FOLLOWS:

* * * THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE 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 MAY BE EMPLOYED WITH OR WITHOUT PAY UNDER THE ORDERS OR AUTHORIZATION OF COMPETENT AUTHORITY, ON TRAINING DUTY FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

TITLE III OF THE ACT CONTAINS " PROVISIONS APPLICABLE ONLY TO THE ORGANIZED RESERVE, MERCHANT MARINE RESERVE, AND VOLUNTEER RESERVE," AND SECTION 301 UNDER THAT TITLE SUBJECTS ALL MEMBERS OF THE NAVAL RESERVE TO THE LAWS, REGULATIONS, AND ORDERS FOR THE GOVERNMENT OF THE NAVY, AMONG OTHER SITUATIONS,"WHEN EMPLOYED ON ACTIVE DUTY, AUTHORIZED TRAINING DUTY, WITH OR WITHOUT PAY.' SECTION 302 PROVIDES FOR A UNIFORM GRATUITY "UPON FIRST REPORTING FOR ACTIVE OR TRAINING DUTY WITH PAY" IN TIME OF PEACE, AND THE LAST PROVISO OF THE SECTION IS AS FOLLOWS:

* * *THAT IN TIME OF WAR OR NATIONAL EMERGENCY A FURTHER SUM OF $150 FOR THE PURCHASE OF REQUIRED UNIFORMS SHALL BE PAID TO OFFICERS OF THE NAVAL RESERVE WHEN THEY FIRST REPORT FOR ACTIVE DUTY.

SECTION 303 PROVIDES FOR CLOTHING FOR PERSONNEL OTHER THAN COMMISSIONED OR WARRANT OFFICERS IN TIME OF PEACE AND "UPON FIRST REPORTING FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY.'

SECTION 312 PROVIDES:

IN TIME OF WAR OR NATIONAL EMERGENCY, OFFICERS OF THE ACTIVE LIST OF THE NAVAL RESERVE OR THE MAINE CORPS RESERVE EMPLOYED ON ACTIVE DUTY SHALL BE ADVANCED IN THEIR RESPECTIVE CORPS IN GRADE AND RANK IN THE SAME MANNER AS IS OR MAY BE PRESCRIBED FOR OFFICERS OF THE REGULAR NAVY OR THE MARINE CORPS, RESPECTIVELY * * *.

SECTION 315 IS IN PART AS FOLLOWS:

IN TIME OF PEACE, EXCEPT AS HEREIN OTHERWISE PROVIDED, MEMBERS OF THE NAVAL RESERVE IN RECEIPT OF PAY FOR THE PERFORMANCE OF DRILLS, EQUIVALENT INSTRUCTION OR DUTY, OR APPROPRIATE DUTIES MAY BE REQUIRED TO PERFORM SUCH TRAINING DUTY, NOT TO EXCEED FIFTEEN DAYS ANNUALLY, AS MAY BE PRESCRIBED BY THE SECRETARY OF THE NAVY: * * *

THE ANNUAL APPROPRIATION FOR THE NAVY DEPARTMENT (SEE ACT OF JUNE 11, 1940, PUBLIC NO. 588) UNDER " NAVAL RESERVE" APPROPRIATES FUNDS " FOR ALL EXPENSES NOT OTHERWISE PROVIDED FOR, AUTHORIZED BY THE " NAVAL RESERVE ACT OF 1938," * * * IN CONNECTION WITH ORGANIZING, ADMINISTERING, RECRUITING, INSTRUCTING, TRAINING, AND DRILLING THE NAVAL RESERVE * * *.' UNDER " PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL PERSONNEL" THE CONCLUDING PARAGRAPH IS IN PART AS FOLLOWS:

IN ALL, FOR PAY, SUBSISTENCE, AND TRANSPORTATION OF NAVAL PERSONNEL, NAVAL RESERVE AVIATION OFFICERS ON ACTIVE DUTY, AND MEMBERS OF THE NAVAL RESERVE WHEN CALLED TO ACTIVE DUTY IN TIME OF WAR OR DURING THE EXISTENCE OF A NATIONAL EMERGENCY DECLARED BY THE PRESIDENT * * *.

UNDER TITLE II OF THE ACT," EMERGENCY NATIONAL DEFENSE APPROPRIATIONS," AN ADDITIONAL APPROPRIATION IS MADE, AT PAGE 33, UNDER " BUREAU OF SUPPLIES AND ACCOUNTS--- PAY, SUBSISTENCE AND TRANSPORTATION OF NAVAL PERSONNEL" FOR THE SAME OBJECTS SPECIFIED UNDER THIS HEAD IN TITLE I OF THE ACT, AND, ON PAGE 35, UNDER " NAVAL PERSONNEL," AN APPROPRIATION IS MADE---

FOR ADDITIONAL AMOUNTS FOR TWENTY THOUSAND NAVAL ENLISTED MEN RESERVISTS (FOR TRAINING), FIVE HUNDRED NAVAL RESERVE OFFICERS AND FIVE HUNDRED RETIRED NAVAL OFFICERS, ON ACTIVE DUTY, DURING THE FISCAL YEAR 1941, UNDER HEADINGS AND FOR THE SAME OBJECTS AS SPECIFIED UNDER THEIR HEADINGS IN TITLE I OF THIS ACT, AS FOLLOWS:

BUREAU OF SUPPLIES AND ACCOUNTS:

PAY, SUBSISTENCE, AND TRANSPORTATION, * * *

SECTION 301, TITLE III, OF THE SECOND SUPPLEMENTAL DEFENSE APPROPRIATION ACT OF 1941, ACT OF SEPTEMBER 9, 1940, PUBLIC, NO. 781, PROVIDES:

THAT DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST, SO MUCH OF SECTION 6 OF THE ACT APPROVED MAY 6, 1939 * * * IS HEREBY SUSPENDED, INSOFAR AS THE WAR AND NAVY DEPARTMENTS ARE CONCERNED.

THIS IS REFERRED TO HERE MERELY AS SHOWING A RECOGNITION BY THE CONGRESS OF THE CONTINUED EXISTENCE OF THE EMERGENCY DECLARED BY THE PRESIDENT SEPTEMBER 8, 1939, TO EXIST.

THE FOLLOWING APPEARS IN A PROCLAMATION OF THE PRESIDENT SEPTEMBER 8, 1939 ( NO. 2352):

WHEREAS MEASURES REQUIRED AT THIS TIME CALL FOR THE EXERCISE OF ONLY A LIMITED NUMBER OF THE POWERS GRANTED IN A NATIONAL EMERGENCY:

NOW, THEREFORE, I, FRANKLIN D. ROOSEVELT, PRESIDENT OF THE UNITED STATES OF AMERICA, DO PROCLAIM THAT A NATIONAL EMERGENCY EXISTS IN CONNECTION WITH AND TO THE EXTENT NECESSARY FOR THE PROPER OBSERVANCE, SAFEGUARDING, AND ENFORCING OF THE NEUTRALITY OF THE UNITED STATES AND THE STRENGTHENING OF OUR NATIONAL DEFENSE WITHIN THE LIMITS OF PEACETIME AUTHORIZATION. SPECIFIC DIRECTIONS AND AUTHORIZATIONS WILL BE GIVEN FROM TIME TO TIME FOR CARRYING OUT THESE TWO PURPOSES.

IN AN EXECUTIVE ORDER OF SEPTEMBER 8, 1939, ( NO. 8245) " AUTHORIZING INCREASES IN THE ENLISTED STRENGTHS OF THE NAVY AND THE MARINE CORPS," AFTER REFERENCE TO THE FOREGOING PROCLAMATION OF SEPTEMBER 8, 1939, IT IS PROVIDED:

4. THE SECRETARY OF THE NAVY IS ALSO AUTHORIZED TO ORDER TO ACTIVE DUTY SUCH OFFICERS AND MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE OTHER THAN TRANSFERRED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, INCLUDING AVIATION CADETS, AS HE MAY DEEM NECESSARY AND AS AGREE VOLUNTARILY TO SERVE.

IT SEEMS EVIDENT FROM THE REFERENCE IN THE ORDERS OF JULY 19, 1940, SUPRA, TO THE EXECUTIVE ORDER LAST QUOTED ABOVE, FROM THE PROVISIONS OF THE APPROPRIATION ACT CITED IN THE ORDERS, AND FROM THE PROVISIONS OF LAW HEREIN QUOTED, THAT THE OFFICER WAS IN FACT, ORDERED TO ACTIVE DUTY PURSUANT TO SECTION 5 OF THE NAVAL RESERVE ACT OF 1938, BECAUSE OF THE EMERGENCY DECLARED BY THE PRESIDENT, AND THAT HE WAS NOT ORDERED TO ACTIVE DUTY FOR TRAINING DUTY AS CONTEMPLATED BY OTHER SECTIONS OF THE NAVAL RESERVE ACT OF 1938. HAVING BEEN ORDERED TO ACTIVE DUTY IN TIME OF EMERGENCY AS DECLARED BY THE PRESIDENT, THE ASSIGNMENT OF THE OFFICER TO DUTY INVOLVING INSTRUCTION OR TRAINING DOES NOT CHANGE HIS STATUS, NOR ENTITLE HIM TO THE BENEFITS, OR SUBJECT HIM TO THE LIMITATIONS, OF A NAVAL RESERVE OFFICER ORDERED TO TRAINING DUTY UNDER THE CITED NAVAL RESERVE ACT. IT HAS BEEN HELD HERETOFORE THAT AN OFFICER OF THE NAVY RESERVE ORDERED TO ACTIVE DUTY DURING THE EMERGENCY IS NOT ENTITLED TO MILITARY LEAVE WITH PAY FOR 15 DAYS AS PROVIDED IN SECTION 9 OF THE NAVAL RESERVE ACT. 19 COMP. GEN. 880; 20 ID. 158 AND 163. ACCORDINGLY, THE DECISION OF NOVEMBER 26, 1940, INSOFAR AS IT RELATES TO MILITARY LEAVE WITH PAY, WILL NOT BE FOLLOWED IN ANY OTHER CASE THAN THE CASE OF LT. COMDR. CURTIS C. SHEARS, DE-V (G), U.S.N.R., THEREIN CONSIDERED. PAYMENT MADE TO HIM BY A DISBURSING OFFICER OF THE NAVY OF THE UNIFORM GRATUITY UPON REPORTING FOR ACTIVE DUTY IN TIME OF EMERGENCY WILL NOT BE QUESTIONED IN THE AUDIT IF OTHERWISE CORRECT AND PROPER.