B-153130, FEB. 6, 1964

B-153130: Feb 6, 1964

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HE WAS ASSIGNED TO DUTY AT CAMP PENDLETON EFFECTIVE SEPTEMBER 6. WE UNDERSTAND THAT IMMEDIATELY PRIOR TO JULY 30 SERGEANT HURRLE WAS A MEMBER OF THE MARINE CORPS RESERVE. ON THAT DATE HE REENLISTED INTO THE REGULAR MARINE CORPS SERVICE AND WE ARE INFORMED THAT HIS RESERVE STATUS WAS THEN TERMINATED. SERGEANT HURRLE'S SUPERVISORS REQUESTED HIM ON JULY 31 TO RETURN TO WORK IN THE POSTAL SERVICE UNTIL HIS FORMAL REENLISTMENT ORDERS WERE RECEIVED. THE SPECIFIC PAY MATTER DISCUSSED IN YOUR LETTER IS. ARE IN PARI MATERIA. 34 OP.ATTY.GEN. 490. YOU HAVE HELD THAT WHO ACCEPTS A POSITION (SIC) AND THEREFORE IS ENTITLED TO COMPENSATION FOR SERVICE RENDERED IN THE SECOND POSITION. 32 COMP. GEN. 288 IS NOT FOR APPLICATION HERE.

B-153130, FEB. 6, 1964

TO THE POSTMASTER GENERAL:

YOUR LETTER OF DECEMBER 20, 1963, FILE 800, REQUESTS OUR VIEWS AS TO THE PROPRIETY OF THE PROPOSAL IN YOUR LETTER CONCERNING THE SALARY WHICH THE POSTAL FIELD SERVICE HAS PAID TO DONALD R. HURRLE, COVERING THE PERIOD JULY 30 THROUGH AUGUST 8, 1963, AS A CLERK IN THE BOSTONIA STATION OF THE POST OFFICE AT EL CAJON, CALIFORNIA. YOUR POINT OUT THAT HE REENLISTED ON JULY 30, 1963, AS A SERGEANT E5, IN THE REGULAR UNITED STATES MARINE CORPS. SUBSEQUENTLY, HIS REENLISTMENT ORDERS DATED AUGUST 6, 1963, PROVIDED SERGEANT HURRLE ADVANCE LEAVE OF 30 DAYS BEGINNING ON THAT DATE, AND HE WAS ASSIGNED TO DUTY AT CAMP PENDLETON EFFECTIVE SEPTEMBER 6, 1963.

WE UNDERSTAND THAT IMMEDIATELY PRIOR TO JULY 30 SERGEANT HURRLE WAS A MEMBER OF THE MARINE CORPS RESERVE; HOWEVER, ON THAT DATE HE REENLISTED INTO THE REGULAR MARINE CORPS SERVICE AND WE ARE INFORMED THAT HIS RESERVE STATUS WAS THEN TERMINATED.

FURTHER, THE RECORD SHOWS THAT BECAUSE OF A LACK OF ACCURATE INFORMATION AT THE TIME, CONCERNING SERGEANT HURRLE'S MARINE CORPS SERVICE AND PAY STATUS, SERGEANT HURRLE'S SUPERVISORS REQUESTED HIM ON JULY 31 TO RETURN TO WORK IN THE POSTAL SERVICE UNTIL HIS FORMAL REENLISTMENT ORDERS WERE RECEIVED.

THE SPECIFIC PAY MATTER DISCUSSED IN YOUR LETTER IS, AS FOLLOWS:

"IT HAS LONG BEEN HELD THAT SECTIONS 58 AND 62 OF TITLE 5, U.S.C. ARE IN PARI MATERIA. 34 OP.ATTY.GEN. 490. ALSO, YOU HAVE HELD THAT WHO ACCEPTS A POSITION (SIC) AND THEREFORE IS ENTITLED TO COMPENSATION FOR SERVICE RENDERED IN THE SECOND POSITION. 32 COMP. GEN. 448. THE EXCEPTION STATED IN 20 COMP. GEN. 288 IS NOT FOR APPLICATION HERE. HENCE, WE BELIEVE THAT ON JULY 30, 1963, WHEN THE EMPLOYEE ENLISTED IN THE MARINE CORPS AND BECAME ENTITLED ON THAT DAY TO PAY FROM THAT MILITARY ESTABLISHMENT, THERE WAS AN AUTOMATIC VACATION OF HIS POSTAL POSITION OF REGULAR CLERK. HIS CONTINUED EMPLOYMENT SHOULD THEREFORE BE REGARDED AS BEING IN THE CAPACITY OF A TEMPORARY SUBSTITUTE CLERK. AS SUCH, HIS EMPLOYMENT FROM JULY 30 THROUGH AUGUST 8, 1963 WAS AS AN INTERMITTENT EMPLOYEE AND THEREFORE EXEMPT FROM THE STATUTORY PROHIBITION. SEE 36 COMP. GEN. 655; 15 ID. 751; 15 ID. 909.

"THIS TREATMENT WOULD BE IN ACCORDANCE WITH THE ACTUALITIES OF THE SITUATION. FROM THE TIME SERGEANT HURRLE RETURNED TO THE POST OFFICE AFTER ENTERING THE MILITARY SERVICE HIS POSTAL EMPLOYMENT WAS FOR A BRIEF PERIOD AND FOR THE PURPOSES OF SUPPLYING NECESSARY SERVICE TO THE OFFICE DURING A VACANCY IN THE REGULAR CLERK POSITION.

"PENDING YOUR DECISION, WE ARE HOLDING FURTHER COLLECTION ACTION IN ABEYANCE. WE PROPOSE TO CORRECT SERGEANT HURRLE'S CIVILIAN EMPLOYMENT RECORDS TO REFLECT THAT HE WAS SEPARATED FROM THE POSTAL SERVICE ON JULY 30, 1963 AND THAT HE WAS THEN APPOINTED TO A TEMPORARY SUBSTITUTE CLERK POSITION AS OF JULY 30, 1963 AND FINALLY THAT EMPLOYMENT IN THAT TEMPORARY POSITION WAS TERMINATED AT CLOSE OF BUSINESS ON AUGUST 8, 1963.

"YOUR CONCURRENCE IS REQUESTED.'

AS TO YOUR SPECIFIC REQUEST, WE COULD CONCUR IN THE SUBSTANCE OF THE ABOVE-QUOTED VIEWS AND FACTUAL CONCLUSIONS WHICH PRECEDE THE WORDS "HENCE, WE BELIEVE * * *" HOWEVER, THE MATTERS THEREAFTER DISCUSSED IN YOUR LETTER MUST BE CONSIDERED IN THE LIGHT OF THE ESTABLISHED RULES CONCERNING INCOMPATIBILITY BETWEEN ANY ARMED FORCES SERVICE AND CIVILIAN GOVERNMENT EMPLOYMENT.

IN OUR DECISION AT 18 COMP. GEN. 213, AT PAGE 216, WE HELD AS FOLLOWS:

"IF IT IS INCOMPATIBLE AND AGAINST THE GENERAL POLICY OF THE LAW FOR A RETIRED OFFICER, WHO IS ONLY SUBJECT TO THE RULES AND ARTICLES OF WAR AND CERTAIN LIMITED OTHER INCIDENTS OF MILITARY SERVICE, TO HOLD A CIVIL OFFICE IN A FOREIGN COUNTRY, OBVIOUSLY, ANY APPOINTMENT IN THE CIVIL BRANCH OF THE GOVERNMENT WOULD BE INCOMPATIBLE WITH SERVICE ON THE ACTIVE LIST OF THE ARMY. THE FACT THAT DURING HOURS OF RELAXATION OR RELIEF FROM THE ACTUAL PERFORMANCE OF DUTIES THE INDIVIDUAL HAS TIME TO DEVOTE TO HIS PERSONAL AFFAIRS AND THAT NORMALLY SUCH TIME IS AVAILABLE FOR THE PERFORMANCE OF OTHER DUTIES IS NOT THE TEST. COMPATIBILITY IS DETERMINED BY THE INDIVIDUAL'S FREEDOM TO PERFORM BOTH SERVICES, THE ONE WITHOUT INTERFERENCE FROM THE OTHER. THE SUPERIOR--- THE CONTROLLING--- OBLIGATION TO RENDER MILITARY SERVICE THUS MAKES IMPOSSIBLE THE ACCEPTANCE WITHOUT QUALIFICATION OF ANOTHER OBLIGATION TO THE GOVERNMENT TO RENDER SERVICE IN A CIVILIAN CAPACITY AT THE SAME TIME. THE TIME OF ONE IN THE MILITARY SERVICE IS NOT HIS OWN HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES TO THE GOVERNMENT IN ANOTHER POSITION OR EMPLOYMENT IS INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL. * * *"

THE ABOVE RULE ON THE "INCOMPATIBILITY" OF THE SERVICE OF ARMED FORCES PERSONNEL HAS BEEN APPLIED TO INDIVIDUALS ON FURLOUGH, OR DURING THE EQUIVALENTS OF ADVANCE LEAVE WITH PAY AWAITING THE FULFILLMENT OF PRESENT ORDERS OR SUBJECT TO FURTHER ORDERS. SEE 27 COMP. GEN. 510, AND CASES CITED THEREIN; ALSO 3 COMP. GEN. 40.

OUR VIEW IS THAT THE ENLISTED SERVICE OF SERGEANT HURRLE ON AND AFTER JULY 30, DURING THE PERIOD HERE INVOLVED, WAS NOT COMPATIBLE WITH HIS ACCEPTANCE OF CIVILIAN GOVERNMENT EMPLOYMENT IN ANY CAPACITY DURING THE 24 HOURS OF EACH SUCH DAY.

THEREFORE, WE ARE UNABLE TO CONCUR IN THE PROPOSAL TO "CORRECT" THE EMPLOYMENT RECORDS SO AS TO REFLECT TEMPORARY SUBSTITUTE CLERK SERVICE IN THE PLACE OF THE ACTUALLY FULL-TIME REGULAR CLERK SERVICE FROM JULY 30 TO AUGUST 8, 1963. HENCE, COLLECTION OF THE INDEBTEDNESS, WHICH WAS INITIATED ADMINISTRATIVELY BY INVOICE NO. 190 DATED OCTOBER 16, 1963, IS REQUIRED IN THIS CASE.