B-16619, MAY 14, 1941, 20 COMP. GEN. 776

B-16619: May 14, 1941

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APPLIES AS WELL TO ANY RESERVIST WHO IS ON ACTIVE DUTY ON AUGUST 27. AS TO THOSE WHO SUBSEQUENTLY ARE ORDERED TO ACTIVE DUTY UNDER THE AUTHORITY OF THAT STATUTE. IS ENTITLED TO THE BENEFITS OF SECTION 8 OF THAT ACT. 1941: I HAVE YOUR LETTER OF APRIL 30. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 13. 1940 (B-12673) IN WHICH IT IS HELD THAT AN EMPLOYEE WHO ENLISTS VOLUNTARILY IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES MUST BE CONSIDERED TO HAVE DISQUALIFIED HIMSELF FROM CIVIL SERVICE AND TO HAVE VACATED HIS CIVIL POST. REFERENCE IS ALSO MADE TO PUBLIC RESOLUTION NO. 96. IN WHICH IT IS STATED THAT THE PRESIDENT IS AUTHORIZED TO ORDER INTO THE ACTIVE MILITARY SERVICE ANY OR ALL MEMBERS AND UNITS OR ANY OR ALL RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES.

B-16619, MAY 14, 1941, 20 COMP. GEN. 776

OFFICERS AND EMPLOYEES - RESTORATION TO CIVILIAN POSITIONS UPON COMPLETION OF MILITARY DUTY SECTION 3 OF PUBLIC RESOLUTION NO. 96, AUGUST 27, 1940, AS AMENDED, PROVIDING, AMONG OTHER THINGS, FOR THE RESTORATION OF GOVERNMENT EMPLOYEES TO THEIR CIVILIAN POSITIONS UPON COMPLETION OF THE MILITARY DUTY CONTEMPLATED THEREIN, APPLIES AS WELL TO ANY RESERVIST WHO IS ON ACTIVE DUTY ON AUGUST 27, 1940, AS TO THOSE WHO SUBSEQUENTLY ARE ORDERED TO ACTIVE DUTY UNDER THE AUTHORITY OF THAT STATUTE. A GOVERNMENT EMPLOYEE, WHO VOLUNTEERS FOR INDUCTION UNDER THE AUTHORITY OF SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, IS ENTITLED TO THE BENEFITS OF SECTION 8 OF THAT ACT, PROVIDING, AMONG OTHER THINGS, FOR THE RESTORATION OF EMPLOYEES TO THEIR CIVILIAN POSITIONS. COMP. GEN. 257, INVOLVING AN ENLISTMENT IN THE REGULAR ARMY, DISTINGUISHED. WHILE PUBLIC RESOLUTION NO. 96, AUGUST 27, 1940, AS AMENDED, AND THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 PROVIDE FOR RESTORING GOVERNMENT EMPLOYEES TO THEIR CIVILIAN POSITIONS UPON COMPLETION OF THE MILITARY DUTY CONTEMPLATED THEREIN, SAID STATUTES DO NOT REQUIRE THAT THE EMPLOYEES BE REGARDED AS ON FURLOUGH WHEN THEY ENTER THE MILITARY SERVICE BUT ONLY THAT THEY BE REGARDED AS "HAVING BEEN" ON FURLOUGH IF AND WHEN THEY RETURN TO THEIR CIVILIAN POSITIONS UNDER THE PRESCRIBED CONDITIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, MAY 14, 1941:

I HAVE YOUR LETTER OF APRIL 30, 1941, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF NOVEMBER 13, 1940 (B-12673) IN WHICH IT IS HELD THAT AN EMPLOYEE WHO ENLISTS VOLUNTARILY IN THE MILITARY OR NAVAL SERVICE OF THE UNITED STATES MUST BE CONSIDERED TO HAVE DISQUALIFIED HIMSELF FROM CIVIL SERVICE AND TO HAVE VACATED HIS CIVIL POST, AND FOR THAT REASON CANNOT BE REGARDED AS ON LEAVE FROM HIS CIVIL POSITION.

REFERENCE IS ALSO MADE TO PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, IN WHICH IT IS STATED THAT THE PRESIDENT IS AUTHORIZED TO ORDER INTO THE ACTIVE MILITARY SERVICE ANY OR ALL MEMBERS AND UNITS OR ANY OR ALL RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES, WITH OR WITHOUT THEIR CONSENT, AND THAT ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH ACTIVE DUTY OR SUCH SERVICE HAS LEFT OF LEAVES A POSITION, IS ENTITLED TO BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY STATUS, AND PAY. THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AUTHORIZES THE PRESIDENT TO SELECT AND INDUCT INTO THE LAND AND NAVAL FORCES OF THE UNITED STATES FOR TRAINING AND SERVICE, AND PROVIDES THAT ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.

THE DEPARTMENT HAS BEEN REQUESTED TO CLARIFY THE PROVISIONS OF THE FOREGOING IN THE CASES OF EMPLOYEES WHO WERE MEMBERS OF RESERVE COMPONENTS OF THE ARMY WHO WERE CALLED TO ACTIVE MILITARY DUTY WITH OR WITHOUT THEIR CONSENT, SUBSEQUENT TO AUGUST 27, 1940, OR WHO HAD BEEN ORDERED TO ACTIVE DUTY WITH THEIR CONSENT AND WERE SERVING SUCH DUTY ON AUGUST 27, 1940, THE DATE OF THE RESOLUTION. THE DEPARTMENT DESIRES TO APPLY THE PROVISIONS OF PUBLIC RESOLUTION NO. 96 TO THESE EMPLOYEES.

THE DEPARTMENT DESIRES FURTHER CLARIFICATION OF YOUR DECISION OF NOVEMBER 13, 1940, REFERRED TO ABOVE IN THE CASE OF AN EMPLOYEE WHO VOLUNTARILY ENLISTS FOR ONE YEAR RATHER THAN WAIT FOR INDUCTION INTO THE SERVICE. IS DESIRED TO APPLY THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 SO THAT UNIFORM TREATMENT WILL BE AFFORDED TO THOSE EMPLOYEES CALLED INTO THE RESERVES WITH THEIR CONSENT AND THOSE WHO VOLUNTEER FOR TRAINING UNDER THE ACT.

A DECISION IS REQUESTED AS TO WHETHER IN THE TWO TYPES OF CASES OUTLINED ABOVE THE EMPLOYEES ARE ENTITLED TO BE FURLOUGHED DURING THE PERIOD OF ACTIVE MILITARY DUTY AND RESTORED TO THEIR POSITIONS AT THE EXPIRATION OF SUCH DUTY.

THE PERTINENT SECTIONS OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940 (54 STAT. 859), AS AMENDED, ARE AS FOLLOWS:

SEC. 3. (A) ANY MEMBER OF ANY RESERVE COMPONENT OF THE LAND OR NAVAL FORCES WHO IS ON ACTIVE DUTY OR WHO MAY BE ASSIGNED TO ACTIVE DUTY AND WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES THE PERIOD OF SERVICE REQUIRED UNDER THIS JOINT RESOLUTION, SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH ACTIVE DUTY OR SUCH PERIOD OF SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. * * *

(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) (AS AMENDED BY SECTION 8 (D) OF THE ACT OF SEPTEMBER 16, 1940, 54 STAT. 891) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) AND (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 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.

YOUR FIRST QUESTION IS WHETHER RESERVISTS, EITHER (1) ON ACTIVE DUTY ON AUGUST 27, 1940, OR (2) THEREAFTER ORDERED TO DUTY, ARE ENTITLED TO BE FURLOUGHED FROM THEIR CIVILIAN POSITIONS DURING THE PERIOD OF ACTIVE MILITARY DUTY AND RESTORED TO THEIR CIVILIAN POSITIONS UPON EXPIRATION OF SUCH MILITARY DUTY.

BY ITS CLEAR TERMS, SECTION 3 (A) OF THE RESOLUTION OF AUGUST 27, 1940, APPLIES AS WELL TO ANY RESERVIST "WHO IS ON ACTIVE DUTY" ON THE DATE OF ITS APPROVAL AS TO THOSE WHO SUBSEQUENTLY ARE ORDERED THERETO UNDER THE AUTHORITY OF THAT STATUTE. OBVIOUSLY, THE REFERENCE TO PERSONS THEN ON ACTIVE DUTY MUST HAVE CONTEMPLATED THAT THEY PREVIOUSLY HAD BEEN ORDERED TO SUCH SERVICE. SEE 16 CONG. RECORD ( SEMI-MO. USED.) AT PP. 15172-3 AND 15185.

YOU PRESENT, FURTHER, A SIMILAR QUESTION WITH RESPECT TO "AN EMPLOYEE WHO VOLUNTARILY ENLISTS FOR 1 YEAR RATHER THAN WAIT FOR INDUCTION INTO THE SERVICE.' WHILE YOUR LETTER USES THE TERM ,ENLISTS," I ASSUME YOU DO NOT REFER TO AN ORIGINAL ENLISTMENT IN THE REGULAR ARMY EITHER FOR A PERIOD OF 1 OR 3 YEARS, UNDER SECTION 27 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 10 U.S.C. 628. THAT WAS ASSUMED TO BE THE STATUS OF THE INDIVIDUAL CONSIDERED IN QUESTION NO. 1 OF THE DECISION OF NOVEMBER 13, SUPRA, SINCE IT WAS SPECIFIED THAT HE WAS "NOT INDUCTED INTO THE SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940.' THAT DECISION POINTED OUT THAT THE STATUTES REFERRED TO ABOVE DID NOT COMPREHEND SUCH AN ENLISTMENT, AND THAT THE NATURE OF AN ENLISTED MAN'S STATUS UNDER MILITARY LAW PRECLUDES THE VIEW THAT AN ENLISTED MAN COULD BE CONSIDERED IN ANY WISE TO RETAIN A CIVILIAN STATUS AFTER HE HAS BECOME SUBJECT TO THE MILITARY LAWS. THE WORDING OF YOUR QUESTION INDICATES RATHER THAT YOU REFER TO A PERSON WHO IS "AFFORDED AN OPPORTUNITY TO VOLUNTEER FOR INDUCTION" UNDER THE AUTHORITY OF SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885. SECTION 8 OF THE SAME ACT PRESERVES, IN GENERAL, THE CIVILIAN EMPLOYMENT RIGHTS OF " ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE," WHICH MUST BE TAKEN TO INCLUDE VOLUNTEERS FOR INDUCTION UNDER THAT ACT, AS WELL AS PERSONS CONSCRIPTED. THUS LIMITING YOUR SECOND QUESTION, AND THUS DISTINGUISHING ITS FACTS FROM THOSE CONSIDERED IN THE DECISION OF NOVEMBER 13, 1940, 20 COMP. GEN. 257, THE CONCLUSION FOLLOWS THAT PERSONS OF THE THREE CLASSES MENTIONED IN YOUR LETTER ARE ENTITLED, RESPECTIVELY, TO THE BENEFITS OF THE APPLICABLE STATUTORY PROVISIONS REFERRED TO ABOVE. SEE QUESTION AND ANSWER NO. 5 IN THE DECISION CITED, 20 COMP. GEN. 257, AND DECISION OF SEPTEMBER 18, 1940, 20 COMP. GEN. 158.

THOSE BENEFITS ARE NOT, HOWEVER, EXACTLY AS SUGGESTED BY THE CONCLUDING PARAGRAPH OF YOUR LETTER. WHILE THE STATUTES PROVIDE FOR THE RESTORATION TO THE CIVILIAN POSITIONS UPON COMPLETION OF MILITARY DUTY, SAID STATUTES DO NOT REQUIRE THAT THE EMPLOYEES BE REGARDED AS ON FURLOUGH WHEN THEY ENTER THE MILITARY SERVICE BUT ONLY THAT THEY BE REGARDED AS "HAVING BEEN" ON FURLOUGH IF AND WHEN THEY RETURN TO THEIR CIVIL POSITIONS UNDER THE CONDITIONS PRESCRIBED IN THE INVOLVED STATUTES. CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 255, OF APRIL 16, 1941. FOR AN EXPLANATION OF THE STATUS OF SUCH PERSONS DURING THE INTERIM, SEE 20 COMP. GEN. 158, ID. 167.