B-17183, JUNE 5, 1941, 20 COMP. GEN. 860

B-17183: Jun 5, 1941

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

1941: I HAVE YOUR LETTER OF MAY 23. AS FOLLOWS: IT IS HELD. PROHIBITS THE PAYMENT OF SALARY COVERING THE ANNUAL LEAVE OF A CIVILIAN EMPLOYEE WHO IS CALLED TO SERVICE WITH THE ARMED FORCES UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC LAW NO. 783. THERE IS CLEARLY NOTHING INCOMPATIBLE IN THE SIMULTANEOUS RECEIPT OF PAY FROM A CIVILIAN POSITION. SUCH RATE IS EXCEEDED. THE STATUTE WILL OPERATE TO PREVENT THE RECEIPT OF BOTH SALARIES. WHO IS CALLED TO SERVICE UNDER EITHER OF THE ACTS CITED. AS IS REQUIRED BY LAW OR REGULATION. IS OBTAINED FROM MILITARY AUTHORITIES. YOUR EARLY CONSIDERATION OF THIS QUESTION WILL BE APPRECIATED. THIS OFFICE HAS HELD CONSISTENTLY THAT THERE CAN BE NO RIGHT OF ELECTION TO RECEIVE THE COMPENSATION OF A CIVILIAN POSITION WHERE THERE IS DUAL EMPLOYMENT IN A CIVILIAN OFFICE OR POSITION AND ACTIVE MILITARY SERVICE OF THE UNITED STATES DURING THE SAME PERIOD OF TIME.

B-17183, JUNE 5, 1941, 20 COMP. GEN. 860

COMPENSATION - DOUBLE - CIVILIAN EMPLOYEES ON MILITARY DUTY - RIGHT OF ELECTION BETWEEN MILITARY PAY AND CIVILIAN COMPENSATION A CIVILIAN EMPLOYEE OF THE GOVERNMENT ORDERED OR INDUCTED INTO ACTIVE MILITARY SERVICE UNDER PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, OR THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, MAY NOT ELECT TO RECEIVE, IN LIEU OF HIS MILITARY PAY, THE COMPENSATION OF HIS CIVILIAN POSITION FOR A PERIOD OF ANNUAL LEAVE CONCURRENT WITH HIS MILITARY SERVICE, IF THE COMBINED RATE OF MILITARY PAY AND CIVILIAN COMPENSATION EXCEEDS THE $2,000 PER ANNUM LIMITATION OF THE DUAL COMPENSATION ACT OF 1916.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, JUNE 5, 1941:

I HAVE YOUR LETTER OF MAY 23, 1941, AS FOLLOWS:

IT IS HELD, IN 20 COMP. GEN. 176, THAT THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED (5 U.S.C., SEC. 58), PROHIBITS THE PAYMENT OF SALARY COVERING THE ANNUAL LEAVE OF A CIVILIAN EMPLOYEE WHO IS CALLED TO SERVICE WITH THE ARMED FORCES UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 ( PUBLIC LAW NO. 783, 76TH CONGRESS), OR PUBLIC RESOLUTION NO. 96, 76TH CONGRESS, WHILE ENTITLED TO ACTIVE-DUTY PAY FROM THE ARMY OR NAVY (EXCEPT MEMBERS OF THE NAVAL RESERVE), IF THE COMBINED RATES OF THE CIVILIAN SALARY AND MILITARY OR NAVAL COMPENSATION EXCEED $2,000 PER ANNUM.

THE ACT OF MAY 10, 1916, SUPRA, PROVIDES, IN PART:

"THAT UNLESS OTHERWISE SPECIFICALLY 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 * * *.'

THE DECISION IN 20 COMP. GEN. 167, SUPRA, FURTHER HOLDS:

"OF COURSE, IF THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND PAY FOR SERVICE IN THE LAND OR NAVAL FORCES DOES NOT EXCEED $2,000 PER ANNUM, EMPLOYEES MAY BE PAID THE COMPENSATION OF THEIR CIVILIAN POSITIONS DURING ANNUAL LEAVE TO THEIR CREDIT IF ADMINISTRATIVELY GRANTED EVEN THOUGH SUCH PERIOD EXTENDS BEYOND THE DATE OF ENTRY IN THE MILITARY OR NAVAL SERVICE.'

UNDER THE DECISIONS OF YOUR OFFICE, THEREFORE, THERE IS CLEARLY NOTHING INCOMPATIBLE IN THE SIMULTANEOUS RECEIPT OF PAY FROM A CIVILIAN POSITION, WHILE SERVING IN THE LAND OR NAVAL FORCES PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION 96, 76TH CONGRESS, EXCEPT INSOFAR AS THE COMBINED RATES OF COMPENSATION EXCEED $2,000. SUCH RATE IS EXCEEDED, THE STATUTE WILL OPERATE TO PREVENT THE RECEIPT OF BOTH SALARIES. SEE 20 COMP. GEN. 118; ID. 158.

THE QUESTION HAS BEEN RAISED AS TO WHETHER A CIVILIAN EMPLOYEE, WHO IS CALLED TO SERVICE UNDER EITHER OF THE ACTS CITED, AND FOR WHOM THE COMBINED RATES OF PAY AND SALARY INVOLVED EXCEED $2,000 PER ANNUM, MAY ELECT TO FOREGO HIS MILITARY PAY IN ORDER TO RECEIVE, FOR THE PERIOD OF ANY ANNUAL LEAVE TO HIS CREDIT, THE PAY OF HIS CIVILIAN POSITION, ASSUMING THAT THE NECESSARY CONSENT OR APPROVAL, AS IS REQUIRED BY LAW OR REGULATION, IS OBTAINED FROM MILITARY AUTHORITIES.

YOUR EARLY CONSIDERATION OF THIS QUESTION WILL BE APPRECIATED.

THIS OFFICE HAS HELD CONSISTENTLY THAT THERE CAN BE NO RIGHT OF ELECTION TO RECEIVE THE COMPENSATION OF A CIVILIAN POSITION WHERE THERE IS DUAL EMPLOYMENT IN A CIVILIAN OFFICE OR POSITION AND ACTIVE MILITARY SERVICE OF THE UNITED STATES DURING THE SAME PERIOD OF TIME. IN DECISION OF JULY 21, 1923, 3 COMP. GEN. 40, 41, IT WAS STATED:

THE QUESTION WHETHER A PERSON IN THE MILITARY SERVICE MAY IN THE ABSENCE OF A STATUTE BE EMPLOYED IN ANOTHER CAPACITY UNDER THE GOVERNMENT AND BE PAID THEREFOR IS NOT A NEW ONE. SO FAR AS AN ENLISTED MAN IS CONCERNED, AND UNTIL HIS ENLISTMENT IS TERMINATED, HE MAY BE PAID ONLY THE PAY AND ALLOWANCES THAT ACCRUE TO HIM UNDER THE LAWS AND REGULATIONS APPLICABLE TO HIS ENLISTED STATUS. 15 OP. ATTY. GEN., 362; 18 COMP. DEC., 224. SEE ALSO FOR A CASE SOMEWHAT SIMILAR TO THE PRESENT ONE, 22 COMP. DEC., 259. AND SEE ALSO 26 COMP. DEC., 568; 25 ID., 666.

THIS RULE WAS APPLIED IN DECISIONS OF JULY 7, 1930, A-32387, AND SEPTEMBER 25, 1933, A-51041, THE LATTER DECISION STATING AS FOLLOWS:

IT HAS BEEN HELD UNIFORMLY THAT A PENSION IN THE MILITARY SERVICE MAY NOT BE EMPLOYED AND PAID FOR SERVICE IN ANOTHER CAPACITY UNDER THE GOVERNMENT IN THE ABSENCE OF A STATUTE GRANTING AUTHORITY THEREFOR. SEE 3 COMP. GEN. 40. IN SUCH CASES THERE IS NO RIGHT TO ELECT WHICH PAYMENT WILL BE RETAINED SINCE THE OBLIGATION UNDER THE ENLISTMENT FOR MILITARY SERVICE IS PARAMOUNT.

IN DECISION OF NOVEMBER 26, 1940, 20 COMP. GEN. 282, 286, IT WAS STATED:

* * * IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, ACTIVE SERVICE IN THE MILITARY AND CIVILIAN BRANCHES OF THE GOVERNMENT DURING THE SAME PERIOD OF TIME ARE ENTIRELY INCONSISTENT AND NOT AUTHORIZED. SEE 25 COMP. DEC. 666; 3 COMP. GEN. 40; 16 ID. 161; 17 ID. 1049; 18 ID. 213; 19 ID. 901; DECISION OF NOVEMBER 13, 1940, B-12673, 20 COMP. GEN. 257, AND DECISIONS THEREIN CITED. * * *

ALSO, IN DECISION OF MAY 8, 1941, B-16248, TO THE SECRETARY OF THE NAVY, AFTER QUOTING FROM THE DECISION OF NOVEMBER 26, 1940, SUPRA, IT WAS HELD THAT THERE COULD BE NO RIGHT OF ELECTION BY A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY TO RECEIVE THE SALARY OF A CIVILIAN POSITION AFTER HIS ACCRUED ANNUAL LEAVE HAD EXPIRED.

SECTION 2 OF PUBLIC RESOLUTION NO. 96, DATED AUGUST 27, 1940, 54 STAT. 859, PROVIDES AS FOLLOWS:

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.

SEE, ALSO, SECTION 3 (D) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, PUBLIC, NO. 783, 54 STAT. 886, PROVIDING AS FOLLOWS:

WITH RESPECT TO THE MEN INDUCTED FOR TRAINING AND SERVICE UNDER THIS ACT THERE SHALL BE PAID, ALLOWED, AND EXTENDED THE SAME PAY, ALLOWANCES, PENSIONS, DISABILITY AND DEATH COMPENSATION, AND OTHER BENEFITS AS ARE PROVIDED BY LAW IN THE CASE OF OTHER ENLISTED MEN OF LIKE GRADESAND LENGTH OF SERVICE OF THAT COMPONENT OF THE LAND OR NAVAL FORCES TO WHICH THEY ARE ASSIGNED, AND AFTER TRANSFER TO A RESERVE COMPONENT OF THE LAND OR NAVAL FORCES AS PROVIDED IN SUBSECTION (C) THERE SHALL BE PAID, ALLOWED, AND EXTENDED WITH RESPECT TO THEM THE SAME BENEFITS AS ARE PROVIDED BY LAW IN LIKE CASES WITH RESPECT TO OTHER MEMBERS OF SUCH RESERVE COMPONENT. MEN IN SUCH TRAINING AND SERVICE AND MEN WHO HAVE BEEN SO TRANSFERRED TO RESERVE COMPONENTS SHALL HAVE AN OPPORTUNITY TO QUALIFY FOR PROMOTION.

AS THESE PROVISIONS OF LAW SHOW A CLEAR INTENT TO ASSIMILATE THE PAY STATUS OF MEN ORDERED OR INDUCTED INTO THE ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF THE CITED STATUTES TO THE PAY STATUS OF MEN IN THE REGULAR ARMY, THE UNIFORM RULE HERETOFORE STATED BY THIS OFFICE DENYING AN ELECTION TO RETAIN THE COMPENSATION OF A CIVILIAN POSITION WHERE THERE WOULD BE A VIOLATION OF THE DUAL COMPENSATION STATUTES MUST BE REGARDED AS EQUALLY APPLICABLE TO MEN ORDERED OR INDUCTED INTO ACTIVE MILITARY SERVICE UNDER THE PROVISIONS OF SAID STATUTES.