B-20759, NOVEMBER 6, 1941, 21 COMP. GEN. 432

B-20759: Nov 6, 1941

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OFFICERS AND EMPLOYEES - LEAVE PAYMENTS WHILE ON MILITARY DUTY - OFFICERS' RESERVE CORPS A MEMBER OF THE OFFICERS' RESERVE CORPS WHO IS "ORDERED" PURSUANT TO AUTHORITY OF LAW TO ACTIVE MILITARY DUTY. IS ENTITLED UNDER AUTHORITY OF THE ACT OF AUGUST 1. AS FOLLOWS: REFERENCE IS MADE TO THE ACT OF AUGUST 1. WHICH PROVIDES THAT "* * * EMPLOYEES OF THE UNITED STATES GOVERNMENT WHO HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO RECEIVE. IS. ON THAT DATE HE WILL PROCEED WITHOUT DELAY FROM HIS HOME AT THE PLACE INDICATED AFTER HIS NAME TO THE STATION SHOWN BELOW. EACH OFFICER WILL RANK FROM THE DATE SET OPPOSITE HIS NAME: WASHINGTON QUARTERMASTER DEPOT.

B-20759, NOVEMBER 6, 1941, 21 COMP. GEN. 432

OFFICERS AND EMPLOYEES - LEAVE PAYMENTS WHILE ON MILITARY DUTY - OFFICERS' RESERVE CORPS A MEMBER OF THE OFFICERS' RESERVE CORPS WHO IS "ORDERED" PURSUANT TO AUTHORITY OF LAW TO ACTIVE MILITARY DUTY, EITHER WITH OR WITHOUT HIS CONSENT, IS ENTITLED UNDER AUTHORITY OF THE ACT OF AUGUST 1, 1941, TO RECEIVE PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE EARNED WHILE IN HIS CIVILIAN POSITION IN ADDITION TO HIS MILITARY PAY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL HOUSING ADMINISTRATOR, NOVEMBER 6, 1941:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF SEPTEMBER 25, 1941, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 77TH CONGRESS, WHICH PROVIDES THAT "* * * EMPLOYEES OF THE UNITED STATES GOVERNMENT WHO HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE * * *.'

ON JULY 9, 1940, MR. JEAN KILLOUGH STACY, A CAPTAIN IN THE OFFICERS' RESERVE CORPS, RESIGNED HIS POSITION WITH THE FEDERAL HOUSING ADMINISTRATION TO ENTER ON ACTIVE DUTY TRAINING WITH THE REGULAR ARMY EFFECTIVE JULY 10, 1940. SINCE THAT TIME CAPTAIN STACY HAS CONTINUED IN THE ACTIVE SERVICE OF THE ARMY. AN EXTRACT OF THE ORDERS CALLING HIM TO ACTIVE DUTY TRAINING APPEARS BELOW: " SPECIAL ORDERS ( ( HEADQUARTERS THIRD CORPS AREA,

NO. 158 ( UNITED STATES ARMY,

BALTIMORE, MARYLAND, JUNE 29, 1940.

(EXTRACT)

"21. BY DIRECTION OF THE PRESIDENT, EACH OF THE FOLLOWING RESERVE OFFICERS, IS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY TRAINING WITH THE REGULAR ARMY FOR A PERIOD OF ONE YEAR, EFFECTIVE JULY 10, 1940. ON THAT DATE HE WILL PROCEED WITHOUT DELAY FROM HIS HOME AT THE PLACE INDICATED AFTER HIS NAME TO THE STATION SHOWN BELOW, REPORTING IN PERSON UPON ARRIVAL TO THE COMMANDING OFFICER FOR TRAINING. EACH OFFICER WILL RANK FROM THE DATE SET OPPOSITE HIS NAME:

WASHINGTON QUARTERMASTER DEPOT, 24TH AND M STS. NW.,

WASHINGTON, D.C. CAPTAIN JEAN KILLOUGH STACY (P 198068), QM-1RES., JANUARY 3, 1939

2901 CONNECTICUT AVENUE, WASHINGTON, D.C.'

ATTENTION IS PARTICULARLY INVITED TO THAT PORTION OF THE ORDER WHICH STATES THAT "EACH OF THE FOLLOWING RESERVE OFFICERS IS, WITH HIS CONSENT, ORDERED TO ACTIVE DUTY TRAINING WITH THE REGULAR ARMY.' ( ITALICS SUPPLIED.) CAPTAIN STACY HAS RECENTLY REQUESTED THAT HE BE COMPENSATED FOR APPROXIMATELY EIGHT DAYS ANNUAL LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RESIGNATION. IN YOUR DECISION OF SEPTEMBER 17, 1938 TO THE SECRETARY OF THE NAVY, 18 COMP. GEN. 236, CONSTRUING THE ACT OF MAY 12, 1917, PROVIDING FOR LEAVE OF ABSENCE WITH PAY TO MEMBERS OF THE OFFICERS' RESERVE CORPS WHO "SHALL BE ORDERED TO DUTY" FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR, IT WAS HELD, WITH RESPECT TO A RESERVE OFFICER WHO WAS "WITH HIS CONSENT, ORDERED TO ACTIVE DUTY" THAT HE WAS ENTITLED TO MILITARY LEAVE COVERING THE PERIOD OF ACTIVE DUTY, AND THAT FOR THE PURPOSES OF THE STATUTE "IT IS IMMATERIAL WHETHER A RESERVE OFFICER IS ORDERED VOLUNTARILY OR INVOLUNTARILY TO ACTIVE DUTY FOR TRAINING OR FOR INSTRUCTION, ETC.' ALSO IN THIS CONNECTION, SEE 19 COMP. GEN. 880.

IN YOUR DECISION OF SEPTEMBER 13, 1941 (B-20149) TO THE SECRETARY OF WAR, REFERRING TO PUBLIC LAW 202, 77TH CONGRESS, IT WAS HELD THAT THOSE WHO VOLUNTARILY ENLIST FOR SERVICE MAY NOT BE REGARDED AS HAVING BEEN "ORDERED" INTO THE ACTIVE SERVICE WITHIN THE MEANING OF SAID ACT BECAUSE THEY ACT OF THEIR OWN VOLITION AND ARE FREE TO DECIDE FOR THEMSELVES WHETHER THEY WILL OR WILL NOT ENTER THE SERVICE. IT WAS STATED THAT "THE WORD "ORDERED" AS USED IN THE ACT, APPEARS MERELY TO SIGNIFY COMPULSION OR COMMAND, AS DISTINGUISHED FROM COMPLETE VOLUNTARY AND SELF-CONTROLLED ACTION ON THE PART OF THE INDIVIDUALS INVOLVED.' ALTHOUGH CAPTAIN STACY WAS ORDERED TO ACTIVE DUTY WITH HIS CONSENT, IT WOULD SEEM TO BE QUESTIONABLE AS TO WHETHER OR NOT HE COULD BE CONSIDERED TO BE IN THE SAME CLASS OF THOSE WHO VOLUNTARILY ENLIST IN THE ARMY. ACCORDINGLY, IN VIEW OF YOUR DECISION OF SEPTEMBER 13, 1941 TO THE SECRETARY OF WAR, SUPRA, AND THE FACT THAT CAPTAIN STACY WAS "ORDERED TO ACTIVE DUTY TRAINING," (ITALICS SUPPLIED) WHEREAS PROVISIONS OF PUBLIC LAW 202 APPLY TO EMPLOYEES "ORDERED" TO ACTIVE DUTY, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER WE MAY COMPENSATE CAPTAIN STACY FOR THE ACCRUED ANNUAL LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS RESIGNATION FROM THE ADMINISTRATION TO ENTER MILITARY SERVICE, PURSUANT TO THE ABOVE-QUOTED ORDER.

PURSUANT TO A REQUEST MADE BY THIS OFFICE THE WAR DEPARTMENT HAS FORWARDED AN OFFICIAL STATEMENT OF SERVICE OF JEAN KILLOUGH STACY, AS FOLLOWS:

1. THE RECORDS OF THIS OFFICE SHOW THAT JEAN KILLOUGH STACY, SERIAL NUMBER 10-198,068, WAS APPOINTED ST LIEUTENANT, QUARTERMASTER CORPS RESERVE, APRIL 5, 1924; ACCEPTED APRIL 22, 1924. HE WAS PROMOTED TO CAPTAIN, QUARTERMASTER CORPS RESERVE JULY 2, 1929; ACCEPTED JULY 8, 1929; TO MAJOR, QUARTERMASTER CORPS RESERVE, AUGUST 21, 1941; ACCEPTED AUGUST 22, 1941; AND IS NOW A MAJOR IN THAT CORPS.

2. HE HAS HAD THE FOLLOWING PERIODS OF ACTIVE DUTY FROM JUNE 7, 1925 TO JUNE 21, 1925; FROM AUGUST 1, 1927 TO AUGUST 14, 1927; FROM AUGUST 19, 1928 TO SEPTEMBER 1, 1928; FROM MARCH 2, 1930 TO MARCH 15, 1930; FROM AUGUST 2, 1931 TO AUGUST 15, 1931; FROM AUGUST 23, 1936 TO SEPTEMBER 5, 1936; FROM JUNE 30, 1937 TO NOVEMBER 23, 1938; AND FROM JULY 10, 1940 UNDER SECTION 37A OF THE NATIONAL DEFENSE ACT AND UNDER THE PROVISIONS IN THE MILITARY APPROPRIATION ACT, 1941, ITEM " ORGANIZED RESERVES" WHICH PERMITTED RESERVE OFFICERS TO BE ORDERED TO EXTENDED ACTIVE DUTY WHEN ,DETAILED TO DUTIES FOR WHICH OFFICERS OF THE REGULAR ARMY ARE NOT AVAILABLE," FOR A TOUR TO TERMINATE JULY 9, 1941, WHICH HAS BEEN EXTENDED TO TERMINATE JULY 9, 1942.

THE ACT OF AUGUST 1, 1941, PUBLIC LAW NO. 202, 55 STAT. 616, PROVIDES AS FOLLOWS:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. ( ITALICS SUPPLIED.)

SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

RESERVE OFFICERS ON ACTIVE DUTY.--- 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. * * * ( ITALICS SUPPLIED.)

THE WORDS,"ORDERED TO ACTIVE DUTY," APPEAR IN THE ACT OF AUGUST 1, 1941. THE WORDS,"THE PRESIDENT MAY ORDER RESERVE OFFICERS TO ACTIVE DUTY," APPEAR IN SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED. THE WORDS,"ORDERED TO ACTIVE DUTY," APPEAR IN SPECIAL ORDERS NO. 158, QUOTED IN YOUR LETTER, PURSUANT TO WHICH CAPTAIN STACY ENTERED THE ACTIVE MILITARY SERVICE. THERE IS NO REASON TO BELIEVE THAT THE CONGRESS DID NOT INTEND TO USE THE WORDS QUOTED FROM THE ACT OF AUGUST 1, 1941, IN THE SAME SENSE AS THE SAME OR SIMILAR WORDS ARE USED IN SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED, AND IN THE DOCUMENT (ORDER) ISSUED UNDER AUTHORITY OF THE NATIONAL DEFENSE ACT PURSUANT TO WHICH THIS RESERVE OFFICER ENTERED THE ACTIVE MILITARY SERVICE. THE EXPLANATION OF THE WORDS "ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES," APPEARING IN THE ACT OF AUGUST 1, 1941, WAS MADE IN THE DECISION OF SEPTEMBER 13, 1941, B 20149, 21 COMP. GEN. 210, WITH RELATION TO THE QUESTIONS THERE CONSIDERED AND DECIDED, INVOLVING ONLY THE RIGHTS UNDER THE STATUTE OF INDUCTED AND ENLISTED MEN. NO QUESTION RELATING TO RESERVE OFFICERS WAS CONSIDERED OR DECIDED IN THAT CASE.

ACCORDINGLY, ANY MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY WHO RECEIVED AN "ORDER" PURSUANT TO AUTHORITY OF LAW, EITHER WITH OR WITHOUT HIS CONSENT, IS ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW NO. 202. COMPARE 18 COMP. GEN. 236; 19 ID. 880.