B-20822, NOVEMBER 3, 1941, 21 COMP. GEN. 403

B-20822: Nov 3, 1941

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HIS RIGHT TO SUCH BENEFITS WILL BE THE SAME IN EITHER EVENT. WILL NOT BE AFFECTED BY HIS SEPARATION FROM THE SERVICE. IS ENTITLED TO BE RECREDITED WITH ACCRUED ANNUAL LEAVE TO HIS CREDIT ON DATE OF ENTERING THE MILITARY OR NAVAL SERVICE AS ONE OF THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO WHICH HE IS ENTITLED UNDER SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941. AN EMPLOYEE WHO IS NOT RESTORED PURSUANT TO SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941 TO ACTIVE FEDERAL CIVILIAN DUTY AFTER DISCHARGE FROM MILITARY OR NAVAL SERVICE UNDER A VOLUNTARY ENLISTMENT MAY NOT BE RESTORED TO A PAY STATUS FOR THE SOLE PURPOSE OF PAYING HIM FOR ACCUMULATED LEAVE UNUSED AT THE TIME OF HIS ENLISTMENT.

B-20822, NOVEMBER 3, 1941, 21 COMP. GEN. 403

OFFICERS AND EMPLOYEES - VOLUNTARY ENLISTMENTS IN MILITARY OR NAVAL SERVICE - REEMPLOYMENT AND LEAVE RIGHTS UNDER THE AUTHORITY OF SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941, WHICH MADE APPLICABLE TO PERSONS WHO VOLUNTARILY ENLISTED IN THE MILITARY OR NAVAL FORCES SUBSEQUENT TO MAY 1, 1940, THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AN EMPLOYEE WHO VOLUNTARILY ENLISTS MAY BE EITHER SEPARATED FROM THE SERVICE OR CARRIED IN A FURLOUGH STATUS--- CONDITIONED UPON FUTURE COMPLIANCE WITH THE CONDITIONS NAMED IN SAID SECTION 8--- DURING THE PERIOD OF HIS MILITARY OR NAVAL SERVICE; AND HIS RIGHT TO SUCH BENEFITS WILL BE THE SAME IN EITHER EVENT. ACTION TAKEN TO SEPARATE AN EMPLOYEE FROM THE GOVERNMENT SERVICE UPON HIS VOLUNTARY ENLISTMENT IN THE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940, MAY NOT THEREAFTER BE RESCINDED BY RETROACTIVELY CHANGING THE ADMINISTRATIVE RECORDS TO SHOW SUCH EMPLOYEE AS IN A LEAVE-WITHOUT-PAY STATUS, NOTWITHSTANDING THE PROVISIONS OF SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941 CONFERRING ON SUCH VOLUNTEERS THE SAME REEMPLOYMENT BENEFITS, UPON COMPLIANCE WITH THE CONDITIONS OF THE STATUTE, WILL NOT BE AFFECTED BY HIS SEPARATION FROM THE SERVICE. AN EMPLOYEE VOLUNTARILY ENLISTING IN THE MILITARY OR NAVAL SERVICE AFTER MAY 1, 1940, IS ENTITLED TO BE RECREDITED WITH ACCRUED ANNUAL LEAVE TO HIS CREDIT ON DATE OF ENTERING THE MILITARY OR NAVAL SERVICE AS ONE OF THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO WHICH HE IS ENTITLED UNDER SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941, PROVIDED, OF COURSE, HE COMPLIES WITH THE CONDITIONS MADE PREREQUISITE TO THE ACQUISITION OF SUCH BENEFITS BY SAID SECTION 8. AN EMPLOYEE WHO IS NOT RESTORED PURSUANT TO SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941 TO ACTIVE FEDERAL CIVILIAN DUTY AFTER DISCHARGE FROM MILITARY OR NAVAL SERVICE UNDER A VOLUNTARY ENLISTMENT MAY NOT BE RESTORED TO A PAY STATUS FOR THE SOLE PURPOSE OF PAYING HIM FOR ACCUMULATED LEAVE UNUSED AT THE TIME OF HIS ENLISTMENT.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, NOVEMBER 3, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 27, 1941, AS FOLLOWS:

IN VIEW OF THE MANDATORY REEMPLOYMENT BENEFITS AUTHORIZED BY SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941 ( PUBLIC LAW 213, 77TH CONGRESS, APPROVED AUGUST 18, 1941), YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:

1. MAY EMPLOYEES OF THE FEDERAL SECURITY AGENCY WHO VOLUNTARILY ENLIST IN THE ACTIVE MILITARY OR NAVAL SERVICE, AS DISTINGUISHED FROM THOSE WHO ENTER THE MILITARY SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, BE CARRIED IN A LEAVE-WITHOUT-PAY STATUS DURING THEIR PERIODS OF ENLISTMENT?

2. IF A LEAVE-WITHOUT-PAY STATUS IS AUTHORIZED, MAY SEPARATION ACTIONS ON ACCOUNT OF ENLISTMENTS ON AND AFTER MAY 1, 1940, UP TO THE PRESENT TIME, BE CHANGED CURRENTLY TO SHOW THE EMPLOYEES AS IN A LEAVE-WITHOUT-PAY STATUS RETROACTIVE TO DATES OF ENTRANCE ON ACTIVE MILITARY DUTY?

3. SINCE YOU HAVE HELD IN YOUR DECISION OF SEPTEMBER 13, 1941 (B 20149), THAT, UNDER THE ACT OF AUGUST 1, 1941 ( PUBLIC LAW 202, 77TH CONGRESS), MAKING PROVISION FOR PAYMENT FOR ACCUMULATED ANNUAL LEAVE WHEN EMPLOYEES ARE ORDERED TO ACTIVE MILITARY OR NAVAL DUTY, EMPLOYEES REFERRED TO IN QUESTION 1 MAY NOT BE PAID FOR UNUSED ACCUMULATED ANNUAL LEAVE WHILE IN THE MILITARY SERVICE, MAY WE (A) RECREDIT THEM WITH SUCH ANNUAL LEAVE UPON THEIR RESTORATION TO A DUTY STATUS OR REINSTATEMENT IN THIS AGENCY, (B) HOLD SUCH LEAVE CREDITS FOR PURPOSE OF TRANSFER TO THEIR ACCOUNTS IF AND WHEN REEMPLOYED IN A CIVILIAN POSITION IN ANOTHER FEDERAL AGENCY, OR (C) IN THE EVENT THAT AN EMPLOYEE, AFTER DISCHARGE FROM THE MILITARY OR NAVAL SERVICE, IS NOT RESTORED TO ANY ACTIVE FEDERAL CIVILIAN DUTY, MAY WE, UPON APPLICATION,RESTORE HIM TO A PAY STATUS EXPRESSLY FOR THE PURPOSE OF PAYING HIM FOR ACCUMULATED LEAVE UNUSED AT TIME OF ENLISTMENT?

SECTION 7 OF THE ACT OF AUGUST 18, 1941, PUBLIC LAW 213, 55 STAT. 627, PROVIDES AS FOLLOWS:

ANY PERSON WHO, SUBSEQUENT TO MAY 1, 1940, AND PRIOR TO THE TERMINATION OF THE AUTHORITY CONFERRED BY SECTION 2 OF THIS JOINT RESOLUTION, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO ALL THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT: PROVIDED, THAT THE PROVISIONS OF SECTION 8 (B) (A) OF SAID ACT SHALL BE APPLICABLE TO ANY SUCH PERSON WITHOUT REGARD TO WHETHER THE POSITION WHICH HE HELD SHALL HAVE COVERED INTO THE CLASSIFIED CIVIL SERVICE DURING THE PERIOD OF HIS MILITARY OR NAVAL SERVICE. ( ITALICS SUPPLIED.)

THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, RELATING TO REEMPLOYMENT BENEFITS, ARE AS FOLLOWS:

SEC. 8. (A) ANY PERSON INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. IN ADDITION, EACH SUCH PERSON WHO IS INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE SHALL BE GIVEN A PHYSICAL EXAMINATION AT THE BEGINNING OF SUCH TRAINING AND SERVICE AND A MEDICAL STATEMENT SHOWING ANY PHYSICAL DEFECTS NOTED UPON SUCH EXAMINATION; AND UPON THE COMPLETION OF HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B), EACH SUCH PERSON SHALL BE GIVEN ANOTHER PHYSICAL EXAMINATION AND SHALL BE GIVEN A MEDICAL STATEMENT SHOWING ANY INJURIES, ILLNESSES, OR DISABILITIES SUFFERED BY HIM DURING SUCH PERIOD OF TRAINING AND SERVICE.

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND 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 TRAINING AND 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) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (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.

BY VIRTUE OF THESE PROVISIONS, CONSIDERED TOGETHER, ANY CIVILIAN EMPLOYEE OF THE UNITED STATES WHO VOLUNTARILY ENLISTS IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES AFTER MAY 1, 1940, IS ENTITLED UPON COMPLIANCE WITH THE CONDITIONS SET FORTH IN SECTION 8 (B) TO BE RESTORED TO HIS FORMER CIVILIAN POSITION "OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; " AND WHEN SO RESTORED HE "SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE.' HE IS THEN ENTITLED, AMONG OTHER THINGS, TO PARTICIPATE IN THE BENEFITS OFFERED BY THE EMPLOYER TO EMPLOYEES IN A LEAVE OF ABSENCE OR FURLOUGH STATUS. HOWEVER, THERE IS NOTHING IN THESE PROVISIONS TO INDICATE THAT SAID EMPLOYEES SHALL BE ENTITLED TO THE BENEFITS ENUMERATED IN SECTION 8 (C) UNLESS AND UNTIL THERE SHALL HAVE BEEN COMPLIANCE WITH THE CONDITIONS SET FORTH IN SECTION 8 (B).

SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940) READS AS FOLLOWS:

AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY.

IT WILL BE NOTED THAT THIS REGULATION WAS PROMULGATED PRIOR TO ENACTMENT OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AND MAY NOT, THEREFORE, BE DEEMED AS IMPLEMENTING THE TERMS THEREOF. THUS, THE BENEFITS PROVIDED BY SAID SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS EXIST INDEPENDENTLY OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND A PERSON "ORDERED" TO ACTIVE MILITARY OR NAVAL SERVICE COULD HAVE BEEN GRANTED LEAVE OR FURLOUGH WITHOUT PAY PURSUANT TO THE TERMS OF SAID REGULATION EVEN IF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT AND OTHER COMPARABLE PROVISIONS OF THE LAW HAD NEVER BEEN ENACTED. HOWEVER, SINCE THE REGULATION RELATES ONLY TO PERSONS "ORDERED" INTO THE ACTIVE MILITARY, NAVAL, OR COAST GUARD SERVICE IT HAS NO APPLICATION TO EMPLOYEES WHO VOLUNTARILY ENLIST IN SUCH SERVICE. SEE B-20149 OF SEPTEMBER 13, 1941, 21 COMP. GEN. 210.

IT FOLLOWS, THEREFORE, THAT IF AN EMPLOYEE WHO VOLUNTARILY ENLISTS IN THE MILITARY OR NAVAL SERVICE MAY BE PLACED IN A FURLOUGH OR LEAVE WITHOUT-PAY STATUS AT THE TIME OF ENLISTMENT, IT MUST BE BY VIRTUE OF THE AUTHORITY OF SECTION 7 OF PUBLIC LAW 213 MAKING APPLICABLE TO SUCH ENLISTMENTS THE PROVISIONS CONTAINED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. WHILE, AS ABOVE NOTED, SUCH EMPLOYEES' RIGHT TO THE BENEFITS PROVIDED BY SECTION 8 IS CONTINGENT UPON COMPLIANCE WITH THE CONDITIONS NAMED THEREIN, THERE WOULD APPEAR NO LEGAL OBJECTION TO CARRYING THE NAMES OF SUCH EMPLOYEES ON THE RECORDS OF YOUR OFFICE DURING THE PERIOD OF MILITARY OR NAVAL SERVICE IN A NOMINAL OR CONDITIONAL FURLOUGH OR LEAVE- WITHOUT-PAY STATUS--- IT BEING UNDERSTOOD, HOWEVER, THAT THE RIGHT TO RECEIVE THE BENEFITS WHICH ARE NORMALLY INCIDENT TO SUCH A STATUS IS CONTINGENT UPON SUBSEQUENT COMPLIANCE WITH THE TERMS AND CONDITIONS OF SAID SECTION 8. THEREFORE, WITH RESPECT TO QUESTION 1, YOU ARE ADVISED THAT IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION EITHER TO SEPARATE EMPLOYEES WHO VOLUNTARILY ENLIST OR TO FURLOUGH THEM WITHOUT PAY, ON THE BASIS OUTLINED ABOVE, DURING THE PERIOD OF THEIR ENLISTMENT; AND THE RIGHTS WITH RESPECT TO REEMPLOYMENT BENEFITS WILL BE THE SAME IN EITHER EVENT. COMPARE 20 COMP. GEN. 167 (LAST PARAGRAPH THEREOF).

YOU INQUIRE SECONDLY AS TO WHETHER SEPARATION ACTIONS ON ACCOUNT OF ENLISTMENTS ON AND AFTER MAY 1, 1940, UP TO THE PRESENT TIME MAY BE CHANGED CURRENTLY TO SHOW THE EMPLOYEES AS IN A LEAVE-WITHOUT-PAY STATUS RETROACTIVE TO THE DATES OF ENTRANCE ON ACTIVE MILITARY DUTY. PRIOR TO THE ENACTMENT OF PUBLIC LAW 213 ON AUGUST 18, 1941, IT WAS NECESSARY THAT ANY EMPLOYEE OF THE UNITED STATES WHO VOLUNTARILY ENLISTED IN THE MILITARY OR NAVAL SERVICE BE SEPARATED FROM HIS CIVILIAN POSITION. SEE, GENERALLY, 18 COMP. GEN. 213. THUS, SO FAR AS ENLISTMENTS WHICH OCCURRED PRIOR TO AUGUST 18, 1941, ARE CONCERNED, THE ONLY CORRECT AND PROPER ACTION WHICH COULD HAVE BEEN TAKEN WAS TO SEPARATE THE INVOLVED EMPLOYEES. ALSO, AS ABOVE NOTED, IT CONTINUES TO BE ENTIRELY PROPER IN CONNECTION WITH ENLISTMENTS WHICH OCCURRED SUBSEQUENT TO ENACTMENT OF PUBLIC LAW 213 TO SEPARATE THE EMPLOYEES FROM THEIR CIVILIAN POSITIONS WITH THE GOVERNMENT. AS THE RIGHT TO RECEIVE THE REEMPLOYMENT BENEFITS MADE AVAILABLE TO ENLISTED EMPLOYEES BY SAID LAW IS CONDITIONED UPON FUTURE COMPLIANCE WITH THE CONDITIONS NAMED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, THE PREFERABLE PROCEDURE WOULD APPEAR TO BE TO SEPARATE SUCH EMPLOYEES AT THE TIME OF ENLISTMENT. BUT, IN ANY EVENT, WHEN AN AUTHORIZED SEPARATION, BY RESIGNATION OR OTHERWISE, BECOMES AN ACCOMPLISHED FACT IT CANNOT THEREAFTER BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. CONSEQUENTLY, ANY ACTION HERETOFORE TAKEN BY YOUR AGENCY IN SEPARATING FROM THEIR CIVILIAN POSITIONS THOSE EMPLOYEES WHO VOLUNTARILY ENLISTED IN THE MILITARY OR NAVAL SERVICE CANNOT NOW BE CHANGED TO SHOW THEM AS BEING CARRIED IN A LEAVE-WITHOUT-PAY STATUS. ABOVE NOTED, THE RIGHTS WITH RESPECT TO REEMPLOYMENT BENEFITS UNDER THE STATUTES HERE INVOLVED ARE THE SAME WHETHER THE EMPLOYEES ARE SEPARATED FROM THE SERVICE OR PLACED IN A CONDITIONAL FURLOUGH STATUS.

REFERRING TO QUESTION 3, THE DECISION OF SEPTEMBER 13, 1941, B 20149, HELD, IN EFFECT, THAT ALTHOUGH EMPLOYEES WHO VOLUNTARILY ENLISTED IN THE MILITARY OR NAVAL FORCES SUBSEQUENT TO MAY 1, 1940, ARE ENTITLED TO REEMPLOYMENT BENEFITS UNDER SECTION 7 OF THE ACT OF AUGUST 18, 1941, PUBLIC LAW 213, THEY ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, AUTHORIZING PAYMENT, TO EMPLOYEES WHO WERE ORDERED TO ACTIVE DUTY IN THE MILITARY OR NAVAL FORCES, OF COMPENSATION FOR ANNUAL LEAVE ACCUMULATED AT THE TIME THEY ENTERED THE ACTIVE NAVAL OR MILITARY SERVICE, OR, AT THEIR ELECTION, AUTHORIZING SUCH ACCUMULATED LEAVE TO REMAIN TO THEIR CREDIT UNTIL THEY RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. HOWEVER, IT DOES NOT FOLLOW FROM WHAT WAS STATED IN THAT DECISION REGARDING THE DENIAL OF RIGHT TO ACTUAL PAYMENT FOR THE LEAVE TO EMPLOYEES WHO VOLUNTARILY ENLISTED--- THAT IS, WITH RESPECT TO THE OPERATION OF THE PROVISIONS OF PUBLIC LAW 202--- THAT THERE IS REQUIRED A LOSS OF THE LEAVE CREDIT AS A REEMPLOYMENT BENEFIT UNDER THE TERMS OF SECTION 7 OF PUBLIC LAW 213 ON THE SAME BASIS AS HAS BEEN PROVIDED BY SECTION 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACT FOR EMPLOYEES WHO WERE INDUCTED. THAT IS, ALTHOUGH EMPLOYEES WHO VOLUNTARILY ENLISTED AFTER MAY 1, 1940, ARE NOT ENTITLED TO THE BENEFITS OF PUBLIC LAW 202 THEY ARE ENTITLED IN ACCORDANCE WITH SECTION 7 OF PUBLIC LAW 213 TO ALL REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940--- AND ONE OF THOSE BENEFITS IS THE RIGHT TO BE RECREDITED WITH ACCRUED ANNUAL LEAVE TO THEIR CREDIT AT THE TIME THEY ENTERED THE MILITARY OR NAVAL FORCES. COMPARE PENULTIMATE PARAGRAPH OF 20 COMP. GEN. 167, 169. OF COURSE, IT IS NOT TO BE UNDERSTOOD THAT SUCH EMPLOYEES WOULD BE ENTITLED TO THESE BENEFITS UNLESS AND UNTIL THERE HAD BEEN FULL COMPLIANCE WITH THE CONDITIONS NAMED IN SECTION 8-- PARTICULAR ATTENTION BEING INVITED IN THAT CONNECTION TO THE PROVISION (SECTION 8 (B) (3) ( THAT APPLICATION FOR REEMPLOYMENT TO A CIVILIAN POSITION MUST BE MADE WITHIN 40 DAYS AFTER THE EMPLOYEE IS RELIEVED FROM SUCH TRAINING AND SERVICE. SUBDIVISIONS (A) AND (B) OF QUESTION 3 ARE ANSWERED ACCORDINGLY.

IN SUBDIVISION (C) OF QUESTION 3 OF YOUR LETTER YOU INQUIRE AS TO WHETHER AN EMPLOYEE WHO VOLUNTARILY ENLISTS IN THE MILITARY OR NAVAL SERVICE, BUT WHO IS NOT RESTORED TO ACTIVE FEDERAL CIVILIAN DUTY AFTER DISCHARGE, MAY, UPON APPLICATION, BE RESTORED TO A CIVILIAN PAY STATUS ,EXPRESSLY FOR THE PURPOSE OF PAYING HIM FOR ACCUMULATED LEAVE UNUSED AT TIME OF ENLISTMENT.' IN THE ABSENCE OF THE PROVISIONS OF SECTION 8 THE SELECTIVE TRAINING AND SERVICE ACT, AND THEIR APPLICABILITY, BY VIRTUE OF THE TERMS OF SECTION 7 OF THE PUBLIC LAW 213, TO PERSONS WHO VOLUNTARILY ENLIST IN THE NAVAL OR MILITARY SERVICE, ANNUAL LEAVE TO THE CREDIT OF SUCH PERSONS AT THE DATE OF INDUCTION WOULD BE FORFEITED. 20 COMP. GEN. 257. THUS, IT IS ONLY BECAUSE OF SAID STATUTES THAT REEMPLOYMENT BENEFITS, INCLUDING CERTAIN LEAVE RIGHTS, ARE RESTORED TO THEM, AND THEY ARE RESTORED ONLY TO THE EXTENT AND SUBJECT TO THE CONDITIONS SET FORTH THEREIN. AS ABOVE NOTED, UPON COMPLIANCE WITH THOSE CONDITIONS THE EMPLOYEES ARE ENTITLED TO BE "RESTORED" TO THEIR FORMER CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY STATUS AND PAY; AND IT IS ONLY UPON SUCH RESTORATION THAT THERE MATERIALIZES A RIGHT TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" AND TO REACQUIRE THE LEAVE AND OTHER BENEFITS WHICH WOULD OTHERWISE HAVE BEEN LOST TO THEM. IN OTHER WORDS, IT IS ONLY IN THE EVENT THAT THE CONDITIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, HAVE BEEN COMPLIED WITH THAT SUCH AN EMPLOYEE IS ENTITLED TO BE RESTORED TO HIS POSITION; AND IT IS ONLY IN THE EVENT THAT HE BE SO RESTORED THAT HE IS ENTITLED TO BE CONSIDERED AS HAVING BEEN ON LEAVE OF ABSENCE FROM HIS POSITION AND TO BE RECREDITED WITH HIS ACCRUED LEAVE.

AS PREVIOUSLY STATED HEREIN, ONE OF THE CONDITIONS WHICH MUST BE MET BY THE EMPLOYEE BEFORE HE MAY BE "RESTORED" TO A POSITION IS THAT HE MAKE "APPLICATION FOR REEMPLOYMENT" WITHIN THE TIME PRESCRIBED. THE TERM "APPLICATION FOR REEMPLOYMENT" WOULD APPEAR TO CONTEMPLATE APPLICATION FOR RETURN TO AN ACTUAL CIVILIAN DUTY STATUS AND NOT MERELY A RETURN TO A PAY STATUS FOR THE SOLE PURPOSE OF SECURING COMPENSATION FOR UNUSED LEAVE TO HIS CREDIT AT THE TIME HE ENTERED THE MILITARY OR NAVAL SERVICE. SIMILARLY, THE TERM "RESTORED TO A POSITION" CONTEMPLATES RESTORATION TO AN ACTUAL AND ACTIVE OCCUPANCY OF THE POSITION WHICH CONTEMPLATES PERFORMANCE OF THE DUTIES THEREOF. THEREFORE, A PERSON WHO IS PLACED ON A PAY ROLL FOR THE EXCLUSIVE PURPOSE OF RECEIVING PAY FOR LEAVE, WITH NO INTENTION OF OCCUPYING A CIVILIAN POSITION, COULD NOT BE REGARDED AS HAVING BEEN ,RESTORED TO A POSITION" WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, AND, AS PREVIOUSLY STATED, UNLESS AND UNTIL SUCH RESTORATION TAKES PLACE NO RIGHT TO A RECREDIT WITH RESPECT TO ACCUMULATED AND UNUSED ANNUAL LEAVE WOULD EXIST UNDER THE TERMS OF THE SAID SECTION OF THE STATUTE.

FURTHERMORE, THE LEAVE RIGHT, WHICH BUT FOR SECTION 7 OF PUBLIC LAW 213 AND SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT WOULD BE LOST TO THE EMPLOYEE, WAS NOT A RIGHT TO PAY FOR LEAVE; IT WAS A RIGHT "TO LEAVE IN KIND ONLY; THAT IS, THE RIGHT TO BE ABSENT FROM DUTY FOR THE PRESCRIBED PERIOD WITHOUT LOSS OF PAY WHILE RETAINING A STATUS AS ONE OF THE "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES.'" 16 COMP. GEN. 899, 900. THIS IS THE RIGHT WHICH IS RESTORED TO HIM UPON COMPLIANCE WITH THE CONDITIONS OF SECTION 8, SUPRA.THE PLACING OF AN EMPLOYEE'S NAME ON THE ROLLS UNDER THE CONDITIONS OUTLINED IN QUESTION 3 (C) OF YOUR LETTER, WITH NO ACTUAL OCCUPANCY OF THE CIVILIAN POSITION OR DUTY STATUS AS AN EMPLOYEE, WITH ATTENDING EMPLOYER CONTROL, WOULD AMOUNT IN PRACTICAL EFFECT TO A GRANT OF PAY IN LIEU OF LEAVE. SINCE NO SUCH RIGHT EXISTED AT THE TIME THE EMPLOYEE ENLISTED, THERE COULD BE NO SUCH RIGHT ALLOWED BY THE TERMS OF SECTION 8 OF THE ACT. QUESTION 3 (C) IS ANSWERED ACCORDINGLY.