B-24234, MARCH 11, 1942, 21 COMP. GEN. 851

B-24234, MARCH 11, 1942, 21 COMP. GEN. 851

COMPENSATION - DOUBLE - LEAVE PAYMENTS TO CIVILIAN EMPLOYEES ON MILITARY DUTY - VOLUNTARY ENLISTEES A CIVILIAN EMPLOYEE WHO VOLUNTARILY ENLISTS IN THE LAND OR NAVAL FORCES MAY NOT RECEIVE PAYMENT FOR ACCRUED CIVILIAN ANNUAL LEAVE CONCURRENTLY WITH MILITARY OR NAVAL PAY, EVEN THOUGH THE COMBINED RATE OF SUCH COMPENSATION AND PAY BE LESS THAN THE $2,000 PER ANNUM LIMITATION SPECIFIED IN THE DUAL COMPENSATION STATUTE OF 1916, AND NO QUESTION REGARDING HIS LEAVE RIGHTS WILL ARISE UNTIL HE HAS COMPLIED WITH THE TERMS AND CONDITIONS OF SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941 ENTITLING HIM TO RESTORATION/TO HIS CIVILIAN POSITION AND HE HAS BEEN SO RESTORED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, MARCH 11, 1942:

I HAVE YOUR LETTER OF FEBRUARY 27, 1942, AS FOLLOWS:

YOUR RULING IS RESPECTFULLY REQUESTED WHETHER AN EMPLOYEE WHO VOLUNTARILY ENLISTS IN ONE OF THE BRANCHES OF THE ARMED FORCES FOR A TERM OF YEARS MAY BE PAID FOR ANY UNUSED ANNUAL LEAVE TO HIS CREDIT IF THE COMBINED CIVILIAN AND MILITARY COMPENSATION DOES NOT EXCEED $2,000 PER ANNUM. UPON A REVIEW OF THE RULINGS OF YOUR OFFICE, THE DEPARTMENT ISLED BY INFERENCE TO THE THOUGHT THAT SUCH LEAVE MIGHT BE PAID. ON THE OTHER HAND, YOUR RULING IN 20 C.G. 258 LEAVES DOUBT WHETHER WITHOUT STATUTORY PROVISION, IT WOULD BE PERMISSIBLE TO COMPENSATE A CIVILIAN EMPLOYEE FOR HIS LEAVE EVEN THOUGH THE DUAL COMPENSATION STATUTE MAY NOT PROHIBIT IT.

THE ACT OF AUGUST 1, 1941, PUBLIC LAW 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.

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 OF1940 TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT: * * *

IT HAS BEEN HELD IN THE DECISIONS OF THIS OFFICE THAT EMPLOYEES WHO VOLUNTARILY ENLIST IN THE ARMED FORCES OF THE UNITED STATES ARE NOT ENTITLED TO THE BENEFITS OF THE STATUTE FIRST ABOVE QUOTED, BUT THAT THEY ARE ENTITLED TO THE BENEFITS OF THE STATUTE LAST ABOVE QUOTED. THAT IS TO SAY, SUCH EMPLOYEES MAY NOT BE PAID FOR "THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE" EARNED IN THEIR CIVILIAN POSITIONS WHICH WOULD EXTEND BY THE TIME THEY VOLUNTARILY ENLIST ARE ENTITLED TO THE REEMPLOYMENT BENEFITS PROVIDED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, IN THE SAME MANNER AS EMPLOYEES WHO WERE INDUCTED OR ORDERED INTO MILITARY OR NAVAL SERVICE. 21 COMP. GEN. 210; ID. 403. IN THE LAST-CITED DECISION IT WAS HELD, IN EFFECT, THAT WHILE EMPLOYEES WHO VOLUNTARILY ENLIST SUBSEQUENT TO MAY 1, 1940, MAY BE CARRIED IN A NOMINAL OR CONDITIONAL FURLOUGH OR LEAVE-WITHOUT-PAY STATUS WHILE THEY ARE IN THE MILITARY OR NAVAL SERVICE, NO RIGHT TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY FOR ANY PERIOD EXTENDING BEYOND THE DATE OF ENLISTMENT ARISES BY REASON OF SAID STATUTE AND THAT NO QUESTION REGARDING LEAVE RIGHTS WILL ARISE UNTIL THE EMPLOYEE HAS COMPLIED WITH THE TERMS AND CONDITIONS OF THE STATUTE ENTITLING HIM TO RESTORATION TO HIS CIVILIAN POSITION AND HE HAS BEEN RESTORED TO SUCH POSITION. THIS RULE IS APPLICABLE WHETHER THE COMBINED RATE OF CIVILIAN COMPENSATION AND PAY FOR SERVICE IN THE MILITARY OR NAVAL SERVICE IS MORE OR LESS THAN $2,000 PER ANNUM. THAT IS TO SAY, THE RULE IS APPLICABLE IRRESPECTIVE OF THE DUAL COMPENSATION ACT OF 1916.

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

IN CONNECTION WITH THE MATTER PRESENTED, REFERENCE IS MADE TO BILL H.R. 6023, WHICH PASSED THE HOUSE OF REPRESENTATIVES JANUARY 8, 1942, AND UNDER WHICH BILL, IF ENACTED INTO LAW, NO DISTINCTION WOULD BE MADE BETWEEN THOSE WHO VOLUNTARILY ENTER THE MILITARY OR NAVAL SERVICE AND THOSE WHO ARE ORDERED OR INDUCTED INTO EITHER OF SAID SERVICES.