B-27853, AUGUST 18, 1942, 22 COMP. GEN. 149

B-27853: Aug 18, 1942

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OFFICERS AND EMPLOYEES - CONTINUANCE IN OR RESTORATION TO CIVILIAN POSITION DURING TEMPORARY INACTIVE-DUTY MILITARY STATUS WHERE A GOVERNMENT EMPLOYEE ENLISTS IN OR IS INDUCTED INTO THE ARMED FORCES OF THE UNITED STATES AND IS IMMEDIATELY THEREAFTER TRANSFERRED TO A RESERVE COMPONENT THEREOF IN AN INACTIVE NONPAY STATUS FOR A 14 DAY PERIOD AFTER WHICH HE IS TO BE RECALLED TO ACTIVE SERVICE HE MAY BE CONTINUED IN CIVILIAN EMPLOYMENT FOR THE FULL 14-DAY PERIOD AND BE PAID THE CIVILIAN SALARY FOR SUCH EMPLOYMENT. WHERE A GOVERNMENT EMPLOYEE ENLISTS IN OR IS INDUCTED INTO THE ARMED FORCES OF THE UNITED STATES AND IS IMMEDIATELY THEREAFTER TRANSFERRED TO A RESERVE COMPONENT THEREOF IN AN INACTIVE NONPAY STATUS FOR A 14 DAY PERIOD AFTER WHICH HE IS TO BE RECALLED TO ACTIVE SERVICE.

B-27853, AUGUST 18, 1942, 22 COMP. GEN. 149

OFFICERS AND EMPLOYEES - CONTINUANCE IN OR RESTORATION TO CIVILIAN POSITION DURING TEMPORARY INACTIVE-DUTY MILITARY STATUS WHERE A GOVERNMENT EMPLOYEE ENLISTS IN OR IS INDUCTED INTO THE ARMED FORCES OF THE UNITED STATES AND IS IMMEDIATELY THEREAFTER TRANSFERRED TO A RESERVE COMPONENT THEREOF IN AN INACTIVE NONPAY STATUS FOR A 14 DAY PERIOD AFTER WHICH HE IS TO BE RECALLED TO ACTIVE SERVICE HE MAY BE CONTINUED IN CIVILIAN EMPLOYMENT FOR THE FULL 14-DAY PERIOD AND BE PAID THE CIVILIAN SALARY FOR SUCH EMPLOYMENT. WHERE A GOVERNMENT EMPLOYEE ENLISTS IN OR IS INDUCTED INTO THE ARMED FORCES OF THE UNITED STATES AND IS IMMEDIATELY THEREAFTER TRANSFERRED TO A RESERVE COMPONENT THEREOF IN AN INACTIVE NONPAY STATUS FOR A 14 DAY PERIOD AFTER WHICH HE IS TO BE RECALLED TO ACTIVE SERVICE, AND THE EMPLOYEE HAS NOT VACATED, OR BEEN SEPARATED FROM, HIS POSITION, EITHER BY PROPER ADMINISTRATIVE ACTION, BY RESIGNATION, BY CONDUCT INCONSISTENT WITH AN INTENTION TO RETAIN THE POSITION OR OTHERWISE, APPOINTMENT OF ANOTHER PERSON TO THE SAID POSITION WOULD BE UNAUTHORIZED, BUT, IF THERE HAS BEEN A SEPARATION FROM SERVICE, A NEW INCUMBENT OF THE POSITION MAY NOT BE REMOVED IN ORDER TO RESTORE THE FORMER EMPLOYEE TO THE OLD POSITION FOR THE 14-DAY PERIOD.

COMPTROLLER GENERAL WARREN TO THE PRICE ADMINISTRATOR, OFFICE OF PRICE ADMINISTRATION, AUGUST 18, 1942:

I HAVE YOUR LETTER OF JULY 30, 1942, AS FOLLOWS:

AN ACT OF CONGRESS ( PUBLIC LAW 202-77TH CONGRESS APPROVED AUGUST 1, 1941, AND PUBLIC NO. 517 - 77TH CONGRESS APPROVED APRIL 7, 1942, AMENDING THIS ACT) GRANTS COMPENSATION IN THEIR CIVILIAN POSITIONS TO EMPLOYEES OF THE FEDERAL GOVERNMENT FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE WHEN ON ACTIVE DUTY WITH THE MILITARY FORCES OF THE UNITED STATES, OR THE EMPLOYEES MAY ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE DUTY.

UNDER THE REGULATIONS OF THE WAR DEPARTMENT, A SELECTEE AFTER INDUCTION IS IMMEDIATELY GRANTED A 14-DAY FURLOUGH WITHOUT PAY TO ARRANGE HIS PERSONAL AFFAIRS BEFORE REPORTING FOR ACTIVE DUTY. THE SELECTEE, IF A FEDERAL EMPLOYEE AND OTHERWISE ELIGIBLE, IS PLACED ON ANNUAL LEAVE UNTIL THE LEAVE IS EXHAUSTED AND THEN ON MILITARY FURLOUGH BY THE FEDERAL AGENCY IN WHICH HE WAS EMPLOYED. THE FOLLOWING QUESTIONS HAVE BEEN RAISED BY EMPLOYEES OF THIS ADMINISTRATION IN CONNECTION WITH REPORTING FOR MILITARY DUTY WITH THE ARMED FORCES.

1. MAY A SELECTEE, INDUCTED INTO THE UNITED STATES ARMY UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND IMMEDIATELY GRANTED A 14- DAY FURLOUGH WITHOUT PAY, REPORT BACK TO THE OFFICE OF PRICE ADMINISTRATION IN HIS OLD POSITION AND ASSUME THE DUTIES THEREOF AND BE PAID THE CIVILIAN SALARY FOR SUCH SERVICES FOR THE FULL 14-DAY PERIOD OR ANY FRACTION THEREOF?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, COULD THE PRESENT INCUMBENT (IF ONE HAD BEEN APPOINTED TO FILL THE VACANCY) BE REQUIRED TO VACATE THE POSITION?

3. IS THERE ANY DISTINCTION IN THIS REGARD BETWEEN THE VARIOUS BRANCHES OF THE ARMED SERVICES, I.E., ARMY, NAVY, MARINES, COAST GUARD, ETC.?

4. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD THE SAME INTERPRETATION APPLY TO ENLISTED MEN?

YOUR EARLY CONSIDERATION OF THESE QUESTIONS WILL BE APPRECIATED.

UNDER CIRCULAR LETTER OF THE ADJUTANT GENERAL DATED MAY 15, 1942, IT IS PROVIDED THAT PERSONS INDUCTED THROUGH SELECTIVE SERVICE, WHO SO DESIRE, WILL BE GIVEN THE OPPORTUNITY IMMEDIATELY AFTER INDUCTION TO RETURN TO THEIR RESIDENCES TO ARRANGE PERSONAL, FINANCIAL, AND BUSINESS AFFAIRS. THIS IS ACCOMPLISHED BY RELEASING SUCH PERSONS FROM ACTIVE SERVICE, TRANSFERRING THEM TO THE ENLISTED RESERVE CORPS, AND THEN RECALLING THEM TO ACTIVE SERVICE 14 DAYS LATER. DURING THE 14-DAY PERIOD SUCH PERSONS ARE NOT ON FURLOUGH WITHOUT PAY BUT ARE CLASSIFIED AS MEMBERS OF THE ENLISTED RESERVE CORPS ON THE INACTIVE LIST. OF COURSE, NO MILITARY PAY IS RECEIVED FOR SUCH PERIOD.

UNDER SUCH CIRCUMSTANCES THERE IS NO OBJECTION TO THE CONTINUED CIVILIAN EMPLOYMENT DURING THE 14-DAY PERIOD OF A PERSON INDUCTED BUT IMMEDIATELY PLACED ON THE INACTIVE LIST IN THE RESERVES. SINCE SUCH A PERSON WOULD RECEIVE NO MILITARY PAY DURING THE 14-DAY PERIOD, THERE IS NOT INVOLVED A QUESTION OF DUAL COMPENSATION; AND SINCE THE PERSON WOULD NOT BE ON THE ACTIVE LIST OF THE ARMY THERE WOULD BE NO INCOMPATIBILITY BETWEEN HIS INACTIVE STATUS IN THE RESERVES AND HIS EMPLOYMENT AS CIVILIAN. SEE DECISION OF AUGUST 7, 1942, B-27420, TO THE SECRETARY OF LABOR, 22 COMP. GEN. 127.

THE PROCEDURE OUTLINED ABOVE IS THAT WHICH APPLIES GENERALLY IN THE CASE OF INDUCTED REGISTRANTS PROCURED THROUGH SELECTIVE SERVICE AND, CONSEQUENTLY, IT IS ASSUMED THAT YOUR FIRST QUESTION RELATES TO A PERSON SO INDUCTED AND IMMEDIATELY TRANSFERRED TO THE INACTIVE RESERVES. ON THAT BASIS IT IS ANSWERED IN THE AFFIRMATIVE.

THE ANSWER TO YOUR SECOND QUESTION IS FOR DETERMINATION ON THE BASIS OF THE FACTS IN EACH CASE. IF THE INDUCTED PERSON HAD ACTUALLY VACATED HIS POSITION OR LEGALLY HAD BEEN SEPARATED FROM THE SERVICE, EITHER BY PROPER ADMINISTRATIVE ACTION, BY RESIGNATION, BY CONDUCT INCONSISTENT WITH AN INTENTION TO RETAIN THE POSITION, OR OTHERWISE, THERE WOULD APPEAR TO BE NO PROPER BASIS TO REQUIRE "THE PRESENT INCUMBENT" TO VACATE THE POSITION IN ORDER TO RESTORE THE INDUCTED PERSON THERETO, SINCE THE INDUCTED PERSON IS NOT ENTITLED TO THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, UNTIL HE COMPLETES AND IS RELIEVED FROM TRAINING AND SERVICE UNDER THE SAID ACT. IN THIS CONNECTION IT WOULD APPEAR THAT A PERSON HAD VACATED HIS POSITION WHO, EITHER PRIOR OR SUBSEQUENT TO INDUCTION THROUGH SELECTIVE SERVICE, APPLIED FOR AND WAS GRANTED ANNUAL LEAVE SOLELY FOR THE PURPOSE OF RECEIVING PAY THEREFOR PURSUANT TO THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, WITH NO INTENTION OF RETURNING TO THE POSITION AND ASSUMING THE DUTIES THEREOF.

ON THE OTHER HAND, IT HAS BEEN HELD THAT SO LONG AS A REGULAR EMPLOYEE OF THE GOVERNMENT HAS NOT VACATED HIS POSITION AND CONTINUES AS SUCH ON THE RECORDS OF THE ADMINISTRATIVE OFFICE, ALTHOUGH ABSENT ON LEAVE WITH PAY, NO OTHER PERSON MAY BE APPOINTED TO AND HOLD SAID POSITION. SEE 4 COMP. GEN. 729, AND 14 ID. 795. ON THAT BASIS, IF THE REGULAR EMPLOYE HAD NOT VACATED HIS POSITION, AS EXPLAINED ABOVE, THEN OF COURSE THERE WOULD BE NO PROPER BASIS TO APPOINT TO AND RETAIN IN THE POSITION ANOTHER PERSON. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO YOUR QUESTIONS 3 AND 4, THE FOREGOING IS APPLICABLE TO PERSONS WHO ENLIST IN THE VARIOUS BRANCHES OF THE ARMED FORCES, I.E., THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD, IN THE EVENT AND ONLY IN THE EVENT THAT FOR THE PERIOD THEY MAY BE EMPLOYED IN THEIR CIVILIAN POSITIONS, AFTER ENLISTMENT, THEY HAVE BEEN RELEASED FROM ACTIVE SERVICE AND TRANSFERRED TO THE RESERVES IN AN INACTIVE STATUS. THAT IS TO SAY, THERE IS NO OBJECTION TO THE CIVILIAN EMPLOYMENT OF PERSONS WHO MAY HAVE ENLISTED IN THE ARMED FORCES SO LONG AS DURING THE PERIOD OF CIVILIAN EMPLOYMENT THEY ARE IN AN INACTIVE STATUS IN THE RESERVE FORCES. HOWEVER, A PERSON WHO ENLISTS IN THE ARMED FORCES AND IS CARRIED ON THE ROLLS THEREOF IN AN ACTIVE STATUS MAY NOT BE EMPLOYED, AT THE SAME TIME, IN A CIVILIAN POSITION IN THE GOVERNMENT. SEE 3 COMP. GEN. 40; 17 ID. 1049; 18 ID. 213; AND 20 ID. 257.