B-28813, SEPTEMBER 19, 1942, 22 COMP. GEN. 256

B-28813: Sep 19, 1942

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IS A CIVILIAN ORGANIZATION IN THE WAR DEPARTMENT. PAYMENT FOR THE ANNUAL LEAVE EARNED BY A MEMBER OF THE CORPS IN ANOTHER CIVILIAN POSITION IS PRECLUDED BY THE DUAL COMPENSATION STATUTES. ARE ENTITLED TO LEAVE BENEFITS UNDER THE PROVISIONS OF THOSE STATUTES AND THE EXECUTIVE REGULATIONS ISSUED PURSUANT THERETO. 1942: I HAVE YOUR LETTER OF SEPTEMBER 8. AS FOLLOWS: A DECISION IS REQUESTED AS TO THE PROPRIETY OF MAKING PAYMENT FOR ANNUAL LEAVE ACCUMULATED AND/OR ACCRUED TO THE CREDIT OF A CIVILIAN EMPLOYEE WITH CIVIL SERVICE STATUS ENTERING THE ARMY SPECIALISTS CORPS FROM THE LAST DAY ON DUTY OF SUCH EMPLOYEE TO THE EXPIRATION OF SUCH LEAVE. PLACES THE CORPS UNDER THE DIRECT CONTROL OF THE SECRETARY OF WAR AND GRANTS SUCH LEAVE WITHOUT PAY AND REEMPLOYMENT PRIVILEGES TO CORPS MEMBERS AS ARE GRANTED CIVILIAN EMPLOYEES ENTERING THE MILITARY ESTABLISHMENTS OF THE ARMY AND NAVY UNDER THE PROVISIONS OF PUBLIC LAW 517.

B-28813, SEPTEMBER 19, 1942, 22 COMP. GEN. 256

LEAVES OF ABSENCE - ARMY SPECIALIST CORPS THE ARMY SPECIALIST CORPS, ESTABLISHED PURSUANT TO EXECUTIVE ORDER NO. 9078, IS A CIVILIAN ORGANIZATION IN THE WAR DEPARTMENT, RATHER THAN IN THE MILITARY SERVICE, AND AN EMPLOYEE WHO ENTERS THE CORPS FROM ANOTHER BRANCH OF THE FEDERAL SERVICE DOES NOT ENTER "UPON ACTIVE MILITARY OR NAVAL SERVICE" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE, AND, THEREFORE, IN THE ABSENCE OF OTHER STATUTORY AUTHORITY THEREFOR, PAYMENT FOR THE ANNUAL LEAVE EARNED BY A MEMBER OF THE CORPS IN ANOTHER CIVILIAN POSITION IS PRECLUDED BY THE DUAL COMPENSATION STATUTES. SECTION 6 OF EXECUTIVE ORDER NO. 9078, EXTENDING REEMPLOYMENT BENEFITS TO CIVILIAN EMPLOYEES WHO ENTER THE ARMY SPECIALIST CORPS FROM ANOTHER BRANCH OF THE FEDERAL SERVICE AND PROVIDING THAT SUCH EMPLOYEES "BE DEEMED TO BE ON LEAVE OF ABSENCE WITHOUT PAY FROM SUCH POSITION," CONSTITUTES ANOTHER EXCEPTION BY EXECUTIVE ORDER TO THE PROVISION OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, PROHIBITING THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY PRIOR TO EXHAUSTION OF ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE. MEMBERS OF THE ARMY SPECIALIST CORPS, BEING "OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SECTIONS 1 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, ARE ENTITLED TO LEAVE BENEFITS UNDER THE PROVISIONS OF THOSE STATUTES AND THE EXECUTIVE REGULATIONS ISSUED PURSUANT THERETO, AND, THEREFORE, ANNUAL AND SICK LEAVE TO THE CREDIT OF EMPLOYEES WHO ENTER THE CORPS FROM ANOTHER BRANCH OF THE FEDERAL SERVICE WITHOUT BREAK IN SERVICE MAY BE TRANSFERRED TO THEIR CREDIT WITH THE CORPS.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF STRATEGIC SERVICES, SEPTEMBER 19, 1942:

I HAVE YOUR LETTER OF SEPTEMBER 8, 1942, AS FOLLOWS:

A DECISION IS REQUESTED AS TO THE PROPRIETY OF MAKING PAYMENT FOR ANNUAL LEAVE ACCUMULATED AND/OR ACCRUED TO THE CREDIT OF A CIVILIAN EMPLOYEE WITH CIVIL SERVICE STATUS ENTERING THE ARMY SPECIALISTS CORPS FROM THE LAST DAY ON DUTY OF SUCH EMPLOYEE TO THE EXPIRATION OF SUCH LEAVE, NOTWITHSTANDING THE FACT THAT THE EMPLOYEE ENTERS ON DUTY WITH THE CORPS ON THE DAY FOLLOWING HIS LAST DAY OF ACTIVE DUTY WITH THIS AGENCY, WITHOUT BREAK IN SERVICE.

EXECUTIVE ORDER NO. 9078, APPROVED FEBRUARY 26, 1942, ESTABLISHING THE ARMY SPECIALIST CORPS, PLACES THE CORPS UNDER THE DIRECT CONTROL OF THE SECRETARY OF WAR AND GRANTS SUCH LEAVE WITHOUT PAY AND REEMPLOYMENT PRIVILEGES TO CORPS MEMBERS AS ARE GRANTED CIVILIAN EMPLOYEES ENTERING THE MILITARY ESTABLISHMENTS OF THE ARMY AND NAVY UNDER THE PROVISIONS OF PUBLIC LAW 517---77TH CONGRESS, APPROVED AUGUST 1, 1941, AMENDED AS OF APRIL 7, 1942.

IT IS NOTED THAT SECTION 6 OF EXECUTIVE ORDER NO. 9078 READS, IN PART, AS FOLLOWS:

"ANY PERSON OCCUPYING A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE GOVERNMENT OF THE UNITED STATES, MAY WITH THE CONSENT OF THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT IN WHICH HE IS EMPLOYED, BE TRANSFERRED OR APPOINTED TO A POSITION IN THE CORPS, AND SHALL DURING THE PERIOD OF EMPLOYMENT THEREIN BE DEEMED TO BE ON LEAVE OF ABSENCE WITHOUT PAY FROM SUCH POSITION.' ( ITALICS SUPPLIED.)

IN VIEW OF THE ITALICIZED PORTION OF THE FOREGOING QUOTATION, MAY THAT SECTION OF EXECUTIVE ORDER NO. 8384 (APPROVED MARCH 29, 1940), WHICH READS IN PART AS QUOTED BELOW, BE APPLIED:

"SEC. 9. LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT * * *" (NEITHER OF THE EXCEPTIONS APPEAR TO APPLY).

IF YOU DETERMINE THE ANSWER TO THE PRIMARY ISSUE PRESENTED HEREIN TO BE IN THE NEGATIVE, IT IS RESPECTFULLY REQUESTED THAT YOUR DECISION INCLUDE INFORMATION AS TO THE PROPER DISPOSITION OF ANNUAL LEAVE ACCUMULATED AND/OR ACCRUED TO THE CREDIT OF THE INDIVIDUAL LEAVING THE EMPLOY OF THIS AGENCY TO ENTER THE ARMY SPECIALISTS CORPS.

SECTION 1 OF EXECUTIVE ORDER NO. 9078, DATED FEBRUARY 26, 1942, ESTABLISHES "IN THE WAR DEPARTMENT, UNDER THE SUPERVISION AND DIRECTION OF THE SECRETARY OF WAR, A CORPS OF UNIFORMED CIVILIAN EMPLOYEES TO BE KNOWN AS THE ARMY SPECIALIST CORPS.' THE EXECUTIVE ORDER FURTHER PROVIDES FOR THE FIXING OF COMPENSATION OF MEMBERS OF THE CORPS IN ACCORDANCE WITH LAWS AND REGULATIONS APPLICABLE TO CIVILIAN PERSONNEL OF THE GOVERNMENT. HENCE, IT MUST BE CONCLUDED THAT THE ARMY SPECIALIST CORPS IS A CIVILIAN ORGANIZATION IN THE WAR DEPARTMENT, RATHER THAN IN THE MILITARY SERVICE, AND THAT AN EMPLOYEE OF YOUR OFFICE WHO ENTERS THE ARMY SPECIALIST CORPS DOES NOT ENTER ,UPON ACTIVE MILITARY OR NAVAL SERVICE" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, AUTHORIZING PAYMENT OF COMPENSATION IN CIVILIAN POSITIONS COVERING ACCUMULATED OR ACCRUED ANNUAL LEAVE WHEN ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE. COMPARE 21 COMP. GEN. 1116. ACCORDINGLY, EMPLOYEES OF YOUR OFFICE WHO ENTER THE ARMY SPECIALIST CORPS MAY NOT BE PAID COMPENSATION COVERING ANNUAL LEAVE UNDER THE PROVISIONS OF THAT STATUTE. NEITHER MAY THE EMPLOYEE OF YOUR OFFICE BE PAID COMPENSATION COVERING ANNUAL LEAVE UNDER ANY OTHER STATUTE WHILE EMPLOYED AND PAID IN THE ARMY SPECIALIST CORPS BECAUSE SUCH PAYMENT WOULD CONTRAVENE THE DUAL COMPENSATION STATUTES. SEE 2 COMP. GEN. 649; 4 ID. 521; 5 ID. 806; 18 ID. 94; 19 ID. 501, 503. THE QUESTION PRESENTED IN THE FIRST PARAGRAPH OF YOUR LETTER MUST BE AND IS ANSWERED IN THE NEGATIVE.

SECTION 6 OF EXECUTIVE ORDER NO. 9078, QUOTED IN YOUR LETTER, RELATING TO THE ARMY SPECIALIST CORPS, EXTENDING REEMPLOYMENT BENEFITS TO EMPLOYEES IN CIVILIAN POSITIONS IN ANOTHER BRANCH OF THE FEDERAL SERVICE WHO ENTER THE CORPS AND PROVIDING THAT SUCH EMPLOYEES MAY "BE DEEMED TO BE ON LEAVE OF ABSENCE WITHOUT PAY FROM SUCH POSITION," CONSTITUTES ANOTHER EXCEPTION ESTABLISHED BY EXECUTIVE ORDER TO THE PROVISION IN SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, ALSO QUOTED IN YOUR LETTER, PROHIBITING THE GRANTING OF LEAVE OF ABSENCE WITHOUT PAY PRIOR TO EXHAUSTION OF ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE.

SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, SUPRA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936. * * * SEE, ALSO, SECTION 9 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940.

SINCE MEMBERS OF THE ARMY SPECIALIST CORPS ARE "OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND IN SUCH STATUS ARE ENTITLED TO LEAVE BENEFITS UNDER THE PROVISIONS OF THOSE STATUTES AND THE REGULATIONS ISSUED BY THE PRESIDENT PURSUANT THERETO, IT FOLLOWS THAT THE ANNUAL AND SICK LEAVE TO THE CREDIT OF EMPLOYEES OF THE OFFICE OF STRATEGIC SERVICES, WHEN THEY ENTER THE ARMY SPECIALIST CORPS WITHOUT BREAK IN SERVICE, MAY BE TRANSFERRED TO THEIR CREDIT WITH THE CORPS. THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.