B-38859, DECEMBER 28, 1943, 23 COMP. GEN. 465

B-38859: Dec 28, 1943

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A CIVILIAN EMPLOYEE OCCUPYING A PERMANENT POSITION WHO ACCEPTS A COMMISSION IN THE PUBLIC HEALTH SERVICE ON OR AFTER THE EFFECTIVE DATE OF THE SAID ACT WITHOUT BREAK IN SERVICE IS ENTITLED UNDER THE ACT OF AUGUST 1. TO BE PAID FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE CONCURRENTLY WITH SUCH SERVICE OR TO ELECT TO HAVE THE LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM SUCH SERVICE. 1943: I HAVE YOUR LETTER OF DECEMBER 9. HAS ACCEPTED A COMMISSION WITH THE PUBLIC HEALTH SERVICE AND THE QUESTION ARISES AS TO WHETHER HE IS ENTITLED TO RECEIVE IN ADDITION TO HIS PAY IN THE PUBLIC HEALTH SERVICE. OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN TO THIS AGENCY FROM THE PUBLIC HEALTH SERVICE.

B-38859, DECEMBER 28, 1943, 23 COMP. GEN. 465

OFFICERS AND EMPLOYEES - PAYMENT FOR LEAVE AFTER ACCEPTANCE OF PUBLIC HEALTH SERVICE UNDER SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, GRANTING TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, EVEN THOUGH SERVING ESSENTIALLY IN A CIVILIAN CAPACITY, ALL RIGHTS, ETC., PROVIDED BY LAW FOR COMMISSIONED MILITARY AND NAVAL PERSONNEL "ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE" WITH CERTAIN EXCEPTIONS, A CIVILIAN EMPLOYEE OCCUPYING A PERMANENT POSITION WHO ACCEPTS A COMMISSION IN THE PUBLIC HEALTH SERVICE ON OR AFTER THE EFFECTIVE DATE OF THE SAID ACT WITHOUT BREAK IN SERVICE IS ENTITLED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO BE PAID FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE CONCURRENTLY WITH SUCH SERVICE OR TO ELECT TO HAVE THE LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM SUCH SERVICE.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, DECEMBER 28, 1943:

I HAVE YOUR LETTER OF DECEMBER 9, 1943, AS FOLLOWS:

MR. CLARENCE H. WEST, AN ASSOCIATE CONSTRUCTION ENGINEER, EMPLOYED BY THIS AGENCY, HAS ACCEPTED A COMMISSION WITH THE PUBLIC HEALTH SERVICE AND THE QUESTION ARISES AS TO WHETHER HE IS ENTITLED TO RECEIVE IN ADDITION TO HIS PAY IN THE PUBLIC HEALTH SERVICE, COMPENSATION IN HIS CIVILIAN POSITION WITH THIS AGENCY, COVERING HIS ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN TO THIS AGENCY FROM THE PUBLIC HEALTH SERVICE.

THE ACT APPROVED NOVEMBER 11, 1943 ( PUBLIC LAW 184, 78TH CONGRESS, ST SESSION) RELATING TO THE PUBLIC HEALTH SERVICE, PROVIDES BY SECTION 8 THEREOF, AS FOLLOWS:

" SEC. 8. (A) FOR THE PURPOSES OF THIS SECTION---

"/1) THE TERM "FULL MILITARY BENEFITS" MEANS ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES (INCLUDING THEIR SURVIVING BENEFICIARIES) ON ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE, INCLUDING, BUT NOT LIMITED TO, BURIAL PAYMENTS IN THE EVENT OF DEATH, SIX MONTHS' PAY IN CASE OF DEATH, VETERANS' COMPENSATION AND PENSIONS AND OTHER VETERANS' BENEFITS, RETIREMENT, INCLUDING RETIREMENT FOR DISABILITY, THE RIGHTS PROVIDED UNDER THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT, AS AMENDED, THE NATIONAL SERVICE LIFE INSURANCE ACT, AS AMENDED, TRAVEL ALLOWANCES, INCLUDING PER DIEM ALLOWANCES FOR TRAVEL WITHOUT REGARD TO REPEATED TRAVEL BETWEEN TWO OR MORE PLACES IN THE SAME VICINITY, ALLOWANCES FOR UNIFORMS, EXEMPTION OF CERTAIN PAY FROM FEDERAL INCOME TAXATION, AND OTHER BENEFITS, PRIVILEGES AND EXCEPTIONS UNDER THE INTERNAL REVENUE LAWS:

"/2) THE TERM "LIMITED MILITARY BENEFITS" MEANS FULL MILITARY BENEFITS, EXCEPT VETERANS' COMPENSATION AND PENSIONS AND OTHER VETERANS' BENEFITS, AND ELIGIBILITY UNDER THE NATIONAL SERVICE LIFE INSURANCE ACT, AS AMENDED.

"/B) BEGINNING WITH THE DATE OF ENACTMENT OF THIS ACT, COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, REGULAR AND RESERVE (INCLUDING THEIR SURVIVING BENEFICIARIES/---

"/1) IN TIME OF WAR, SHALL BE ENTITLED TO LIMITED MILITARY BENEFITS WITH RESPECT TO ALL ACTIVE SERVICE IN THE PUBLIC HEALTH SERVICE;

"/2) WHILE SUCH OFFICERS ARE DETAILED FOR DUTY WITH THE ARMY, NAVY OR COAST GUARD SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO SUCH DUTY;

"/3) WHILE SUCH OFFICERS ARE SERVING OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES OR IN ALASKA IN TIME OF WAR, SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO SUCH SERVICE.

"/C) IN TIME OF WAR, THE PRESIDENT MAY BY EXECUTIVE ORDER DECLARE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE A PART OF THE MILITARY FORCES OF THE UNITED STATES AND PROVIDE THE EXTENT TO WHICH IT SHALL BE SUBJECT TO THE ARTICLES OF WAR AND THE ARTICLES FOR THE GOVERNMENT OF THE NAVY. UPON THE ISSUANCE OF SUCH AN EXECUTIVE ORDER, ALL COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, REGULAR AND RESERVE (INCLUDING THEIR SURVIVING BENEFICIARIES), SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO ACTIVE SERVICE RENDERED WHILE THE PUBLIC HEALTH SERVICE IS A PART OF THE MILITARY FORCES OF THE UNITED STATES.'

THE ACT OF AUGUST 1, 1941 (55 STAT. 616), AS AMENDED, 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, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, 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.'

IT WOULD APPEAR THAT THE TERM "LIMITED MILITARY BENEFITS" IN PARAGRAPH 2 OF SUBSECTION (A) OF SECTION 8 WOULD INCLUDE THE BENEFITS AFFORDED BY THE ACT OF AUGUST 1, 1941, SUPRA, FOR THE REASON THAT THIS TERM IS DEFINED TO MEAN FULL MILITARY BENEFITS WITH CERTAIN EXCEPTIONS WHICH DO NOT INCLUDE THOSE PROVIDED BY THE ACT OF AUGUST 1, 1941, AS AMENDED.

AN EARLY CONSIDERATION OF YOUR DECISION UPON THE QUESTION PRESENTED WOULD BE GREATLY APPRECIATED.

UNDER THE DEFINITION OF THE TERMS "FULL MILITARY BENEFITS" AND "LIMITED MILITARY BENEFITS" CONTAINED IN SECTION 8 (A) OF THE ACT OF NOVEMBER 11, 1943, 57 STAT. 588, PUBLIC HEALTH SERVICE OFFICERS, EVEN THOUGH THEY MAY SERVE ESSENTIALLY IN A CIVILIAN CAPACITY RATHER THAN IN A MILITARY CAPACITY, ARE ENTITLED TO "ALL RIGHTS, PRIVILEGES, IMMUNITIES, AND BENEFITS PROVIDED UNDER ANY LAW OF THE UNITED STATES IN THE CASE OF COMMISSIONED MILITARY AND NAVAL PERSONNEL OF THE UNITED STATES * * * ON ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE," WITH CERTAIN EXCEPTIONS WHEN ENTITLED ONLY TO "LIMITED MILITARY BENEFITS" NOT HERE INVOLVED. THE RIGHT OR BENEFIT GRANTED BY THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, QUOTED IN YOUR LETTER, VESTS IN A CIVILIAN EMPLOYEE OF THE GOVERNMENT, OCCUPYING A PERMANENT POSITION WHEN HE ENTERS UPON ,ACTIVE MILITARY OR NAVAL SERVICE.' HENCE, WHEN A CIVILIAN EMPLOYEE ACCEPTS A COMMISSION IN THE PUBLIC HEALTH SERVICE, THE RIGHT OR BENEFIT PROVIDED BY THE ACT OF AUGUST 1, 1941, AS AMENDED, TO BE PAID FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, IMMEDIATELY ATTACHES AND, ACCORDINGLY, IT MAY BE REGARDED AS A RIGHT OR BENEFIT "ON ACCOUNT OF ACTIVE MILITARY OR NAVAL SERVICE" WITHIN THE MEANING OF THE ACT OF NOVEMBER 11, 1943, 57 STAT. 587. THAT IS, SUCH RIGHT OR BENEFIT VESTS ONLY BECAUSE A CIVILIAN EMPLOYEE ENTERS UPON ACTIVE MILITARY OR NAVAL SERVICE, WHICH, BY OPERATION OF THE NOVEMBER, 1943, STATUTE QUOTED IN YOUR LETTER, NOW INCLUDES COMMISSIONED SERVICE IN THE PUBLIC HEALTH SERVICE.

ACCORDINGLY, IF MR. CLARENCE H. WEST WAS COMMISSIONED IN THE PUBLIC HEALTH SERVICE ON OR AFTER NOVEMBER 11, 1943 (SEE SECTION 8 (B) OF THE ACT, 57 STAT. 589), AND THERE WAS NO BREAK IN SERVICE BETWEEN HIS CIVILIAN STATUS AND HIS COMMISSIONED STATUS IN THE PUBLIC HEALTH SERVICE, HE IS ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED.