B-41790, JUNE 3, 1944, 23 COMP. GEN. 916

B-41790, JUNE 3, 1944, 23 COMP. GEN. 916

LEAVES OF ABSENCE - MILITARY - ACTIVE DUTY AS TEMPORARY MEMBERS OF COAST GUARD RESERVE POSTAL EMPLOYEES WHO ARE ENROLLED AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE, PURSUANT TO THE AUTHORITY IN SECTION 217 OF THE COAST GUARD AUXILIARY AND RESERVE ACT OF 1941, AS AMENDED, TO ENROLL " GOVERNMENT EMPLOYEES WITHOUT PAY OTHER THAN COMPENSATION OF THEIR CIVILIAN POSITIONS," ARE AUTHORIZED TO SERVE ON ACTIVE DUTY AS TEMPORARY MEMBERS OF THE RESERVE WITHOUT LOSS OF CIVILIAN COMPENSATION ONLY DURING PERIODS OUTSIDE OF THEIR REGULAR TOUR OF CIVILIAN DUTY OR DURING ANNUAL LEAVE OF ABSENCE WITH PAY.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JUNE 3, 1944:

I HAVE YOUR LETTER OF MAY 1, 1944, AS FOLLOWS:

THIS DEPARTMENT HAS INTERPRETED YOUR DECISION OF AUGUST 11, 1943, B 36228, THAT THE EMPLOYEES OF THE POSTAL SERVICE ARE NOT ENTITLED TO MILITARY LEAVE FOR PERIODS THEY ARE ORDERED FOR INSTRUCTION AND TRAINING AS MEMBERS OF THE COAST GUARD RESERVE.

ATTENTION IS INVITED TO THE CASE OF CITY LETTER CARRIER CHARLES E. WINKLEY OF THE PLYMOUTH, MASSACHUSETTS, POST OFFICE, WHO WAS ORDERED TO DUTY WITH THE COAST GUARD RESERVE, AUGUST 1, 1943, AND SEPTEMBER 19, 1943. THE MILITARY SERVICE PERFORMED BY MR. WINKLEY WAS CERTIFIED BY HIS COMMANDING OFFICER AND HE HAS MADE REQUEST FOR MILITARY LEAVE AND CIVILIAN PAY FOR THE PERIOD OF HIS ABSENCE.

A RULING IS REQUESTED AS TO WHETHER MR. WINKLEY AND OTHER EMPLOYEES ABSENT UNDER SIMILAR CIRCUMSTANCES ARE ENTITLED TO MILITARY LEAVE.

THERE ARE ENCLOSED PHOTOSTATS OF THE ORDERS FOR MR. WINKLEY TO REPORT FOR MILITARY DUTY AND CERTIFICATES THAT THE SERVICE HAS BEEN PERFORMED.

ORDERS NOS. 14388, JULY, 1943, AND 16486, SEPTEMBER, 1943, WERE ISSUED TO " WINKLEY, CHARLES E., JR. (6002-203), COX (T) (R/--- FLOTILLA 601," THE FIRST ORDER DIRECTING HIM TO " PROCEED TO NEW BEDFORD, MASSACHUSETTS, TO REPORT BEFORE NOON, 1 AUGUST, 1943, TO THE COMMANDING OFFICER, COAST GUARD BARRACKS, FAIRHAVEN, MASSACHUSETTS, FOR ASSIGNMENT TO ADVANCED TRAINING FOR INSTRUCTORS, THE DURATION OF WHICH WILL BE ONE (1) WEEK," AND THE SECOND ORDER DIRECTING HIM TO " PROCEED TO NEW BEDFORD, MASSACHUSETTS, TO REPORT BEFORE NOON, 19 SEPTEMBER, 1943, TO THE COMMANDING OFFICER, COAST GUARD BARRACKS, FAIRHAVEN, MASSACHUSETTS, FOR ASSIGNMENT TO A COURSE OF INSTRUCTION IN THE INDOCTRINATION SCHOOL, THE DURATION OF WHICH WILL BE ONE (1) WEEK.' BOTH ORDERS PROVIDE IN PARAGRAPH 3 THAT " ALLOWANCES PRESCRIBED BY ARTICLE 219 (3), PAY AND SUPPLY INSTRUCTIONS, ARE APPLICABLE" WHICH INSTRUCTIONS RELATE TO PAYMENT OF SUBSISTENCE, BUT NEITHER ORDER PURPORTS TO AUTHORIZE THE PAYMENT OF ACTIVE DUTY PAY AS A TEMPORARY MEMBER OF THE COAST GUARD RESERVE ON ACTIVE DUTY.

IT IS UNDERSTOOD FROM THE ABOVE-QUOTED ORDERS AND FROM THE " CERTIFICATE OF MILITARY SERVICE" FURNISHED BY THE COMMANDING OFFICER OF THE COAST GUARD TO THE POSTMASTER AT PLYMOUTH, MASSACHUSETTS, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER, THAT CHARLES E. WINKLEY IS A TEMPORARY MEMBER OF THE COAST GUARD RESERVE. ACCORDINGLY, IN ANSWERING YOUR QUESTION, THERE ARE FOR CONSIDERATION THE PROVISIONS OF 14 U.S.C. 307, AS FOLLOWS:

THE COMMANDANT, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY OR OF THE SECRETARY OF THE NAVY, WHILE THE COAST GUARD IS OPERATING AS A PART OF THE NAVY, IS HEREBY AUTHORIZED TO ENROLL AS TEMPORARY MEMBERS OF THE RESERVE, FOR DUTY UNDER SUCH CONDITIONS AS HE MAY PRESCRIBE, INCLUDING BUT NOT LIMITED TO PART-TIME AND INTERMITTENT ACTIVE DUTY WITH OR WITHOUT PAY, AND WITHOUT REGARD TO AGE, MEMBERS OF THE AUXILIARY, SUCH OFFICERS AND MEMBERS OF THE CREW OF ANY MOTORBOAT OR YACHT PLACED AT THE DISPOSAL OF THE COAST GUARD, AND SUCH PERSONS (INCLUDING GOVERNMENT EMPLOYEES WITHOUT PAY OTHER THAN COMPENSATION OF THEIR CIVILIAN POSITIONS) WHO BY REASON OF THEIR SPECIAL TRAINING AND EXPERIENCE ARE DEEMED BY THE COMMANDANT TO BE QUALIFIED FOR SUCH DUTY, AS ARE CITIZENS OF THE UNITED STATES OR OF ITS TERRITORIES OR POSSESSIONS, INCLUDING THE PHILIPPINE ISLANDS, TO DEFINE THEIR POWERS AND DUTIES, AND TO CONFER UPON THEM, APPROPRIATE TO THEIR QUALIFICATIONS AND EXPERIENCE, THE SAME RANKS, GRADES, AND RATINGS AS ARE PROVIDED FOR THE PERSONNEL OF THE REGULAR COAST GUARD RESERVE. WHEN PERFORMING ACTIVE DUTY WITH PAY, AS HEREIN AUTHORIZED, TEMPORARY MEMBERS OF THE RESERVE SHALL BE ENTITLED TO RECEIVE THE PAY AND ALLOWANCES OF THEIR RESPECTIVE RANKS, GRADES, OR RATINGS, AS MAY BE AUTHORIZED FOR MEMBERS OF THE REGULAR COAST GUARD RESERVE. ( FEB. 19, 1941, CH. 8, TITLE II, SEC. 207, 55 STAT. 12, AS AMENDED JUNE 6, 1942, CH. 385, SEC. 1 (4), 56 STAT. 329; OCT. 26, 1942, CH. 628, 56 STAT. 990; NOV. 23, 1942, CH. 639, SEC. 2 (5), 56 STAT. 1021). ( ITALICS SUPPLIED.)

THE ITALICIZED WORDS OF THE STATUTE--- THOSE APPEARING IN THE PARENTHESES --- WERE ADDED BY THE ACT OF NOVEMBER 23, 1942, 56 STAT. 1020, 1021. HOUSE OF REPRESENTATIVES REPORT NO. 2525, 77TH CONGRESS, ON BILL H.R. 7629, WHICH BECAME SAID ENACTMENT, IT WAS STATED, SO FAR AS HERE MATERIAL, AS FOLLOWS:

UNDER THE AUTHORITY NOW CONTAINED IN THE COAST GUARD AUXILIARY AND RESERVE ACT AS OUTLINED ABOVE, IT IS BELIEVED THAT GOVERNMENT EMPLOYEES MAY BE ENROLLED AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE WITHOUT PAY ON THE SAME BASIS AS PERSONS OF OTHER CIVILIAN STATUS, BUT YOUR COMMITTEE DEEM IT ADVISABLE TO CLARIFY THIS AUTHORITY AND RESOLVE ANY DOUBT OF ITS APPLICABILITY TO GOVERNMENT EMPLOYEES BY SPECIFICALLY PROVIDING FOR TEMPORARY MEMBERSHIP IN THE COAST GUARD RESERVE OF GOVERNMENT EMPLOYEES WITHOUT MILITARY PAY BUT WITH CONTINUANCE IN THEIR CIVILIAN POSITIONS AND THE RECEIPT OF THE COMPENSATION THEREOF. IT SHOULD BE POINTED OUT THAT THE CONFERRING OF TEMPORARY RANKS OR RATINGS UPON SUCH PERSONS WILL NOT EXEMPT THEM FROM LIABILITY FOR TRAINING AND SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED. IT WILL, HOWEVER, GIVE TO SUCH EMPLOYEES NECESSARY MILITARY AUTHORITY AND RESPONSIBILITY DURING THEIR TEMPORARY MEMBERSHIP IN THE COAST GUARD RESERVE.

REAR ADMIRAL F. J. GORMAN OF THE COAST GUARD, WHO APPEARED AND TESTIFIED REGARDING THE NECESSITY FOR AND SCOPE AND PURPOSE OF THE BILL, STATED UPON QUESTIONING BY THE COMMITTEE THAT ONE OF THE MOST DIFFICULT PROBLEMS NOW CONFRONTING THE COAST GUARD IS THE PROPER AND EQUITABLE SOLUTION OF THE PROBLEM CONCERNING THE PLACE IN THE SERVICE ORGANIZATIONAL SCHEME OF CIVILIANS WHO ARE PERFORMING PRACTICALLY THE SAME DUTIES AS MILITARY PERSONNEL AND WHOSE SERVICES ARE ABSOLUTELY ESSENTIAL TO THE WAR EFFORT. HE GAVE US AN EXAMPLE THE PRESENT STATUS OF MERCHANT-MARINE INSPECTORS OF THE FORMER BUREAU OF MARINE INSPECTION AND NAVIGATION. THESE MEN, WHO ARE UNDER THE SUPERVISION OF COAST GUARD OFFICERS AND IN TURN HAVE MILITARY PERSONNEL UNDER THEIR DIRECTION, PERFORM DUTIES IN CONNECTION WITH THE MERCHANT MARINE, SUCH AS THE INSPECTION, DRILLING, AND TRAINING OF THE CREWS, WHICH DUTIES ARE OF A MILITARY CHARACTER DURING TIME OF WAR. WOULD NOT BE PRACTICABLE TO COMMISSION ALL SUCH EMPLOYEES IN THE REGULAR COAST GUARD RESERVE, FOR SEVERAL REASONS, NOT THE LEAST OF WHICH IS THAT IT WOULD BE NOT ONLY DIFFICULT TO ADJUST THEIR RANKS OR RATINGS AND SERVICE PAY WITH THEIR CIVILIAN POSITIONS AND COMPENSATION, BUT IT WOULD BE IMPOSSIBLE FOR MANY OF THEM TO MEET THE PHYSICAL AND AGE REQUIREMENTS FOR INDUCTION INTO THE REGULAR RESERVE.

THIS AMENDMENT IS PROPOSED AND RECOMMENDED BY YOUR COMMITTEE SINCE IT WOULD SOLVE THIS ADMINISTRATIVE PROBLEM BY RESOLVING ANY POSSIBLE DOUBT OF THE AUTHORITY OF THE COAST GUARD TO ENROLL CERTAIN GOVERNMENT EMPLOYEES AS TEMPORARY MEMBERS OF THE RESERVE FOR ACTIVE COAST GUARD DUTY WITHOUT THE PAY OF THEIR MILITARY RANK OR RATING, AND WOULD OBVIATE ANY POSSIBLE IMPAIRMENT OF THE RIGHT OF SUCH EMPLOYEES TO CONTINUE TO RECEIVE THE COMPENSATION OF THEIR CIVILIAN POSITIONS FOR THE ENTIRE PERIOD OF THEIR PERFORMANCE OF ACTIVE COAST GUARD DUTY AS SUCH TEMPORARY MEMBERS. THERE WILL BE LITTLE, IF ANY, CHANGE IN THE NATURE OF THEIR DUTIES AFTER ENROLLMENT. (ITALICS SUPPLIED.)

IT IS NOT CLEAR FROM THAT COMMITTEE STATEMENT THAT THE AMENDMENT (THEN UNDER DISCUSSION) TO THE STATUTE OF NOVEMBER 23, 1942, SUPRA, WAS INTENDED TO AUTHORIZE, GENERALLY, ALL FEDERAL EMPLOYEES TO BE ABSENT WITH CIVILIAN PAY FROM THEIR CIVILIAN DUTY WITHOUT LIMITATION AS TO TIME WHILE SERVING ON ACTIVE DUTY WITH THE COAST GUARD AS TEMPORARY MEMBERS OF THE RESERVE. ON THE CONTRARY, IT SEEMS DOUBTFUL THAT THE CONGRESS INTENDED BY SAID AMENDATORY ACT TO AUTHORIZE THE RELEASE OF ANY NUMBER OF CIVILIAN EMPLOYEES OF THE GOVERNMENT FROM THEIR CIVILIAN DUTIES TO SERVE ON ACTIVE DUTY WITH THE COAST GUARD WITHOUT LIMITATION AS TO TIME, THUS PERMITTING THE COAST GUARD PRACTICALLY TO OPERATE AT THE EXPENSE, AND TO THE DETRIMENT OF THE CIVILIAN BRANCHES OF THE FEDERAL SERVICE--- A RESULT WHICH WOULD FLOW FROM A LITERAL APPLICATION OF THE LAW. WHILE THE CONGRESS DOUBTLESS INTENDED TO AUTHORIZE THE ENLISTMENT OF GOVERNMENT EMPLOYEES AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE SO AS TO HAVE THEM AVAILABLE FOR CALL INTO ACTIVE SERVICE WITH THE COAST GUARD, IT IS UNREASONABLE TO SUPPOSE THAT SUCH AUTHORITY WAS INTENDED TO PERMIT THE COAST GUARD BY THE ACT OF ENROLLING CIVILIAN EMPLOYEES OF THE GOVERNMENT AS TEMPORARY MEMBERS OF THE RESERVE--- WITH THE EXCEPTION, PERHAPS, OF CIVILIAN EMPLOYEES OF THE COAST GUARD THE NATURE OF WHOSE DUTIES IS SUBSTANTIALLY THE SAME BEFORE AND AFTER ENROLLMENT--- ACTUALLY TO TAKE THEM AWAY FROM THEIR CIVILIAN COMPENSATION, UNLESS, PURSUANT TO SOME OTHER LAW, SUCH AS THE STATUTES AUTHORIZING THE GRANTING OF ANNUAL LEAVE OF ABSENCE WITH PAY, THEY ARE ENTITLED TO BE ABSENT FROM THEIR CIVILIAN DUTIES WITHOUT LOSS OF PAY. HENCE, SO FAR AS THE POSTAL SERVICE IS CONCERNED, THE PRACTICAL EFFECT OF THE STATUTE IS BELIEVED TO BE THAT POSTAL EMPLOYEES WHOSE CIVILIAN DUTIES, OF COURSE, ARE ENTIRELY DISSIMILAR TO ACTIVE DUTY WITH THE COAST GUARD, ARE AUTHORIZED TO SERVE ON ACTIVE DUTY WITH THE COAST GUARD AS TEMPORARY MEMBERS OF THE RESERVE WITHOUT LOSS OF CIVILIAN COMPENSATION ONLY DURING THEIR OWN TIME, THAT IS, OUTSIDE OF THEIR REGULAR TOUR OF CIVILIAN DUTY OR DURING ANNUAL LEAVE OF ABSENCE WITH PAY.

THE RULE STATED IN THE DECISION OF AUGUST 11, 1943, 23 COMP. GEN. 92, TO WHICH YOU REFER, IS AS FOLLOWS (QUOTING FROM THE SYLLABUS):

MILITARY LEAVE OF ABSENCE WITH PAY, WHICH IS GRANTED CIVILIAN EMPLOYEES OF THE UNITED STATES UNDER SPECIFIC STATUTORY AUTHORITY FOR THE PURPOSE OF TRAINING IN THE NATIONAL GUARD, ETC., AS PROSPECTIVE MEMBERS OF THE ARMED FORCES OF THE UNITED STATES FOR ACTIVE DUTY, MAY NOT BE GRANTED MEMBERS OF A STATE DEFENSE ORGANIZATION CREATED UNDER AUTHORITY OF THE ACT OF AUGUST 18, 1941, WHICH PROHIBITS MEMBERS OF A STATE DEFENSE ORGANIZATION, CREATED DURING THE ABSENCE OF THE NATIONAL GUARD ON ACTIVE DUTY AS A PART OF THE ARMED FORCES OF THE UNITED STATES, FROM BEING CALLED INTO ACTIVE MILITARY SERVICE AS SUCH MEMBERS.

THE SAME RULE WOULD BE APPLICABLE IN THE INSTANT CASE--- THAT IS, NONE OF THE STATUTES AUTHORIZING THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY WOULD BE APPLICABLE TO AUTHORIZE THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY TO POSTAL EMPLOYEES WHILE THEY ARE ABSENT ON ACTIVE DUTY AS TEMPORARY MEMBERS OF THE COAST GUARD RESERVE.