B-46952, JANUARY 30, 1945, 24 COMP. GEN. 573

B-46952: Jan 30, 1945

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OFFICERS AND EMPLOYEES ENTERING MILITARY SERVICE - STATUS FOR CIVILIAN RETIREMENT PURPOSES PRIOR TO RESTORATION TO CIVILIAN POSITIONS IT WOULD NOT APPEAR THAT THE CIVILIAN STATUS OF PERSONS WHO HAVE ENTERED THE ARMED FORCES FROM FEDERAL CIVILIAN POSITIONS IS PRESERVED FOR RETIREMENT PURPOSES WHILE THEY ARE SERVING IN THE ARMED FORCES OR THEREAFTER PRIOR TO TRAINING AND SERVICE ACT OF 1940. REGARDLESS OF WHETHER SUCH PERSONS ARE CARRIED ON THE CIVILIAN ROLLS AS ON MILITARY FURLOUGH WITHOUT PAY OR SEPARATED FROM THE SERVICE. IT WOULD APPEAR THAT THE DATE OF SEPARATION FROM CIVILIAN SERVICE OF EMPLOYEES WHO HAVE ENTERED THE ARMED FORCES PRIOR TO THE DATE OF THE LUMP- SUM LEAVE PAYMENT STATUTE OF DECEMBER 21.

B-46952, JANUARY 30, 1945, 24 COMP. GEN. 573

OFFICERS AND EMPLOYEES ENTERING MILITARY SERVICE - STATUS FOR CIVILIAN RETIREMENT PURPOSES PRIOR TO RESTORATION TO CIVILIAN POSITIONS IT WOULD NOT APPEAR THAT THE CIVILIAN STATUS OF PERSONS WHO HAVE ENTERED THE ARMED FORCES FROM FEDERAL CIVILIAN POSITIONS IS PRESERVED FOR RETIREMENT PURPOSES WHILE THEY ARE SERVING IN THE ARMED FORCES OR THEREAFTER PRIOR TO TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR STATUTES IN PARI MATERIA, REGARDLESS OF WHETHER SUCH PERSONS ARE CARRIED ON THE CIVILIAN ROLLS AS ON MILITARY FURLOUGH WITHOUT PAY OR SEPARATED FROM THE SERVICE. INSOFAR AS CONCERNS THEIR CIVILIAN STATUS FOR RETIREMENT PURPOSES, IT WOULD APPEAR THAT THE DATE OF SEPARATION FROM CIVILIAN SERVICE OF EMPLOYEES WHO HAVE ENTERED THE ARMED FORCES PRIOR TO THE DATE OF THE LUMP- SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, IS THE LAST DAY OF TERMINAL ANNUAL LEAVE GRANTED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, AND THE LAST DAY OF ACTIVE DUTY IN A CIVILIAN POSITION IF A LUMP-SUM PAYMENT FOR LEAVE IS MADE IN ACCORDANCE WITH THE 1944 STATUTE.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 30, 1945:

I HAVE YOUR LETTER OF JANUARY 4, 1945 (FILE RET:JAT:JF), AS FOLLOWS:

IT HAS BEEN CONSISTENTLY HELD IN THE ADMINISTRATION OF THE RETIREMENT LAW THAT AN EMPLOYEE ON FURLOUGH OR LEAVE WITHOUT PAY IS IN THE SERVICE FOR ALL PURPOSES UNDER THE ACT. PRECEDENT RULING ON THAT POINT IS FOUND IN 32 OP. ATT. GEN. 424, INVOLVING ANNUITABLE RIGHTS UNDER THE ORIGINAL RETIREMENT ACT OF MAY 22, 1920, OF AN EMPLOYEE WHO HAD BEEN ON LEAVE OF ABSENCE WITHOUT PAY DUE TO SICKNESS FOR MORE THAN TWO YEARS BEFORE THAT ACT BECAME EFFECTIVE. NO QUESTION OF RETURN TO DUTY WAS RAISED, THE ATTORNEY GENERAL STATING AS FOLLOWS:

"THE LAW HAS ALWAYS RECOGNIZED A DISTINCTION BETWEEN AN ABSOLUTE SEPARATION FROM THE SERVICE AND LEAVE OF ABSENCE WITHOUT PAY. IN REGARD TO THE LATTER, THE UNITED STATES SUPREME COURT HAS SAID IN UNITED STATES V. MURRAY, 100 U.S. 536:

" "WHILE UNDER THE REGULATIONS OF THE DEPARTMENT AN EMPLOYEE IS NOT ENTITLED TO A LEAVE OF ABSENCE WITH PAY FOR MORE THAN THIRTY DAYS IN ANY ONE YEAR, THERE IS NOTHING TO PREVENT THE SECRETARY FROM PUTTING HIM ON FURLOUGH WITHOUT PAY AT ANY TIME, IF THE EXIGENCIES OF THE SERVICE REQUIRE IT. HE MAY BE DISMISSED ABSOLUTELY, AND IT IS DIFFICULT TO SEE WHY, IF THIS CAN BE DONE, HE MAY NOT BE FURLOUGHED WITHOUT PAY, WHICH IS IN EFFECT A PARTIAL DISMISSAL. IF HE DESIRES TO BE FREE FROM ALL OBLIGATIONS TO SERVE IN THE FUTURE, HE MAY RESIGN; BUT IF HE PERMITS HIS NAME TO CONTINUE ON THE ROLLS, IT MUST BE ON SUCH TERMS AS ARE IMPOSED BY THE DEPARTMENT.' (FOLLOWED IN STILLING V. UNITED STATES, 41 CT.CLMS. 61; SMALL, EXECUTOR V. UNITED STATES, 45 CT.CLMS. 13; WHEELOCK V. UNITED STATES, 46 CT.CLMS. 1; 21 OP. 318.)

THE SAME RULE HAS BEEN APPLIED IN CONNECTION WITH AMENDMENTS TO THE RETIREMENT LAW. FOR EXAMPLE, WHEN RETIREMENT COVERAGE WAS MATERIALLY BROADENED BY THE ACT OF JANUARY 24, 1942, EMPLOYEES THEN ON FURLOUGH OR LEAVE WITHOUT PAY WERE CONSIDERED AS HAVING AUTOMATICALLY ACQUIRED A RETIREMENT STATUS ON THAT DATE, AND SOME ANNUITY AWARDS WERE MADE WITHOUT RETURN TO ACTIVE DUTY.

YOUR OFFICE HAS HELD THAT PERSONS ON FURLOUGH OR LEAVE WITHOUT PAY ARE EMPLOYEES OF THE GOVERNMENT FOR VARIOUS PURPOSES. IN 2 COMP. GEN. 649, REFERRING TO THE ACT OF JULY 31, 1894, IN WHICH IT WAS STATED (SYLLABUS):

"A CIVILIAN EMPLOYEE OF THE GOVERNMENT HOLDING A POSITION THE SALARY ATTACHED TO WHICH AMOUNTS TO $2500.00 OR MORE MAY NOT BE EMPLOYED IN ANY OTHER POSITION UNDER THE GOVERNMENT WITH COMPENSATION ATTACHED, IT BEING IMMATERIAL THAT HE WAS IN A LEAVE-WITHOUT-PAY STATUS FROM THE FIRST POSITION FOR THE PERIOD COVERED BY THE SECOND POSITION.'

THIS DECISION WAS CITED AND REAFFIRMED IN 12 COMP. GEN. 76 AND OTHER RULINGS.

THE CLEAR DISTINCTION BETWEEN A SEPARATION AND FURLOUGH IS BROUGHT OUT IN 12 COMP. GEN. 212, FROM WHICH THE FOLLOWING IS QUOTED:

"THE DIRECTION TO ADMINISTRATIVE OFFICERS IN SECTION 216 OF THE ECONOMY ACT TO FURLOUGH EMPLOYEES WITHOUT PAY RATHER THAN TO DISCHARGE THEM WAS INTENDED SOLELY FOR THE BENEFIT OF THE EMPLOYEES, AND IS NOT TO BE REGARDED AS RENDERING INOPERATIVE ANY OTHER STATUTORY PROVISION UNDER WHICH A DISCHARGE WOULD BE MORE ADVANTAGEOUS TO THE EMPLOYEE THAN A FURLOUGH WITHOUT PAY. TO HOLD OTHERWISE WOULD DEFEAT THE PLAIN PURPOSE OF THE SECTION. THEREFORE, IN ANY CASE AN INVOLUNTARY SEPARATION FROM THE SERVICE REQUIRED BY REASON OF INADEQUATE APPROPRIATIONS WOULD VEST IN THE EMPLOYEE SEPARATED RETIREMENT BENEFITS UNDER SECTION 7 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, SUPRA, UNDER THE CONDITIONS STATED IN YOUR LETTER, THE EMPLOYEES MAY BE DISCHARGED RATHER THAN FURLOUGHED WITHOUT PAY.'

THE COMMISSION'S OWN RETIREMENT CIRCULARS NO. 94 AND NO. 94 REVISED, STATE DEFINITELY THAT AN EMPLOYEE HAVING A STATUS UNDER THE CIVIL SERVICE RETIREMENT ACT WHO ENTERS THE MILITARY OR NAVAL SERVICE RETAINS HIS STATUS UNDER THE RETIREMENT ACT SO LONG AS HIS NAME IS CARRIED ON THE ROLLS OF THE DEPARTMENT OR AGENCY IN A FURLOUGH OR LEAVE-WITHOUT-PAY STATUS.

IT IS THE PRACTICE OF THE COMMISSION TO DENY REFUND OF RETIREMENT DEDUCTIONS TO EMPLOYEES CARRIED ON MILITARY FURLOUGH, AND ALSO TO AWARD DISABILITY OR OTHER TYPE OF RETIREMENT, IF THE PERSON IS OTHERWISE ENTITLED THERETO.

IN YOUR DECISION OF NOVEMBER 6, 1944, B-45311 (24 COMP. GEN. 357), YOUR STATED IN PART:

"IN VIEW OF THE MISINFORMATION CONTAINED IN THE UNDERLINED PORTION OF CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 451, SUPRA, REGARDING EXTENSION OF MILITARY FURLOUGH--- INCONSISTENT WITH THE WAR SERVICE REGULATION REQUIRING RESTORATION WITHIN 30 DAYS--- AND WITH THE UNDERSTANDING THAT IT WAS DETERMINED ADMINISTRATIVELY THAT THE EMPLOYEE WAS NOT PHYSICALLY OR MENTALLY DISQUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION WHEN HE MADE APPLICATION FOR RESTORATION, NOTWITHSTANDING HIS ALLERGIC CONDITION, IT MAY BE ASSUMED, IN THE CASE PRESENTED, THAT THE EMPLOYEE ACTUALLY WAS RESTORED TO A CIVILIAN POSITION UNDER THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT WITHIN THE TIME ALLOWED BY THE WAR SERVICE REGULATIONS AND WAS GRANTED ADMINISTRATIVELY, LEAVE OF ABSENCE WITHOUT PAY UNTIL APRIL 17, 1944, FOR THE PURPOSE STATED IN CIVIL SERVICE CIRCULAR NO. 451, SUPRA.

"BUT ON THE OTHER HAND, IF IT WERE ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE WAS DISQUALIFIED, EITHER PHYSICALLY OR MENTALLY, FOR RESTORATION WITHIN 30 DAYS OF HIS FILING OF APPLICATION, THERE WOULD BE REQUIRED THE CONCLUSION THAT HE HAS NOT BEEN RESTORED IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF LAW AND MAY NOT BE GRANTED ANY REEMPLOYMENT BENEFITS BY REASON OF HIS FORMER CIVILIAN SERVICE.'

THE FOLLOWING APPEARS IN YOUR DECISION OF NOVEMBER 24, 1944, B-45646 (24 COMP. GEN. 410):

"WERE IT NOT FOR THAT STATUTE ( ACT OF APRIL 7, 1942, 56 STAT. 200) AND THE SELECTIVE TRAINING AND SERVICE ACT, ENTRANCE INTO THE ACTIVE MILITARY OR NAVAL SERVICE AUTOMATICALLY WOULD HAVE DEFEATED THE RIGHT OF AN EMPLOYEE TO BE PAID FOR TERMINAL ANNUAL LEAVE IN A CIVILIAN POSITION, REGARDLESS OF SECTION 2.4 OF THE CURRENT LEAVE REGULATIONS, NOT ONLY BECAUSE OF THE DUAL COMPENSATION STATUTES, BUT ALSO PURSUANT TO THE GENERAL RULE OF LAW THAT A CIVILIAN STATUS AND MILITARY STATUS DURING THE SAME PERIOD OF TIME IS INCOMPATIBLE.'

THESE DECISIONS RAISE A DOUBT AS TO THE CORRECTNESS OF THE COMMISSION'S HOLDINGS AS THEY SEEM TO INDICATE THAT UNLESS THE EMPLOYEE IS RESTORED IN ACCORDANCE WITH THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT, HE CANNOT BE CONSIDERED AS HAVING BEEN IN A FURLOUGH STATUS. YOUR DECISION IS, THEREFORE, REQUESTED AS TO WHETHER THE RULES NOW FOLLOWED BY THE COMMISSION AS ABOVE STATED ARE CORRECT.

SHOULD YOUR DECISION BE IN THE NEGATIVE, WHAT DATE SHALL BE CONSIDERED AS THE DATE OF SEPARATION IN THESE CASES?

THIS OFFICE HAS TAKEN THE POSITION THAT THE QUESTION OF WHETHER AN EMPLOYEE IS ENTITLED TO RETIREMENT UNDER ANY PARTICULAR RETIREMENT ACT IS FOR DETERMINATION PRIMARILY BY THE HEAD OF THE ESTABLISHMENT CHARGED WITH THE DUTY OF ADMINISTERING THE APPLICABLE RETIREMENT ACT. 18 COMP. GEN. 955; 19 ID. 352. HENCE, I SHALL NOT ATTEMPT TO RENDER AN AUTHORITATIVE DECISION UPON THE MATTER HERE PRESENTED BUT AM PLEASED TO EXPRESS, IN RESPONSE TO YOUR LETTER, MY VIEWS REGARDING THE MATTER.

THERE IS NO QUESTION IN MY MIND REGARDING THE POSITION TAKEN IN ADMINISTRATION OF THE RETIREMENT ACT, TO WHICH YOU REFER IN THE FIRST PARAGRAPH OF YOUR LETTER, OF GRANTING RETIREMENT BENEFITS TO CIVILIAN EMPLOYEES IN A LEAVE WITHOUT PAY STATUS--- NOT COVERING A PERIOD OF ACTIVE MILITARY SERVICE--- PRIOR TO A RETURN TO DUTY; AND NOTHING HEREIN IS TO BE REGARDED AS QUESTIONING SUCH POSITION SO FAR AS CONCERNS THE RIGHT TO RETIREMENT BENEFITS GRANTED TO EMPLOYEES IN A LEAVE WITHOUT PAY STATUS--- AS SUCH STATUS ORDINARILY IS UNDERSTOOD AND APPLIED AND TO WHICH THE CITED OPINION OF THE ATTORNEY GENERAL AND THE EARLIER DECISIONS OF THIS OFFICE HAD REFERENCE.

HOWEVER, YOUR LETTER PRESENTS FOR CONSIDERATION, NOT A QUESTION INVOLVING THE GRANTING OF RETIREMENT BENEFITS TO EMPLOYEES IN A LEAVE WITHOUT PAY STATUS IN THE ORDINARY SENSE, BUT WHETHER AN EMPLOYEE WHO ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE FROM WHICH HE HAS BEEN DISCHARGED MAY BE GRANTED RETIREMENT BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT WITHOUT HAVING BEEN RESTORED TO DUTY IN A CIVILIAN POSITION. IN THAT CONNECTION, IT IS UNDERSTOOD TO HAVE BEEN THE POSITION OF THE COMMISSION HERETOFORE THAT WHERE AN EMPLOYEE HAS BEEN PLACED ON MILITARY FURLOUGH WITHOUT PAY BY ADMINISTRATIVE ACTION--- AS DISTINGUISHED FROM ADMINISTRATIVE ACTION SEPARATING THE EMPLOYEE FROM THE SERVICE--- WHEN HE ENTERS THE ARMED FORCES, RETAINS ALL RIGHTS AND BENEFITS TO RETIREMENT AS A CIVILIAN EMPLOYEE UNDER THE CIVIL SERVICE RETIREMENT ACT, INCLUDING DISABILITY RETIREMENT FOR A DISABILITY INCURRED IN THE MILITARY SERVICE, WITHOUT HAVING BEEN RESTORED TO A CIVILIAN POSITION UNDER THE TERMS AND CONDITIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 890, PUBLIC RESOLUTION NO. 90 OF AUGUST 27, 1940, 54 STAT. 858, AS AMENDED BY SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA, BOTH STATUTES AS AMENDED BY THE ACT OF DECEMBER 8, 1944, 58 STAT. 798, PUBLIC LAW 473, OR THE ACT OF AUGUST 18, 1941, 55 STAT. 627, ALSO AMENDED BY THE ACT OF DECEMBER 8, 1944--- THE LAST-MENTIONED STATUTE HAVING EXTENDED REEMPLOYMENT BENEFITS TO THOSE VOLUNTARILY ENTERING THE ARMED FORCES.

THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AS AMENDED BY THE ACT OF JULY 28, 1942, 56 STAT. 724, RELATING TO REEMPLOYMENT BENEFITS, WHICH PROVISION APPEARS, ALSO, IN THE STATUTES IN PARI MATERIA, ABOVE CITED, ARE AS FOLLOWS:

SEC. 8 (A) ANY PERSON INDUCTED IN THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE, WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B) SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF TRAINING AND SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. IN ADDITION, EACH SUCH PERSON WHO IS INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THIS ACT FOR TRAINING AND SERVICE SHALL BE GIVEN PHYSICAL EXAMINATION AT THE BEGINNING OF SUCH TRAINING AND SERVICE; AND UPON THE COMPLETION OF HIS PERIOD OF TRAINING AND SERVICE UNDER SECTION 3 (B), EACH SUCH PERSON SHALL BE GIVEN ANOTHER PHYSICAL EXAMINATION AND, UPON THE WRITTEN REQUEST OF THE PERSON CONCERNED, SHALL BE GIVEN A STATEMENT OF MEDICAL RECORD BY THE WAR DEPARTMENT: PROVIDED, THAT SUCH STATEMENT SHALL NOT CONTAIN ANY REFERENCE TO MENTAL OR OTHER CONDITIONS WHICH IN THE JUDGMENT OF THE SECRETARY OF WAR OR THE SECRETARY OF THE NAVY WOULD PROVE INJURIOUS TO THE PHYSICAL OR MENTAL HEALTH OF THE PERSON TO WHOM IT PERTAINS.

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH TRAINING AND SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY; ** * * * *

(C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE I THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION. (ITALICS SUPPLIED.)

SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, PROVIDES:

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 REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT: PROVIDED, THAT THE PROVISIONS OF SECTION 8 (B) (A) OF SAID ACT SHALL BE APPLICABLE TO ANY SUCH PERSON WITHOUT REGARD TO WHETHER THE POSITION WHICH HE HELD SHALL HAVE BEEN COVERED INTO THE CLASSIFIED CIVIL SERVICE DURING THE PERIOD OF HIS MILITARY OR NAVAL SERVICE. THE ACT OF DECEMBER 8, 1944, PUBLIC LAW 473, PROVIDES:

THAT SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, PUBLIC LAW 783, SEVENTY-SIXTH CONGRESS, APPROVED SEPTEMBER 16, 1940 (50 U.S.C. 308), AS AMENDED, BE FURTHER AMENDED BY STRIKING OUT THE WORD "FORTY" THEREFROM AND SUBSTITUTING THE WORD "NINETY" THEREFORE, AND BY ADDING AFTER THE WORDS "RELIEVED FROM SUCH TRAINING AND SERVICE" THE FOLLOWING: "OR FROM HOSPITALIZATION CONTINUING AFTER DISCHARGE FOR A PERIOD OF NOT MORE THAN ONE YEAR.'

SEC. 2. SECTION 3 (B) OF PUBLIC RESOLUTION 96 OF THE SEVENTY-SIXTH CONGRESS (U.S.C. 1940 EDITION, SUPP. III, TITLE 50, APP. SEC. 401; 54 STAT. 858), AS AMENDED, AUTHORIZING THE PRESIDENT TO ORDER MEMBERS AND UNITS OF RESERVE COMPONENTS AND RETIRED PERSONNEL OF THE REGULAR ARMY INTO ACTIVE MILITARY SERVICE, IS FURTHER AMENDED BY STRIKING OUT THE WORD "FORTY" THEREFROM AND SUBSTITUTING THE WORD "NINETY" THEREFOR AND BY ADDING AFTER THE WORDS "RELIEVED FROM SUCH ACTIVE DUTY OR SERVICE" THE FOLLOWING: "OR FROM HOSPITALIZATION CONTINUING AFTER DISCHARGE FOR A PERIOD OF NOT MORE THAN ONE YEAR.'

SEC. 3. SECTION 7 OF PUBLIC LAW 213 OF THE SEVENTY-SEVENTH CONGRESS ( U.S.C., 1940 EDITION, SUPP. III, TITLE 50, APP., SEC. 357; 55 STAT. 627), THE SERVICE EXTENSION ACT OF 1941, IS HEREBY AMENDED BY INSERTING,"AS AMENDED," AFTER THE WORDS "SELECTIVE TRAINING AND SERVICE ACT OF 1940.'

THERE IS FOR NOTING THAT THE ACT OF DECEMBER 8, 1944, DOES NOT MODIFY THE ITALICIZED PORTION OF THE BASIC SELECTIVE TRAINING AND SERVICE ACT, AS ABOVE QUOTED--- THE PART HERE MATERIAL.

IN DECISION OF NOVEMBER 3, 1941, 21 COMP. GEN. 403, IT WAS STATED, AT PAGE 408, AS FOLLOWS:

* * * AS ABOVE NOTED, UPON COMPLIANCE WITH THOSE CONDITIONS THE EMPLOYEES ARE ENTITLED TO BE ,RESTORED" TO THEIR FORMER CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY; AND IT IS ONLY UPON SUCH RESTORATION THAT THERE MATERIALIZES A RIGHT TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" AND TO REACQUIRE THE LEAVE AND OTHER BENEFITS WHICH WOULD OTHERWISE HAVE BEEN LOST TO THEM. IN OTHER WORDS, IT IS ONLY IN THE EVENT THAT THE CONDITIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, HAVE BEEN COMPLIED WITH THAT SUCH AN EMPLOYEE IS ENTITLED TO BE RESTORED TO HIS POSITION; AND IT IS ONLY IN THE EVENT THAT HE BE SO RESTORED THAT HE IS ENTITLED TO BE CONSIDERED AS HAVING BEEN ON LEAVE OF ABSENCE FROM HIS POSITION AND TO BE RECREDITED WITH HIS ACCRUED LEAVE.

THAT DECISION RELATED MORE PARTICULARLY TO LEAVE BENEFITS, BUT THE PRINCIPLE THEREOF SINCE HAS BEEN APPLIED BY THIS OFFICE WITH REGARD TO OTHER BENEFITS ACCRUING TO RETURNING VETERANS WHO MET THE TERMS AND CONDITIONS OF THE LAW TO ENTITLE THEM TO RESTORATION TO CIVILIAN POSITIONS --- TWO OF THE DECISIONS BEING QUOTED IN YOUR LETTER--- AND NO REASON IS APPARENT WHY THE SAME PRINCIPLE IS NOT FOR APPLICATION TO THE SITUATION HERE PRESENTED.

WHILE THE CONGRESS HAS BY IMPLICATION IN THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, AND IN THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, PRESERVED THE CIVILIAN STATUS OF AN OFFICER OR EMPLOYEE DURING ACTIVE SERVICE IN THE ARMED FORCES FOR THE PURPOSE OF ELECTING TO BE PAID FOR TERMINAL ANNUAL LEAVE (SEE ANSWER TO QUESTION 7, DECISION OF JANUARY 16, 1945, B-46831, 24 COMP. GEN. 528), NO PROVISION OF LAW HAS COME TO MY ATTENTION EXPRESSLY OR BY IMPLICATION PRESERVING THE CIVILIAN STATUS OF OFFICERS AND EMPLOYEES FOR RETIREMENT PURPOSES WHILE SERVING IN THE ARMED FORCES, OR THEREAFTER PRIOR TO RESTORATION TO A CIVILIAN POSITION. SECTION 5 OF THE RETIREMENT ACT, 54 STAT. 1116, AUTHORIZES THE CREDITING OF ,HONORABLE SERVICE IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OF THE UNITED STATES" TOWARD RETIREMENT IN A CIVILIAN POSITION, PROVIDES SUCH SERVICE IS NOT USED, ALSO, AS A BASIS FOR MILITARY RETIRED PAY OR PENSION, BUT I BELIEVE YOU WILL AGREE THAT THAT PROVISION OF LAW DOES NOT OPERATE TO GRANT RETIREMENT BENEFITS TO A PERSON WHO IS NOT IN A CIVILIAN POSITION AT THE TIME OF RETIREMENT. IT HAS BEEN RECOGNIZED THAT ADMINISTRATIVE OFFICES COULD, WITHIN THEIR DISCRETION, PLACE EMPLOYEES WHO ENTER THE ARMED FORCES ON SO-CALLED MILITARY FURLOUGH WITHOUT PAY IN ORDER TO MAINTAIN MORE ACCURATE RECORDS OF BENEFITS WHICH WOULD ACCRUE DURING SUCH SERVICES IN THE EVENT OF RESTORATION TO THE CIVILIAN POSITION UNDER THE TERMS AND CONDITIONS OF THE CONTROLLING STATUTES ABOVE CITED AFTER DISCHARGE FROM THE ARMED FORCES. ALSO, IT HAS BEEN RECOGNIZED THAT ADMINISTRATIVE OFFICES, WITHIN THEIR DISCRETION, MAY SEPARATE EMPLOYEES UPON ENTRY INTO THE ARMED FORCES AND WAIT UNTIL THEIR ACTUAL RESTORATION TO CIVILIAN POSITIONS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE CONTROLLING STATUTES, SUPRA, TO DETERMINE THE BENEFITS WHICH ACCRUED TO THEM DURING MILITARY SERVICE. HOWEVER, SUCH ADMINISTRATIVE PRACTICE OF PLACING THE EMPLOYEES ON MILITARY FURLOUGH AS AN EXPEDIENCY TO MAINTAIN ACCURATE RECORDS DOES NOT, IN MY JUDGMENT, HAVE THE LEGAL EFFECT OF PRESERVING A CIVILIAN STATUS AFTER THE EFFECTIVE DATE OF THE MILITARY FURLOUGH. CONTRARY TO THE POSITION APPARENTLY TAKEN BY THE COMMISSION, BENEFITS ACCRUING DURING THE MILITARY SERVICE OF EMPLOYEES WHO ARE RESTORED, AS WELL AS PAYMENTS FOR ANNUAL LEAVE BENEFITS WITHOUT RESTORATION, ARE EXACTLY THE SAME REGARDLESS OF WHICH OF THE TWO PROCEDURES WERE ADMINISTRATIVELY ADOPTED. HENCE, IT WOULD SEEM THAT AN ADMINISTRATIVE ACTION OR PRACTICE GRANTING MILITARY FURLOUGH WITHOUT PAY--- WHICH IS NOT THE SAME AS ORDINARY LEAVE OF ABSENCE WITHOUT PAY BECAUSE UNDER SUCH FURLOUGH THE EMPLOYEES HOLD AN INCOMPATIBLE STATUS IN THE ARMED FORCES, (3 COMP. GEN. 40; 18 ID. 213; 20 ID. 57; 22 ID. 127/--- COULD HAVE NO MORE LEGAL EFFECT TO MAINTAIN A CIVILIAN STATUS DURING ACTIVE MILITARY OR NAVAL SERVICE FOR RETIREMENT BENEFITS WITHOUT RESTORATION TO A CIVILIAN POSITION, THAN WOULD AN ADMINISTRATIVE ACTION OR PRACTICE SEPARATING THE EMPLOYEES FROM THE SERVICE AT THE TIME THEY ENTERED THE MILITARY SERVICE, AND THAT IN NEITHER EVENT DOES AN EMPLOYEE MAINTAIN A CIVILIAN STATUS FOR RETIREMENT PURPOSES DURING ACTIVE MILITARY SERVICE OR THEREAFTER PRIOR TO ACTUAL RESTORATION TO A CIVILIAN POSITION AS PROVIDED BY THE APPLICABLE STATUTES.

ACCORDINGLY, REFERRING TO THE FIRST QUESTION IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER, IT IS MY VIEW THAT THE POSITION HERETOFORE TAKEN BY THE COMMISSION IS NOT CORRECT, AND THAT THE MATTER OF GRANTING RETURNING VETERANS RETIREMENT BENEFITS UNDER THE CIVIL SERVICE RETIREMENT ACT WITHOUT RESTORATION TO CIVILIAN POSITIONS, IN ADDITION TO BENEFITS UNDER THE MILITARY LAWS, SHOULD BE LEFT FOR THE CONSIDERATION OF THE CONGRESS.

REFERRING TO THE QUESTION IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, MY VIEW IS THAT THE DATE OF SEPARATION FROM CIVILIAN SERVICE FOR RETIREMENT PURPOSES WOULD BE (A) THE LAST DAY OF TERMINAL LEAVE IF GRANTED IN ACCORDANCE WITH THE PROVISIONS OF LAW AND REGULATION IN FORCE PRIOR TO DECEMBER 21, 1944 (ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, SUPRA), AND (B) THE LAST DAY OF ACTIVE DUTY IN A CIVILIAN POSITION IF A LUMP-SUM PAYMENT IS MADE IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525. SEE ANSWER TO QUESTION 3, DECISION OF JANUARY 16, 1945, B-46831, 24 COMP. GEN. 528.