B-54838, JANUARY 11, 1946, 25 COMP. GEN. 532

B-54838, JANUARY 11, 1946, 25 COMP. GEN. 532

OFFICERS AND EMPLOYEES - REEMPLOYMENT DURING MILITARY TERMINAL LEAVE THE PROVISIONS OF THE ACT OF NOVEMBER 21, 1945, PERMITTING PERSONS TO ENTER OR REENTER UPON GOVERNMENT CIVILIAN EMPLOYMENT WHILE ON MILITARY TERMINAL LEAVE HAVE THE EFFECT OF AUTHORIZING REEMPLOYMENT UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, THE EXPIRATION OF MILITARY TERMINAL LEAVE. WHERE, AS PERMITTED BY THE ACT OF NOVEMBER 21, 1945, A FORMER EMPLOYEE IS TO BE REEMPLOYED UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, PRIOR TO THE EXPIRATION OF HIS MILITARY TERMINAL LEAVE, HE SHOULD BE REQUIRED TO FURNISH A STATEMENT FROM THE MILITARY ESTABLISHMENT CONCERNED SHOWING THAT HE WILL BE ENTITLED, UPON EXPIRATION OF HIS LEAVE, TO THE CERTIFICATE OF SATISFACTORY COMPLETION OF MILITARY SERVICE REQUIRED BY SAID SECTION 8; AND SUCH REEMPLOYMENT SHOULD BE MADE CONTINGENT UPON THE FURNISHING OF THE CERTIFICATE IMMEDIATELY UPON EXPIRATION OF THE PERIOD OF LEAVE. IN THE CASE OF A FORMER EMPLOYEE GRANTED MILITARY TERMINAL LEAVE, THE PERIOD OF NINETY DAYS WITHIN WHICH HE MUST MAKE APPLICATION FOR REEMPLOYMENT PURSUANT TO SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, BEGINS TO RUN FROM THE DATE THE LEAVE PERIOD EXPIRES, THAT IS, THE TIME HE OFFICIALLY IS SEPARATED OR RELEASED FROM ACTIVE DUTY, NOTWITHSTANDING THE PROVISIONS OF THE ACT OF NOVEMBER 21, 1945, PERMITTING ENTRY OR REENTRY UPON GOVERNMENT CIVILIAN EMPLOYMENT PRIOR TO EXPIRATION OF MILITARY TERMINAL LEAVE.

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR, JANUARY 11, 1946:

I HAVE YOUR LETTER OF JANUARY 3, 1946, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS WHICH HAVE ARISEN IN THE OPERATIONS OF THE FEDERAL HOME LOAN BANK ADMINISTRATION.

1. DOES SECTION 2 (A) OF THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS ADDED BY PUBLIC LAW 226, 79TH CONGRESS, APPROVED NOVEMBER 21, 1945, HAVE THE EFFECT OF PERMITTING RESTORATION UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, DURING TERMINAL LEAVE FROM THE AR FORCES, OF A PERSON WHO LEFT A POSITION (OTHER THAN A TEMPORARY POSITION) IN THE EMPLOY OF THE UNITED STATES GOVERNMENT? IF SO, HOW AND TO WHAT EXTENT ARE THE REQUIREMENTS OF SECTION 8 OF THE LATTER ACT MODIFIED, AND WHEN DOES THE PERIOD OF NINETY DAYS REFERRED TO IN SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, BEGIN TO RUN?

2. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE, IN WHAT MANNER AND ON WHAT BASIS MAY SUCH PERSON BE REEMPLOYED DURING HIS TERMINAL LEAVE? WHAT EXTENT MAY ANNUAL LEAVE AND SICK LEAVE BE RESTORED TO HIM?

3. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE AND IF SUCH PERSON IS REEMPLOYED UNDER SAID SECTION 2 (A) DURING SUCH TERMINAL LEAVE, MAY SUCH PERSON BE RESTORED UNDER SECTION 8 OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ( SELECTIVE TRAINING AND SERVICE) ACT OF 1940, AS AMENDED, (A) AT THE EXPIRATION OF HIS PERIOD OF TERMINAL LEAVE, OR (B) AFTER THE EXPIRATION OF SUCH TERMINAL LEAVE? IS IT NECESSARY THAT HE RESIGN IN ORDER TO BE RESTORED UNDER SAID SECTION 8, AND IF SO, FOR WHAT PERIOD MUST HE SO RESIGN, I.E., MAY HE RESIGN AND BE RESTORED ON THE SAME DAY OR AFTER THE LAPSE OF A NONWORK DAY OR IS IT NECESSARY THAT ONE OR MORE WORK DAYS INTERVENE BETWEEN HIS RESIGNATION AND SUCH RESTORATION?

YOUR PROMPT DECISION IN THE MATTER WILL BE GREATLY APPRECIATED, AS THE FEDERAL HOME LOAN BANK ADMINISTRATION HAS A CASE OF SUCH A PERSON WHOSE TERMINAL LEAVE FROM THE ARMED FORCES WILL BEGIN, IT IS EXPECTED ON JANUARY 8, 1946. SINCE HIS SERVICES ARE URGENTLY NEEDED, HE IS TO BE RETURNED TO DUTY WITH THE FEDERAL HOME LOAN BANK ADMINISTRATION ON JANUARY 8, 1946.

SECTION 2 (A) AND (B) OF THE ACT OF AUGUST 1, 1941 (55 STAT. 616), AS ADDED BY THE ACT OF NOVEMBER 21, 1945, PUBLIC LAW 226, 59 STAT. 584, PROVIDES:

(A) ANY PERSON, WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE PERFORMED ACTIVE SERVICE IN THE ARMED FORCES, MAY, WHILE ON TERMINAL LEAVE PENDING SEPARATION FROM OR RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDERHONORABLE CONDITION, ENTER OR REENTER EMPLOYMENT OF THE GOVERNMENT OF THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), AND, IN ADDITION TO COMPENSATION FOR SUCH EMPLOYMENT, SHALL BE ENTITLED TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF SUCH TERMINAL LEAVE AT THE SAME RATES AND TO THE SAME EXTENT AS IF HE HAD NOT ENTERED OR REENTERED SUCH EMPLOYMENT.

(B) ANY SUCH PERSON WHO, PRIOR TO THE DATE OF ENACTMENT OF THIS SECTION, ENTERED OR REENTERED SUCH EMPLOYMENT WITHOUT HAVING USED ALL ACCUMULATED AND CURRENT ACCRUED LEAVE TO WHICH HE WOULD HAVE BEEN ENTITLED AS A RESULT OF SUCH SERVICE HAD HE NOT ENTERED OR REENTERED SUCH EMPLOYMENT, SHALL, UPON APPLICATION THEREFOR FILED WITH THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, THE SECRETARY OF COMMERCE, OR THE FEDERAL SECURITY ADMINISTRATOR, THE CASE MAY BE, BE ENTITLED TO BE PAID A LUMP SUM EQUAL IN AMOUNT TO THE PAY AND ALLOWANCES TO WHICH HE WOULD HAVE BEEN ENTITLED WHILE ON TERMINAL LEAVE FOR THE UNUSED PORTION OF SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE HAD HE NOT ENTERED OR REENTERED SUCH EMPLOYMENT.

SAID STATUTE AUTHORIZES THE CONCURRENT RECEIPT OF CIVILIAN AND MILITARY PAY DURING THE PERIOD OF MILITARY TERMINAL LEAVE. PRIOR TO THE PASSAGE OF SAID ACT THERE WAS NO STATUTE WHICH AUTHORIZED DUAL COMPENSATION DURING SUCH PERIOD OF LEAVE--- THE GENERAL RULE BEING THAT A CIVILIAN STATUS AND MILITARY STATUS DURING THE SAME PERIOD OF TIME ARE INCOMPATIBLE--- AND, AS A RESULT, PERSONS WERE REQUIRED TO FORFEIT SUCH LEAVE IF THEY ENTERED OR REENTERED THE EMPLOYMENT OF THE GOVERNMENT PRIOR TO THE EXPIRATION OF THE PERIOD OF THEIR TERMINAL LEAVE. INCLUDED AMONG THE PERSONS SO ACTED ARE THOSE ENTITLED TO REEMPLOYMENT BENEFITS UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED. THE RIGHT OF REEMPLOYMENT UNDER SAID STATUTE COULD BE AND WAS, IN MANY INSTANCES, ACCELERATED BY THE EMPLOYEES THEMSELVES BY THE EXPEDIENT (HOWEVER COSTLY) OF FORFEITING THEIR MILITARY LEAVE. PUBLIC LAW 226, SUPRA, HAS THE EFFECT OF AUTHORIZING SUCH ACCELERATION WITHOUT LOSS OF MILITARY TERMINAL LEAVE.

ONE OF THE CONDITIONS WHICH MUST BE MET BY AN EMPLOYEE IN ORDER TO QUALIFY FOR REEMPLOYMENT UNDER THE SELECTIVE TRAINING AND SERVICE ACT IS THAT HE FURNISH A CERTIFICATE SHOWING THAT HE HAS SATISFACTORILY COMPLETED HIS PERIOD OF TRAINING AND SERVICE IN THE ARMED FORCES. IF REEMPLOYMENT OF AN EMPLOYEE UNDER SAID STATUTE IS EFFECTED DURING HIS MILITARY TERMINAL LEAVE, HE SHOULD BE REQUIRED TO OBTAIN A STATEMENT FROM THE MILITARY ESTABLISHMENT CONCERNED SHOWING THAT HE WILL BE ENTITLED TO A CERTIFICATE UPON THE EXPIRATION OF HIS LEAVE. SUCH EMPLOYMENT SHOULD--- UPON MEETING THE REQUIREMENTS OTHERWISE--- BE MADE CONTINGENT UPON THE EMPLOYEE'S FURNISHING SAID CERTIFICATE IMMEDIATELY UPON THE EXPIRATION OF THE PERIOD OF LEAVE.

THE SELECTIVE TRAINING AND SERVICE ACT FURTHER PROVIDES THAT APPLICATION FOR REEMPLOYMENT IS REQUIRED TO BE MADE WITHIN "NINETY DAYS AFTER HE IS RELIEVED FROM SUCH TRAINING AND SERVICE.' SINCE AN EMPLOYEE IS NOT SO "RELIEVED" UNTIL HE OFFICIALLY HAS BEEN SEPARATED OR RELEASED FROM ACTIVE DUTY, THE PERIOD OF NINETY DAYS MUST BE REGARDED AS BEGINNING TO RUN FROM THE DATE HIS PERIOD OF LEAVE EXPIRES NOTWITHSTANDING THAT PUBLIC LAW 226, SUPRA, PERMITS ENTRY OR REENTRY INTO CIVILIAN EMPLOYMENT WITH THE GOVERNMENT PRIOR TO THE EXPIRATION OF THE PERIOD OF MILITARY TERMINAL LEAVE.

THE ABOVE ANSWER TO QUESTION 1 RENDERS UNNECESSARY ANY ANSWERS TO QUESTIONS 2 AND 3.