B-56076, MAY 13, 1946, 25 COMP. GEN. 774

B-56076: May 13, 1946

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ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1. 1946: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15. AS FOLLOWS: REFERENCE IS MADE TO YOUR RULING (23 COMP. 1943 (58 (57) STAT. 587) 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. WAS REPEALED BY THE PUBLIC HEALTH SERVICE ACT APPROVED JULY 1. SECTION 212 OF THE PUBLIC HEALTH SERVICE ACT PROVIDES FOR "FULL MILITARY BENEFITS" AND "LIMITED MILITARY BENEFITS" AND FURTHER PROVIDES THAT COMMISSIONED OFFICERS "SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO ACTIVE SERVICE PERFORMED WHILE THE SERVICE IS PART OF THE MILITARY FORCES OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER OF THE PRESIDENT.'.

B-56076, MAY 13, 1946, 25 COMP. GEN. 774

OFFICERS AND EMPLOYEES - PAYMENT FOR LEAVE AFTER ACCEPTANCE OF COMMISSION IN PUBLIC HEALTH SERVICE EMPLOYEES APPOINTED AS OFFICERS IN THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS PRIOR TO THE DATE SUCH CORPS ACQUIRED CERTAIN MILITARY BENEFITS, UNDER SECTION 8 OF THE ACT OF NOVEMBER 11, 1943, AS CONTINUED IN EFFECT BY SECTION 212 OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING PAYMENT FOR ACCRUED AND ACCUMULATED ANNUAL LEAVE CONCURRENTLY WITH THE RECEIPT OF MILITARY, ETC., PAY, IRRESPECTIVE OF THE FACT THAT EXECUTIVE ORDER NO. 9575, ISSUED PURSUANT TO SECTION 216 OF SAID 1944 ACT, CONSTITUTED SUCH CORPS A BRANCH OF THE ARMED FORCES "DURING THE PERIOD OF THE PRESENT WAR.'

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, MAY 13, 1946:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1946, AS FOLLOWS:

REFERENCE IS MADE TO YOUR RULING (23 COMP. GEN. 465) THAT A CIVILIAN EMPLOYEE OCCUPYING A PERMANENT POSITION WHO ACCEPTS A COMMISSION IN THE PUBLIC HEALTH SERVICE ON AND AFTER THE EFFECTIVE DATE OF THE ACT OF NOVEMBER 11, 1943 (58 (57) STAT. 587) WITHOUT BREAK IN SERVICE IS ENTITLED UNDER THE ACT OF AUGUST 1, 1941 (55 STAT. 616), 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.

THE ACT OF NOVEMBER 11, 1943, WAS REPEALED BY THE PUBLIC HEALTH SERVICE ACT APPROVED JULY 1, 1944 (58 STAT. 682). SECTION 212 OF THE PUBLIC HEALTH SERVICE ACT PROVIDES FOR "FULL MILITARY BENEFITS" AND "LIMITED MILITARY BENEFITS" AND FURTHER PROVIDES THAT COMMISSIONED OFFICERS "SHALL BE ENTITLED TO FULL MILITARY BENEFITS WITH RESPECT TO ACTIVE SERVICE PERFORMED WHILE THE SERVICE IS PART OF THE MILITARY FORCES OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER OF THE PRESIDENT.' SECTION 216 OF THE PUBLIC HEALTH SERVICE ACT PROVIDES THAT IN TIME OF WAR OR OF EMERGENCY PROCLAIMED BY THE RESIDENT HE SHALL UTILIZE THE SERVICE TO SUCH EXTENT AND IN SUCH MANNER AS IN HIS JUDGMENT SHALL PROMOTE THE PUBLIC INTEREST AND IN TIME OF WAR HE MAY DECLARE THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE.

THE PRESIDENT IN EXECUTIVE ORDER 9575 APPROVED JUNE 21, 1944 (1945), EFFECTIVE JULY 29, 1944 (1945,) DECLARED THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE DURING THE PRESENT WAR.

THE ACT OF AUGUST 1, 1941, AS AMENDED, IS ITSELF RETROACTIVE APPLYING TO ALL "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.' AT THE TIME OF YOUR DECISION THE EXECUTIVE ORDER REFERRED TO HAD NOT BEEN ISSUED. BY VIRTUE OF THAT EXECUTIVE ORDER THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE BECAME A MILITARY SERVICE. THUS ALTHOUGH UNTIL THE EFFECTIVE DATE OF THE ORDER THE MILITARY CHARACTER OF THE SERVICE WAS MERELY POTENTIAL, THERE WAS AT NO TIME A BREAK IN SERVICE BETWEEN THE INDIVIDUAL'S CIVILIAN STATUS AND HIS COMMISSIONED CIVILIAN OR MILITARY STATUS.

IN VIEW OF THE FACT THAT THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE IS NOW AND HAS BEEN SINCE JULY 29, 1944 (1945), A MILITARY SERVICE, I WISH TO REQUEST THAT YOU ADVISE WHETHER EMPLOYEES DESIGNATED BY THE ACT OF AUGUST 1, 1941, AS AMENDED, WHO ACCEPTED COMMISSIONS IN THE PUBLIC HEALTH SERVICE WITHOUT BREAK IN SERVICE ON OR AFTER DECEMBER 8, 1941, AND WHO WERE ON ACTIVE DUTY JULY 29, 1944 (1945), ARE ENTITLED TO BE PAID OR TO ELECT TO KEEP ACCUMULATED LEAVE AS AUTHORIZED IN THE ACT OF AUGUST 1, 1941, AS AMENDED.

IN ADDITION A RULING IS REQUESTED WHETHER EMPLOYEES DESIGNATED BY THE ACT OF AUGUST 1, 1941, AS AMENDED, WHO ACCEPTED COMMISSIONS IN THE PUBLIC HEALTH SERVICE, WITHOUT BREAK IN SERVICE ON OR AFTER MAY 2, 1940, AND WHO WERE DETAILED TO ACTIVE SERVICE WITH THE ARMY, NAVY, OR COAST GUARD BUT WERE NOT IN ACTIVE SERVICE AT THE TIME OF THE EFFECTIVE DATE OF THE EXECUTIVE ORDER REFERRED TO ARE ENTITLED TO PAY FOR ANNUAL LEAVE OR TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT AS PROVIDED IN THE ACT OF AUGUST 1, 1941, AS AMENDED.

THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202 (55 STAT. 616), AS AMENDED 56 STAT. 200, 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. UNDER THOSE PROVISIONS OF THE STATUTE AN EMPLOYEE WHO ENTERED UPON ACTIVE SERVICE IN THE LAND OR NAVAL FORCES SUBSEQUENT TO MAY 1, 1940, IS ENTITLED TO BE PAID FOR HIS ACCUMULATED AND CURRENT ACCRUED LEAVE ONLY IN THE CIVILIAN POSITION ACTUALLY HELD IMMEDIATELY PRIOR TO HIS ENTRY INTO ACTIVE DUTY WITH THE ARMED FORCES. SEE 21 COMP. GEN. 742. HENCE, THE PUBLIC HEALTH SERVICE ESSENTIALLY BEING A CIVILIAN ORGANIZATION AND NOT A MILITARY ORGANIZATION (24 COMP. GEN. 809), UNLESS OTHERWISE SPECIFICALLY PROVIDED BY STATUTE OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, CIVILIAN EMPLOYEES WHO ACCEPTED COMMISSIONS IN SUCH SERVICE PRIOR TO NOVEMBER 11, 1943--- THE EFFECTIVE DATE OF PUBLIC LAW 184 (57 STAT. 587, 589/--- ARE NOT ENTITLED TO THE RIGHT OR BENEFIT PROVIDED BY THE ACT OF AUGUST 1, 1941, SUPRA. SEE DECISION OF AUGUST 24, 1944, B-43819.

IT WAS HELD IN THE DECISION OF DECEMBER 28, 1943, B-38859, 23 COMP. GEN. 465, REFERRED TO IN YOUR LETTER, THAT A CIVILIAN EMPLOYEE WHO WAS COMMISSIONED IN THE PUBLIC HEALTH SERVICE ON OR AFTER NOVEMBER 11, 1943, IS ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, AND THAT SUCH RIGHT VESTS BY OPERATION OF (SECTION 8B OF) THE ACT OF NOVEMBER 11, 1943, SUPRA, WHICH CONFERRED CERTAIN MILITARY BENEFITS UPON THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE. ALTHOUGH THE SAID ACT OF NOVEMBER 11, 1943, WAS REPEALED BY THE ACT OF JULY 1, 1944, PUBLIC LAW 410 (58 STAT. 682), THE PROVISIONS RELATING TO MILITARY BENEFITS WERE CONTINUED IN SECTION 212 OF THE LATTER ACT, 58 STAT. 689, AND ALL RIGHTS ACCRUING AND ACCRUED UNDER THE REPEALED ACT BEFORE ITS REPEAL WERE SAVED BY SECTION 612 OF THE SAID ACT OF JULY 1, 1944, 58 STAT. 720.

IN VIEW OF THE FOREGOING, AN EMPLOYEE WHO ACCEPTS A COMMISSION IN THE PUBLIC HEALTH SERVICE IS NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, PRIOR TO NOVEMBER 11, 1943, UNLESS SUCH RIGHT COULD ACCRUE PURSUANT TO SECTION 216 OF THE ACT OF JULY 1, 1944, SUPRA, 58 STAT. 690, WHICH PROVIDES AS FOLLOWS:

IN TIME OF WAR, OR OF EMERGENCY PROCLAIMED BY THE PRESIDENT, HE MAY UTILIZE THE SERVICE TO SUCH EXTENT AND IN SUCH MANNER AS SHALL IN HIS JUDGMENT PROMOTE THE PUBLIC INTEREST, AND IN TIME OF WAR HE MAY BY EXECUTIVE ORDER DECLARE THE COMMISSIONED CORPS OF THE SERVICE TO BE A MILITARY SERVICE. UPON SUCH DECLARATION, AND DURING THE PERIOD OF SUCH WAR OR SUCH PART THEREOF AS THE PRESIDENT SHALL PRESCRIBE, THE COMMISSIONED CORPS (1) SHALL CONSTITUTE A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES, AND (2) TO THE EXTENT PRESCRIBED BY REGULATIONS OF THE PRESIDENT, SHALL BE SUBJECT TO THE ARTICLES OF WAR AND TO THE ARTICLES FOR THE GOVERNMENT OF THE NAVY: PROVIDED, THAT DURING SUCH PERIOD OR PART THEREOF THE COMMISSIONED CORPS SHALL CONTINUE TO OPERATE AS PART OF THE SERVICE EXCEPT TO THE EXTENT THAT THE PRESIDENT MAY DIRECT AS COMMANDER IN CHIEF.

EXECUTIVE ORDER 9575, APPROVED JUNE 21, 1945, EFFECTIVE JULY 29, 1945, ISSUED PURSUANT TO THE ABOVE-QUOTED ACT, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 216 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, 58 STAT. 691; TITLE I OF THE FIRST WAR POWERS ACT APPROVED DECEMBER 1, 1941, 55 STAT. 838; AND AS PRESIDENT OF THE UNITED STATES AND COMMANDER IN CHIEF, I HEREBY DECLARE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE AND A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES DURING THE PERIOD OF THE PRESENT WAR. THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE DURING SUCH PERIOD SHALL BE SUBJECT TO THE ARTICLES FOR THE GOVERNMENT OF THE NAVY TO THE EXTENT PRESCRIBED IN THE FOLLOWING REGULATIONS:

THERE IS NO DOUBT THAT FROM THE EFFECTIVE DATE OF EXECUTIVE ORDER 9575, SUPRA ( JULY 29, 1945), TO THE END OF THE PRESENT WAR, THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE IS A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES AND AS SUCH THE PERSONNEL THEREOF ARE WITHIN THE PURVIEW OF THE ACT OF AUGUST 1, 1941, AS AMENDED. HOWEVER, THERE IS FOR CONSIDERATION IN THAT CONNECTION WHETHER THE SAID EXECUTIVE ORDER 9575 HAS RETROACTIVE EFFECT IN VIEW OF THE WORDS ,DURING THE PERIOD OF THE PRESENT WAR" WHICH ARE CONTAINED THEREIN. THE SCOPE OF AN EXECUTIVE ORDER NECESSARILY IS LIMITED BY THE STATUTE WHICH AUTHORIZES ITS ISSUANCE, AND A STATUTE MUST BE REGARDED AS EFFECTIVE ON THE DATE OF ITS APPROVAL UNLESS A RETROACTIVE CONSTRUCTION IS REQUIRED BY EXPRESS LANGUAGE OR NECESSARY IMPLICATION. SEE 16 COMP. GEN. 1051, AND CASES CITED THEREIN. WITH REGARD TO THE ACT IN QUESTION (SECTION 216 OF THE ACT OF JULY 1, 1944, SUPRA,) IT IS PROVIDED THAT IN TIME OF WAR THE PRESIDENT MAY BY EXECUTIVE ORDER DECLARE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE AND " UPON SUCH DECLARATION, AND DURING SUCH PERIOD OF SUCH WAR OR SUCH PART THEREOF AS THE PRESIDENT SHALL PRESCRIBE, THE COMMISSIONED CORPS (1) SHALL CONSTITUTE A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES.' NO SPECIFIC REFERENCE IS MADE IN THE SAID SECTION TO THE PRESENT WAR; NEITHER FROM THE LANGUAGE USED CAN IT REASONABLY BE IMPLIED THAT THE AUTHORITY CONFERRED THEREBY WAS TO BE EFFECTIVE RETROACTIVELY TO THE BEGINNING OF THE PRESENT WAR. ACCORDINGLY, EVEN IF THE WORDS "DURING THE PERIOD OF THE PRESENT WAR" AS USED IN THE EXECUTIVE ORDER HAD BEEN INTENDED TO EMBRACE THE ENTIRE PERIOD OF SUCH WAR FROM ITS BEGINNING DATE, THE RIGHTS AND/OR LIABILITIES CREATED BY THE SAID EXECUTIVE ORDER COULD HAVE NO LEGAL EFFECT PRIOR TO THE EFFECTIVE DATE OF THE STATUTE FROM WHICH THE PRESIDENT DERIVED HIS AUTHORITY. SEE 22 COMP. GEN. 548 (PARTICULARLY THE PARAGRAPH BEGINNING AT THE FOOT OF PAGE 554; AND COMPARE DECISION OF MARCH 14, 1942, B 23405).

THEREFORE, IRRESPECTIVE OF THE FACT THAT THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE BECAME A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES ON JULY 29, 1945, IT MUST BE CONCLUDED THAT EMPLOYEES WHO ACCEPTED COMMISSIONS THEREIN PRIOR TO NOVEMBER 11, 1943, ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED. THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.

THE RIGHT OF AN EMPLOYEE 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, AS PROVIDED BY THE ACT OF AUGUST 1, 1941, AS AMENDED, VESTS ONLY BECAUSE AN EMPLOYEE ENTERS UPON ACTIVE MILITARY OR NAVAL SERVICE. HENCE, FOR REASONS HEREINBEFORE ADVANCED, MEMBERS OF THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE DID NOT BECOME ENTITLED TO MILITARY OR NAVAL BENEFITS WITHIN THE PURVIEW OF THE ACT OF AUGUST 1, 1941, UNTIL NOVEMBER 11, 1943, AND THE FACT THAT OFFICERS OF THE CORPS MAY HAVE BEEN DETAILED TO ACTIVE SERVICE WITH THE MILITARY OR NAVAL FORCES WOULD NOT OPERATE TO ESTABLISH SUCH RIGHT PRIOR TO THAT DATE. THE QUESTION PRESENTED IN THE LAST PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.