B-56625, MARCH 28, 1946, 25 COMP. GEN. 677

B-56625: Mar 28, 1946

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ARE APPLICABLE TO OFFICERS ON THE RETIRED LIST OF THE REGULAR ARMY WHO ACCEPT CIVILIAN EMPLOYMENT WHILE ON TERMINAL LEAVE INCIDENT TO PERIODS OF ACTIVE DUTY AS RETIRED OFFICERS. THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER DATED FEBRUARY 27. ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $308.93 COVERING ACTIVE DUTY PAY AND ALLOWANCES IN FAVOR OF BRIGADIER GENERAL LEHMAN W. ATTACHED TO THIS VOUCHER IS A LETTER ADDRESSED TO THIS OFFICE DATED THE 14TH OF FEBRUARY 1946. HE STATED THAT THIS IS A TEMPORARY APPOINTMENT. THE RECORDS FURTHER SHOW THAT GENERAL MILLER IS ASSIGNED TO ACTIVE DUTY AND WAS ON TERMINAL LEAVE FOR THE PERIOD OF THE VOUCHER. 2. THE OFFICER HAS PERSONALLY STATED TO THIS OFFICE THAT IT WAS HIS VIEW THAT HE COULD ACCEPT THIS APPOINTMENT UNDER THE ACT OF 21 NOVEMBER 1945 ( PUBLIC LAW 226.

B-56625, MARCH 28, 1946, 25 COMP. GEN. 677

OFFICERS AND EMPLOYEES - REEMPLOYMENT DURING MILITARY TERMINAL LEAVE THE PROVISIONS OF THE ACT OF NOVEMBER 21, 1945, PERMITTING "ANY PERSON" TO ENTER OR REENTER EMPLOYMENT IN THE FEDERAL GOVERNMENT WHILE ON MILITARY TERMINAL LEAVE AND CONCURRENTLY TO RECEIVE CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES, ARE APPLICABLE TO OFFICERS ON THE RETIRED LIST OF THE REGULAR ARMY WHO ACCEPT CIVILIAN EMPLOYMENT WHILE ON TERMINAL LEAVE INCIDENT TO PERIODS OF ACTIVE DUTY AS RETIRED OFFICERS. FOR PURPOSES OF CONCURRENT PAYMENT OF MILITARY PAY AND ALLOWANCES AND CIVILIAN COMPENSATION DURING A PERIOD OF MILITARY TERMINAL LEAVE, THE PROVISIONS OF THE ACT OF NOVEMBER 21, 1945, PERMITTING "ANY PERSON" TO ENTER OR REENTER EMPLOYMENT IN THE FEDERAL GOVERNMENT WHILE ON SUCH TERMINAL LEAVE, SUPERSEDE THE PROVISIONS OF SECTION 1222, REVISED STATUTES, THAT THE COMMISSION OF AN "OFFICER OF THE ARMY ON THE ACTIVE LIST" SHALL BE VACATED UPON THE ACCEPTANCE OF A CIVIL OFFICE, AS WELL AS THE DUAL COMPENSATION STATUTES AND ANY OTHER LAW TO THE CONTRARY, AND EXTEND TO MEMBERS OF THE REGULAR ARMY AS WELL AS TO MEMBERS OF OTHER COMPONENTS OF THE ARMED FORCES.

ASSISTANT COMPTROLLER GENERAL YATES TO COL. CARL WITCHER, U.S. ARMY, MARCH 28, 1946:

BY ENDORSEMENT OF MARCH 20, 1946, OF THE CHIEF OF FINANCE, ARMY SERVICE FORCES, THERE WAS TRANSMITTED TO THIS OFFICE YOUR LETTER DATED FEBRUARY 27, 1946, AS FOLLOWS:

1. ATTACHED HERETO IS A VOUCHER IN THE AMOUNT OF $308.93 COVERING ACTIVE DUTY PAY AND ALLOWANCES IN FAVOR OF BRIGADIER GENERAL LEHMAN W. MILLER, U.S.A. RETIRED, 1-3773, FOR THE PERIOD 14 FEBRUARY 1946 TO 27 FEBRUARY 1946, WHICH HAS BEEN PRESENTED TO THE UNDERSIGNED, A DISBURSING OFFICER, FOR PAYMENT. ATTACHED TO THIS VOUCHER IS A LETTER ADDRESSED TO THIS OFFICE DATED THE 14TH OF FEBRUARY 1946, SIGNED BY GENERAL MILLER STATING THAT HE ACCEPTED A CIVIL SERVICE APPOINTMENT WITH THE STATE DEPARTMENT AS FIELD COMMISSIONER FOR EASTERN SOUTH AMERICA, BRAZIL. HE STATED THAT THIS IS A TEMPORARY APPOINTMENT. THE RECORDS FURTHER SHOW THAT GENERAL MILLER IS ASSIGNED TO ACTIVE DUTY AND WAS ON TERMINAL LEAVE FOR THE PERIOD OF THE VOUCHER.

2. THE OFFICER HAS PERSONALLY STATED TO THIS OFFICE THAT IT WAS HIS VIEW THAT HE COULD ACCEPT THIS APPOINTMENT UNDER THE ACT OF 21 NOVEMBER 1945 ( PUBLIC LAW 226, TERMINAL LEAVE ACT). THIS OFFICER IS A REGULAR ARMY OFFICER AND WAS RETIRED 31 AUGUST 1944 AND RECALLED TO ACTIVE DUTY 1 SEPTEMBER 1944. THE UNDERSIGNED IS IN DOUBT AS TO WHETHER A REGULAR ARMY OFFICER ON ACTIVE DUTY ON TERMINAL LEAVE COMES WITHIN THE ACT OF 21 NOVEMBER 1945, AND IT IS REQUESTED THAT THE VOUCHER AND SUPPORTING PAPERS BE FORWARDED TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION.

PUBLIC LAW 226, APPROVED NOVEMBER 21, 1945, 59 STAT. 584, REFERRED TO IN YOUR LETTER, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THE ACT ENTITLED "AN ACT MAKING PROVISIONS FOR PAYMENT OF EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE WHEN ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES," APPROVED AUGUST 1, 1941, AS AMENDED APRIL 7, 1947 (56 STAT. 200), IS FURTHER AMENDED BY ADDING AT THE END THEREOF A NEW SECTION AS FOLLOWS:

SEC. 2. (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 UNDER HONORABLE CONDITIONS, 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 THE 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.

THE QUOTED STATUTORY PROVISION EXPRESSLY PROVIDES, INTER ALIA, THAT "ANY PERSON" WHO SUBSEQUENT TO MAY 1, 1940, SHALL HAVE PERFORMED ACTIVE SERVICE IN THE ARMED FORCES, MAY, WHILE ON TERMINAL LEAVE PENDING RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDER HONORABLE CONDITIONS, ENTER OR REENTER EMPLOYMENT IN THE FEDERAL GOVERNMENT 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.' THE LANGUAGE CONTAINED IN THE SAID STATUTE IS CLEAR AND UNAMBIGUOUS AND PLAINLY WOULD SEEM TO AUTHORIZE THE PAYMENT TO BRIGADIER GENERAL MILLER OF HIS ACTIVE DUTY PAY AND ALLOWANCES AS AN OFFICER OF THE ARMY FOR THE UNEXPIRED PORTION OF HIS TERMINAL LEAVE IRRESPECTIVE OF HIS ACCEPTANCE OF CIVILIAN EMPLOYMENT IN THE STATE DEPARTMENT WHILE ON SUCH LEAVE. HOWEVER, IT APPEARS FROM THE SAID ENDORSEMENT OF THE CHIEF OF FINANCE THAT SOME DOUBT IN THE MATTER HAS ARISEN BY VIRTUE OF THE PROVISIONS OF SECTION 1222, REVISED STATUTES, WHICH READ AS FOLLOWS:

SEC. 1222. NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.

THE QUOTED STATUTORY PROVISION IS APPLICABLE ONLY TO OFFICERS ON THE ACTIVE LIST OF THE REGULAR ARMY. SEE 25 COMP. GEN. 203, AND OPINIONS OF THE ATTORNEY GENERAL CITED THEREIN. SINCE BRIGADIER GENERAL MILLER WAS AN OFFICER ON THE RETIRED LIST, NOT THE ACTIVE LIST, OF THE REGULAR ARMY AT THE TIME OF HIS ACCEPTANCE OF THE CIVILIAN POSITION IN THE STATE DEPARTMENT--- ALTHOUGH ON TERMINAL LEAVE INCIDENT TO A PERIOD OF ACTIVE DUTY AS A RETIRED OFFICER--- IT SEEMS EVIDENT THAT HE WAS NOT SUBJECT TO THE SAID PROVISIONS OF SECTION 1222. MOREOVER, AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID ACT OF NOVEMBER 21, 1945, DISCLOSES THAT THE PROVISIONS OF SECTION 1222, ALONG WITH THE VARIOUS STATUTES PROHIBITING DUAL EMPLOYMENT AND THE RECEIPT OF DOUBLE COMPENSATION, WERE PARTICULARLY BROUGHT TO THE ATTENTION OF THE CONGRESSIONAL COMMITTEES CONSIDERING THE PROPOSED LEGISLATION. AND THAT IT WAS THE INTENT OF THE CONGRESS TO AUTHORIZE THE BENEFITS PROVIDED BY THE SAID 1945 STATUTE NOTWITHSTANDING THE PROVISIONS OF SUCH LAWS, INCLUDING SECTION 1222, REVISED STATUTES, CLEARLY APPEARS FROM HOUSE REPORT NO. 1163, ACCOMPANYING S. 1036 (WHICH, AS AMENDED BY THE HOUSE OF REPRESENTATIVES, BECAME THE ACT OF NOVEMBER 21, 1945,) WHEREIN SPECIFIC MENTION IS MADE OF SECTION 1222, REVISED STATUTES, AS WELL AS THE DUAL EMPLOYMENT AND DUAL COMPENSATION STATUTES, AS CONSTITUTING EXISTING LEGISLATION THE PROVISIONS OF WHICH WERE INTENDED TO BE AVOIDED BY ENACTMENT OF THE BILL. HENCE, IT IS CONCLUDED THAT IN ENACTING THE SAID ACT OF NOVEMBER 21, 1945, THE CONGRESS INTENDED THAT FOR THE PERIOD OF TERMINAL LEAVE FROM THE ARMED FORCES SUCH STATUTE WOULD SUPERSEDE THE PROVISIONS OF SECTION 1222, REVISED STATUTES, AS WELL AS THE DUAL COMPENSATION STATUTES AND ANY OTHER LAW TO THE CONTRARY, AND THAT THE BENEFITS OF THE STATUTE WERE TO EXTEND TO MEMBERS OF THE REGULAR ARMY AS WELL AS TO MEMBERS OF OTHER COMPONENTS OF THE ARMED FORCES. ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, IF OTHERWISE CORRECT, IS AUTHORIZED.