B-59061, AUGUST 7, 1946, 26 COMP. GEN. 94

B-59061, AUGUST 7, 1946, 26 COMP. GEN. 94

RESERVE OFFICERS OF PUBLIC HEALTH SERVICE - TERMINAL LEAVE PAYMENT SUBSEQUENT TO SEPARATION FROM SERVICE WHERE RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE COMMISSIONED CORPS WERE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT RECEIVING THE BENEFIT OF THEIR ACCUMULATED LEAVE IN ORDER THAT THEY MIGHT BE RELEASED FROM ACTIVE DUTY PRIOR TO THE EFFECTIVE DATE ( JULY 29, 1945) OF EXECUTIVE ORDER NO. 9575, CONSTITUTING SUCH CORPS A BRANCH OF THE ARMED FORCES, THE OFFICERS' RIGHT TO PAY AND ALLOWANCES CEASED ON THE DATE OF TERMINATION AND THERE IS NO AUTHORITY WHEREBY PAYMENT NOW MAY BE MADE FOR LEAVE WHICH WAS NOT GRANTED WHILE THEY WERE IN AN ACTIVE DUTY STATUS.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, AUGUST 7, 1946:

REFERENCE IS MADE TO YOUR LETTER OF JULY 3, 1946, AS FOLLOWS:

ON JUNE 21, 1945, THE PRESIDENT ISSUED EXECUTIVE ORDER 9575, DECLARING THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A MILITARY SERVICE AND PRESCRIBING REGULATIONS THEREFOR, UNDER THE AUTHORITY VESTED IN HIM BY SECTION 216 OF THE PUBLIC HEALTH SERVICE ACT, APPROVED JULY 1, 1944, 58 STAT. 691. THE ORDER PROVIDED THAT IT SHOULD BE EFFECTIVE ON AND AFTER THE 30TH DAY FOLLOWING THE DATE OF ITS PUBLICATION IN THE FEDERAL REGISTER. THE ORDER WAS PUBLISHED IN THE FEDERAL REGISTER ON JUNE 29, 1945, WITH ITS EFFECTIVE DATE TO BE JULY 29, 1945.

DURING THE THIRTY-DAY PERIOD, A NUMBER OF RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE, THEN ON ACTIVE DUTY, TENDERED THEIR RESIGNATIONS, IN SOME CASES WITH SPECIFIC REQUEST FOR IMMEDIATE ACCEPTANCE, IN ORDER THAT THEY MIGHT NOT COME UNDER THE PROVISIONS OF THE ORDER AND THEREBY BE IN MILITARY SERVICE. THESE RESIGNATIONS WERE ACCEPTED BEFORE JULY 29, 1945. THE 1931 REGULATIONS FOR THE GOVERNMENT OF THE UNITED STATES PUBLIC HEALTH SERVICE, THEN IN EFFECT, PROVIDED FOR THE ACCUMULATION OF LEAVE, BUT MADE ITS ALLOWANCE DISCRETIONARY. IT HAD BEEN THE PRACTICE OF THE PUBLIC HEALTH SERVICE, BEFORE THE ISSUANCE OF THE ORDER, TO ALLOW SUCH OFFICERS TO EXHAUST THEIR LEAVE BEFORE SEPARATION FROM THE SERVICE EITHER BY RESIGNATION OR TERMINATION OF THEIR COMMISSIONS. HOWEVER, HAD THESE OFFICERS BEEN PERMITTED TO EXHAUST THEIR ACCUMULATED LEAVE, SUCH LEAVE WOULD HAVE CONTINUED THEM IN THE SERVICE BEYOND THE EFFECTIVE DATE OF THE ORDER, AND THEY WOULD HAVE BEEN SUBJECT TO ITS PROVISIONS. SINCE THIS WAS PRECISELY THE SITUATION SOUGHT TO BE AVOIDED BY THE RESIGNATIONS, THE OFFICERS WERE NOT PLACED ON TERMINAL LEAVE. THERE WAS NO PROVISION OF LAW IN EFFECT AT THAT DATE UNDER WHICH THE PUBLIC HEALTH SERVICE COULD MAKE A LUMP-SUM PAYMENT TO OFFICERS UPON RESIGNATION.

A NUMBER OF THE OFFICERS WHO RESIGNED REENTERED GOVERNMENT SERVICE AND OTHERS ENTERED PRIVATE OCCUPATIONS. APPLICATIONS HAVE NOW BEEN RECEIVED FOR PAYMENT UNDER PUBLIC LAW 226, 79TH CONGRESS, APPROVED NOVEMBER 21, 1945. THIS STATUTE, ENTITLED "AN ACT TO PROVIDE FOR THE ADJUSTMENT OF THE COMPENSATION OF CERTAIN MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO, BEFORE THE EXPIRATION OF THEIR TERMINAL LEAVE, HAVE PERFORMED, OR SHALL HEREAFTER PERFORM, CIVILIAN SERVICE FOR THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES" DEFINES "ARMED FORCES" TO INCLUDE THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE.

YOUR ADVICE IS REQUESTED WITH RESPECT TO THE FOLLOWING QUESTIONS:

"1. DOES THE PUBLIC HEALTH SERVICE HAVE THE AUTHORITY, UPON APPLICATION FILED WITH THE FEDERAL SECURITY ADMINISTRATOR, TO PAY A LUMP-SUM FOR ANNUAL LEAVE TO A COMMISSIONED OFFICER OF THE PUBLIC HEALTH SERVICE WHO RESIGNED BEFORE THE EFFECTIVE DATE OF EXECUTIVE ORDER 9575 WITHOUT BEING PLACED ON TERMINAL LEAVE, AND WHO ENTERED CIVILIAN GOVERNMENT SERVICE DURING THE PERIOD FOR WHICH HE MIGHT HAVE BEEN PLACED ON LEAVE SAVE FOR THE CIRCUMSTANCES INDICATED?

"2. DOES THE PUBLIC HEALTH SERVICE HAVE THE AUTHORITY TO PAY A COMMISSIONED OFFICER FOR ACCUMULATED ANNUAL LEAVE, WHO RESIGNED BEFORE THE EFFECTIVE DATE OF EXECUTIVE ORDER 9575, WITHOUT BEING PLACED ON TERMINAL LEAVE, AND WHO DID NOT ENTER GOVERNMENT SERVICE WITHIN THE PERIOD INDICATED? IF SO, HOW IS SUCH PAYMENT TO BE EFFECTUATED?

EXECUTIVE ORDER 9575, EFFECTIVE JULY 29, 1945, ISSUED PURSUANT TO THE ACT OF JULY 1, 1944, 58 STAT. 690, 691, DECLARED THE COMMISSIONED CORPS OF THE PUBLIC HEALTH SERVICE TO BE A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES AND STIPULATED THAT THE ORDER SHOULD BE EFFECTIVE ON AND AFTER THE 30TH DAY FOLLOWING THE DATE OF ITS PUBLICATION IN THE FEDERAL REGISTER. FROM THE FACTS PRESENTED IN YOUR LETTER, IT APPEARS THAT DURING THE 30-DAY PERIOD PRECEDING THE EFFECTIVE DATE OF THE SAID ORDER, A NUMBER OF RESERVE OFFICERS OF THE PUBLIC HEALTH SERVICE TENDERED THEIR RESIGNATIONS AND REQUESTED IMMEDIATE ACCEPTANCE THEREOF IN ORDER THAT THEY MIGHT NOT BE SUBJECT TO THE PROVISIONS OF THE EXECUTIVE ORDER. CONFORMANCE WITH THE TERMS OF THE RESIGNATIONS, IT APPEARS THAT THESE OFFICERS WERE SEPARATED FROM THE SERVICE WITHOUT RECEIVING THE BENEFIT OF THEIR ACCUMULATED LEAVE FOR THE REASON THAT HAD THEIR LEAVE BEEN ALLOWED BEFORE SEPARATION SUCH LEAVE WOULD HAVE CONTINUED THEM IN THE SERVICE BEYOND THE EFFECTIVE DATE OF THE SAID ORDER AND WOULD HAVE SUBJECTED THEM TO THE PROVISIONS THEREOF. IT IS STATED IN YOUR LETTER THAT THE OFFICERS INVOLVED NOW HAVE REQUESTED PAYMENT FOR THEIR LEAVE UNDER THE ACT OF NOVEMBER 21, 1945, PUBLIC LAW 226 (59 STAT. 584), WHICH PROVIDES, IN PERTINENT PART, THAT A PERSON WHILE ON TERMINAL LEAVE PENDING SEPARATION OR RELEASE FROM ACTIVE DUTY FROM THE ARMED FORCES--- SPECIFICALLY DEFINED BY THE ACT AS INCLUDING COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE --- MAY BE PAID COMPENSATION FOR SERVICES RENDERED AS AN EMPLOYEE OF THE FEDERAL GOVERNMENT, ET CETERA, CONCURRENTLY WITH PAYMENT FOR SUCH LEAVE OR MAY RECEIVE A LUMP-SUM PAYMENT FOR TERMINAL LEAVE TO WHICH HE WOULD HAVE BEEN ENTITLED AS A RESULT OF SUCH SERVICE HAD HE NOT ENTERED OR REENTERED CIVILIAN EMPLOYMENT.

THE PURPOSE OF THE ABOVE-CITED ACT WAS NOT TO AUTHORIZE THE GRANTING OF TERMINAL LEAVE RESULTING FROM ACTIVE SERVICE IN THE ARMED FORCES, BUT WAS INTENDED MERELY TO EXCEPT THE PAYMENT THEREOF FROM THE DOUBLE COMPENSATION RESTRICTIONS WHICH THERETOFORE PRECLUDED ITS PAYMENT CONCURRENTLY WITH THE RECEIPT OF COMPENSATION FOR CIVILIAN EMPLOYMENT. ACCORDINGLY, THE SAID ACT IS NOT FOR APPLICATION IN THE INSTANT CASE AND IF THE OFFICERS REFERRED TO ARE ENTITLED TO PAYMENT OF TERMINAL LEAVE, SUCH RIGHT MUST BE DETERMINED UNDER THE LAWS AND REGULATIONS WHICH AUTHORIZE THE ALLOWANCE OF LEAVE TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. IN THAT CONNECTION, SECTION 9 OF THE ACT OF APRIL 9, 1930, 46 STAT. 151, PROVIDES:

HEREAFTER COMMISSIONED OFFICERS OF THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, AFTER EXAMINATION UNDER REGULATIONS APPROVED BY THE PRESIDENT, SHALL BE PROMOTED ACCORDING TO THE SAME LENGTH OF SERVICE AND SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE NOW OR MAY HEREAFTER BE AUTHORIZED FOR OFFICERS OF CORRESPONDING GRADES OF THE MEDICAL CORPS OF THE ARMY, EXCEPT THAT * * *.

THE LEAVE AUTHORIZED TO BE GRANTED TO COMMISSIONED OFFICERS OF THE ARMY IS PROVIDED FOR IN 10 U.S.C. 841-842, AND THE PROVISIONS THEREOF ARE IDENTICAL IN ALL MATERIAL RESPECTS WITH THE U.S. PUBLIC HEALTH SERVICE REGULATIONS OF 1931, PROMULGATED UNDER THE ACTS OF FEBRUARY 19, 1897, 29 STAT. 554, AND JULY 29, 1876, 19 STAT. 102, WHICH ARE IN PERTINENT PART AS FOLLOWS:

226. COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE ON DUTY SHALL BE ALLOWED, IN THE DISCRETION OF THE SECRETARY OF THE TREASURY, 60 DAYS' LEAVE OF ABSENCE WITHOUT DEDUCTION OF PAY OR ALLOWANCE: PROVIDED, THAT THE SAME BE TAKEN ONCE IN TWO YEARS: AND PROVIDED FURTHER, THAT THE LEAVE OF ABSENCE MAY BE EXTENDED TO THREE MONTHS IF TAKEN ONLY ONCE IN THREE YEARS, OR FOUR MONTHS IF TAKEN ONLY ONCE IN FOUR YEARS.

INASMUCH AS THE ASSIMILATION OF PAY AND ALLOWANCES OF PUBLIC HEALTH SERVICE OFFICERS WITH THOSE OF ARMY MEDICAL CORPS OFFICERS CARRIES WITH IT THE RESTRICTIONS AND LIMITATIONS DIRECTLY APPLICABLE TO PAY AND ALLOWANCES OF THE LATTER SERVICE (20 COMP. GEN. 885), SECTION 37 (A) OF THE NATIONAL DEFENSE ACT, 10 U.S.C. 361, PROVIDING THAT "A RESERVE OFFICER SHALL NOT BE ENTITLED TO PAY AND ALLOWANCES EXCEPT WHEN ON ACTIVE DUTY," APPLIES IN LIKE MANNER TO OFFICERS OF BOTH SERVICES. ACCORDINGLY, THE LEAVE OF ABSENCE WHICH MAY BE GRANTED IN THE DISCRETION OF THE SECRETARY OF THE TREASURY--- NOW THE FEDERAL SECURITY ADMINISTRATOR--- IS PERMISSION TO BE ABSENT FROM DUTY AND NECESSARILY APPLIES ONLY TO OFFICERS ON ACTIVE DUTY. WHEN A RESERVE OFFICER IS RELIEVED FROM ACTIVE DUTY, ANY RIGHTS, BENEFITS, OR PRIVILEGES TO WHICH HE MAY HAVE BEEN ENTITLED UNDER THE ABOVE-CITED LEAVE LAWS TERMINATE UPON HIS RELEASE. THEREFORE, SINCE THE SERVICES OF THE OFFICERS REFERRED TO IN YOUR LETTER WERE TERMINATED PRIOR TO JULY 29, 1945, THEIR RIGHT TO PAY AND ALLOWANCES CEASED ON THE DATE OF TERMINATION AND THERE APPEARS TO BE NO AUTHORITY WHEREBY PAYMENT NOW MAY BE MADE FOR LEAVE WHICH WAS NOT GRANTED WHILE THEY WERE IN AN ACTIVE DUTY STATUS.

IN VIEW OF THE FOREGOING, QUESTION NO. 1, AND THE FIRST ALTERNATE QUESTION IN NO. 2, ARE ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY ANY ANSWER TO THE SECOND ALTERNATE QUESTION UNDER NO. 2.