B-60861, APRIL 4, 1947, 26 COMP. GEN. 738

B-60861: Apr 4, 1947

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LEAVES OF ABSENCE - MILITARY - APPLICABILITY OF ARMED FORCES LEAVE ACT OF 1946 TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO ARE SUBJECT TO THE LEAVE PROVISIONS OF SECTION 1265. ARE WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT OF 1946. COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ARE NOT ENTITLED TO BE COMPENSATED FOR THE ACCUMULATED OR ACCRUED LEAVE TO THEIR CREDIT ON AUGUST 31. IN EXCESS OF SIXTY DAYS UNDER SECTIONS 4 (B) AND 5 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 ON THE BASIS THAT SUCH SPECIAL COMPENSATION FOR UNUSED LEAVE MAY BE REGARDED AS PART OF THE "PAY AND ALLOWANCES" OF NAVY OFFICERS TO WHICH OFFICERS OF THE COAST AND GEODETIC SURVEY ARE ASSIMILATED UNDER SECTION 11 OF THE ACT OF MAY 18.

B-60861, APRIL 4, 1947, 26 COMP. GEN. 738

LEAVES OF ABSENCE - MILITARY - APPLICABILITY OF ARMED FORCES LEAVE ACT OF 1946 TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WHO ARE SUBJECT TO THE LEAVE PROVISIONS OF SECTION 1265, REVISED STATUTES, BY VIRTUE OF SECTION 11 OF THE ACT OF MAY 18, 1920, ASSIMILATING SUCH OFFICERS TO THE PAY AND ALLOWANCES OF NAVY OFFICERS, ARE WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 3 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, LIMITING THE ALLOWANCE OF FULL PAY FOR ABSENCE WITH LEAVE TO A MAXIMUM OF SIXTY DAYS. COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ARE NOT ENTITLED TO BE COMPENSATED FOR THE ACCUMULATED OR ACCRUED LEAVE TO THEIR CREDIT ON AUGUST 31, 1946, IN EXCESS OF SIXTY DAYS UNDER SECTIONS 4 (B) AND 5 (B) OF THE ARMED FORCES LEAVE ACT OF 1946 ON THE BASIS THAT SUCH SPECIAL COMPENSATION FOR UNUSED LEAVE MAY BE REGARDED AS PART OF THE "PAY AND ALLOWANCES" OF NAVY OFFICERS TO WHICH OFFICERS OF THE COAST AND GEODETIC SURVEY ARE ASSIMILATED UNDER SECTION 11 OF THE ACT OF MAY 18, 1920. THE FACT THAT COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ARE ENTITLED, WHILE ASSIGNED TO MILITARY DUTY WITH THE ARMY OR NAVY PURSUANT TO SECTION 16 OF THE ACT OF MAY 22, 1917, TO RECEIVE THE SAME PAY AND ALLOWANCES AS MILITARY OFFICERS OF RELATIVE RANK, MAY NOT BE REGARDED AS CONSTITUTING AN OFFICER OF SUCH SERVICE A "MEMBER OF THE ARMED FORCES" AS DEFINED IN SECTION 2 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, SO AS TO ENTITLE SUCH OFFICER TO COMPENSATION FOR THE ACCUMULATED OR ACCRUED LEAVE TO HIS CREDIT ON AUGUST 31, 1946, IN EXCESS OF SIXTY DAYS.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF COMMERCE, APRIL 4, 1947:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1946, REQUESTING DECISION ON SEVERAL QUESTIONS WHICH HAVE ARISEN CONCERNING THE EXTENT, IF ANY, TO WHICH THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, PUBLIC LAW 704, APPROVED AUGUST 9, 1946, 60 STAT. 963, APPLY TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY UNDER CIRCUMSTANCES SET FORTH IN YOUR LETTER. THE QUESTIONS SUBMITTED WILL BE CONSIDERED IN THE ORDER PRESENTED:

THE FIRST QUESTION READS AS FOLLOWS:

QUESTION NO. 1. THE ACT OF AUGUST 9, 1946, KNOWN AS THE ARMED FORCES LEAVE ACT, REPEALS THE ACT OF 1876 ON WHICH LEAVE FOR OFFICERS OF THE COMMISSIONED SERVICES, INCLUDING THE COAST AND GEODETIC SURVEY WAS BASED. IN VARIOUS SECTIONS, BUT MAINLY IN SECTION 3, IT ENACTS NEW PROVISIONS GOVERNING THE ENTITLEMENT TO LEAVE OF PERSONNEL COVERED BY THE ACT, THE AMOUNT WHICH MAY BE ACCUMULATED, AND THE REGULATIONS WHICH MAY BE ISSUED BY THE SEVERAL SECRETARIES PURSUANT TO THE ACT. DO THESE PROVISIONS GOVERNING LEAVE HAVE APPLICATION TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, THROUGH ASSIMILATION WITH PROVISIONS APPLICABLE TO OFFICERS OF THE NAVY, AND BECAUSE PAY AND ALLOWANCES OF THE PERSONNEL OF ALL COMMISSIONED SERVICES ARE ALIKE PROVIDED FOR IN THE PAY READJUSTMENT ACT OF JUNE 16, 1942?

THE ACT OF MAY 8, 1874, AS AMENDED BY THE ACT OF JULY 29, 1876, 19 STAT. 102, U.S.C. 842, REFERRED TO IN YOUR LETTER, READS AS FOLLOWS:

ALL OFFICERS ON DUTY SHALL BE ALLOWED IN THE DISCRETION OF THE SECRETARY OF WAR, SIXTY 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 ONCE ONLY IN THREE YEARS, OR FOUR MONTHS IF TAKEN ONLY ONCE IN FOUR YEARS.

SECTIONS 2 (A) AND 9 OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 963, 967, PROVIDE AS FOLLOWS:

SEC. 2. AS USED IN THIS ACT---

(A) THE TERM "MEMBER OF THE ARMED FORCES" MEANS ANY MEMBER OF THE ARMY OF THE UNITED STATES, UNITED STATES NAVY, UNITED STATES MARINE CORPS, OR THE UNITED STATES COAST GUARD.

SEC. 9. THE ACT APPROVED MAY 8, 1874 (18 STAT. 43), AS AMENDED BY THE ACT APPROVED JULY 29, 1876 (19 STAT. 102; 10 U.S.C. 842), IS HEREBY REPEALED. SUCH REPEAL SHALL NOT AFFECT ANY UNUSED LEAVE ACCUMULATED (INCLUDING LEAVE ACCRUING AT THE RATE OF TWO AND ONE-HALF DAYS PER MONTH AFTER JULY 1, 1946) PRIOR TO THE DATE OF ENACTMENT OF THIS ACT.'

ALSO, THERE IS FOR CONSIDERATION IN THE PRESENT CASE SECTION 1265, REVISED STATUTES, 10 U.S. CODE 841, RELATING TO ARMY OFFICERS, WHICH PROVIDES:

OFFICERS WHEN ABSENT ON ACCOUNT OF SICKNESS OR WOUNDS, OR LAWFULLY ABSENT FROM DUTY AND WAITING ORDERS, SHALL RECEIVE FULL PAY; WHEN ABSENT WITH LEAVE, FOR OTHER CAUSES, FULL PAY DURING SUCH ABSENCE NOT EXCEEDING IN THE AGGREGATE THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE EXCEEDING THIRTY DAYS IN ONE YEAR, AND HALF PAY DURING SUCH ABSENCE, UNLESS THE ABSENCE IS EXCUSED AS UNAVOIDABLE.

ALTHOUGH NONE OF THESE STATUTES NAMED OR EXPRESSLY INCLUDED COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, THE ARMY LEAVE LAWS (SECTION 1265, REVISED STATUTES, AND THE ACT OF JULY 29, 1876, SUPRA) WERE MADE APPLICABLE TO COMMISSIONED OFFICERS OF THE NAVY BY SECTION 13 OF THE ACT OF MARCH 3, 1899, 30 STAT. 1007, AND THE ACT OF MAY 13, 1908, 35 STAT. 127, AND COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY WERE HELD TO BE SUBJECT TO SUCH LEAVE LAWS BY VIRTUE OF THE ASSIMILATION PROVISION IN SECTION 11 OF THE ACT OF MAY 18, 1920, 41 STAT. 603, THAT "COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS NOW ARE OR HEREAFTER MAY BE PRESCRIBED FOR OFFICERS OF THE NAVY.' 25 COMP. GEN. 402; 1 ID. 454. HOWEVER, SUCH ASSIMILATION WITH OFFICERS OF THE NAVY FOR LEAVE PURPOSES WAS NOT ON THE BASIS THAT LEAVE IS A PRIVILEGE OR A PART OF AN OFFICER'S PAY AND ALLOWANCES, BUT ON THE BASIS THAT THE ARMY LEAVE LAWS IN LEGAL EFFECT ARE A RESTRICTION ON PAY. THAT IS TO SAY, A PERSON APPOINTED TO AN OFFICE BY PROPER AUTHORITY IS ENTITLED TO WHATEVER SALARY MAY BE ATTACHED BY LAW TO THE OFFICE, EVEN WHILE ON LEAVE ( TROTTER V. UNITED STATES, 62 C.1CLS. 568, AND CASES CITED THEREIN; 1 COMP. GEN. 454), BUT THE ARMY LEAVE LAWS, IN EFFECT, RESTRICT THE PAY OF AN OFFICER TO ONE-HALF OF THAT OTHERWISE FIXED BY LAW WHEN ABSENT ON LEAVE IN EXCESS OF THAT PRESCRIBED UNDER SUCH LEAVE LAWS, AND SUCH RESTRICTION ON PAY, BEING APPLICABLE BY ASSIMILATION TO OFFICERS OF THE NAVY, IS LIKEWISE APPLICABLE TO OFFICERS OF THE COAST AND GEODETIC SURVEY BY THEIR ASSIMILATION TO THE OFFICERS OF THE NAVY. 1 COMP. GEN. 454.

WHILE SECTION 9 OF THE ARMED FORCES LEAVE ACT OF 1946, SUPRA, EXPRESSLY REPEALED THE ACT OF MAY 8, 1874, AS AMENDED BY THE ACT OF JULY 29, 1876, RELATING TO THE LEAVE OF ARMY OFFICERS, NOTHING CONTAINED IN THE 1946 ACT EXPRESSLY OR IMPLIEDLY REPEALED THE PROVISIONS OF SECTION 1265, REVISED STATUTES. SEE DECISION OF JANUARY 23, 1947, B-61818, 26 COMP. GEN. 523, TO THE SECRETARY OF THE NAVY. HENCE, SECTION 1265, REVISED STATUTES, STILL OPERATES BY ASSIMILATION AS A RESTRICTION ON THE PAY OF COMMISSIONED OFFICERS OF THE NAVY, AND, HENCE, AS A RESTRICTION ON THE PAY OF COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, EXCEPT TO THE EXTENT THAT SUCH RESTRICTION HAS BEEN RELAXED BY SECTION 3 OF THE ARMED FORCES LEAVE ACT, 60 STAT. 963, 964, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 3 (A). EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT MARTIAL. * * *

(B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT OR OF ANY OTHER LAW OR REGULATION, NO MEMBER OF THE ARMED FORCES (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SEPTEMBER 1, 1946) SHALL BE PERMITTED TO ACCUMULATE OR TO HAVE TO HIS CREDIT, AT ANY TIME AFTER AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS.

THE LEGAL EFFECT OF SAID SECTION 3, READ IN CONJUNCTION WITH SECTION 1265, REVISED STATUTES, IS TO RELAX THE RESTRICTION ON PAY CONTAINED IN SECTION 1265, REVISED STATUTES, SO AS TO RESTRICT ON AND AFTER SEPTEMBER 1, 1946, THE ALLOWANCE OF FULL PAY FOR ABSENCE WITH LEAVE TO A MAXIMUM OF 60 DAYS, ACCUMULATED AT THE RATE OF 2 1/2 DAYS PER MONTH, IN LIEU OF THE PRIOR RESTRICTION ON PAY CONTAINED IN THE REPEALED ACT OF JULY 29, 1876. CONSEQUENTLY, SINCE SECTION 3 (B) IN EFFECT IS A RESTRICTION ON PAY OF OFFICERS OF THE NAVY, INTER ALIA, SUCH RESTRICTION IS APPLICABLE, BY ASSIMILATION, TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, ALSO. QUESTION NO. 1 IS ANSWERED ACCORDINGLY.

QUESTIONS NOS. 2 AND 3 READ AS FOLLOWS:

QUESTION NO. 2. SECTION 5 (B) OF THE ACT PROVIDES THAT " IN ANY CASE IN WHICH A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 * * * HAS TO HIS CREDIT * * * ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS, SUCH LEAVE IN EXCESS OF SIXTY DAYS SHALL BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN * * * THE ACT * * *.' DOES THE ACT AUTHORIZE PAYMENT TO ANY OR ALL OF THE FOUR FOLLOWING GROUPS OF OFFICERS OF THE COAST AND GEODETIC SURVEY, IN THE MANNER PROVIDED IN THE ACT, FOR SUCH LEAVE AS HAS BEEN ACCUMULATED OR ACCRUED IN EXCESS OF SIXTY DAYS ON THAT DATE?

(A) THERE WERE ON SEPTEMBER 1, 1946 FOURTEEN OFFICERS OF THE COAST AND GEODETIC SURVEY SERVING IN THE ARMY OR THE NAVY, HAVING BEEN TRANSFERRED TO THE SERVICE AND JURISDICTION OF THE ARMY OR THE NAVY BY THE PROVISIONS OF THE ACT OF MAY 22, 1917, (40 STAT. 87) WHICH PROVIDES THAT "ANY OF THE PERSONNEL OF THE COAST AND GEODETIC SURVEY WHO MAY BE TRANSFERRED * * * SHALL, WHILE UNDER THE JURISDICTION OF THE WAR DEPARTMENT OR NAVY DEPARTMENT HAVE PROPER MILITARY STATUS AND SHALL BE SUBJECT TO THE LAWS, REGULATIONS AND ORDERS FOR THE GOVERNMENT OF THE ARMY OR THE NAVY AS THE CASE MAY BE * * *.' SECTION 40 OF THE ACT APPROVED AUGUST 2, 1946, PUBLIC LAW 604, 79TH CONGRESS, FURTHER PROVIDES THAT, AS USED IN THAT ACT "THE TERM NAVAL PERSONNEL INCLUDES * * * PERSONNEL OF THE COAST AND GEODETIC SURVEY WHEN SERVING WITH THE NAVY.' IT WOULD APPEAR THAT THESE OFFICERS NOW UNDER THE NAVY OR WAR DEPARTMENT JURISDICTION SHOULD, UNDER THESE PROVISIONS, BE PAID BY THE DEPARTMENT IN WHICH THEY ARE SERVING, FOR LEAVE ACCRUING TO THEM ON SEPTEMBER ST IN EXCESS OF SIXTY DAYS.

(B) THERE IS ANOTHER GROUP OF OFFICERS, 79 IN NUMBER, WHO WERE SIMILARLY TRANSFERRED EITHER TO THE ARMY OR TO THE NAVY EARLY IN THE WAR, BUT WHO HAVE BEEN RETURNED TO THE JURISDICTION OF THE DEPARTMENT OF COMMERCE. MOST OF THESE ACCRUED LEAVE IN EXCESS OF SIXTY DAYS WHILE SERVING WITH THE ARMY OR NAVY, LIKE THOSE IN THE PRECEDING GROUP.

(C) A THIRD GROUP OF OFFICERS HAVE REMAINED DURING THE WAR UNDER THE SERVICE AND JURISDICTION OF THE DEPARTMENT OF COMMERCE, BUT WERE ASSIGNED, DURING THE PERIOD OF THE PRESENT WAR, TO DUTY ON PROJECTS FOR THE WAR OR NAVY DEPARTMENTS IN AREAS DETERMINED BY SUCH DEPARTMENTS TO BE OF IMMEDIATE MILITARY HAZARD. IN ACCORDANCE WITH SECTION 2 OF THE ACT OF DECEMBER 3, 1942 (56 STAT. 1038) THEY WERE ENTITLED, WHILE ON SUCH DUTY "TO THE RIGHTS AND BENEFITS PROVIDED BY LAW FOR OFFICERS OF THE COAST AND GEODETIC SURVEY WHO ARE ACTUALLY TRANSFERRED TO THE SERVICE OF THE WAR DEPARTMENT OR THE NAVY DEPARTMENT.' MANY OF THEM ACCRUED CONSIDERABLE LEAVE WHILE ON THOSE ASSIGNMENTS AND PRESUMABLY SHOULD BE ENTITLED TO PAYMENT FOR SUCH EXCESS LEAVE TO THE SAME EXTENT AS THOSE OFFICERS ACTUALLY TRANSFERRED.

(D) OF THE REMAINING OFFICERS OF THE COAST AND GEODETIC SURVEY NOT COMING WITHIN ANY OF THE THREE CLASSES MENTIONED, SOME SERVED OR ARE STILL SERVING WITH THE NAVY OR WITH THE ARMY, THOUGH NOT FORMALLY TRANSFERRED TO EITHER SERVICE.

QUESTION NO. 3. IF YOUR ANSWER IN WHOLE OR IN PART TO THE PRECEDING QUESTION IS IN THE AFFIRMATIVE, IS THE APPROPRIATION PAY AND ALLOWANCES, COMMISSIONED OFFICERS, CONTAINED IN ANNUAL APPROPRIATION ACTS FOR THE DEPARTMENT OF COMMERCE AVAILABLE FOR PAYMENT OF SUCH SURPLUS ACCRUED OR ACCUMULATED LEAVE?

SECTIONS 4 AND 5 (B) OF THE ARMED FORCES LEAVE ACT OF 1946, 60 STAT. 964, 965, PROVIDE, AS FOLLOWS:

SEC. 4. LEAVE TO BE SETTLED AND COMPENSATED FOR UNDER SECTION 6 OF THIS ACT SHALL BE COMPENSABLE AS FOLLOWS:

(B) IN THE CASE OF LEAVE ACCUMULATED OR ACCRUED AS MEMBER OF THE ARMED FORCES AS A WARRANT OR COMMISSIONED OFFICER, ON THE BASIS OF THE BASE AND LONGEVITY PAY AND ALLOWANCES APPLICABLE TO SUCH MEMBER ON AUGUST 31, 1946.

SEC. 5 (B). IN ANY CASE IN WHICH A MEMBER OF THE ARMED FORCES ON ACTIVE DUTY ON SEPTEMBER 1, 1946 (OTHER THAN A MEMBER ON TERMINAL LEAVE ON SUCH DATE) HAS TO HIS CREDIT ON AUGUST 31, 1946, ACCUMULATED OR ACCRUED LEAVE AGGREGATING IN EXCESS OF SIXTY DAYS, SUCH LEAVE IN EXCESS OF SIXTY DAYS SHALL BE SETTLED AND COMPENSATED FOR ONLY IN THE MANNER PROVIDED IN SECTION 6 OF THIS ACT AND IF APPLICATION IS MADE TO THE SECRETARY NOT LATER THAN SEPTEMBER 1, 1947. ( ITALICS SUPPLIED.)

SECTION 6 OF THE SAID ACT, 60 STAT. 965, PRESCRIBES THE MANNER IN WHICH LEAVE IS TO BE SETTLED AND COMPENSATED FOR UNDER CERTAIN CIRCUMSTANCES, SETTING FORTH THE ADMINISTRATIVE PROCEDURE PERTAINING TO THE ISSUANCE AND PAYMENT OF BONDS, ET CETERA, TO EFFECT SUCH COMPENSATION. THUS, WHILE SECTIONS 4 (B) AND 5 (B) OF THE SAID ACT PROVIDE THAT "A MEMBER OF THE ARMED FORCES" ON ACTIVE DUTY ON SEPTEMBER 1, 1946, SHALL BE COMPENSATED FOR ACCUMULATED OR ACCRUED LEAVE IN EXCESS OF 60 DAYS TO HIS CREDIT ON AUGUST 31, 1946, ON THE BASIS OF THE BASE AND LONGEVITY PAY APPLICABLE TO SUCH MEMBER ON AUGUST 31, 1946, SINCE COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ARE NOT INCLUDED WITHIN THE TERM "MEMBER OF THE ARMED FORCES," AS DEFINED IN THE ACT, SUCH OFFICERS ARE NOT ENTITLED TO BE COMPENSATED FOR SUCH EXCESS LEAVE UNDER THE SAID PROVISIONS UNLESS, AS SUGGESTED IN YOUR LETTER, THE COMPENSATION AUTHORIZED TO BE PAID IN LIEU OF EXCESS LEAVE PROPERLY MAY BE CONSIDERED A PART OF THE "PAY AND ALLOWANCES" OF OFFICERS OF THE NAVY WITHIN THE MEANING OF SECTION 11 OF THE ACT OF MAY 18, 1920, SUPRA. IT IS SETTLED, HOWEVER, THAT LEAVE IS NOT A PART OF AN OFFICER'S PAY AND ALLOWANCES (27 COMP. DEC. 129, 1 COMP. GEN. 454); AND SINCE LEAVE ITSELF IS NOT PAY OR ALLOWANCES, THERE WOULD APPEAR TO BE NO LEGAL BASIS ON WHICH TO HOLD THAT THE SPECIAL COMPENSATION AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946 TO BE ALLOWED CERTAIN OFFICERS IN LIEU OF UNUSED LEAVE IN EXCESS OF 60 DAYS TO THEIR CREDIT ON AUGUST 31, 1946, IS A PART OF THEIR ,PAY AND ALLOWANCES" WITHIN THE MEANING OF THE SAID SECTION 11 OF THE ACT OF MAY 18, 1920, SO AS TO ENTITLE COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY, BY ASSIMILATION, TO SIMILAR COMPENSATION FOR UNUSED LEAVE. THE FACT THAT THE STATUTE PROVIDES THAT THE COMPENSATION TO BE ALLOWED OFFICERS OF THE ARMED FORCES FOR SUCH UNUSED LEAVE IS TO BE COMPUTED UPON THE BASIS OF THE RATES OF PAY AND ALLOWANCES APPLICABLE TO SUCH OFFICERS OF AUGUST 31, 1946--- WHICH RATES ARE APPLICABLE TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY ALSO--- DOES NOT CHANGE THE CHARACTER OF SUCH SPECIAL COMPENSATION IN LIEU OF LEAVE TO "PAY AND ALLOWANCES" WITHIN THE MEANING OF THE ASSIMILATION STATUTE. NOR MAY THE SUBSTITUTE RESTRICTION ON PAY IN THE 1946 ACT--- APPLICABLE BY ASSIMILATION TO COMMISSIONED OFFICERS OF THE COAST AND GEODETIC SURVEY--- WHICH WAS ENACTED IN LIEU OF THE RESTRICTION PREVIOUSLY CONTAINED IN THE 1876 ACT, READ IN CONJUNCTION WITH SECTION 1265, REVISED STATUTES, BE VIEWED AS GRANTING A CONCOMITANT PRIVILEGE BY ASSIMILATION, THAT IS, A RIGHT TO THE BENEFITS OF THE SPECIAL PROVISION FOR COMPENSATION FOR LEAVE IN EXCESS OF 60 DAYS, WHICH MIGHT HAVE BEEN TAKEN WHILE THE 1876 STATUTE WAS IN EFFECT BUT WHICH NO LONGER IS AVAILABLE UNDER THE 1946 STATUTE.

THAT THE LATTER STATUTE DID NOT CONTEMPLATE COMPENSATING COAST AND GEODETIC SURVEY OFFICERS FOR ANY SUCH EXCESS UNUSED LEAVE IS FURTHER SHOWN BY THE FACT THAT WHILE SECTION 8 OF THE ACT AUTHORIZED THE APPROPRIATION MADE PURSUANT THERETO IN THE FIRST SUPPLEMENTAL APPROPRIATION ACT, 1947, PUBLIC LAW 663, APPROVED AUGUST 8, 1946, 60 STAT. 912, UNDER THE HEADING " EXECUTIVE OFFICE OF THE PRESIDENT" FOR " PAYMENTS UNDER THE ARMED FORCES LEAVE ACT OF 1946," SPECIFICALLY AUTHORIZED ALLOCATIONS THEREUNDER TO THE " TREASURY, WAR, AND NAVY DEPARTMENTS" FOR SUCH PURPOSES, NO ALLOCATION TO THE DEPARTMENT OF COMMERCE TO PAY COAST AND GEODETIC SURVEY OFFICER WAS AUTHORIZED. THERE THUS APPEARS TO BE NEITHER ANY CLEAR STATUTORY AUTHORITY NOR AN AVAILABLE APPROPRIATION TO COMPENSATE COAST AND GEODETIC SURVEY OFFICERS FOR LEAVE IN EXCESS OF 60 DAYS RENDERED UNAVAILABLE BY THE SAID ARMED FORCES LEAVE ACT OF 1946.

RESPECTING THE OFFICERS REFERRED TO IN YOUR QUESTION 2 (A), WHO HAD BEEN TRANSFERRED TO THE SERVICE AND JURISDICTION OF THE WAR DEPARTMENT OR THE NAVY DEPARTMENT PURSUANT TO SECTION 16 OF THE ACT OF MAY 22, 1917, 40 STAT. 87, IT HAS BEEN RECOGNIZED IN THE DECISIONS OF THE ACCOUNTING OFFICERS THAT COAST AND GEODETIC SURVEY OFFICERS SO TRANSFERRED ARE ENTITLED, WHILE ASSIGNED TO MILITARY DUTY WITH THE ARMY OR NAVY, TO RECEIVE PAY AND ALLOWANCES NOT LESS THAN RECEIVED BY OFFICERS OF THOSE SERVICES OF RELATIVE RANK, SERVING UNDER LIKE CONDITIONS. SEE 24 COMP. DEC. 271; ID. 659; 25 ID. 51. HOWEVER, SINCE THE SPECIAL COMPENSATION AUTHORIZED BY THE ARMED FORCES LEAVE ACT OF 1946 TO BE MADE TO OFFICERS OF THE ARMED FORCES, AS DEFINED THEREIN, FOR UNUSED LEAVE IN EXCESS OF 60 DAYS TO THEIR CREDIT ON AUGUST 31, 1946, IS NOT TO BE REGARDED AS A PART OF THEIR PAY AND ALLOWANCES, AS SUCH TERM IS COMMONLY UNDERSTOOD, IT DOES NOT COME WITHIN THE PRINCIPLES OF SUCH DECISIONS. ALTHOUGH THE SAID ACT OF MAY 22, 1917, PROVIDES THAT COAST AND GEODETIC SURVEY OFFICERS SO TRANSFERRED SHALL HAVE "PROPER MILITARY STATUS" WHILE UNDER THE JURISDICTION OF THE WAR DEPARTMENT OR NAVY DEPARTMENT AND SHALL BE "SUBJECT TO" THE LAWS, REGULATIONS, AND ORDERS "FOR THE GOVERNMENT OF THE ARMY OR NAVY," AS THE CASE MAY BE (CF. 24 COMP. DEC. 545), AND ALTHOUGH SECTION 40 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 604, 60 STAT. 858, CITED IN YOUR LETTER, PROVIDES THAT THE TERM "NAVAL PERSONNEL" AS USED IN THAT ACT SHALL INCLUDE, INTER ALIA, PERSONNEL OF THE COAST AND GEODETIC SURVEY WHEN SERVING WITH THE NAVY, NONE OF SUCH PROVISIONS CONSTITUTES SUCH AN OFFICER OF THE COAST AND GEODETIC SURVEY A "MEMBER OF THE ARMED FORCES" AS SPECIFICALLY DEFINED IN SECTION 2 OF THE ARMED FORCES LEAVE ACT OF 1946, SUPRA.

THE VARIOUS PHASES OF THE MATTERS INVOLVED HAVE BEEN GIVEN CAREFUL CONSIDERATION BUT, DESPITE THE EQUITIES IN THEIR FAVOR, NO SUFFICIENT BASIS IS FOUND IN THE MAZE OF STATUTORY PROVISIONS, ASSIMILATIONS, PAY RESTRICTIONS, AND RELAXATIONS, AFFECTING DIRECTLY OR INDIRECTLY THE RIGHTS OF COAST AND GEODETIC SURVEY OFFICERS, TO WARRANT AN AFFIRMATIVE ANSWER TO ANY PART OF YOUR SECOND QUESTION. SINCE THE WHOLE OF THAT QUESTION IS, THEREFORE, ANSWERED IN THE NEGATIVE, NO ANSWER TO YOUR THIRD QUESTION IS REQUIRED.