B-6993, NOVEMBER 21, 1939, 19 COMP. GEN. 513

B-6993: Nov 21, 1939

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LEAVES OF ABSENCE - MILITARY - OFFICERS' RESERVE CORPS - INDEFINITE DUTY WITH REGULAR ARMY MEMBERS OF THE OFFICERS' RESERVE CORPS WHO ARE ALSO CIVILIAN GOVERNMENT EMPLOYEES. ARE NOT ENTITLED TO MILITARY LEAVE WITHOUT LOSS OF TIME OR PAY WHEN THEY ARE ORDERED FOR INDEFINITE DUTY WITH THE REGULAR ARMY IN AN EMERGENCY. BEING LIMITED IN ITS APPLICATION TO THE REGULAR ANNUAL TRAINING PERIODS OF NOT TO EXCEED FIFTEEN DAYS IN EACH CALENDAR YEAR TO WHICH SUCH OFFICERS ARE AUTHORIZED TO BE ORDERED WITHOUT THEIR CONSENT. 1939: I HAVE YOUR LETTER OF NOVEMBER 3. AS FOLLOWS: IT IS NOT CLEAR FROM THE ACT OF MAY 12. WHETHER EMPLOYEES WHO ARE MEMBERS OF THIS CORPS ARE ENTITLED TO MILITARY LEAVE WITHOUT LOSS OF TIME OR PAY FOR A PERIOD NOT TO EXCEED 15 DAYS WHEN THEY ARE ORDERED FOR INDEFINITE DUTY WITH THE REGULAR ARMY IN THE EVENT OF AN EMERGENCY.

B-6993, NOVEMBER 21, 1939, 19 COMP. GEN. 513

LEAVES OF ABSENCE - MILITARY - OFFICERS' RESERVE CORPS - INDEFINITE DUTY WITH REGULAR ARMY MEMBERS OF THE OFFICERS' RESERVE CORPS WHO ARE ALSO CIVILIAN GOVERNMENT EMPLOYEES, ARE NOT ENTITLED TO MILITARY LEAVE WITHOUT LOSS OF TIME OR PAY WHEN THEY ARE ORDERED FOR INDEFINITE DUTY WITH THE REGULAR ARMY IN AN EMERGENCY, THE OFFICERS' RESERVE CORPS MILITARY LEAVE ACT OF MAY 12, 1917, 40 STAT. 72, BEING LIMITED IN ITS APPLICATION TO THE REGULAR ANNUAL TRAINING PERIODS OF NOT TO EXCEED FIFTEEN DAYS IN EACH CALENDAR YEAR TO WHICH SUCH OFFICERS ARE AUTHORIZED TO BE ORDERED WITHOUT THEIR CONSENT.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, NOVEMBER 21, 1939:

I HAVE YOUR LETTER OF NOVEMBER 3, 1939, AS FOLLOWS:

IT IS NOT CLEAR FROM THE ACT OF MAY 12, 1917 (40 STAT. 72), PROVIDING FOR MILITARY LEAVE FOR DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR MEMBERS OF THE OFFICERS' RESERVE CORPS, WHETHER EMPLOYEES WHO ARE MEMBERS OF THIS CORPS ARE ENTITLED TO MILITARY LEAVE WITHOUT LOSS OF TIME OR PAY FOR A PERIOD NOT TO EXCEED 15 DAYS WHEN THEY ARE ORDERED FOR INDEFINITE DUTY WITH THE REGULAR ARMY IN THE EVENT OF AN EMERGENCY.

YOUR DECISION IS THEREFORE RESPECTFULLY REQUESTED.

THE ACT OF MAY 12, 1917, 40 STAT. 72, PROVIDES AS FOLLOWS:

THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE OFFICERS' RESERVE CORPS SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES, WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

THE SERVICE WITHIN THE PURVIEW OF THE ABOVE-QUOTED ACT ENTITLING TO LEAVE WITH PAY WAS THAT PROVIDED FOR IN SECTION 39 OF THE ACT OF JUNE 3, 1916, 39 STAT. 191, IN PERTINENT PART, AS FOLLOWS:

TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE SECRETARY OF WAR IS AUTHORIZED TO ORDER RESERVE OFFICERS TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR, AND WHILE SO SERVING SUCH OFFICERS SHALL RECEIVE THE PAY AND ALLOWANCES OF THEIR RESPECTIVE GRADES IN THE REGULAR ARMY: PROVIDED, THAT, WITH THE CONSENT OF THE RESERVE OFFICERS CONCERNED, AND WITHIN THE LIMIT OF FUNDS AVAILABLE FOR THE PURPOSE, SUCH PERIODS OF DUTY MAY BE EXTENDED FOR RESERVE OFFICERS AS THE SECRETARY OF WAR MAY DIRECT: * * *

THE LAST-QUOTED STATUTE WAS REPEALED BY SECTION 31 OF THE ACT OF JUNE 4, 1920, 41 STAT. 775, AND WAS SUPERSEDED BY SECTION 37A OF THE NATIONAL DEFENSE ACT, ENACTED IN SECTION 32 OF THE 1920 STATUTE, 41 STAT. 775, 776, AS FOLLOWS:

SEC. 37A. RESERVE OFFICERS ON ACTIVE DUTY.--- TO THE EXTENT PROVIDED FOR FROM TIME TO TIME BY APPROPRIATIONS FOR THIS SPECIFIC PURPOSE, THE PRESIDENT MAY ORDER RESERVE OFFICERS TO ACTIVE DUTY AT ANY TIME AND FOR ANY PERIOD; BUT EXCEPT IN TIME OF A NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS, NO RESERVE OFFICER SHALL BE EMPLOYED ON ACTIVE DUTY FOR MORE THAN FIFTEEN DAYS IN ANY CALENDAR YEAR WITHOUT HIS OWN CONSENT. * * *

THE ACT OF AUGUST 30, 1935, 49 STAT. 1028, AS AMENDED BY SECTION 5 OF THE ACT OF APRIL 3, 1939, 53 STAT. 557, PROVIDES, IN PART, AS FOLLOWS:

THAT THE PRESIDENT IS HEREBY AUTHORIZED TO ORDER ANNUALLY, WITH THEIR CONSENT, UPON APPLICATION TO AND SELECTION BY THE WAR DEPARTMENT, FOR A PERIOD OF NOT MORE THAN ONE YEAR FOR ANY ONE OFFICER, FOR ACTIVE DUTY WITH THE REGULAR ARMY, SUCH NUMBERS OF RESERVE OFFICERS, IN THE GRADE OF SECOND LIEUTENANT, AS ARE NECESSARY TO MAINTAIN ON ACTIVE DUTY AT ALL TIMES NOT MORE THAN ONE THOUSAND RESERVE OFFICERS OF THE PROMOTION-LIST BRANCHES OTHER THAN THE AIR CORPS, NOT MORE THAN THREE THOUSAND RESERVE OFFICERS OF THE AIR CORPS, AND NOT MORE THAN THREE HUNDRED RESERVE OFFICERS OF THE NON -PROMOTION LIST BRANCHES: * * *

REFERENCE IS MADE, ALSO, TO THE RESTRICTION UPON THE USE OF APPROPRIATED FUNDS FOR PAY OF RESERVE OFFICERS OF THE ARMY APPEARING IN THE ANNUAL APPROPRIATION ACT OF APRIL 26, 1939, 53 STAT. 592, 613.

EXECUTIVE ORDER NO. 8244, DATED SEPTEMBER 8, 1939, PROVIDES, IN PART, AS FOLLOWS:

WHEREAS A PROCLAMATION ISSUED BY ME ON SEPTEMBER 8, 1939, PROCLAIMED THAT A NATIONAL EMERGENCY EXISTS IN CONNECTION WITH AND TO THE EXTENT NECESSARY FOR THE PROPER OBSERVANCE, SAFEGUARDING, AND ENFORCING OF THE NEUTRALITY OF THE UNITED STATES AND THE STRENGTHENING OF OUR NATIONAL DEFENSE WITHIN THE LIMITS OF PEACETIME AUTHORIZATIONS; AND

2. THE COMMISSIONED STRENGTH OF THE REGULAR ARMY MAY BE SUPPLEMENTED BY THE USE OF RESERVE OFFICERS AS MAY BE NECESSARY, PROVIDED THE LIMITATION ON NUMBERS AND GRADES PRESCRIBED IN THE ACT APPROVED APRIL 3, 1939 ( PUB. 18, 76TH CONGRESS), IS NOT EXCEEDED.

IN DECISION OF JULY 28, 1917, 24 COMP. DEC. 81, 83, WHEREIN MILITARY LEAVE WAS DENIED TO MEMBERS OF THE OFFICERS' RESERVE CORPS ATTENDING AN OFFICERS' TRAINING CAMP, IT WAS HELD, IN PERTINENT PART, AS FOLLOWS, AFTER QUOTING THE ACT OF MAY 12, 1917, SUPRA, AT TOP OF PAGE 83:

THE ONLY SERVICE FOR WHICH LEAVE MAY BE GRANTED UNDER THIS PROVISION IS THE SERVICE OF MEMBERS OF THE OFFICERS' RESERVE CORPS WHEN "ORDERED TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR"--- THAT IS TO SAY, THE REGULAR ANNUAL TRAINING SERVICE AUTHORIZED UNDER THE PROVISIONS OF SECTION 39 OF THE ACT OF JUNE 3, 1916 (39 STAT. 191). NONE OF THE MEN ATTENDING THE RESERVE OFFICERS' TRAINING CAMPS NOW BEING MAINTAINED IS ORDERED TO DUTY UNDER THE PROVISIONS OF SAID SECTION 39. HENCE, THE LEAVE PROVISION ABOVE QUOTED HAS NO APPLICATION TO EMPLOYEES OF YOUR DEPARTMENT ATTENDING SUCH CAMPS.

THE SAME LIMITATION UPON THE APPLICATION OF THE ACT OF MAY 12, 1917, WAS MADE BY THE FORMER COMPTROLLER OF THE TREASURY IN DECISION OF SEPTEMBER 6, 1917, 24 COMP. DEC. 158, 159. WHILE SECTION 39 OF THE ACT OF JUNE 3, 1916, SUPRA, HAS BEEN REPEALED, IT WAS REENACTED IN SUBSTANTIALLY SIMILAR TERMS IN THE 1920 ACT, ABOVE QUOTED, AND WHAT WAS STATED IN THAT PART OF THE ABOVE-QUOTED DECISION REGARDING SECTION 39 OF THE 1916 STATUTE APPLIES WITH EQUAL FORCE TO SECTION 37A OF THE 1920 ACT--- A STATUTE IN PARI MATERIA WITH THE CITED 1916 ACT--- THERE OTHERWISE APPEARING NOTHING TO RENDER SAID DECISION INAPPLICABLE TO THE INSTANT MATTER. COMPARE 18 COMP. GEN. 94; ID. 236; 16 ID. 1103; 9 ID. 13.

THE ACT OF MAY 12, 1917, WAS INTENDED TO BE, AND IS, LIMITED IN ITS APPLICATION TO THE REGULAR ANNUAL TRAINING PERIODS OF NOT TO EXCEED 15 DAYS IN EACH CALENDAR YEAR TO WHICH OFFICERS OF THE RESERVE CORPS OF THE ARMY ARE AUTHORIZED TO BE ORDERED WITHOUT THEIR CONSENT, AND HAS NO APPLICATION TO EXTENDED OR INDEFINITE PERIODS OF ACTIVE MILITARY DUTY WITH THE REGULAR ARMY. THE CLEAR PURPOSE AND INTENT OF THE ACT OF MAY 12, 1917, SUPRA, WAS TO MAINTAIN THE STATUS QUO OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT--- WHO ARE ALSO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY--- ONLY DURING THE TRAINING PERIODS NOT EXCEEDING 15 DAYS EACH CALENDAR YEAR TO WHICH TRAINING THEY MAY BE ORDERED WITHOUT THEIR CONSENT, THUS GIVING THEM THE RIGHT TO RECEIVE CIVILIAN COMPENSATION CONCURRENTLY WITH MILITARY PAY FOR SUCH STATED PERIOD.