B-83303, MARCH 8, 1949, 28 COMP. GEN. 502

B-83303: Mar 8, 1949

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ARE APPOINTED AND COMPENSATED IN ACCORDANCE WITH THE CLASSIFICATION ACT ARE OFFICERS OF THE UNITED STATES AND NOT EMPLOYEES OF APPEAL BOARDS OR OF LOCAL BOARDS WHOSE COMPENSATION MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT UNDER THE FIRST PROVISO TO SAID SECTION 10 (B) (4). A MEMBER OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD WHO IS COMPENSATED ON A "WHEN ACTUALLY EMPLOYED" BASIS AT A RATE EQUIVALENT TO A FULL TIME PER ANNUM RATE PURSUANT TO PARAGRAPH 2 (E) (2) OF SECTION 627.8 OF EXECUTIVE ORDER NO. 9988 IS ENTITLED TO COMPENSATION FROM THE MOMENT HE DEPARTS FROM HIS HOME OR REGULAR PLACE OF BUSINESS TO PERFORM DUTY AND SUCH COMPENSATION CONTINUES FOR THE PERIOD USUALLY REQUIRED FOR HIM TO RETURN TO HIS HOME OR PLACE OF BUSINESS BY THE MODE OF TRANSPORTATION SELECTED UPON THE COMPLETION OF HIS DUTIES WITH THE BOARD AT THE PLACE OF SITTING.

B-83303, MARCH 8, 1949, 28 COMP. GEN. 502

MEMBERS OF NATIONAL SELECTIVE SERVICE APPEAL BOARD - COMPENSATION AND TRAVELING EXPENSES MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD WHO, PURSUANT TO SECTION 10 (B) (4) OF THE SELECTIVE SERVICE ACT OF 1948, ARE APPOINTED AND COMPENSATED IN ACCORDANCE WITH THE CLASSIFICATION ACT ARE OFFICERS OF THE UNITED STATES AND NOT EMPLOYEES OF APPEAL BOARDS OR OF LOCAL BOARDS WHOSE COMPENSATION MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT UNDER THE FIRST PROVISO TO SAID SECTION 10 (B) (4), SO THAT THE COMPENSATION OF SUCH OFFICERS MAY BE FIXED ONLY IN ACCORDANCE WITH THE CLASSIFICATION ACT AND MAY NOT EXCEED THE $10,330 PER ANNUM STATUTORY LIMITATION. A MEMBER OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD WHO IS COMPENSATED ON A "WHEN ACTUALLY EMPLOYED" BASIS AT A RATE EQUIVALENT TO A FULL TIME PER ANNUM RATE PURSUANT TO PARAGRAPH 2 (E) (2) OF SECTION 627.8 OF EXECUTIVE ORDER NO. 9988 IS ENTITLED TO COMPENSATION FROM THE MOMENT HE DEPARTS FROM HIS HOME OR REGULAR PLACE OF BUSINESS TO PERFORM DUTY AND SUCH COMPENSATION CONTINUES FOR THE PERIOD USUALLY REQUIRED FOR HIM TO RETURN TO HIS HOME OR PLACE OF BUSINESS BY THE MODE OF TRANSPORTATION SELECTED UPON THE COMPLETION OF HIS DUTIES WITH THE BOARD AT THE PLACE OF SITTING. MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS, WHILE PERFORMING MOST OF THEIR SERVICES AT THE NATIONAL SELECTIVE SERVICE HEADQUARTERS, MAY BE PAID PER DIEM IN LIEU OF SUBSISTENCE AND BE REIMBURSED FOR THEIR ACTUAL TRAVELING EXPENSES FOR ALL TIME ABSENT FROM THEIR HOMES ON OFFICIAL BUSINESS OF THE BOARD, INCLUDING THE TIME NECESSARILY SPENT AT THE NATIONAL HEADQUARTERS, PROVIDED THEIR HOMES AND PLACES OF DUTY ARE NOT IN THE SAME METROPOLITAN AREA.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR OF SELECTIVE SERVICE, MARCH 8, 1949:

IN YOUR LETTER OF JANUARY 31, 1949 (1-14-1), YOU REQUEST A DECISION UPON THE QUESTION OF WHETHER COMPENSATION IN EXCESS OF THE MAXIMUM RATE ESTABLISHED BY THE CLASSIFICATION ACT, AS AMENDED, MAY BE PAID TO MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD, CREATED AND ESTABLISHED BY PARAGRAPH 2 (A) OF SECTION 627.8 OF EXECUTIVE ORDER NO. 9988 DATED AUGUST 20, 1948. ALSO IN YOUR LETTER OF FEBRUARY 18, 1949 (1-49-1), YOU REFER TO YOUR PREVIOUS LETTER AND PRESENT FOR DECISION ADDITIONAL QUESTIONS THEREIN STATED AS FOLLOWS:

(1) IS THE TIME SPENT BY A MEMBER OF THE APPEAL BOARD IN TRAVELING BETWEEN HIS PLACE OF RESIDENCE AND HIS OFFICIAL STATION TO BE CONSIDERED AS TIME "ACTUALLY EMPLOYED" UNDER THE PROVISIONS OF PARAGRAPH 2 (E) (2) OF THE EXECUTIVE ORDER WHEN THE PLACE OF RESIDENCE IS NOT THE DESIGNATED OFFICIAL STATION?

(2) MAY THE DIRECTOR OF SELECTIVE SERVICE PAY THE ACTUAL AND NECESSARY TRAVELING EXPENSES INCURRED BY A MEMBER OF THE BOARD IN TRAVELING BETWEEN HIS PLACE OF RESIDENCE AND HIS OFFICIAL STATION FOR THE PURPOSE OF ATTENDING BOARD MEETINGS?

(3) UNDER THE PROVISIONS OF PARAGRAPH 2 (E) (3), MAY A MEMBER OF THE BOARD BE REIMBURSED FOR SUBSISTENCE AND OTHER NECESSARY EXPENSES INCURRED WHILE IN ATTENDANCE AT MEETINGS OF THE APPEAL BOARD?

SECTION 12 (B) (3) OF THE SELECTIVE SERVICE ACT OF 1948, PUBLIC LAW 759, APPROVED JUNE 24, 1948, 62 STAT. 619, AUTHORIZES THE PRESIDENT "TO CREATE AND ESTABLISH WITHIN THE SELECTIVE SERVICE SYSTEM CIVILIAN APPEAL BOARDS, AND SUCH OTHER CIVILIAN AGENCIES, INCLUDING AGENCIES OF APPEAL, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS.' SECTION 10 (B) (4), 62 STAT. 620, AUTHORIZES THE PRESIDENT ,TO APPOINT, AND TO FIX, IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE COMPENSATION OF, SUCH OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE: PROVIDED, THAT THE COMPENSATION OF EMPLOYEES OF LOCAL BOARDS AND APPEAL BOARDS MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

BY PARAGRAPH 2 (E) OF SECTION 627.8 OF EXECUTIVE ORDER 9988 OF AUGUST 20, 1948, IT IS PROVIDED:

(E)EACH MEMBER OF THE NATIONAL BOARD SHALL (1) DEVOTE SO MUCH TIME TO THE AFFAIRS OF THE NATIONAL BOARD AS ITS RESPONSIBILITIES MAY REQUIRE, (2) BE COMPENSATED ON A WHEN ACTUALLY EMPLOYED BASIS AT A RATE EQUIVALENT TO A FULL-TIME RATE OF $12,500 PER ANNUM, AND (3) RECEIVE ACTUAL TRAVELING AND OTHER NECESSARY EXPENSES. THE DIRECTOR OF SELECTIVE SERVICE SHALL PROVIDE FOR THE PAYMENT OF SUCH COMPENSATION AND EXPENSES AND SHALL FURNISH THE NATIONAL BOARD SUITABLE OFFICE SPACE AND OTHER NECESSARY FACILITIES AND SERVICES AT THE NATIONAL SELECTIVE SERVICE HEADQUARTERS.

MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD ARE OFFICERS OF THE UNITED STATES AND NOT EMPLOYEES OF APPEAL BOARDS OR OF LOCAL BOARDS. ACCORDINGLY, THEIR COMPENSATION MAY BE FIXED ONLY IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND MAY NOT EXCEED THE MAXIMUM LIMITATION ESTABLISHED BY THAT ACT, AS AMENDED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945, 1946, AND 1948, 62 STAT. 1268, OR A MAXIMUM RATE OF $10,330 PER ANNUM. THIS ANSWERS THE QUESTION PRESENTED IN YOUR LETTER OF JANUARY 31, 1949.

WITH RESPECT TO THE PAYMENT OF COMPENSATION--- THE FIRST QUESTION OF YOUR LETTER OF FEBRUARY 18--- IT MAY BE POINTED OUT THAT THIS OFFICE, IN DECISION OF AUGUST 5, 1948, B-77973, HAD OCCASION TO CONSIDER THE QUESTION OF WHEN COMPENSATION ATTACHES IN THE CASE OF MEMBERS OF A BOARD OF DIRECTORS OF A GOVERNMENT CORPORATION SERVING UPON A "WHEN ACTUALLY EMPLOYED" BASIS, AND IN SAID DECISION IT WAS HELD THAT, UNDER SUCH AN EMPLOYMENT, COMPENSATION ATTACHED THE MOMENT A MEMBER DEPARTS FROM HIS HOME OR REGULAR PLACE OF BUSINESS TO PERFORM DUTY AND CONTINUES FOR THE PERIOD USUALLY REQUIRED FOR THE INDIVIDUAL TO RETURN TO HIS HOME OR PLACE OF BUSINESS BY THE MODE OF TRANSPORTATION SELECTED, UPON COMPLETION OF HIS DUTIES WITH THE BOARD AT THE PLACE OF SITTING. AS MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD ARE TO BE EMPLOYED ON A "WHEN ACTUALLY EMPLOYED" BASIS THE RATIONALE OF THAT RULING APPLIES WITH LIKE FORM TO SUCH MEMBERS. ACCORDINGLY, QUESTION 1 IN YOUR LETTER OF FEBRUARY 18 IS ANSWERED IN THE AFFIRMATIVE. COMPARE 24 COMP. GEN. 98; 27 ID. 659.

WITH RESPECT TO QUESTIONS TWO AND THREE, WHILE THE MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD ARE TO RECEIVE COMPENSATION, THEIR APPOINTMENTS ARE TO BE MADE ON A WAE BASIS AND CLEARLY DO NOT CONTEMPLATE CONTINUOUS SERVICE. IN VIEW THEREOF, THE FACT THAT MOST OF THEIR SERVICES MAY BE PERFORMED AT THE NATIONAL SELECTIVE SERVICE HEADQUARTERS HARDLY COULD BE SAID TO ESTABLISH THAT PLACE AS THEIR PERMANENT HEADQUARTERS OR OFFICIAL STATION WITHIN THE PURVIEW OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. SEE, ALSO, IN THAT CONNECTION, SECTION 5 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 808, WHICH PROVIDES IN PERTINENT PART:

SEC. 5. PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEU OF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED (5 U.S.C. 821-833), AND THE ACT OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT * * *.

IN THE CIRCUMSTANCES, MEMBERS OF THE NATIONAL SELECTIVE SERVICE APPEAL BOARD MAY BE PAID PER DIEM IN LIEU OF SUBSISTENCE AND BE REIMBURSED FOR THEIR ACTUAL TRAVELING EXPENSES FOR ALL TIME ABSENT FROM THEIR HOMES ON OFFICIAL BUSINESS OF THE BOARD, INCLUDING THE TIME NECESSARILY SPENT AT THE NATIONAL SELECTIVE SERVICE HEADQUARTERS, PROVIDED, OR COURSE, THAT THEIR HOME AND PLACE OF DUTY ARE NOT IN THE SAME METROPOLITAN AREA. COMP. GEN. 564.