SEPTEMBER 30, 1922, 2 COMP. GEN. 247
Highlights
OR EFFICIENCY RATING TO ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD. AUTHORIZES SUCH LEAVE WITH PAY TO PER- DIEM EMPLOYEES WHOSE SERVICES ARE ENGAGED FOR A PERIOD OF TIME. DOES NOT AUTHORIZE SUCH LEAVE TO EMPLOYEES WHOSE SERVICES ARE ENGAGED BY THE DAY. DURING WHICH TIME HE WAS ENGAGED IN TRAINING SERVICE AS A MEMBER OF THE NATIONAL GUARD OF THE STATE OF OREGON. IN THAT DECISION THE QUESTION OF THE RIGHT OF PER-DIEM EMPLOYEES TO LEAVE OF ABSENCE WITH PAY WAS NOT UNDER CONSIDERATION. IT WAS. I REGRET THAT THERE IS NOT BEFORE ME SUFFICIENT EVIDENCE. THE QUESTION PRESENTED WILL BE CONSIDERED GENERALLY ON THE FACTS GIVEN.
SEPTEMBER 30, 1922, 2 COMP. GEN. 247
DOUBLE COMPENSATION - PER DIEM EMPLOYEES ATTENDING NATIONAL GUARD ENCAMPMENTS THE ACT OF JUNE 3, 1916, 39 STAT., 203, GRANTING LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING TO ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NATIONAL GUARD, ON ALL DAYS ENGAGED IN FIELD OR COAST DEFENSE TRAINING ORDERED OR AUTHORIZED BY SAID ACT, AUTHORIZES SUCH LEAVE WITH PAY TO PER- DIEM EMPLOYEES WHOSE SERVICES ARE ENGAGED FOR A PERIOD OF TIME, HOWEVER TEMPORARY OR INDEFINITE, IN ADDITION TO SUCH OTHER LEAVE WITH PAY AS MIGHT PROPERLY BE GRANTED TO THEM; BUT DOES NOT AUTHORIZE SUCH LEAVE TO EMPLOYEES WHOSE SERVICES ARE ENGAGED BY THE DAY, FROM DAY TO DAY, SUCH EMPLOYEES BEING IN THE SERVICE OF THE GOVERNMENT ONLY FROM THE BEGINNING TO THE END OF EACH WORKING DAY.
COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, SEPTEMBER 30, 1922:
THERE HAS BEEN SUBMITTED BY YOUR AUTHORITY REQUEST OF THE CHIEF OF ENGINEERS, UNITED STATES ARMY, DATED SEPTEMBER 16, 1922, FOR A DECISION, IN ADVANCE OF PAYMENT, AS TO WHETHER LEO C. ALLEN, A CIVILIAN EMPLOYEE OF THE ENGINEER DEPARTMENT AT LARGE, ON A TEMPORARY PER-DIEM BASIS, MAY BE PAID AT HIS REGULAR RATE OF COMPENSATION AS A CIVILIAN EMPLOYEE FOR THE PERIOD FROM JUNE 14 TO JUNE 29, 1922, DURING WHICH TIME HE WAS ENGAGED IN TRAINING SERVICE AS A MEMBER OF THE NATIONAL GUARD OF THE STATE OF OREGON.
THE SUBMISSION REFERS TO DECISION OF DECEMBER 14, 1921, 4 MS. COMP. GEN., 719, THAT---
THE RIGHT OF PER-DIEM EMPLOYEES TO PAY ORDINARILY DEPENDS ON THE RENDITION OF SERVICE, IN THE ABSENCE OF ANY STATUTORY PROVISION OR PROVISION IN THE CONTRACT OF EMPLOYMENT.
IN THAT DECISION THE QUESTION OF THE RIGHT OF PER-DIEM EMPLOYEES TO LEAVE OF ABSENCE WITH PAY WAS NOT UNDER CONSIDERATION. IT WAS, HOWEVER, FULLY CONSIDERED IN MY DECISION OF FEBRUARY 2, 1922, 6 MS. COMP. GEN., 140, CITING 19 COMP. DEC., 661.
I REGRET THAT THERE IS NOT BEFORE ME SUFFICIENT EVIDENCE, INCLUDING VOUCHER PROPERLY SIGNED AND APPROVED, TO AUTHORIZE AND ENABLE ME TO RENDER A DECISION SPECIFIC IN ITS APPLICATION TO THE PARTICULAR CASE PRESENTED. HOWEVER, THE QUESTION PRESENTED WILL BE CONSIDERED GENERALLY ON THE FACTS GIVEN.
THE ACT OF JUNE 3, 1916, 39 STAT., 203, SECTION 80 THEREOF, OTHERWISE KNOWN AS THE NATIONAL DEFENSE ACT, PROVIDES THAT---
ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES AND OF THE DISTRICT OF COLUMBIA WHO SHALL BE MEMBERS OF THE NATIONAL GUARD 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 ENGAGED IN FIELD OR COAST DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT.
UNDER THIS PROVISION OF LAW, THE RIGHT GIVEN TO MEMBERS OF THE NATIONAL GUARD, WHO ARE ALSO EMPLOYEES OF THE UNITED STATES, TO LEAVE OF ABSENCE WITH PAY IN ADDITION TO ANY REGULAR ANNUAL LEAVE WHICH MAY BE GRANTED THEM AS EMPLOYEES OF THE UNITED STATES, IS LIMITED TO THE PERIOD OF TIME THEY ARE IN ACTUAL TRAINING FOR FIELD OR COAST DEFENSE WORK, AND BY THE REQUIREMENT THAT THE TRAINING MUST BE ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THE NATIONAL DEFENSE ACT.
IT SEEMS APPARENT THAT THE PURPOSE AND INTENT OF THE PROVISION QUOTED ABOVE IS TO OPEN THE WAY FOR AND TO ENCOURAGE ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES TO JOIN AND PARTICIPATE IN THE TRAINING OF THE NATIONAL GUARD. THE WORDS "ALL OFFICERS AND EMPLOYEES" MUST BE HELD TO INCLUDE EMPLOYEES WHO ARE PAID ON A PER DIEM BASIS, THAT IS, THE SO-CALLED PER DIEM EMPLOYEES WHOSE SERVICES ARE ENGAGED FOR A PERIOD, HOWEVER TEMPORARY OR INDEFINITE, AT A PER DIEM COMPENSATION MERELY AS A MEASURE OF PAY AS DISTINGUISHED FROM THE STRICTLY PER DIEM EMPLOYEES WHO ARE EMPLOYED BY THE DAY, FROM DAY TO DAY, AND PAID A CERTAIN SUM AS A DAY'S WAGES. TO THE LATTER CLASS, IT MIGHT BE SAID THAT, IN EFFECT FOR THEM, A PERIOD OF SERVICE BEGINS AND ENDS WITH THE BEGINNING AND ENDING OF EACH WORKING- DAY.
IF, UNDER THE AGREEMENT OR CONDITIONS OF EMPLOYMENT IN THE PARTICULAR CASE CONCERNED, IT CAN BE DETERMINED THAT THE EMPLOYEE FALLS WITHIN THE FORMER CLASS, THEN, UNDER THE FACTS WHICH YOU HAVE PLACED BEFORE ME, AND PROVIDED A CERTIFICATE OF SERVICE IN THE NATIONAL GUARD, UNQUESTIONED ON ITS FACE IN ITS APPLICATION TO THE SUBJECT, CAN BE OBTAINED, PAYMENT WOULD SEEM TO BE PROPER.
THE MATTER CAN NOT BE MORE DEFINITELY ANSWERED ON THE SUBMISSION AS MADE.