B-133972, OCTOBER 17, 1957, 37 COMP. GEN. 255

B-133972: Oct 17, 1957

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CIVILIAN EMPLOYEES ON MILITARY DUTY - ARKANSAS NATIONAL GUARD - DUAL EMPLOYMENT - LEAVE STATUS THE MILITARY SERVICE OBLIGATION OF FEDERAL EMPLOYEES WHO ARE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER NO. 10730. IS NOT ONLY INCOMPATIBLE WITH THE CIVILIAN EMPLOYMENT STATUS BUT IS PARAMOUNT TO THE CIVILIAN SERVICE SO THAT THE EMPLOYEES DO NOT HAVE A RIGHT TO ELECT TO RECEIVE COMPENSATION OF THE CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY. ALTHOUGH FEDERAL CIVILIAN EMPLOYEES WHO ARE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER NO. 10730. WHO AS MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD OF THE UNITED STATES HAVE BEEN ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO PREVENT OBSTRUCTION OF THE ENFORCEMENT OF ORDERS OF THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF ARKANSAS.

B-133972, OCTOBER 17, 1957, 37 COMP. GEN. 255

CIVILIAN EMPLOYEES ON MILITARY DUTY - ARKANSAS NATIONAL GUARD - DUAL EMPLOYMENT - LEAVE STATUS THE MILITARY SERVICE OBLIGATION OF FEDERAL EMPLOYEES WHO ARE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER NO. 10730, WHICH FEDERALIZED THE ARKANSAS NATIONAL GUARD, IS NOT ONLY INCOMPATIBLE WITH THE CIVILIAN EMPLOYMENT STATUS BUT IS PARAMOUNT TO THE CIVILIAN SERVICE SO THAT THE EMPLOYEES DO NOT HAVE A RIGHT TO ELECT TO RECEIVE COMPENSATION OF THE CIVILIAN POSITION DURING THE PERIOD OF MILITARY DUTY. ALTHOUGH FEDERAL CIVILIAN EMPLOYEES WHO ARE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER NO. 10730, WHICH FEDERALIZED THE ARKANSAS NATIONAL GUARD, MAY BE CARRIED IN A MILITARY LEAVE STATUS FOR 15 CALENDAR DAYS, PROVIDED THE MILITARY LEAVE HAS NOT BEEN USED PREVIOUSLY DURING THE CURRENT CALENDAR YEAR, AND IN AN ANNUAL LEAVE STATUS TO THE EXTENT OF THEIR ACCRUED ANNUAL LEAVE DURING THE PERIOD OF THEIR ACTIVE MILITARY SERVICE, THEY MAY NOT BE CARRIED IN A LEAVE-WITHOUT-PAY STATUS BUT MUST BE PLACED ON MILITARY FURLOUGH OR SEPARATED, AT THE OPTION OF THE AGENCY, IN ACCORDANCE WITH INSTRUCTIONS IN CHAPTERS 1-1-7 AND R-6-4 OF THE FEDERAL PERSONNEL MANUAL.

TO THE SECRETARY OF THE TREASURY, OCTOBER 17, 1957:

ON OCTOBER 2, 1957, THE ACTING SECRETARY OF THE TREASURY REQUESTED OUR ADVICE UPON SEVERAL QUESTIONS CONCERNING THE PAYMENT OF COMPENSATION AND THE LEAVE STATUS OF EMPLOYEES OF THE INTERNAL REVENUE SERVICE IN LITTLE ROCK, ARKANSAS, WHO AS MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES AND THE AIR NATIONAL GUARD OF THE UNITED STATES HAVE BEEN ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES TO PREVENT OBSTRUCTION OF THE ENFORCEMENT OF ORDERS OF THE UNITED STATES DISTRICT COURT OF THE EASTERN DISTRICT OF ARKANSAS. HE SAYS HIS UNDERSTANDING IS THAT THE PRESENT FEDERAL STATUS OF THE ARKANSAS NATIONAL GUARD MAY CAUSE THE EMPLOYEES IN THIS CASE TO BE AFFECTED BY THE DUAL COMPENSATION STATUTES.

THE FOLLOWING INFORMATION CONCERNING THE EMPLOYEES WAS FURNISHED BY THE ACTING SECRETARY:

I HAVE BEEN ADVISED THAT THREE EMPLOYEES IN THE OFFICE OF THE DISTRICT DIRECTOR, INTERNAL REVENUE SERVICE, IN LITTLE ROCK, ANSWER ROLL CALLS AT 6:30 A.M. AND 5:30 P.M. DAILY, AS MEMBERS OF THE NATIONAL GUARD. ALTHOUGH THEY WILL RECEIVE FULL MILITARY PAY FOR EACH SUCH DAY, NO MILITARY DUTIES ARE REQUIRED OF THEM, SO THAT THEY ARE ABLE TO PERFORM IN FULL THEIR USUAL DUTIES FOR THE DISTRICT DIRECTOR.

THE REQUEST FOR ADVICE HAS BEEN SUMMARIZED INTO TWO MAIN QUESTIONS. THE FIRST QUESTION IS WHETHER THE EMPLOYEES MAY BE CONTINUED IN A NORMAL DUTY STATUS AND, IF THE RECEIPT OF MILITARY PAY PLACES THEM IN A STATUS IN WHICH THEY ARE NOT ENTITLED TO THEIR CIVILIAN COMPENSATION, WHETHER THEY MAY CONTINUE IN A NORMAL PAY STATUS ON THE BASIS OF A WAIVER OF THEIR MILITARY PAY.

THE EMPLOYEES WERE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO SECTION ONE OF EXECUTIVE ORDER NO. 10730 DATED SEPTEMBER 24, 1957. THAT SECTION READS AS FOLLOWS:

I HEREBY AUTHORIZE AND DIRECT THE SECRETARY OF DEFENSE TO ORDER INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES AS HE MAY DEEM APPROPRIATE TO CARRY OUT THE PURPOSES OF THIS ORDER, ANY OR ALL OF THE UNITS OF THE NATIONAL GUARD OF THE UNITED STATES AND OF THE AIR NATIONAL GUARD OF THE UNITED STATES WITHIN THE STATE OF ARKANSAS TO SERVE IN THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR AN INDEFINITE PERIOD AND UNTIL RELIEVED BY APPROPRIATE ORDERS.

THE MEN ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER NO. 10730 ARE ENTITLED TO THE PAY AND ALLOWANCES OF THEIR RESPECTIVE GRADES IN THE MILITARY SERVICE. IN THAT CONNECTION THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE HELD CONSISTENTLY THAT IT IS INCOMPATIBLE FOR A PERSON TO BE EMPLOYED ON ACTIVE DUTY IN A CIVILIAN POSITION UNDER THE GOVERNMENT AND, ALSO, TO BE CARRIED ON THE ACTIVE ROLLS OF THE MILITARY SERVICE IN THE ABSENCE OF A SPECIFIC STATUTORY AUTHORITY PROVIDING OTHERWISE. SEE 5 COMP. DEC. 916; 10 ID. 767; 18 ID. 224; 22 ID. 259; 26 ID. 568; 3 COMP. GEN. 40; 17 ID. 1049; 18 ID. 213; 20 ID. 257; 22 ID. 127; 25 ID. 866; 27 ID. 510; AND ARMY REGULATIONS, AR-35-2340. IN 18 COMP. GEN. 213, 216, WE HELD:

* * * THE FACT THAT DURING HOURS OF RELAXATION OR RELIEF FROM THE ACTUAL PERFORMANCE OF DUTIES THE INDIVIDUAL HAS TIME TO DEVOTE TO HIS PERSONAL AFFAIRS AND THAT NORMALLY SUCH TIME IS AVAILABLE FOR THE PERFORMANCE OF OTHER DUTIES IS NOT THE TEST. COMPATIBILITY IS DETERMINED BY THE INDIVIDUAL'S FREEDOM TO PERFORM BOTH SERVICES, THE ONE WITHOUT INTERFERENCE FROM THE OTHER. THE SUPERIOR--- THE CONTROLLING--- OBLIGATION TO RENDER MILITARY SERVICE THUS MAKES IMPOSSIBLE THE ACCEPTANCE WITHOUT QUALIFICATION OF ANOTHER OBLIGATION TO THE GOVERNMENT TO RENDER SERVICE IN A CIVILIAN CAPACITY AT THE SAME TIME. THE TIME OF ONE IN THE MILITARY SERVICE IS NOT HIS OWN, HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES TO THE GOVERNMENT IN ANOTHER POSITION OR EMPLOYMENT IS INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL. * * *

AS AN EXAMPLE OF A SPECIFIC STATUTORY AUTHORITY PROVIDING FOR SUCH EMPLOYMENT SEE THE ACT OF NOVEMBER 21, 1945, 59 STAT. 584, 5 U.S.C. 61A 1, WHICH PERMITTED MEMBERS OF THE ARMED FORCES, WHILE ON TERMINAL LEAVE PENDING SEPARATION FROM OR RELEASE FROM ACTIVE DUTY, TO ENTER OR REENTER EMPLOYMENT WITH THE GOVERNMENT AND, IN ADDITION TO COMPENSATION FOR SUCH EMPLOYMENT, TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF TERMINAL LEAVE AT THE SAME RATES AND TO THE SAME EXTENT AS IF THEY HAD NOT ENTERED OR REENTERED SUCH EMPLOYMENT. THEREFORE, OUR VIEW IS THAT THE EMPLOYEES WHO WERE ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES WITH THE PAY AND ALLOWANCES OF THEIR GRADES, PURSUANT TO EXECUTIVE ORDER NO. 10730, MAY NOT DURING THE PERIOD OF SUCH SERVICE BE EMPLOYED IN AN ACTIVE CIVILIAN CAPACITY UNDER THE GOVERNMENT AND RECEIVE PAY THEREFOR IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY.

IN ANSWER TO THE SECOND PART OF THE FIRST QUESTION, THERE IS NO RIGHT OF ELECTION TO RECEIVE THE COMPENSATION OF A CIVILIAN POSITION WHERE THERE IS DUAL EMPLOYMENT IN A CIVILIAN OFFICE OR POSITION AND ACTIVE MILITARY SERVICE OF THE UNITED STATES DURING THE SAME PERIOD OF TIME, AS THE OBLIGATION UNDER THE MILITARY SERVICE IS PARAMOUNT. SEE 18 COMP. GEN. 213; A-51041, SEPTEMBER 25, 1933; B-17183, JUNE 5, 1941, 20 COMP. GEN. 860; AND B-82335, FEBRUARY 21, 1949.

THE SECOND QUESTION IS WHETHER THE EMPLOYEES MAY BE CARRIED IN A MILITARY LEAVE STATUS (IF AVAILABLE), ON ANNUAL LEAVE, ON LEAVE WITHOUT PAY, OR MILITARY FURLOUGH. IN OUR DECISION OF JUNE 1, 1955, B-122020, TO THE SECRETARY OF THE ARMY, WE SAID THAT SECTIONS 714 (B) AND 804 (A) OF THE ARMED FORCES RESERVE ACT OF 1952 (50 U.S.C. 1124 (B) AND 10 U.S.C. 371) (NOW 10 U.S.C. 3686, 8686; 37 U.S.C. 31A (A); AND 5 U.S.C. 30R) HAVE CHANGED THE MILITARY LEAVE RIGHTS OF MEMBERS OF THE NATIONAL GUARD, AND THAT SINCE JANUARY 1, 1953 (THE EFFECTIVE DATE OF THE 1952 ACT), SUCH MEMBERS WHO ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA ARE ENTITLED TO MILITARY LEAVE OF ABSENCE FROM THEIR CIVILIAN DUTIES "ON ALL DAYS DURING WHICH THEY SHALL BE ORDERED TO ACTIVE DUTY FOR TRAINING, OR ACTIVE DUTY, OR TO DUTY WITH TROOPS OR AT FIELD EXERCISES, OR FOR INSTRUCTION, FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.' THEREFORE, OUR VIEW IS THAT THE EMPLOYEES ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES PURSUANT TO EXECUTIVE ORDER NO. 10730 MAY BE CARRIED IN A MILITARY LEAVE STATUS FOR FIFTEEN CALENDAR DAYS, PROVIDED SUCH LEAVE HAS NOT BEEN USED PREVIOUSLY DURING THE CURRENT CALENDAR YEAR. ALSO, THE EMPLOYEES MAY BE CARRIED IN AN ANNUAL LEAVE STATUS TO THE EXTENT OF THEIR ACCRUED ANNUAL LEAVE DURING THE PERIOD OF THEIR ACTIVE MILITARY SERVICE. SEE 22 COMP. GEN. 127; 30 ID. 241.

CONCERNING THAT PART OF QUESTION TWO AS TO WHETHER THE EMPLOYEES MAY BE CARRIED IN A LEAVE WITHOUT PAY OR MILITARY FURLOUGH STATUS, CHAPTER L-1-7 OF THE FEDERAL PERSONNEL MANUAL DEFINES LEAVE WITHOUT PAY AS "A TEMPORARY NONPAY STATUS AND ABSENCE FROM DUTY, GRANTED UPON EMPLOYEE'S REQUEST. DOES NOT INCLUDE TIME SPEND IN THE MILITARY SERVICE * * *.' CHAPTER R-6-4 OF THE MANUAL PROVIDES FOR THE FOLLOWING ACTION WHEN AN EMPLOYEE ENTERS THE ACTIVE MILITARY SERVICE:

WHEN AN EMPLOYEE LEAVES A POSITION IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT OR THE DISTRICT OF COLUMBIA GOVERNMENT TO ENTER ON ACTIVE MILITARY DUTY, THE AGENCY HE LEAVES WILL EITHER FURLOUGH OR SEPARATE HIM, AT THE OPTION OF THE AGENCY. WHETHER THE EMPLOYEE IS FURLOUGHED OR SEPARATED, HE SHALL BE CONSIDERED AS HAVING BEEN ON MILITARY FURLOUGH AT THE TIME HE RETURNS TO DUTY. * * *

IN VIEW OF THESE INSTRUCTIONS, IT APPEARS THAT THE EMPLOYEES SHOULD BE PLACED ON MILITARY FURLOUGH OR SEPARATED AT THE OPTION OF THE AGENCY, RATHER THAN PLACING THEM IN A LEAVE-WITHOUT-PAY STATUS. SEE ALSO 24 COMP. GEN. 729, AND 28 ID. 159.

SINCE OUR VIEW IS THAT THE EMPLOYEES MAY NOT DURING THE PERIOD OF THEIR MILITARY SERVICE BE EMPLOYED IN ACTIVE CIVILIAN CAPACITY UNDER THE GOVERNMENT AND RECEIVE COMPENSATION THEREFOR EXCEPT TO THE EXTENT OF THE AUTHORIZED ANNUAL OR MILITARY LEAVE AS DISCUSSED ABOVE, WE HAVE NOT DISCUSSED THE DUAL COMPENSATION AND EMPLOYMENT STATUTES WHICH MIGHT OTHERWISE BE FOR APPLICATION IN CERTAIN OF THE SITUATIONS INVOLVED.