B-13451, NOVEMBER 26, 1940, 20 COMP. GEN. 282

B-13451, NOVEMBER 26, 1940, 20 COMP. GEN. 282

COMPENSATION AND LEAVES OF ABSENCE - CIVILIAN EMPLOYEES ON MILITARY DUTY UNDER THE PROVISIONS IN SECTIONS 4 AND 9 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, CIVILIAN EMPLOYEES WHO ARE CALLED TO TRAINING DUTY AS MEMBERS OF THE NAVAL RESERVE ARE ENTITLED TO 15 DAYS' MILITARY LEAVE AND, ALSO, TO THEIR ACCRUED ANNUAL LEAVE, AND MAY THUS BE PAID COMPENSATION OF THEIR CIVILIAN POSITIONS AS WELL AS ACTIVE DUTY PAY AS MEMBERS OF THE NAVAL RESERVE DURING THE PERIODS OF SUCH MILITARY AND ANNUAL LEAVE, WITHOUT REGARD TO THE DUAL COMPENSATION STATUTES. A GOVERNMENT EMPLOYEE WHO IS ALSO AN OFFICER OF THE NAVAL RESERVE ORDERED WITH HIS CONSENT TO PURSUE A COURSE OF INSTRUCTION AT THE ARMY INDUSTRIAL COLLEGE, A SERVICE SCHOOL, IS ENTITLED TO 15 DAYS' MILITARY LEAVE UNDER THE PROVISIONS OF SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, SUCH DUTY BEING "TRAINING" DUTY AS DISTINGUISHED FROM ACTIVE DUTY. WHILE, UNDER SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, A GOVERNMENT EMPLOYEE WHO IS ALSO AN OFFICER OF THE NAVAL RESERVE MAY RECEIVE THE COMPENSATION OF HIS CIVILIAN POSITION DURING AUTHORIZED ANNUAL LEAVE THEREFROM EVEN THOUGH CONCURRENTLY RECEIVING FULL ACTIVE DUTY PAY AND ALLOWANCES AS A RESERVIST, HE IS NOT ENTITLED TO CIVILIAN COMPENSATION FOR A FURTHER PERIOD DURING WHICH HE PERFORMS ACTUAL SERVICE IN HIS CIVILIAN POSITION WHILE RECEIVING FULL PAY AND ALLOWANCES ON THE BASIS OF FULL-TIME TRAINING OR FULL-TIME ACTIVE DUTY AS A RESERVIST.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL TRADE COMMISSION, NOVEMBER 26, 1940:

I HAVE YOUR LETTER OF OCTOBER 18, 1940, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A PAY VOUCHER IN THE SUM OF $34.30 IN FAVOR OF CURTIS C. SHEARS, AN EMPLOYEE OF THE COMMISSION. THE VOUCHER COVERS PARTIAL DAY SERVICES FROM SEPTEMBER 16 TO 30, 1940, ON WORK OF THE COMMISSION DURING A PERIOD OF MILITARY DUTY.

PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 8245 OF SEPTEMBER 8, 1939, CURTIS C. SHEARS, AN EMPLOYEE OF THE COMMISSION AND ALSO A LIEUTENANT COMMANDER OF THE UNITED STATES NAVAL RESERVE WAS ORDERED WITH HIS CONSENT TO ACTIVE DUTY IN ATTENDANCE UPON A COURSE OF INSTRUCTION AT THE ARMY INDUSTRIAL COLLEGE, WASHINGTON, D.C.

THE OFFICIAL COMMUNICATIONS LEADING TO THE MILITARY DUTY ARE AS FOLLOWS:

UNITED STATES NAVY YARD,

COMMANDANT'S OFFICE,

WASHINGTON, D.C., JUNE 17, 1940.

FROM: THE COMMANDANT,

TO: SELECTED GROUP OF NAVAL RESERVE OFFICERS, CLASSES D AND E.

SUBJECT: ACTIVE DUTY.

1. DECK AND ENGINEERING OFFICERS OF THE NAVAL RESERVE, WHO ARE PARTICULARLY QUALIFIED IN ORGANIZATION ARE REQUESTED TO VOLUNTEER FOR FOUR (4) MONTHS' ACTIVE DUTY TO TAKE A TRAINING COURSE. THIS DUTY WILL BE PERFORMED AT THE ARMY INDUSTRIAL COLLEGE, OR AT SOME OTHER INDUSTRIAL INSTITUTION IN WASHINGTON, D.C. OFFICERS QUALIFIED MAY BE RETAINED ON DUTY FOR ASSIGNMENT TO THE NAVY DEPARTMENT UPON COMPLETION OF THIS COURSE.

2. OFFICERS WISHING TO VOLUNTEER ARE REQUESTED TO CONSULT CAPTAIN A. B. ANDERSON, U.S. NAVY, ROOM 2614, NAVY DEPARTMENT, WASHINGTON, D.C. OR COMMANDER L. B. SCOTT, U.S. NAVY, IN THE SAME ROOM. IT IS FURTHER REQUESTED THAT OFFICERS INTERESTED IN APPLYING FOR THIS DUTY NOTIFY THE COMMANDANT BY MEMORANDUM IN ORDER THAT THE RECORDS MAY BE KEPT UP TO DATE.

GEO. PETTENGILL,

COMMANDANT.

A. B. MCCRARY,

BY DIRECTION.

NAV-1614-EHH NAVY DEPARTMENT,

57862 BUREAU OF NAVIGATION,

WASHINGTON, D.C., JULY 19, 1940.

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: LIEUT. COMMANDER CURTIS C. SHEARS, DE-V (G), U.S.N.R.,

CARLTON HOTEL, WASHINGTON, D.C.

VIA: THE COMMANDANT, NAVY YARD, WASHINGTON, D.C.

SUBJECT: ACTIVE DUTY WITH FULL PAY AND ALLOWANCES--- CHARGEABLE

AGAINST APPROPRIATION,"PAY, SUBSISTENCE, AND TRANSPORTATION

OF NAVAL PERSONNEL.'

REFERENCES: (A) EXECUTIVE ORDER OF SEPTEMBER 8, 1939; (B)

NAVAL APPROPRIATION ACT FOR CURRENT FISCAL YEAR.

ENCLOSURES: (A) AFFIDAVIT RE PENSION OR DISABILITY ALLOWANCE. (B)

N. NAV. 17.

1. IN ACCORDANCE WITH REFERENCE (A) AND (B), SUBJECT TO THE EXECUTION OF OATH AND ACCEPTANCE OF YOUR COMMISSION AS A LIEUTENANT COMMANDER, DE-V (G), U.S. NAVAL RESERVE, AND SUBJECT TO YOUR CONSENT AND THE EXECUTION OF ENCLOSURE (A), YOU WILL REPORT FOR PHYSICAL EXAMINATION AS DIRECTED IN THE FIRST ENDORSEMENT HEREON.

2. IF FOUND PHYSICALLY QUALIFIED, ON AUGUST 7, 1940, YOU WILL REPORT TO THE ASSISTANT SECRETARY OF WAR, WAR DEPARTMENT, FOR DUTY IN ATTENDANCE UPON A COURSE OF INSTRUCTION AT THE ARMY INDUSTRIAL COLLEGE, WASHINGTON, D.C.

COPY TO:

COMDT., NY, WASHINGTON, D.C.

ASS-T. SECRETARY OF WAR.

BU S AND A ( RETAINER PAY SEC.)

(S) C. W. MINNTZ, R.M.I.

THE ARMY INDUSTRIAL COLLEGE,

OFFICE OF THE COMMANDANT,

WASHINGTON, D.C., JULY 26, 1940.

LIEUT. COMDR. CURTIS C. SHEARS, DE-V (G), U.S.N.R.

CARLTON HOTEL, WASHINGTON, D.C.

MY DEAR COMMANDER SHEARS:

YOUR DETAIL TO TAKE THE AUGUST-DECEMBER 1940 COURSE AT THE ARMY INDUSTRIAL COLLEGE, HAS BEEN NOTED WITH PLEASURE BY THE COMMANDANT AND MEMBERS OF THE STAFF, WHO TAKE THIS OPPORTUNITY OF WELCOMING YOU TO THE INSTITUTION.

OFFICERS CHOSEN FOR DUTY AS STUDENTS AT THIS COLLEGE ARE SELECTED WITH A GREAT DEAL OF CARE. AS A CONSEQUENCE, IT IS MY EXPECTATION THAT THIS, THE FIRST SPECIAL CLASS WILL MAKE A FINE RECORD. THIS SCHOOL OFFERS YOU AN EXCEPTIONAL OPPORTUNITY TO IMPROVE YOUR QUALIFICATIONS TO SERVE THE NATION WHENEVER THE CALL MAY COME. ALL OF THE FACULTY AND STAFF WILL MAKE EVERY EFFORT TO ASSIST YOU IN EVERY WAY THAT WILL MAKE YOUR COURSE INTERESTING AND INSTRUCTIVE.

THERE IS ATTACHED HERETO, AS AN ENCLOSURE, A MEMORANDUM OF INFORMATION WHICH MAY BE OF ASSISTANCE WHEN PREPARING FOR YOUR SERVICE AT THE SCHOOL IN WASHINGTON.

MAY I CLOSE WITH THE ASSURANCE OF THE HEARTY WELCOME FOR YOU UPON ARRIVAL?

YOURS VERY TRULY,

F. H. MILES, JR.,

COLONEL, ORDNANCE DEPARTMENT,

COMMANDANT.

ENCLS. --- INFORMATION MEMORANDUM MISSION OF THE COLLEGE.

THE ARMY INDUSTRIAL COLLEGE,

WASHINGTON, D.C.

MISSION

THE ARMY INDUSTRIAL COLLEGE, UNDER THE SUPERVISION OF THE ASSISTANT SECRETARY OF WAR, EDUCATES COMMISSIONED PERSONNEL TO MEET THE STATUTORY DUTIES IMPOSED BY THE NATIONAL DEFENSE ACT UPON THE ASSISTANT SECRETARY OF WAR. THESE DUTIES REQUIRE THE TRAINING OF OFFICERS OF THE ARMY AND NAVY FOR DUTY IN CONNECTION WITH PROCUREMENT PLANNING, THE SUPERVISION OF PROCUREMENT PLANNING, THE SUPERVISION OF PROCUREMENT BOTH IN PEACE AND WAR, AND PLANNING FOR INDUSTRIAL MOBILIZATION, THE WARTIME UTILIZATION OF NATIONAL RESOURCES, AND ECONOMIC WARFARE. IN ADDITION TO TRANSMITTING THE KNOWLEDGE NECESSARY TO FUNCTION EFFECTIVELY IN THESE AREAS THE OBJECTIVE OF THE COLLEGE IS TO SO TRAIN STUDENT OFFICERS THAT THEY MAY THINK LOGICALLY AND DYNAMICALLY AND BE PREPARED TO SOLVE THE PROBLEMS WHICH WILL ARISE IN THESE SAME AREAS.

SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, IN PART READS AS FOLLOWS:

"* * * THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THE ACT. * * *"

IT HAS BEEN HELD UNDER THE ABOVE ACT THAT A CIVILIAN EMPLOYEE CALLED TO ACTIVE DUTY AS A MEMBER OF THE NAVAL RESERVE IS ENTITLED TO COMPENSATION OF HIS CIVILIAN POSITION FOR ANNUAL LEAVE, AS WELL AS HIS PAY AND ALLOWANCES AS A RESERVIST. THE QUESTION HAS ARISEN AS TO WHETHER THE ACT IS CAPABLE OF INTERPRETATION BROAD ENOUGH TO COVER COMPENSATION FOR SERVICES IN HIS CIVILIAN POSITION AS COVERED IN THE PAY VOUCHER SUBMITTED.

A FURTHER QUESTION IS RAISED AS TO WHETHER, UNDER THE ORDERS CITED HEREIN, MR. SHEARS WOULD BE ENTITLED TO MILITARY LEAVE. HE HAS FILED AN APPLICATION FOR 15 DAYS OF MILITARY LEAVE AND CONTEMPLATES RETURNING TO HIS DUTIES WITH THE COMMISSION UPON THE COMPLETION OF HIS FOUR MONTHS' COURSE OF INSTRUCTION AT THE ARMY INDUSTRIAL COLLEGE UNLESS OTHERWISE ASSIGNED BY THE MILITARY AUTHORITIES.

SECTIONS 4 AND 9 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1176, 1177, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 4. * * * AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT, NOR AS PROHIBITING HIM FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE OR IN CONNECTION WITH ANY DEPARTMENT OF THE FEDERAL GOVERNMENT.

SEC. 9. * * * PROVIDED, THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE 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 MAY BE EMPLOYED WITH OR WITHOUT PAY UNDER THE ORDERS OR AUTHORIZATION OF COMPETENT AUTHORITY, ON TRAINING DUTY FOR PERIODS NOT TO EXCEED FIFTEEN DAYS IN ANY ONE CALENDAR YEAR.

UNDER THESE STATUTORY PROVISIONS CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE CALLED TO TRAINING DUTY AS MEMBERS OF THE NAVAL RESERVE PURSUANT TO EXECUTIVE ORDER NO. 8245 DATED SEPTEMBER 8, 1939, OR OTHER COMPETENT AUTHORITY, ARE ENTITLED TO 15 DAYS' MILITARY LEAVE OF ABSENCE WITH PAY, AND, IN ADDITION, TO THE ACCRUED UNUSED ANNUAL LEAVE OF ABSENCE TO THEIR CREDIT WHEN REPORTING FOR TRAINING DUTY, AND MAY THUS BE PAID COMPENSATION OF THEIR CIVILIAN POSITION AS WELL AS ACTIVE DUTY PAY AS A MEMBER OF THE NAVAL RESERVE DURING THE PERIODS OF SUCH MILITARY AND ANNUAL LEAVE, WITHOUT REGARD TO THE DUAL COMPENSATION STATUTES. 16 COMP. GEN. 767; 19 ID. 880; DECISION OF SEPTEMBER 13, 1940, B-12172, 20 COMP. GEN. 151; AND DECISION OF SEPTEMBER 18, 1940, B 12310; 20 ID. 163.

REFERRING TO THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, IT IS CLEAR THAT THE ORDER ISSUED TO LT. COMDR. CURTIS C. SHEARS WAS FOR "TRAINING" DUTY AS DISTINGUISHED FROM ACTIVE DUTY, TO PURSUE A COURSE OF INSTRUCTION AT THE ARMY INDUSTRIAL COLLEGE, A SERVICE SCHOOL. UNDER THE PLAIN PROVISIONS OF SECTION 9 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, SUPRA, HE IS ENTITLED TO 15 DAYS' MILITARY LEAVE ON ACCOUNT OF SUCH TRAINING DUTY. SEE 16 COMP. GEN. 1103, WHEREIN IT WAS HELD THAT A CIVILIAN EMPLOYEE WHO WAS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY WAS ENTITLED TO MILITARY LEAVE OF 15 DAYS TO PURSUE A COURSE OF INSTRUCTION AT AN ARMY SERVICE SCHOOL UNDER THE PROVISIONS OF THE ACT OF MAY 12, 1917, 40 STAT. 72. COMPARE 15 COMP. GEN. 633 AND 16 ID. 953, WHEREIN IT WAS HELD THAT CIVILIAN EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD ARE NOT ENTITLED TO MILITARY LEAVE FOR PERIODS OF ATTENDANCE AT AN ARMY SERVICE SCHOOL, UNDER THE PROVISIONS OF SECTION 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203, WHICH LIMITS MILITARY LEAVE TO PERIODS OF TRAINING "ON ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST-DEFENSE TRAINING.'

THE VOUCHER PRESENTED WITH YOUR LETTER PROPOSES PAYMENT TO LIEUTENANT COMMANDER SHEARS OF $34.30, SAID AMOUNT REPRESENTING THE COMPENSATION OF HIS CIVILIAN POSITION AS SENIOR ATTORNEY, SALARY RATE $4,800 PER ANNUM, FOR 18 HOURS HE IS ALLEGED TO HAVE WORKED IN HIS CIVILIAN POSITION DURING THE PERIOD SEPTEMBER 16 TO SEPTEMBER 30, 1940, DURING WHICH PERIOD HE WAS ALSO ATTENDING THE ARMY INDUSTRIAL COLLEGE UNDER ORDER AS A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY FOR TRAINING AND WAS IN RECEIPT OF FULL ACTIVE DUTY PAY AND ALLOWANCES OF HIS GRADE OR RANK. THE NOTATION ON THE PAY ROLL VOUCHER SHOWS THE HOURS WORKED IN HIS CIVILIAN POSITION, AS FOLLOWS:

LWOP 9:00 TO 3:30 (1 HOUR) SEPT. 16, 9:00 TO 3:30 (1 HOUR) SEPT. 17, 9:00 TO 12 (4 HOURS) SEPT. 18, 9:00 TO 2:30 (2 HOURS) SEPT. 19, 9:00 TO 4:30 (0 HOURS) SEPT. 20, 9:00 TO 11:00 (2 HOURS) SEPT. 21, 9:00 TO 3:30 (1 HOUR) SEPT. 23, 9:00 TO 4:30 (0 HOURS) SEPT. 24, 9:00 TO 1:00 (2 HOURS) AND 3:00 TO 4:30 SEPT. 25, 9:00 TO 4:30 (0 HOURS) SEPT. 26, 9:00 TO 12:00 (4 HOURS) SEPT. 27, 9:00 TO 12:00 (1 HOUR) SEPT. 28, AND 9:00 TO 4:30 SEPT. 29 AND 30 (18 HOURS).

THE ORDER DIRECTING LIEUTENANT COMMANDER SHEARS TO ACTIVE DUTY FOR TRAINING AS A MEMBER OF THE NAVAL RESERVE IS PRESUMED TO BE FOR FULL TIME DURING WHICH PERIOD HE WAS IN RECEIPT OF FULL PAY AND ALLOWANCES OF HIS GRADE OR RANK. WHILE SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, SUPRA, HAS BEEN HELD TO ALLOW PAYMENT OF COMPENSATION OF A CIVILIAN POSITION DURING INACTIVE DUTY TO THE EXTENT OF ANY ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT, THE STATUTE WAS NOT INTENDED TO, AND DOES NOT AUTHORIZE, A CIVILIAN EMPLOYEE TO WORK ON ACTIVE DUTY IN A CIVILIAN POSITION AND ALSO ON ACTIVE DUTY FOR FULL TIME TRAINING OR FULL TIME ACTIVE DUTY AS MEMBER OF THE NAVAL RESERVE. IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, ACTIVE SERVICE IN THE MILITARY AND CIVILIAN BRANCHES OF THE GOVERNMENT DURING THE SAME PERIOD OF TIME ARE ENTIRELY INCONSISTENT AND NOT AUTHORIZED. SEE 25 COMP. DEC. 666; 3 COMP. GEN. 40; 16 ID. 161; 17 ID. 1049; 18 ID. 213; 19 ID. 901; DECISION OF NOVEMBER 13, 1940, B- 12673, 20 COMP. GEN. 257, AND DECISIONS THEREIN CITED. THE EFFECT OF PAYMENT OF THE VOUCHER IN QUESTION, REPRESENTING 18 HOURS' COMPENSATION FOR ACTIVE DUTY IN HIS CIVILIAN POSITION WHILE ALSO ON FULL ACTIVE DUTY FOR TRAINING AS A MEMBER OF THE NAVAL RESERVE, WOULD BE TO INCREASE THIS EMPLOYEE'S ANNUAL LEAVE OR HIS MILITARY LEAVE TO THE EXTENT OF 18 HOURS BEYOND THE LIMITATIONS FIXED BY STATUTES AND REGULATIONS. ACCORDINGLY, THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE, AND SINCE PAYMENT ON THE VOUCHER IS NOT AUTHORIZED, SAID VOUCHER WILL BE RETAINED IN THE FILES OF THIS OFFICE.