B-12172, SEPTEMBER 13, 1940, 20 COMP. GEN. 151

B-12172, SEPTEMBER 13, 1940, 20 COMP. GEN. 151

LEAVES OF ABSENCE - ANNUAL - CONCURRENT PAYMENT AS NAVAL RESERVIST ON ACTIVE DUTY A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE ORDERED, WITH HIS CONSENT, TO ACTIVE DUTY WITH THE REGULAR NAVY PURSUANT TO EXECUTIVE ORDER NO. 8245, DATED SEPTEMBER 8, 1939, MAY BE PAID THE SALARY OF HIS CIVILIAN POSITION FOR THE PERIOD OF ANNUAL LEAVE TO HIS CREDIT AT THE TIME HE REPORTED FOR ACTIVE DUTY AND, ALSO, FOR THE SAME PERIOD, PAY AND ALLOWANCES AS AN OFFICER OF THE NAVAL RESERVE ON ACTIVE DUTY. DECISION OF AUGUST 29, 1940, B-11916, 20 COMP. GEN. 118, RELATING TO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL WORKS ADMINISTRATOR, SEPTEMBER 13, 1940:

I HAVE YOUR LETTER OF AUGUST 28, 1940, AS FOLLOWS:

PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 8245 OF SEPTEMBER 8, 1939, ARTHUR C. EBERHARD, AN EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION AND ALSO A LIEUTENANT COMMANDER OF THE UNITED STATES NAVAL RESERVE, WAS ORDERED, WITH HIS CONSENT TO ACTIVE DUTY IN THE NAVY.

THERE IS ATTACHED A CERTIFIED COPY OF THE NAVY DEPARTMENT ORDER, THE THIRD ENDORSEMENT OF WHICH EVIDENCES THAT THE EMPLOYEE REPORTED FOR ACTIVE DUTY AT THE NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, ON JULY 15, 1940.

AS OF THE CLOSE OF BUSINESS JULY 14, 1940, MR. EBERHARD HAD A CREDIT OF 66 DAYS, 4 HOURS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE THAT IT WAS NOT PRACTICAL FOR HIM TO USE PRIOR TO HIS ENTRANCE ON DUTY IN THE NAVY. UNDER EXISTING LAW THE PUBLIC WORKS ADMINISTRATION EXPIRES ON JUNE 30, 1941, AND THE POSSIBILITY THAT THE EMPLOYEE WILL RETURN TO A CIVILIAN POSITION WITHOUT A BREAK IN SERVICE AFTER THE COMPLETION OF HIS TOUR OF DUTY IN THE NAVY, PERMITTING A RESTORING OF THE LEAVE TO HIS CREDIT, IS REMOTE. HE HAS ACCORDINGLY APPLIED FOR LEAVE WITHOUT PAY AFTER THE ANNUAL LEAVE IS EXHAUSTED, AND THE QUESTION ARISES AS TO THE EXISTENCE OF AUTHORITY TO PAY FOR THE ANNUAL LEAVE AT THE SAME TIME THE EMPLOYEE IS RECEIVING PAY AND ALLOWANCES WHILE ON ACTIVE DUTY WITH THE NAVY.

SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938 (52 STAT. 1176), PROVIDES IN PERTINENT PART 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 ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT * * *.'

SECTION 5 OF THE ACT PROVIDES THAT ANY MEMBER OF THE NAVAL RESERVE MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT, A NATIONAL EMERGENCY EXISTS, AND SECTION 7 PROVIDES THAT MEMBERS OF THE NAVAL RESERVE SHALL RECEIVE THE SAME PAY AND ALLOWANCES AS ARE RECEIVED BY MEMBERS OF THE REGULAR NAVY. THEREFORE APPEARS TO THIS OFFICE THAT THE PAY AND ALLOWANCES RECEIVED WHILE PERFORMING ACTIVE DUTY IN THE REGULAR NAVY PURSUANT TO EXECUTIVE ORDER NO. 8245 ARE THE SAME PAY AND ALLOWANCES TO WHICH THE OFFICERS ARE ENTITLED UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF JUNE 25, 1938; AND AS SECTION 4 OF THE SAID ACT RENDERS INOPERATIVE THE STATUTES PROHIBITING THE PAYMENT OF DUAL COMPENSATION, THERE WOULD BE NO LEGAL BAR TO GRANTING THE EMPLOYEE'S APPLICATION FOR ANNUAL LEAVE WITH PAY AT THE SAME TIME HE IS RECEIVING PAY AND ALLOWANCES AS A MEMBER OF THE NAVAL RESERVE ORDERED TO ACTIVE DUTY.

IN YOUR DECISION TO THIS OFFICE OF APRIL 18, 1940 (19 COMP. GEN. 880), SECTION 4 OF THE NAVAL RESERVE ACT WAS CITED AS A BASIS FOR HOLDING THAT LIEUTENANT SIDNEY A. HUGUENIN, AN EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION AND A MEMBER OF THE NAVAL RESERVE, COULD BE PAID FOR ANNUAL LEAVE AT THE SAME TIME HE WAS RECEIVING PAY AND ALLOWANCES AS A MEMBER OF THE NAVAL RESERVE ON ACTIVE DUTY. HOWEVER, IN THIS CASE IT APPEARS THAT THE OFFICER WAS PERFORMING ACTIVE DUTY IN THE NAVAL RESERVE AND NOT IN THE REGULAR NAVY, THE PAY AND ALLOWANCES BEING CHARGEABLE TO THE APPROPRIATION "1NAVAL RESERVE, 1940," AND SOME DOUBT ARISES AS TO WHETHER THIS DECISION WOULD APPLY TO EMPLOYEES ORDERED TO DUTY IN THE REGULAR NAVY UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8245, PARTICULARLY IN VIEW OF YOUR DECISION OF DECEMBER 5, 1939, TO THE SECRETARY OF COMMERCE (19 COMP. GEN. 552). WHILE THIS LATTER DECISION CONCERNED A FORFEITURE OF LEAVE NO LONGER INVOLVED SINCE SECTION 9 OF THE LEAVE REGULATIONS HAS BEEN AMENDED, STILL IT WAS STATED THEREIN THAT "THE EMPLOYEE WAS REQUIRED TO APPLY FOR LEAVE WITHOUT PAY," AND NO CONSIDERATION WAS GIVEN TO THE POSSIBILITY THAT THE EMPLOYEE MIGHT HAVE BEEN PAID FOR THE ANNUAL LEAVE BEFORE LEAVE WITHOUT PAY WAS GRANTED.

IN CONNECTION WITH THE LIQUIDATION OF THE PUBLIC WORKS ADMINISTRATION NUMEROUS EMPLOYEES WHO ARE MEMBERS OF THE NAVAL RESERVE, ANTICIPATING AN EARLY TERMINATION OF THEIR SERVICES, ARE SOLICITING AND ACCEPTING ACTIVE DUTY IN THE NAVY UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8245, AND, RELYING ON YOUR DECISION IN THE HUGUENIN CASE, ARE APPLYING FOR ANNUAL LEAVE WITH PAY UNTIL THEIR ACCUMULATED LEAVE IS EXHAUSTED, NOTWITHSTANDING THE SAME WILL RUN CONCURRENTLY WITH THE RECEIPT OF THE NAVY PAY.

IN ORDER TO REMOVE ANY DOUBT IN THE PARTICULAR CASE PRESENTED AND AS A GUIDE IN SIMILAR CASES, IT IS REQUESTED THAT YOU ADVISE ME IF EMPLOYEES WHO ARE MEMBERS OF THE NAVAL RESERVE MAY BE CARRIED ON THE PAY ROLL AND PAID FOR ANNUAL LEAVE AFTER THEY HAVE ENTERED ON A PAY STATUS IN THE NAVY UNDER ORDERS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 8245, OF SEPTEMBER 8, 1939.

THE ORDER ISSUED TO LT. COMDR. ARTHUR C. EBERHARD IS DATED JULY 2, 1940, AND READS AS FOLLOWS:

JULY 2, 1940.

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: LIEUTENANT COMMANDER ARTHUR C. EBERHARD, CEC-V/S) USNR,

2970 SHERIDAN ROAD, CHICAGO, ILLINOIS.

VIA: THE COMMANDANT, NINTH NAVAL DISTRICT.

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. SUBJECT TO YOUR CONSENT AND TO THE EXECUTION OF ENCLOSURE (A), AND IN ACCORDANCE WITH THE AUTHORITY CONTAINED IN REFERENCES (A) AND (B), YOU WILL PROCEED FOR PHYSICAL EXAMINATION AS DIRECTED IN FIRST ENDORSEMENT HEREON. IF FOUND NOT PHYSICALLY QUALIFIED, YOU WILL PROCEED TO YOUR HOME AND CONSIDER FURTHER DIRECTIONS HEREIN CANCELED. IN THIS EVENT, OR IF YOU DO NOT CONSENT TO THIS DUTY, RETURN THESE ORDERS TO THE BUREAU OF NAVIGATION, VIA THE COMMANDANT. IF FOUND PHYSICALLY QUALIFIED, YOU WILL PROCEED AND REPORT FOR ACTIVE DUTY AS INDICATED BELOW:

TO CORPUS CHRISTI, TEXAS, AND TO THE OFFICER IN CHARGE OF CONSTRUCTION, NAVAL AIR STATION, AT THAT PLACE, FOR ACTIVE DUTY, REPORTING BY LETTER TO THE COMMANDANT, EIGHTH NAVAL DISTRICT.

THE RULE STATED IN DECISION OF APRIL 18, 1940, 19 COMP. GEN. 880, TO WHICH YOU REFER, IS AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE, ON ACTIVE DUTY OTHER THAN FOR "TRAINING" UNDER THE ACT OF JUNE 25, 1938, 52 STAT. 1175, WHO HAS SUFFICIENT ANNUAL LEAVE TO HIS CREDIT TO COVER THE REQUIRED PERIOD OF ABSENCE FROM HIS CIVILIAN POSITION, MAY BE PAID THE COMPENSATION OF HIS CIVILIAN POSITION FOR SUCH LEAVE, AS WELL AS HIS PAY AND ALLOWANCES AS A RESERVIST. DECISIONS RELATING TO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, DISTINGUISHED.

THE RULE STATED IN DECISION OF DECEMBER 5, 1939, 19 COMP. GEN. 552, TO WHICH, ALSO, YOU REFER, HAS BEEN RENDERED INOPERATIVE BY SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, MADE RETROACTIVELY EFFECTIVE TO JULY 1, 1936, BY SECTION 21 OF THE REGULATIONS. SEE IN THAT CONNECTION THE CONCLUDING PARAGRAPH OF 19 COMP. GEN. 880, BEGINNING AT FOOT OF PAGE 884.

EXECUTIVE ORDER NO. 8245, DATED SEPTEMBER 8, 1939, PROVIDES, IN PERTINENT 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; * * *

NOW, THEREFORE, BY VIRTUE OF THE AUTHORITY VESTED IN ME BY * * * THE ACT OF JUNE 25, 1938, TITLE I, SECTION 5 ( U.S.C. SUPP. TITLE 34, SECTION 853C), * * * IT IS HEREBY ORDERED AS FOLLOWS:

4. THE SECRETARY OF THE NAVY IS ALSO AUTHORIZED TO ORDER TO ACTIVE DUTY SUCH OFFICERS AND MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE, OTHER THAN TRANSFERRED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, INCLUDING AVIATION CADETS, AS HE MAY DEEM NECESSARY AND AS AGREE VOLUNTARILY TO SERVE.

SECTION 5 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1176, PROVIDES IN PART AS FOLLOWS:

ANY MEMBER OF THE NAVAL RESERVE, INCLUDING THOSE ON THE HONORARY RETIRED LIST CREATED BY SECTION 309, TITLE III, OF THIS ACT, OR WHO MAY HAVE BEEN RETIRED, MAY BE ORDERED TO ACTIVE DUTY BY THE SECRETARY OF THE NAVY IN TIME OF WAR OR WHEN IN THE OPINION OF THE PRESIDENT A NATIONAL EMERGENCY EXISTS AND MAY BE REQUIRED TO PERFORM ACTIVE DUTY THROUGHOUT THE WAR OR UNTIL THE NATIONAL EMERGENCY CEASES TO EXIST; BUT IN TIME OF PEACE, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, HE SHALL BE ORDERED TO OR CONTINUED ON ACTIVE DUTY WITH HIS OWN CONSENT ONLY: * * *

AS STATED BY YOU, SECTION 7 OF THE ACT FIXES THE PAY AND ALLOWANCES TO WHICH OFFICERS OF THE NAVAL RESERVE ON ACTIVE DUTY ARE ENTITLED. THE PAY AND ALLOWANCES ON ACTIVE DUTY OF LIEUTENANT COMMANDER EBERHARD WOULD NOT BE PAYABLE FROM THE APPROPRIATION " NAVAL RESERVE, 1940" AS YOU STATE. SEE IN THAT CONNECTION, THE ITEM " NAVAL RESERVE PERSONNEL ON ACTIVE DUTY" APPEARING IN THE ACT OF JUNE 11, 1940, PUBLIC, NO. 588, PAGE 13, 54 STAT. 276. HOWEVER, NOTHING APPEARS IN THE APPROPRIATION ACT JUSTIFYING ANY CONCLUSION OTHER THAN THAT MEMBERS OF THE NAVAL RESERVE ON ACTIVE DUTY WITH THE NAVY ARE ENTITLED TO THEIR PAY AND ALLOWANCES UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938.

IT IS CLEAR, THEREFORE, THAT THE RULE STATED ABOVE FROM THE DECISION OF APRIL 18, 1940, 19 COMP. GEN. 880, IS APPLICABLE IN THIS CASE. THAT IS TO SAY, BY VIRTUE OF SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, QUOTED IN YOUR LETTER, LIEUTENANT COMMANDER EBERHARD IS ENTITLED TO THE SALARY OF HIS CIVILIAN POSITION FOR THE PERIOD OF ANNUAL LEAVE TO HIS CREDIT AT THE TIME HE REPORTED FOR ACTIVE DUTY WITH THE NAVY AS A MEMBER OF THE NAVAL RESERVE AND, ALSO FOR THE SAME PERIOD, TO THE PAY AND ALLOWANCES AS AN OFFICER OF THE NAVAL RESERVE ON ACTIVE DUTY, NOTWITHSTANDING THE PROVISIONS OF THE DUAL COMPENSATION ACTS OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, AND JULY 31, 1894, 28 STAT. 205, AS AMENDED. IT IS TO BE UNDERSTOOD, OF COURSE THAT HE IS NOT ENTITLED TO ANY MILITARY LEAVE OF ABSENCE WITH PAY FROM HIS CIVILIAN POSITION BY REASON OF THE ACTIVE NAVAL SERVICE PERFORMED PURSUANT TO THE ORDER ISSUED TO HIM IN THIS INSTANCE. SEE THE DECISION OF APRIL 18, 1940, SUPRA. COMPARE THE DECISION OF AUGUST 29, 1940, B-11916, 20 COMP. GEN. 118, APPLICABLE TO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY.