B-153332, MAR. 16, 1964

B-153332, MAR. 16, 1964

TO THE SECRETARY OF THE TREASURY:

ON JANUARY 17, 1964, THE HONORABLE A. E. WEATHERBEE, ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTED OUR DECISION AS TO THE PROPER STATUS FOR CARRYING A CIVILIAN EMPLOYEE ON THE ROLLS OF THE INTERNAL REVENUE SERVICE AFTER THE EXPIRATION OF 15 DAYS' MILITARY LEAVE BUT DURING HIS CONFINEMENT IN AN ARMY HOSPITAL AS A RESULT OF A HEART ATTACK WHILE ON ACTIVE MILITARY DUTY WITH THE NATIONAL GUARD.

THE EMPLOYEE, MR. ARNE JOHNSON, WAS ORDERED TO ACTIVE DUTY FOR TRAINING FROM JULY 28 THROUGH AUGUST 11, 1963, AS A MAJOR IN THE TEXAS ARMY NATIONAL GUARD. ON JULY 31 HE HAD A HEART ATTACK AND WAS RETAINED IN THE MILITARY SERVICE FOR HOSPITALIZATION. HIS STATUS ON YOUR ROLLS WAS MILITARY LEAVE FROM MONDAY, JULY 29 THROUGH MONDAY, AUGUST 12; ANNUAL LEAVE FROM AUGUST 13 THROUGH AUGUST 16; AND MILITARY FURLOUGH FROM SATURDAY, AUGUST 17 THROUGH OCTOBER 15.

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT, FROM THE CIRCUMSTANCES, IT IS ASSUMED THAT THE HEART ATTACK WAS DETERMINED BY THE MILITARY TO HAVE BEEN INCURRED IN THE LINE OF DUTY; AND, ALSO, THAT IT IS UNDERSTOOD THAT MR. JOHNSON DREW FULL MILITARY PAY AND ALLOWANCES FROM JULY 28 THROUGH OCTOBER 15, 1963. MR. JOHNSON HAS ASKED FOR SICK LEAVE FROM AUGUST 19 UNTIL HIS RETURN TO HIS CIVIL SERVICE POSITION ON OCTOBER 16. THE QUESTION SPECIFICALLY ASKED BY YOUR DEPARTMENT IS WHETHER ANNUAL OR SICK LEAVE IS PERMISSIBLE WHILE MR. JOHNSON WAS DRAWING FULL MILITARY PAY AND ALLOWANCES FROM AUGUST 13 THROUGH OCTOBER 15.

IN THIS CONNECTION IT IS ASKED WHETHER OUR DECISION IN 30 COMP. GEN. 476 WOULD APPLY TO MR. JOHNSON'S CASE. THAT DECISION CONCERNED THE APPLICATION OF SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, 5 U.S.C. 58, TO A SIMILAR QUESTION CONCERNING MEMBERS OF THE ARMY AND AIR FORCE RESERVES. SECTION 6 PROVIDES THAT:

"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * * " IT WAS HELD THAT, IN VIEW OF THE PROVISIONS OF THE ACT OF MAY 12, 1917, CH. 12, 40 STAT. 72, AS AMENDED, AND THE ACT OF APRIL 3, 1939, AS AMENDED, 63 STAT. 202,"THERE WOULD BE NO PROPER BASIS FOR DENYING MEMBERS OF THE OFFICERS' RESERVE CORPS OR THE ENLISTED RESERVE CORPS THE COMPENSATION OF THEIR CIVILIAN POSITIONS, WHILE ON ANNUAL OR SICK LEAVE THEREFROM, MERELY BECAUSE AT THE TIME THEY WERE IN RECEIPT OF THEIR MILITARY PAY AND ALLOWANCES WHILE HOSPITALIZED BECAUSE OF THEIR INJURIES OR AWAITING ACTION ON DISABILITY RETIREMENT PROCEEDINGS IF SUCH PROCEEDINGS ARE INSTITUTED. OF COURSE, IF SUCH AN EMPLOYEE IS NOT ACTUALLY CONFINED IN A HOSPITAL, EVEN THOUGH HE IS NOT DISCHARGED THEREFROM, HE WOULD NOT BE ENTITLED TO HIS MILITARY PAY AND ALLOWANCES IN THE ABSENCE OF AN AFFIRMATIVE DETERMINATION BY THE PROPER AUTHORITIES OF THE SERVICE CONCERNED THAT HE CONTINUED TO BE DISABLED FOR HIS NORMAL CIVILIAN PURSUITS AND THE FAILURE TO DISCHARGE HIM FROM THE HOSPITAL WAS BECAUSE OF THE CONTINUED EXISTENCE OF THE DISABILITY FOR WHICH HE WAS ORIGINALLY HOSPITALIZED.'

PROVISIONS COVERING MEMBERS OF THE NATIONAL GUARD COMPARABLE TO THOSE IN SECTIONS 10 U.S.C. 3687 AND 3721, WHICH WERE DERIVED FROM THE ACT OF APRIL 3, 1939, ARE NOT INCLUDED IN 32 U.S.C. 318, WHICH PROVIDES THAT:

"A MEMBER OF THE NATIONAL GUARD IS ENTITLED TO THE HOSPITAL BENEFITS, PAY AND ALLOWANCES, PENSIONS, AND OTHER COMPENSATION PROVIDED BY LAW OR REGULATION FOR A MEMBER OF THE REGULAR ARMY OR THE REGULAR AIR FORCE, AS THE CASE MAY BE, OF CORRESPONDING GRADE AND LENGTH OF SERVICE, WHENEVER HE IS CALLED OR ORDERED TO PERFORM TRAINING UNDER SECTION 502, 503, 504, OR 505 OF THIS TITLE---

"/1) FOR A PERIOD OF MORE THAN 30 DAYS, AND IS DISABLED IN LINE OF DUTY FROM DISEASE WHILE SO EMPLOYED; OR

"/2) FOR ANY PERIOD OF TIME, AND IS DISABLED IN LINE OF DUTY FROM INJURY WHILE SO EMPLOYED.'

THE APPLICATION OF THIS SECTION TO THE FACTS OF THIS CASE IS HELD NOT TO PLACE THE MEMBER IN AN ACTIVE DUTY STATUS SINCE THE SECTION DOES NOT PROVIDE THAT THE MEMBER SHALL BE CONSIDERED IN ACTIVE MILITARY SERVICE WHILE IN RECEIPT OF THE BENEFITS THEREIN AUTHORIZED. CF. 41 COMP. GEN. 706.

PROVISIONS SIMILAR TO THOSE IN THE ACT OF MAY 12, 1917, AND SIMILAR STATUTES APPLYING TO OTHER RESERVE MEMBERS ARE NOW TO BE FOUND IN SECTION 29 (C) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, AS AMENDED, 5 U.S.C. 30R (C), WHICH PROVIDES THAT:

"ANY RESERVE OR MEMBER OF THE NATIONAL GUARD MAY ACCEPT ANY CIVILIAN POSITION UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND MAY RECEIVE THE PAY INCIDENT TO THAT EMPLOYMENT IN ADDITION TO PAY AND ALLOWANCES AS A RESERVE OR MEMBER OF THE NATIONAL GUARD. MEMBERSHIP IN A RESERVE COMPONENT OF THE ARMED FORCES OR IN THE NATIONAL GUARD DOES NOT PREVENT A PERSON FROM PRACTICING HIS CIVILIAN PROFESSION OR OCCUPATION BEFORE, OR IN CONNECTION WITH, ANY DEPARTMENT OF THE UNITED STATES.'

THUS, THE HOLDING IN 30 COMP. GEN. 476 WOULD BE APPLICABLE TO MRS. JOHNSON, AND THE GRANTING OF THE SICK AND ANNUAL LEAVE FOR THE PERIODS IN QUESTION, IF OTHERWISE PROPER, WOULD BE PERMISSIBLE NOTWITHSTANDING THE CONCURRENT PAYMENT OF THE MILITARY PAY AND ALLOWANCES.