B-16586, JUNE 3, 1941, 20 COMP. GEN. 847

B-16586, JUNE 3, 1941, 20 COMP. GEN. 847

CIVILIAN EMPLOYEES ORDERED TO ACTIVE NAVAL DUTY - LEAVES OF ABSENCE AND RESTORATION TO POSITIONS A GOVERNMENT EMPLOYEE ENLISTED AS A SEAMAN IN THE NAVAL RESERVE, AND ORDERED TO ACTIVE SERVICE, FOR THE PURPOSE OF TAKING A 30-DAY "ELIMINATION FLIGHT TRAINING COURSE TO DETERMINE HIS FITNESS FOR APPOINTMENT AS A NAVAL RESERVE AVIATION CADET MAY BE CONSIDERED ON "TRAINING DUTY" WITHIN THE MEANING OF SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, AND, THEREFORE, ENTITLED TO THE 15 DAYS' MILITARY LEAVE WITH PAY GRANTED GOVERNMENT EMPLOYEES BY THAT ACT. "ACTIVE DUTY OTHER THAN FOR TRAINING" FOR WHICH MILITARY LEAVE IS NOT ALLOWABLE, DISTINGUISHED. THE BENEFITS OF SECTION 3, AS AMENDED, OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, RELATING TO RESTORATION TO CIVILIAN POSITIONS, ETC., EXTEND TO NAVAL RESERVE AVIATION CADETS WHO MAY BE REQUIRED TO SERVE ON ACTIVE DUTY FOR FOUR YEARS, AS WELL AS TO OTHER MEMBERS OF THE NAVAL RESERVE. 20 COMP. GEN. 257, INVOLVING AN ARMY AIR CORPS FLYING CADET, DISTINGUISHED. A CIVILIAN EMPLOYEE IS NOT ENTITLED TO "MILITARY FURLOUGH" FOR THE PERIOD OF HIS ACTIVE DUTY IN THE NAVAL RESERVE, BUT IT IS WITHIN ADMINISTRATIVE DISCRETION WHETHER HIS SERVICES BE TERMINATED OR HE BE CARRIED ON THE PAY ROLLS ON LEAVE WITHOUT PAY DURING SUCH PERIOD. IN EITHER EVENT, HIS RIGHTS UNDER SECTION 3, AS AMENDED, OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, TO RESTORATION TO HIS CIVILIAN POSITION, ETC., ARE THE SAME UPON RELIEF FROM ACTIVE NAVAL DUTY.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN OF THE FEDERAL TRADE COMMISSION, JUNE 3, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 1, 1941, AS FOLLOWS:

MR. HUGH B. HELM, AN ATTORNEY IN THE FEDERAL TRADE COMMISSION, HAS RECEIVED THE FOLLOWING COMMUNICATIONS:

" NAVAL AVIATION CADET SELECTION BOARD,

U.S. NAVAL RESERVE AVIATION BASE,

WASHINGTON ( ANACOSTIA), D.C., FEBRUARY 28, 1941.

" MR. HUGH B. HELM,

1735 CONN. AVE., WASHINGTON, D.C.

"DEAR SIR: YOU ARE HEREBY ADVISED THAT YOU HAVE BEEN SELECTED FOR AVIATION TRAINING IN THE CLASS COMMENCING ON MARCH 14, 1941, AT THIS BASE.

"IT IS REQUESTED THAT YOU REPORT TO THIS BASE AT 8 A.M. ON THE ABOVE DATE FOR FINAL PHYSICAL CHECKUP AND TO START TRAINING.

"OFFICIAL ORDERS AND TRANSPORTATION ALLOTMENT ARE BEING SENT YOU, BUT IF YOU DO NOT RECEIVE THEM, REPORT HERE FOR DUTY ANYWAY.

"UNIFORMS WILL BE FURNISHED YOU HERE, AND YOU WILL BE SUBSISTED AND QUARTERED ON THIS STATION. YOU SHOULD FURNISH YOURSELF WITH TOWELS, SOAP, TOILET ARTICLES, AND SUCH CIVILIAN CLOTHES AS YOU MAY DESIRE TO WEAR WHILE ON LIBERTY.

"UNDER NORMAL CIRCUMSTANCES, YOU WILL HAVE FROM FIVE TO SIX DAYS' LEAVE BETWEEN COMPLETION OF TRAINING HERE AND YOUR ARRIVAL AT PENSACOLA, SO YOU MAY USE THIS TIME TO GATHER TOGETHER OTHER PERSONAL ITEMS WHICH WILL BE NEEDED AT PENSACOLA FOR YOUR TERM OF DUTY THERE.

"PLEASE ACKNOWLEDGE RECEIPT OF THIS LETTER.

"VERY TRULY YOURS,

") SGD) CLARK BUCKNAM,

LT. ( J.G.), A-O, USNR.'

" UNITED STATES NAVY YARD.

" WASHINGTON, D.C.,

" COMMANDANT'S OFFICE,

MARCH 6, 1941.

"FROM: COMMANDANT.

"TO: HELM, HUGH BARNETT. 4147437.

1735 CONN. AVE. NW., WASH., D.C.

SEA/2C

V-5

U.S.N.R. 2-24-4.

"SUBJECT: ORDERS FOR TRAINING DUTY WITH PAY.

"1. HAVING REQUESTED AVIATION TRAINING DUTY IN THE NAVAL RESERVE, YOU WILL PROCEED TO ANACOSTIA, D.C., AND REPORT TO THE MEDICAL OFFICER, NAVAL RESERVE AVIATION BASE, FOR PHYSICAL EXAMINATION.

"2. IF YOU ARE FOUND NOT PHYSICALLY QUALIFIED, PARAGRAPHS 3, 4, AND 5 OF THIS ORDER WILL BE CANCELED, AND YOU WILL RETURN TO YOUR HOME.

"3. IF FOUND PHYSICALLY AND PSYCHOLOGICALLY QUALIFIED TO SERVE AS PILOT OF NAVAL AIRCRAFT, YOU WILL REPORT TO THE COMMANDING OFFICER, NAVAL RESERVE AVIATION BASE, WASHINGTON, D.C., ON MARCH 14, 1941, FOR ELIMINATION FLIGHT TRAINING DUTY WITH PAY. UPON FAILURE AT ANY STAGE OF YOUR TRAINING YOU WILL, WHEN DIRECTED BY YOUR COMMANDING OFFICER, PROCEED TO YOUR HOME AND UPON ARRIVAL REGARD YOURSELF RELEASED FROM TRAINING DUTY. IF UPON COMPLETION OF ELIMINATION FLIGHT TRAINING YOU ARE FOUND QUALIFIED FOR APPOINTMENT AS AVIATION CADET, YOU WILL BE RETAINED ON TRAINING DUTY WITH PAY, NOT INVOLVING FLYING, AT THE NAVAL RESERVE AVIATION BASE, WASHINGTON, D.C., TO AWAIT FURTHER TRANSFER TO A NAVAL FLIGHT TRAINING CENTER.

"4. BRING THESE ORDERS WITH YOU UPON REPORTING FOR TRAINING DUTY. INABILITY TO COMPLY WITH THESE ORDERS MUST BE REPORTED TO YOUR COMMANDING OFFICER IMMEDIATELY.

"5. YOU ARE ENTITLED TO ACTIVE-DUTY PAY OF YOUR RATING AS INDICATED IN THESE ORDERS DURING THE PERIOD OF YOUR TRAINING DUTY AND FOR THE TIME REQUIRED IN TRAVELING (BY THE SHORTEST USUALLY TRAVELED ROUTE), FROM YOUR HOME TO PLACE OF REPORTING AND FROM PLACE OF DETACHMENT TO YOUR HOME UPON COMPLETION OF TRAINING DUTY. YOU ARE HEREBY DETAILED TO DUTY REQUIRING YOU TO PARTICIPATE REGULARLY AND FREQUENTLY IN AERIAL FLIGHTS, EFFECTIVE DURING YOUR PERIOD OF ELIMINATION TRAINING.

"THE ABOVE-NAMED ENLISTED MAN IS NOT DRAWING A PENSION, DISABILITY ALLOWANCE, DISABILITY COMPENSATION, OR RETIRED PAY FROM THE GOVERNMENT OF THE UNITED STATES, AND THAT HE DOES NOT HAVE A CLAIM PENDING THEREFOR.

" GEO. PETTENGILL, COMMANDANT.

" A. B. MCCRARY

"/BY DIRECTION).'

UPON RECEIPT OF THESE COMMUNICATIONS MR. HELM REQUESTED 25 DAYS' MILITARY LEAVE WITH PAY, ALSO SEEKS TO COME UNDER THE PRIVILEGES OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AND/OR PUBLIC RESOLUTION 96, 76TH CONGRESS, AND REQUESTS MILITARY FURLOUGH UNTIL HIS SERVICE ENDS AND HE RETURNS TO CIVIL LIFE.

THE ORDER CITED HEREIN ESTABLISHES THE FACT THAT HE IS A MEMBER OF THE NAVAL RESERVE, I.E., SEAMAN, SECOND CLASS, AND THE SUBJECT OF THE ORDER IS " ORDERS FOR TRAINING DUTY WITH PAY.'

THE NAVAL RESERVE ACT READS IN PART AS FOLLOWS (34 U.S.C.A. 853G):

"PROVIDED, THAT ALL OFFICERS AND EMPLOYEES 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.'

IN 19 C.G. 880 IT WAS HELD THAT A CIVILIAN EMPLOYEE MAY BE GRANTED A MAXIMUM OF 15 DAYS OF MILITARY LEAVE IN ANY CALENDAR YEAR FOR "TRAINING DUTY" AS A MEMBER OF THE NAVAL RESERVE, WHETHER ORDERED TO SUCH TRAINING DUTY WITH OR WITHOUT HIS CONSENT. IN 20 C.G. 375 IT WAS HELD THAT A NAVAL RESERVE OFFICER ASSIGNED TO DUTY INVOLVING INSTRUCTION OR TRAINING IS NOT, BY REASON OF SUCH ASSIGNMENT, ENTITLED TO THE BENEFITS OR SUBJECTED TO THE LIMITATIONS WHICH WOULD BE APPLICABLE IF HE WERE ORDERED TO TRAINING DUTY UNDER THE NAVAL RESERVE ACT OF 1938, AND, ALTHOUGH HE IS ALSO A CIVILIAN EMPLOYEE OF THE GOVERNMENT,HE IS NOT ENTITLED TO THE MILITARY LEAVE PROVIDED BY SECTION 9 OF SAID ACT FOR TRAINING DUTY.

MR. HELM WAS REQUIRED TO REGISTER UNDER THE SELECTIVE SERVICE AND TRAINING ACT. SUBSEQUENTLY, HE BECAME A MEMBER OF THE NAVAL RESERVE AND SUBJECT TO DUTY AS SUCH.

IT WILL BE NOTED THAT MR. HELM REQUESTED AVIATION TRAINING DUTY. IF HE IS SUCCESSFUL, HE WILL BE APPOINTED AN AVIATION CADET. THE QUESTION ARISES AS TO WHETHER THIS FLIGHT TRAINING DUTY MAY BE NORMALLY CONSIDERED AS TRAINING DUTY OFFERED ANNUALLY ("IN ANY ONE CALENDAR YEAR") AND ENTITLE HIM TO 15 DAYS OF MILITARY LEAVE, OR REGARDED AS PRELIMINARY FLIGHT TRAINING FOR TESTING THE RESERVIST PRIOR TO APPOINTMENT AS AN AVIATION CADET.

THE NAVAL AVIATION RESERVE ACT OF 1939 ESTABLISHES THE GRADE OF AN AVIATION CADET AS FOLLOWS (34 U.S.C.A. SEC. 842):

"THE GRADE OF AVIATION CADET IS HEREBY CREATED IN THE NAVAL RESERVE AND MARINE CORPS RESERVE. AVIATION CADETS SHALL BE APPOINTED BY THE SECRETARY OF THE NAVY FROM MALE CITIZENS OF THE UNITED STATES UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE: PROVIDED, THAT EACH AVIATION CADET SHALL SIGN AN AGREEMENT, TO SERVE FOR A CONTINUOUS PERIOD OF FOUR YEARS ON ACTIVE DUTY, UNLESS SOONER RELEASED: PROVIDED FURTHER, THAT THE SECRETARY OF THE NAVY IS AUTHORIZED TO DISCHARGE AT ANY TIME ANY AVIATION CADET, OR TO RELEASE HIM FROM ACTIVE DUTY.'

IT APPEARS THAT MR. HELM IS IN TRAINING FOR A POSSIBLE FOUR-YEAR PERIOD OF ACTIVE DUTY AS AN AVIATION CADET. THE SELECTIVE TRAINING AND SERVICE ACT AND PUBLIC RESOLUTION NO. 96 CONTEMPLATE A TRAINING PERIOD OF 12 MONTHS' ACTIVE DUTY; THE SELECTIVE SERVICE ACT CONTINUES "EXCEPT THAT WHENEVER CONGRESS HAS DECLARED THAT THE NATIONAL INTEREST IS IMPERILED, SUCH TWELVE-MONTH PERIOD MAY BE EXTENDED BY THE PRESIDENT TO SUCH TIME AS MAY BE NECESSARY IN THE INTEREST OF DEFENSE.'

SOME DOUBT ARISES AS TO WHETHER THESE ACTS ANTICIPATE COVERING AN APPOINTMENT, AT THE REQUEST OF A MEMBER OF THE NAVAL RESERVE, AS AN AVIATION CADET IN THE NAVAL RESERVE WHO AGREES TO A FOUR-YEAR PERIOD OF SERVICE AS ESTABLISHED UNDER A PRIOR ACT.

IN VIEW OF THE CIRCUMSTANCES HEREIN SET FORTH, IT WILL BE APPRECIATED IF AN EARLY REPLY IS GIVEN THE FOLLOWING:

1. IS MR. HELM ENTITLED TO 15 DAYS OF MILITARY LEAVE WITH PAY?

2. IS HE ENTITLED TO MILITARY FURLOUGH FOR HIS PERIOD OF MILITARY SERVICE WITH RESTORATION OF POSITION AS PROVIDED UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 OR PUBLIC RESOLUTION 96?

THE PROVISO OF SECTION 9 OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1175, 1177, READS AS OLLOWS:

* * * 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. ( ITALICS SUPPLIED.)

IN DECISION OF APRIL 18, 1940, 19 COMP. GEN. 880, IT WAS HELD THAT A CIVILIAN EMPLOYEE MAY BE GRANTED A MAXIMUM OF 15 DAYS' MILITARY LEAVE IN ANY CALENDAR YEAR FOR TRAINING DUTY AS A MEMBER OF THE NAVAL RESERVE, WHETHER ORDERED TO SUCH TRAINING DUTY WITH OR WITHOUT HIS CONSENT, BUT THAT HE IS NOT ENTITLED TO MILITARY LEAVE FOR ACTIVE DUTY OTHER THAN FOR "TRAINING.' SEE ALSO 20 COMP. GEN. 158; ID. 163; ID. 375.

IT APPEARS THAT MR. HELM WAS A CIVILIAN AT THE TIME OF HIS SELECTION AS A CANDIDATE FOR APPOINTMENT AS AN AVIATION CADET IN THE NAVAL RESERVE. SUCH CANDIDATE HE WAS ENLISTED AS A SEAMAN, SECOND CLASS, V-5, IN THE NAVAL RESERVE, FOR THE PURPOSE OF TAKING A COURSE IN "ELIMINATION FLIGHT TRAINING" WHICH COURSE GENERALLY REQUIRES APPROXIMATELY 30 DAYS FOR COMPLETION AND IS GIVEN PRIMARILY TO TRAIN CANDIDATES SO THAT THEIR RELATIVE FITNESS FOR APPOINTMENT AS AVIATION CADETS MAY BE BETTER DETERMINED. SEE ARTICLE H-10401, BUREAU OF NAVIGATION MANUAL. DURING THE "ELIMINATION FLIGHT TRAINING COURSE" THIS CANDIDATE FOR APPOINTMENT AS AVIATION CADET WAS AN ENLISTED MAN OF THE NAVAL RESERVE IN ACTIVE SERVICE IN A PAY STATUS. IN THE LETTER HE RECEIVED FROM THE NAVAL AVIATION CADET SELECTION BOARD, DATED FEBRUARY 28, 1941, AND IN HIS ORDERS OF MARCH 6, 1941, THERE ARE REPEATED REFERENCES TO "TRAINING" AND "TRAINING DUTY" WHICH INDICATE THAT THE NAVAL AUTHORITIES CONSIDER THE DUTY INVOLVED AS "TRAINING DUTY" RATHER THAN "ACTIVE DUTY OTHER THAN FOR TRAINING.' THIS PARTICULAR TYPE OF ACTIVE SERVICE AS AN ENLISTED MAN OF THE NAVAL RESERVE IS DISTINGUISHABLE FROM THE "ACTIVE DUTY OTHER THAN FOR TRAINING" FOR WHICH MILITARY LEAVE IS NOT ALLOWABLE UNDER THE DECISIONS CITED ABOVE. FOR INSTANCE, IN 20 COMP. GEN. 158, THE ACTIVE DUTY INVOLVED WAS DUTY FOR APPROXIMATELY 1 YEAR UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 858. IN THIS CASE THE "SUBJECT" OF THE ORDER IS " ORDERS FOR TRAINING DUTY WITH PAY; " THE REGULATIONS INDICATE THAT THIS PERIOD OF TRAINING IS LIMITED TO APPROXIMATELY 30 DAYS; AND THE ACTUAL TYPE OF DUTY CONTEMPLATED BY THE ORDERS AND REGULATIONS REASONABLY MAY BE CONSIDERED WITHIN THE TERM "TRAINING DUTY" AS USED IN SECTION 9, SUPRA. ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WHILE IT APPEARS THAT MR. HELM REGISTERED IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 885, HE WAS NOT INDUCTED INTO THE LAND OR NAVAL FORCES UNDER THE PROVISIONS OF THAT ACT; INSTEAD, HE BECAME A MEMBER OF THE NAVAL RESERVE AND WAS ORDERED TO ACTIVE DUTY AS SUCH MEMBER. CONSEQUENTLY, THAT ACT IS RELEVANT TO YOUR SECOND QUESTION ONLY SO FAR AS SECTION 3 OF PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, 54 STAT. 859, WAS AMENDED THEREBY.

THE PROVISIONS OF SECTION 3 OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940, 54 STAT. 859, AS AMENDED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHICH ARE PERTINENT TO YOUR SECOND QUESTION, ARE AS FOLLOWS:

SEC. 3. (A) ANY MEMBER OF ANY RESERVE COMPONENT OF THE LAND OR NAVAL FORCES WHO IS ON ACTIVE DUTY OR WHO MAY BE ASSIGNED TO ACTIVE DUTY AND WHO IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES SUCH ACTIVE DUTY, AND ANY PERSON SO ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES THE PERIOD OF SERVICE REQUIRED UNDER THIS JOINT RESOLUTION, SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH ACTIVE DUTY OR SUCH PERIOD OF SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED. * *

(B) IN THE CASE OF ANY SUCH PERSON WHO, IN ORDER TO PERFORM SUCH ACTIVE DUTY OR SUCH SERVICE, HAS LEFT OR LEAVES A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN FORTY DAYS AFTER HE IS RELIEVED FROM SUCH ACTIVE DUTY OR SERVICE -- (A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY;

(C) (AS AMENDED BY SECTION 8 (D) OF THE ACT OF SEPTEMBER 16, 1940, 54 STAT. 891) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPHS (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS ORDERED INTO SUCH SERVICE, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.

BY THE TERMS OF SECTION 1 OF THE AFORESAID PUBLIC RESOLUTION THE PRESIDENT IS AUTHORIZED TO ORDER RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES AND RETIRED PERSONNEL OF THE REGULAR ARMY INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES FOR A PERIOD OF 12 CONSECUTIVE MONTHS, AND THE FACT THAT RESERVE COMPONENTS OF THE NAVY ARE ORDERED TO ACTIVE DUTY UNDER OTHER STATUTORY PROVISIONS GIVES RISE TO SOME DOUBT WHETHER THE TERMS OF SECTION 3, SUPRA, APPLY TO ALL MEMBERS OF ALL RESERVE COMPONENTS OF THE NAVY ORDERED TO ACTIVE DUTY--- REGARDLESS OF THE DURATION OF SUCH DUTY--- INCLUDING AVIATION CADETS OF THE NAVAL RESERVE ACT OF 1938, 52 STAT. 1176, MAY BE REQUIRED TO SERVE ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF 4 YEARS FROM DATE OF APPOINTMENT. THE WORDING OF SECTION 3 (A) IS THE RESULT OF AMENDMENTS OFFERED ON THE FLOOR OF THE SENATE. BEFORE THE PRINCIPAL AMENDMENT, THE WORDING OF THE FIRST PART OF THE PROPOSED SECTION 3 WAS AS FOLLOWS:

SEC. 3. (A) ANY PERSON SO ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES WHO, IN THE JUDGMENT OF THOSE IN AUTHORITY OVER HIM, SATISFACTORILY COMPLETES THE PERIOD OF SERVICE REQUIRED UNDER THIS JOINT RESOLUTION SHALL BE ENTITLED TO A CERTIFICATE TO THAT EFFECT UPON THE COMPLETION OF SUCH PERIOD OF SERVICE, WHICH SHALL INCLUDE A RECORD OF ANY SPECIAL PROFICIENCY OR MERIT ATTAINED.

(B) IN THE CASE OF ANY PERSON WHO BY REASON OF BEING ORDERED INTO SUCH ACTIVE MILITARY SERVICE IS REQUIRED TO LEAVE A POSITION, OTHER THAN A TEMPORARY POSITION, IN THE EMPLOY OF ANY EMPLOYER AND WHO (1) RECEIVES SUCH CERTIFICATE OF SATISFACTORY SERVICE, (2) IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, AND (3) MAKES APPLICATION FOR REEMPLOYMENT WITHIN 40 DAYS AFTER HE IS RELIEVED FROM SUCH SERVICE---

(A) IF SUCH POSITION WAS IN THE EMPLOY OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, SUCH PERSON SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE STATUS AND PAY.

PRIOR TO THE AMENDMENT THE TERMS OF SECTION 3 CLEARLY WERE APPLICABLE ONLY TO PERSONS ORDERED INTO THE ACTIVE SERVICE OF THE UNITED STATES UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, THAT IS, RESERVE COMPONENTS OF THE ARMY OF THE UNITED STATES AND RETIRED PERSONNEL OF THE REGULAR ARMY. THE AMENDMENT WAS OFFERED BY SENATOR AUSTIN AND ITS INTENDED EFFECT, AS EXPLAINED BY HIM ON THE FLOOR OF THE SENATE, IS AS FOLLOWS (QUOTING FROM THE CONGRESSIONAL RECORD OF AUGUST 6, 1940, VOLUME 86, PART 9, PAGE 9927):

MR. HILL. MR. PRESIDENT, I AM NOT SURE THAT I UNDERSTOOD THE SENATOR'S AMENDMENT.

THE PRESIDING OFFICER. FOR THE INFORMATION OF THE SENATE, THE CLERK WILL AGAIN STATE THE AMENDMENT.

MR. HILL. I AM NOT ASKING THAT IT BE RESTATED. I DO NOT KNOW THAT EVEN A READING OF THE LANGUAGE WOULD TELL US EXACTLY THE SCOPE OF THE AMENDMENT. WILL THE SENATOR EXPLAIN HIS MENDMENT?

MR. ALSTIN. I WILL EXPLAIN THE EFFECT OF IT.

IF AGREED TO, THIS AMENDMENT WOULD ACCORD TO MEMBERS OF THE RESERVE COMPONENTS WHO HAVE OFFERED THEIR SERVICE TO THE COUNTRY, OR WHO HAVE BEEN TAKEN INTO ACTIVE DUTY WITH THEIR CONSENT, THE SAME STATUS THAT IS ACCORDED TO CONSCRIPTS BY THE AMENDMENT. IF THIS AMENDMENT SHOULD NOT BE AGREED TO, THE CONSCRIPT OR ENROLLEE UNDER THE CONSCRIPTION PROVISION AND UNDER THE ORDER WOULD HAVE A STATUS NOT GRANTED TO THE MEN WHO VOLUNTEER THEIR SERVICES OR WHO ARE NOW ALREADY IN EXTENDED ACTIVE SERVICE WITH THEIR CONSENT. OF COURSE, IT IS AN EQUITABLE THING TO DO, AND FROM THE POINT OF VIEW OF PATRIOTISM IT IS A WORTHY THING TO DO.

THIS AMENDMENT RELATES TO THE EMPLOYMENT--- THAT IS, THE JOBS--- FROM WHICH THE ENROLLEE OR CONSCRIPT OR PERSON ORDERED IS TAKEN, AND MAKES AS GOOD PROVISION AS THE COMMITTEE THOUGHT COULD BE MADE AND WAS PRACTICABLE FOR ASSURING THE RETURN OF THESE BOYS TO THE JOBS WHICH THEY ARE CALLED UPON TO LEAVE WHEN THEY GO INTO THE SERVICE OF THEIR COUNTRY UNDER THIS JOINT RESOLUTION.

THIS IS EXACTLY THE SAME AMENDMENT WHICH WAS OFFERED BY ME IN COMMITTEE YESTERDAY, I BELIEVE, AND ACCEPTED AS A PART OF THE CORRESPONDING LABOR PROVISION OF THE CONSCRIPTION BILL. SO FAR AS I KNOW, THERE IS NO DIFFERENCE AT ALL EXCEPT IN A MATTER OF TEXT WHICH I CANNOT REMEMBER. SEEMS TO ME THERE WAS A SLIGHT CHANGE, BUT IT IS NOT SERIOUSLY MATERIAL. IN OTHER WORDS, IT IS THE AIM OF THE AMENDMENT TO TREAT ALIKE ALL THOSE WHO SERVE THEIR COUNTRY IN BOTH THE LAND AND THE NAVAL FORCES OF THE COUNTRY.

THE STATEMENT OF SENATOR AUSTIN INDICATES THAT AT LEAST IT WAS HIS PURPOSE TO EXTEND THE BENEFITS OF SECTION 3 TO RESERVES OF THE LAND AND NAVAL FORCES "WHO VOLUNTEER THEIR SERVICES OR WHO ARE NOT ALREADY IN EXTENDED ACTIVE SERVICE WITH THEIR CONSENT.' IN ANY EVENT, IT SEEMS CLEAR FROM THE LANGUAGE OF THE AMENDMENT THAT THE CONGRESS INTENDED TO EXTEND THE BENEFITS OF SECTION 3 TO MEMBERS OF THE NAVAL RESERVE AND THE LANGUAGE OF SECTION 3 IS NOT REASONABLY SUSCEPTIBLE OF AN INTERPRETATION WHICH WOULD EXCLUDE FROM THE BENEFITS OF SUCH SECTION A NAVAL RESERVIST ON ACTIVE DUTY FOR A PERIOD COMPARABLE TO THE 12 CONSECUTIVE MONTHS FOR WHICH ARMY RESERVE PERSONNEL ARE ORDERED TO ACTIVE DUTY UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96. THE FACT THAT AVIATION CADETS OF THE NAVAL RESERVE ARE REQUIRED TO AGREE TO REMAIN ON ACTIVE DUTY FOR A CONTINUOUS PERIOD OF 4 YEARS FROM DATE OF APPOINTMENT (SEE ARTICLE H-10302, BUREAU OF NAVIGATION MANUAL) DOES NOT NECESSARILY JUSTIFY A DISTINCTION BETWEEN THEM AND OTHER NAVAL RESERVISTS ON ACTIVE DUTY OR REQUIRE A HOLDING THAT THEIR INCLUSION WITHIN THE TERMS OF SECTION 3 WOULD BE ABSURD, OR EVEN UNREASONABLE.

THE ACT OF APRIL 15, 1935, 49 STAT. 156, ESTABLISHES THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE AND PROVIDES IN SECTION 4 AS FOLLOWS:

SEC. 4. AVIATION CADETS SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, BE SUBJECT TO ALL THE LAWS AND REGULATIONS PRESCRIBED FOR OTHER MEMBERS OF THE NAVAL RESERVE OR THE MARINE CORPS RESERVE * * *.

THE GRADE OF AVIATION CADET IN THE NAVAL RESERVE IS DIFFERENT FROM THAT OF FLYING CADET IN THE ARMY AIR CORPS, SINCE THE LATTER GRADE WAS ESTABLISHED IN THE REGULAR ARMY BY THE ACT OF JULY 11, 1919, 41 STAT. 109, AND, HENCE, THE HOLDING IN 20 COMP. GEN. 257, THAT A CIVILIAN EMPLOYEE WHO WAS APPOINTED A FLYING CADET IN THE ARMY AIR CORPS RELINQUISHED ALL RIGHTS WITH RESPECT TO HIS CIVILIAN POSITION, IS NOT CONTROLLING IN THIS CASE.

IN VIEW OF THE FOREGOING, IT WOULD APPEAR THAT AVIATION CADETS IN THE NAVAL RESERVE ARE ENTITLED TO THE BENEFITS OF SECTION 3 OF PUBLIC RESOLUTION NO. 96 THE SAME AS ARE OTHER MEMBERS OF THE NAVAL RESERVE.

SECTION 3 (C) OF PUBLIC RESOLUTION NO. 96, AS AMENDED, DOES NOT PROVIDE THAT PERSONS IN THE ACTIVE MILITARY SERVICE SHALL BE GRANTED A FURLOUGH FROM THEIR CIVILIAN POSITIONS WHEN THEY ENTER SUCH ACTIVE MILITARY OR NAVAL DUTY, OR THAT THEY SHALL BE REGARDED AS ON FURLOUGH FROM SUCH POSITIONS DURING THEIR ACTIVE MILITARY OR NAVAL DUTY, BUT ONLY THAT THEY "SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE" WHEN THEY RETURN TO THEIR CIVILIAN POSITIONS UNDER THE CONDITIONS PRESCRIBED IN THE ACT. ACCORDINGLY, WITH REFERENCE TO YOUR SECOND QUESTION, MR. HELM IS NOT ENTITLED TO "MILITARY FURLOUGH" FOR THE PERIOD OF HIS ACTIVE DUTY WITH THE NAVAL RESERVE, BUT IT IS WITHIN YOUR DISCRETION WHETHER HIS SERVICES BE TERMINATED OR HE BE CARRIED ON THE PAY ROLLS ON LEAVE WITHOUT PAY DURING SUCH PERIOD. WHETHER HE BE SEPARATED FROM THE SERVICE OF YOUR COMMISSION OR CARRIED IN A LEAVE WITHOUT-PAY STATUS, HIS RIGHTS UNDER THE SAID SECTION 3, AS AMENDED, UPON RELIEF FROM HIS ACTIVE NAVAL DUTY, WOULD BE THE SAME. 20 COMP. GEN. 167.