B-26460, JUNE 17, 1942, 21 COMP. GEN. 1116

B-26460, JUNE 17, 1942, 21 COMP. GEN. 1116

WOMEN'S ARMY AUXILIARY CORPS MEMBERS - PAYMENT FOR CIVILIAN LEAVE FEMALE CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ENTER THE WOMEN'S ARMY AUXILIARY CORPS ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE CONCURRENTLY WITH ACTIVE MILITARY DUTY, ON THE SAME BASIS AND IN ACCORDANCE WITH THE SAME RULES AS HAVE BEEN STATED IN DECISIONS OF THIS OFFICE WITH RESPECT TO MALE CIVILIAN EMPLOYEES WHO ENTER THE ACTIVE MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JUNE 17, 1942:

I HAVE YOUR LETTER OF MAY 21, 1942, AS FOLLOWS:

1. REFERENCE IS MADE TO THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942 ( PUBLIC LAW 517, 77TH CONGRESS), WHICH MAKES PROVISION FOR PAYMENT TO CIVILIAN EMPLOYEES OF THE UNITED STATES GOVERNMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE WHEN THEY SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT, OR OTHERWISE.

2. YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES OF THE UNITED STATES GOVERNMENT WHO ENTER THE WOMEN'S ARMY AUXILIARY CORPS ARE ENTITLED TO PAYMENT FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE, OR TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM DUTY IN THE CORPS, UNDER THE PROVISIONS OF THE ABOVE STATED ACT.

3. IN THIS CONNECTION, THE FOLLOWING IS QUOTED FROM THE ACT OF MAY 14, 1942 ( PUBLIC LAW 554, 77TH CONGRESS), AND A PORTION OF SENATE REPORT NO. 1320, CALENDAR NO. 1362, DATED MAY 11, 1942, AND TO ACCOMPANY H.R. 6293:

" SEC. 12. THE CORPS SHALL NOT BE A PART OF THE ARMY, BUT IT SHALL BE THE ONLY WOMEN'S ORGANIZATION AUTHORIZED TO SERVE WITH THE ARMY, EXCLUSIVE OF THE ARMY NURSE CORPS. NURSES MAY BE ENROLLED IN THE CORPS BUT NOTHING IN THIS ACT SHALL BE CONSTRUED TO AFFECT OR CHANGE THE ARMY NURSE CORPS AS NOW ESTABLISHED BY LAW.' ( ACT OF MAY 14, 1942.)

" SEC. 15. PROVISIONS FOR LEAVE NOW APPLICABLE TO THE ARMY OF THE UNITED STATES SHALL ALSO APPLY TO MEMBERS OF THE CORPS. IN THE CASE OF ANY PERSON WHO HAS LEFT OR LEAVES A POSITION IN THE EMPLOY OF THE UNITED STATES, ITS TERRITORIES, OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, TO JOIN THE CORPS, SUCH PERSON SHALL, UPON THE TERMINATION OF HER PERIOD OF SERVICE IN THE CORPS, BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY, SUCH RESTORATION TO BE WITHOUT LOSS OF SENIORITY; SHE SHALL FURTHER BE ENTITLED TO PARTICIPATE IN ALL BENEFITS PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF SENCE.' ( ITALICS SUPPLIED.) ( ACT OF MAY 14, 1942.)

" SEC. 19. SECTION 101 (1) OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940 ( PUBLIC, NUMBERED 861, SEVENTY-SIXTH CONGRESS), IS HEREBY AMENDED TO READ AS FOLLOWS:

" "THE TERM "PERSONS IN MILITARY SERVICE" AND THE TERM "PERSONS IN THE MILITARY SERVICE OF THE UNITED STATES," AS USED IN THIS ACT SHALL INCLUDE THE FOLLOWING PERSONS AND NO OTHERS. ALL MEMBERS OF THE ARMY OF THE UNITED STATES, THE UNITED STATES NAVY, THE MARINE CORPS, THE COAST GUARD, THE WOMEN'S ARMY AUXILIARY CORPS, AND ALL OFFICERS OF THE PUBLIC HEALTH SERVICE DETAILED BY PROPER AUTHORITY FOR DUTY EITHER WITH THE ARMY OR THE NAVY. THE TERM "MILITARY SERVICE," AS USED IN THIS ACT, SHALL SIGNIFY FEDERAL SERVICE ON ACTIVE DUTY WITH ANY BRANCH OF SERVICE HERETOFORE REFERRED TO OR MENTIONED AS WELL AS TRAINING OR EDUCATION UNDER THE SUPERVISION OF THE UNITED STATES PRELIMINARY TO INDUCTION INTO THE MILITARY SERVICE. THE TERMS "ACTIVE SERVICE" OR "ACTIVE DUTY" SHALL INCLUDE THE PERIOD DURING WHICH A PERSON IN MILITARY SERVICE IS ABSENT FROM DUTY ON ACCOUNT OF SICKNESS, WOUNDS, LEAVE, OR OTHER LAWFUL CAUSE.'" ( ACT OF MAY 14, 1942.)

"* * * UNDER THE PROVISIONS OF THE BILL THE UNITS AND TOTAL STRENGTH OF THE WOMAN'S ARMY AUXILIARY CORPS WOULD BE LIMITED BY THE PRESIDENT. WITHIN SUCH LIMITATIONS THE SECRETARY OF WAR COULD APPOINT AND ENROLL PERSONNEL AND DISTRIBUTE THEM WITHIN THE AUTHORIZED GRADES. THE CORPS WOULD NOT BE A PART OF THE ARMY BUT THE GRADES OF DIRECTOR, ASSISTANT DIRECTOR, AND FIRST, SECOND, AND THIRD OFFICERS WOULD CORRESPOND GENERALLY TO THOSE OF MAJOR, CAPTAIN, FIRST LIEUTENANT, AND SECOND LIEUTENANT, RESPECTIVELY, IN THE ARMY. * * *.' ( SENATE REPORT NO. 1320, MAY 11, 1942.)

THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, PROVIDES:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. ( ITALICS SUPPLIED.)

WHILE SECTION 12 OF THE ACT OF MAY 14, 1942, 56 STAT. 281, EXPRESSLY STATES THAT "THE CORPS SHALL NOT BE A PART OF THE ARMY," IT IS PROVIDED BY SECTION 15 OF SAID ACT THAT THE "PROVISIONS OF LEAVE NOW APPLICABLE TO THE ARMY OF THE UNITED STATES SHALL ALSO APPLY TO MEMBERS OF THE CORPS.' LEAVE IN THE MILITARY OR NAVAL SERVICE IS CONTROLLED BY LAWS AND REGULATIONS DIFFERING FROM THOSE CONTROLLING THE GRANTING OF LEAVE IN CIVILIAN POSITIONS. HENCE, IT WOULD SEEM TO FOLLOW THAT FEMALE CIVILIAN EMPLOYEES OF THE GOVERNMENT MAY NOT TRANSFER THE LEAVE WHICH ACCRUED IN THEIR CIVILIAN POSITION WHEN THEY ENTER THE WOMEN'S ARMY AUXILIARY CORPS, AND UNLESS THEIR ACCRUED LEAVE--- OR MONEY EQUIVALENT- - IS OTHERWISE SAVED, THERE WOULD BE FOR CONSIDERATION THE QUESTION OF WHETHER ANY FORFEITURE OF SUCH LEAVE IS INTENDED BY THE CONTROLLING STATUTES.

ANNUAL LEAVE OF EMPLOYEES OF THE WAR DEPARTMENT IS CONTROLLED BY THE PROVISIONS OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED BY THE ACT OF MARCH 2, 1940, 54 STAT. 38, AND THE PRESIDENT'S REGULATIONS ISSUED PURSUANT THERETO, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940. SECTION 9 OF THE REGULATIONS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT

(B) AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY.

IF FEMALE CIVILIAN EMPLOYEES WHO JOIN THE WOMEN'S ARMY AUXILIARY CORPS MAY NOT BE REGARDED AS HAVING BEEN "ORDERED TO ACTIVE MILITARY * * * DUTY" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ABOVE REGULATIONS, THEY COULD NOT BE GRANTED LEAVE WITHOUT PAY DURING ABSENCE FROM THEIR CIVILIAN POSITIONS UNLESS AND UNTIL THEIR ANNUAL LEAVE HAD EXHAUSTED, OTHERWISE THEY WOULD FORFEIT THEIR ANNUAL LEAVE. 18 COMP. GEN. 94; ID. 653; 19 ID. 552; ID. 880. THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, WAS ENACTED TO AUTHORIZE PAYMENT FOR SUCH LEAVE WHEN AN EMPLOYEE "SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES," AND THUS, WAS AN ENLARGEMENT OF, OR SUBSTITUTION FOR, THE BENEFIT AUTHORIZED BY SECTION 9 (B) OF THE ANNUAL LEAVE REGULATIONS. THAT BENEFIT SEEMS PROPERLY FOR VIEWING AS ONE GRANTED PURSUANT TO AN ESTABLISHED RULE RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE. SEE THE LAST SENTENCE OF SECTION 15 OF THE ACT, 56 STAT. 282. ALSO, COMPARE 21 COMP. GEN. 403, 405. THAT PORTION OF SECTION 15 OF THE ACT OF MAY 14, 1942, WHICH IS QUOTED AND ITALICIZED IN YOUR LETTER, APPARENTLY WAS INTENDED TO EXTEND TO MEMBERS OF THE WOMEN'S ARMY AUXILIARY CORPS THE SAME ,BENEFITS PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OR ABSENCE" AS ARE APPLICABLE TO MALE EMPLOYEES WHO ENTER THE ACTIVE MILITARY SERVICE. THAT IS TO SAY, THE BENEFITS ACCORDED BY THE ACT OF APRIL 7, 1942, MAY BE REGARDED AS BEING EMBRACED BY THE WORDS,"ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE," IN THE BENEFITS OF WHICH RULES MEMBERS OF THE WOMEN'S ARMY AUXILIARY CORPS ARE ENTITLED TO PARTICIPATE. SUCH CONCLUSION IS STRENGTHENED WHEN VIEWED IN THE LIGHT OF THE SECOND SENTENCE OF SAID SECTION 15 OF THE ACT OF MAY 14, 1942, WHICH GRANTS REEMPLOYMENT BENEFITS TO EMPLOYEES OF THE UNITED STATES WHO JOIN THE WOMEN'S ARMY AUXILIARY CORPS IN SUBSTANTIALLY IDENTICAL LANGUAGE WITH THAT APPEARING IN EXISTING LAW GRANTING REEMPLOYMENT BENEFITS TO MALE CIVILIAN EMPLOYEES WHO ENTER THE "ACTIVE SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES.' (QUOTING FROM SEC. 7 OF THE ACT OF AUGUST 18, 1941, PUBLIC LAW 213, 55 STAT. 627.) SEE SECTION 8 OF SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890.

ALSO, IT IS PROPER IN CONNECTION WITH THE QUESTION PRESENTED, TO REFER TO SECTION 101 (1) OF THE SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940, AS AMENDED BY SECTION 19 OF THE ACT OF MAY 14, 1942, 56 STAT. 282, WHICH DEFINES THE TERM "PERSONS IN MILITARY SERVICE" TO INCLUDE MEMBERS OF THE WOMEN'S ARMY AUXILIARY CORPS. AS THE CONGRESS HAS THUS INCLUDED MEMBERS OF THE CORPS WITHIN THE TERM "PERSONS IN MILITARY SERVICE" FOR THE PURPOSES OF THAT LAW, IT SEEMS REASONABLE IN THE LIGHT OF THE FOREGOING OBSERVATIONS TO SUPPOSE THAT THE CONGRESS INTENDED THEM TO BE REGARDED LIKEWISE AS IN THE ACTIVE MILITARY SERVICE WITHIN THE MEANING OF THE LEAVE ACT AND ITS RELATED ACT OF APRIL 7, 1942--- NOTHING TO THE CONTRARY APPEARING IN THE STATUTE OR ITS LEGISLATIVE HISTORY.

IN VIEW OF THE ABOVE CONSIDERATIONS, THE CONCLUSION SEEMS JUSTIFIED THAT WHILE SECTION 12 OF THE ACT OF MAY 14, 1942, SPECIFICALLY PROVIDES THAT THE WOMEN'S ARMY AUXILIARY CORPS SHALL NOT BE A PART OF THE ARMY, NEVERTHELESS THEY MAY BE REGARDED AS HAVING ENTERED "UPON ACTIVE MILITARY * * * SERVICE" WITHIN THE MEANING OF THOSE WORDS AS USED IN THE ACT OF APRIL 7, 1942, PUBLIC LAW 517. ON THE BASIS OF THAT CONCLUSION IT IS THEREFORE HELD THAT FEMALE CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ENTER THE WOMEN'S ARMY AUXILIARY CORPS ARE ENTITLED TO BE PAID FOR THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE ON THE SAME BASIS AND IN ACCORDANCE WITH THE SAME RULES AS HAVE BEEN STATED IN DECISIONS OF THIS OFFICE IN RESPECT OF MALE CIVILIAN EMPLOYEES WHO ENTER THE ACTIVE MILITARY SERVICE.