B-27420, AUGUST 7, 1942, 22 COMP. GEN. 127

B-27420, AUGUST 7, 1942, 22 COMP. GEN. 127

COMPENSATION AND TRAVELING EXPENSES - MILITARY AND NAVAL PERSONNEL ON CIVILIAN DUTY A GOVERNMENT EMPLOYEE WHO HAS BEEN INDUCTED INTO THE MILITARY SERVICE MAY NOT BE PAID COMPENSATION FOR, OR TRAVELING EXPENSES INCIDENT TO, SERVICES RENDERED IN HIS CIVILIAN POSITION DURING A PERIOD OF FURLOUGH WITH PAY FROM THE MILITARY SERVICE. A GOVERNMENT EMPLOYEE WHO IS INDUCTED OR ENLISTED IN THE ARMY OR NAVY AND IS THEREAFTER PLACED ON INACTIVE DUTY WITHOUT PAY AS A MEMBER OF THE RESERVE--- AS DISTINGUISHED FROM A PERSON IN AN ACTIVE-DUTY STATUS WITH PAY IN THE MILITARY OR NAVAL SERVICE--- MAY BE EMPLOYED IN A CIVILIAN POSITION AND RECEIVE THE COMPENSATION THEREOF DURING THE PERIOD OF SUCH INACTIVE RESERVE STATUS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF LABOR, AUGUST 7, 1942:

I HAVE YOUR LETTER OF JULY 13, 1942, AS FOLLOWS:

MR. MAURICE F. W. TAYLOR, ASSISTANT ECONOMIST, WAGE AND HOUR DIVISION, NEW YORK CITY, WAS INDUCTED FOR TRAINING AND SERVICE IN THE ARMED FORCES OF THE UNITED STATES AT FORT DIX, NEW JERSEY, ON MAY 4, 1942. IMMEDIATELY FOLLOWING HIS INDUCTION, PRIVATE TAYLOR REQUESTED AND WAS GRANTED A TEN- DAY FURLOUGH IN ORDER TO COMPLETE SOME WORK IN CONNECTION WITH AN ECONOMIC SURVEY OF THE CONFECTIONERY INDUSTRY. HE RETURNED TO THE NATIONAL OFFICE OF THE WAGE AND HOUR DIVISION IN NEW YORK CITY AT HIS OWN EXPENSE.

A DECISION IS REQUESTED AS TO WHETHER OR NOT THE DIVISION'S APPROPRIATIONS FOR TRAVELING EXPENSES AND PERSONAL SERVICES WOULD BE AVAILABLE TO PAY SALARY, SUBSISTENCE, AND TRAVELING EXPENSES IN CONNECTION WITH PRIVATE TAYLOR'S SERVICES AND TRAVEL WHILE STILL ON THE PAYROLL OF THE UNITED STATES ARMY.

FOR YOUR INFORMATION, PRIVATE TAYLOR'S FORMER SALARY WAS $2600 PER ANNUM. HIS OFFICIAL STATION WAS NEW YORK CITY PRIOR TO HIS INDUCTION, AND HE HAS REEMPLOYMENT RIGHTS WITH THE WAGE AND HOUR DIVISION.

IT IS UNDERSTOOD FROM YOUR LETTER THAT MR. TAYLOR'S FURLOUGH FROM THE MILITARY SERVICE WAS WITH PAY, AND THAT THE QUESTION PRESENTED IS WHETHER HE MAY BE PAID DURING SUCH PERIOD THE COMPENSATION OF HIS CIVILIAN POSITION FOR SERVICES ACTUALLY RENDERED (NOT FOR ANNUAL LEAVE) AND, ALSO, FOR TRAVEL EXPENSES INCURRED UNDER PROPER ORDERS DURING SUCH PERIOD.

IT HAS BEEN HELD IN A LONG LINE OF DECISIONS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT IT IS INCOMPATIBLE FOR A PERSON TO BE EMPLOYED ON ACTIVE DUTY IN A CIVILIAN POSITION UNDER THE GOVERNMENT AND, ALSO, TO BE CARRIED ON THE ACTIVE ROLLS OF THE MILITARY SERVICE. SEE 3 COMP. GEN. 40; 17 ID. 1049; 18 ID. 213; 21 ID. 257, AND DECISIONS THEREIN CITED. PARTICULAR REFERENCE IS MADE TO THE DECISION OF SEPTEMBER 1, 1938, 18 COMP. GEN. 213, 216, WHEREIN, AFTER QUOTING FROM THE CASE OF BADEAU V. UNITED STATES, 130 U.S. 439, IT WAS STATED:

IF IT IS INCOMPATIBLE AND AGAINST THE GENERAL POLICY OF THE LAW FOR A RETIRED OFFICER, WHO IS ONLY SUBJECT TO THE RULES AND ARTICLES OF WAR AND CERTAIN LIMITED OTHER INCIDENTS OF MILITARY SERVICE, TO HOLD A CIVIL OFFICE IN A FOREIGN COUNTRY, OBVIOUSLY, ANY APPOINTMENT IN THE CIVIL BRANCH OF THE GOVERNMENT WOULD BE INCOMPATIBLE WITH SERVICE ON THE ACTIVE LIST OF THE ARMY. THE FACT THAT DURING HOURS OF RELAXATION OR RELIEF FROM THE ACTUAL PERFORMANCE OF DUTIES THE INDIVIDUAL HAS TIME TO DEVOTE TO HIS PERSONAL AFFAIRS AND THAT NORMALLY SUCH TIME IS AVAILABLE FOR THE PERFORMANCE OF OTHER DUTIES IS NOT THE TEST. COMPATIBILITY IS DETERMINED BY THE INDIVIDUAL'S FREEDOM TO PERFORM BOTH SERVICES, THE ONE WITHOUT INTERFERENCE FROM THE OTHER. THE SUPERIOR--- THE CONTROLLING--- OBLIGATION TO RENDER MILITARY SERVICE THUS MAKES IMPOSSIBLE THE ACCEPTANCE WITHOUT QUALIFICATION OF ANOTHER OBLIGATION TO THE GOVERNMENT TO RENDER SERVICE IN A CIVILIAN CAPACITY AT THE SAME TIME. THE TIME OF ONE IN THE MILITARY SERVICE IS NOT HIS OWN, HOWEVER LIMITED THE DUTIES OF THE PARTICULAR ASSIGNMENT MAY BE, AND ANY AGREEMENT OR ARRANGEMENT FOR THE RENDITION OF SERVICES TO THE GOVERNMENT IN ANOTHER POSITION OR EMPLOYMENT IS INCOMPATIBLE WITH HIS MILITARY DUTIES ACTUAL OR POTENTIAL. * * *

THERE IS NOTHING IN RECENT STATUTES, PROVIDING REEMPLOYMENT BENEFITS FOR CIVILIAN EMPLOYEES WHO ENTER THE ACTIVE MILITARY OR NAVAL SERVICE AND AUTHORIZING PAYMENT TO THEM FOR ANNUAL LEAVE IN THEIR CIVILIAN POSITIONS CONCURRENTLY WITH THE RECEIPT OF ACTIVE DUTY PAY IN THE MILITARY OR NAVAL SERVICE, WHICH JUSTIFIES OR AUTHORIZES ANY MODIFICATION OF THE ABOVE- STATED RULE. THAT IS TO SAY, THOSE STATUTES DO NOT RECOGNIZE NOR AUTHORIZE A DUAL CIVILIAN AND MILITARY ACTIVE DUTY STATUS WITH PAY OTHER THAN WHILE ON ANNUAL LEAVE FROM CIVILIAN POSITIONS. SEE 21 COMP. GEN. 403.

ACCORDINGLY, UPON THE BASIS OF THE FACTS AS UNDERSTOOD, YOU ARE ADVISED THAT MR. TAYLOR IS NOT ENTITLED TO, AND MAY NOT BE PAID, THE COMPENSATION OF HIS CIVILIAN POSITION FOR ACTIVE DUTY DURING THE PERIOD OF FURLOUGH WITH PAY FROM THE ARMY.

THIS CASE IS TO BE DISTINGUISHED FROM A CASE WHERE AN EMPLOYEE IS INDUCTED INTO, OR ENLISTS IN THE ARMY OR NAVY AND IS THEREAFTER PLACED ON INACTIVE DUTY WITHOUT PAY AS A MEMBER OF THE RESERVE. IN SUCH A CASE, THERE WOULD BE NO LEGAL OBJECTION TO HIS EMPLOYMENT ON ACTIVE DUTY IN HIS CIVILIAN POSITION AND PAYMENT TO HIM OF THE COMPENSATION OF HIS CIVILIAN POSITION DURING THE PERIOD OF AN INACTIVE RESERVE STATUS IN THE ARMY OR NAVY DURING WHICH HE RECEIVES NO PAY.

REGARDING THE MATTER OF PAYMENT FOR TRAVEL EXPENSES IN THE SITUATION HERE PRESENTED, THE RULE OF INCOMPATIBILITY OF EMPLOYMENT IN A CIVILIAN AND MILITARY STATUS DURING THE SAME PERIOD OF TIME HAS BEEN APPLIED TO DENY PAYMENT OF TRAVELING EXPENSES INCURRED INCIDENT TO THE EMPLOYMENT IN A CIVILIAN POSITION WHILE IN AN ACTIVE DUTY AND PAY STATUS IN THE MILITARY SERVICE. SEE DECISION OF MARCH 17, 1919, 25 COMP. DEC. 666, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE EMPLOYMENT OF AN ARMY OFFICER WHILE ON LEAVE OF ABSENCE BY A CIVIL BRANCH OF THE GOVERNMENT, WITHOUT FORMAL DETAIL TO SUCH DUTY, BUT UNDER AN AGREEMENT TO PAY FOR HIS TRAVELING EXPENSES, BEING INCONSISTENT WITH THE CONTROL BY THE WAR DEPARTMENT OVER THE OFFICER AND AMOUNTING IN THE CASE OF THE CIVIL BRANCH TO THE ACCEPTANCE OF VOLUNTARY SERVICES, IS NOT AUTHORIZED. SEE, ALSO, DECISION OF AUGUST 31, 1921, 1 COMP. GEN. 98 WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

OFFICERS OF THE ARMY AND NAVY WHO ARE DETAILED FOR DUTY WITH THE UNITED STATES SHIPPING BOARD OR ANY OTHER CIVIL BRANCH OF THE GOVERNMENT ARE ENTITLED TO THE SAME TRAVELING ALLOWANCES THAT THEY ARE ENTITLED TO WHEN ASSIGNED TO DUTY IN THE MILITARY OR NAVAL SERVICE AND NO OTHER UNLESS SPECIFIC PROVISION IS MADE BY STATUTE FOR OTHER TRAVELING ALLOWANCES. ALSO, SEE 2 COMP. GEN. 373; 15 ID. 98; 18 ID. 923; AND COMPARE 15 ID. 377.

YOU ARE ADVISED, THEREFORE, THAT MR. TAYLOR MAY NOT BE REIMBURSED FOR ANY PORTION OF THE TRAVEL EXPENSES INCURRED INCIDENT TO ACTIVE SERVICE IN HIS CIVILIAN POSITION WHILE HE WAS ON FURLOUGH WITH PAY FROM THE ARMY.