B-33682, APRIL 21, 1943, 22 COMP. GEN. 984

B-33682, APRIL 21, 1943, 22 COMP. GEN. 984

CIVILIAN EMPLOYEES ABSENT IN HANDS OF ENEMY - CONTINUANCE OF COMPENSATION AFTER ABOLISHMENT OF POSITIONS EVEN THOUGH BY OPERATION OF THE ACT OF DECEMBER 22, 1942, THE CIVILIAN POSITIONS OF CERTAIN FEMALE DIETETIC AND PHYSICAL THERAPY PERSONNEL IN THE MEDICAL DEPARTMENT OF THE ARMY HAVE BEEN ABOLISHED AS OF MARCH 31, 1943, SUCH OF THE PERSONNEL AS HAVE BEEN OFFICIALLY REPORTED AS CAPTURED BY AN ENEMY PRIOR TO THE ABOLISHMENT OF THEIR POSITIONS ARE ENTITLED UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, TO CONTINUE TO RECEIVE, OR TO HAVE CREDITED TO THEIR ACCOUNTS, DURING THEIR ABSENCE THE COMPENSATION TO WHICH THEY WERE LEGALLY ENTITLED UNDER THE LATTER ACT PRIOR TO MARCH 31, 1943.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 21, 1943:

I HAVE YOUR SECOND ENDORSEMENT DATED APRIL 5, 1943 (RMM/MES), AS FOLLOWS:

1. FORWARDED FOR DECISION ON THE QUESTION PRESENTED IN BASIC COMMUNICATION.

2. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO THE PROVISIONS OF THE ACT OF MARCH 7, 1942 ( PUBLIC LAW 490--- 77TH CONGRESS) WHICH AUTHORIZE PAYMENT OF SALARY AND ALLOWANCES TO CIVILIAN EMPLOYEES (AMONG OTHERS) WHO ARE CAPTURED BY AN ENEMY. YOUR DECISION IS REQUESTED, THEREFORE, AS TO WHETHER THE PROVISIONS OF THE ACT OF DECEMBER 22, 1942 ( PUBLIC LAW 828--- 77TH CONGRESS), REQUIRE THAT THE SUBJECT EMPLOYEES BE TERMINATED AND DENIED THE BENEFITS GRANTED IN THE PREVIOUS LAW.

THE REFERRED-TO "BASIC COMMUNICATION," DATED MARCH 16, 1943, IF FROM THE SURGEON GENERAL TO THE ADJUTANT GENERAL AND READS AS FOLLOWS:

1. INFORMATION IS REQUESTED AS TO THE PAY STATUS OF THE CIVIL SERVICE EMPLOYEES OF THE MEDICAL DEPARTMENT WHO WERE IN THE PHILIPPINE ISLANDS AT THE TIME THE ISLANDS WERE TAKEN OVER BY THE JAPANESE FORCES AND NOW BELIEVED TO BE IN THE PHILIPPINE ISLANDS. THIS PERSONNEL AS CIVIL SERVICE EMPLOYEES OF THE MEDICAL DEPARTMENT ARE DIRECTLY EFFECTED BY THE PUBLIC LAW 828--- 77TH CONGRESS, DATED DECEMBER 22, 1942. UNDER THIS LAW THE EMPLOYMENT OF SUCH CIVIL SERVICE EMPLOYEES MUST BE TERMINATED MARCH 31, 1943, FOR THE REASON THAT SUCH PERSONNEL WHO MEET THE EDUCATION AND PHYSICAL REQUIREMENTS MUST BE MILITARIZED. IN VIEW OF THE FACT THAT IT IS IMPOSSIBLE TO OBTAIN PROPER RECORDS FOR THE APPOINTMENT OF THE DIETITIANS AND PHYSICAL THERAPY AIDES NOW IN THE PHILIPPINE ISLANDS AS CIVIL SERVICE EMPLOYEES, IT IS IMPOSSIBLE TO EFFECT THEIR APPOINTMENT ON A MILITARY STATUS UNDER THE LAW NAMED ABOVE.

2. MEDICAL DEPARTMENT RECORDS PROVIDE THE FOLLOWING DATA. NAME - KUEHLTHAU, BRUNETTA. POSITION - PHYSICAL THERAPY AIDE IN THE MEDICAL DEPARTMENT OF THE ARMY. SALARY - $1,800 PER ANNUM. TRANSFERRED TO STERNBERG GENERAL HOSPITAL, MANILA, JANUARY 15, 1940. ADVISED JANUARY 29, 1943, BY ADJUTANT GENERAL THAT THIS EMPLOYEE WAS INTERNED IN THE PHILIPPINE ISLANDS. NAME - MOTLEY, RUBY FRANCES. POSITION - DIETITIAN IN THE MEDICAL DEPARTMENT OF THE ARMY. SALARY - $1,980 PER ANNUM. TRANSFERRED TO STERNBERG GENERAL HOSPITAL, MANILA, PHILIPPINE ISLANDS, FEBRUARY 15, 1940, FROM WALTER REED GENERAL HOSPITAL, WASHINGTON, D.C. TRANSFERRED TO FORT MILLS, PHILIPPINE ISLANDS FROM STERNBERG GENERAL HOSPITAL, JANUARY 1, 1942. NAME - PARDEW, MRS. ANNA LOUISE BONNER. POSITION - DIETITIAN IN THE MEDICAL DEPARTMENT OF THE ARMY. SALARY - $1,800 PER ANNUM. APPOINTED AT STATION HOSPITAL, FORT WILLIAM MCKINLEY, PHILIPPINE ISLANDS, AUGUST 7, 1941. ADDRESS - 40 11TH STREET, NEW MANILA, RIZAL. HUSBAND - MR. J. M. PARDEW, C/O WARNER BARNES, LTD.

SECTION 2 OF THE ACT OF MARCH 7, 1942, PUBLIC LAW 490, 56 STAT. 144, PROVIDES, IN PERTINENT ART:

SEC. 2. ANY PERSON WHO IS IN ACTIVE SERVICE AND IS OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY SHALL, WHILE SO ABSENT, BE ENTITLED TO RECEIVE OR TO HAVE CREDITED TO HIS ACCOUNT THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER. * * * ( ITALICS SUPPLIED.)

SECTION 4 OF THE ACT OF DECEMBER 22, 1942, 56 STAT. 1073, PUBLIC LAW 828, PROVIDES:

EMPLOYMENT BY THE MILITARY ESTABLISHMENT OF FEMALE DIETETIC AND FEMALE PHYSICAL THERAPY PERSONNEL (EXCEPT STUDENTS AND APPRENTICES) SHALL BE LIMITED TO PERSONS APPOINTED UNDER THE PROVISIONS OF THIS ACT WHILE ITS PROVISIONS ARE IN EFFECT. APPOINTMENTS OF SUCH PERSONNEL (EXCEPT STUDENTS AND APPRENTICES) UNDER THE PROVISIONS OF ANY OTHER LAW ARE HEREBY TERMINATED AS OF THE LAST DAY OF THE THIRD MONTH FOLLOWING THE MONTH IN WHICH THIS ACT IS ENACTED IF NOT SOONER TERMINATED. PERSONS WHOSE APPOINTMENTS ARE TERMINATED BY THE PROVISIONS OF THIS SECTION MAY BE APPOINTED UNDER THE PROVISIONS OF THIS ACT IN ACCORDANCE WITH SUCH REGULATIONS AS MAY BE PROMULGATED BY THE SECRETARY OF WAR.

WHILE IT IS TRUE THAT THE CIVILIAN POSITIONS OF THE INVOLVED EMPLOYEES WERE ABOLISHED AS OF MARCH 31, 1943 (SEE DECISION OF MARCH 30, 1943, B 33305, TO YOU), NEVERTHELESS, UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, FIRST ABOVE QUOTED, EACH OF THE EMPLOYEES IS ENTITLED TO RECEIVE, OR TO HAVE CREDITED TO HER INDIVIDUAL ACCOUNT "THE SAME PAY AND ALLOWANCES TO WHICH SUCH PERSON WAS ENTITLED AT THE TIME OF THE BEGINNING OF THE ABSENCE OR MAY BECOME ENTITLED TO THEREAFTER.' IN OTHER WORDS, THE ABOLISHMENT OF THE CIVILIAN POSITIONS AS OF MARCH 30, 1943, IN WHICH THEY COULD NOT HAVE SERVED IN ANY EVENT, DOES NOT HAVE THE EFFECT OF DEFEATING THEIR RIGHTS UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942--- TO WHICH RIGHTS THEY ARE ENTITLED, NOT BY REASON OF SERVICE, BUT BY REASON OF THEIR BEING IN THE STATUS OF "OFFICIALLY REPORTED AS MISSING, MISSING IN ACTION, INTERNED IN A NEUTRAL COUNTRY, OR CAPTURED BY AN ENEMY.' COMPARE THE DECISION OF SEPTEMBER 7, 1942, 22 COMP. GEN. 192, AUTHORIZING PAYMENT OF EXTRA PAY FOR FLIGHT DUTY TO MILITARY PERSONNEL IN SAME STATUS. ALSO, COMPARE DECISION OF FEBRUARY 4, 1943, B-31948, 22 COMP. GEN. 745, TO THE SECRETARY OF THE INTERIOR, QUESTION AND ANSWER 6.

REFERRING TO THE QUESTION CONTAINED IN THE SECOND PARAGRAPH OF YOUR ENDORSEMENT, SUPRA, YOU ARE ADVISED THAT WHILE THE ACT OF DECEMBER 22, 1942, HAS TERMINATED THE CIVILIAN POSITIONS OF THE INVOLVED EMPLOYEES, THEIR RIGHTS UNDER SECTION 2 OF THE ACT OF MARCH 7, 1942, ARE NOT AFFECTED THEREBY. HENCE, THE SAID EMPLOYEES ARE ENTITLED TO CONTINUE TO RECEIVE, OR HAVE CREDITED TO THEIR ACCOUNTS, THE COMPENSATION TO WHICH THEY WERE LEGALLY ENTITLED UNDER THE SAID ACT OF MARCH 7, 1942, PRIOR TO MARCH 31, 1943.