B-63737, MARCH 13, 1947, 26 COMP. GEN. 674

B-63737, MARCH 13, 1947, 26 COMP. GEN. 674

COMPENSATION - DOUBLE - CIVILIAN EMPLOYEES PERFORMING TRAINING DUTY AS NAVAL RESERVISTS NOTWITHSTANDING THE DUAL COMPENSATION LAWS, SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, RELATING TO THE RIGHT OF NAVAL RESERVE MEMBERS TO RECEIVE COMPENSATION ATTACHED TO CIVILIAN EMPLOYMENT IN ADDITION TO PAY AND ALLOWANCES TO WHICH ENTITLED UNDER THAT ACT, IS TO BE REGARDED AS PERMITTING PAYMENT OF CIVILIAN COMPENSATION TO AN EMPLOYEE WHO, AUTHORIZED BY SECTION 313 OF SAID ACT, RECEIVES PAY FOR PERFORMING LIMITED TRAINING DUTY, IN THE FORM OF AERIAL FLIGHTS, ON DAYS OUTSIDE OF HIS REGULAR WORKWEEK, DURING A PERIOD IN WHICH HE IS IN AN INACTIVE STATUS IN THE NAVAL RESERVE AS DISTINGUISHED FROM A FULL TIME TRAINING OR ACTIVE-DUTY STATUS.

COMPTROLLER GENERAL WARREN TO GEORGE 1. WOLF, DEPARTMENT OF AGRICULTURE, MARCH 13, 1947:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1947, AS FOLLOWS:

I HAVE FOR CERTIFICATION A PAYROLL IN FAVOR OF DANIEL SADLER, JR., MISCELLANEOUS DUPLICATING EQUIPMENT OPERATOR, CAF-2 (TEMPORARY), IN THE AMOUNT OF $75.15, COVERING THE PERIOD JANUARY 12, 1947, TO JANUARY 25, 1947, INCLUSIVE. THE QUESTION RAISED IN CONNECTION WITH THE PROPRIETY OF THIS PAYROLL DEALS WITH THE VARIOUS LAWS AND REGULATIONS GOVERNING DUAL COMPENSATION.

THE FACTS INVOLVED ARE AS FOLLOWS:

MR. SADLER WAS APPOINTED TO HIS PRESENT POSITION ON JULY 17, 1946. HAS RECEIVED HIS BIWEEKLY PAY UP TO THE PRESENT. WE NOW LEARN THAT HE PROPOSES TO RESIGN IN THE EARLY PART OF FEBRUARY, 1947, TO RECEIVE ADDITIONAL SCHOOLING UNDER THE G.I. BILL OF RIGHTS.

IN ADDITION TO HIS EMPLOYMENT IN THIS ESTABLISHMENT, MR. SADLER HOLDS THE RANK OF LIEUTENANT (J.G.) IN THE NAVAL AIR CORPS RESERVE. HIS DUTIES THEREIN INCLUDE PARTICIPATION IN TRAINING FLIGHTS EVERY OTHER SATURDAY, FOR WHICH HE IS PAID, INCLUDING FLIGHT PAY, $20.00 PER DAY, WHEN ACTUALLY FLYING. TO DATE THEREFORE, HE HAS RECEIVED FROM THE NAVY DEPARTMENT PAY AMOUNTING TO $280.00 FOR 14 ACTUAL FLYING DAYS OCCURRING WITHIN THE PERIOD OF HIS EMPLOYMENT WITH THIS LABORATORY.

IN VIEW OF THIS DUAL REIMBURSEMENT FOR SERVICES RENDERED, AND OUR INABILITY TO LOCATE A PREVIOUS DECISION PARALLELING THIS SITUATION, YOUR ADVICE IS RESPECTFULLY REQUESTED AS TO WHETHER THIS PRESENT PAYROLL MAY BE CERTIFIED WITHOUT DEDUCTIONS UNDER THE DUAL COMPENSATION LAWS PRESENTLY EXISTING.

EXAMINATION OF THE SUBMITTED PAY VOUCHER DISCLOSES THAT THE EMPLOYEE IS EMPLOYED AT THE RATE OF $1,954 PER ANNUM AND THAT HIS BASIC ADMINISTRATIVE WORKWEEK IS MONDAY THROUGH FRIDAY.

WHILE YOU STATE THAT MR. SADLER IS A LIEUTENANT (JG) IN THE NAVAL AIR CORPS RESERVE IT IS UNDERSTOOD THAT STRICTLY HE IS A MEMBER OF THE ORGANIZED RESERVE OF THE NAVY AND THAT HIS TRAINING FLIGHTS EVERY OTHER SATURDAY, FOR WHICH HE RECEIVES $20 PER DAY, ARE PERFORMED AS A MEMBER OF SAID RESERVE, UNDER THE PROVISIONS OF THE NAVAL RESERVE ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1175. SECTION 303 OF THAT ACT, 52 STAT. 1184, AUTHORIZES PAY TO RESERVE OFFICERS AND ENLISTED MEN FOR ATTENDANCE AT REGULAR DRILLS OR OTHER EQUIVALENT INSTRUCTION OR DUTY, INCLUDING FLIGHT DUTY, NOT EXCEEDING 60 IN NUMBER DURING ANY ONE FISCAL YEAR, AND SECTION 314, 52 STAT. 1184, PROVIDES THAT THE COMPENSATION AUTHORIZED BY SECTION 313 "SHALL NOT ACCRUE TO ANY OFFICER OR ENLISTED MAN DURING A PERIOD WHEN HE SHALL BE LAWFULLY ENTITLED TO PAY FOR ACTIVE DUTY OR TRAINING DUTY.' SECTION 4 OF THE ACT, 52 STAT. 1176, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * AND PROVIDED FURTHER, THAT NO EXISTING LAW SHALL BE CONSTRUED TO PREVENT ANY MEMBER OF THE NAVAL RESERVE FROM ACCEPTING EMPLOYMENT IN ANY CIVIL BRANCH OF THE PUBLIC SERVICE NOR FROM RECEIVING THE PAY AND ALLOWANCES INCIDENT TO SUCH EMPLOYMENT IN ADDITION TO ANY PAY AND ALLOWANCES TO WHICH HE MAY BE ENTITLED UNDER THE PROVISIONS OF THIS ACT *

IT HAS BEEN HELD THAT SAID SECTION OF THE STATUTE WAS NOT INTENDED TO, AND DOES NOT, AUTHORIZE A CIVILIAN EMPLOYEE TO WORK ON ACTIVE DUTY IN A CIVILIAN POSITION AND ALSO ON ACTIVE DUTY FOR FULL TIME TRAINING OR FULL TIME ACTIVE DUTY AS A MEMBER OF THE NAVAL RESERVE. ALSO, IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY, ACTIVE DUTY IN THE MILITARY AND CIVILIAN BRANCHES OF THE GOVERNMENT DURING THE SAME PERIOD HAS BEEN HELD TO BE INCOMPATIBLE AND UNAUTHORIZED. SEE 20 COMP. GEN. 282, 286, AND DECISIONS CITED THEREIN. ON THE OTHER HAND, IT HAS BEEN HELD THAT IN VIEW OF SECTION 4 OF THE NAVAL RESERVE ACT OF 1938, SUPRA, THERE WOULD BE NO LEGAL OBJECTION TO THE PAYMENT OF RETAINER PAY, AUTHORIZED IN SAID ACT, TO MEMBERS OF THE FLEET RESERVE, IN ADDITION TO THE PAY OF THEIR CIVILIAN GOVERNMENT POSITIONS. SEE 25 COMP. GEN. 521, 527.

IN THE INSTANT CASE, IT IS REPORTED THAT THE EMPLOYEE PERFORMS NO SERVICE IN THE NAVAL RESERVE OTHER THAN THE LIMITED DUTY EVERY OTHER SATURDAY, OR, IN OTHER WORDS, DURING A PERIOD OUTSIDE HIS REGULAR CIVILIAN TOUR OF DUTY AND BASIC WORKWEEK, AND FOR WHICH IT WOULD APPEAR HE RECEIVES PAY IN ACCORDANCE WITH THE AUTHORIZATION CONTAINED IN SECTION 313 OF THE NAVAL RESERVE ACT OF 1938. THE DUTY SO PERFORMED DOES NOT APPEAR INCOMPATIBLE WITH HIS CIVILIAN EMPLOYMENT, NOR IS IT SUCH AS TO PLACE HIM IN AN ACTIVE DUTY OR TRAINING STATUS. THAT VIEW IS AMPLY SUPPORTED BY THE SPECIFIC PROVISION OF SECTION 314 OF SAID ACT, MENTIONED ABOVE, TO THE EFFECT THAT THE PAY AUTHORIZED IN SECTION 313 THEREOF SHALL NOT BE ALLOWED TO OFFICERS AND ENLISTED MEN DURING A PERIOD OF ACTIVE OR TRAINING DUTY. SEE, ALSO, SECTION 301 OF THE SAME ACT, 52 STAT. 1180, TO LIKE EFFECT. SUCH DUTY IS OF A LIMITED NATURE AND IS REQUIRED PRIMARILY FOR THE PURPOSE OF BETTER QUALIFYING THE OFFICERS AND ENLISTED MEN FOR ACTIVE DUTY IN TIME OF WAR OR NATIONAL EMERGENCY. UNDER THOSE CIRCUMSTANCES, SECTION 4 OF THE ACT IN QUESTION, QUOTED ABOVE, MUST BE GIVEN FULL FORCE AND EFFECT AND, ACCORDINGLY, THE PAYMENT TO THE EMPLOYEE OF COMPENSATION EARNED IN A CIVILIAN POSITION DURING THE PERIOD IN WHICH HE IS IN AN INACTIVE STATUS IN THE NAVAL RESERVE, PERFORMING THE DUTY AUTHORIZED IN SECTION 313 OF THE NAVAL RESERVE ACT OF 1938, AND RECEIVING THE PAY TO WHICH HE IS ENTITLED THEREUNDER, IS NOT TO BE HELD TO VIOLATE THE PROVISIONS OF ANY EXISTING DUAL COMPENSATION LAW.

IN THE LIGHT OF THE FOREGOING, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.