B-65193, APRIL 29, 1947, 26 COMP. GEN. 829

B-65193, APRIL 29, 1947, 26 COMP. GEN. 829

COMPENSATION - DOUBLE - EMPLOYMENT OR REEMPLOYMENT DURING PERIOD OF MILITARY TERMINAL LEAVE - APPLICABILITY OF ACT OF NOVEMBER 21, 1945, TO ENLISTED PERSONNEL THE PROVISIONS OF THE ACT OF NOVEMBER 21, 1945, PERMITTING "ANY PERSON" TO ENTER OR REENTER EMPLOYMENT IN THE FEDERAL GOVERNMENT WHILE ON MILITARY TERMINAL LEAVE AND CONCURRENTLY TO RECEIVE CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES, ARE TO BE REGARDED AS APPLICABLE TO ENLISTED PERSONNEL TO WHOM, BY VIRTUE OF THE ARMED FORCES LEAVE ACT OF 1946, WAS EXTENDED THE RIGHT TO MILITARY TERMINAL LEAVE WHICH WAS A RIGHT OF COMMISSIONED OFFICERS, ONLY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, WAR ASSETS ADMINISTRATION, APRIL 29, 1947:

I HAVE YOUR LETTER OF APRIL 108, 1947, REFERENCE SPE-P, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO THE APPLICATION OF PUBLIC LAWS 226, APPROVED NOVEMBER 21, 1945, AND 704, APPROVED AUGUST 9, 1946, 79TH CONGRESS, IN THE FOLLOWING CASE:

MR. THOMAS A. SCOTT, A 10-POINT PREFERENCE VETERAN AND FORMER ENLISTED MAN, WAS APPOINTED BY THE WAR ASSETS ADMINISTRATION SALES AT LOCATION OFFICE, PHOENIX, ARIZONA, EFFECTIVE OCTOBER 9, 1946, AND IS STILL EMPLOYED IN THAT OFFICE. SUBSEQUENT TO HIS APPOINTMENT, IT WAS LEARNED THAT THE EFFECTIVE DATE OF HIS HONORABLE DISCHARGE FROM THE ARMY WAS NOVEMBER 26, 1946, AND THAT DURING THE PERIOD OF HIS EMPLOYMENT FROM OCTOBER 9 TO NOVEMBER 26 HE WAS ON TERMINAL LEAVE FROM THE ARMED FORCES.

THE REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION EXPRESSED SOME DOUBT AS TO WHETHER PUBLIC LAW 704 ENTITLES ENLISTED MEN TO THE SAME RIGHT AS THAT EXTENDED TO OFFICERS OF THE ARMED FORCES UNDER PUBLIC LAW 226, I.E., THE RIGHT OF ENTERING FEDERAL EMPLOYMENT WHILE ON TERMINAL LEAVE FROM THE ARMED FORCES AND RECEIVING COMPENSATION FOR SUCH EMPLOYMENT AS WELL AS PAY AND ALLOWANCES FOR THE PERIOD OF LEAVE.

THEREFORE, YOU ARE REQUESTED TO ADVISE WHETHER OR NOT MR. SCOTT'S EMPLOYMENT FROM OCTOBER 9 TO NOVEMBER 26, 1946, WAS LEGAL AND WHETHER OR NOT IT WILL BE NECESSARY TO OBTAIN A REFUND OF THE CIVILIAN OR MILITARY PAY FOR THAT PERIOD.

SECTION 2 (A) OF THE ACT OF NOVEMBER 21, 1945, PUBLIC 226, 59 STAT. 584, PROVIDES:

ANY PERSON, WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE PERFORMED ACTIVE SERVICE IN THE ARMED FORCES, MAY, WHILE ON TERMINAL LEAVE PENDING SEPARATION FROM OR RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDER HONORABLE CONDITIONS, ENTER OR REENTER EMPLOYMENT OF THE GOVERNMENT OF THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), AND, IN ADDITION TO COMPENSATION FOR SUCH EMPLOYMENT, SHALL BE ENTITLED TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF SUCH TERMINAL LEAVE AT THE SAME RATES AND TO THE SAME EXTENT AS IF HE HAD NOT ENTERED OR REENTERED SUCH EMPLOYMENT. ( ITALICS SUPPLIED.)

SECTION 2 (A) AND SECTION 3 (A) OF THE ARMED FORCES LEAVE ACT OF 1946, APPROVED AUGUST 9, 1946, PUBLIC LAW 704, 60 STAT. 963, PROVIDE:

(A) THE TERM "MEMBER OF THE ARMED FORCES" MEANS ANY MEMBER OF THE ARMY OF THE UNITED STATES, UNITED STATES NAVY, UNITED STATES MARINE CORPS, OR THE UNITED STATES COAST GUARD.

SEC. 3. (A) EACH MEMBER OF THE ARMED FORCES SHALL BE ENTITLED TO LEAVE AT THE RATE OF TWO AND ONE-HALF CALENDAR DAYS FOR EACH MONTH OF ACTIVE SERVICE, EXCLUDING PERIODS OF (1) ABSENCE FROM DUTY WITHOUT LEAVE, (2) ABSENCE OVER LEAVE, AND (3) CONFINEMENT AS THE RESULT OF A SENTENCE OF COURT MARTIAL. EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, SUCH LEAVE MAY BE ACCUMULATED IN AN AMOUNT NOT TO EXCEED ONE HUNDRED AND TWENTY CALENDAR DAYS. ANY LEAVE SO ACCUMULATED SHALL NOT, HOWEVER, SURVIVE DEATH OCCURRING DURING ACTIVE MILITARY SERVICE. ENLISTED MEMBERS OR FORMER ENLISTED MEMBERS OF THE ARMED FORCES SHALL BE CONSIDERED TO BE ENTITLED TO SUCH LEAVE FROM AND AFTER SEPTEMBER 8, 1949, BUT SHALL NOT BE CONSIDERED TO HAVE ANY LEAVE ACCUMULATED OR ACCRUED AS OF THE DATE OF THE ENACTMENT OF THIS ACT, OR THE DATE OF DISCHARGE IF PRIOR TO SUCH DATE OF ENACTMENT, IN EXCESS OF THE AMOUNT WHICH WOULD HAVE BEEN ACCUMULATED AND ACCRUED IF THEIR LEAVE HAD BEEN ACCUMULATED AND ACCRUED FROM AND AFTER SEPTEMBER 8, 1939, ON THE SAME BASIS AS LEAVE IS ACCUMULATED AND ACCRUED IN THE CASE OF COMMISSIONED OFFICERS IN THE REGULAR COMPONENTS OF THEIR RESPECTIVE BRANCHES OF THE ARMED FORCES. EXCEPT IN THE CASE OF LEAVE TO BE SETTLED AND COMPENSATED FOR UNDER SECTION 6 OF THIS ACT, LEAVE MAY BE TAKEN BY A MEMBER ON A CALENDAR-DAY BASIS AS VACATION OR ABSENCE FROM DUTY WITH PAY, ANNUALLY AS ACCRUING OR OTHERWISE, IN ACCORDANCE WITH REGULATIONS TO BE ISSUED BY THE SEVERAL SECRETARIES. SUCH REGULATIONS SHALL PROVIDE EQUAL TREATMENT FOR OFFICERS AND ENLISTED MEN, SHALL ESTABLISH TO THE FULLEST EXTENT PRACTICABLE UNIFORM POLICIES FOR THE SEVERAL BRANCHES OF THE ARMED FORCES, AND SHALL PROVIDE THAT LEAVE SHALL BE TAKEN ANNUALLY AS ACCRUING TO THE EXTENT CONSISTENT WITH MILITARY REQUIREMENTS AND OTHER EXIGENCIES. MEMBERS WHO REENLIST AFTER THE DATE OF ENACTMENT OF THIS ACT MAY BE AUTHORIZED REENLISTMENT LEAVE IN THE DISCRETION OF THE SECRETARY, FOR A PERIOD NOT EXCEEDING NINETY DAYS, AND SUCH LEAVE SHALL BE DEDUCTED FROM LEAVE ACCRUED DURING ACTIVE SERVICE PRIOR TO REENLISTMENT OR CHARGED AGAINST ANY LEAVE WHICH MAY ACCRUE DURING FUTURE ACTIVE SERVICE OR BOTH. IN THE CASE OF MEMBERS WHO ARE RETIRED AFTER THE DATE OF ENACTMENT OF THIS ACT AND AFTER RETIREMENT ARE CONTINUED ON OR RECALLED TO ACTIVE DUTY, LEAVE ACCRUED DURING SERVICE PRIOR TO RETIREMENT MAY BE CARRIED OVER TO THE PERIOD OF SERVICE AFTER RETIREMENT. LEAVE TAKEN PRIOR TO DISCHARGE BEFORE OR AFTER THE ENACTMENT OF THIS ACT SHALL BE CONSIDERED AS ACTIVE MILITARY SERVICE; BUT LEAVE SETTLED AND COMPENSATED FOR UNDER SECTION 6 OF THIS ACT SHALL NOT BE CONSIDERED AS ACTIVE MILITARY SERVICE.

IT WILL BE NOTED THAT SECTION 2 (A) OF PUBLIC LAW 226, SUPRA, DOES NOT CONFINE ITS PROVISIONS SPECIFICALLY TO COMMISSIONED OFFICERS BUT REFERS TO "ANY PERSON.' IT IS TRUE THAT ITS BENEFITS WERE CONFINED TO COMMISSIONED OFFICERS PRIOR TO THE ENACTMENT OF PUBLIC LAW 704 BUT THE REASON FOR THAT IS THAT ENLISTED PERSONNEL WERE NOT ENTITLED TO TERMINAL LEAVE, AS SUCH, AT THAT TIME. THE RIGHT TO TERMINAL LEAVE HAVING BEEN CLEARLY EXTENDED TO ENLISTED PERSONNEL BY PUBLIC LAW 704, IT FOLLOWS THAT THE PROVISIONS OF PUBLIC LAW 226 BECAME APPLICABLE TO ENLISTED MEN UPON THE ENACTMENT OF PUBLIC LAW 704, SUPRA.

ACCORDINGLY, THE EMPLOYMENT OF MR. SCOTT BY THE WAR ASSETS ADMINISTRATION WAS NOT PRECLUDED OR PROHIBITED BY THE FACT THAT HE WAS ON TERMINAL LEAVE AS AN ENLISTED MAN. HENCE, IF THE PAYMENTS MADE TO HIM WERE OTHERWISE CORRECT AND PROPER, NO REFUND OF EITHER CIVILIAN OR MILITARY PAY IS REQUIRED.