B-83717, APRIL 12, 1949, 28 COMP. GEN. 565

B-83717, APRIL 12, 1949, 28 COMP. GEN. 565

SELECTIVE SERVICE ACT OF 1948 - LEAVE, STATUS, ETC., RIGHTS EMPLOYEES WHO ARE SEPARATED FROM THE ROLLS OF AN AGENCY UPON ENTERING THE ARMED FORCES UNDER THE PROVISIONS OF THE SELECTIVE SERVICE ACT OF 1928 MAY ELECT, AS HERETOFORE, TO RECEIVE COMPENSATION FOR THEIR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE IN A LUMP SUM PURSUANT TO THE ACT OF DECEMBER 21, 1944, OR TO HAVE SUCH ANNUAL LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. THE REEMPLOYMENT BENEFITS PROVIDED BY SECTION 9 OF THE SELECTIVE SERVICE ACT OF 1948 FOR EMPLOYEES UPON RESTORATION AFTER MILITARY OR NAVAL SERVICE IN ORDER THAT SUCH EMPLOYEES MAY HAVE THE SAME STATUS THEY WOULD HAVE ENJOYED HAD THEY NOT ENTERED THE ARMED FORCES ARE TO BE REGARDED AS ACCRUING ONLY AS AN INCIDENT TO ACTUAL RESTORATION, SO THAT, UPON RELEASE FROM MILITARY SERVICE, AN EMPLOYEE MAY NOT, DIRECTLY OR INDIRECTLY, RECEIVE THE BENEFIT OF ANY PROMOTION GRANTED DURING HIS PERIOD OF MILITARY FURLOUGH, FOR ANY PURPOSE, UNLESS HE ACTUALLY HAS BEEN RESTORED TO DUTY IN ACCORDANCE WITH SAID ACT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 12, 1949:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 11, 1949, PRESENTING FOR DECISION TWO QUESTIONS IN CONNECTION WITH THE ADMINISTRATION OF THE SELECTIVE SERVICE ACT OF 1948, PUBLIC LAW 759, 80TH CONGRESS, 62 STAT. 604. THE TWO QUESTIONS ARE AS FOLLOWS:

1. WHEN A PERSON LEAVES TO ENTER THE ARMED FORCES AND IS ACTUALLY SEPARATED FROM THE ROLLS CAN HE ELECT TO RECEIVE EITHER A LUMP SUM FOR HIS ACCRUED LEAVE OR PRESERVE SUCH ACCRUED LEAVE INTACT PENDING RESTORATION?

2. WHEN AN EMPLOYEE IS SEPARATED OR PLACED ON MILITARY FURLOUGH FOR THE PURPOSE OF ENTERING ACTIVE MILITARY SERVICE, IS PROMOTED IN ABSENTIA DURING SUCH MILITARY SERVICE, AND DOES NOT RETURN TO THE AGENCY FROM WHICH HE LEFT TO ENTER MILITARY SERVICE, WILL ALL PERSONNEL ACTIONS TAKEN SUBSEQUENT TO THE SEPARATION OR MILITARY FURLOUGH ACTION BE AUTOMATICALLY NULLIFIED BY THE INDIVIDUAL'S FAILURE TO RETURN. THIS QUESTION RELATES PARTICULARLY TO THE RATE OF PAY TO BE USED FOR RETIREMENT PURPOSES, FOR COMPUTING LEAVE WHICH MAY REMAIN TO THE CREDIT OF THE VETERAN, AND FOR DETERMINING INITIAL SALARY RATE IN CASE OF ANY EMPLOYMENT IN THE FEDERAL SERVICE WHICH DOES NOT INVOLVE AN EXERCISE OF HIS REEMPLOYMENT RIGHTS?

THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, AS CODIFIED IN 5 U.S.C. 61A, PROVIDES THAT:

EMPLOYEES * * * WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE * * *, 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. THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, AS CODIFIED IN 5 U.S.C. 61B, PROVIDES, IN PERTINENT PART, THAT:

WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH SECTION 61A OF THIS TITLE (THE ACT OF AUGUST 1, 1941) * * * HE SHALL BE PAID COMPENSATION IN A LUMP SUM * * *. (ITALICS SUPPLIED.) THUS, IT CLEARLY APPEARS THAT EMPLOYEES WHO ENTER THE ARMED FORCES UNDER THE PROVISIONS OF THE SELECTIVE SERVICE ACT OF 1948 HAVE THE SAME RIGHT OF ELECTION WITH RESPECT TO THEIR LEAVE AS WAS GIVEN UNDER PREVIOUS LAWS TO THOSE WHO ENTERED SUCH SERVICE, EXCEPT THAT NOW, WHEN ELECTIONS ARE MADE TO RECEIVE COMPENSATION FOR ANNUAL LEAVE, SUCH COMPENSATION SHALL BE PAID IN A LUMP SUM. ACCORDINGLY, THE FIRST QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO THE SECOND QUESTION SECTION 9 (B) (A) OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 615, PROVIDES THAT A PERSON WHO LEAVES A POSITION IN THE UNITED STATES GOVERNMENT, ETC., IN ORDER TO PERFORM TRAINING AND SERVICE IN THE ARMED FORCES, AND WHO COMPLETES SUCH PERIOD OF TRAINING AND SERVICE UNDER THE CONDITIONS PRESCRIBED "SHALL BE RESTORED TO SUCH POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY.' ALSO, SECTION 9 (C) OF THE SAID ACT, 62 STAT. 615, PROVIDES:

(1) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE ARMED FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.

(2) IT IS HEREBY DECLARED TO BE THE SENSE OF THE CONGRESS THAT ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHOULD BE SO RESTORED IN SUCH MANNER AS TO GIVE HIM SUCH STATUS IN HIS EMPLOYMENT AS HE WOULD HAVE ENJOYED IF HE HAD CONTINUED IN SUCH EMPLOYMENT CONTINUOUSLY FROM THE TIME OF HIS ENTERING THE ARMED FORCES UNTIL THE TIME OF HIS RESTORATION TO SUCH EMPLOYMENT. ( ITALICS SUPPLIED.)

IT SEEMS CLEAR FROM THE FOREGOING PROVISIONS THAT THE BENEFITS PROVIDED AND/OR STATED TO HAVE BEEN CONTEMPLATED BY THE CONGRESS THEREUNDER ACCRUE ONLY AS AN INCIDENT TO THE ACTUAL RESTORATION OF THE EMPLOYEE TO A FEDERAL CIVILIAN EMPLOYMENT STATUS PURSUANT TO THE PROVISIONS OF THE SAID SELECTIVE SERVICE ACT OF 1948. IN THAT CONNECTION, IN OFFICE DECISION OF SEPTEMBER 9, 1948, B-79031, 28 COMP. GEN. 159, IT WAS STATED:

REGARDLESS OF THE NATURE OF THE ACTION TAKEN, THE RIGHTS OF THE EMPLOYEES WITH RESPECT TO SENIORITY, STATUS, AND PAY ARE FOR DETERMINATION AS OF THE TIME OF REEMPLOYMENT IN THE CIVILIAN POSITION. THE SAME CONCLUSION IS REQUIRED UNDER THE ESSENTIALLY SIMILAR PROVISIONS OF SECTION 9 OF THE SELECTIVE SERVICE ACT OF 1948.

THEREFORE, THE CONCLUSION IS REQUIRED THAT, UPON RELEASE FROM MILITARY SERVICE, AN EMPLOYEE MAY NOT, DIRECTLY OR INDIRECTLY, RECEIVE THE BENEFIT OF ANY PROMOTION GRANTED DURING HIS PERIOD OF MILITARY FURLOUGH, FOR ANY PURPOSE, UNLESS HE ACTUALLY HAS BEEN RESTORED TO DUTY PURSUANT TO THE PROVISIONS OF THE SAID SELECTIVE SERVICE ACT OF 1948. QUESTION 2 IS ANSWERED ACCORDINGLY.