B-9236, APRIL 18, 1940, 19 COMP. GEN. 880

B-9236, APRIL 18, 1940, 19 COMP. GEN. 880

LEAVES OF ABSENCE - CIVILIAN EMPLOYEES ON ACTIVE DUTY WITH NAVAL RESERVE UNDER THE ACT OF JUNE 25, 1938, 52 STAT. 1175, A CIVILIAN EMPLOYEE MAY BE GRANTED A MAXIMUM OF 15 DAYS' MILITARY LEAVE IN ANY CALENDAR YEAR FOR "TRAINING DUTY" AS A MEMBER OF THE NAVAL RESERVE, WHETHER ORDERED TO SUCH TRAINING DUTY WITH OR WITHOUT HIS CONSENT, BUT HE IS NOT ENTITLED TO MILITARY LEAVE FOR ACTIVE DUTY OTHER THAN FOR "TRAINING.' A CIVILIAN EMPLOYEE MEMBER OF THE NAVAL RESERVE, ON ACTIVE DUTY OTHER THAN FOR "TRAINING" UNDER THE ACT OF JUNE 25, 1938, 52 STAT. 1175, WHO HAS SUFFICIENT ANNUAL LEAVE TO HIS CREDIT TO COVER THE REQUIRED PERIOD OF ABSENCE FROM HIS CIVILIAN POSITION, MAY BE PAID THE COMPENSATION OF HIS CIVILIAN POSITION FOR SUCH LEAVE, AS WELL AS HIS PAY AND ALLOWANCES AS A RESERVIST. DECISIONS RELATING TO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, DISTINGUISHED. DECISIONS TO THE EFFECT THAT AN EMPLOYEE FORFEITS ALL ACCRUED ANNUAL LEAVE TO HIS CREDIT WHEN GOING ON LEAVE WITHOUT PAY FOR THE PURPOSE OF PERFORMING MILITARY DUTY HAVE BEEN RENDERED INOPERATIVE BY SUBSEQUENT AMENDMENTS TO THE UNIFORM ANNUAL LEAVE REGULATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL WORKS ADMINISTRATOR, APRIL 18, 1940:

I HAVE YOUR LETTER OF MARCH 18, 1940, AS FOLLOWS:

SECTION 9 OF THE ACT OF JUNE 25, 1938, 52 STAT. 1177, PROVIDES AS FOLLOWS:

"THAT ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA WHO ARE MEMBERS OF THE NAVAL RESERVE SHALL BE ENTITLED TO LEAVE OF ABSENCE FROM THEIR RESPECTIVE DUTIES WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, ON ALL DAYS DURING WHICH THEY MAY BE EMPLOYED WITH OR WITHOUT PAY UNDER THE ORDERS OR AUTHORIZATION OF COMPETENT AUTHORITY ON TRAINING DUTY FOR PERIODS NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.' AND UNDER TITLE II, SECTION 315, 52 STAT. 1184, IT IS PROVIDED:

"IN TIME OF PEACE, EXCEPT AS HEREIN OTHERWISE PROVIDED, MEMBERS OF THE NAVAL RESERVE IN RECEIPT OF PAY FOR THE PERFORMANCE OF DRILLS, EQUIVALENT INSTRUCTIONS, OR DUTY OR APPROPRIATE DUTIES, MAY BE REQUIRED TO PERFORM SUCH TRAINING DUTY NOT TO EXCEED 15 DAYS ANNUALLY AS MAY BE PRESCRIBED BY DIRECTION OF THE SECRETARY OF THE NAVY. THEY MAY BE GIVEN ADDITIONAL TRAINING OR OTHER DUTY EITHER WITH OR WITHOUT PAY AS MAY BE AUTHORIZED WITH THEIR CONSENT.'

IN YOUR DECISION OF NOVEMBER 21, 1939, TO THE SECRETARY OF THE INTERIOR, 19 COMP. GEN. 513, WITH REFERENCE TO SIMILAR PROVISIONS OF LAW APPLICABLE TO OFFICERS OF THE RESERVE CORPS OF THE ARMY, IT WAS STATED THAT THE LAW WAS INTENDED TO BE, AND IS, LIMITED IN ITS APPLICATION TO THE REGULAR ANNUAL TRAINING PERIODS OF NOT TO EXCEED FIFTEEN DAYS IN EACH CALENDAR YEAR TO WHICH OFFICERS OF THE RESERVE CORPS OF THE ARMY ARE AUTHORIZED TO BE ORDERED WITHOUT THEIR CONSENT, AND THAT THE CLEAR PURPOSE AND INTENT OF THE LAW WAS TO MAINTAIN THE STATUS QUO OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT--- WHO ARE ALSO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY--- ONLY DURING THE TRAINING PERIODS NOT EXCEEDING FIFTEEN DAYS EACH CALENDAR YEAR TO WHICH TRAINING THEY MAY BE ORDERED WITHOUT THEIR CONSENT, THUS GIVING THEM THE RIGHT TO RECEIVE CIVILIAN COMPENSATION CONCURRENTLY WITH MILITARY PAY FOR SUCH STATED PERIOD.

MR. SIDNEY A. HUGUENIN, A FIELD EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION AND AN OFFICER IN THE NAVAL RESERVE, APPLIED FOR MILITARY LEAVE TO COVER THE PERIOD FROM JANUARY 15 TO 27, 1940, INCLUSIVE. AT THE TIME THE APPLICATION WAS RECEIVED IN THE FIELD OFFICE THERE WAS PENDING DELIVERY TO THE EMPLOYEE OF A NOTIFICATION OF FURLOUGH EFFECTIVE AT THE CLOSE OF BUSINESS JANUARY 27, 1940, PLUS ACCRUED LEAVE. THE FIELD OFFICE NOTIFIED THE EMPLOYEE THAT HE COULD TAKE THE MILITARY LEAVE AND WOULD BE CONSIDERED IN A DUTY STATUS UNTIL THE CLOSE OF JANUARY 27, AT WHICH TIME HIS ANNUAL LEAVE WOULD START TO RUN AND AT THE EXPIRATION OF THE ANNUAL LEAVE HE WOULD ENTER A FURLOUGH WITHOUT PAY STATUS.

UPON RECEIPT OF THE APPLICATION FOR MILITARY LEAVE IN THE CENTRAL OFFICE IT WAS NOTED FROM THE SUPPORTING ORDER THAT THE ABSENCE DID NOT COVER A REGULAR PERIOD OF TRAINING BUT THAT THE EMPLOYEE HAD BEEN ORDERED TO DUTY AT HIS REQUEST TO ATTEND A CONFERENCE ON NAVAL RESERVE MATTERS, AND AN EXAMINATION OF THE LEAVE RECORDS FOR PREVIOUS YEARS DISCLOSES THAT THE REGULAR PERIOD OF TRAINING USUALLY OCCURS DURING THE MONTHS OF JUNE OR JULY. IT APPEARS TO THIS OFFICE THAT THE 15 DAYS' LEAVE TO WHICH THE EMPLOYEE IS ENTITLED WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, IS THE 15 DAYS REFERRED TO IN SECTION 315 OF THE ACT TO WHICH MEMBERS OF THE NAVAL RESERVE CAN BE ORDERED WITHOUT THEIR CONSENT. WITHOUT INFERENCE WITH RESPECT TO THIS PARTICULAR CASE, TO HOLD OTHERWISE WOULD CREATE A SITUATION WHERE ALL EMPLOYEES WHO ARE ALSO MEMBERS OF THE RESERVE CORPS MIGHT ANTICIPATE THE DATE OF COMPLETION OF THE WORK FOR WHICH THEIR SERVICES ARE REQUIRED AND REQUEST ACTIVE DUTY PRIOR TO THE REGULAR PERIOD OF TRAINING, THEREBY OBTAINING ADDITIONAL PAY IMPOSING A BURDEN ON LIMITED ADMINISTRATIVE FUNDS. THERE WOULD ALSO SEEM TO BE FOR CONSIDERATION THE EMPLOYEE'S STATUS WHEN ORDERED TO DUTY IN CONNECTION WITH HIS REGULAR PERIOD OF TRAINING. IF, WHEN ORDERED TO SUCH DUTY WHICH HE MAY BE REQUIRED TO PERFORM, MR. HUGUENIN HAS OBTAINED EMPLOYMENT WITH ANOTHER DEPARTMENT OF THE GOVERNMENT AFTER A BREAK IN SERVICE NOT INVOLVING A TRANSFER OF THE LEAVE RECORD, HIS RECORD IN HIS NEW POSITION WOULD BE SILENT WITH RESPECT TO THE MILITARY LEAVE ALREADY GRANTED POSSIBLY RESULTING IN AN ALLOWANCE OF LEAVE IN EXCESS OF THE 15 DAYS PERMITTED BY LAW. IN EVERY CASE WHERE LEAVE HAD BEEN PREVIOUSLY GRANTED THE REGULAR PERIOD OF TRAINING WOULD INVOLVE PERFORMANCE OF THE MILITARY DUTY WITHOUT PAY, OR THE GRANTING OF LEAVE WITHOUT PAY FROM THE CIVILIAN POSITION WITH A RESULTING FORFEITURE OF ACCRUED ANNUAL LEAVE.

THE EMPLOYEE HAS PROTESTED THE ACTION DENYING HIM MILITARY LEAVE OF ABSENCE WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING FOR THE PERIOD FROM JANUARY 15 TO 27, 1940, INCLUSIVE, ALLEGING THAT SAID ACTION IS NOT IN ACCORDANCE WITH THE PERTINENT DECISIONS OR THE INTERPRETATIONS OF THE SAME BY THE NAVY DEPARTMENT, AND HE HAS REQUESTED THAT THE MATTER BE REFERRED TO YOUR OFFICE FOR A RULING.

A CERTIFIED TRUE COPY OF THE ORDER UNDER WHICH THE DUTY WAS PERFORMED IS ATTACHED.

IN CASE IT SHOULD BE HELD THAT THE EMPLOYEE IS NOT ENTITLED TO THE MILITARY LEAVE THERE IS INVOLVED THE MATTER OF LEAVE WITHOUT PAY AND THE FORFEITURE OF ACCRUED ANNUAL LEAVE, AND IN THIS CONNECTION IT IS REQUESTED THAT YOU ADVISE IF YOUR OFFICE WOULD OBJECT TO THE EMPLOYEE REFUNDING TO THE NAVY THE PAY RECEIVED BY HIM AS AN OFFICER OF THE NAVAL RESERVE, ELECTING TO RECEIVE IN LIEU THEREOF HIS SALARY AS A CIVILIAN EMPLOYEE ON ANNUAL LEAVE WITH PAY, THEREBY MAINTAINING A CONTINUOUS STATUS AS A CIVILIAN EMPLOYEE PERMITTING HIM TO BE PAID FOR ALL OF HIS ACCRUED LEAVE BEFORE ENTERING A FURLOUGH WITHOUT PAY STATUS. THIS PROCEDURE WAS APPROVED IN CONNECTION WITH ANOTHER EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION WHOSE CASE WAS CONSIDERED IN YOUR DECISION TO ME OF SEPTEMBER 29, 1939, NO. B-6024.

A PROMPT REPLY WILL BE APPRECIATED AS FINAL SETTLEMENT OF THE EMPLOYEE'S ACCOUNT WILL NECESSARILY BE DELAYED PENDING THE RECEIPT OF THE SAME.

THE ORDER DATED JANUARY 8, 1940, ISSUED TO LIEUTENANT SIDNEY HUGUENIN READS AS FOLLOWS:

FROM: THE CHIEF OF THE BUREAU OF NAVIGATION.

TO: LIEUT. SIDNEY HUGUENIN, D-O, USNR, ROOM 1701, 20 NORTH

WACKER DRIVE, CHICAGO, ILLINOIS.

VIA: THE COMMANDANT, NINTH NAVAL DISTRICT.

SUBJECT: TEMPORARY ACTIVE DUTY--- CHARGEABLE AGAINST APPROPRIATION

70154-1700405, SUBHEAD .004 (2)," NAVAL RESERVE 1940.'

1. HAVING REQUESTED ACTIVE DUTY, YOU WILL REPORT TO SUCH MEDICAL OFFICER AS MAY BE DESIGNATED BY THE COMMANDANT, NINTH NAVAL DISTRICT, TO DETERMINE YOUR PHYSICAL FITNESS FOR SUCH DUTY.

2. IF FOUND PHYSICALLY QUALIFIED, YOU WILL PROCEED TO GREAT LAKES, ILLINOIS, AND ON JANUARY 15, 1940, REPORT TO THE COMMANDANT, NINTH NAVAL DISTRICT, FOR TEMPORARY ACTIVE DUTY FOR THE PURPOSE OF ATTENDING THE GROUP "C" CONFERENCE ON NAVAL RESERVE MATTERS TO BE HELD AT GREAT LAKES, ILLINOIS, DURING THE PERIOD, JANUARY 15 TO JANUARY 27, 1940.

3. UPON COMPLETION OF THIS DUTY, YOU WILL REPORT FOR PHYSICAL EXAMINATION AND, WHEN CONCLUDED, YOU WILL PROCEED TO YOUR HOME; UPON ARRIVAL, YOU WILL REGARD YOURSELF RELEASED FROM ALL ACTIVE DUTY.

4. PAY, ALLOWANCES AND MILEAGE WILL BE CHARGEABLE AGAINST APPROPRIATION, 70154-1700405, SUBHEAD .004 (2)," NAVAL RESERVE 1940.'

5. THE RECORDS OF THE BUREAU INDICATE THAT YOU HAVE HAD FOURTEEN YEARS, ELEVEN MONTHS, AND TWENTY-TWO DAYS' PRIOR NAVAL SERVICE AS OF JANUARY 8, 1940, COMPUTED IN ACCORDANCE WITH SECTION G OF THE PAY BILL INSTRUCTIONS. YOU HAVE PERFORMED ACTIVE DUTY SINCE JANUARY 1, 1928, AND STATEMENT OF SERVICE HAS BEEN FURNISHED.

6. A COPY OF THESE ORDERS, BEARING ALL ENDORSEMENTS, SHOULD BE FURNISHED THE BUREAU OF NAVIGATION, THE BUREAU OF SUPPLIES AND ACCOUNTS, AND THE COMMANDANT, NINTH NAVAL DISTRICT, UPON COMPLETION OF THIS DUTY.

IN THE DECISION OF NOVEMBER 21, 1939, 19 COMP. GEN. 513, 515, CITED BY YOU, INVOLVING THE CASE OF A CIVILIAN EMPLOYEE WHO WAS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, IT WAS STATED:

THE ACT OF MAY 12, 1917 (40 STAT. 72), WAS INTENDED TO BE, AND IS, LIMITED IN ITS APPLICATION TO THE REGULAR ANNUAL TRAINING PERIODS OF NOT TO EXCEED 15 DAYS IN EACH CALENDAR YEAR TO WHICH OFFICERS OF THE RESERVE CORPS OF THE ARMY ARE AUTHORIZED TO BE ORDERED WITHOUT THEIR CONSENT AND HAS NO APPLICATION TO EXTENDED OR INDEFINITE PERIODS OF ACTIVE MILITARY DUTY WITH THE REGULAR ARMY. THE CLEAR PURPOSE AND INTENT OF THE ACT OF MAY 12, 1917, SUPRA, WAS TO MAINTAIN THE STATUS QUO OF CIVILIAN OFFICERS AND EMPLOYEES OF THE GOVERNMENT--- WHO ARE ALSO MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY--- ONLY DURING THE TRAINING PERIODS NOT EXCEEDING 15 DAYS EACH CALENDAR YEAR TO WHICH TRAINING THEY MAY BE ORDERED WITHOUT THEIR CONSENT, THUS GIVING THEM THE RIGHT TO RECEIVE CIVILIAN COMPENSATION CONCURRENTLY WITH MILITARY PAY FOR SUCH STATED PERIOD.

THAT DECISION DOES NOT HOLD, AS SEEMS SUGGESTED BY YOUR LETTER, THAT MILITARY LEAVE OF ABSENCE MAY BE GRANTED ONLY WHEN THE RESERVE OFFICER IS ORDERED TO ACTIVE MILITARY DUTY FOR TRAINING OR FOR INSTRUCTION WITHOUT HIS CONSENT. IN THAT CONNECTION THERE IS FOR NOTING THE DECISION OF SEPTEMBER 17, 1938, 18 COMP. GEN. 236, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A CIVILIAN EMPLOYEE OF THE UNITED STATES WHO IS ALSO A MEMBER OF THE OFFICERS' RESERVE CORPS, IS ENTITLED, UNDER THE ACT OF MAY 12, 1917, 40 STAT. 72, TO MILITARY LEAVE OF ABSENCE "WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING" WHEN ORDERED TO ACTIVE DUTY FOR TRAINING, OR FOR INSTRUCTION, ETC., FOR A PERIOD NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR WHETHER THE ORDER BE WITH OR WITHOUT THE OFFICER'S CONSENT. 16 COMP. GEN. 1103, INVOLVING A PERIOD LONGER THAN 15 DAYS, DISTINGUISHED. THE PENULTIMATE PARAGRAPH OF SAID DECISION BEING AS FOLLOWS:

IT IS IMMATERIAL WHETHER A RESERVE OFFICER IS ORDERED VOLUNTARILY OR INVOLUNTARILY TO ACTIVE DUTY FOR TRAINING OR FOR INSTRUCTION, ETC., UNDER THE QUOTED STATUTE FOR A PERIOD NOT TO EXCEED 15 DAYS IN ANY ONE CALENDAR YEAR.

SECTION 9 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, QUOTED IN YOUR LETTER, CLEARLY LIMITS THE GRANTING OF MILITARY LEAVE OF ABSENCE WITH PAY TO CIVILIAN EMPLOYEES WHO ARE ORDERED OR AUTHORIZED BY COMPETENT AUTHORITY TO PERFORM "TRAINING DUTY" AS MEMBERS OF THE NAVAL RESERVE. SECTION 315 OF THE SAME STATUTE, ALSO QUOTED IN YOUR LETTER, FIXES A MAXIMUM PERIOD OF TRAINING DUTY TO WHICH MEMBERS OF THE NAVAL RESERVE MAY BE ORDERED WITHOUT THEIR CONSENT TO 15 DAYS ANNUALLY AND AUTHORIZES ADDITIONAL PERIODS OF TRAINING OR OTHER DUTY WITH THEIR CONSENT. THE PURPOSE AND INTENT OF THE TWO SECTIONS OF THE STATUTE, SO FAR AS THEY CONTROL THE GRANTING OF MILITARY LEAVE OF ABSENCE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE MEMBERS OF THE NAVAL RESERVE, ARE THE SAME AS THE ACT OF MAY 12, 1917, CONTROLLING THE GRANTING OF MILITARY LEAVE OF ABSENCE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY. ACCORDINGLY, IT IS HELD THAT MILITARY LEAVE OF ABSENCE NOT TO EXCEED 15 DAYS IN ANY CALENDAR YEAR MAY BE GRANTED TO CIVILIAN EMPLOYEES WHO ARE ABSENT PURSUANT TO AN ORDER OR AUTHORIZATION ISSUED BY COMPETENT AUTHORITY DIRECTING THEM TO PERFORM "TRAINING DUTY" AS A MEMBER OF THE NAVAL RESERVE, WHETHER THE RESERVE OFFICER BE ORDERED WITH OR WITHOUT HIS CONSENT TO SUCH TRAINING DUTY.

WHILE ARTICLE H-5306, SUBDIVISION (3) OF THE BUREAU OF NAVIGATION MANUAL, PROVIDES THAT DUTY ON , DISTRICT OR DEPARTMENTAL NAVAL RESERVE POLICY BOARDS AND DUTY IN CONNECTION WITH SELECTIVE SERVICE CONFERENCES" MAY BE REGARDED AS "TRAINING DUTY," THIS OFFICE HAS BEEN INFORMALLY ADVISED BY THE NAVY DEPARTMENT THAT THE ORDER ISSUED JANUARY 8, 1940, TO LIEUTENANT HUGUENIN UPON HIS OWN REQUEST, AND SIMILAR ORDERS ISSUED TO OTHER MEMBERS OF THE NAVAL RESERVE DURING THE CURRENT CALENDAR YEAR, ARE FOR ACTIVE DUTY OTHER THAN FOR TRAINING. THERE IS NOTHING IN THE ORDER ISSUED TO LIEUTENANT HUGUENIN INDICATING THAT THE DUTY TO BE PERFORMED BY HIM WAS FOR TRAINING. YOU ARE ADVISED, THEREFORE, THAT THE ADMINISTRATIVE ACTION DENYING MILITARY LEAVE OF ABSENCE TO LIEUTENANT HUGUENIN FOR THE PERIOD JANUARY 15 TO 27, 1940, INCLUSIVE, WAS CORRECT.

THE LAST PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT OF JUNE 25, 1938, 52 STAT. 1176, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * 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, * * * THAT PORTION OF THE STATUTE IS IDENTICAL IN TERMS WITH THE THIRD PROVISO TO SECTION 4 OF THE NAVAL RESERVE ACT APPROVED FEBRUARY 28, 1925, 43 STAT. 1081. IN APPLYING THAT STATUTE IT WAS HELD IN DECISION OF FEBRUARY 17, 1937, 16 COMP. GEN. 767, AS FOLLOWS (QUOTING FROM THE SYLLABUS): A CIVILIAN EMPLOYEE MEMBER OF THE FLEET MARINE CORPS RESERVE ORDERED TO TRAINING DUTY FOR A PERIOD IN EXCESS OF 15 DAYS, IS ENTITLED, UNDER THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1080, TO BOTH THE SALARY OR COMPENSATION OF HIS CIVILIAN POSITION AND THE PAY AND ALLOWANCES OF HIS RATING IN THE RESERVE NOT ONLY FOR 15 DAYS OF MILITARY LEAVE, BUT, ALSO, FOR SUCH AUTHORIZED ANNUAL LEAVE AS MAY HAVE BEEN GRANTED TO HIM.

THERE IS PARTICULARLY FOR NOTING THE FACT THAT THE RULE SET FORTH IN THE LAST-QUOTED DECISION IS APPLICABLE ONLY TO CIVILIAN EMPLOYEES WHO ARE ABSENT FROM CIVILIAN DUTY ON ACTIVE DUTY AS MEMBERS OF THE NAVAL RESERVE AND THAT SAID RULE IS DIFFERENT FROM THE ONE APPLICABLE TO CIVILIAN EMPLOYEES WHO ARE ABSENT FROM CIVILIAN DUTY ON ACTIVE DUTY AS MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY. SEE 16 COMP. GEN. 1103; 18 ID. 236.

ACCORDINGLY, IF LIEUTENANT HUGUENIN HAD TO HIS CREDIT SUFFICIENT ANNUAL LEAVE TO COVER THE PERIOD JANUARY 15 TO 27, 1940, INCLUSIVE, THE TIME HE WAS ABSENT FROM DUTY IN HIS CIVILIAN POSITION ON ACTIVE DUTY, OTHER THAN FOR TRAINING, AS A MEMBER OF THE NAVAL RESERVE, HE MAY BE PAID THE COMPENSATION OF HIS CIVILIAN POSITION FOR THAT PERIOD IF COVERED BY ANNUAL LEAVE--- THERE BEING FOR APPLICATION TO HIS CASE THE RULE STATED IN 16 COMP. GEN. 767, SUPRA.

REFERRING TO THE STATEMENT IN YOUR LETTER---

* * * TO HOLD OTHERWISE WOULD CREATE A SITUATION WHERE ALL EMPLOYEES WHO ARE ALSO MEMBERS OF THE RESERVE CORPS MIGHT ANTICIPATE THE DATE OF COMPLETION OF THE WORK FOR WHICH THEIR SERVICES ARE REQUIRED AND REQUEST ACTIVE DUTY PRIOR TO THE REGULAR PERIOD OF TRAINING, THEREBY OBTAINING ADDITIONAL PAY, IMPOSING A BURDEN ON LIMITED ADMINISTRATIVE FUNDS. * * * YOUR ATTENTION IS INVITED TO DECISION OF THIS OFFICE DATED FEBRUARY 9, 1940, B-8231, 19 COMP. GEN. 716, A MIMEOGRAPHED COPY OF WHICH IS ENCLOSED, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND THE EMPLOYEE HAS HAD NOTICE THEREOF, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT, WHETHER THE APPLICATION FOR SUCH EXTENTION IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY.

REFERRING TO THE PENULTIMATE PARAGRAPH OF YOUR LETTER, WHILE THE AMENDED LEAVE REGULATIONS APPARENTLY NEED NOT BE APPLIED IN THE INSTANT CASE, IT IS DEEMED ADVISABLE TO CALL YOUR ATTENTION TO SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS AS AMENDED BY EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, PUBLISHED IN THE FEDERAL REGISTER FOR APRIL 2, 1940, AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT

(B) AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY. SECTION 21 OF THE SAME REGULATIONS PROVIDES THAT THE ABOVE-QUOTED SECTION OF THE REGULATION "* * * SHALL BE EFFECTIVE AS OF JULY 1, 1936, PROVIDED THAT THE TOTAL AMOUNT OF LEAVE TO THE CREDIT OF ANY EMPLOYEE RESULTING FROM AN ADJUSTMENT OF SUCH LEAVE ON THE BASIS OF THE REGULATIONS AS HEREIN AMENDED SHALL NOT EXCEED THE AMOUNT AUTHORIZED TO BE ACCUMULATED BY LAW.' SAID MODIFICATION IN THE REGULATION SUPERSEDES AND RENDERS INOPERATIVE THE RULE STATED IN A NUMBER OF DECISIONS OF THIS OFFICE UNDER THE REGULATION IN EFFECT PRIOR TO SUCH MODIFICATION TO THE EFFECT THAT AN EMPLOYEE FORFEITS ALL ACCRUED ANNUAL LEAVE TO HIS CREDIT WHEN GOING ON LEAVE OF ABSENCE WITHOUT PAY FOR THE PURPOSE OF PERFORMING MILITARY DUTY. SEE 18 COMP. GEN. 94; ID. 653; 19 ID. 552.