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1940: IT HAVE YOUR LETTER OF OCTOBER 9. 1930 (FILE PI-MF) AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF SEPTEMBER 18. INFORMING THAT PERMANENT EMPLOYEES WHO ARE ORDERED TO ACTIVE DUTY. THAT THE SAME RULE IS APPLICABLE TO TEMPORARY EMPLOYEES WHILE ABSENT FROM THEIR CIVILIAN POSITIONS EITHER ON TRAINING OR ACTIVE DUTY AS MEMBERS OF THE NATIONAL GUARD. WHEREIN IT WAS HELD. THIS EXCEPTION HAS BEEN CORRECTLY HELD AS NOT APPLICABLE TO MEMBERS OF THE ORGANIZED MILITIA AFTER THEY HAVE BEEN MUSTERED INTO THE FEDERAL SERVICE (22 COMP. GRANTS LEAVE OF ABSENCE WITH PAY TO TEMPORARY GOVERNMENT EMPLOYEES WHO FORMERLY WERE NOT ENTITLED TO LEAVE AND PLACES UPON ADMINISTRATIVE OFFICERS THE DUTY OF GRANTING SUCH LEAVE.

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B-12310, OCTOBER 30, 1940, 20 COMP. GEN. 226

LEAVES OF ABSENCE - TEMPORARY EMPLOYEES ON DUTY WITH NATIONAL GUARD WHILE MILITARY LEAVE OF ABSENCE MAY NOT BE GRANTED TO TEMPORARY EMPLOYEES, THE DUAL COMPENSATION ACT OF 1916 DOES NOT PROHIBIT GRANTING THEM ANY ANNUAL LEAVE TO THEIR CREDIT DURING PERIODS OF ABSENCE ON ACTIVE OR TRAINING DUTY AS MEMBERS OF A STATE ORGANIZATION OF THE NATIONAL GUARD- -- NOT IN FEDERAL SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, OCTOBER 30, 1940:

IT HAVE YOUR LETTER OF OCTOBER 9, 1930 (FILE PI-MF) AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF SEPTEMBER 18, 1940 (B-12310), INFORMING THAT PERMANENT EMPLOYEES WHO ARE ORDERED TO ACTIVE DUTY, AS DISTINGUISHED FROM ANNUAL TRAINING DUTY, AS MEMBERS OF THE NATIONAL GUARD, MAY RECEIVE PAY FOR ANNUAL LEAVE, IF DUE, CONCURRENTLY WITH MILITARY PAY, PROVIDED THE COMBINED RATES OF COMPENSATION DO NOT EXCEED THE $2,000 PER ANNUM LIMITATION CONTAINED IN SECTION 6 OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, AND THAT THE SAME RULE IS APPLICABLE TO TEMPORARY EMPLOYEES WHILE ABSENT FROM THEIR CIVILIAN POSITIONS EITHER ON TRAINING OR ACTIVE DUTY AS MEMBERS OF THE NATIONAL GUARD.

YOU REFER TO DECISION OF SEPTEMBER 18, 1940 (B-12291), WHEREIN IT WAS HELD, IN PART, AS OLLOWS:

"THE DUAL COMPENSATION ACT OF MAY 10, 1916 (39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582), EXPRESSLY EXCEPTS "OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA.' HOWEVER, THIS EXCEPTION HAS BEEN CORRECTLY HELD AS NOT APPLICABLE TO MEMBERS OF THE ORGANIZED MILITIA AFTER THEY HAVE BEEN MUSTERED INTO THE FEDERAL SERVICE (22 COMP. DEC. 661; ID. 704; 23 ID. 89; ID. 364). ACCORDINGLY, THE EXCEPTION WOULD NOT APPLY TO MEMBERS OF THE NATIONAL GUARD OF THE UNITED STATES WHEN CALLED TO ACTIVE MILITARY DUTY AND THEY COULD NOT BE PAID THE SALARY OF THEIR CIVILIAN POSITIONS FOR ANY PERIOD OF ANNUAL LEAVE WHILE ENTITLED TO ACTIVE DUTY PAY AND ALLOWANCES FOR ACTIVE DUTY WITH THE ARMY IF THE COMBINED RATE EXCEEDS$2,000 PER ANNUM.'

THE ACT OF MARCH 14, 1936, GRANTS LEAVE OF ABSENCE WITH PAY TO TEMPORARY GOVERNMENT EMPLOYEES WHO FORMERLY WERE NOT ENTITLED TO LEAVE AND PLACES UPON ADMINISTRATIVE OFFICERS THE DUTY OF GRANTING SUCH LEAVE, THE ONLY LATITUDE GIVEN BEING THE DETERMINATION AS TO THE TIME WHEN THE LEAVE CAN BEST BE GRANTED. AT THE PRESENT TIME THERE ARE A GREAT MANY EMPLOYEES ON THE ROLLS IN THE VARIOUS NAVY YARDS WHO ARE EMPLOYED IN A TEMPORARY STATUS PENDING THE ESTABLISHMENT OF REGISTERS OF QUALIFIED ELIGIBLES. THE LENGTH OF SERVICE UNDER THESE APPOINTMENTS IS VERY INDEFINITE. IT WOULD BE DISTINCTLY TO THE GOVERNMENT'S ADVANTAGE TO ALLOW ANNUAL LEAVE, ACCRUED AND DUE, TO BE TAKEN BY THIS AND OTHER CLASSES OF TEMPORARY EMPLOYEES CONCURRENTLY WITH ANY MILITARY DUTY WHILE IN THE STATUS OF MEMBERS OF THE NATIONAL GUARD, INCLUDING DUTY WHEN CALLED OUT BY THE GOVERNORS OF STATES IN CASES OF STRIKES OR RIOTS, BUT NOT, OF COURSE, INCLUDING SERVICES AFTER TRANSFER TO OR INDUCTION INTO THE REGULAR ARMY IF IN CONTRAVENTION OF THE DUAL COMPENSATION ACT. THIS WOULD ENABLE THE EMPLOYEES TO RECEIVE THEIR SALARIES OR A PORTION THEREOF WHILE ON THIS MILITARY DUTY AND AT THE SAME TIME WOULD AVOID ANY FURTHER LOSS OF PRODUCTIVE TIME BY THE EMPLOYEE, A MATTER OF CONSIDERABLE CONCERN TO THE NAVY AT THIS TIME.

IN VIEW OF THE CIRCUMSTANCES AND OF THE SAVING CLAUSE IN THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, RECONSIDERATION IS REQUESTED OF YOUR DECISION TO THE EFFECT THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE PAY WHILE ON TRAINING DUTY WITH THE NATIONAL GUARD IF THE COMBINED SALARIES EXCEED A RATE OF $2,000 PER ANNUM.

AS SPECIFIC CASES ARE NOW BEING HELD FOR ACTION, AND THE DEPARTMENT DESIRES TO ISSUE REVISED MILITARY LEAVE INSTRUCTIONS AS SOON AS POSSIBLE, YOUR EARLY REPLY WILL BE APPRECIATED.

SECTION 6 OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR TO OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA: * * *

THE RULE STATED IN DECISION OF SEPTEMBER 18, 1940, B-12310, 20 COMP. GEN. 163, MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER, WAS INTENDED TO RELATE TO PERIODS OF ACTIVE OR TRAINING DUTY WITH THE NATIONAL GUARD OF THE UNITED STATES.

THE DUAL COMPENSATION ACT OF 1916 DOES NOT APPLY TO A CASE IN WHICH A CIVILIAN EMPLOYEE OF THE UNITED STATES IS CALLED AS A MEMBER OF THE NATIONAL GUARD OF A STATE TO ACTIVE DUTY BY THE GOVERNOR OF A STATE, DURING WHICH PERIOD HIS PAY AS A MEMBER OF THE NATIONAL GUARD IS NOT PAID BY THE UNITED STATES FROM FEDERALLY APPROPRIATED FUNDS, BUT BY THE STATE FUNDS. ALSO, PURSUANT TO THE EXPRESS EXCEPTION, THE DUAL COMPENSATION ACT OF 1916 DOES NOT APPLY TO PROHIBIT PAYMENT OF SALARY TO CIVILIAN EMPLOYEES OF THE UNITED STATES FOR ACCRUED UNUSED ANNUAL LEAVE "ON ALL DAYS DURING WHICH THEY SHALL BE ENGAGED IN FIELD OR COAST DEFENSE TRAINING ORDERED OR AUTHORIZED UNDER THE PROVISIONS OF THIS ACT" (QUOTING FROM SEC. 80 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 STAT. 203), AS MEMBERS OF THE STATE ORGANIZATION OF THE NATIONAL GUARD AND PRIOR TO INDUCTION INTO THE ARMY OF THE UNITED STATES.

YOU ARE ADVISED, THEREFORE, THAT WHILE MILITARY LEAVE OF ABSENCE MAY NOT BE GRANTED TO TEMPORARY EMPLOYEES. THERE IS NO LEGAL OBJECTION TO GRANTING THEM THE ANNUAL LEAVE TO THEIR CREDIT DURING PERIODS OF ABSENCE ON ACTIVE OR TRAINING DUTY AS MEMBERS OF A STATE ORGANIZATION OF THE NATIONAL GUARD--- NOT IN FEDERAL SERVICE. (SEE 16 COMP. GEN. 953.)

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