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ARE WITHIN THE PURVIEW OF THE ACT OF AUGUST 1. RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE FROM COMPENSATION PAID TO AN EMPLOYEE OF THE UNITED STATES FOR A PERIOD OF ANNUAL LEAVE. THE QUESTION AS TO WHETHER SERVICE CREDIT WILL BE GIVEN FOR THE PERIOD OF LEAVE IN COMPUTING LONGEVITY FOR RETIREMENT PURPOSES IS A MATTER PRIMARILY FOR THE CONSIDERATION OF THE UNITED STATES CIVIL SERVICE COMMISSION. THERE IS NO OBJECTION TO THE ADMINISTRATIVELY PROPOSED PAY ROLL. PROCEDURE IN CONNECTION WITH PAYMENTS TO EMPLOYEES FOR ACCUMULATED OR CURRENT ACCRUED LEAVE WHILE THEY ARE RECEIVING PAY FOR ACTIVE MILITARY OR NAVAL DUTY. THAT THE RECORDS WILL NOT BE AMENDED TO SHOW A RETURN OF THE PERSONS FROM FURLOUGH FOR THE LEAVE PERIOD AND A REFURLOUGH FOR ACTIVE DUTY.

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B-20149, SEPTEMBER 13, 1941, 21 COMP. GEN. 210

OFFICERS AND EMPLOYEES - PAYMENT FOR CIVILIAN LEAVE DURING MILITARY OR NAVAL SERVICE; REEMPLOYMENT BENEFITS GOVERNMENT EMPLOYEES INDUCTED INTO THE MILITARY OR NAVAL FORCES, INCLUDING THOSE WHO VOLUNTEER FOR INDUCTION, PURSUANT TO THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS WELL AS THOSE CALLED TO ACTIVE DUTY AS MEMBERS OF THE CIVILIAN COMPONENTS OF THE MILITARY OR NAVAL FORCES PURSUANT TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, OR SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, ARE WITHIN THE PURVIEW OF THE ACT OF AUGUST 1, 1941, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL DUTY TO EMPLOYEES OF UNITED STATES, ETC., "ORDERED" TO SUCH DUTY. THE ACT OF AUGUST 1, 1941, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL DUTY TO EMPLOYEES OF THE UNITED STATES, ETC., HAS NO APPLICATION TO SICK LEAVE. RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE FROM COMPENSATION PAID TO AN EMPLOYEE OF THE UNITED STATES FOR A PERIOD OF ANNUAL LEAVE, CONCURRENT WITH ACTIVE MILITARY OR NAVAL DUTY, GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941, BUT THE QUESTION AS TO WHETHER SERVICE CREDIT WILL BE GIVEN FOR THE PERIOD OF LEAVE IN COMPUTING LONGEVITY FOR RETIREMENT PURPOSES IS A MATTER PRIMARILY FOR THE CONSIDERATION OF THE UNITED STATES CIVIL SERVICE COMMISSION. THE PAYMENT AUTHORIZED BY THE ACT OF AUGUST 1, 1941, FOR ACCUMULATED OR CURRENT ACCRUED LEAVE OF EMPLOYEES OF THE UNITED STATES CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL DUTY SHOULD BE COMPUTED UPON THE SAME BASIS AS THOUGH THE LEAVE HAD BEEN FOR THE PERIOD COVERED THEREBY WITHOUT ENTERING THE MILITARY OR NAVAL SERVICE, AND, THEREFORE, CREDIT FOR SUNDAYS AND OTHER NONWORK DAYS SHOULD BE ALLOWED. THERE IS NO OBJECTION TO THE ADMINISTRATIVELY PROPOSED PAY ROLL, ETC., PROCEDURE IN CONNECTION WITH PAYMENTS TO EMPLOYEES FOR ACCUMULATED OR CURRENT ACCRUED LEAVE WHILE THEY ARE RECEIVING PAY FOR ACTIVE MILITARY OR NAVAL DUTY, AS AUTHORIZED BY THE ACT OF AUGUST 1, 1941, WHICH PROCEDURE CONTEMPLATES, AMONG OTHER THINGS, THAT THE RECORDS WILL NOT BE AMENDED TO SHOW A RETURN OF THE PERSONS FROM FURLOUGH FOR THE LEAVE PERIOD AND A REFURLOUGH FOR ACTIVE DUTY. HOWEVER, THE PAYMENTS SHOULD BE SUPPORTED BY A ORDER TO ACTIVE DUTY, OR, IN LIEU THEREOF, A STATEMENT INDICATING THAT THE EMPLOYEE WAS ORDERED TO SUCH DUTY AND THE DATE SO ORDERED. AS SECTION 7 OF THE ACT OF AUGUST 18, 1941, EXTENDS THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 TO PERSONS ENTERING THE ACTIVE MILITARY OR NAVAL SERVICES SUBSEQUENT TO MAY 1, 1940, THE REEMPLOYMENT RIGHTS OF PERSONS CALLED TO DUTY PRIOR TO MAY 1, 1940, PURSUANT TO SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, ARE DERIVED FROM SECTION 3 (B) OF THE ACT OF AUGUST 27, 1940, RATHER THAN FROM THE SAID SECTION 8. WHILE EMPLOYEES WHO ENTER THE MILITARY OR NAVAL SERVICE BY VOLUNTARY ENLISTMENT, REGARDLESS OF THE DATE OF ENLISTMENT, ARE NOT ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, RELATING TO PAYMENT OF EMPLOYEES FOR LEAVE IN THEIR CIVILIAN POSITIONS CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL DUTY, THOSE WHO VOLUNTARILY ENLIST AFTER MAY 1, 1940, ARE ENTITLED TO THE REEMPLOYMENT BENEFITS OF SECTION 7 OF THE ACT OF AUGUST 18, 1941. WHILE AN EMPLOYEE ORDERED TO ACTIVE MILITARY OR NAVAL DUTY PRIOR TO MAY 1, 1940, IS NOT ENTITLED TO THE REEMPLOYMENT BENEFITS OF SECTION 7 OF THE ACT OF AUGUST 18, 1941, SUCH AN EMPLOYEE WOULD BE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, RELATING TO PAYMENT OF EMPLOYEES FOR LEAVE IN THEIR CIVILIAN POSITIONS CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 13, 1941:

I HAVE YOUR LETTER OF AUGUST 27, 1941, AS FOLLOWS:

(1) REFERENCE IS MADE TO THE ACT OF AUGUST 1, 1941 ( PUBLIC LAW 202, 77TH CONGRESS), WHICH MAKES PROVISION FOR PAYMENT TO CIVILIAN EMPLOYEES OF THE UNITED STATES GOVERNMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE WHEN ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES.

(2) IN THIS CONNECTION, ATTENTION IS PARTICULARLY INVITED TO THAT PORTION OF THE ACT IN QUESTION WHICH READS,"WHO HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES.' ( ITALICS SUPPLIED.) IN VIEW OF THIS LANGUAGE, YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES INDUCTED INTO THE MILITARY OR NAVAL FORCES PURSUANT TO THE TERMS OF THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940 (54 STAT. 885), OR UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 96, APPROVED AUGUST 27, 1940 (54 STAT. 858), ARE WITHIN THE PURVIEW OF THE ACT, AS WELL AS THOSE ORDERED TO ACTIVE DUTY AS MEMBERS OF THE CIVILIAN COMPONENTS OF THE MILITARY OR NAVAL FORCES, PURSUANT TO PUBLIC RESOLUTION NO. 96 OR SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED. IN THIS CONNECTION, REFERENCE IS MADE TO YOUR DECISIONS ON THE SUBJECT OF DUAL COMPENSATION UNDER SUCH CIRCUMSTANCES (20 COMP. GEN. 118, 158, 163, 167, 764; MS COMP. GEN. B- 17183, JUNE 5, 1941). IT IS ASSUMED FROM THE REPORT OF THE HOUSE COMMITTEE ON CIVIL SERVICE THAT THE ACT WAS INTENDED TO AUTHORIZE PAYMENT FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE AND NOT FOR SICK LEAVE.

(3) YOUR DECISION IS ALSO REQUESTED ON THE QUESTION WHETHER, UNDER THE SECTION QUOTED ABOVE, COMPENSATION FOR ACCUMULATED OR CURRENT ACCRUED LEAVE MAY BE PAID TO PERSONS VOLUNTEERING FOR SERVICE, AS DISTINGUISHED FROM THOSE ORDERED TO ACTIVE DUTY, INCLUDING THOSE VOLUNTEERING FOR INDUCTION, UNDER SELECTIVE TRAINING AND SERVICE ACT, AND THOSE VOLUNTARILY ENLISTING FOR SERVICE. IN CONNECTION WITH THOSE WHO VOLUNTARILY ENLIST FOR SERVICE AND WHO HAVE RESIGNED FROM THEIR POSITIONS, MAY THEY BE PAID IN VIEW OF YOUR DECISIONS IN 17 COMP. GEN. 48, AND 20 COMP. GEN. 257?

(4) IN VIEW OF THE FACT THAT PUBLIC LAW 202, 77TH CONGRESS, PERMITS THE EMPLOYEE TO RECEIVE HIS COMPENSATION FOR ACCUMULATED OR CURRENT ACCRUED LEAVE OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE DUTY, IF SUCH EMPLOYEE ELECTS TO RECEIVE COMPENSATION FOR HIS ACCUMULATED OR CURRENT ACCRUED LEAVE, YOUR DECISION IS REQUESTED AS TO WHETHER RETIREMENT DEDUCTIONS ARE TO BE TAKEN FROM THE AMOUNT OF SUCH COMPENSATION, AND WHETHER SERVICE CREDIT, FOR RETIREMENT PURPOSES, IS TO BE GRANTED FOR THE PERIOD THE INDIVIDUAL IS IN SUCH LEAVE STATUS.

(5) AS A COROLLARY TO THE ABOVE QUESTIONS, YOUR DECISION IS ALSO REQUESTED AS TO THE METHOD OF COMPUTATION OF THE ANNUAL LEAVE FOR WHICH SUCH EMPLOYEES MAY BE ENTITLED TO COMPENSATION, I.E., WHETHER SUCH LEAVE WILL BE COMPUTED ON THE SAME BASIS AS THOUGH THE EMPLOYEES REMAINED IN THE SERVICE ON A DUTY STATUS IN THEIR CIVILIAN POSITIONS, WITH CREDIT FOR SUNDAYS AND OTHER NONWORK DAYS, OR ON THE BASIS OF THE NUMBER OF DAYS' LEAVE TO THE CREDIT OF A GIVEN INDIVIDUAL COVERED BY THE ACT, MULTIPLIED BY THE RATE OF PAY PER DAY.

(6) IF THE ANSWERS TO THE QUESTIONS PRESENTED IN THE TWO PARAGRAPHS IMMEDIATELY PRECEDING ARE IN THE AFFIRMATIVE, THE DEPARTMENT PLANS TO PAY THE CLAIMANTS ON APPROPRIATE PAY-ROLL FORMS, MAKING THE PROPER NOTATION ON THE FORMS 2806 SHOWING THE ADDITIONAL SERVICE CREDIT DURING THE PERIOD OF THE LEAVE, AND FILING THE APPLICATION FOR PAYMENT OF LEAVE AND OTHER RELATED PAPERS WITH THE PERSONNEL RECORDS, WHERE THEY WILL BE AVAILABLE FOR FUTURE REVIEW. IT IS NOT CONTEMPLATED GOING THROUGH THE GREAT AMOUNT OF ADMINISTRATIVE DETAIL WHICH WOULD BE REQUIRED TO AMEND THE RECORDS AND RETURN THE PERSONS FROM FURLOUGH FOR THE LEAVE PERIOD, AND THEN REFURLOUGH THEM FOR ACTIVE DUTY. YOUR CONCURRENCE IN THIS PROCEDURE IS REQUESTED.

(7) THE DEPARTMENT IS ALSO PLANNING TO ISSUE INSTRUCTIONS CONCERNING THE APPLICATION OF THE REEMPLOYMENT BENEFITS OUTLINED IN SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96, OF AUGUST 27, 1940, AND SECTION 7 OF PUBLIC LAW 213, 77TH CONGRESS, READING IN PART AS FOLLOWS:

"EMPLOYEES WHO, AS MEMBERS OF THE RESERVES, OR THE NATIONAL GUARD, OR AS RETIRED PERSONNEL OF THE REGULAR ARMY, WERE CALLED TO ACTIVE MILITARY OR NAVAL DUTY PURSUANT TO PUBLIC RESOLUTION NO. 96 OF AUGUST 27, 1940, ON OR SUBSEQUENT TO THE DATE OF THAT ACT; THOSE CALLED TO ACTIVE DUTY PURSUANT TO SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, PRIOR TO AUGUST 27, 1940, BUT WHO WERE ON ACTIVE DUTY ON THAT DATE; THOSE INDUCTED INTO THE SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS WELL AS THOSE WHO VOLUNTEERED UNDER THAT ACT, SUBSEQUENT TO THE DATE OF THE ACT; AND THOSE EMPLOYEES WHO, SUBSEQUENT TO MAY 1, 1940, AS AUTHORIZED IN SECTION 7 OF PUBLIC LAW 213, 77TH CONGRESS, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES, EITHER BY VOLUNTARY ENLISTMENT OR OTHERWISE; ARE ENTITLED TO BE RESTORED TO THE POSITION FORMERLY OCCUPIED, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY, UNDER THE CONDITIONS SET FORTH IN SECTION 3 (B) OF PUBLIC RESOLUTION NO. 96 AND SECTION 8 OF THE ACT OF 1940.'

(8) YOUR CONCURRENCE IS REQUESTED IN THESE INSTRUCTIONS AS REGARDS THE EARLIEST EFFECTIVE DATE THE REEMPLOYMENT BENEFITS MAY BE GIVEN TO THE EMPLOYEES WHO GO INTO ACTIVE SERVICE UNDER EACH OF THE AUTHORITIES STATED.

(9) WITH REFERENCE TO SECTION 7 OF PUBLIC LAW 202 (213), 77TH CONGRESS, YOUR DECISION IS ALSO REQUESTED AS TO THE EARLIEST DATE THIS ACT MAY BE APPLIED, I.E., CAN THE DEPARTMENT FOLLOW THE ABOVE RULING, REGARDING APPLICATION OF THE REEMPLOYMENT BENEFITS, IN PAYING FOR ACCUMULATED OR ACCRUED LEAVE TO THOSE EMPLOYEES WHO ELECT TO RECEIVE SUCH PAY.

FOR CONVENIENCE IN ANSWERING THE QUESTIONS PRESENTED, THE PARAGRAPHS OF YOUR LETTER HAVE BEEN NUMBERED CONSECUTIVELY IN BRACKETS.

THE ACT OF AUGUST 1, 1941, PUBLIC, NO. 202, 55 STAT. 616, PROVIDES AS FOLLOWS:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES, OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES 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.

THERE IS NOTHING IN THE TERMS OF SAID ACT, NOR IN THE LEGISLATIVE HISTORY THEREOF, WHICH INDICATES THAT THE TERM "ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" WAS INTENDED TO BE LIMITED IN ITS APPLICATION TO EMPLOYEES ORDERED TO ACTIVE DUTY AS MEMBERS OF THE CIVILIAN COMPONENTS OF THE MILITARY OR NAVAL FORCES, PURSUANT TO PUBLIC RESOLUTION NO. 96, 54 STAT. 858, OR SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED. THE WORD ,ORDERED," AS USED IN THE ACT, APPEARS MERELY TO SIGNIFY COMPULSION OR COMMAND, AS DISTINGUISHED FROM COMPLETE VOLUNTARY SELF-CONTROLLED ACTION ON THE PART OF THE INDIVIDUALS INVOLVED. ALTHOUGH THE TERM "SELECT AND INDUCT" INSTEAD OF "ORDERED" IS USED IN THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, THE PERSONS CONCERNED ARE NOT FREE TO DETERMINE FOR THEMSELVES WHETHER OR NOT THEY WILL BE "SELECTED OR INDUCTED; " ON THE CONTRARY, IT IS SPECIFICALLY PROVIDED IN SECTION 3 (A) OF THE SELECTIVE TRAINING AND SEE ACT OF 1940, 54 STAT. 885, THAT PERSONS SUCH AS THOSE THEREIN DESCRIBED ,SHALL BE LIABLE FOR TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES.' ( ITALICS SUPPLIED.) THUS, THE SAME ELEMENT OF COMPULSION EXISTS IN THE CASE OF PERSONS SELECTED AND INDUCTED BY THE PRESIDENT PURSUANT TO AUTHORITY VESTED IN HIM BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AS IN THE CASE OF PERSONS WHO ARE CALLED INTO ACTIVE SERVICE PURSUANT TO THE TERMS OF PUBLIC RESOLUTION NO. 96 REFERRED TO IN YOUR LETTER. ACCORDINGLY, THE QUESTION PRESENTED IN THE SECOND PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE. TO THE EXTENT THAT THE DECISIONS OF THIS OFFICE CITED BY YOU IN SAID PARAGRAPH ARE IN CONFLICT WITH THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, SUPRA, THEY MUST, OF COURSE, BE REGARDED AS RENDERED INOPERATIVE THEREBY. THE STATED ASSUMPTION THAT THE ACT HAS NO APPLICATION TO SICK LEAVE IS CORRECT.

IT PROVIDED, AMONG OTHER THINGS, IN SECTION 3 (A) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940---

* * * THAT WITHIN THE LIMITS OF THE QUOTA DETERMINED UNDER SECTION 4 (B) FOR THE SUBDIVISION IN WHICH HE RESIDES, ANY PERSON, REGARDLESS OF RACE OR COLOR, BETWEEN THE AGES OF EIGHTEEN AND THIRTY-SIX, SHALL BE AFFORDED AN OPPORTUNITY TO VOLUNTEER FOR INDUCTION INTO THE LAND OR NAVAL FORCES OF THE UNITED STATES FOR THE TRAINING AND SERVICE PRESCRIBED IN SUBSECTION (B), BUT NO PERSON WHO SO VOLUNTEERS SHALL BE INDUCTED FOR SUCH TRAINING AND SERVICE SO LONG AS HE IS DEFERRED AFTER CLASSIFICATION: * * * 54 STAT. 885-6.

IT WILL BE NOTED FROM THIS PROVISION THAT THOSE "LIABLE FOR TRAINING AND SERVICE" ARE GIVEN AN ELECTION EITHER TO WAIT UNTIL THEY ARE CALLED FOR INDUCTION, OR TO VOLUNTEER FOR INDUCTION WITHOUT WAITING. HOWEVER, THEY ARE NOT PERMITTED TO DETERMINE WHETHER THEY WILL OR WILL NOT SERVE, BUT MERELY ARE GRANTED A MEASURE OF LATITUDE RESPECTING THE TIME AND MANNER OF INDUCTION. WHILE THE ELEMENT OF COMPULSION IS NOT AS DIRECT, AND PERHAPS NOT AS GREAT AS IN THE CASE OF PERSONS WHO ARE INDUCTED WHEN SELECTED AND CALLED, NEVERTHELESS, THE ACTION TAKEN IS IN OBEDIENCE TO THE COMMAND OR WILL OF THE LAW. THERE IS NO REASON TO BELIEVE THAT THE CONGRESS CONTEMPLATED THAT THOSE WHO ARE CONSCRIPTED FOR TRAINING UNDER THE SELECTIVE TRAINING THE SERVICE ACT OF 1940 SHOULD BE PLACED IN A POSITION OF GREATER ADVANTAGE SO FAR AS THE ACT OF AUGUST 1, 1941, IS CONCERNED, THAN THOSE WHO VOLUNTEERED FOR INDUCTION. IT SEEMS SUFFICIENTLY CLEAR, THEREFORE, THAT THOSE WHO VOLUNTEERED FOR INDUCTION MAY BE REGARDED, IF AND WHEN INDUCTED, AS "ORDERED" TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941. ON THE OTHER HAND, THOSE WHO VOLUNTARILY ENLIST FOR SERVICE MAY NOT BE SO REGARDED. THEY ACT OF THEIR OWN VOLITION AND ARE FREE TO DECIDE FOR THEMSELVES WHETHER THEY WILL OR WILL NOT ENTER THE SERVICE. SUCH PERSONS MAY NOT BE REGARDED AS HAVING BEEN "ORDERED" INTO THE ACTIVE SERVICE, WITHIN THE MEANING OF SAID ACT. SINCE THE TERMS OF THE ACT DO NOT APPLY IN THE CASE OF PERSONS VOLUNTARILY ENLISTING FOR SERVICE, IT FOLLOWS THAT THE FINAL QUESTION PRESENTED IN PARAGRAPH 3 OF YOUR LETTER MUST BE ANSWERED IN THE NEGATIVE.

RETIREMENT DEDUCTIONS ARE REQUIRED TO BE MADE FROM COMPENSATION PAID FOR THE PERIOD OF ANNUAL LEAVE GRANTED PURSUANT TO THE STATUTE, THE SAME AS FOR ANY OTHER PERIOD OF ANNUAL LEAVE. WHETHER SERVICE CREDIT WILL BE GIVEN FOR THE PERIOD OF LEAVE IN COMPUTING LONGEVITY FOR RETIREMENT PURPOSES IS A MATTER PRIMARILY FOR THE CONSIDERATION OF THE UNITED STATES CIVIL SERVICE COMMISSION. 46 STAT. 472. THE QUESTIONS IN PARAGRAPH NUMBERED 4 OF YOUR LETTER ARE ANSWERED ACCORDINGLY.

REFERRING TO PARAGRAPH NUMBERED 5, THE ACCRUED ANNUAL LEAVE PAYMENT AUTHORIZED BY THE ACT OF AUGUST 1, 1941, APPEARS PROPERLY FOR COMPUTING UPON THE SAME BASIS AS THOUGH THE EMPLOYEES REMAIN IN THE SERVICE ON A DUTY STATUS IN THEIR CIVILIAN POSITIONS, WITH CREDIT FOR SUNDAYS AND OTHER NONWORK DAYS ALLOWED. IN OTHER WORDS, THE COMPUTATION SHOULD BE UPON THE SAME BASIS AS THOUGH THE LEAVE HAD BEEN TAKEN FOR THE PERIOD COVERED THEREBY WITHOUT ENTERING THE MILITARY SERVICE.

THIS OFFICE IS NOT REQUIRED TO OBJECT TO THE ADMINISTRATIVE PROCEDURE PROPOSED IN PARAGRAPH NUMBERED 6 OF YOUR LETTER; HOWEVER, IT IS REQUESTED THAT THERE BE FURNISHED THIS OFFICE WITH THE ACCOUNTS, FOR AUDIT PURPOSES, A CERTIFIED COPY OF THE ORDER DIRECTING THE EMPLOYEES TO REPORT FOR ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES, OR, IN LIEU THEREOF, A STATEMENT INDICATING THAT THEY HAVE BEEN ORDERED TO REPORT FOR ACTIVE DUTY AND THE DATE THEY WERE SO ORDERED.

THIS OFFICE IS IN AGREEMENT WITH YOUR DEPARTMENT THAT THE EARLIEST EFFECTIVE DATES THAT REEMPLOYMENT BENEFITS MAY BE GRANTED TO EMPLOYEES ENTERING ACTIVE SERVICE UNDER EACH OF THE ACTS CITED IN THE PROPOSED INSTRUCTIONS OUTLINED IN PARAGRAPH NUMBERED 7 OF YOUR LETTER ARE AS SET FORTH THEREIN. THE ONLY DOUBT RESPECTING THIS MATTER WOULD APPEAR TO ARISE IN CONNECTION WITH THOSE CALLED TO ACTIVE DUTY PURSUANT TO SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED. THE PROPOSED INSTRUCTIONS ARE TO THE EFFECT THAT SUCH PERSONS ARE ENTITLED TO THE INVOLVED REEMPLOYMENT BENEFITS IF CALLED TO ACTIVE DUTY PURSUANT TO SECTION 37 (A) PRIOR TO AUGUST 27, 1940, BUT WHO WERE ON ACTIVE DUTY ON THAT DATE. THIS WOULD APPEAR TO MEAN THAT SUCH PERSONS, IF ON ACTIVE DUTY AS OF AUGUST 27, 1940, WOULD BE ENTITLED TO REEMPLOYMENT BENEFITS, EVEN IF CALLED TO ACTIVE DUTY PRIOR TO MAY 1, 1940; WHEREAS, SECTION 7 OF THE ACT OF AUGUST 18, 1941, PUBLIC, 213, 55 STAT. 627, REFERRED TO IN THE PROPOSED INSTRUCTIONS, PROVIDES THAT---

ANY PERSON WHO, SUBSEQUENT TO MAY 1, 1940, AND PRIOR TO THE TERMINATION THE AUTHORITY CONFERRED BY SECTION 2 OF THIS JOINT RESOLUTION, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO ALL THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, TO THE SAME EXTENT AS IN THE CASE OF PERSONS INDUCTED UNDER SAID ACT. * * * ( ITALICS SUPPLIED.) HOWEVER, IT APPEARS THAT, FOR THE MOST PART, PERSONS CALLED TO ACTIVE DUTY PRIOR TO MAY 1, 1940, PURSUANT TO SECTION 37 (A) OF THE NATIONAL DEFENSE ACT OF 1916 WOULD DERIVE THEIR RIGHT TO THE REEMPLOYMENT BENEFITS HERE UNDER CONSIDERATION FROM SECTION 3 (B) OF THE ACT OF AUGUST 27, 1940 ( PUBLIC RES. 96), 54 STAT. 859, RATHER THAN FROM SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. FURTHERMORE, IT IS INDICATED IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 213 THAT IT WAS NOT INTENDED BY SECTION 7 THEREOF TO "DIMINISH NOR EXTINGUISH ANY REEMPLOYMENT BENEFITS NOW PROVIDED BY LAW.' S.1REPT. 595, 77TH CONG., P. 6.

IT IS UNDERSTOOD, AS THE RESULT OF AN INFORMAL TELEPHONE INQUIRY TO YOUR DEPARTMENT, THAT THE QUESTION PRESENTED IN THE LAST PARAGRAPH OF YOUR LETTER IS INTENDED TO RELATE TO PUBLIC LAW 213, RATHER THAN TO PUBLIC LAW 202, AS STATED THEREIN. CONSIDERED ON THAT BASIS, THE REPLY TO THE FINAL QUESTION MUST BE IN THE NEGATIVE. THE SUBJECT MATTER OF THE ACT OF AUGUST 1, 1941 ( PUBLIC, 202), IS NOT THE SAME AS THAT OF SECTION 7 OF PUBLIC LAW 213, AND ANY QUESTIONS ARISING IN CONNECTION WITH ONE IS NOT NECESSARILY FOR DETERMINATION ON THE SAME BASIS AS QUESTIONS ARISING UNDER THE OTHER. FOR EXAMPLE, AS ABOVE NOTED, IT IS NOT CONSIDERED THAT EMPLOYEES WHO VOLUNTARILY ENLIST FOR SERVICE, REGARDLESS OF THE DATE OF ENLISTMENT, ARE ENTITLED TO THE BENEFITS OF PUBLIC LAW 202, WHEREAS THOSE WHO ENTER THE SERVICE BY VOLUNTARY ENLISTMENT AFTER MAY 1, 1940, ARE ENTITLED TO THE BENEFITS OF SECTION 7 OF PUBLIC LAW 213. IN THIS CONNECTION, SEE P. 6 OF S.1REPT. 595, 77TH CONG. ON THE OTHER HAND, A PERSON WHO IS ORDERED TO ACTIVE DUTY PRIOR TO MAY 1, 1940, WOULD NOT APPEAR TO BE ENTITLED TO THE BENEFITS OF SECTION 7 OF PUBLIC, 213, ALTHOUGH SUCH PERSON WOULD APPEAR TO BE ENTITLED TO THE BENEFITS OF PUBLIC LAW 202, IF OTHERWISE ENTITLED THERETO. IT IS NOT NECESSARILY TO BE UNDERSTOOD FROM THIS LAST STATEMENT HOWEVER, THAT A PERSON "ORDERED TO ACTIVE DUTY" PRIOR TO ENACTMENT OF PUBLIC LAW 202 WHO HAD COMPLETED SAID PERIOD OF ACTIVE DUTY PRIOR TO THE DATE OF SUCH ENACTMENT, WOULD BE ENTITLED TO THE BENEFITS THEREOF.

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