B-31570, JANUARY 15, 1943, 22 COMP. GEN. 654

B-31570, JANUARY 15, 1943, 22 COMP. GEN. 654

COMPENSATION - DOUBLE - REFUND OF ERRONEOUS PAYMENTS FOR ANNUAL LEAVE IN ONE POSITION - RESTORATION OF LEAVE CREDIT AN EMPLOYEE WHO HAS RECEIVED PAYMENT OF TWO SALARIES IN TWO POSITIONS IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTE OF 1916 SHOULD BE AFFORDED AN OPPORTUNITY TO ELECT TO REFUND THE SALARY OF EITHER POSITION, ESPECIALLY WHERE ANNUAL LEAVE IN ONE OF THE POSITIONS IS INVOLVED, AND ONLY IN THE EVENT THE EMPLOYEE FAILS TO MAKE AN ELECTION WILL IT BE PRESUMED THAT HE WOULD ELECT TO RETAIN THE SALARY OF THE POSITION WHICH WOULD GIVE HIM THE GREATER SUM. AN EMPLOYEE WHO, DURING A PERIOD OF TERMINAL LEAVE IN ONE AGENCY, ACCEPTED A POSITION WITH ANOTHER AGENCY AND RECEIVED CONCURRENT SALARY PAYMENTS FOR BOTH POSITIONS IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTE OF 1916 MAY HAVE THE ANNUAL LEAVE EARNED IN THE PRIOR POSITION RESTORED AND TRANSFERRED TO THE POSITION IN THE LATTER AGENCY--- THERE HAVING BEEN NO BREAK IN SERVICE--- IF THE EMPLOYEE HAS ELECTED TO REFUND, AND HAS REFUNDED, THE SALARY RECEIVED FOR THE ANNUAL LEAVE TAKEN IN THE PRIOR POSITION, BUT SUCH LEAVE MAY NOT BE RESTORED AND TRANSFERRED IF THE EMPLOYEE HAS--- EITHER AFFIRMATIVELY OR IMPLIEDLY--- ELECTED TO RETAIN THE SALARY RECEIVED DURING THE PERIOD OF HIS ANNUAL LEAVE IN THE PRIOR POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JANUARY 15, 1943:

I HAVE YOUR LETTER OF DECEMBER 29, 1942, AS FOLLOWS:

SECTION 6 OF THE ACT OF MAY 10, 1916 (39 STAT. 120) AS AMENDED BY THE ACT OF AUGUST 29, 1916 (39 STAT. 582) PROVIDES AS FOLLOWS:

"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY 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 (5 U.S.C. 58).'

THE DEPARTMENT IS FAMILIAR WITH THE VARIOUS DECISIONS EMANATING FROM YOUR OFFICE WHICH REQUIRE THAT A REFUND BE MADE WHEN THE ABOVE CITED STATUTE IS VIOLATED. HOWEVER, NO DECISION IS FOUND TO INDICATE WHAT FURTHER ACTION IS REQUIRED TO AMEND AN EMPLOYEE'S LEAVE RECORD AFTER REFUND IS MADE. THIS PROBLEM IS PARTICULARLY RECURRENT IN THOSE CASES INVOLVING DUAL COMPENSATION RESULTING FROM SERVICE PERFORMED IN THE DEPARTMENT WHILE THE EMPLOYEE IS IN A PAY STATUS ON TERMINAL ANNUAL LEAVE FROM ANOTHER AGENCY. THE FOLLOWING SET OF FACTS ARE THEREFORE SUBMITTED FOR YOUR CONSIDERATION AND DECISION AS TO THE PRESENT AND SIMILAR CASES ARISING IN THE FUTURE.

ON DECEMBER 15, 1941, MR. ARNOLD P. DOHM WAS APPOINTED IN THE ORDNANCE DEPARTMENT AT LARGE, BIRMINGHAM ORDNANCE DISTRICT, AS A MINOR ENGINEERING AIDE, SP-1, $1020 PER ANNUM. MR. DOHM WAS APPOINTED BY TRANSFER FROM THE NAVAL AIR STATION, MIAMI, FLORIDA WHERE HE HAD SERVED AS CLASSIFIED LABORER AT $4.32 PER DIEM SINCE MARCH 25, 1941. THE EMPLOYEE HAD BEEN PLACED ON ANNUAL LEAVE FROM THE POSITION AT THE NAVAL AIR STATION AND REMAINED IN THAT STATUS FROM DECEMBER 15, TO 24, 1941. DUAL SERVICE WAS THEREFORE PRESENT OVER A PERIOD OF TEN DAYS, A CONDITION WHICH WAS NOT DISCOVERED UNTIL A RETIREMENT RECORD CARD WAS TRANSMITTED TO THE BIRMINGHAM ORDNANCE DISTRICT FROM THE NAVY DEPARTMENT.

UPON DISCOVERY OF THE DUAL PAYMENT, REFUND IN THE AMOUNT OF $27.33 WAS IMMEDIATELY SECURED FROM THE EMPLOYEE. THIS REFUND REPRESENTED THE SALARY RECEIVED FROM THE WAR DEPARTMENT POSITION DURING THE PERIOD OF DUAL SERVICE INASMUCH AS IT WAS THE LESSER SALARY.

ON AUGUST 31, 1942, MR. DOHM WAS FURLOUGHED FOR ENTRY ON MILITARY DUTY AND HE NOW REQUESTS THAT HE BE CREDITED WITH THE TEN DAYS' ANNUAL LEAVE EARNED IN AND PAID BY THE NAVY DEPARTMENT. NO ACTION WAS TAKEN AT THE TIME REFUND WAS SECURED TO ADJUST THE LEAVE RECORDS OF THE STATION INVOLVED AND THE QUESTION IS RAISED AS TO WHETHER MR. DOHM MAY NOW BE CREDITED WITH ANNUAL LEAVE FOR THE PERIOD DECEMBER 15 TO 24, 1941, REPRESENTING THE DUAL SERVICE PERIOD FOR WHICH REFUND WAS SECURED, ALTHOUGH AT THE LOWER COMPENSATION RATE OF THE WAR DEPARTMENT POSITION. IF THE ABOVE SET OF FACTS REQUIRE A NEGATIVE DECISION, FURTHER INFORMATION IS REQUIRED AS TO WHETHER YOUR DECISION WOULD BE DIFFERENT IF THE EMPLOYEE HAD REFUNDED THE AMOUNT PAID BY THE NAVY DEPARTMENT TO COVER ANNUAL LEAVE EARNED IN THAT DEPARTMENT.

YOUR EARLY CONSIDERATION AND DECISION ON THE ABOVE MATTER WILL BE APPRECIATED.'

THE DECISIONS HOLD IN CASES INVOLVING PAYMENT OF TWO SALARIES IN TWO POSITIONS IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF 1916, 39 STAT. 582, THAT THE EMPLOYEE HAS A RIGHT OF ELECTION TO REFUND THE SALARY OF EITHER POSITION OR EMPLOYMENT AND THAT ONLY IN EVENT THE EMPLOYEE FAILS TO MAKE AN ELECTION WILL IT BE PRESUMED THAT HE WOULD ELECT TO RETAIN THE SALARY OF THE POSITION WHICH WOULD GIVE HIM THE GREATER SUM. 8 COMP. GEN. 261, 17 ID. 238. IT MAY BE STATED THAT WHEN ANNUAL LEAVE IN ONE OF THE POSITIONS IS INVOLVED (AS IN THE INSTANT CASE) WHICH COULD HAVE BEEN TRANSFERRED TO THE NEW POSITION--- THERE HAVING BEEN NO BREAK IN SERVICE-- - THE ELECTION OF THE EMPLOYEE IS PARTICULARLY DESIRABLE BECAUSE THE TRANSFERRED LEAVE MAY BE OF MORE VALUE TO HIM THAN HIS RETAINING THE GREATER SALARY DURING THE PERIOD OF DUAL EMPLOYMENT.

IT IS NOT STATED IN YOUR LETTER WHETHER THE EMPLOYEE, IN THE ILLUSTRATION STATED, WAS AFFORDED AN OPPORTUNITY TO ELECT WHICH SALARY HE WOULD RETAIN. IF THE EMPLOYEE WAS AFFORDED AN OPPORTUNITY OF ELECTION AND HE ELECTED TO RETAIN THE GREATER SUM RECEIVED DURING THE PERIOD OF HIS ANNUAL LEAVE IN HIS PRIOR POSITION IN THE NAVY DEPARTMENT -- THE EFFECT OF WHICH WOULD, UNDER THE ABOVE CITED DECISIONS, BE THE SAME AS IF HE HAD FAILED TO MAKE AN ELECTION--- IT WOULD HAVE TO BE CONCLUDED THAT THE EMPLOYEE WAS PAID FOR THE ANNUAL LEAVE GRANTED HIM BY THE NAVY DEPARTMENT WHICH OTHERWISE COULD HAVE BEEN TRANSFERRED TO THE WAR DEPARTMENT, AND, HENCE, THAT HE COULD NOT NOW BE PAID FOR SUCH LEAVE UPON ENTRY INTO THE ACTIVE MILITARY SERVICE UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200. IF THE EMPLOYEE HAD ELECTED TO REFUND AND HAD REFUNDED THE GREATER SALARY RECEIVED FOR THE PERIOD OF ANNUAL LEAVE GRANTED AND TAKEN IN HIS POSITION IN THE NAVY DEPARTMENT, THEN SUCH LEAVE COULD BE RESTORED TO HIM AND TRANSFERRED TO HIS POSITION IN THE WAR DEPARTMENT UNDER THE PROVISIONS OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS--- THERE APPEARING NO BREAK IN SERVICE--- AND HE COULD HAVE BEEN PAID FOR SUCH LEAVE UPON ENTRY INTO THE ACTIVE MILITARY SERVICE.