B-57837, JUNE 13, 1945, 25 COMP. GEN. 866

B-57837, JUNE 13, 1945, 25 COMP. GEN. 866

COMPENSATION - DOUBLE - EMPLOYMENT OR REEMPLOYMENT DURING PERIOD OF MILITARY TERMINAL TRAVEL THE TERM "TERMINAL LEAVE" AS USED IN THE ACT OF NOVEMBER 21, 1945, PERMITTING ANY PERSON TO ENTER OR REENTER UPON GOVERNMENT CIVILIAN EMPLOYMENT WHILE ON MILITARY TERMINAL LEAVE AND CONCURRENTLY TO RECEIVE CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES DOES NOT INCLUDE TRAVEL TIME DENOMINATED AS TERMINAL TRAVEL--- A PERIOD IMMEDIATELY PRIOR TO BUT NOT CONSTITUTING ANY PART OF A PERIOD OF TERMINAL LEAVE--- SO AS TO PERMIT ANY PERSON TO ENTER OR REENTER UPON SUCH CIVILIAN EMPLOYMENT DURING A PERIOD OF MILITARY TERMINAL TRAVEL WITHOUT REGARD TO THE DUAL COMPENSATION AND EMPLOYMENT STATUTES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JUNE 13, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 10, 1946, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 226--- 79TH CONGRESS WHICH AMENDED THE ACT ENTITLED "AN ACT MAKING PROVISIONS FOR PAYMENT OF EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA, FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE WHEN ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES" (56 STAT. 200). THIS AMENDMENT PASSED BY THE 79TH CONGRESS PERMITTED THE EMPLOYMENT OR REEMPLOYMENT IN CIVILIAN POSITIONS OF OFFICERS OF THE ARMED FORCES DURING TERMINAL LEAVE PRECEDING DISCHARGE OR REVERSION TO INACTIVE STATUS WITHOUT REGARD TO DUAL COMPENSATION AND DUAL EMPLOYMENT STATUTES.

A TYPICAL SPECIAL ORDER BY WHICH OFFICERS OF THE ARMY ARE OFFICIALLY RELIEVED FROM DUTY IS PRESENTED BELOW:

"BY DIRECTION OF THE PRESIDENT, EACH OF THE FOLLOWING NAMED OFFICERS IS RELIEVED FROM ASSIGNMENT AND DUTY INDICATED, IS ASSIGNED TO SEPARATION CENTER LISTED FOR RECORD PURPOSES ONLY (NO TRAVEL INVOLVED IN CONNECTION THEREWITH), WILL PROCEED TO HIS HOME SHOWN AND REVERT TO INACTIVE STATUS ON DATE SPECIFIED, UNDER AUTHORITY INDICATED, NOT BY REASON OF PHYSICAL DISABILITY. LEAVE GRANTED AS SHOWN. WD AGO FORM 53 98 AUTH. AUS APPOINTMENTS HELD CONTINUE IN FORCE DURING PRESENT EMERGENCY., PLUS 6 MONTHS UNLESS SOONER TERMINATED DP. AUS-AC APMTS TERMINATE ON EDCMR DATE. PCS. TDN. TPA. 601-32 P 431-02, 103, 107, 108, A 212/60425. ALL DATED 1946 UNLESS OTHERWISE INDICATED.

"1LV AND EFF DATE 40 DAYS EFF 5 APR 46 5 DAYS TVL EFF 31 MAR 46.

"1HOME AND EFF DATE REL AD JACKSON, MISS EFF 14 MAY 46 ( MA) 4334 N. FAIRFAX DRIVE, ARLINGTON 2, VA.

" SEPARATION CENTER CP SHELBY MISS.

" AUTHORITY FOR RELIEF.

" RR 1-1.

" DRAFT OF SPECIAL ORDERS RELIEF FROM ACTIVE DUTY OFFICER PERSONNEL.

" WD AGO FORM 1 JAN 1946 10495-2A.

" BY ORDER OF THE SECRETARY OF WAR:

" DWIGHT D. EISENHOWER,

" CHIEF OF STAFF.

" OFFICIAL:

" EDWARD F. WITSELL,

" MAJOR GENERAL,

THE ADJUTANT GENERAL.'

AS POINTED OUT ABOVE EMPLOYMENT OR REEMPLOYMENT IN A CIVILIAN POSITION IS NOW PERMISSIBLE DURING THE PERIOD OF TERMINAL LEAVE. IT WILL BE NOTED FROM THE ABOVE SPECIMEN ORDER THAT THE TERMINAL TRAVEL PERIOD DURING WHICH THE OFFICER IS AUTHORIZED TO PROCEED IN AN OFFICIAL STATUS FROM HIS LAST POST OF DUTY TO HIS HOME OR SEPARATION CENTER IS PRIOR TO THE DATE HE ENTERS ON TERMINAL LEAVE. YOUR DECISION IS REQUESTED AS TO WHETHER THE EMPLOYMENT OR REEMPLOYMENT OF AN OFFICER DURING SUCH TERMINAL TRAVEL PERIOD WOULD BE IN CONTRAVENTION OF THE DUAL COMPENSATION AND DUAL EMPLOYMENT STATUTES WHICH PROHIBIT THE RECEIPT OF AN INDIVIDUAL OF COMPENSATION FROM APPROPRIATED FUNDS OF THE FEDERAL GOVERNMENT AS A RESULT OF SERVICE RENDERED IN TWO POSITIONS FOR WHICH COMPENSATION IS PAID FROM APPROPRIATED FUNDS.

SECTION 2 (A) OF THE ACT OF AUGUST 1, 1941, ADDED THERETO BY THE ACT OF NOVEMBER 21, 1945, 59 STAT. 584, CITED IN YOUR LETTER, PROVIDES, IN MATERIAL PART, AS FOLLOWS:

SEC. 2. (A) ANY PERSON, WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE PERFORMED ACTIVE SERVICE IN THE ARMED FORCES, MAY, WHILE ON TERMINAL LEAVE PENDING SEPARATION FROM OR RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDER HONORABLE CONDITIONS, ENTER OR REENTER EMPLOYMENT OF THE GOVERNMENT OF THE UNITED STATES * * * AND, IN ADDITION TO COMPENSATION FOR SUCH EMPLOYMENT, SHALL BE ENTITLED TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF SUCH TERMINAL LEAVE AT THE SAME RATES AND TO THE SAME EXTENT AS IF HE HAD NOT ENTERED OR REENTERED SUCH EMPLOYMENT. (ITALICS SUPPLIED.) THE BENEFITS PROVIDED UNDER SUBSECTIONS (B) AND (C) OF SAID SECTION 2, 59 STAT. 584, 585, LIKEWISE REFER TO THE STATUS,"WHILE ON TERMINAL LEAVE.'

WHILE TRAVEL TIME IN A SITUATION SUCH AS THAT HERE PRESENTED ACTUALLY IS IN CONNECTION WITH THE GRANTING OF TERMINAL LEAVE, NEVERTHELESS THE TWO TERMS HAVE WELL-ACCEPTED MEANINGS AND, ALSO, HAVE DIFFERENT CONNOTATIONS. THEY ARE IN NO SENSE SYNONYMOUS. THE BENEFITS PROVIDED FOR BY THE REFERRED-TO STATUTE EXPRESSLY RELATE TO PERSONS "WHILE ON TERMINAL LEAVE.' THE PERIOD OF TERMINAL LEAVE IS EXPRESSLY DELINEATED IN THE OFFICIAL ORDERS. TO EXTEND THE BENEFITS PROVIDED IN THE ACT OF NOVEMBER 21, 1945, TO PERSONS WHILE ON TERMINAL TRAVEL--- A PERIOD WHICH CONSTITUTES NO PART OF THE TERMINAL LEAVE DELINEATED IN THE OFFICIAL ORDERS--- WOULD BE READING WORDS INTO THE STATUTE THAT ARE NOT THERE. BECAUSE OF THE GENERALLY ACCEPTED MEANING OF THE TERM,"TERMINAL LEAVE," THE STATUTE GROUNDING ITS BENEFITS UPON THAT STATUS MAY NOT BE ENLARGED BY CONSTRUCTION TO INCLUDE TRAVEL TIME DENOMINATED AS TERMINAL TRAVEL.

IN DECISION OF NOVEMBER 24, 1944, 24 COMP. GEN. 410, IT WAS STATED, AT PAGE 414, AS FOLLOWS:

WERE IT NOT THAT STATUTE (REFERRING TO THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200) AND THE SELECTIVE TRAINING AND SERVICE ACT, ENTRANCE INTO THE ACTIVE MILITARY OR NAVAL SERVICE AUTOMATICALLY WOULD HAVE DEFEATED THE RIGHT OF AN EMPLOYEE TO BE PAID FOR TERMINAL ANNUAL LEAVE IN A CIVILIAN POSITION, REGARDLESS OF SECTION 2.4 OF THE CURRENT LEAVE REGULATIONS, NOT ONLY BECAUSE OF THE DUAL COMPENSATION STATUTES, BUT ALSO PURSUANT TO THE GENERAL RULE OF LAW THAT CIVILIAN STATUS AND MILITARY STATUS DURING THE SAME PERIOD OF TIME IS INCOMPATIBLE. 3 COMP. GEN. 40; 18 ID. 213; 20 ID. 257; 22 ID. 127. * *

IN THE LIGHT OF THE FOREGOING THE QUESTION PRESENTED IS REQUIRED TO BE ANSWERED IN THE AFFIRMATIVE.