B-63358, FEBRUARY 27, 1947, 26 COMP. GEN. 632

B-63358, FEBRUARY 27, 1947, 26 COMP. GEN. 632

COMPENSATION - DOUBLE - MILITARY, NAVAL, ETC., PERSONNEL EMPLOYED IN CIVILIAN CAPACITY DURING TERMINAL LEAVE - EFFECT OF CANCELLATION OF UNEXPIRED PORTION OF LEAVE THE FACT THAT THE UNEXPIRED PORTION OF THE LEAVE GRANTED A RETIRED NAVY OFFICER PENDING RELEASE FROM ACTIVE DUTY WAS CANCELED AND THE OFFICER RETAINED ON ACTIVE DUTY DOES NOT AFFECT THE CHARACTER OF THE LEAVE AS "TERMINAL LEAVE" WITHIN THE MEANING OF THE ACT OF NOVEMBER 21, 1945, AUTHORIZING CIVILIAN EMPLOYMENT OF PERSONNEL OF THE ARMED FORCES ON MILITARY TERMINAL LEAVE, SO AS TO PRECLUDE THE PAYMENT OF COMPENSATION, CONCURRENTLY WITH THE RECEIPT OF ACTIVE-DUTY PAY AND ALLOWANCES, FOR CIVILIAN SERVICES RENDERED BY THE OFFICER PRIOR TO THE EFFECTIVE DATE OF THE CANCELLATION OF THE LEAVE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, FEBRUARY 27, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1947, JAG:II:WJG:MH, P16- 3 (18) (CR, AS FOLLOWS:

THERE IS FORWARDED HEREWITH THE APPOINTMENT OF CAPTAIN CHARLES G. HALPINE, U.S. NAVY, RETIRED, TO A CIVILIAN POSITION IN THE NAVY DEPARTMENT AS AERONAUTICS ENGINEER, P-7, WITH PAY AT THE RATE OF $8,179.50 PER ANNUM, DATED AUGUST 1, 1946, WITH COPIES OF THE ACCOMPANYING EIGHT ENDORSEMENTS THEREON AND OF THE RELATED ENCLOSURES.

IT WILL BE OBSERVED FROM THE ENCLOSURE THAT THE QUESTION PRESENTED IN THIS CASE INVOLVES THE LEGALITY OF CAPTAIN HALPINE'S APPOINTMENT TO A CIVILIAN POSITION IN THE NAVY DEPARTMENT DURING THE PERIOD HE WAS ON TERMINAL LEAVE AS A RETIRED OFFICER AND PRIOR TO THE CANCELLATION OF SUCH TERMINAL LEAVE AND HIS CONTINUATION ON ACTIVE DUTY.

THE ACT APPROVED NOVEMBER 21, 1945 (59 STAT. 584), FURTHER AMENDED THE ACT OF AUGUST 1, 1941, AS AMENDED (56 STAT. 200), BY ADDING A NEW SECTION 2, SUBPARAGRAPH (A) OF WHICH PROVIDES:

"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, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), 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.'

IN CONNECTION WITH THE ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER CAPTAIN HALPINE IS ENTITLED TO THE PAY OF THE CIVIL SERVICE POSITION TO WHICH APPOINTED IN THE NAVY DEPARTMENT, COVERING THE PERIOD AUGUST 1, 1946, TO SEPTEMBER 26, 1946, INCLUSIVE, CONCURRENTLY WITH THE ACTIVE DUTY PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED WHILE ON TERMINAL MILITARY LEAVE PENDING RETURN TO AN INACTIVE DUTY STATUS AS A COMMISSIONED OFFICER ON THE RETIRED LIST OF THE NAVY, IN VIEW OF THE FACT THAT SUCH TERMINAL LEAVE WAS CANCELLED AND THIS OFFICER WAS RETAINED ON ACTIVE DUTY IN THE NAVY.

IN CONNECTION WITH THE FOREGOING, ATTENTION IS INVITED TO THE FACT THAT THE STATEMENTS IN PARAGRAPH 3 OF THE ENCLOSED EIGHTH ENDORSEMENT, TO THE EFFECT THAT CAPTAIN HALPINE WAS RELIEVED FROM ACTIVE DUTY IN THE NAVY "PENDING RETIREMENT FOR LENGTH OF SERVICE" AND THAT "HE WAS RETURNED TO AN ACTIVE DUTY STATUS AS A COMMISSIONED OFFICER IN LIEU OF RETIREMENT" UPON CANCELLATION OF THE REMAINDER OF HIS TERMINAL LEAVE, ARE IN ERROR. THE RECORDS OF THE NAVY DEPARTMENT SHOW THAT CAPTAIN HALPINE WAS TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON JUNE 30, 1937, BECAUSE OF SERVICE INELIGIBILITY FOR SELECTION FOR PROMOTION, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT APPROVED MARCH 3, 1931 (46 STAT. 1482). HE WAS RECALLED TO ACTIVE DUTY DURING THE PRESENT WAR AND TO DATE HAS NOT BEEN RETURNED TO AN INACTIVE DUTY STATUS ON THE RETIRED LIST.

THE EIGHTH INDORSEMENT DATED DECEMBER 5, 1946, FILE OIR-522:KLC, FROM THE CHIEF, OFFICE OF INDUSTRIAL RELATIONS, TO THE JUDGE ADVOCATE GENERAL, REFERRED TO IN YOUR LETTER, IS AS FOLLOWS: SUBJ. LEGALITY OF APPOINTMENT OF CAPTAIN CHARLES G. HALPINE,

USN ( RET), TO A CIVILIAN POSITION DURING PERIOD HE WAS ON

TERMINAL LEAVE PRIOR TO RETURN TO ACTIVE DUTY--- REQUEST FOR

COMPTROLLER GENERAL DECISION. REFS: (A) PUBLIC LAW 226--- 79TH CONGRESS, APPROVED 21 NOV 1945.

(B) NCPI 50.5-2, AMENDMENT 1.

1. FORWARDED.

2. UNDER THE INSTRUCTIONS CONTAINED IN REFERENCE (B), WHICH WERE BASED ON THE PROVISIONS OF SECTION 2 OF PUBLIC LAW 226--- 79TH CONGRESS, ANY INDIVIDUAL MAY ACCEPT CIVILIAN EMPLOYMENT IN THE GOVERNMENT AND RECEIVE COMPENSATION FOR SUCH SERVICE DURING THE PERIOD COVERED BY TERMINAL LEAVE PAYMENT PENDING SEPARATION OR RELEASE, UNDER HONORABLE CONDITIONS, FROM ACTIVE DUTY IN THE ARMED FORCES OF THE UNITED STATES.

3. THE SUBJECT COMMISSIONED OFFICER WAS RELIEVED FROM ACTIVE DUTY IN THE U.S. NAVY PENDING RETIREMENT FOR LENGTH OF SERVICE AND TERMINAL LEAVE COMMENCED 30 JUNE 1946. HE WAS CONTINUED IN A LEAVE STATUS UNTIL 27 SEPTEMBER 1946, WHEN THE REMAINDER OF HIS TERMINAL MILITARY LEAVE WAS CANCELLED AND HE WAS RETURNED TO AN ACTIVE DUTY STATUS AS A COMMISSIONED OFFICER IN LIEU OF RETIREMENT. EFFECTIVE 1 AUGUST 1946 MR. HALPINE WAS TENDERED APPOINTMENT UNDER SECTION 2, REGULATION VIII, OF THE TEMPORARY CIVIL SERVICE REGULATIONS, AS AN AERONAUTICS ENGINEER, P-7, AT $8,179.50 PER ANNUM IN THE OFFICE OF THE CHIEF OF NAVAL OPERATIONS ( ADMINISTRATION), NAVAL INTELLIGENCE, ASSISTANT CHIEF FOREIGN BRANCH. MR. HALPINE WORKED IN THE CIVIL SERVICE POSITION FROM 1 AUGUST 1946 UNTIL CLOSE OF BUSINESS 26 SEPTEMBER 1946.

4. IN VIEW OF THE LANGUAGE OF SECTION 2A OF REFERENCE (A), IT IS REQUESTED THAT A DECISION BE OBTAINED FROM THE COMPTROLLER GENERAL AS TO WHETHER IT WAS THE INTENT OF PUBLIC LAW 226 TO PERMIT THE EMPLOYMENT OF A COMMISSIONED OFFICER IN A CIVILIAN POSITION OF THE GOVERNMENT WITHOUT REGARD TO THE DUAL EMPLOYMENT AND DUAL COMPENSATION STATUTES DURING THE PERIOD HE IS ON TERMINAL MILITARY LEAVE PENDING RETIREMENT FOR LENGTH OF SERVICE. IF IT IS THE INTENT OF PUBLIC LAW 226 TO PERMIT THE EMPLOYMENT OF A COMMISSIONED OFFICER IN A CIVILIAN POSITION DURING THE PERIOD OF TERMINAL MILITARY LEAVE PENDING RETIREMENT FOR LENGTH OF SERVICE, WITHOUT REGARD TO THE DUAL EMPLOYMENT AND DUAL COMPENSATION STATUTES, IT IS REQUESTED THAT A FURTHER RULING BE OBTAINED AS TO WHETHER THE EMPLOYMENT OF MR. HALPINE COULD BE CONSIDERED LEGAL DURING THE PERIOD HE WAS ON TERMINAL MILITARY LEAVE PENDING RETIREMENT AND FROM WHICH HE WAS RECALLED TO AN ACTIVE DUTY STATUS AS A COMMISSIONED OFFICER.

5. SALARY CHECKS COVERING COMPENSATION FOR WORK PERFORMED BY MR. HALPINE IN HIS CIVILIAN POSITION FROM THE PERIOD 1 AUGUST 1946 UNTIL C.O.D. 26 SEPTEMBER 1946 ARE BEING WITHHELD PENDING RECEIPT OF RULING ON THE SUBJECT CASE AND INSTRUCTIONS RELATIVE TO DISPOSITION.

6. THE RETURN OF ALL PAPERS IS REQUESTED.

IN 25 COMP. GEN. 677, WHICH CONSIDERED A SOMEWHAT ANALOGOUS CASE INVOLVING EMPLOYMENT WITH THE STATE DEPARTMENT DURING THE PERIOD OF TERMINAL LEAVE FOLLOWING THE PERIOD OF ASSIGNMENT TO ACTIVE DUTY OF AN OFFICER ON THE RETIRED LIST OF THE REGULAR ARMY, THE ACT OF NOVEMBER 21, 1945, 59 STAT. 584, WAS QUOTED AND IT WAS STATED:

THE QUOTED STATUTORY PROVISION EXPRESSLY PROVIDES, INTER ALIA, THAT "ANY PERSON" WHO SUBSEQUENT TO MAY 1, 1940, SHALL HAVE PERFORMED ACTIVE SERVICE IN THE ARMED FORCES, MAY, WHILE ON TERMINAL LEAVE PENDING RELEASE FROM ACTIVE DUTY IN SUCH SERVICE UNDER HONORABLE CONDITIONS, ENTER OR REENTER EMPLOYMENT IN THE FEDERAL GOVERNMENT AND, IN ADDITION TO COMPENSATION FOR SUCH PLOYMENT,"SHALL BE ENTITLED TO RECEIVE PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE UNEXPIRED PORTION OF SUCH TERMINAL LEAVE.' THE LANGUAGE CONTAINED IN THE SAID STATUTE IS CLEAR AND UNAMBIGUOUS AND PLAINLY WOULD SEEM TO AUTHORIZE THE PAYMENT TO BRIGADIER GENERAL MILLER OF HIS ACTIVE DUTY PAY AND ALLOWANCES AS AN OFFICER OF THE ARMY FOR THE UNEXPIRED PORTION OF HIS TERMINAL LEAVE IRRESPECTIVE OF HIS ACCEPTANCE OF CIVILIAN EMPLOYMENT IN THE STATE DEPARTMENT WHILE ON SUCH LEAVE. HOWEVER, IT APPEARS FROM THE SAID INDORSEMENT OF THE CHIEF OF FINANCE THAT SOME DOUBT IN THE MATTER HAS ARISEN BY VIRTUE OF THE PROVISIONS OF SECTION 1222, REVISED STATUTES,WHICH READS AS FOLLOWS:

"SEC. 1222. NO OFFICER OF THE ARMY ON THE ACTIVE LIST SHALL HOLD ANY CIVIL OFFICE, WHETHER BY ELECTION OR APPOINTMENT, AND EVERY SUCH OFFICER WHO ACCEPTS OR EXERCISES THE FUNCTIONS OF A CIVIL OFFICE SHALL THEREBY CEASE TO BE AN OFFICER OF THE ARMY, AND HIS COMMISSION SHALL BE THEREBY VACATED.'

THE QUOTED STATUTORY PROVISION IS APPLICABLE ONLY TO OFFICERS ON THE ACTIVE LIST OF THE REGULAR ARMY. SEE 25 COMP. GEN. 203, AND OPINIONS OF THE ATTORNEY GENERAL CITED THEREIN. SINCE BRIGADIER GENERAL MILLER WAS AN OFFICER ON THE RETIRED LIST, NOT THE ACTIVE LIST, OF THE REGULAR ARMY AT THE TIME OF HIS ACCEPTANCE OF THE CIVILIAN POSITION IN THE STATE DEPARTMENT--- ALTHOUGH ON TERMINAL LEAVE INCIDENT TO A PERIOD OF ACTIVE DUTY AS A RETIRED OFFICER--- IT SEEMS EVIDENT THAT HE WAS NOT SUBJECT TO THE SAID PROVISIONS OF SECTION 1222. MOREOVER, AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID ACT OF NOVEMBER 21, 1945, DISCLOSES THAT THE PROVISIONS OF SECTION 1222, ALONG WITH THE VARIOUS STATUTES PROHIBITING DUAL EMPLOYMENT AND THE RECEIPT OF DOUBLE COMPENSATION, WERE PARTICULARLY BROUGHT TO THE ATTENTION OF THE CONGRESSIONAL COMMITTEES CONSIDERING THE PROPOSED LEGISLATION. AND THAT IT WAS THE INTENT OF THE CONGRESS TO AUTHORIZE THE BENEFITS PROVIDED BY THE SAID 1945 STATUTE NOTWITHSTANDING THE PROVISIONS OF SUCH LAWS, INCLUDING SECTION 1222, REVISED STATUTES, CLEARLY APPEARS FROM HOUSE REPORT NO. 1163, ACCOMPANYING S. 1036 (WHICH, AS AMENDED BY THE HOUSE OF REPRESENTATIVES, BECAME THE ACT OF NOVEMBER 21, 1945), WHEREIN SPECIFIC MENTION IS MADE OF SECTION 1222, REVISED STATUTES, AS WELL AS THE DUAL EMPLOYMENT AND DUAL COMPENSATION STATUTES, AS CONSTITUTING EXISTING LEGISLATION THE PROVISIONS OF WHICH WERE INTENDED TO BE AVOIDED BY ENACTMENT OF THE BILL. HENCE, IT IS CONCLUDED THAT IN ENACTING THE SAID ACT OF NOVEMBER 21, 1945, THE CONGRESS INTENDED THAT FOR THE PERIOD OF TERMINAL LEAVE FROM THE ARMED FORCES SUCH STATUTE WOULD SUPERSEDE THE PROVISIONS OF SECTION 1222, REVISED STATUTES, AS WELL AS THE DUAL COMPENSATION STATUTES AND ANY OTHER LAW TO THE CONTRARY, AND THAT THE BENEFITS OF THE STATUTE WERE TO EXTEND TO MEMBERS OF THE REGULAR ARMY AS WELL AS TO MEMBERS OF OTHER COMPONENTS OF THE ARMED FORCES. ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, IF OTHERWISE CORRECT, IS AUTHORIZED.

WHILE THE TERMINAL LEAVE GRANTED IN THIS CASE BY THE ORDER OF JUNE 12, 1946, IMPROPERLY DESIGNATED THE PURPOSE THEREOF AS "PENDING RETIREMENT FOR LENGTH OF SERVICE"--- CAPTAIN HALPINE ALREADY HAVING BEEN TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON JUNE 30, 1937--- THE TRUE PURPOSE OF SAID ORDER APPEARS TO HAVE BEEN TO RELIEVE CAPTAIN HALPINE FROM "ALL ACTIVE DUTY" AND AS SUCH IT CONSTITUTED "TERMINAL LEAVE PENDING * * * RELEASE FROM ACTIVE DUTY" AS THOSE WORDS ARE USED IN THE 1945 STATUTE; AND THE FACT THAT SAID ORDER LATER WAS CANCELED WOULD NOT CHANGE THE CHARACTER OF THE TERMINAL LEAVE INITIALLY GRANTED BY SAID ORDER WHICH TERMINAL LEAVE CONTINUED UP TO THE DATE OF THE CANCELLATION THEREOF ON SEPTEMBER 27, 1946. CONSEQUENTLY, AND IN LINE WITH THE DECISION, SUPRA, PAYMENT FOR SERVICES PERFORMED BY CAPTAIN HALPINE AS A CIVILIAN EMPLOYEE DURING A PERIOD OF TERMINAL LEAVE WOULD BE PROPER NOTWITHSTANDING THAT HE HAD BEEN TRANSFERRED TO THE RETIRED LIST OF THE REGULAR NAVY ON JUNE 30, 1937, IN ACCORDANCE WITH THE ACT APPROVED MARCH 3, 1931, 46 STAT. 1482, BECAUSE OF SERVICE INELIGIBILITY FOR SELECTION FOR PROMOTION AND RECALLED TO ACTIVE DUTY DURING THE PRESENT WAR. SINCE PAYMENT FOR SERVICES PERFORMED IN A CIVILIAN POSITION WITH THE GOVERNMENT DURING A PERIOD OF TERMINAL LEAVE IS PROPER, THE FACT THAT THE UNEXPIRED PERIOD OF TERMINAL LEAVE WAS CANCELED AND THE OFFICER RETAINED ON ACTIVE DUTY IN THE NAVY DOES NOT AFFECT THE LEGALITY OF THE PAYMENT FOR SERVICES PERFORMED IN THE CIVILIAN POSITION PRIOR TO THE EFFECTIVE DATE OF CANCELLATION OF THE TERMINAL LEAVE.

THEREFORE, UPON THE BASIS OF THE FACTS PRESENTED, IT IS CONCLUDED THAT CAPTAIN HALPINE IS ENTITLED TO THE PAY OF THE CIVILIAN POSITION TO WHICH APPOINTED IN THE NAVY DEPARTMENT COVERING THE PERIOD AUGUST 1, 1946, TO SEPTEMBER 26, 1946, INCLUSIVE, CONCURRENTLY WITH THE ACTIVE DUTY PAY AND ALLOWANCES AS A COMMISSIONED OFFICER TO WHICH HE WAS ENTITLED WHILE ON TERMINAL MILITARY LEAVE DURING SUCH PERIOD EVEN THOUGH THE UNEXPIRED PORTION OF SUCH LEAVE WAS CANCELED AND THE OFFICER RETAINED ON ACTIVE DUTY EFFECTIVE SEPTEMBER 27, 1946.