must hold that compliance with all of the provisions of those sections are suspended and they are rendered ineffective.

8. Should you hold that the Executive orders do not suspend compliance with the 25 per centum differential provision, decision is requested on the following questions concerning the application of the 25 per centum differential: "A. There are classified employees within the Department who have received administrative within-grade promotions and who wish to transfer to Panama. Must the 25 per centum differential be added to the entrance salary for the grade or is it permissible to add the amount of the administrative increase to the entrance rate and 25 per centum of that total then be added.

"B. If the total compensation for a position under the Classification Act of 1923, as amended, falls between two approved salary steps, is it legally permissible to advance the employee's compensation to the next salary level approved by the Classification Act of 1923, as amended."

Referring to paragraph numbered 6 of your letter, Executive Order No. 8812, dated June 30, 1941 (published in the Federal Register for July 3, 1941), provides as follows:

SUSPENDING CERTAIN STATUTORY PROVISIONS RELATING TO EMPLOYMENT IN THE CANAL ZONE

By virtue of the authority vested in me by section 3 of the Naval Appropriation Act, 1942, section 2 of the War Department Civil Appropriation Act, 1942, and section 7 of the Military Appropriation Act, 1942, relating to certain kinds of employment in the Canal Zone, and deeming such course to be in the public interest, I hereby suspend, effective July 1, 1941, compliance with the provisions of the said sections during the continuance of the unlimited national emergency proclaimed by Proclamation No. 2487 of May 27, 1941.

Whatever may have been the motivating factor in recommending to the President the issuance of the Executive orders mentioned (Nos. 8719 and 8812), the terms of the said orders are clear and unambiguous and, as such, do not admit of construction or interpretation. Both orders suspend compliance with the "provisions of the sections" of the appropriation acts therein mentioned and said "provisions", of course, include or embody the so-called permissive provisions, as well as the limiting provisions. Thus the effect of the orders is that administrative action regarding employments in the Canal Zone is authorized to be taken during the period of suspension as though such provisions had not been enacted. The question in paragraph numbered 7 of your letter is answered accordingly.

Payment of a differential to employees of the Panama Canal not to exceed 25 percent of the salaries paid for the same or similar services to personnel employed by the Government in the continental United States is expressly authorized by section 4 of the act of August 24, 1912, 37 Stat. 561, which statute, in that connection, remains unchanged. By long practice it has been recognized that this authority for a differential not to exceed 25 percent may be extended by administrative action to all employees of the Government in the Canal Zone, regardless of the department or establishment in which employed, unless their salary rates are otherwise specifically fixed by

law.

In decision of May 12, 1931, 10 Comp. Gen. 519, 520, after quoting from the act of August 24, 1912, supra, it was stated in part as follows:

The effect of the statutes extending the principles of classification to the field service is a regulating by the Congress of compensation rates of Panama Canal employees in the Canal Zone within the meaning of the act of August 24, 1912, supra, and, as provided by that statute, the compensation of such employees is no longer authorized to be fixed by the President. There is, however, nothing in any of the statutes extending the principles of classification to the field service, which would preclude the continued recognition of the longexisting differential in salary rates in favor of positions in the Canal Zone, not to exceed the maximum differential fixed by the act of 1912, supra, at 25 percent higher than the rates paid for the same or similar services to persons employed by the Government in the continental United States. See decision of August 7, 1925, A-9682, to the Postmaster General, authorizing postal employees for the Panama Canal to be paid 25 percent more than the rates fixed by the postal reclassification act of February 28, 1925, 43 Stat. 1053, for the same or similar positions in the continental United States.

*

The pay rolls for periods beginning July 1, 1931, should show for each position affected hereby: (1) The grade or salary range, such as CAF-1, PS-2, etc.; (2) the salary rate within such grade fixed for the particular employee; (3) the amount of the differential not to exceed 25 percent of the particular salary rate thus fixed; (4) the determined value of allowances furnished in kind to be considered a part of the total rate of compensation; (5) deductions for retirement based on the total salary rate thus determined, including the cash portion (classification rate plus differential), as well as the determined value of the allowances furnished in kind, all of which must be considered as the "basic salary, pay, or compensation" within the meaning of section 9 of the new Panama Canal retirement act of March 2, 1931, 46 Stat. 1471, effective July 1, 1931; and (6) the net cash payment.

See, also, 14 Comp. Gen. 156.

Referring to question A in paragraph numbered 8 of your letter, the differential not to exceed 25 percent is not required to be based on the minimum salary rate of the grade in which an employee's position is allocated, but may be based on any salary rate of such grade properly fixed for the particular employee concerned.

Referring to question B, the differential may not exceed 25 percent of the basic salary rate the employee was receiving in the continental United States, unless the employee may be properly promoted to a higher salary rate under existing law. Payment of an amount in addition to the maximum differential of 25 percent, in order to fix the total salary rate of the employee at one of the rates prescribed by the classification act, is not authorized. Of course, payment of the maximum differential of 25 percent may result in an odd salary rate. It is not required that the total salary rate of an employee in the Canal Zone paid a differential shall coincide with the salary rate fixed by the classification act, but it is required only that the basic salary rate coincide with the classification act rate. If it be administratively desirable to fix total salary rates of employees in the Canal Zone at one of the rates fixed by the classification act, the amount of the differential may be limited to an amount necessary to accomplish that result. Accordingly, question B is answered in the negative.

(B-20149)

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 the 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 taken 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 certified copy of the 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 the 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 ander 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 Selective Training and Service 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 and selfcontrolled 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 Service 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.