salary advancement plan. Ordinarily, a period of ten years would be involved in advancing from the minimum to the maximum rate and it was felt that this was longer than officials of this class would ordinarily serve.

Officials or employees of The National Archives who were originally appointed under section 2 of the National Archives Act (48 Stat. 1122) by Presidential appointment and confirmation by the Senate, and who later, under the Independent Offices Appropriation Act for 1939 (52 Stat. 421) acquired a competi tive civil-service status, are now occupying positions which, under the latter statute are in the competitive civil service and the compensation of which must be fixed in accordance with the Classification Act of 1923, as amended. If the strict letter of section 2 (h) were followed, such persons would be exempted from the salary-advancement plan. It is clear, however, that such exemption would not be in accordance with the spirit or intent of section 2 (h), which was to exempt persons of a particular class occupying positions of uncertain tenure. The officers and employees of The National Archives involved in this question are occupying positions, which, so far as tenure is concerned, are on a parity with any other positions covered by the salary-advancement plan. In the opinion of the Commission, section 2 (h) has applicability only to those persons presently occupying positions which in the event of a vacancy would be required to be filled through Presidential appointment and confirmation by the Senate. It does not apply to positions which were once of this type but which are now in the competitive civil service and whose positions are compensated according to the pay scales of the Classification Act.

This office concurs in the views expressed by the Civil Service Commission that the personnel of The National Archives whose original appointments were made by the President by and with the advice and consent of the Senate pursuant to section 2 of the National Archives Act, 48 Stat. 1122, but who are now in the competitive classified Civil Service and whose salary rates are required to be fixed in accordance with the Classification Act of 1923, as amended, are entitled to the benefits of the act of August 1, 1941, Public Law 200, 55 Stat. 613.

(B-20618)

OFFICERS AND EMPLOYEES-PAYMENT FOR CIVILIAN LEAVE DURING MILITARY OR NAVAL SERVICE-PROCEDURE; APPROPRIATION AVAILABILITY; ETC.

The annual leave of absence for which payment is authorized, concurrently with active military or naval service, by the act of August 1, 1941, must be applied for, administratively granted and computed the same as in any other case of annual leave, except that it need not be applied for or granted in advance. The period immediately following the last day of active service in a civilian position is the period for which payment may be made to employees for annual leave, concurrently with active military or naval service, pursuant to the act of August 1, 1941, and the fiscal year salary appropriation charge able with the payment is the one which would have been available had the leave been granted in advance for such period, the charge to be apportioned if the leave falls in two fiscal years.

If the unobligated balance in the fiscal year appropriation chargeable is insufficient to pay the obligation created by the act of August 1, 1941, authorizing payments to employees for leave in their civilian positions concurrently with active military or naval service, the vouchers covering such payments should not be forwarded to this office as claims for direct settlement, but, rather, the administrative office should take steps to obtain a supplemental or deficiency appropriation.

Comptroller General Warren to the Chairman, Interstate Commerce Commission, September 25, 1941:

I have your letter of September 18, 1941, as follows:

Public Law No. 202, 77th Congress, approved August 1, 1941, reads in pertinent part as follows:

*

That employees of the United States Government 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

A number of the employees of the Interstate Commerce Commission, who were ordered to active duty prior to July 1, 1941, have applied for compensation as provided in the law as above quoted.

It so happens that in a number of the cases referred to the total amount of accumulated and accrued annual leave could have been taken, had it been applied for, prior to July 1, while in another case part would have been taken prior to July 1, and a part subsequent to July 1.

Had it been possible for the employees in the first described instance to take their leave, their salaries would have been paid entirely out of the appropriation available at that time-viz. 1941 fiscal year. However, in the second instance part would have been paid out of the 1941 fiscal year appropriation and part out of that for 1942.

Inasmuch as we will probably have a considerable number of applications for payments under the law as cited in addition to those already received, your decision is requested first in regard to those cases where all the leave would have been taken in the 1941 fiscal year, whether or not the unobligated balances in those appropriations are available, and should be charged with the full amount payable. Second, where the leave would have been taken partly in the 1941 fiscal year and partly in the 1942 fiscal year, if the amount payable should be divided proportionately between the two fiscal years, and third if your decision is that such leave as would have been taken prior to July 1, 1941, is chargeable against 1941 funds should vouchers be submitted as a claim if there is not a sufficient unobligated balance available in the appropriation sought to be charged. Your early decision in this matter will be appreciated, as we are holding a number of claims, pending its receipt.

The annual leave of absence for which payment is authorized by the act of August 1, 1941, 55 Stat. 616, must be applied for, administratively granted and computed the same as in any other case of annual leave, except, of course, that it need not be applied for or granted in advance. The period immediately following the last day of active service in a civilian position is the period for which compensation is payable, and to the extent covered by accumulated and accrued granted leave, with credit for Sundays and other nonwork days. B-20149, September 13, 1941, 21 Comp. Gen. 210.

With respect to fiscal year appropriations to be charged, section 3690, Revised Statutes, provides:

All balances of appropriations contained in the annual appropriation bills and made specifically for the service of any fiscal year, and remaining unexpended at the expiration of such fiscal year, shall only be applied to the payment of expenses properly incurred during that year, or to the fulfillment of contracts properly made within that year; and balances not needed for such purposes shall be carried to the surplus fund. This section, however, shall not apply to appropriations known as permanent or indefinite appropriations.

As the act of August 1, 1941, does not specifically designate the fiscal year appropriation to be charged with the obligation created thereby, the appropriation properly for charging is the one which

would have been available had the leave been granted in advance for the period immediately following the last day of service in the civilian position; that is to say, compensation for so much of the period of such leave as was within the fiscal year 1941 is for payment under the applicable salary appropriation for that fiscal year if a sufficient balance remains available. See 7 Comp. Gen. 751. However, if funds be not available for payment of such obligations, the matter is for taking up by the administrative office in the usual manner, looking to the obtaining of a supplemental or deficiency appropriation, and not for forwarding here as claims for direct settlement. Compensation for such portion of the leave as falls within the fiscal year 1942 will, of course, be chargeable to, and paid under, the 1942 appropriation.

(B-19735)

QUARTERS ALLOWANCE-ENLISTED MEN OCCUPYING DEFENSE HOUSING UNITS ON A RENTAL BASIS

Navy enlisted men who occupy and are charged rent for Government low-cost defense housing units constructed under authority of title II of the act of June 28, 1940, and title IV, section 201 of the Naval Appropriation Act for the fiscal year 1941, are entitled, during such occupancy, to the money allowance provided by law for quarters in lieu of public quarters, if the men are otherwise in a status entitling them to such allowance.

Comptroller General Warren to the Secretary of the Navy, September 26, 1941: There has been considered your letter dated August 14, 1941, as follows:

The Navy Department is in receipt of a request from the commandant, Fifteenth Naval District, as to whether enlisted men who occupy low-cost defense houses lose their right to payment of the money allowance for quarters while occupying such houses.

These low-cost defense housing projects consist of four hundred units constructed with funds appropriated under the Act of June 28, 1940 (Public, No. 671), "to expedite national defense, and for other purposes," and one thousand units constructed with funds allocated to the Navy Department by the President from the appropriation provided in section 201, title IV, of the Naval Appropriation Act for the fiscal year 1941, approved September 9, 1940 (Public, No. 781). Under both of the cited acts, provision is made for rental of the completed houses to enlisted men with families who are in the naval or military service. The four hundred units constructed pursuant to the provisions of the Act of June 28, 1940, supra, will be leased to the Navy Department by the United States Housing Authority, subject to reimbursement for construction costs over a period of years. To meet these costs, it is necessary that rentals be charged to the occupants of such houses. These low-cost defense houses are rented unfurnished and, in addition, all utilities must be paid for by the tenants thereof. Furthermore, it should be pointed out that the need for occupancy of such quarters by enlisted men on a rental basis is due to the lack of other adequate living facilities at or in the immediate vicinity of their duty stations. It is the view of the Navy Department that, while these low-cost defense houses are occupied by enlisted men under the conditions stated above, they are entitled to payment of the money allowance for quarters as authorized by existing law and regulations issued thereunder. However, in order that the commandant, Fifteenth Naval District, may be in a position properly to advise the enlisted men who may occupy these low-cost defense houses as to their

rental allowance rights during such occupancy, your early decision is requested as to whether amounts paid to enlisted men as quarters allowance while occupying these low-cost defense houses will be passed in the audit, if otherwise entitled thereto.

Title II of the act of June 28, 1940, 54 Stat. 681, 682, 683, contains the following provisions:

SEC. 201. In connection with the national defense program, the Navy and War Departments and the United States Housing Authority are hereby authorized to cooperate in making necessary housing available for persons engaged in national defense activities, as hereinafter provided. "Persons engaged in national defense activities" (as that term is used in this title) shall include (i) enlisted men with families, who are in the naval and military service (excluding officers) and employees of the Navy and War Departments who are assigned to duty at naval or military reservations, posts, or bases, and (ii) workers with families, who are engaged or to be engaged in industries connected with and essential to the national defense program. * * *

SEC. 202. (a) Projects may be initiated hereunder by the Navy or War Department to provide dwellings on or near naval or military reservations, posts, or bases for rental to the enlisted men and employees of the Navy and War Departments described in section 201. Such projects shall be developed by the Navy or War Department or by the Authority, whichever the President determines is better suited to the fulfillment of the purposes of this title with respect to any particular project. If the development of such project is to be undertaken by the Navy or War Department, the Authority is authorized to aid the development of the project by furnishing technical assistance and by transferring to such Department the funds necessary for the development of the project. Any project developed for the purpose of this section shall be leased to the Navy or War Department by the Authority (which shall have title to such project until repayment of the cost thereof to the Authority as prescribed in such lease) upon such terms as shall be prescribed in the lease, which may be the same terms as are authorized by the United States Housing Act of 1937, as amended, with respect to leases to public housing agencies. All the provisions of said act which apply to the development of projects by the Authority shall (insofar as applicable and not inconsistent herewith) apply to the development of projects by the Navy or War Department. Notwithstanding other provisions of this or any other law, the Department leasing a project shall have the same jurisdiction over such project as it has over the reservation, post, or base in connection with which the project is developed.

SEC. 204. The Navy or War Department or the Authority, in the administration of any project developed for the purposes of this title, shall fix rentals for persons engaged in national defense activities and their families which will be within their financial reach, and the Authority, in any contract for financial assistance or any lease of such a project, shall require the fixing of such rentals. Projects developed by the Navy or War Department, or developed or assisted by the Authority, for the purposes of this title shall not be subject to the elimination requirements of sections 10 (a) and 11 (a) of said act, or to any provisions of section 9 of said act which would require any part of the development cost thereof to be met in any manner other than from funds loaned or furnished by the Authority.

#

Title II, section 201 of the Naval Appropriation Act for the fiscal year 1941, 54 Stat. 883, provides:

SEC. 201. To the President for allocation to the War Department and the Navy Department for the acquisition of necessary land and the construction of housing units, including necessary utilities, roads, walks, and accessories, at locations on or near Military or Naval Establishments, now in existence or to be built, or near privately owned industrial plants engaged in military or naval activities, which for the purposes of this act shall be construed to include activities of the Maritime Commission, where the Secretary of War, the Secretary of the Navy, or the chairman of the Maritime Commission shall certify that such housing is important for purposes under their respective jurisdiction and necessary to the national defense program, $100,000,000: Provided, That the average

unit cost of such housing projects, including acquisitions of land and the installation of necessary utilities, roads, walks, accessories, and collateral expenses shall not be in excess of $3,500: Provided further, That in carrying out the purposes of this section the Secretary of War and the Secretary of the Navy may utilize such other agencies of the United States as they may determine upon : Provided further, That the Secretary of War and the Secretary of the Navy, at their discretion, are hereby authorized to rent such housing units, upon completion, to enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged, or to be engaged, in industries essential to the military and naval national defense programs, including work on ships under the control of the Maritime Commission. The Secretary of War and the Secretary of the Navy are further authorized to use such rentals as may be collected from each housing project for the management and maintenance of the housing units therein, including utilities, roads, walks, and accessories, and to set up special reserve accounts for the amortization of the cost of the project: Provided further, That the authority of existing law for the negotiation of costplus-a-fixed-fee contracts shall be applicable to housing projects for which funds may be made available to the War and Navy Departments or the Maritime Commission.

It is disclosed that low-cost defense housing units are being, or have been, constructed pursuant to the above acts and the question presented is whether enlisted men who occupy such units on a rental basis are entitled to the money allowance for quarters.

The allowance for quarters authorized by section 11 of the Joint Service Pay Act of June 10, 1922, 42 Stat. 630, is in lieu of public quarters. If the Government provides public quarters without cost, no allowance is payable. In other words, it is an allowance in addition to an enlisted man's pay to enable him to provide quarters from a source other than the Government. Both of the statutes pursuant to which the houses were built authorize the charging of rent for their use and provide for the amortization of their cost. From all the facts in the case it appears that insofar as these particular housing units are concerned the Government is acting as a landlord and if rental is paid by enlisted men occupying such houses and they are otherwise entitled to the money allowance for quarters, payment to them of such allowance is authorized. See, in this connection, decision of November 15, 1940, B-13039, to the Secretary of War.

(B-19829)

PAY-ACTIVE DUTY-REGULAR ARMY RESERVISTS-PERIODS PRIOR TO ACCEPTANCE OR REJECTION FOR ACTIVE DUTY

Under section 30 of the act of June 3, 1916, as amended by the act of April 25, 1938, a member of the Regular Army Reserve is entitled to pay for active duty only from the date on which he is accepted for active duty and may not be paid from date of reporting for active duty even though his acceptance is delayed through no fault of his own.

Under section 30 of the act of June 3, 1916, as amended by the act of April 25, 1938, a member of the Regular Army Reserve is not entitled to pay as for active duty for the time he loses from his civil occupation where he reports in good faith for active duty but is rejected by the medical board.