to lieutenant colonel under the act of June 21, 1930) Stephenson had served 3 years, 10 months, and 21 days as midshipman at the Naval Academy, and 13 years, 4 months, and 1 day, as a commissioned officer. His active duty pay at time of retirement was that of a major, fourth pay period, with longevity of over 15 years, or $312.50 per month. He was recalled to active duty on April 3, 1923, and served until June 15, 1930, or for a period of 7 years, 2 months, and 13 days. By virtue of the act of May 26, 1928, 45 Stat. 774, his active service since retirement increased his active duty pay to that prescribed for major, fifth pay period, with longevity of over 24 years, or at the rate of $408.33, per month. The pay roll submitted shows that he was credited under the act of June 25, 1941, with an increase from 322 percent to 50 percent in the percentage of his active duty pay. He claims a further increase from 50 percent to 63 percent of his active duty pay, being (1) the difference between 22 percent and 3 percent, as fixed by the act under which he was retired, and (2), the difference between 20 and 21 years' commissioned service, by reason of including in the computation of the percentage increase the total months resulting in a fractional year of service on the active list and on active duty after retirement which total exceeds six months.

The amendatory act makes no change in the act of June 30, 1922, under which the claimant was retired. At the time he was retired he had to his credit 13 complete years of commissioned service, and under the conditions for the second class his percentage rate was specifically fixed at 22 percent. The act of June 25, 1941, authorizes the counting of active duty performed subsequent to date of retirement in the computation of the percentage increase of his active duty pay, but the percentage rate which was fixed by conditions of the act under which he was retired is not changed. The rate of 3 percent prescribed for officers retired with over 20 years' service is not applicable in the computation of the claimant's retired pay. See 8 Comp. Gen. 87; Stephenson v. United States, 81 Ct. Cls. 637.

The statute provides that active duty performed subsequent to date of retirement by officers retired with pay at the rate of 22 or 3 per centum of their active duty pay, shall be counted for the purpose of computing percentage increases in their retired pay, and it is further provided that a fractional year of six months or more shall be considered a full year in computing the number of years. As a condition precedent to the statute becoming operative as to a particular officer, he must have been assigned to active duty subsequent to the date of his retirement. The practical effect then is to add the commissioned service performed subsequent to retirement, to the commissioned service performed prior to retirement, and include in the computation of the percentage increase of their retired pay, all

active service performed either before or after retirement, and a fractional year of 6 months or more, of such total service shall be considered a full year in computing the number of years. Giving application to this rule claimant's commissioned service before retirement of 13 years, 4 months, and 1 day, added to his commissioned service subsequent to retirement of 7 years, 2 months, and 13 days, makes a total of 20 years, 6 months, and 14 days. Under the provisions of the statute the fractional year being more than 6 months is considered a full year, making 21 years of service. He was, therefore, entitled to receive as retired pay 22 percent multiplied by 21, or 522 percent of $408.33, being $214.37 per month. Having been credited retired pay at the rate of $204.16 per month for the period June 25 to July 31, 1941, the claimant is entitled to payment on this voucher in the amount of $12.25.

The Official Army Register, 1941, at page 1068, shows the services of Capt. Roy F. Hall, to be as follows:

Capt. Inf. Sec. O. R. C. 15 Aug. 17; accepted 15 Aug. 17; active duty 15 Aug. 17; vacated 8 Oct. 20.-Pvt., corp. and sgt. Co. C 4 Inf. 6 May 04 to 5 May 07; Capt. of Inf. 1 July 20; accepted 8 Oct. 20; retired 1 June 29; A. D. 2 June 29 to 3 June 29.

Marginal note shows he was retired "After 11 years' service. (Sec. 24b, act June 4, 20)"

The Army reorganization act of June 4, 1920, 41 Stat. 759, 773, provides:

Whenever an officer is placed in class B, a board of not less than three officers shall be convened to determine whether such classification is due to his neglect, misconduct, or avoidable habits. If the finding is affirmative, he shall be discharged from the Army, if negative, he shall be placed on the unlimited retired list with pay at the rate of 21⁄2 per centum of his active pay multiplied by the number of complete years of commissioned service, or service which under the provisions of this act is counted as its equivalent, unless his total commissioned service or equivalent service shall be less than ten years, in which case he shall be honorably discharged with one year's pay.

The claimant had to his credit at time of retirement 11 years, 9 months, and 17 days' commissioned service. He was assigned to active duty subsequent to retirement from June 2 to 3, 1929, being for 2 days. Giving application to the above-cited rule, the 2 days' active duty subsequent to retirement added to the 11 years, 9 months, and 17 days' active duty prior to retirement, makes a total service of 11 years, 9 months, and 19 days, and the fractional year, being in excess of 6 months, is considered as a year, entitling him to 12 times 22 percent, or 30 percent of $240, his active duty pay at time of retirement, or retired pay at the rate of $72 per month. Having been credited with retired pay at the rate of $66 per month for the period June 25 to July 31, 1941, he is entitled to additional retired pay in the amount of $7.20.

If otherwise correct payment is authorized on the voucher returned herewith in the respective amounts of $12.25 and $7.20.

(B-20748)

PAYMENT FOR CIVILIAN LEAVE DURING ACTIVE MILITARY OR NAVAL SERVICE-EMPLOYEES IN OFFICE OF UNITED STATES PROPERTY AND DISBURSING OFFICER

Accounting and custodial employees serving in the office of the United States Property and Disbursing Officer for a State who are employed by the State military authorities, although a part of their compensation is paid from Federal funds, are not "employees of the United States Government" within the meaning of the act of August 1, 1941, and they may not be paid under said act, concurrently with active military or naval service, for annual leave accrued in their civilian positions.

Comptroller General Warren to Lt. Col. C. W. Goble, United States Property and Disbursing Officer for Ohio, October 8, 1941:

I have your letter of September 13, 1941, as follows:

1. Forwarding herewith Standard Form 1013d and 1013e, Pay Roll for Personal Services, covering 112 days leave accrued to Captain William E. Keyes, State Staff & Corps Det. O. N. G., at the time of his induction into Federal Service together with the claim of Captain Keyes in letter attached to the payroll.

2. Captain William E. Keyes was a civilian clerk, property accounts in the office of the United States Property and Disbursing Officer for Ohio during the period January 1, 1940, to September 15, 1940, at the rate of $130.00 per month and from September 16, 1940, to October 8, 1940 at the rate of $167.50 per month, under the provisions of National Guard Bureau Circular No. 10-B, dated July 12, 1939.

3. Under the provisions of National Guard Bureau Circular No. 10-B and paragraph 14b National Guard Regulations 75-16, leave at the rate of 14 days per month is allowable to civilian employees of the United States Property and Disbursing Offices.

4. The attached pay roll is forwarded for advance decision as to whether or not Captain William E. Keyes is entitled to payment of accrued leave under the provisions of the "Act of Congress-Payment for accumulated or accrued annual leave when ordered to active duty with the military or naval forces of the United States" approved August 1, 1941 (Public law 202, 77th Congress), as shown in War Department Finance Bulletin No. 82, dated August 14, 1941, copy of which is enclosed with the claim of Captain Keyes attached to the pay roll.

5. The enclosed claim has been presented to the undersigned United States Property and Disbursing Officer for payment.

The act of August 1, 1941, Public Law 202, 77th Congress, 55 Stat. 616, provides:

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.

In determining the right of Captain Keyes to receive payment under the terms of the above act for accrued annual leave to his credit at the time he was inducted into the Army there is for consideration

first whether his service as an accounting employee in the Office of the United States Property and Disbursing Officer for Ohio constituted him an employee of the United States within the meaning of said act. Of course, if he was not an employee of the United States Government (it being clear that he was not an employee of any of its Territories or possessions, or the District of Columbia) the terms of the above act have no application to his case.

The Military Appropriation Act, 1940, 53 Stat. 611, contains, among others, the following provision:

For compensation of help for care of materials, animals, and equipment, $2,768,332, of which $210,000 shall be available exclusively for the compensation of employees engaged upon Federal property custodial and accounting work in the offices of property and disbursing officers for the United States. Provisions of similar nature were contained in the Military Appropriation Act for 1941 (54 Stat. 371) and 1942 (Public Law 139, 77th Cong., p. 22, 55 Stat. 385).

War Department Circular No. 10-B of July 12, 1939, referred to in your letter, provides:

SECTION I

2. Definition.—Accounting employees are employees authorized by Federal law for accounting and property custodial work in the offices of United States property and disbursing officers.

5. Employment.-Accounting employees will be employed by the State military authorities.

6. Termination of employment.-Termination of employment of accounting employees may be made by State military authorities, or by the Chief of the National Guard Bureau upon recommendation of corps area commanders.

8. Payment of salaries and pay rolls.-Salaries of accounting employees will be paid in the same manner as for caretakers. (See paragraphs 12 and 13, NGR 75-16.)

9. Leaves. Leaves of accounting employees will be subject to the same regulations as for caretakers. (See paragraph 14, NGR 75-16.)

Paragraphs 12, 13 and 14 of National Guard Regulations 75-16 so far as pertinent to the question here under consideration, provide:

12. Payment.-Caretakers will be paid monthly or semimonthly, on War Department Standard Form No. 1013d by United States property and disbursing officers after they have received notification that funds have been made available.

[13.] c. Approval.—Each pay roll for caretakers will be approved by the State adjutant general or by an officer designated by him.

14. Leave-a. General.-State adjutants general are authorized to grant caretakers annual leave, sick leave, and military leave (all with pay), in accordance with the provisions of subparagraphs b, c, and d, below. They will maintain a record of all absences from official duty of caretakers; the duration of each absence and its cause. Orders granting annual leave and military leave will be in writing and will show the date of appointment.

b. Annual leave.-Caretakers are credited with annual leave at the rate of 14 days per month beginning with the first day of the month following ap pointment. Annual leave can only be taken during the calendar year in which it is earned, and any accrued leave not taken is forfeited on December 31st. *

It will be noted from the above that these accounting and custodial employees are "employed by the State military authorities" and that

their employment may be terminated by said authorities. While Federal funds are provided for payment of at least a part of the compensation of such employees, this fact standing alone is not sufficient to constitute them "employees of the United States Government." Thus it has been held that members of the National Guard, although paid in part from Federal funds, are employees of the State in which they serve as such members. State v. Johnson, 202 N. W. 191. With reference to the status of the National Guard, and the effect upon that status of the contributions made from Federal funds to the support and maintenance thereof, the court stated (p. 192 and 193 of the decision):

Our experience during the Spanish-American War, in which the members of the militia were called into Federal service, had taught us that in order to insure a more effective potential force, in the form of a well-organized and disciplined militia, it would be necessary to extend to the militia of the States an inducement which would inure not only to the benefit of the various States, but also to the Nation at such times when the militia might be called into the Federal service. This inducement consisted of Federal aid to the States, under which the State military organizations might be organized into proper units, officered by capable and efficient officers, supported in a large measure by Federal funds, and allocated to larger divisions, all in harmony with the general scheme that in the event of the happening of a national emergency the state military units might be in a position to perform more efficient service.

* It must be conceded that the National Defense Act wrought a material change with respect to the National Guard. This change, however, while it effected a greater unification of the National Guard with the Federal army, and created conditions which to a very large extent strengthened the Guards from the standpoint of efficiency, when they might be called upon by the Federal Government, did not in any respect weaken the Guard as a State organization, nor did it wipe out or eliminate its character as a distinctive State organization. While it is known under the name of National Guard, it still retains its essential features as a part of the militia. Nowhere in the act can be found a provision which in times of peace alters the control which the State has over the Guard. Had such an important and vital change been contemplated by Congress, affecting an institution having its origin at the very time of the inception of the Government, and which had continued for more than a century, it would not have left the matter subject to mere inference; on the contrary, it would by its legislation have in express terms wiped out the very existence of the National Guard as a State institution, and expressly made it a part of the Federal army.

"Whenever any State shall, within a limit of time to be fixed by the President, have failed or refused to comply with or enforce any requirement of this act, or any regulation promulgated thereunder and in aid thereof by the President or the Secretary of War, the National Guard of such State shall be debarred, wholly or in part, as the President may direct, from receiving from the United States any pecuniary or other aid, benefit, or privilege authorized or provided by this act or any other law."

The foregoing quoted section is the only penalty prescribed by the act for the failure of the Guard to comply with any of the rules, regulations, and orders of the President or the Secretary of War. This, of course, has reference to times of peace. In order, therefore, that the Guard may receive the financial aid which the act provides for, Congress has seen fit, in order to accomplish the objects and purposes of the act, to extend such aid as an inducement. This clearly shows that the act was not intended to be compulsory, but optional, and in enacting such legislation it clearly had in mind its constitutional limitations upon the subject. If, therefore, the Guard was not properly officered, if it did not submit to training so as to reach the standard prescribed by Congress