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and the Secretary of War, such failure or refusal would in no way eliminate or wipe out the Guard, or work a discharge of its officers. The only result that would follow is a withdrawal of Federal aid. The Defense Act is subject to no other construction.
The Guard is enlisted by the State officers, and it is under the command of such State officers. The expense of maintaining the Guard is shared by both the Federal and the State governments.
With reference to the last quoted statement, and its applicability to the facts of the present case, attention is invited to section 90 of the National Defense Act as reenacted on October 14, 1940, 54 Stat. 1134, wherein it is provided that:
Funds hereafter appropriated under the provisions of the National Defense Act, as amended, for the support of the National Guard of the several States, Territories, and the District of Columbia, shall be supplemental to moneys appropriated by the several States, Territories, and the District of Columbia, for the support of the National Guard, and shall be available for the hire of care. takers and clerks:
It seems clear from the above, as well as from the provisions of various laws, which have been enacted and regulations which have been promulgated with reference to the National Guard, that although "Federal aid" has been extended to the States as an inducement to the maintenance of strong State militias, there has at all times been carefully maintained and observed a rigid adherence to the concept that the National Guard is essentially a State organization. In this connection see National Guard Regulation No. 1 of May 16, 1941-particularly section 1 (5) and sections 2, 3, and 5 thereof. It would appear to be clear that the provisions of Circular No. 10-B, quoted above-especially the provisions that "Accounting employees will be employed by the State military authorities" and the employment in such capacity may be terminated "by State military authorities”—are intended as a recognition that such employees are to be regarded as employees of the States and that the restrictions imposed by Federal law and regulation with respect to their employment are merely in the nature of conditions to which this further. grant in aid of the States is subject. So far as leave rights to accounting and custodial employees are concerned it will be noted that they are not acquired pursuant to provisions of Federal law; on the contrary, State adjutants general (who are clearly State officers-National Guard Regulation 1, sec. V, par. 35), are merely advised by order of the Secretary of War that they may grant annual leave not in excess of 114 days per month to these employees without violating any of the conditions upon which the grant of Federal funds to aid in paying their compensation is made.
The above view as to the status of these employees is not altered or affected by the decision of the Eighth Circuit Court of Appeals
in the case of Woodford v. United States, 77 F. (2d) 861. In that case it was contended on behalf of a United States property and disbursing officer that a criminal indictment, wherein said official was described as an officer of the United States, was defective for the reason that "appellant was not an officer of the United States by reason of his alleged appointment as Property and Disbursing Officer." There was involved in the case section 67 of the National Defense Act as amended, 32 U. S. C. 49, by which United States property and disbursing officers are appointed, and which provides in pertinent part that:
The governor of each State and Territory and the commanding general of the National Guard of the District of Columbia shall appoint, designate, or detail, subject to the approval of the Secretary of War, the Adjutant General or an officer of the National Guard of the State, Territory, or District of Columbia, who shall be regarded as property and disbursing officer of the United States.
The court, in the Woodford case, after quoting from that section, stated:
The meaning conveyed by the language of the act is clear and unambiguous. The Governors of the States merely designate or detail the officers of the National Guard for the consideration of the Secretary of War as proposed property and disbursing officers of the United States, to administer allotments out of the annual appropriation made by the Government for the support of the National Guard of the several States. When the persons so designated are approved by the Secretary of War, they become such officers of the United States within the meaning of section 2 of article 2 of the Constitution. The indictment alleges that the appellant was duly so appointed and so acted. The Secretary of War is the head of a department of Government; a cabinet officer. Appointment by him is expressly authorized by act of Congress. Approval of an appointment, designation, or detail, made by the Governor is equivalent to a direct appointment by the Secretary himself.
While it is unnecessary for present purposes to decide whether, in light of the above decision, United States propery and disbursing officers may be regarded as employees of the United States within the meaning of the act of August 1, 1941, Public Law 202, it seems clear that even if they are to be so regarded it does not follow that accounting and custodial employees serving in their offices occupy a similar status. They are neither appointed nor are their appointments approved by the Secretary of War or any other Federal official; on the contrary, as above noted, they are employed by the military authorities of the State.
In view of the above you are advised, in response to the specific question presented, that payment on the voucher in favor of Captain Keyes is not authorized, since it appears that he was not an employee of the United States Government, its Territories or possessions or the District of Columbia, within the meaning of the act of August 1, 1941.
OFFICERS AND EMPLOYEES-PAYMENT FOR CIVILIAN LEAVE DURING ACTIVE MILITARY OR NAVAL SERVICE-RATE OF COMPENSATION
An employee who was reduced in grade and salary simultaneously with his release from active civilian service under orders to enter the active military service may be paid compensation for his accumulated and current accrued civilian leave, concurrently with active military pay, under the act of August 1, 1941, only at the reduced rate applicable to the position actually held at the time he entered the military service.
Comptroller General Warren to the Secretary of War, October 8, 1941:
I have your letter of September 23, 1941, as follows:
1. Reference is made to your letter of September 13, 1941, (B-20149) in answer to the Department's letter of August 27, 1941, answering certain questions regarding payments to civilian employees for accumulated or current accrued leave when ordered to active military or naval duty, under the act of August 1, 1941 (Public 202, 77th Congress).
2. The Department follows the administrative policy, when practicable, of filling a position which has been vacated by an employee ordered to active military or naval duty, by reassigning another employee to the position pending the return of the first employee called to active duty. Should this second employee also be called to active duty, he is reduced to his former permanent position and then furloughed for the duration of his military or naval service. This reduction is accomplished in the same instrument with the furlough, and the employee does not receive pay in the position to which reduced. The instrument used in these cases reads as follows:
"In view of your having been called to active military (or naval) duty, the Secretary of War directs me to notify you that you are hereby reduced from CCC administrative assistant (CAF-8) at $2,900 per annum to your former permanent position of CCC principal clerk (CAF-6) at $2,300 per annum, and furloughed for the duration of such military (or naval) duty, effective at the close of business May 19, 1941."
3. In your letter of September 13, 1941, you stated that "the accrued annual leave payment authorized by the act of August 1, 1941, appears properly for computing upon the same basis as though the employees remain in the service on a duty status in their civilian positions, with credit for Sundays and other nonwork days allowed." In view of the administrative policy described in paragraph 2 and the above quoted wording, a decision is requested as to whether payment for accumulated or current accrued leave can be made in the higher position which the employee was holding subject to the return of a furloughed employee, or whether the Department is required to make payment for such leave at the salary rate of his former position to which he was reduced at the time of furlough.
4. For your information, the Department will follow a policy in the future of giving an employee, who is ordered to active military or naval duty, his leave benefits in the higher position by retaining him in that position until his leave applied for is exhausted and then reducing him to his former permanent position and placing him on furlough.
In my decision of September 25, 1941, B-20618, 21 Comp. Gen. 258, to the Chairman, Interstate Commerce Commission, it was stated, in pertinent part, as follows:
The annual leave of absence for which payment is authorized 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, of course, that it need not be applied for or granted in advance. The period immediately fol lowing 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.
In decision of June 22, 1940, 19 Comp. Gen. 1015, it was held as follows (quoting from the syllabus):
Compensation is payable during leave of absence at the rate applicable to the position from which the employee is excused from duty and not at the rate payable for the period during which the leave is earned.
Permanent employees of the Alaska Railroad who are temporarily reassigned or promoted to positions at higher salary rates, and who are returned to their former position prior to the effective date of granted annual leave, are entitled to compensation for the leave so taken only at the rate applicable to the position to which returned even though no duty be performed under such reassignment or return before the leave is taken.
See also 15 Comp. Gen. 879; 16 id. 865; 17 id. 641; id. 906.
In the light of the decisions, supra, it must be concluded that an employee who was reduced in grade and salary simultaneously with his release from active civilian service under orders to enter the active military service may be paid compensation under the terms of the act of August 1, 1941, Public Law 202, 55 Stat. 616, covering the period of annual leave, only at the reduced rate applicable to the position actually held at the time he entered the military service-in the illustration given at $2,300 per annum.
QUARTERS AND SUBSISTENCE ALLOWANCES-INSULAR FORCE OF
Since members of the insular force of the Navy are enlisted men of the Regular Navy, current naval appropriations for payment of the quarters and subsistence allowances authorized to be paid to enlisted men of the Regular Navy by section 11 of the act of June 10, 1922, are, in the absence of administrative limitations, available for the payment of such allowances to members of the insular force of the Navy. Decisions B-12506, October 3, 1940, and 20 Comp Gen. 522, involving the assimilation of members of the insular force of the Navy to Philippine Scouts pursuant to section 12 (a) of the Selective Training and Service Act of 1940, distinguished. Assistant Comptroller General Elliott to the Secretary of the Navy, October 11, 1941:
There has been considered your letter of July 29, 1941, as follows: The Navy Department has under consideration the question whether members of the insular force of the Navy may be credited with the amount of allowances for quarters and subsistence as authorized by articles D-10102, D-10103 and D-10104, Bureau of Navigation Manual, for enlisted men of the Regular Navy. Since the tables of allowances for quarters and subsistence for enlisted men of the Navy in a travel or nontravel status, appearing in the cited articles from the Bureau of Navigation Manual, have been superseded by new tables of allowances published in Executive Order No. 8704 of March 4, 1941, the question resolves itself into one as to the right of members of the insular force of the Navy to be credited with the allowances for quarters and subsistence as set forth in said Executive order, as amended.
By Executive order dated April 5, 1901, there was established the insular force of the Navy, whose members are, in contemplation of law, enlisted men in and of the Regular Navy (12 Comp. Dec. 189) and may be transferred away from the Philippine Islands for duty. (Navy Department file 26754–3591; 9, Feb. 9, 1924; L. R. N. A., 1929, p. 103.) The membership of the insular force of the Navy is limited to not to exceed "500 Filipinos" (Executive order of
April 5, 1901), and by section 10 of the Pay Act of June 10, 1922 (42 Stat. 630; 37 U. S. C. 16), it is provided that the rates of "pay" of members of the insular force "shall be one-half the rates of pay prescribed for enlisted men of the Navy in corresponding ratings."
In decisions of your office to the Secretary of the Navy of October 3, 1940, B-12506, and March 17, 1941, B-15346 (20 Comp. Gen. 522) it was held, respectively, that (1) since the grades in the Army corresponding to the grades or ratings of members of the insular force of the Navy are the grades established in the Philippine Scouts, the furlough ration for the insular force should be limited to the amount prescribed by the War Department for Philippine Scouts; and (2) that members of the insular force of the Navy, otherwise meeting the conditions of the act of October 17, 1940 (Public, No. 872), granting allowances for quarters for dependents of enlisted men on active duty of the first three pay grades of the Army, and the Executive order of February 19, 1941, No. 8688, issued pursuant thereto, are entitled to actual expenses for lodging not to exceed 50¢ a day, as provided for Philippine Scouts under section 2 (b) of said Executive order.
The basis of the conclusions reached in the two prior decisions affecting members of the insular force of the Navy was that under section 12 (a) of the Selective Training and Service Act approved September 16, 1940 (Public, No. 783), providing that enlisted men of the Navy "shall be entitled to receive at least the same pay and allowances as are provided for enlisted men in similar grades in the Army and Marine Corps,” the “grades in the Army corresponding to the grades or ratings of members of the insular force of the Navy are the grades established in the Philippine Scouts" and that the right of members of the insular force to the particular allowances under consideration was accordingly "limited to the amount prescribed by the War Department for Philippine Scouts."
The reasoning relied upon for the conclusions reached in the prior decisions of October 3, 1940, and March 17, 1941, does not appear to be applicable in the present case, in view of which your decision is requested as to whether current naval appropriations may be considered legally available for payment of quarters and subsistence allowances to members of the insular force of the Navy at the same rates as authorized for enlisted men of the Regular Navy in Executive Order No. 8704 of March 4, 1941, as amended. If this question is answered in the negative, your further decision is requested as to the correct rate of allowances for quarters and subsistence to which members of the insular force of the Navy are entitled. It is further requested that your decision specify the quarters and subsistence allowances to which members of the insular force of the Navy will be entitled both while in a travel and non-travel status within and outside the Philippine Islands.
In connection with the foregoing, there is enclosed a copy of Bureau of Navigation circular letter No. 34-41 of March 25, 1941, setting forth the instructions issued by the Bureau under Executive Order No. 8704 of March 4, 1941.
As you have indicated, the decisions of this office (B-12506, October 3, 1940, and 20 Comp. Gen. 522); which held that members of the insular force of the Navy are entitled to certain allowances not in excess of those authorized for enlisted men of the Philippine Scouts, involved allowances to which the members of the insular force became entitled by reason of the provisions of the last sentence of section 12 (a) of the Selective Training and Service Act of 1940, 54 Stat. 895. Payment of quarters and subsistence allowances to enlisted men of the Navy not furnished quarters or rations in kind is authorized under the terms of section 11 of the act of June 10, 1922, 42 Stat. 630. The cited section 11 provides, in part, as follows:
To each enlisted man not furnished quarters or rations in kind there shall be granted, under such regulations as the President may prescribe, an allowance for quarters and subsistence, the value of which shall depend on the conditions under which the duty of the man is being performed, and shall not