training with the Regular Army." [Italics supplied.] Captain Stacy has recently requested that he be compensated for approximately eight days annual leave standing to his credit at the time of his resignation. In your decision of September 17, 1938 to the Secretary of the Navy, 18 Comp. Gen. 236, construing the Act of May 12, 1917, providing for leave of absence with pay to members of the Officers' Reserve Corps who "shall be ordered to duty" for periods not to exceed fifteen days in any one calendar year, it was held, with respect to a reserve officer who was "with his consent, ordered to active duty" that he was entitled to military leave covering the period of active duty, and that for the purposes of the statute "it is immaterial whether a reserve officer is ordered voluntarily or involuntarily to active duty for training or for instruction, etc." Also in this connection, see 19 Comp. Gen. 880.

In your decision of September 13, 1941 (B-20149) to the Secretary of War, referring to Public Law 202, 77th Congress, it was held that those who voluntarily enlist for service may not be regarded as having been "ordered" into the active service within the meaning of said Act because they act of their own volition and are free to decide for themselves whether they will or will not enter the service. It was stated that "the word 'ordered' as used in the Act, appears merely to signify compulsion or command, as distinguished from complete voluntary and self-controlled action on the part of the individuals involved." Although Captain Stacy was ordered to active duty with his consent, it would seem to be questionable as to whether or not he could be considered to be in the same class of those who voluntarily enlist in the Army. Accordingly, in view of your decision of September 13, 1941 to the Secretary of War, supra, and the fact that Captain Stacy was "ordered to active duty training," [italics supplied] whereas provisions of Public Law 202 apply to employees "ordered" to active duty, your decision is respectfully requested as to whether we may compensate Captain Stacy for the accrued annual leave standing to his credit at the time of his resignation from the Administration to enter military service, pursuant to the above-quoted order.

Pursuant to a request made by this office the War Department has forwarded an official statement of service of Jean Killough Stacy, as follows:

1. The records of this office show that Jean Killough Stacy, serial number 0-198,068, was appointed 1st Lieutenant, Quartermaster Corps Reserve, April 5, 1924; accepted April 22, 1924. He was promoted to Captain, Quartermaster Corps Reserve July 2, 1929; accepted July 8, 1929; to Major, Quartermaster Corps Reserve, August 21, 1941; accepted August 22, 1941; and is now a Major in that Corps.

2. He has had the following periods of active duty from June 7, 1925 to June 21, 1925; from August 1, 1927 to August 14, 1927; from August 19, 1928 to September 1, 1928; from March 2, 1930 to March 15, 1930; from August 2, 1931 to August 15, 1931; from August 23, 1936 to September 5, 1936; from June 30, 1937 to November 23, 1938; and from July 10, 1940 under Section 37a of the National Defense Act and under the provisions in the Military Appropriation Act, 1941, item "Organized Reserves" which permitted Reserve Officers to be ordered to extended active duty when "detailed to duties for which officers of the Regular Army are not available," for a tour to terminate July 9, 1941, which has been extended to terminate July 9, 1942.

The act of August 1, 1941, Public Law 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. [Italics supplied.]

Section 37a of the National Defense Act, as amended by the act of June 4, 1920, 41 Stat. 776, provides, in pertinent part, as follows:

Reserve officers on active duty.-To the extent provided for from time to time by appropriations for this specific purpose, the President may order reserve officers to active duty at any time and for any period; but except in time of a national emergency expressly declared by Congress, no reserve officer shall be employed on active duty for more than fifteen days in any calendar year without his own consent. [Italics supplied.]

*

The words, "ordered to active duty," appear in the act of August 1, 1941. The words, "the President may order reserve officers to active duty," appear in section 37a of the National Defense Act, as amended. The words, "ordered to active duty," appear in Special Orders No. 158, quoted in your letter, pursuant to which Captain Stacy entered the active military service. There is no reason to believe that the Congress did not intend to use the words quoted from the act of August 1, 1941, in the same sense as the same or similar words are used in section 37a of the National Defense Act, as amended, and in the document (order) issued under authority of the National Defense Act pursuant to which this reserve officer entered the active military service. The explanation of the words, "ordered to active duty with the military or naval forces of the United States", appearing in the act of August 1, 1941, was made in the decision of September 13, 1941, B-20149, 21 Comp. Gen. 210, with relation to the questions there considered and decided, involving only the rights under the statute of inducted and enlisted men. No question relating to reserve officers was considered or decided in that

case.

Accordingly, any member of the Officers' Reserve Corps of the Army who received an "order" pursuant to authority of law, either with or without his consent, is entitled to the benefits of the act of August 1, 1941, Public Law No. 202. Compare 18 Comp. Gen. 236; 19 id. 880.

The question presented is answered in the affirmative.

(B-20149)

OFFICERS AND EMPLOYEES-PAYMENT FOR CIVILIAN LEAVE DURING MILITARY SERVICE EMPLOYEES ENLISTING IN REGULAR ARMY SUBSEQUENT TO INDUCTION

A Government employee who was inducted into military service on June 17. 1941, and who enlisted in the Regular Army on June 20, 1941, is entitled to the benefits of the act of August 1, 1941, authorizing payment for accumulated and current accrued leave, concurrently with active military or naval duty, to employees of the United States, etc., "ordered" to such duty. Comptroller General Warren to the Secretary of War, November 7, 1941: I have your letter of October 28, 1941, as follows:

With further reference to the act of August 1, 1941 (Public Law 202, 77th Cong.), and your recent decision (B-20149, Sept. 13, 1941) construing certain of its provisions, the following question has arisen in the War Department:

Is an employee who was inducted June 17, 1941, and subsequently enlisted in the Regular Army for three years on June 20, 1941, entitled to payment for all or any part of his accumulated or current accrued civilian leave?

The concluding remark in your above-cited decision has been construed as possibly indicative of a view that the statute mentioned is not to be regarded as having retroactive effect in the case of persons whose period of duty in the status of a member of one of the eligible classes had been completed prior to its enactment. Furthermore, it is noted that the statute was held inapplicable in the case of persons who voluntarily enlist for service. In view of these factors, an advance decision concerning the above-stated question would be appreciated. In the decision referred to in your letter (B-20149, September 13, 1941, 21 Comp. Gen. 210) the word "ordered" as used in Public Law 202, 55 Stat. 616, was held to "signify compulsion or command, distinguished from complete voluntary and self-controlled action on the part of the individuals involved." With respect to persons who volunteered for induction pursuant to the terms of section 3 (a) of the Selective Training and Service Act of 1940, 54 Stat. 885, it was stated, among other things, that:

as

It will be noted from this provision [section 3 (a)] that those "liable for training and service" are given an election either to wait until they are called for induction, or to volunteer for induction without waiting. However, they are not permitted to determine whether they will or will not serve, but merely are granted a measure of latitude respecting the time and manner of induction. It seems sufficiently clear, therefore, that those who volunteered for induction may be regarded, if and when inducted, as “ordered" to active duty with the military or naval forces of the United States within the meaning of the act of August 1, 1941.

A similar conclusion appears warranted in the case of an employee who was inducted on June 17, 1941, and thereafter, but prior to the expiration of the active service for which he was inducted, enlisted in the Regular Army for 3 years. He apparently left his civilian position under compulsion and in order to perform the military service required of him as an inductee. He is not permitted in connection with his subsequent enlistment to determine whether he will or will not serve; he is merely granted a measure of latitude respecting his future service status. Whether he serves as an inductee or as an enlisted man the fact remains that he is required to serve. In the case presented, the induction on June 17, 1941, rather than the subsequent enlistment should be regarded as determinative of the employee's rights under Public Law 202.

Answering your question specifically, you are advised that an employee who was inducted June 17, 1941, and subsequently enlisted in the Regular Army for 3 years on June 20, 1941, is entitled, in accordance with the terms of Public Law 202, either to receive compensation for his accumulated or current accrued annual leave, or, at his election, to have such leave remain to his credit until his return from active military or naval service.

(B-21320)

DISTRICT OF COLUMBIA SCHOOL TEACHERS-DEMOTIONS-INITIAL SALARY RATES

Where a District of Columbia school teacher occupying a permanent position was appointed at an increase in salary for a temporary period to fill a vacancy, and, upon the expiration of such appointment, was reduced to a permanent position in a salary class next above that in which he had served prior to his temporary appointment, he is entitled under the Teachers Salary Act of 1924 to receive only the salary rate in the class to which reduced next above that rate of the salary class he received prior to the temporary appointment. Reduction from one permanent position to another, distinguished.

Comptroller General Warren to the President, Board of Commissioners of the District of Columbia, November 8, 1941:

I have your letter of October 21, 1941, as follows:

Under date of February 3, 1941, the Board of Education appointed C. M. Huber, assistant professor, class 11 at $3,700 per annum, to the position of acting president, Wilson Teachers College at a salary of $5,000 per annum for a temporary period not to extend beyond April 30, 1941, and by Board order dated May 1, 1941, the temporary appointment was continued for a period not to extend beyond June 30, 1941. By Board order dated July 1, 1941, he was "demoted without prejudice” to a professorship at Wilson Teachers College to the maximum of class 12 at $4,500 per annum. Notwithstanding the fact that he was designated as acting president of Wilson Teachers College, and was paid the salary of the president, the position then being vacant. (See 17 Comp. Gen. 147.)

This position was authorized by the 1931 District of Columbia Appropriation Act approved July 3, 1930, in accordance with the act of June 4, 1924 (43 Stat. 367), including "salaries of presidents of Teachers Colleges and the salary schedule for first assistant superintendents." The 1931 Budget, page 1402, carries two new positions as "first assistant superintendent (presidents of Teachers Colleges), $5,000," thus providing a president for the Wilson Teachers College and for the Miners Teachers College at $5,000 each.

Following the receipt of the order reducing, without prejudice, Dr. Huber to the position of professorship, the Auditor, under date of August 29, 1941, addressed a memorandum to the Superintendent of Schools, as follows:

"This office is in receipt of Board Order No. 18324, purporting to be designation and assignment of C. M. Huber (R-4619) from the position of acting president, at $5,000 per annum, to professor, at Wilson Teachers College, class 12, at $4,500 per annum, effective July 1, 1941.

"The Teachers' Salary Act provides under class 12, supervising principals, ‘a basic salary of $4,000 per year at an annual increase in salary of $100.00 for five years, or until a maximum salary of $4,500 per year is reached.' Mr. Huber prior to his appointment as acting president at $5,000 per annum (not to extend beyond June 30, 1941) was in class 11, and received the maximum salary of $3,700. His temporary appointment as acting president, in the opinion of the Auditor, does not carry with it authority to transfer and appoint Professor Huber in class 12 at a salary in excess of $4.000, or the basic salary for that grade. There are a number of decisions of the Comptroller General of the United States, not necessarily involving teachers in the public schools, to the effect that all original appointments must be at the minimum of the grade or class to which assigned. "I have to advise you, therefore, that the Auditor is of the opinion that he is without authority to pay Professor Huber in excess of the minimum of the class; namely, $4,000."

In answer to this letter, the Acting Superintendent enclosed a report to the auditor on this subject dated Sept. 12, 1941, as follows:

"As the basis of preparation of an answer to the Auditor concerning the information which he presented on August 29 relating to the alleged wrong assignment of salary to Professor Clyde M. Huber of Wilson Teachers College, I am submitting the following:

"On June 30, 1909, on motion of the Superintendent, the Board of Education reduced Mr. H. L. Bailey, supervising principal of the thirteenth division, to a teacher in the M Street High School, to take effect on and after July 1, 1909.

On June 30, 1909, he was receiving as supervising principal of the thirteenth division $2,400. On September 1 his salary was reduced to $1,800, which was the maximum of class 6, group A, at that time. (See Organic Law of 1906 as printed in the Compilation of Laws affecting the Public Schools, page 17.)

"On December 1, 1931, Mr. H. A. Haynes was promoted from teacher, class 3B, in the Armstrong High School, to be assistant superintendent, division 10–13, salary $4,200, with the understanding written into the order that unless otherwise ordered by the Board of Education, Mr. Haynes would return to the position of teacher, class 3B, on the expiration of Mr. H. H. Long's leave of absence for educational purposes; and on June 27, 1932, the Board of Education ordered Mr. H. A. Haynes demoted without prejudice from assistant superintendent, salary $4,200, to principal, class 8, Browne Junior High School, effective on and after July 1, 1932, with the salary of $4,000, which is the maximum salary for class 8. “Mrs. E. K. Peeples was, by action of the Board of Education on poll of the Board on July 11, 1939, reduced from the Director of the Community Center Department, class 10, $3,500, to the position of administrative principal, class 7, $3,200-the maximum of class 7 is $3,200.

"These three citations clearly indicate that it has been the policy of the Board of Education to demote to the maximum salary of the class into which the person is demoted. All of these demotions, so far as the salary is concerned, have been approved by the Auditor; consequently, Mr. Pilkerton's letter does not seem to be in keeping with the facts. He frankly admits that the Comptroller General's decisions do not necessarily involve the teachers in the public schools.

"With this record of the facts as against judgment on the part of the Auditor, I think we should again hold our ground on the maximum salary of $4,500 for Dr. Huber."

There has been submitted to the Auditor for payment a pay roll in favor of Dr. Huber, R-4619, professor, class 12, $4,500, for the month of September 1941, being the first month's salary under this appointment. Salaries of teachers in the public schools are paid in 10 monthly installments, first payment to be made on the first day of October as provided by the act of May 26, 1908 (35 Stat. 291).

While it is true that the decisions of your office relative to classification and promotion of employees in the classified service, under the Classification Act of 1923, as amended, are not applicable to the public school teachers, Dr. Huber theoretically held the position of president since he received the salary of the position and the reduction in his salary when placed in class 12 should not, in our opinion, be below that of the maximum of the class of $4,500. (See 8 Comp. Gen. 275; 9 Comp. Gen. 193.)

On the other hand, your office has held that the initial salary to be paid privates of the Police and Fire Departments of the District of Columbia under the Salary Act of July 1, 1930, as well as reinstatements, must be at the minimuni of the grade. (See 10 Comp. Gen. 545; 15 Comp. Gen. 748.)

The Commissioners would appreciate advice from you as to whether, under their interpretation of the existing law and the circumstances indicated above, Dr. C. M. Huber, professor, Wilson Teachers College may receive the maximum of the salary of class 12.

The appropriation act for the District of Columbia for the fiscal year 1931, approved July 3, 1930, 46 Stat. 966, contains the following item under the heading "Public Schools":

Salaries: For personal services of administrative and supervisory officers in accordance with the act fixing and regulating the salaries of teachers, school officers, and other employees of the Board of Education of the District of Columbia, approved June 4, 1924 (43 Stat., pp. 367-375), including salaries of presidents of teachers' colleges in the salary schedule for first assistant superintendents, $665,800.

The Teachers Salary Act, approved June 4, 1924, 43 Stat. 367-375 contains the following pertinent provisions:

ARTICLE II.-Salaries of administrative and supervisory officers.

CLASS 11.-Heads of departments and assistant principals.