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That decision was but the reiteration of a long line of decisions holding that the granting of military leave of absence with pay is inconsistent with the temporary employment of personnel.

The act of June 18, 1929, 46 Stat. 21, quoted in your letter, is a special statute authorizing appointment of a special class of so-called temporary employees whose tenure is longer than that fixed under the usual temporary appointment but is limited to the period necessary to take the decennial census. The employees occupying these temporary positions have been considered both as "permanent" and "temporary" for different purposes. They are "permanent" within the meaning of the annual and sick leave regulations, and accordingly, are entitled to leave at the rate authorized for permanent employees. While occupying such temporary positions they are "temporary" for the purpose of fixing initial salary rates upon transfer or retransfer to the regular permanent census roll. Decision of October 28, 1941, B-21205, 21 Comp. Gen. 386. Compare decision of November 8, 1941, B-21320, 21 Comp. Gen. 436, involving a teacher in the public schools of the District of Columbia. In the letter of June 30, 1930, A-32370, quoted in your letter, it was suggested that since these employees were relatively permanent in character in that their services might extend over the maximum period of 3 years, they could be classed other than as "temporary" for the purpose of granting them military leave of absence with pay.

In view of the terms of the act of June 18, 1929, supra, including the provision that these employees who are transferred from the permanent roll to occupy such temporary positions shall not lose their permanent civil service status, and as the tenure of such temporary appointments is greatly in excess of that fixed under the usual type of temporary appointment prescribed by law or civil service regulations, there does not exist, as to these "temporary" census positions, the basic reason for denying military leave to temporary employees, generally. That is, it would not appear inconsistent with the tenure of their employment to grant them military leave of absence with pay when they are required under proper orders to undergo military training as a member of the National Guard, Officers' Reserve Corps of the Army, or Naval Reserve, subject to the terms and conditions of the several statutes granting such leave. You are advised, therefore, that the holding in the decision of September 18, 1940, supra, and other related decisions denying military leave of absence with pay to temporary employees is not applicable to census employees who are appointed for the duration of the decennial census under authority of the act of June 18, 1929, supra, and that military leave of absence with pay may be granted to the two classes of employees described in the concluding para

graph of your letter if they otherwise qualify under the terms of the controlling statutes.


LEAVES OF ABSENCE-ANNUAL-SEPARATION FROM SERVICE Where an employee's resignation was erroneously accepted to be effective prior to a period of accrued annual leave even though the resignation expressly stated that it should be effective at the end of such period of leave and the acceptance was not communicated to the employee prior to the expiration of the leave, he was not effectively separated from the service thereby and is entitled under section 7 of the Annual Leave Regulations to compensation for the entire period of such leave. 16 Comp. Gen. 899, distinguished.

Comptroller General Warren to the President, United States Civil Service Commission, December 4, 1941:

There has been considered your letter of October 15, 1941, Ret: GB: JH, CSR-475206, as follows:

This office is in receipt of a retirement record account (Form 2806) showing retirement deductions under the act of May 29, 1930, in the case of Donovan A. Lawless, former assistant material engineer, Bureau of Aeronautics, Navy Department, Washington, D. C., on which the total amount due was $1,002.15. A letter has been received from the Navy Department in regard to a claim against Mr. Lawless in the amount of $28.88 representing overpayment of salary for the period February 12, 1941, to February 15, 1941, which amount that office would like to have deducted from the amount due Mr. Lawless as refund. The balance of $973.27 was paid to Mr. Lawless on September 30, 1941. Mr. Lawless has been fully advised of the claim filed against him and under date of October 8, 1941, objected to the proposed set-off.

All correspondence pertaining to this claim is forwarded herewith for verification and issuance of appropriate instructions. It will be appreciated if you will return the inclosed correspondence with your reply, which this office would like to have in duplicate.

It appears from the records of this office that on January 28, 1941, Donovan A. Lawless filed his resignation worded as follows:

1. I hereby tender my resignation as assistant materials engineer in the office of the Permanent Working Committee of the Aeronautical Board, to take effect at the expiration of my annual leave time accrued on February 11, 1941. 2. I am resigning to accept a position with the Reynolds Metals Company at Louisville, Kentucky.

The resignation thus tendered was accepted by letter dated February 7, 1941, in the following language:

1. Your resignation as assistant materials engineer, P-2, with pay at the rate of $2,600 per annum, chargeable to the appropriation "Aviation, Navy," is hereby accepted, without prejudice, effective at the close of business February 11, 1941.

First indorsement dated March 6, 1941, on the above-quoted acceptance letter, reads as follows:

From: Chief of the Bureau of Aeronautics.

To: Donald A. Lawless, Third & Eastern Parkway, Louisville, Kentucky. 1. Delivered.

John B. May,

Chief Clerk.

With reference to a claim filed by Mr. Lawless for annual leave accrued but not granted at time of separation the Chief, Bureau of Aeronautics, reported under date of June 20, 1941, to the Assistant Secretary of the Navy, as follows:

1. The Bureau submits the following information in compliance with the request in the second endorsement:

2. Mr. Lawless checked with the time clerk to determine his accrued annual leave and was told that his earned annual leave would carry him from 12 February 1941 through close of business 24 February 1941. It was understood by the time and pay-roll clerk that he would be carried on the pay roll through 24 February, and on this basis Mr. Lawless was paid for the period of 1 February through 15 February.

The pay-roll clerk upon finding that Mr. Lawless' resignation had been interpreted by the Chief Clerk's office as requesting the Secretary of the Navy to accept his resignation as of close of business 11 February 1941, called the Secretary's office by telephone and explained that the resignation had been misinterpreted and requested that the date be changed to 24 February. The reply given by the Secretary's office was that the papers had been written accepting Mr. Lawless' resignation on 11 February; therefore, nothing could be done about it.

4. Mr. Lawless was carried on pay roll and paid through 15 February 1941 on appropriation “Aviation, Navy," 1941, the amount of $108.33 less $3.80 retirement fund, by chief disbursing officer, G. F. Allen, on D. O. VO #1,425,372, Symbol 50-011. According to the bureau's records, Mr. Lawless was entitled to $65.00 pay less $2.28 retirement fund, for the nine (9) days covering period from 16 February through 24 February 1941.

5. If Mr. Lawless had written his resignation to take effect at the close of business 24 February 1941, the possibility of misinterpretation would have been eliminated.

It thus appears that the resignation by Mr. Lawless was not accepted in the same terms upon which submitted and further that the acceptance was not in fact communicated to him until March 6,


In the circumstances the acceptance of the resignation was without force and effect to defeat the employee's statutory right to annual leave. See section 7 of the Annual Leave Regulations. In submitting and forwarding the claim to this office the administrative office recommended its disallowance upon the basis of the decision of this office, A-84582, March 30, 1937, reported in 16 Comp. Gen. 899, in which it was held:

The rule that there is no law authorizing payment after separation from the service for annual leave accrued but not taken prior thereto as announced in decision in 16 Comp. Gen. 28, and prior published decisions, is for general application irrespective of whether the separation was subsequent or prior to January 1, 1936, the effective date of the annual leave act of March 14, 1936, 49 Stat. 1161, and there may be no restoration to the status of employee solely for the purpose of granting leave in such cases, notwithstanding the failure to grant such leave prior to separation was because of administrative misunderstanding or negligence.

However, that decision is not applicable to the present case as this employee was not effectively separated from the service prior to the time his leave would have expired February 24, 1941. As the employee's resignation was expressly to become effective after the expiration of his accrued leave and he was not otherwise informed prior

to the expiration of the leave there seems required here the conclusion that he is entitled to the compensation of his position for the entire period of the accrued leave to his credit.

Accordingly, the appropriate disbursing office may be instructed to draw a check to the order of Donovan A. Lawless for the amount heretofore withheld from the amount of his credit in the retirement fund to cover the debt believed by the Navy Department to be owing by him to the United States.

As requested the enclosures forwarded with your letter are returned herewith, and there is enclosed an extra copy of this decision.





The monthly base pay of $126 established by section 12 (a) of the Selective Training and Service Act of September 16, 1940, for enlisted men of the first grade is not applicable to chief petty officers of the Navy under acting appointment, and, therefore, the computation of their active duty pay, or their retainer or retired pay under the act of August 21, 1941, should continue to be made on the basis of the base pay of $99 per month specifically established for such officers by section 10 of the act of June 10, 1922. Where, prior to July 1, 1922, an enlisted man of the Navy was transferred to the Fleet Naval Reserve under the act of August 29, 1916, as a petty officer, first class, and by reason of advancement thereafter, while on active duty during the World War, his retainer pay was computed on the pay of a chief petty officer under decisions of the former Comptroller of the Treasury, which latter pay was saved to him under section 3 of the act of May 31, 1924, the only adjustment of his retainer or retired pay under the act of August 21, 1941, would be for computation on the rating of petty officer, first class.

Assistant Comptroller General Elliott to the Secretary of the Navy, December 4, 1941:

I have your letter of October 30, 1941, transmitting a letter from the Officer in Charge, Retainer Pay Division, Bureau of Supplies and Accounts, dated October 23, 1941, as follows:

1. Passage of Public Law 236, 77th Congress, providing for adjustment of the inactive-duty pay of certain transferred and retired members of the Fleet Reserve, raises questions regarding prospective disbursements to be made by me, as hereinafter outlined.

Public Law 236 is quoted:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That enlisted men of the Navy and Marine Corps who were transferred to the Fleet Reserve prior to October 1, 1940, after completion of sixteen or twenty years of service, and all such transferred members of the Fleet Reserve who were subsequently retired prior to October 1, 1940, shall, from and after October 1, 1940, be entitled to retainer pay or retired pay computed on the basis of the increased rates of base pay and longevity pay provided for enlisted men by section 12 of the Selective Training and Service Act of 1940: Provided, That nothing in this Act shall operate to reduce the pay now being received by any such enlisted men."


Section 12 of the act of 16 September 1940 is quoted:

"SEC. 12 (a) The monthly base pay of enlisted men of the Army and the Marine Corps shall be as follows: Enlisted men of the first grade, $126; enlisted men of the second grade, $84; enlisted men of the third grade, $72; enlisted men of the fourth grade, $60; enlisted men of the fifth grade, $54; enlisted men of the sixth grade, $36; enlisted men of the seventh grade, $30; except that the monthly base pay of enlisted men with less than four months' service during their first enlistment period and of enlisted men of the seventh grade whose inefficiency or other unfitness has been determined under regulations prescribed by the Secretary of War, and the Secretary of the Navy, respectively, shall be $21. The pay for specialists' ratings, which shall be in addition to monthly base pay, shall be as follows: First class, $30; second class, $25; third class, $20; fourth class, $15; fifth class, $6; sixth class, $3. Enlisted men of the Army and the Marine Corps shall receive, as a permanent addition to their pay, an increase of 10 per centum of their base pay and pay for specialists' ratings upon completion of the first four years of service, and an additional increase of 5 per centum of such base pay and pay for specialists' ratings for each four years of service thereafter, but the total of such increases shall not exceed 25 per centum. 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.

"(b) The pay for specialists' rating received by an enlisted man of the Army or the Marine Corps at the time of his retirement shall be included in the computation of his retired pay.

"(c) The pay of enlisted men of the sixth grade of the National Guard for each armory drill period, and for each day of participation in exercises under sections 94, 97, and 99 of the National Defense Act, shall be $1.20.

"(d) No back pay or allowances shall accrue by reason of this Act for any period prior to October 1, 1940.

"(e) Nothing in this Act shall operate to reduce the pay now being received by any retired enlisted man.

"(f) The provisions of this section shall be effective on and after October 1, 1940. Thereafter all laws and parts of laws insofar as the same are inconsistent herewith or in conflict with the provisions hereof are hereby repealed."

Section 10 of the act of 10 June 1922 is quoted in part:

"On and after July 1, 1922, for purposes of pay, enlisted men of the Navy and Coast Guard shall be distributed in seven grades, with monthly base rates of pay as follows: First grade, $126; second grade, $84; third grade, $72; fourth grade, $60; fifth grade, $54; sixth grade, $36; seventh grade, $21. Chief petty officers under acting appointment shall be included in the first grade at a monthly base pay of $99."

2. For the purpose of rendering comparison easy, the base pay of enlisted men of the Navy, as prescribed by section 10 of the act of 10 June 1922 and by section 12 of the act of 16 September 1940, is tabulated by grades:

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1 CPO (AA). Not stipulated.

During first 4 months' service and applicable to men whose inefficiency or unfitness has been determined by the Secretary of the Navy.

3. By the provisions of Public, 236, it is clear that Fleet Reservists or retired enlisted men, in grade 7, are entitled to have their retainer or retired pay adjusted and that the computation should be based on the $30 rate rather than

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