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When they return to such duty, of course, the question will immediately be raised as to whether or not they are entitled to longevity placement accruing while in the military service.

In view of the foregoing, the Commissioners would appreciate your early advice on the following questions:

(1) Whether members of the police and fire departments called into military service pursuant to law are required to pay into the Policemen and Firemen's Relief Fund monthly during such period of training the 342 percent normally required be deducted from their basic salaries;

(2) If the answer to the first question is in the negative, whether upon their return to duty they are required to pay into the fund a lump sum amount equal to 342% of their basic salaries for the number of months during which they were in the military service;

(3) If the answer to the first question be in the negative, and the answer to the second be in the affirmative, then would it be proper to permit payment monthly during the period while in the military service;

(4) If the answers to questions 1 and 2 are both in the negative, whether the period during which such members were on military leave shall be included in computing the service of such member in his department for the purpose of determining his eligibility for voluntary retirement;

(5) Whether privates of the police and fire departments are entitled, upon return to duty in their departments, to occupy the positions formerly held by them at the annual salary increases which they would have received had they remained in the service;

(6) Whether public school teachers and officials called into active military service pursuant to law would be required during their training to pay into the Teachers' Retirement Fund monthly the usual retirement deductions required to be made from their salary;

(7) Whether public school teachers and officials called into military service pursuant to law would be required upon their return to the Public Schools to pay into the Teachers' Retirement Fund the usual retirement deductions required to be made from their salary before they would be entitled to receive the benefits of such services under the acts relating to the retirement of public school teachers and officials;

(8) Whether the public school teachers and officials upon return to the positions formerly held by them in the public schools would be entitled to longevity placement corresponding to that which they would have received had they not been called into the military service.

Section 8 of the Selective Training and Service Act of 1940, approved September 16, 1940, 54 Stat. 890, provides in pertinent part as follows:

SEC. 8. (a) Any person inducted into the land or naval forces under this Act for training and service, who, in the judgment of those in authority over him, satisfactorily completes his period of training and service under section 3 (b) sh•]] be entitled to a certificate to that effect upon the completion of such period of training and service, which shall include a record of any special proficiency or merit attained. In addition, each such person who is inducted into the land or naval forces under this act for training and service shall be given a physical examination at the beginning of such training and service and a medical statement showing any physical defects noted upon such examination; and upon the completion of his period of training and service under section 3 (b), each such person shall be given another physical examination and shall be given a medical statement showing any injuries, illnesses, or disabilities suffered by him during such period of training and service.

(b) In the case of any such person who, in order to perform such training and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives such certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within forty days after he is relieved from such training and service

(A) if such position was in the employ of the United States Government, its Territories or possessions, or the District of Columbia, such person shall be restored to such position or to a position of like seniority, status, and pay ;

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(c) Any person who is restored to a position in accordance with the provisions of paragraphs (A) or (B) of subsection (b) shall be considered as having been

on furlough or leave of absence during his period of training and services in the land or naval forces, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces, and shall not be discharged from such position without cause within one Fear after such restoration.

(d) Section 3 (c) of the joint resolution entitled “Joint Resolution to strengthen the common defense and to authorize the President to order members and units of reserve components and retired personnel of the Regular Army into active military service," approved August 27, 1940, is amended to read as follows:

"(c) Any person who is restored to a position in accordance with the provisious of paragraphs (A) or (B) of subsection (b) shall be considered as having been on furlough or leave of absence during his period of active military service, shall be so restored without loss of seniority, shall be entitled to participate in insurance or other benefits offered by the employer pursuant to established rules and practices relating to employees on furlough or leave of absence in effect with the employer at the time such person was ordered into such service, and shall not be discharged from such position without cause within one year after such restoration."

The retirement of policemen and firemen of the District of Columbia is controlled by section 12 of the act of September 1, 1916, 39 Stat. 718, and section 5 of the act of July 1, 1930, 46 Stat. 839. The earlier law appears to be a codification, or reenactment of a number of earlier laws granting various retirement benefits. See the acts of February 25, 1885, 23 Stat. 316, 317; June 11, 1896, 29 Stat. 404; February 28, 1901, 31 Stat. 820; March 1, 1905, 33 Stat. 821; March 31, 1906, 34 Stat. 95; February 27, 1907, 34 Stat. 1003; May 26, 1908, 35 Stat. 296; and March 4, 1909, 35 Stat. 1066.

The retirement of teachers of the public schools of the District of Columbia is controlled by the act of January 15, 1920, 41 Stat. 387, as amended by the act of June 11, 1926, 44 Stat. 727.

In none of the retirement statutes applicable to policemen, firemen, or teachers of the District of Columbia is there any provision express or implied authorizing the counting of military or naval service in computing longevity for retirement purposes, or which authorizes the purchase of such service for retirement purposes at the option of the policemen, firemen, or teachers through deposit of retirement deductions that otherwise would have been made except for such military or naval service. Compare the provisions of section 5 of the Civil Retirement Act of May 29, 1930, 46 Stat. 472, which expressly authorizes the inclusion of “periods of honorable service in the Army, Navy, Marine Corps, or Coast Guard of the United States” and provides that

in the case of an employee, however, who is eligible for and elects to receive a pension under any law, or retired pay on account of military or naval service, or compensation under the War Risk Insurance Act, the period of bis military or naval service upon which such pension, retired pay, or compensation is based shall not be included, but nothing in this act shall be so construed as to affect in any manner his or her right to a pension, or to retired may, or to compensation under the War Risk Insurance Act in addition to the annuity herein provided. In view of this express provision in the Civil Retirement Act which tends to evidence the fact that when the Congress intends military or

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naval service to be included in determining retirement benefits of civilian employees it expressly so provides, and in the absence of a corresponding provision in any statute applicable to policemen, firemen, or teachers of the District of Columbia, it is the view of this office that under existing laws the counting of such military or naval service as may be rendered under the Selective Training and Service Act or Public Resolution No. 96 of August 27, 1940, 54 Stat. 858, is not a benefit coming within contemplation of the phrase, “benefits offered by the employer pursuant to established rules and practices relating to employees (policemen, firemen, and teachers] on furlough or leave of absence in effect with the employer at the time such person was inducted into such forces," appearing in the Selective Training and Service Act and Public Resolution No. 96, supra. Neither could the counting of military or naval service toward retirement reasonably be regarded as a right of "seniority” which is saved by said statutes. Furthermore, military or naval service may give rise to claims for pensions or retirement pay as a member of the military or naval forces of the United States, which fact, in the absence of a specific statute on the subject, similar to that contained in the Civil Retirement Act, tends to strengthen the stated view. It follows, therefore, that policemen, firemen, and teachers of the District of Columbia are not required or authorized to contribute to their retirement funds either currently while in the military or naval service, or upon restoration to their civilian positions, for the period of military or naval service.

The act of July 1, 1930, 46 Stat. 839, so far as it relates to automatic increases in compensation of policemen and firemen, provides as follows:

That the annual basic salaries of the officers and members of the Metropolitan police force shall be as follows:

privates, a basic salary of $1,900 per year, with an annual increase of $100 in salary for five years, or until a maximum salary of $2,400 is reached. All original appointments of privates shall be made at the basic salary of $1,900 per year, and the first year of service shall be probationary.

Sec. 2. That the annual basic salaries of the officers and members of the fire department of the District of Columbia shall be as follows:

privates, a basic salary of $1,900 per year, with an annual increase of $100 in salary for five years, or until a maximum salary of $2,400 is reached. All original appointments of privates shall be made at the basic salary of $1,900 per year, and the first year of service shall be probationary.

Sec. 4. That no annual increase in salary shall be paid to any person who, in the judgment of the Commissioners of the District of Columbia, has not rendered satisfactory service, and any private who fails to receive such annual increase for two successive years shall be deemed inefficient and forthwith removed from the service by the commissioners:

The act of June 4, 1924, 43 Stat. 367, fixing the salaries of teachers of the public schools of the District of Columbia, prescribes a number

a of classes with a minimum and maximum salary rate for each class, and provides for “an annual increase in salary of $100” for a varying

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number of years. The act further provides in section 6 (q) and section 7, respectively, 43 Stat. 373, as follows:

That in crediting experience in teaching of any person who has been absent from his duties as a teacher because of military service the said board is hereby authorized to include naval, military, or other service with the armed forces of the United States Government or its allies as the equivalent of teaching experience:

ARTICLE V.-METHOD OF PROMOTION OF EMPLOYEES

Sec. 7. That on July 1, 1925, and on the first day of each fiscal year thereafter, if his work is satisfactory, every permanent teacher, school officer, or other employee shall receive an annual increase in salary within his salary class or position as hereinbefore provided without action of the Board of Education.

Both the Selective Training and Service Act of 1940, approved September 16, 1940, and Public Resolution No. 96, dated August 27, 1940, expressly provide that employees "shall be so restored without loss of seniority.” In decision of May 20, 1941, 20 Comp. Gen. 789, wherein was considered a similar question relating to employees of the Postal Service entitled to automatic promotions, it was stated

Advancement in automatic grade and salary rate based on length of service is a form of benefit based on seniority. If the employees were not advanced upon their return to their civilian positions based upon length of service while in the military service, they would lose seniority, that is, their relative standing with those employees who remained in their civilian positions. Also, the quoted provision from the Selective Training and Service Act and the corresponding provision in Public Resolution of August 27, 1940, may be considered in the light of the provisions of section 107 and the last part of section 818, Title 39, U. S. Code, specifically authorizing the counting of military service in the World War in determining the advancement of regular and substitute postal employees.

Accordingly, referring to the concluding paragraph of your letter, no administrative action making adjustments in grade and salary rate of postal employees should be taken during the absence of the employees on military duty, the benefits of the Selective Training and Service Act and Public Resolution of August 27, 1940, being available only upon restoration to civilian positions. However, upon restoration to their civilian positions under the terms and conditions of said statutes, regular postal employees may be advanced to the grade and salary rate to which they would have been advanced had their military service been in the postal service in accordance with existing laws and regulations.

What was stated in the decision just quoted is particularly applicable to teachers of the public schools of the District of Columbia who are expressly authorized by law to count military and naval service in computing longevity for the purpose of automatic promotions. See 7 Comp. Gen. 266. Although there is no corresponding express provision applicable to policemen and firemen of the District of Columbia I think that the words, “shall be restored without loss of seniority," appearing in the Selective Training and Service Act of 1940, and Public Resolution No. 96 of August 27, 1940, manifest a clear intention on the part of the Congress that the right granted by law to Federal or District of Columbia employees to automatic promotions based on length of service, should not be disturbed or affected by the military or naval services rendered under said Selective Training and Service Act of 1940 and Public Resolution No. 96, and that

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if and when restored to their civilian positions in accordance with the provisions of said statutes upon completion of the military or naval service required under said statutes they should be restored with the automatic grade or salary to which they would have advanced had their military or naval service been as civilian officers or employees.

In the light of the foregoing, questions (1), (2), and (4) are answered in the negative, making it unnecessary to answer question (3); question (5) in the affirmative; questions (6) and (7) in the negative; and question (8) in the affirmative.

(B-18638)

DOUBLE COMPENSATION LIMITATIONS-APPLICABILITY TO RETIRED

ARMY ENLISTED MEN

Retired Army enlisted men are not subject to the dual compensation limita

tions of the acts of July 31, 1894, May 10, 1916, and June 30, 1932, except that under the latter act an Army enlisted man retired on account of service as a commissioned officer during the World War who accepts a civilian position must have his retired pay reduced to a rate not in excess of the rate he would have received if he had retired on enlisted service, only, if the combined rate of the salary of the civilian position and the retired pas computed on account of commissioned service would exceed $3,000 per

annum.

A retired Army enlisted man whose retired pay is so reduced as to exclude the

benefit he acquired under the act of June 6, 1924, to be retired as a warrant officer on account of having served as a commissioned officer during the World War, may be employed as a military instructor in the District of Columbia public schools even though the salary rate of the civilian position and his reduced retired pay exceeds the $3,000 per annum limitation of

section 212 of the act of June 30, 1932. Comptroller General Warren to the Acting President, Board of Commissioners,

District of Columbia, July 24, 1941: The late president, Board of Commissioners, submitted for my consideration the matter presented in his letter of July 5, 1941, as follows:

The superintendent of schools has requested that there he submitted to your office for consideration the question as to whether Captain Elijah Reynolds. United States Army, retired, who at the time of his retirement was an enlisted man in the United States Army. may be appointed as military instructor in the public schools of the District of Columbia, regardless of retirement pay and compensation that he will receive as such instructor from the District Government.

The Superintendent states that:

“The necessity for this ruling results from the fact that several of our military instructors are being ordered to report for one year's active duty with the regular army beginning on or about February 7, 1.941, making it necessary for the school officers to fill their positions temporarily. It is most desirable that an opinion from the Comptroller General should be rendered as soon as possible as these appointments should take effect immediately on the departure of the instructors involved."

There is also quoted below a letter received from the Finance Department of the United States Army, dated December 19, 1940, relative to the rights of Captain Reynolds to receive his retirement pay and at the same time be employed by the District Government, indicating that it would not be in violation of the dual employment statutes:

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