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In decision B-22250, dated January 10, 1942, 21 Comp. Gen. 654, it was stated:

The term "military service" is used twice in that part of section 8 (a), supra, which extends the benefits of the section to personnel of the Regular Army. It is first used to refer to “each month of military service" of “enlisted personnel of the Regular Army" after the date of the enactment. There is no doubt that the military service thus contemplated by the Congress was service as an enlisted man of the Army, and that prior service in the Navy was not intended to be included in computing the 12 months' "total military service" of an enlisted man of the Regular Army under the provisions of section 8 (a) of the Service Extension Act of 1941.

Prior service in the civilian Lighthouse Service of the Commerce Department by an enlisted member of the United States Coast Guard is not military service and may not legally be included with his service as an enlisted member of the Coast Guard for the purposes of section 8 (a) of the Service Extension Act of 1941. Your first question is answered in the negative.

Your second question is not entirely clear. If the pay and allowances of the enlisted man's rating are less than the annual compensation and allowances received by him as a civilian employee of the former Lighthouse Service, section 7 of the act of August 5, 1939, saves to him the higher annual compensation and allowances which attached to his former civilian position. The compensation of the former civilian position in the Lighthouse Service at the time of change in status to that of an enlisted man in the Coast Guard then and there became static, fixed, and thereafter is not subject to variation. It is not understood upon what legal ground the $10 per month additional increase provided in section 8 (a) could form any part of the compensation saved to the enlisted man. As thus understood, your second question must necessarily be answered in the negative.

(B-24234)

COMPENSATION-DOUBLE-LEAVE PAYMENTS TO CIVILIAN EMPLOYEES ON MILITARY DUTY-VOLUNTARY ENLISTEES

A civilian employee who voluntarily enlists in the land or naval forces may not receive payment for accrued civilian annual leave concurrently with military or naval pay, even though the combined rate of such compensation and pay be less than the $2,000 per annum limitation specified in the dual compensation statute of 1916, and no question regarding his leave rights will arise until he has complied with the terms and conditions of section 7 of the Service Extension Act of 1941 entitling him to restoration to his civilian position and he has been so restored.

Acting Comptroller General Elliott to the Secretary of the Interior, March 11, 1942:

I have your letter of February 27, 1942, as follows:

Your ruling is respectfully requested whether an employee who voluntarily enlists in one of the branches of the armed forces for a term of years may be paid for any unused annual leave to his credit if the combined civilian and mili

tary compensation does not exceed $2,000 per annum. Upon a review of the rulings of your office, the Department is led by inference to the thought that such leave might be paid. On the other hand, your ruling in 20 C. G. 258 leaves doubt whether without statutory provision, it would be permissible to compensate a civilian employee for his leave even though the dual compensation statute may not prohibit it.

The act of August 1, 1941, Public Law 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.

Section 7 of the act of August 18, 1941, Public Law 213, 55 Stat. 627, provides as follows:

Any person who, subsequent to May 1, 1940, and prior to the termination of the authority conferred by section 2 of this joint resolution, shall have entered upon active military or naval service in the land or naval forces of the United States shall be entitled to all the reemployment benefits of section 8 of the Selective Training and Service Act of 1940 to the same extent as in the case of persons inducted under said Act:

It has been held in the decisions of this office that employees who voluntarily enlist in the armed forces of the United States are not entitled to the benefits of the statute first above quoted, but that they are entitled to the benefits of the statute last above quoted. That is to say, such employees may not be paid for "their accumulated or current accrued leave" earned in their civilian positions which would extend beyond the time they voluntarily enlisted in the armed forces, but that employees who voluntarily enlist are entitled to the reemployment benefits provided by the Selective Training and Service Act of 1940, 54 Stat. 885, in the same manner as employees who were inducted or ordered into military or naval service. 21 Comp. Gen. 210; id. 403. In the last-cited decision it was held, in effect, that while employees who voluntarily enlist subsequent to May 1, 1940, may be carried in a nominal or conditional furlough or leave-without-pay status while they are in the military or naval service, no right to receive annual leave of absence with pay for any period extending beyond the date of enlistment arises by reason of said statute and that no question regarding leave rights will arise until the employee has complied with the terms and conditions of the statute entitling him to restoration to his civilian position and he has been restored to such position. This rule is applicable whether the combined rate of civilian compensation and pay for service in the military or naval service is more

or less than $2,000 per annum. That is to say, the rule is applicable irrespective of the dual compensation act of 1916.

Accordingly, the question presented is answered in the negative. In connection with the matter presented, reference is made to Bill H. R. 6023, which passed the House of Representatives January 8, 1942, and under which bill, if enacted into law, no distinction would be made between those who voluntarily enter the military or naval service and those who are ordered or inducted into either of said services.

(B-24262)

POSTAL EMPLOYEES-OVERTIME COMPENSATION ON DAY ON WHICH COMPENSATORY TIME IS GRANTED

Special clerks, clerks, and laborers, in first- and second-class post offices, and carriers in the City Delivery Service may be scheduled for work on the same day they are granted compensatory time off from duty in lieu of work which was required on a preceding Saturday, and such time off may be included as a part of the regular 8-hour work day in determining the overtime compensation payable for work required on that day in addition to the 8 hours thus computed, but both compensatory time off and overtime compensation may not be allowed for the same period of the day. Acting Comptroller General Elliott to the Postmaster General, March 11, 1942: I have your undated letter, received here February 28, 1942, as follows:

In Section 464, Postal Laws and Regulations, the law states:

"In cases of emergency, or if the needs of the service require, and it is not practicable to employ substitutes, special clerks, clerks, and laborers, in firstand second-class post offices * ** can be required to work in excess of eight hours per day, and for such overtime service they shall be paid on the basis of the annual pay received by such employees."

In Section 924, the law states:

"In cases of emergency, or if the needs of the service require, and it is not practicable to employ substitutes, carriers in the City Delivery Service can be required to work in excess of eight hours per day, and for such overtime service they shall be paid on the basis of the annual pay received by such employees."

The Department has ruled that an employee must actually work eight hours before he can be allowed overtime pay. This ruling is set forth in Article 31, page 86, of the current Postal Guide, and reads as follows:

"On a day when Saturday compensatory time is given, the number of hours of compensatory time plus the hours of service performed must not exceed 8 hours. For example: If an employee has 5 hours of compensatory time due him, he must not be worked more than 3 hours on the day compensatory time is granted, and his schedule, including 5 hours compensatory time and 3 hours work, must not exceed 8 within 10 hours."

A decision is requested as to whether on a day when an employee is being granted compensatory time he can be scheduled for more than eight hours and be paid overtime for service in excess of eight hours. While he would not be working during the period he is being granted compensatory time, he would be in a pay status.

Sections 117 and 832, Title 39 U. S. Code, provide, in pertinent part, as follows:

117. Hours of work for special clerks, clerks, and laborers in first and second class offices, and carriers in City Delivery Service; overtime pay. Special

clerks, clerks, and laborers, in the first- and second-class post offices and carriers in the City Delivery Service shall be required to work not more than eight hours a day. The eight hours of service shall not extend over a longer period than ten consecutive hours, and the schedules of duty of the employees shall be regulated accordingly. In cases of emergency, or if the needs of the service require, and it is not practicable to employ substitutes, special clerks, clerks, and laborers, in first- and second-class post offices and carriers in the City Delivery Service can be required to work in excess of eight hours per day, and for such overtime service they shall be paid on the basis of the annual pay received by such employees. *

832. Compensatory time or overtime for Saturday or overtime work. When the needs of the service require supervisory employees, special clerks, clerks, laborers, watchmen, and messengers in first- and second-class post offices, and employees of the motor-vehicle and pneumatic-tube services, and carriers in the City Delivery Service and in the village delivery service, and employees of the Railway Mail Service, clerks at Division Headquarters of Post Office Inspectors, employees of the Stamped Envelope Agency and employees of the mail equipment shops; cleaners, janitors, telephone operators, and elevator conductors, paid from appropriations of the First Assistant Postmaster General; and all employees of the Custodial Service except charwomen and charmen and those working part time, to perform service on Saturday they shall be allowed compensatory time for such service on one day within five working days next succeeding the Saturday on which the excess service was performed; Provided, That employees who are granted compensatory time on Saturday for work performed the preceding Sunday or the preceding holiday shall be given the benefits of this section on one day within five working days following the Saturday when such compensatory time was granted: Provided further, That the Postmaster General may, if the exigencies of the service require it, authorize the payment of overtime for service on the last three Saturdays in the calendar year in lieu of compensatory time, except cleaners, janitors, telephone operators, and elevator conductors paid from the appropriation of the First Assistant Postmaster General, and custodial employees who shall be given compensatory time in lieu of overtime pay within thirty days next succeeding:

The portions of sections 464 and 924, Postal Laws and Regulations, 1940, quoted in your letter, are derived from 39 U. S. Code 117, supra.

The statute first above quoted fixes the maximum length of the regular workday of the postal employees in question as 8 hours on any day, including Saturday, and provides for payment of overtime compensation for work required on any day, including Saturday, in excess of 8 hours. The statute last above quoted requires the granting of compensatory time off from duty for work performed on Saturdays. Hence, Saturday may be either a regular workday or nonworkday of an employee but, in either event, regular compensation is paid for Saturday or for the day granted off duty in lieu thereof.

If an employee is required to work on a Saturday, either as a part of his regular tour of duty or in an emergency, he must be allowed a corresponding period of time off from duty on 1 day within the 5 working days next succeeding, and he should receive his regular compensation for the time not worked. In other words, the statute itself grants regular compensation for Saturdays, or for the in lieu day off from duty, without requiring the employee to work. Therefore, the statutory provision for payment of overtime compensation for work actually performed in excess of 8 hours on any 1 day may not be

construed so as to deprive an employee of his right to regular compensation for Saturday or for the in lieu day off from duty which is granted him by law without requiring him to work.

In applying the statutes authorizing payment of overtime compensation for work required in excess of a regular tour of duty, either on a weekly basis or daily basis, this office has held consistently that time off from duty in a pay status authorized by law, such as for annual leave of absence, for holidays, or as compensatory time off with pay, must be regarded as a part of the regular tour of duty and overtime compensation is payable for work actually performed in addition to the regular tour of duty, including the time off therein for which regular compensation is paid. 13 Comp. Gen. 295; id. 370; id. 444; 14 id. 761; 16 id. 757; 18 id. 191; id. 575; 20 id. 555; decision of January 30, 1942, B-23172, 21 id. 724. That rule is equally applicable in determining the right to overtime compensation for extra work in excess of the regular 8-hour daily tour of duty of postal employees prescribed by law.

On that basis the time off from duty with pay on a day administratively granted in lieu of work required on Saturday may be included as a part of the regular day of 8 hours of postal employees for the purpose of computing and paying overtime compensation for work required on that day in excess of 8 hours. A postal employee of the class in question may be scheduled for work on the same day he is granted time off from duty in lieu of work required on Saturday, but both compensatory time off from duty and overtime compensation may not be allowed for the same period of the day. 10 Comp. Gen. 487: 16 id. 243. The question presented is answered in the affirmative.

(B-24235)

COMPENSATION-WITHIN-GRADE PERIODIC AND MERITORIOUS

PROMOTIONS

Upon the transfer or reappointment of an employee from one Federal agency to another, whether in the same or different grade, it is within administrative discretion-but not mandatory-if funds are available, to fix his initial salary in the new position at such prescribed rate of the grade as will save to him the benefit of a within-grade salary advancement under the act of August 1, 1941, to which he previously had become entitled. 21 Comp. Gen. 791, amplified. Where employees were transferred or reappointed from one Federal agency to another at the same or reduced salaries, either in the same or different grades, during the period between October 1, 1941, when their first within-grade salary advancements under the act of August 1, 1941, became effective, and the date of actual payment of such increases, it is within administrative discretionbut not mandatory-if funds are available, to fix at this time their initial salaries, effective on the date of the transfer or reappointment, in the new positions at such prescribed rate of their grades as will save to them the benefits of the salary advancements. 21 Comp. Gen. 791, amplified.

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