and on the basis of the month for sick leave, rather than on the basis of the number of days in their administratively established work week of 40 hours. Comptroller General Warren to the Secretary of War, April 30, 1942: I have your letter of April 17, 1942, as follows: On January 19, 1942, Orders "A" were issued establishing hours of auty or employees in the departmental and field services of the War Department. A copy of the orders is inclosed herewith. It is now reported to this office by the Commanding General of the Services of Supply that serious difficulties have been experienced in administering these orders from an efficient operating standpoint, because of lack of flexibility which prevents local commanding officers from dealing with their particular operating problems in the most efficient manner; and he has submitted a draft, inclosed herewith, marked “B,” of new orders to supersede the Orders "A" of January 19, 1942. After a conference with a representative of your office, new orders on this subject have been drafted by this office, and a copy of this draft is also inclosed herewith, marked "C." As the difficulties encountered by your office in auditing accounts which involve hours of labor and overtime, leave of absence or absence without pay, etc., are increased by lack of clarity in the regulations, it is requested that you indicate which of the new drafts or orders will, in your opinion, best accomplish the desired purpose. The proposed order, designated as (C), reads as follows: 1. Orders "A," January 19, 1942, are hereby rescinded. 2. All departmental and field activities of the War Department will be open for business on a 7-day week basis. Offices and activities in the District of Columbia will be open for business between the hours of 8:15 a. m. and 5:00 p. m. every day including Sunday. The starting hours of employees in the field service outside of the District of Columbia will be fixed by commanding officers or higher authority, in accordance with local conditions. 3. The following conditions will govern the hours of work of employees in the field service of the Department: a. An administrative work-week of 40 hours, exclusive of periods for lunch, is hereby established for all employees in the field service of the Department. All annual and sick leave will accumulate and be charged on the basis of five 8-hour days of work per week. [Italics supplied.] b. Commanding officers or higher authority will require work in excess of 40 hours or of five days per week, except when not justified by local conditions. It will be the policy of the Department to work employees 8 hours overtime per week, except those individuals or classes of employees who cannot be efh ciently employed the extra 8 hours. c. The tour of duty of employees within an administrative 40-hour work week will be set by commanding officers or higher authority in accordance with local conditions, and overtime compensation for work in excess of 40 hours per week will be paid to those employees eligible therefor in accordance with current regulations and under existing legislation and executive orders. d. Laborers and mechanics will not be employed for more than eight hours per day except on projects for work on which the eight-hour law has been suspended, by Act of July 2, 1940 (54 Stat. 714; 5 U. S. C. 189 A), by executive order, or by specification of the Secretary of War under an executive order. 4. The following conditions will govern hours of work for employees in the Jepartmental service of the Department: a. The hours of work in offices working only one shift will be from 8:15 a. m. to 5:00 p. m., to include 45 minutes for lunch. The Chiefs of Bureaus, Staff Organizations, and Operating Divisions are hereby authorized to make minor changes in these hours to provide for second and third shifts. b. An administrative work week of 48 hours, six &-hour days, per week, exclusive of periods for lunch, is hereby established for all employees in the departmental service. Work in excess of 48 hours may be required by the Chiefs of Bureaus, Staff Organizations, Administrative Services, Operating Divisions, or Commands when it is essential that work be completed immediately. 5. Refusal on the part of any employee to work in excess of the administrative work weeks herein prescribed will be the basis for disciplinary action by the Department. 6. These Orders will be effective May 1, 1942. The fixing of hours of work for Federal employees is the responsibility of the administrative office, the jurisdiction of this office with respect thereto extending only to a determination that expenditures for salary or wages are authorized under the law. 17 Comp. Gen. 3. There appear to be four 40-hour week statutes applicable to various classes of employees of the War Department, which, in the order of their enactment, are as follows: (1) Section 23 of the act of March 28, 1934, 48 Stat. 522; The weekly compensation, minus any general percentage reduction which may be prescribed by Act of Congress, for the several trades and occupations, which is set by wage boards or other wage-fixing authorities, shall be reestablished and maintained at rates not lower than necessary to restore the full weekly earnings of such employees in accordance with the full-time weekly earnings under the respective wage schedules in effect on June 1, 1932: Provided, That the regular hours of labor shall not be more than forty per week; and all overtime shall be compensated for at the rate of not less than time and one-half. (2) Section 4 (b) of the act of July 2, 1940, 54 Stat. 714; Notwithstanding the provisions of any other law, the regular working hours of laborers and mechanics employed by the War Department, who are engaged in the manufacture or production of military equipment, munitions or supplies shall be eight hours per day or forty hours per week during the period of any national emergency declared by the President to exist: Provided, That under such regulations as the Secretary of War may prescribe, such hours may be exceeded, but compensation for employment in excess of forty hours in any workweek, computed at a rate not less than one and one-half times the regular rate, shall be paid to such laborers and mechanics. (3) Act of October 21, 1940, 54 Stat. 1205; That notwithstanding the provisions of any other law, compensation for employment in excess of forty hours in any administrative workweek computed at a rate not less than one and one-half times the regular rate is hereby authorized to be paid at such places and to such monthly, per diem, hourly, and piecework employees of the field services of the War Department and the field services of the Panama Canal whose wages are set by wage boards or other wage-fixing authorities, and also to professional and subprofessional employees, and to blueprinters, photostat and rotaprint operators, inspectors, storekeepers, toolkeepers, and shop superintendents of the CAF service, as defined by the Classification Act of March 4, 1923 (42 Stat. 1488; 5 U. S. C. ch. 13), as amended, as shall be designated from time to time by the Secretary of War or the Governor of the Panama Canal, as the case may be, and the Secretary of War and the Governor of the Panama Canal are authorized to prescribe for their respective services, regulations for overtime employment for said employees or any of them: Provided, That in determining the overtime compensation of the foregoing per annum Government employees the pay for one day shall be considered to be one three-hundred-and-sixtieth of their respective per annum salaries. Sec. 2. The provisions of this Act shall be effective during the national emergency declared by the President on September 8, 1939, to exist, and shall terminate June 30, 1942, unless the Congress shall otherwise provide. (4) Section 1 of the act of June 3, 1941, 55 Stat. 241; That compensation for employment in excess of forty hours in any administrative workweek computed at a rate of one and one-half times the regular rate is hereby authorized to be paid, under such regulations as the President may prescribe, to those per annum employees in the field service of the War Department, the Panama Canal, the Navy Department, and the Coast Guard, whose overtime services are essential to and directly connected with the expeditious prosecution of the overtime work upon which the employees enumerated in section 5 (a) of the Act of June 28, 1940, and section 1 of the Act of October 21, 1940, are engaged: Provided, That in determining the overtime= 470350m-42- -63 compensation of the foregoing per annum employees the pay for one day shall be considered to be one three-hundred-and-sixtieth of the respective per annum salaries. See, also, Executive Order No. 8837, dated July 30, 1941, issued under the last above-quoted statute. As overtime compensation at the rate of not less than time and one-half is authorized or required to be paid for work in excess of 40 hours per week under all of the quoted statutes, it is necessary for the administrative office to fix a regular tour of duty of 40 hours per week, during which the regular rate of compensation is payable in order that overtime compensation at the overtime rate may be properly computed for work in excess of 40 hours in any adminis trative work week. Decision of November 3, 1941, B-21237; 21 Comp. Gen. 471, 473. It is within administrative discretion to fix the reg ular tour of duty of 40 hours per week, that is, to select the days of the week during which the 40 hours' work is to be performed. 13 Comp. Gen. 307; 18 id. 206. The usual practice has been to fix such tour of duty as eight hours per day on any five days of the week-that appearing to be the plan adopted in the proposed order quoted above. Annual and sick leaves of absence are chargeable on the basis of the number of days per week included in the regular 40-hour tour of duty of the employees, which tour of duty, under the proposed order, is five 8-hour days per week. 13 Comp. Gen. 295; id. 370; 14 id. 351. Leave of absence is not allowable or chargeable for absence on any day of the week outside of the regular tour of duty of the employees even though they may be ordered to work overtime on such days. See the provisions of the Leave Act of March 2, 1940, 54 Stat. 38. Compare decision of April 2, 1942, B-24647, 21 Comp. Gen. 901. While per annum employees for whom the Secretary of War fixes a 40-hour, 5-day week, pursuant to the acts of October 21, 1940, or June 3, 1941, above-quoted, would receive their regular annual compensation for days outside of their regular tour of duty without working (unless withheld as a disciplinary measure for refusal or failure to work on such days as proposed under paragraph 5 of the quoted order), nevertheless, annual or sick leave with pay, which is synonymous with a duty status, may not be granted or charged for days outside the regular tour of duty of the employees. The 40-hour week statutes above quoted, applicable to per annum employees, clearly contemplate payment of overtime compensation only for actual work performed in addition to 40 hours per week. While annual and sick leaves of absence occurring within the regular tour of duty of such employees may be included as a part of the 40 hours, there is no authority to grant or charge annual or sick leave for any day for which overtime compensation at overtime rates would be payable had the employee worked. However, leave of absence does not accumulate on the basis of the number of days in the regular tour of duty of the employees, but on the basis of the year for annual leave and on the basis of the month for sick leave. See the provisions of the annual and sick leave acts of March 14, 1936, 49 Stat. 1161 and 1162. Hence, the words "accumulate and," appearing in paragraph 3 (a) of the proposed order, supra, which I have emphasized for ready identification, should be eliminated therefrom. With that suggested amendinent, it is the view of this office that the above-quoted proposed order, designated in your letter as (C), rather than the order designated as (B), would meet the terms and conditions of the controlling statutes and the needs of this office in the audit of accounts. (B-25053) RESTRICTION ON The prohibition in the Military Appropriation Act of 1942 against the use of funds appropriated thereby for payments to "any person, civil or military, not a citizen of the United States" does not operate as a restriction on the payment of pay and allowances to native-born or naturalized citizens of the United States who, after losing their United States nationality under section 401 of the act of October 14, 1940, by reason of conviction of wartime desertion from the Army, have been reenlisted or restored to duty. Assistant Comptroller General Elliott to the Secretary of War, May 1, 1942: There has been considered your letter dated April 4, 1942, as follows: There has been brought to my attention a problem involving the pay of military personnel who are restored to duty following the suspension, and the remission of the unexecuted portion, of a court-martial sentence imposed on conviction of desertion in wartime. In the Army it has long been the practice, in worthy cases, to suspend the execution of an adjudged dishonorable discharge until the soldier's release from confinement so that, if his behavior in the meantime warrants, the unexecuted portion of the sentence may be remitted and the soldier restored to duty. This practice has been of inestimable value in the rehabilitation and conservation of manpower. It However, since the advent of war, a question has arisen in the case of persons convicted of wartime desertion and thereafter restored to duty. appears that such persons upon conviction lose their United States nationality (citizenship) by virtue of the provisions of section 401 (g) of the Nationality Act of 1940 (act Oct. 14, 1940, 54 Stat. 1168; 8 U. S. C. 801). It is believed that citizenship so lost can be restored, short of remedial legislation, only by the exercise of the pardoning power of the President and is not affected by the remission of the sentence or restoration to duty. Under such circumstances the applicability of the restriction, contained under the heading "Pay of the Army" in the Military Appropriation Act, 1942 (act June 30, 1941, Public Law 139, 77th Cong.), as to the use of funds appropriated thereby for the pay of noncitizens, has been questioned on the theory that the intent of the Congress was to impose restrictions primarily on payments to aliens, other than those of the excepted classes, and not on payments to United States citizens who may have lost their nationality by operation of law. This theory finds some support in the fact that, in a later law (act July 29, 1941, Public Law 189, 77th Cong., amending R. S. 1118), the Congress empowered the Secretary of War to authorize the enlistment of deserters in special meritorious cases, which authorization, as to persons convicted of wartime desertion, would be a nullity if such persons could not be paid. Your decision is therefore respectfully requested whether persons reenlisted, or restored to duty, after conviction by court martial of wartime desertion can he paid under the Military Appropriation Act, 1942, supra, or from any other appropriated funds. As there are a number of cases of this nature pending, your decision at the earliest practicable date will be greatly appreciated. Section 2 of the act of March 4, 1915, 38 Stat. 1084, 1085 (10 U. S. C. 1457), provides in part: Whenever he shall deem such action merited the Secretary of War may remit the unexecuted portions of the sentences of offenders sent to the United States Disciplinary Barracks for confinement and detention therein, and in addition to such remission may grant those who have not been discharged from the Army an honorable restoration to duty, and may authorize the reenlistment of those who have been discharged or upon their written application to that end order their restoration to the Army to complete their respective terms of enlistment, and such application and order of restoration shall be effective to revive the enlistment contract for a period equal to the one not served under said contract. The same act, 38 Stat. 1062, 1074 (10 U. S. C. 1457a), contains the following provision: * Provided further, That the authority now vested in the Secretary of War to give an honorable restoration to duty, in case the same is merited. to general prisoners confined in the United States disciplinary barracks and its branches shall be extended so that such restoration may be given to general prisoners confined elsewhere * Section 401 of the act of October 14, 1940, 54 Stat. 1168, 1169 (8 U. S. C. 801), provides: A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: * (g) Deserting the military or naval service of the United States in time of war, provided he is convicted thereof by a court martial; Commencing with the act of July 1, 1937, 50 Stat. 446, acts making annual appropriations for the military establishment have contained a prohibition against the use of the funds appropriated for payments to persons not citizens of the United States, except as indicated therein. The Military Appropriation Act, 1942, Public Law 139, approved June 30, 1941, 55 Stat. 369, making appropriations for the fiscal year ending June 30, 1942, contains the following provision under the heading "Pay of the Army": Provided further, That no part of this or any other appropriation contained in this Act shall be available for the pay of any person, civil or military, not a citizen of the United States, unless in the employ of the Government or in a pay status on July 1, 1937, under appropriations for the War Department, nor for the pay of any such person beyond the period of enlistment or termination of employment, but nothing herein shall be construed as applying to instructors of foreign languages at the Military Academy, to selective trainees, or to Filipinos in the Army Transport Service, or to persons employed outside of the continental limits of the United States except enlisted men of the Regular Army, other than Philippine Scouts, upon expiration of enlistment, and this provision shall be subject to the provisions of the Act entitled |