B-92196, MARCH 21, 1950, 29 COMP. GEN. 379

B-92196, MARCH 21, 1950, 29 COMP. GEN. 379

COMPENSATION - INCREASES UNDER ACT OF JUNE 30, 1949 - MEMBERS OF U.S. PARK POLICE IN MILITARY FURLOUGH STATUS A MEMBER OF THE UNITED STATES PARK POLICE WHO WAS IN A MILITARY FURLOUGH STATUS ON THE DATE OF ENACTMENT OF THE ACT OF JUNE 30, 1949, WHICH AUTHORIZED A RETROACTIVE INCREASE OF $330 IN THE ANNUAL BASIC SALARY OF SAID PARK POLICE EMPLOYED ON THE DATE OF ENACTMENT, MAY BE CONSIDERED AS HAVING BEEN AN EMPLOYEE ON THAT DATE WITHIN THE MEANING OF SECTION 5 OF THE ACT, SO AS TO BE ENTITLED TO SUCH RETROACTIVE INCREASE IN COMPENSATION.

COMPTROLLER GENERAL WARREN TO FRANK T. GARTSIDE, DEPARTMENT OF THE INTERIOR, MARCH 21, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 20, 1950, REQUESTING DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE PAYROLL VOUCHER, THEREWITH TRANSMITTED, COVERING A PROPOSED PAYMENT IN THE TOTAL AMOUNT OF $174.24 TO JOSEPH T. WIRTH, FOR THE PERIOD AUGUST 1, 1948, TO JANUARY 26, 1949, REPRESENTING THE AMOUNT DUE FOR SAID PERIOD OF THE $330 PER ANNUM INCREASE IN COMPENSATION AUTHORIZED BY PUBLIC LAW 151, APPROVED JUNE 30, 1949--- SAID ACT HAVING PROVIDED FOR THE PAYMENT OF A RETROACTIVE INCREASE IN COMPENSATION FOR THE UNITED STATES PARK POLICE, AND OTHERS.

IT APPEARS THAT ON DECEMBER 30, 1946, MR. WIRTH, WAS FURLOUGHED FOR MILITARY SERVICE; THAT ON AUGUST 1, 1948, HE RETURNED TO DUTY IN HIS FORMER POSITION AS A UNITED STATES PARK POLICEMAN; AND THAT HE AGAIN WAS FURLOUGHED FOR MILITARY SERVICE EFFECTIVE JANUARY 27, 1949. HE WAS IN A DUTY AND PAY STATUS AS A PARK POLICEMAN FROM AUGUST 1, 1948, TO JANUARY 26, 1949, INCLUSIVE.

PUBLIC LAW 151, APPROVED JUNE 30, 1949, 63 STAT. 376, WHICH INCREASED THE ANNUAL BASIC SALARY OF MEMBERS OF THE UNITED STATES PARK POLICE, AND OTHERS, BY $330, EFFECTIVE AS OF "THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1948," CONDITIONED THE PAYMENT OF SAID INCREASE BY THE TERMS OF SECTION 5 THEREOF, 63 STAT. 377, AS FOLLOWS:

NO ADDITIONAL COMPENSATION SHALL BE PAYABLE BY REASON OF THE ENACTMENT OF THIS ACT FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT HEREOF IN THE CASE OF ANY PERSON WHO IS NOT AN EMPLOYEE * * * ON SUCH DATE OF ENACTMENT * *

SINCE MR. WIRTH WAS IN A MILITARY FURLOUGH STATUS ON THE DATE OF ENACTMENT OF THE ACT, YOUR DOUBT IN THE MATTER APPEARS TO BE WHETHER HE WAS "AN EMPLOYEE * * * ON SUCH DATE OF ENACTMENT" AS THOSE WORDS ARE USED IN THE ABOVE-QUOTED PROVISIONS OF THE STATUTE.

THERE ARE FOR CONSIDERATION IN THE CASE OF THOSE PERSONS WHO LEAVE CERTAIN POSITIONS, AFTER JUNE 24, 1948, TO ENTER ON ACTIVE DUTY WITH THE ARMED FORCES OF THE UNITED STATES, THOSE REGULATIONS OF THE UNITED STATES CIVIL SERVICE COMMISSION WHICH HAVE BEEN ISSUED PURSUANT TO AUTHORITY CONTAINED IN SECTION 9 (E) (1) OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 616. SEE, PARTICULARLY, SECTION 35.2 AND SECTION 35.4 OF THOSE REGULATIONS, WHICH LATTER SECTION SPECIFICALLY PROVIDES THAT "ANY EMPLOYEE ABSENT ON MILITARY DUTY SHALL BE CONSIDERED FOR ANY AND ALL PROMOTIONS OR OTHER PERSONNEL ACTIONS FOR WHICH HE WOULD NORMALLY HAVE BEEN CONSIDERED HAD HE NOT BEEN ABSENT ON MILITARY DUTY.' ALSO, SEE, GENERALLY, SECTION 9 OF THE SELECTIVE SERVICE ACT OF 1948, 62 STAT. 614. WHILE NONE OF THOSE PROVISIONS SPECIFICALLY COVERS THE SITUATION PRESENTED, THEY DO SHOW AN UNDOUBTED INTENT THAT CIVILIAN EMPLOYEES SHALL NOT BE PREJUDICED OR DISCRIMINATED AGAINST ON ACCOUNT OF THEIR ENTRANCE UPON ACTIVE DUTY WITH THE ARMED FORCES OF THE UNITED STATES.

IN LINE WITH THAT INTENT MR. WIRTH, WHO IS SHOWN TO HAVE BEEN IN A MILITARY FURLOUGH STATUS ON THE DATE OF THE ENACTMENT OF PUBLIC LAW 151, SUPRA, PROPERLY MAY BE DEEMED TO HAVE BEEN AN EMPLOYEE ON SAID DATE OF ENACTMENT WITHIN THE MEANING OF SECTION 5 OF THE STATUTE. HENCE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT.