(3) The employment is terminated by an employee's voluntary resignation before compensatory time off is utilized.

(4) The employee is transferred to a different governmental agency before having an opportunity to utilize compensatory time off.

(5) The employee is inducted into the armed forces under such conditions that it is not possible to utilize the compensatory time off.

(6) The employment is terminated without the employee's consent. If you shall feel the situation permits of your doing so, I will be pleased to have the benefit of your answers to these questions at your convenience.

Section 2 of the War Overtime Pay Act of 1943, approved May 7, 1943, 57 Stat. 76, Public Law 49, contains the following proviso:

And provided further, That in lieu of overtime compensation for work in excess of forty-eight hours in any administrative workweek, the heads of departments, establishments, and agencies may in their discretion grant per annum employees compensatory time off from duty.

Pursuant to that statutory provision, the discretion to substitute compensatory time off from duty for overtime compensation for service in excess of 48 hours per week in any administrative workweek, clearly is vested in the administrative office, rather than in the employee. Compare 22 Comp. Gen. 745, 807. Compensatory time off from duty is not to be regarded as additional leave of absence which must be applied for by an employee. On the contrary, when the additional time is served, the administrative office has the duty and responsibility under the regulations quoted in your letter, of excusing the employee from duty, within 90 days from the time the excess overtime was worked, for a period corresponding to the excess overtime worked. If an administrative office, through its own fault or neglect or for its own convenience, fails to grant the compensatory time by the end of the 90-day period-regardless of whether the employee has requested it-the employee becomes entitled to payment of overtime compensation for such excess overtime. Question (1) is answered accordingly.

Referring to questions (2) to (6), inclusive, the primary right under section 2 of the War Overtime Pay Act of 1943, and the quoted regulation, is to be paid additional compensation on the basis of an overtime formula for all work in excess of 40 hours per week with only an option in the head of the department, establishment or agency concernedto be exercised within a period of 90 days-to grant compensatory time off from duty in lieu of paying the additional compensation on the basis of the overtime formula for work in excess of 48 hours per week. Of course, if the head of a department, establishment, or agency concerned be prevented from fully exercising the option to grant compensatory time off from duty within the 90-day period as a result of any fault or voluntary action on the part of the employee, it would follow that the employee would not be entitled to the additional compensation for the overtime in excess of 48 hours per week. But in any other case of failure to grant the compensatory time within

the 90-day period—that is, not involving any fault or voluntary action on the part of the employee-the overtime compensation should be paid.

Accordingly, liability to pay overtime compensation would not result under the state of facts presented in questions (2) and (3), and neither would there be liability under the facts stated in question (4) if the transfer resulted from the request of the employee, but there would be liability to pay overtime compensation in the case of an involuntary transfer pursuant to war manpower directives. Also, liability would result under the state of facts presented in questions (5) and (6).

(B-36898)

COMMISSIONED OFFICERS PROMOTED ABOVE ELIGIBLE GRADE WHILE OCCUPYING ON RENTAL BASIS GOVERNMENT-OWNED QUARTERS Under the acts of September 9, 1940 and October 14, 1940, as amended, authorizing officers of the Army, Marine Corps, Navy and Coast Guard not above the grade of captain or lieutenant, senior grade, to occupy on a rental basis quarters in Government-owned low-cost defense houses constructed under authority of the said acts, an officer promoted above the eligible grade while occupying such a house may not be permitted to continue indefinitely to occupy it on a rental basis, but may continue such occupancy only until the expiration of the rental term current at the time of such disqualification, or until the expiration of a reasonable time to permit him to find suitable quarters elsewhere.

While low-cost defense houses constructed under authority of the acts of September 9, 1940 and October 14, 1940, as amended, may be rented only to officers not above the grade of lieutenant, senior grade, in the Navy and Coast Guard and the grade of captain in the Marine Corps, such houses, if under the jurisdiction of the Secretary of the Navy and not needed for the purpose for which authorized, may be assigned to officers above the eligible grades on a nonrental or public quarters basis, in which event the officers would not be entitled to rental allowance.

Assistant Comptroller General Yates to the Secretary of the Navy, October 5, 1943:

Reference is made to your letter of September 6, 1943, as follows:

There is forwarded herewith a copy of a letter from the Chief of the Bureau of Yards and Docks, Navy Department, dated 10 August 1943, with enclosure of copy of a letter from the General Counsel, National Housing Agency, dated 31 July 1943, relative to the question as to whether section 201 of title IV of the Naval Appropriation Act for the fiscal year 1941 (Public Law 781-76th Congress, approved 9 September 1940; 54 Stat. 883), as amended by the Act of 26 October 1942 (56 Stat. 988), and section 2 of the Act of 14 October 1940 (Public Law 849-76th Congress, 54 Stat. 1126), as amended by the Act of 21 January 1942 (56 Stat. 11), may be construed to permit officers and their families to remain in low-cost defense houses constructed from funds made available under the cited Acts where, after occupancy, the officers have received promotions carrying them above the grades eligible for admission.

Your decision is requested as to whether officers who have been promoted above the grade of lieutenant, senior grade, in the Navy and Coast Guard and above the grade of captain in the Marine Corps, if permitted to continue to occupy on a rental basis low-cost defense houses constructed under the cited statutes, will be entitled to payment of rental allowance for the period during which such houses are occupied.

Sections 201 and 202 of the act of September 9, 1940, 54 Stat. 883, 884, provide:

Sec. 201. To the President for allocation to the War Department and the Navy Department for the acquisition of necessary land and the construction of housing units, including necessary utilities, roads, walks, and accessories, at locations on or near Military or Naval Establishments, now in existence or to be built, or near privately owned industrial plants engaged in military or naval activities, which for the purposes of this Act shall be construed to include activities of the Maritime Commission, where the Secretary of War, the Secretary of the Navy, or the Chairman of the Maritime Commission shall certify that such housing is important for purposes under their respective jurisdiction and necessary to the national defense program, $100,000,000: Provided, That the average unit cost of such housing projects, including acquisitions of land and the installation of necessary utilities, roads, walks, accessories and collateral expenses shall not be in excess of $3,500: Provided further, That in carrying out the purposes of this section the Secretary of War and the Secretary of the Navy may utilize such other agencies of the United States as they may determine upon: Provided further, That the Secretary of War and the Secretary of the Navy, at their discretion, are hereby authorized to rent such housing units, upon completion, to enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged, or to be engaged, in industries essential to the military and naval national defense programs, including work on ships under the control of the Martime Commission. The Secretary of War and the Secretary of the Navy are further authorized to use such rentals as may be collected from each housing project for the management and maintenance of the housing units therein, including utilities, roads, walks, and accessories, and to set up special reserve accounts for the amortization of the cost of the project: Provided further, That the authority of existing law for the negotiation of cost-plus-a-fixed-fee contracts shall be applicable to housing projects for which funds may be made available to the War and Navy Departments or the Maritime Commission. Sec. 202. This title may be cited as "Title IV of the Naval Appropriation Act for the fiscal year 1941." [Italics supplied.]

Section 2 of the act of October 26, 1942, 56 Stat. 988, provides:

Sec. 2. The third proviso under the caption "Navy Department" in title IV of the Naval Appropriation Act for the fiscal year 1941 approved September 9, 1940 (54 Stat. 883), is amended by inserting between the words "to" and "enlisted" in line 3 of the third proviso the following: "officers of the Army and Marine Corps not above the grade of captain, and officers of the Navy and Coast Guard, not above the grade of lieutenant, with families, assigned to duty at naval or military reservations, posts, or bases, or to duty at defense industries, to", so that the third proviso as amended shall read: "Provided further, That the Secretary of War and the Secretary of the Navy, at their discretion, are hereby authorized to rent such housing units, upon completion, to officers of the Army and Marine Corps not above the grade of captain, and officers of the Navy and Coast Guard, not above the grade of lieutenant, with families, assigned to duty at naval or military reservations, posts, or bases, or to duty at defense industries, to enlisted men of the Army, Navy, Marine Corps with families, to field employees of the Military and Naval Establishments with families, and to workers with families who are engaged, or to be engaged, in industries essential to the military and naval national defense programs, including work on ships under the control of the Maritime Commission. The Secretary of War and the Secretary of the Navy are further authorized to use such rentals as may be collected from each housing project for the management and maintenance of the housing units therein, including utilities, roads, walks, and accessories, and to set up special reserve accounts for the amortization of the cost of the project :." [Italics supplied.]

The act of October 14, 1940, 54 Stat. 1125, 1126, provides in pertinent part:

Section 1. In order to provide housing for persons engaged in national-defense activities, and their families, in those areas or localities in which the President

shall find that an acute shortage of housing exists or impends which would impede national-defense activities and that such housing would not be provided by private capital when needed, the Federal Works Administrator (hereinafter referred to as the "Administrator") is authorized:

Sec. 2. As used in this Act (a) the term "persons engaged in national-defense activities" shall include (1) enlisted men in the naval or military services of the United States; (2) employees of the United States in the Navy and War Departments assigned to duty at naval or military reservations, posts, or bases; (3) workers engaged or to be engaged in industries connected with and essential to the national defense; (b) the term "Federal agency" means any executive department or office (including the President), independent establishment, commission, board, bureau, division, or office in the executive branch of the United States Government, or other agency of the United States, including corporations in which the United States owns all or a majority of the stock, directly or indirectly.

Section 2 of the above act was amended by section 2 of the act of January 21, 1942, 56 Stat. 11, by adding a fourth group of "persons engaged in national-defense activities" as follows:

(4) officers of the Army and Marine Corps not above the grade of captain, and officers of the Navy and Coast Guard, not above the grade of lieutenant, senior grade, assigned to duty at naval or military reservations, posts, or bases, or to duty at defense industries

*

Executive Order 9070, February 24, 1942, provides in part:

By virtue of the authority vested in me by Title I of the First War Powers Act, 1941, approved December 18, 1941 (Public Law 354, 77th Congress), and as President of the United States, it is hereby ordered as follows:

1. The following agencies, functions, duties, and powers are consolidated into a National Housing Agency and shall be administered as hereinafter provided under the direction and supervision of a National Housing Administrator:

*

(f) All functions, powers, and duties relating to defense housing of (1) the Federal Works Administrator under the act of October 14, 1940, entitled "An Act to expedite the provision of housing in connection with national defense, and for other purposes," as amended, and under acts making appropriations to carry out the purposes of said act, (2) the War Department and the Navy Department with respect to housing units for persons (with families) engaged in national defense activities (except housing units located on military or naval reservations, posts, or bases) under Title IV of the Naval Appropriation Act for the fiscal year 1941 *

*

10. All housing now owned by the United States and located on a military or naval reservation, post, or base is hereby transferred to the jurisdiction of the War or Navy Department, respectively, having jurisdiction of such reservation, post or base:

*

Prior to the amendment of October 26, 1942, to the act of September 9, 1940, supra, it was held that since the earlier act authorized the renting of houses constructed thereunder to certain designated persons not including officers of the Navy, the authority granted did not extend to renting the houses to officers. It was further held that any houses constructed under the authority of the above act of September 9, 1940, and not needed for the purpose for which authorized, might be assigned to officers on a nonrental basis, in which case the officers would not be entitled to rental allowance, as they would be occupying public quarters. 21 Comp. Gen. 444. The reasoning em

ployed in that decision would appear to be for application in the interpretation of the act of September 9, 1940, as amended by the act of October 26, 1942, and of the act of October 14, 1940, as amended by the act of January 21, 1942. That is to say, that the classes of officers not included in said acts and amendments as eligible to rent the houses here concerned are excluded from the exercise of that privilege. An officer so excluded, may, however, be assigned quarters in one of said houses, if it is under the jurisdiction of the Secretary of the Navy and is not needed for the purpose for which authorized, on a nonrental or public quarters basis. No reason appears for a different conclusion in the case of an officer who becomes ineligible to rent a house constructed under authority of the subject statutes, by reason of a promotion in grade, subject to original occupancy. The statutes clearly would not permit such an officer, after promotion, to rent other premises constructed thereunder nor may they be construed to authorize a continued, indefinite rental of the same premises after promotion.

The War Department, in advocating the amendatory provision incorporated in the act of January 21, 1942, and the Navy Department, in advocating the like provision incorporated in the act of October 26, 1942, stressed the fact that such amendments would relieve the burden of high rental costs to officers of the lower grades, not above lieutenant, senior grade, etc. Nowhere in the language of the amendatory provisions or in their legislative histories is there any intimation that the Congress or the sponsors of the amendments contemplated that the requested relief would, under any circumstances, be extended to officers above the grades alleged to be in need of such relief.

Accordingly, you are advised that officers promoted above the grade of lieutenant, senior grade, in the Navy and Coast Guard and above the grade of captain in the Marine Corps may not be permitted to continue to occupy on a rental basis houses constructed under the authority of the act of September 9, 1940, 54 Stat. 883, as amended by the act of October 26, 1942, 56 Stat. 988, or under authority of the act of October 14, 1940, 54 Stat. 1125, as amended by the act of January 21, 1942, 56 Stat. 11. However, the statutes do not contemplate, of course, that an officer promoted above the grades mentioned shall be required to vacate an occupied house immediately upon such promotion. On the contrary, they may be regarded as contemplating that an officer who occupies such premises may, upon subsequent promotion, continue in the premises on a rental basis either until the expiration of the rental term current at the time of such disqualification, or until the expiration of a reasonable period of time to permit the officer to find suitable quarters elsewhere.