A provision similar to the above was contained in section 1 of the act of June 10, 1922, as amended, 45 Stat. 1186, 1187, and with respect thereto it was provided in the act of June 19, 1942, 56 Stat. 372, as follows:

That, effective from September 8, 1939, for the purpose of determining both active duty and retired pay of commissioned warrant officers of the Navy, including such officers advanced in rank pursuant to the provisions of the Act approved June 21, 1930 (46 Stat, 793), the phrase "with creditable records on the active list" appearing in section 1 of the Act approved June 10, 1922, as amended (45 Stat. 1187), shall be construed to include, as service on the active list, service on active duty heretofore or hereafter performed subsequent to retirement. Since that particular phrase is used, also, in the Pay Readjustment Act of 1942, enacted contemporaneously with the said act of June 19, 1942, and in the same connection as in the act of June 10, 1922, there would appear to be little doubt that the prescribed interpretation applies likewise to the same language in the said Pay Readjustment Act. It follows that if the commissioned warrant officer referred to in the above question had not been temporarily promoted he would have been entitled, when released from active duty, to count the active duty subsequent to his retirement in the computation of his retired pay. When retired he had, in addition to 21 years enlisted and warrant service, 9 years commissioned service, and, counting his active duty since retirement, he now has over 10 years commissioned service. Accordingly, he now may be paid retired pay based on the highest pay of his grade as a commissioned warrant officer with over 10 years commissioned service retired pursuant to the act of May 13, 1908, 35 Stat. 128, after 30 years service, if his retired pay, thus computed, exceeds that to which he is entitled incident to his advancement and retirement under the provisions of the said act of July 24, 1941. See decision of August 11, 1936, A-67898.

The fourth question presented is stated as follows:

A lieutenant of the Regular Navy with 12 years and 4 months commissioned service was placed on the retired list under the provisions of Section 1453 Revised Statutes for physical disability incurred in line of duty on October 1, 1931. He was called to active duty on December 15, 1939 and on February 26, 1942 was temporarily promoted to the rank of lieutenant commander. Under the decision of January 19, 1943 [22 Comp. Gen. 664], this officer is entitled to count commissioned service while on the retired list from October 1, 1931 to December 15, 1939, in the computation of longevity and period pay increases which entitled him to the pay of the fourth pay period plus longevity increase of 35 per cent. This officer was placed on the retired list on February 1, 1943 under the provisions of Section 8 (c) and (e) of reference (a) for physical disability incurred in line of duty while serving in a higher rank. Is such officer entitled to retired pay computed as 75 per cent of the active duty pay which he was receiving when placed on the retired list on February 1, 1943, or under the provisions of Section 15 of reference (a) is he entitled to retired pay computed on the basis of the pay prescribed for lieutenant commander with over 15 years' service (total of active commissioned service prior and subsequent to transfer to the retired list) for pay purposes?

Section 8 (c) of the act of July 24, 1941, quoted above, provides that an officer of the retired list of the Regular Navy or Marine Corps who

was placed thereon by reason of physical disability shall, if he incurs physical disability while serving under a temporary appointment in a higher rank, be advanced on the retired list to such higher rank with retired pay "at the rate of 75 per centum of the active-duty pay to which he was entitled while serving in that rank."

Sections 8 (e) and 10 of the act of July 24, 1941, 55 Stat. 604, 605, provide:

(e) The benefits of this section shall apply only to an individual who incurs physical disability in line of duty in time of war or national emergency. In the case of those officers to whom subsection (c) hereof is applicable retirement in the next higher rank shall be effected upon a finding by a naval retiring board that the disability was incident to the service while on active duty in the higher rank and upon a rating by such board, in accordance with regulations prescribed by the Secretary of the Navy, at not less than 30 per centum permanent disability. In all other cases officers shall be retired in accordance with existing law providing for the retirement of officers.

SEO. 10. Personnel appointed or advanced under the authority of this Act may be continued in their temporary status during such period as the President may determine, but not longer than six months after the termination of war or national emergency. Upon the termination of their temporary status such personnel shall, unless otherwise provided herein, revert to their permanent grades, ranks, or ratings, but upon being subsequently retired or in the case of retired officers returned to an inactive status, they shall, on condition that their performance of duty under such temporary appointments has been satisfactory, be placed on the retired list, or advanced thereon as the case may be, with the highest rank held by them while on active duty: Provided, That except where specific provision is made otherwise, their retired pay shall be based on the pay of the rank or rating held at the time of retirement: Provided, further, That nothing in this Act shall entitle such personnel, when recalled to active duty, to any other rank or rating than that in which they were serving at the time of retirement.

The last sentence of section 8 (e) lends support to the view, if such were necessary, that the retirement pay benefits intended to be conferred upon retired officers who are advanced on the retired list for physical disability under section 8 (c), with 75 per centum of the active duty pay to which entitled while serving in their higher temporary rank, are specific and are not subject to the limitations contained in the general provision of section 15 of the Pay Readjustment Act of 1942, which authorizes increases in retired pay only for active duty performed subsequent to retirement. The facts stated in this case indicate that the officer, previously retired as a lieutenant for physical disability, upon call to active duty on December 15, 1939, had completed 12 years and 4 months commissioned service, and under the provisions of section 1 of the Pay Readjustment Act of 1942, as amended by the act of December 2, 1942, supra, he was entitled to be credited with 9 years, 2 months and 15 days inactive time on the retired list for the purpose of computing his active duty pay and allowances while serving in his temporary rank of lieutenant commander, 22 Comp. Gen. 664. The resulting increase in his active duty pay was pursuant to a permanent pay provision in the said Pay Read

justment Act, as amended, and, thus, was a part of the active duty pay to which he was entitled while serving in the temporary rank on which retirement pay is authorized to be computed. Giving effect not only to the provisions of sections 15 and 1 of the Pay Readjustment Act of 1942, as amended, but, also, to the evident purpose and intent of section 8 (c) of the act of July 24, 1941, the conclusion appears to be clear that this officer's retired pay, effective from February 1, 1943, is for computation at the rate of 75 per centum of the active duty pay to which he was entitled while serving in the temporary rank of lieutenant commander, including that part of such active duty pay which resulted from counting inactive service on the retired list prior to his recall to active duty and temporary appointment to such higher rank. The fifth question is stated as follows:

A chief petty officer, with over 18 years of enlisted service, was appointed a temporary commissioned warrant officer effective August 1, 1942. Under the provisions of Public Law 777 of November 30, 1942 he has been credited with the pay of a warrant officer with equivalent length of service or $2,340 per annum. He is to be placed on the retired list on March 1, 1943 under the provisions of Section 8 (a) of reference (a). Is such officer entitled to retired pay computed as 75 percent of the active duty pay which he was receiving at time of retirement, and may he continue to draw retired pay at that rate when temporary appointment authorized by reference (a) ordinarily expires by limitation on the basis that transfer to the retired list in his temporary rank is tantamount to permanent promotion to that rank? In this connection, attention is invited to the fact that if entitled only to retired pay computed on the basis of a chief warrant officer with equivalent length of service, his retired pay would be reduced from $1,755 to $1,575 per annum. Section 8 (a) of the act of July 24, 1941, supra, provides that an officer or enlisted man retired under the conditions recited therein shall be retired in his temporary higher rank with retired pay "at the rate of 75 per centum of the active-duty pay to which he was entitled while serving in that rank." Thus the retired pay to which a temporary commissioned warrant officer appointed from a permanent enlisted grade is entitled under section 8 (a) is not necessarily the per centum of the active duty pay of the temporary rank in which serving but is 75 per centum of the active duty pay "to which he was entitled while serving in that rank”, which might be the permanent pay of that rank or the permanent pay of some other rank authorized by law under the cir

cumstances.

Section 7 (a) of the said act of July 24, 1941, as amended by the act of November 30, 1942, 56 Stat. 1023, provides, in pertinent part:

That enlisted men who are temporarily appointed to commissioned rank under the authority of this Act shall be entitled to the pay and allowances of warrant officers with equivalent service or to the pay and allowances provided by law for the position temporarily occupied, whichever is the greater

While the active duty rank conferred under the provisions of the act of July 24, 1941, whether by reason of an original temporary appointment or by promotion from a lower rank or grade, is temporary in character, retirement under the provisions of the act entitles the person so retired to retired pay indefinitely. See in this connection the

provisions of section 10. Since the person referred to in this question was entitled under the quoted provision of amended section 7 (a) to the higher pay of a warrant officer while serving as a temporary commissioned warrant officer, he is entitled upon retirement under section 8 (a) of the original act to 75 per centum of such higher pay.

(B-24262)

POSTAL EMPLOYEES-OVERTIME COMPENSATION DURING COMPENSATORY TIME OFF ON SATURDAYS FOR WORK ON SUNDAYS OR HOLIDAYS

Under the provisions of sections 117, 118, and 832, Title 39, U. S. Code, controlling the hours of work, and overtime compensation or compensatory time for work on Saturdays, Sundays, and holidays, of postal employees, a postal employee of a class entitled to compensation at the overtime rate for service required on Saturdays as a sixth day of work may not be granted compensatory time off from duty on a Saturday for work on a preceding Sunday or holiday and paid compensation at the overtime rate for the Saturday, on which no work is performed.

Comptroller General Warren to the Postmaster General, July 29, 1943:

I have your letter of July 14, 1943, as follows:

In your decision of March 11, 1942 (B-24262) to me you commented, in part, as follows:

"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.'

On March 27, 1942, sixteen days after the date of the above mentioned decision, section 832, Title 39, U. S. C. was amended (ch. 201, 56 Stat. 188) so as to authorize the payment of overtime for Saturday service rendered by certain groups of postal employees. Pursuant to this amendment I issued Order No. 21116 on April 27, 1943, directing that the minimum 48-hour workweek, previously inaugurated under Senate Joint Resolution 170, be continued in all branches of the postal service where a saving in manpower could be effected. In the same order postmasters were directed to make overtime payments for all service performed on Saturdays by those employees coming within the purview of the Act of March 27, 1942.

For all practical purposes, from the standpoint of service rendered in the field service of the postal establishment, Saturdays are the same as the other days of the week, Monday through Friday, inclusive. A saving in manpower can be effected at some offices and arrangement of the schedules can be facilitated by granting compensatory time on Saturday for service performed on the preceding Sunday or a holiday.

In view of the amendment to section 832 of Title 39 U. S. C., a review of your decision of March 11, 1942, is requested. Under existing statutes and regulations, may an employee otherwise entitled to overtime pay for Saturday service, who is granted compensatory time on Saturday for service rendered on the preceding Sunday or a holiday, be paid at the overtime rate of pay for the number of hours compensatory time granted on Saturday?

Sections 117, 118, and 832 (with the amendment of March 27, 1942, 56 Stat. 188), Title 39, U. S. Code, provide:

§ 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. In computing compensation for such overtime the annual salary or compensation for such employees shall be divided by three hundred and six, the number of working days in the year less all Sundays and legal holidays enumerated in section 119 of this title; the quotient thus obtained will be the daily compensation which divided by eight will give the hourly compensation for such overtime service. (Mar. 4, 1911, ch. 241, § 3, 36 Stat. 1339; Aug. 24, 1912, ch. 389, § 5, 37 Stat. 554; July 28, 1916, ch. 261, § 1, 39 Stat. 416; Feb. 28, 1925, ch. 368, § 4, 43 Stat. 1059.)

§ 118. Compensatory time to foremen, special clerks, carriers, watchmen, messengers, or laborers, at first- and second-class offices for work on Sundays or holidays; overtime in lieu thereof.

When the needs of the service require the employment on Sundays and holidays of foremen, special clerks, clerks, carriers, watchmen, messengers, or laborers at first- and second-class post offices they shall be allowed compensatory time on one day within six days next succeeding the Sunday, except the last three Sundays in the calendar year, and on one day within thirty days next succeeding the holiday and the last three Sundays in the year on which service is performed: Provided, however, That the Postmaster General may, if the exigencies of the service require it, authorize the payment of overtime for service on the last three Sundays in the calendar year or on Christmas Day in lieu of compensatory time. (Mar. 3, 1917, ch. 162, § 1, 39 Stat. 1062; Feb. 28, 1925, ch. 368, § 4, 43 Stat. 1059.)

§ 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 Postoffice 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 Saturdays 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 [Italics supplied.]

In a decision of May 29, 1943, 22 Comp. Gen. 1057, it was held (quoting from the syllabus):

Postal employees who are required by a general administrative order to work on holidays may not be paid overtime compensation for such work, in lieu of compensatory time authorized and required by 39 U. S. Code 118 to be granted postal employees who are required to work on any holiday except Christmas; nor is there any authority to deny postal employees their statutory right to compensatory time for work on such holidays.

Presidential or administrative orders requiring work on legal holidays during the war emergency do not and cannot change the status of such holidays for the purpose of applying statutes and regulations having the force and effect of law granting rights and benefits on the basis of the holidays.

Under section 117 of the U. S. Code, supra, employees are entitled to overtime compensation for work in excess of eight hours per day.