In view of the provision that substitutes shall be granted the rights and benefits with respect to annual and sick leave that accrue to regular employees in proportion to the time actually employed and, as set out by the above tabulation, regular employees are employed only 168.66 hours per month or 2,024 hours per annum, a clarification of your ruling is requested with respect to the following questions:

(1) Will annual leave accrue to each substitute clerk and carrier at the rate of 1.25 days for each 168.66 hours worked which is the number of hours a regular clerk or carrier is employed each month?

(2) In a similar manner will sick leave accrue to substitute clerks and carriers at the rate of 6.66 hours for each 168.66 hours employed?

(3) May a substitute clerk or carrier earn annual leave in excess of 1.25 days per month providing he is not credited with an amount exceeding 15 days per year?

(4) Similarly, may a substitute clerk or carrier earn sick leave in excess of 6.66 hours per month providing he is not credited with an amount exceeding 10 days per year?

In the decision of August 9, 1939, 19 Comp. Gen. 177, the first alternative of question No. 2 was stated as follows:

2. If your decision be that credit is permissible only for service performed subsequent to July 18, 1939, may credit be currently allowed at the rate of 14 days annual leave for each 204 hours of employment and 10/12 of a day sick leave be allowed for each 204 hours of employment *

The answer to that question, which was in the affirmative, was based upon the provisions of 39 U. S. Code 104, providing in pertinent part, as follows:

Substitute clerks in first- and second-class post offices and substitute letter carriers in the City Delivery Service when appointed regular clerks or carriers shall have credit for actual time served, including time served as special-delivery messengers, on a basis of one year for each three hundred and six days of eight hours served as substitute or messenger

See the first sentence of the answer to question No. 2, in said decisionquoted in the first paragraph of your letter.

Referring to the third paragraph of your letter, while annual and sick leave may be charged to postal employees only on the days within their regular tour of duty, exclusive of Saturdays, Sundays and holidays, such leave does not accrue to postal employees upon that basis, but rather, upon the basis of the fiscal year including every calendar day thereof. See 39 U. S .Code 823. Accordingly, since 39 U. S. Code, 104, fixes 2,448 hours of substitute service as the equivalent of one year's service of a regular employee (306 days of 8 hours each) there is no basis of law for crediting a year's annual and sick leave to substitute postal employees for each 2,024 hours of substitute service as suggested.

Accordingly, all four questions presented in your letter are answered in the negative.

(B-40619)

PAY-DISCHARGES AND DISMISSALS-SUBSEQUENT

REINSTATEMENT

Where, upon the setting aside by the Secretary of the Navy of a Coast Guard Reserve enlisted man's court-martial sentence to a bad conduct discharge,

the man was given the option of returning to the naval service and surrendering his discharge or of returning his discharge for reissue as of a character warranted by his record, payment of the pay and allowances of his rating for the intervening period between the date of his discharge and the date of his return to duty in accordance with the option is not authorized. Assistant Comptroller General Yates to the Secretary of the Navy, March 31, 1944:

There has been considered your letter of March 3, 1944, in which you request decision whether, under the circumstances stated in a letter dated February 23, 1944, from the United States Coast Guard, Earl K. Bruin, apprentice seaman, United States Coast Guard Reserve, legally is entitled to the active duty pay and allowances of his rating from August 21, 1943, to January 5, 1944. The said Coast Guard letter of February 23, 1944, presents the following facts:

1. On March 24, 1943, Earl K. Bruin, Seaman second class, USCGR, was tried by summary court martial for (1) absent over leave 2 days, 16 hours, 30 minutes; (2) for drunkenness; and was sentenced to forty (40) days confinement and a bad conduct discharge. The convening authority on March 27, 1943, approved the sentence but the bad conduct discharge was remitted provided Bruin maintained a satisfactory record for a period of six months.

2. During Bruin's probationary period, on May 24, 1943, he went absent without leave until May 27, 1943, 3 days, and as a result of summary court martial for this offense on July 12, 1943, was sentenced to 30 days' confinement and loss of pay of $25.00. The sentence was approved July 20, 1943.

3. Under date of August 20, 1943, Bruin was issued a bad conduct discharge from the Coast Guard Reserve pursuant to the sentence of summary court martial held on March 24, 1943. On October 30, 1943, by your direction, so much of the sentence of the summary court martial, as adjudged a bad conduct discharge, was set aside for the reason that the sentence of the court imposed more than one of the separate punishments which it was legally empowered to adjudge.

4. By reason of the action in setting aside the bad conduct discharge, Bruin was advised on November 15, 1943, that if he desired to complete his term of enlistment in the Coast Guard Reserve to report to the District Coast Guard Officer, 5th Naval District, Norfolk, Virginia, or in case he did not desire to return to the Coast Guard, to forward his discharge certificate for reissue to another type of discharge warranted by his record. He reported as instructed on January 6, 1944, and was immediately assigned to duty at the Coast Guard Barracks, Little Creek, Virginia. Sections 9 and 17 of the act of February 16, 1909, 35 Stat. 621, 623, provide:

Sec. 9. That the Secretary of the Navy may set aside the proceedings or remit or mitigate, in whole or in part, the sentence imposed by any naval court-martial convened by his order or by that of any officer of the Navy or Marine Corps.

*

Sec. 17. That all sentences of summary courts-martial may be carried into effect upon the approval of the senior officer present, and all sentences of deck courts may be carried into effect upon approval of the convening authority or his successor in office.

The said section 17 of the act of February 16, 1909, was amended by the act of August 29, 1916, 39 Stat. 556, 586, which reads—

No sentence of a summary court-martial shall be carried into execution until the proceedings and sentence have been approved by the officer ordering the court, or his successor in office, and by his immediate superior in command: Provided, That if the officer ordering the court, or his successor in office, be the senior officer present, such sentence may be carried into execution upon his approval thereof.

In a decision dated January 11, 1936, A-68890, there was considered the case of an enlisted man of the Navy who had been dishonorably

discharged therefrom pursuant to a sentence of a general court martial. In that case after the enlisted man had been discharged, the sentence was mitigated as to character of discharge by the Secretary of the Navy and as mitigated was remitted subject to the enlisted man's conduct for a period of six months. At the time of remission by the Secretary of the Navy the enlisted man was ordered to return to the naval service and he complied with such order without delay. Applying the view expressed in the case of Harris v. Daniels, 279 F. 844, it was held that the enlisted man was not legally out of the service by reason of the dishonorable discharge and that consequently, he was entitled to the pay of his rating from the day following such discharge to the day he returned to the naval service.

The said decision of January 11, 1936, was distinguished in the case of Rey Eugene Deleon, seaman, second class, United States Navy, whose claim for pay and allowances between the date he received a bad conduct discharge and the date he returned to the naval service was considered in a decision dated July 12, 1943, to the Secretary of the Navy, B-33772. Deleon received his discharge pursuant to a sentence by a court martial, which sentence was later remitted by the Secretary of the Navy. After remission of the sentence the enlisted man returned to the naval service in accordance with advice from the Bureau of Naval Personnel that "if he desired to return to Naval custody he should report to Navy Recruiting Station, Seattle, Washington, or if he did not desire to complete his enlistment he should forward to the Bureau of Naval Personnel the bad conduct discharge previously issued so that it might be reissued as of the character warranted by his record." Based upon the permissive nature of the instructions for Deleon's return to duty it was held in the said decision of July 12, 1943, as follows:

it appears that upon the remission of the bad conduct discharge by action of the Secretary, Deleon was given an election, either to return to the Navy or to be regarded as having been discharged, the character of the discharge to be redetermined. Clearly, the action thus taken did not have the effect of automatically restoring the individual involved to the status occupied prior to the finding and sentence. If he had failed either to report for completion of his enlistment or to return his discharge for amendment as to the character thereof, presumably the bad conduct discharge of January 29, 1942, would have been permitted to stand. Also, if he had elected to return the discharge for amendment as to the character thereof, it may be assumed that the effective date of the amended discharge would have remained as January 29, 1942. Under these circumstances it is not reasonable to conclude that the action of Deleon in returning to the Navy almost a year after he had been discharged therefrom could operate to restore him to a pay status during such intervening period.

See, also, decision dated September 21, 1943, B-36797.

In the present case it appears that Bruin was given a bad conduct discharge on August 20, 1943, pursuant to the sentence of a summary court martial, which sentence, insofar as the discharge is concerned, was set aside by the Secretary of the Navy "for the reason that the sentence of the court imposed more than one of the separate punish

ments which it was legally empowered to adjudge." He was given the same option in that connection as was given to Deleon, whose case was considered in the decision of July 12, 1943; that is, he could return to the naval service and surrender his discharge or he could consider himself discharged, merely returning his discharge for reissue as of a character warranted by his record. Actually Bruin returned to the naval service on January 6, 1944, but since his return was left to his choice, if he had failed to return, his bad conduct discharge, amended as to the character thereof, apparently would have been considered an effective termination of his status in the Coast Guard. Accordingly, you are advised that the enlisted man is not entitled to active duty pay and allowances of his rating for the period August 21, 1943 to January 5, 1944.

(B-40735)

PAY ROLLS EVIDENCE REQUIREMENTS FOR ADDITIONAL
IDENTICAL POSITIONS

Where an original position has been previously allocated by the Personnel Classification Division of the Civil Service Commission and an additional identical position is created administratively, the identification on the pay roll of the original position may be made by use of a Civil Service Commission number in lieu of the present procedure which requires a reference to the original position by the name of the incumbent occupying such position. 9 Comp. Gen. 261, modified. The creation of additional positions having duties and responsibilities identical with those of an existing position or positions previously finally allocated in the grade and class within the same bureau or office is a matter for administrative consideration and does not require the approval of the Personnel Classification Division of the Civil Service Commission before an employee may be appointed, promoted, or transferred to such additional position and paid the salary thereof.

Comptroller General Warren to the President, United States Civil Service Commission, April 1, 1944:

I have your letter of March 14, 1944, as follows:

Your approval is requested for a change of explanation given in the “Remarks" column of the Commission's Payroll for Personal Services. It is believed that paper work may be simplified and certain overlapping records may be abolished in our own Personnel Division if Comptroller General's decision A-29340 (9CG261) were modified in respect to reporting appointments to identical additional positions.

The item in question comes under (2) of the above-mentioned decision which reads in part,

"Where the position is 'additional' there should appear in the remarks column of the payroll sufficient information to show (1) the date of creation and placement in a particular grade and class by the administrative office, and (2) reference to the position by name of the incumbent having identical duties and responsibilities previously allocated by the Personnel Classification Board in the same grade and class and under the same bureau, office or other appropriation unit; also date of appointment, official title of the appointing officer, date of entrance on duty and date of oath."

It is proposed that reference to identical additional positions be permitted by use of Civil Service Commission number rather than by name of the incumbent of the model position. For example, instead of

59879644-vol. 23- 49

"Position identical and additional to position occupied by Richard Roe." the payroll note would show,

"Position identical and additional to CSC No.

Identification of duties, service, grade, allocation date, etc. of the model position (previously allocated by the Civil Service Commission) would be accomplished by referring to position number rather than to the name of the person who occupies the model position. Each Civil Service Commission number refers to a job description on file with the Civil Service Commission and therefore provides absolute identification of the position and provides data for a complete audit if desired.

Will you please advise us whether the proposed modification is permissible. The creation of additional positions is a matter for administrative consideration and does not require the approval of the Personnel Classification Division of the Civil Service Commission before an employee may be appointed, promoted, or transferred to such additional position and paid the salary thereof. 9 Comp. Gen. 101. Consequently, under present audit procedure it is required that a reference to the original position by the name of the incumbent occupying such position be shown on the pay roll. This reference permits a determination that the position has been previously allocated and obviates the necessity of again showing on the pay roll the date of receipt in the administrative office of the original allocation of the position.

Since the position previously allocated, to which an additional identical position is created administratively will be identified by number, rather than the name of the incumbent of the former position, the proposed modification will meet the requirements of the audit by this office and, accordingly, is approved.

(B-40885)

COMPENSATION-DOUBLE-LEAVES OF ABSENCE-CONCURRENT EMPLOYMENT BY FEDERAL GOVERNMENT AND UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION

The receipt of compensation by an employee of the Securities and Exchange Commission while on terminal annual leave from that agency concurrently with receipt of compensation as an employee of the United Nations Relief and Rehabilitation Administration-an international agency-would not contravene the dual compensation statute of 1916, it being assumed that if and when funds are provided for by Congress for this country's participation in the Administration such funds will be intermingled with grants made by other allied United Nations and, as such, will lose their status as Federal funds.

Comptroller General Warren to the Chairman, Securities and Exchange Commission, April 1, 1944:

I have your letter of March 21, 1944, as follows:

On March 6, 1944, an employee of the Securities and Exchange Commission voluntarily transferred to the United Nations Relief and Rehabilitation Administration, which agency, according to our information, does not come within the purview of the uniform leave regulations.