1923, as amended, were made and placed in effect on March 16, 1934. As the employees in the Washington regional office were working under the same conditions that apply to the other employees in Washington whose compensation rates are fixed strictly in accordance with the rates prescribed by the Classification Act, it was obviously practicable to fix the rates of compensation in the Washington regional office accordingly. In all such cases, the rates fixed were at the minimum of the classification grade assigned, except in such cases where under the law one of the rates within the grade could be paid.

The positions in the emergency crop- and feed-loan offices at Dallas, Texas; Minneapolis, Minnesota; St. Louis, Missouri, and Salt Lake City, Utah, were allocated to the classification grades of the Classification Act of 1923, effective May 1, 1934. Likewise, the positions in the crop- and feed-loan office at Memphis, Tennessee, were allocated effective June 1, 1934. However, in fixing the rates of compensation to be paid to employees in these field offices located outside the District of Columbia, and with due regard to the requirement imposed upon the Governor by the act of February 23, 1934, that the minimum rates should not be paid unless the Governor found it practicable to do so, appointments to the positions allocated to classification grade CAF-9 or below (with the exception of field inspectors) were made at rates which were, as a general rule, lower than the minimums of the grades assigned. In the case of field inspectors, allocated to grade CAF-4, appointments were made at the minimum of $1,800.00. Likewise, appointments to positions allocated to grade CAF-10 and above were made, as a general rule, at the minimum rates of the grades.

Public Resolution No. 16, approved March 10, 1934, appropriated $40,000,000 to enable the Governor of the Farm Credit Administration to carry into effect the provisions of the Emergency Crop Loan Act of February 23, 1934. Your statement of October 12, 1934, refers to this as an emergency appropriation and to the employees paid thereunder as emergency employees who, under Executive Orders No. 6440 of November 18, 1933, and No. 6746 of June 21, 1934, must be classified unless specifically exempted by the Executive orders themselves. You state that there is no exemption of the employees of the Emergency Crop Loan Section of the Farm Credit Administration in the Executive orders. The pertinent part of Executive Order No. 6746 is as follows:

it is hereby ordered that the heads of existing emergency agencies and of those hereafter created and (except the heads of executive departments and independent establishments) the heads of all other agencies operated in whole or in part from emergency funds, the compensation of the employees of which may be fixed without regard to the Classification Act of 1923, as amended, shall, unless otherwise specifically authorized by me, classify the positions of the employees of their respective agencies now in the service or hereafter appointed in accordance with the following salary schedule and adjust and fix the rates of compensation therefor at amounts not in excess of those prescribed therein for the corresponding grades:

66

It appears that the Farm Credit Administration is specifically exempted from the operation of this order-first, because it is an independent establishment, and, second, because if the Farm Credit Administration were not an independent establishment, it could not, as far as the compensation of Emergency Crop Loan employees is concerned, come within the group of other agencies described as the heads of all other agencies operated in whole or in part from emergency funds, the compensation of the employees of which may be fixed without regard to the Classification Act of 1923, as amended." The latter statement is based upon the specific provisions contained in the act of February 23, 1934, requiring the compensation of employees engaged thereunder to be fixed at rates to correspond, so far as may be practicable, to the rates established by the Classification Act of 1923, and according to no other standard.

In view of the fact that the compensation rates fixed for positions in the emergency crop-loan offices (field) did not, in all cases, correspond to the compensation rates of the Classification Act of 1923, the Farm Credit Administration has not reported to your office the classification rates assigned, in order to avoid probable confusion in reconciling the rates paid with the rates carried by the assigned classification grades. However, in the case of Joseph H. Wright, whose adjustment in compensation for the period March 4 to March 15, 1934, is the subject of your statement of October 12, 1934, you are informed that the position of under clerk, to which Mr. Wright was appointed effective March 4, 1934, was allocated to grade CAF-2 and the

compensation rate fixed in his appointment at $1,440.00 a year is the minimum rate of that classification grade, Mr. Wright having been employed in the Washington regional office where no appointments were made at less than the minimum rate of the classification grade assigned. It is requested that the supplemental pay roll, covering the difference between $1,320.00 and $1,440.00 a year, due Mr. Wright, be certified for payment, and that if, after due consideration of the basis for the action taken by the Farm Credit Administration as stated herein such action is not in accord with your requirements, instructions be issued concerning any adjustments which this Office should make and any special information which should be shown on the pay-roll vouchers.

Your submission apparently has overlooked the provisions of section 2 of the Brookhart Salary Act of July 3, 1930, 46 Stat. 1005, further amending the original Classification Act with regard to the Field Service, as follows:

The heads of the several executive departments and independent establishments are authorized and directed to adjust the compensation of certain civilian positions in the field services, the compensation of which was adjusted by the act of December 6, 1924 (43 Stat. 604), to correspond, so far as may be practicable, to the rates established by the act of May 28, 1928 (U. S. C., Supp. 3, title 5, sec. 673), and by this act for positions in the departmental services in the District of Columbia: *

Based on the words "authorized and directed", this requirement to adjust salary rates in the field service to correspond with salary rates fixed in the District of Columbia under the Classification Act, so far as may be practicable, was held to be mandatory (10 Comp. Gen. 20). The phrase "so far as may be practicable" appearing in section 3 of the Welch Act, cited and stressed by you, as well as in section 2 of the Brookhart Salary Act, supra, has been construed and applied only as vesting in the administrative office a discretion as to the particular grade or salary range prescribed by the act in which said field position is to be placed or allocated. For instance, in decision of December 2, 1929 (9 Comp. Gen. 229, 231), construing section 3 of the Welch Act, it was stated:

By said act all positions are required to be placed or allocated by the administrative office in certain grades with a definite range of salary rates corresponding with the grade and salary range fixed by the Classification Act as amended for the same or similar positions in the District of Columbia, as near as may be practicable. If there are no positions in the District of Columbia corresponding identically with certain positions in the Lighthouse Service, the position must nevertheless be placed or allocated in a definite grade and the salary rates fixed for the positions must be at one of the salary rates prescribed in the range for the grade.

* * *

And in decision of February 10, 1931 (10 Comp. Gen. 349, 352), construing section 2 of the Brookhart Salary Act, it was stated:

On and after July 1, 1928, all salary grades or ranges established by the administrative offices for positions in the field services, comparable to positions subject to the Classification Act should have been the same as some corresponding salary grade or range prescribed by the Classification Act, as amended by the Welch Act of May 28, 1928, and, on and after July 3, 1930, as amended by the Brookhart Salary Act of that date. That is to say, there should have been selected with respect to each group of field positions a departmental grade with

which it most nearly compared or corresponded and the salary range fixed for said grade should be the salary range for the field group. It was recognized that it would not be practicable to find a grade in the departmental service the duties and responsibilities of which would correspond exactly with the duties and responsibilities of each group or class of positions in the field, but it was, of course, practicable to have the salary range of each group or class of field positions exactly the same as the salary range of some grade in the departmental service.

*

*

Also, you contend that the emergency positions under the Farm Credit Administration are exempt from the terms of Executive Order No. 6746, dated June 21, 1934, and, in support of that contention, you quote from the first paragraph of the order wherein there appears in parenthesis "except the heads of executive departments and independent establishments." However, you make no reference to the paragraph of the order immediately following the schedule of salary rates, which provides as follows:

The positions of employees in executive departments and independent establishments who are paid from emergency funds shall be classified under the provisions of the Classification Act of 1923, as amended: Provided, that the heads of such departments and establishments may elect to fix such rates of compensation either under the said Classification Act or in accordance with the salary schedule prescribed in this order.

This requirement is clearly applicable to emergency positions under the Farm Credit Administration. You are advised, therefore, that nothing has been presented in your letter requiring or authorizing any modification in the decision of October 12, 1934, A-57310, 14 Comp. Gen. 309, holding that the employees of the Emergency Crop Loan Section of the Farm Credit Administration paid under appropriations provided by Public Resolution No. 16, of March 10, 1934, 48 Stat. 402, are emergency employees, and that their positions are required to be allocated and their salary rates fixed pursuant to the provisions of the quoted Executive order. Accordingly, the pay rolls must show the grade in which each of such positions has been administratively placed or allocated.

In any case, where a field employee heretofore has been paid less than the minimum salary rate of the grade in which his position would properly be allocated, which condition is indicated by your letter to exist in certain cases, due to the administrative misunderstanding in the matter, an increase in compensation to the minimum salary rate of the grade may now be made during the current fiscal year only on the basis of an administrative promotion, unless the amount of the increase is less than one step in the grade. See section 24 of the act of March 28, 1934, 48 Stat. 523; 13 Comp. Gen. 419; 14 id. 14; id. 75.

The unpaid voucher in favor of Joseph H. Wright, which was the subject of the decision of October 12, proposing payment of compensation for the difference between $1,320 per annum as underclerk, and

$1,400 per annum as clerk, for the period May 4 to 15, 1934, not March 4 to 15, 1934, as stated by you, now returned for certification, fails to show the proper classification of either position. Your letter would seem to indicate that the position of "underclerk " was allocated to grade C. A. F. 2, but the voucher in question is supported by a copy of "changes in personnel" showing that the employee was promoted to the position of clerk, $1,440 per annum, from underclerk, $1,320 per annum, effective May 4, 1934, the reason stated being "change in duties from underclerk $1,320." It would appear, therefore, that the position of clerk and not underclerk has been allocated in grade C. A. F. 2, the minimum salary rate of which is $1,440 per annum. In view thereof, the voucher will be certified for payment.

(A-58709)

RETIREMENT-REEMPLOYMENT—OFFICERS' RESERVE CORPS

A person in a retirement status acquired under section 8 (a) of the act of June 16, 1933, 48 Stat. 305, because of involuntary separation from the service after 30 or more years, would, if temporarily reemployed under the Government in a civilian capacity, automatically reacquire a status under the retirement law, and retirement deductions should be taken from the salary of such person during the period of temporary employment. There is no provision of law which prohibits the receipt of civilian retirement annuity and active military pay as a member of the Officers' Reserve Corps when called to active duty.

Comptroller General McCarl to the President, United States Civil Service Commission, November 30, 1934:

There has been received your letter of October 8, 1934, as follows: In your decision of August 23, 1933, A-50660, you advised the Administrator of the National Recovery Administration that officers or employees retired under the provisions of section 8 (a), Independent Offices Appropriation Act, 1934, approved June 16, 1933, were eligible for appointment or employment, but pursuant to the last sentence of the said section their retirement annuity would automatically cease upon such employment or appointment and that the retirement status of such reemployed retired personnel upon subsequent separation from the service would be a matter primarily for consideration by the Veterans' Administration (now the Civil Service Commission).

In decision of November 11, 1933, to the Administrator of Veterans' Affairs in construing the terms of section 8 (a) you stated that:

"If an employee is temporarily reemployed while in a retirement status acquired under section 8 (a) of the act of June 16, 1933, his right to receive annuity must cease and the second condition of the proviso attaches, that is, if and when the employee should, while so serving, attain the age for automatic separation from the service he would be so separated and entitled to annuity under the provisions of the regular retirement act. But if the employee should be involuntarily separated from the service in which he had been so reemployed before attaining the age for automatic or optional retirement and prior to July 1, 1935, he would again become entitled to the annuity authorized under the said section 8 (a) of the act of June 16, 1933. If, however, he should be voluntarily separated from the service in which reemployed before attaining the age for optional retirement he would not thereupon become entitled to a resumption of annuity payments."

Ordinarily, service in a temporary position does not form the basis for annuity, and there is no right of retirement from a temporary position, such

position not being considered within the purview of the civil retirement law. Your decision of November 11, 1933, would indicate that a person in a retirement status acquired under section 8 (a) by the act of June 16, 1933 would, if temporarily reemployed, automatically reacquire a status under the retirement law, and accordingly deduction should be taken from the salary of such person during the period of temporary employment.

It has now been asked whether a person receiving an annuity under the provisions of section 8 (a) of the act of June 16, 1933, who also holds a commission in the Officers' Reserve Corps, U. S. Army, and who subsequent to the grant of annuity is ordered to active duty, has the right of receiving annuity benefits during the period of active service, and if not, whether he has a right to resumption of annuity payments upon the cessation of active duty, or should the 32% reduction be taken from his salary as an officer during the period of active duty and a new right of retirement arise upon separation from the service.

A particular case in point is that of William T. Marx, a retired rural letter carrier, claim no. R-60333. Mr. Marx was involuntarily separated from the service as a rural carrier, Post Office Department, on October 31, 1933, after having completed more than 30 years of service. He was awarded an annuity of $1,158.00 per annum effective from November 1, 1933, under the provisions of section 8 (a), act of June 16, 1933. He has held a commission as captain, Adjutant General's Department Reserve in the Officers' Reserve Corps since October 5, 1929. Under that commission the commanding general, Eighth Corps Area, Fort Sam Houston, Texas, placed Captain Marx on active duty with the Civilian Conservation Corps for the period, August 12, 1934, to February 11, 1935, both dates inclusive, unless sooner relieved. While on active duty as a Reserve officer he will receive the pay and allowances of his grade as provided in the act approved June 10, 1922, 42 Stat. 625 and 626.

It is understood that Captain Marx is still on active duty. Annuity payments to Captain Marx have been suspended.

Your early decision on the questions present herein will be appreciated. Section 8 (a) of the act of June 16, 1933, 48 Stat. 305, provides as follows:

Whenever at any time hereafter prior to July 1, 1935, any employee of the United States or the District of Columbia to whom the Civil Service Retirement Act, approved May 29, 1930 (U. S. C. Supp. VI, title 5, ch. 14), applies, who has an aggregate period of service of at least thirty years computed as prescribed in section 5 of such act, is involuntarily separated from the service for reasons other than his misconduct, such employee shall be entitled to an annuity computed as provided in section 4 of such act payable from the civil-service retirement and disability fund less a sum equal to 3% per centum of such annuity: Provided, That when an annuitant hereunder attains the age which would have been the retirement age prescribed for automatic separation from the service applicable to such annuitant had he continued in the service to such retirement age, such deduction from the annuity shall cease. If and when any such annuitant shall be reemployed in the service of the District of Columbia or the United States (including any corporation the majority of the stock of which is owned by the United States), the right to the annuity provided by this section shall cease and the subsequent annuity rights of such person shall be determined in accordance with the applicable provisions of retirement law existing at the time of the subsequent separation of such person from the service. Your conclusion is correct that

Your decision [of this Office] of November 11, 1933, would indicate that a person in a retirement status acquired under section 8 (a) by the act of June 16, 1933, would, if temporarily reemployed, automatically reacquire a status under the retirement law, and accordingly deductions should be taken from the salary of such person during the period of temporary employment.

The general principle has been stated under the quoted statute, the provisions of the Lighthouse Service Retirement Act, and the provisions of the Civil Retirement Act, that "In no case may both