(A-56239) PAY-NAVY MAIL CLERK Payment of additional compensation to an enlisted man of the Navy designated as Navy mail clerk for duty in assembling postal equipment on board a vessel prior to the date the vessel is commissioned is not authorized by law. Comptroller General McCarl to the Secretary of the Navy, July 2, 1934: There has been received your first endorsement, June 19, 1934, of basic letter from the Chief, Bureau of Navigation, requesting decision whether the payment of compensation to a Navy mail clerk is authorized in advance of the actual commissioning of the ship for which he is designated. The character of service contemplated is indicated in the basic letter, as follows: In the case of a vessel fitting out, it is desirable that the postal equipment be on board by the actual date of commissioning. It is proposed, therefore, to designate the Navy mail clerk as of a date two weeks in advance of commissioning. The authority for the designation of enlisted men in the Navy as Navy mail clerks and compensation therefor is provided in the act of May 27, 1908, 35 Stat. 417, as follows: That enlisted men of the United States Navy may, upon selection by the Secretary of the Navy, be designated by the Post Office Department as "Navy mail clerks" and "assistant Navy mail clerks ", who shall be authorized to receive and open all pouches and sacks of mail addressed to naval vessels, to make proper delivery of such mail, to receive matter for transmission in the mails, to receipt for registered matter (keeping an accurate record thereof), to keep and have for sale an adequate supply of postage stamps, to make up and dispatch mails, and other postal duties as may be authorized by the Postmaster General, all in accordance with such rules and regulations as may be prescribed by the commanding officer of the vessel or of the squadron to which the vessel is attached. * They shall receive as compensation for such services from the Navy Department in addition to that paid them of the grade to which they are assigned, such sum in the case of mail clerks not to exceed five hundred dollars per annum, and in that of assistant mail clerks not to exceed three hundred dollars per annum, as may be determined and allowed by the Navy Department. Pursuant to that act, the regulations provide as follows: Designation effective.-A Navy mail clerk shall not be deemed to have fully qualified until his bond has been executed, approved, and finally accepted by the Postmaster General. Extra compensation accrues from the effective date indicated in the letter of designation, provided the appointee actually began his duties on that date. Extra compensation is not payable, however, until the letter of designation from the Post Office Department has been received and oath of office and bond have been properly executed and the premium on the bond paid to the surety company. The execution of the oath is prerequisite to proper qualification, but may in cases of necessity take place subsequent to the commencement of his duties. D-5307 (1), Bureau of Navigation Manual: Navy mail clerks.-Vessels, detachments, and shore stations with approved allowances of 50 or more officers and men are allowed 1 Navy mail clerk each. Mail clerks so designated will receive, in addition to the pay of their rating, a monthly compensation depending upon the approved allowances they serve in accordance with the attached table. To their approved allowances, receiving ships, marine barracks, naval hospitals, hospital ships, and vessels of the transportation service may add the average per diem number of transients to determine the allowance for use in the table. Allowance: Class I, under 250_ Class II, 250 to 649, inclusive__ $15 20 25 T An additional monthly compensation of $5 will be allowed Navy mail clerks handling money-order service. Compensation for the service of Navy mail clerk is dependent upon the performance of duty prescribed by law and regulationsthat is, duty with respect to the receipt, distribution, and dispatch of the mail and the custody and distribution of postal supplies. Your question seems to present a situation where, before the ship is commissioned and before any personnel of the service is attached thereto, duty is performed by the man designated as Navy mail clerk thereon in requisitioning and assembling postal supplies and equipment in preparation for the handling of mail and receipt and disposition of postal supplies when the ship is commissioned. Such service seems to be simply preparation for the service contemplated by law for which extra compensation is authorized. The regulation fixes a schedule of pay for Navy mail clerks based on the personnel allowance of the vessel. A vessel has no actual personnel allowance prior to being placed in commission. Although the duty in question may be desirable and necessary to facilitate the proper handling of the mail when the vessel is actually commissioned, it is not duty for which the law authorizes additional pay and for which the regulations fix a measure of compensation. It would seem clear under the statute there could be no additional compensation for a Navy mail clerk of a vessel not in commission as the duties entitling to pay therefor are required to be performed "in accordance with such rules and regulations as may be prescribed by the commanding officer of the vessel or of the squadron to which the vessel is attached." Accordingly, you are advised that payment of additional compensation to a designated Navy mail clerk for duty in assembling postal equipment on board a vessel prior to date the vessel is commissioned is not authorized by law. (A-56330) COMPENSATION-ADMINISTRATIVE PROMOTIONS-GOVERN- The savings on an annual basis to be available for promotions during the fiscal year 1935 must be with respect to the total amount appropriated for personal services for the Government Printing Office and not merely in the amount estimated to pay the salaries of one particular class of personnel, such as apprentices. Comptroller General McCarl to the Public Printer, July 3, 1934: There has been received your letter of June 25, 1934, as follows: Section 24 of Public Act 141, 73d Congress, provides: "Section 7 (prohibiting administrative promotions) of the Treasury-Post Office Appropriation Act, fiscal year 1934, is amended by adding, after the first proviso thereof, a colon and the following: 'Provided further, That administrative promotions may be made during the fiscal year 1935 to the extent that funds are available therefor, on an annual basis, from savings made in the amounts appropriated for personal services from the applicable appropriations for the fiscal year 1935.'' The act of June 7, 1924 (U.S.C., title 44, sec. 40), is authority for the Public Printer to employ not over 200 apprentices at any one time. On July 1, 1934, 76 apprentices will be on the roll of this office, and it is proposed to leave unfilled during the fiscal year 1935 one hundred and twenty-four vacant positions in apprentice force, at a total yearly compensation of $102,529.40. The applicable appropriation for these 124 positions, were they to be filled, is the appropriation for Public Printing and Binding, Government Printing Office, fiscal year 1935 (Public 268, 73d Congress), and which is credited throughout the year with payments for printing and binding furnished various branches of the Government. Section 203 of the Legislative Appropriation Act, fiscal year 1933, continued in fiscal years 1934 and 1935, prohibiting filling of vacancies and impounding funds saved thereby, does not apply to the Government Printing Office. decision of Comptroller General dated August 9, 1932, A-43670.) (See In view of these facts, your advice is requested as to whether the Public Printer in his discretion may make administrative promotions in the fiscal year 1935 to the extent of the savings to be accomplished by the nonfilling of vacancies existing in our force of apprentices, or other employees, on July 1, 1934, or thereafter during the fiscal year 1935, all savings and promotions being calculated on an annual basis. Should such promotions be proper, what, if any, information will be required therefor on pay rolls, or otherwise, when accounts are submitted to the General Accounting Office? Your first question may be answered in the affirmative if the savings resulting from nonfilling of vacancies in the positions of apprentices are not needed for payment of other salaries; that is, the savings, to be available for promotions, must be with respect to the total amount appropriated for personal services for the Government Printing Office and not merely in the amount estimated to pay the salaries of one particular class of personnel, such as apprentices. See decisions of June 9, 1934, A-54807, and June 19, 1934, A-56038, 13 Comp. Gen. 419, 451. The matter referred to in your concluding paragraph would appear to be answered in decision of July 2, 1934, A-54807, 14 Comp. Gen. 1. (A-56045) RETIREMENT-CIVILIAN-RETROACTIVE REINSTATEMENT ON PAY ROLLS No period of time subsequent to an employee's separation from the service in 1924 after a year's leave of absence may be counted for civil retirement purposes, notwithstanding an attempted reinstatement of the employee upon the rolls in 1928, he having rendered no service since August 18, 1923, and having been in receipt of disability compensation since November 23, 1923. Comptroller General McCarl to the Administrator of Veterans' Affairs, July 5, 1934. There has been received your letter of June 7, 1934, as follows: The claim of Emil H. Banister, former postal clerk, Railway Mail Service, for the benefits of the Civil Service Retirement Law, as amended (act of May 29, 1930), on account of total disability for useful and efficient service, was denied by this administration on the ground that claimant had to his credit less than 5 years' service, and further that the order of the Post Office Department restoring his name to the rolls subsequent to his absolute separation from the service was without legal effect from the standpoint of permitting the claimant to include as accreditable service, subsequent to his separation from the service, the period, or any part thereof, during which he was a beneficiary under the United States Employees' Compensation Act. The general superintendent, Division of Railway Mail Service, Post Office Department, has entered an appeal in behalf of the claimant contending that the time served by this claimant as a beneficiary under the United States Employees' Compensation Act may be included in computing accredited service and, accordingly, the claimant may be considered as having met the 5-year period required for eligibility under section 6 of the act of May 29, 1930. Inasmuch as the contention of the superintendent, Railway Mail Service, involves the effect or interpretation of certain decisions of your office, and in view of the fact that there is involved a question of a concurrent benefit under the retirement statute and the United States Employees' Compensation Law, your decision respecting the point at issue is respectfully requested. The facts substantially are as follows: Mr. Emil H. Banister, who entered the Railway Mail Service on August 18, 1920, was injured in the performance of his duty on October 18, 1923. His services were discontinued by the Post Office Department on October 19, 1924. He was dropped from the rolls of the Department by order dated November 11, 1924, following the expiration of a year's leave of absence. The applicant rendered no active service subsequent to the effective date of the order of removal. Application for refund of retirement deductions as applied for on October 27, 1924, was certified to by the general superintendent, Railway Mail Service, on November 15, 1924, in which certification it was stated that the applicant became absolutely separated from the service because of discontinuance on October 19, 1924. At the time of his removal Mr. Banister, having served only for a period slightly in excess of four years, was not entitled to annuity under the retirement law then in effect. It appears from the record that he has been in receipt of compensation under the United States Employees' Compensation Act at various rates from November 23, 1923. The order of the Post Office Department removing him from the service dated November 11, 1924, was revoked by the same Department May 9, 1928. The revocation appears to have been based upon the decision of the Comptroller, dated March 20, 1920 [26 Comp. Dec. 763], wherein it was stated: "An employee who is injured in the performance of his duties and is paid compensation under the act of September 7, 1916, continues to be an employee of the United States. He receives compensation on account of his injury instead of for services rendered as in the case of an employee who is engaged in the performance of the duties called for by the terms of his employment. Since his status of employee continues during the period when his compensation is on account of injury, such an employee is entitled to all the rights conferred by law on employees of the United States not inconsistent with any provision of the act of September 7, 1916. Therefore, such an employee, if he was within the class of employees named in the act of August 29, 1916, should be regarded as earning leave during the period while he is disabled and being paid compensation under the act of September 7, 1916." Mr. Banister filed claim for annuity on September 20, 1933, on account of total disability for useful and efficient service as provided by section 6 of the civil service retirement act of May 29, 1930. This claim was denied by the director of insurance on the ground that at the time of separation from the civil service, October 19, 1924, the claimant had not rendered sufficient service to entitle him to any annuity and that the revocation of the order of discontinuance and the restoration of the name of the applicant to the rolls of the employees of the Post Office Department was without legal effect. The general superintendent, Division of Railway Mail Service of the Post Office Department, filed an appeal on behalf of the claimant on March 7, 1934. The general superintendent, Mr. Cisler, in arguing the appeal on behalf of the claimant, pointed out that the policy of separating at the termination of a year's continuous leave employees who were beneficiaries under the U.S. Employees' Compensation Act was continued until March 24, 1928, when general instructions were issued (Circular Letter 3194, Division of Railway Mail Service) reversing the former policy on the grounds that "the Comptroller has ruled that such employees while paid by the U.S. Employees' Compensation Commission continues to be employees of the United States, and in harmony therewith this class of employees will be carried on the rolls until the U.S. Employees' Compensation drops them, or they resign or reach the retirement age." He further stated: "At the same time it was decided to revoke the orders which had been issued separating employees of this class, if any who had been separated were still receiving pay under the employees' compensation law, and in this manner give them the same consideration they would have been entitled to if they had continued on our rolls in accordance with the Comptroller's decision. Mr. Banister (the claimant in the instant case) was one of the employees affected by this decision." He also stated that the action was taken as a result of the Comptroller's decision of August 24, 1926, A-15382." The pertinent part of that decision is quoted as follows: 66 "If an employee in the Postal Service is continued on the rolls as an employee absent on account of sickness or injury during the entire period he is in receipt of disability compensation and resumes his duties as such employee immediately upon termination of such period, the period of such absence may be counted as service in determining the annual and/or sick leave which thereafter may be granted to him under the act of February 28, 1925, supra." In support of the contention the following paragraph was quoted from the Comptroller General's letter to the Postmaster General under date of June 21, 1930: "Where employees are carried on leave of absence because of disability incurred as a result of their employment and are paid compensation under the Employee's Compensation Act, they remain employees of the United States during the period for which they receive such compensation." The appellant further contended: "With respect to the assertion that revocation of the order of discontinuance, and restoration of the name of the claimant to the rolls, was without legal effect, we are constrained to question the authority of the Veterans' Administration to decide upon that point. It is thought such a question is one primarily of administration and due to be adjusted between the department concerned and the Civil Service Commission. 27 Comp. Dec. 100; 5 Comp. Gen. 404." Section 5 of the retirement law, under the heading "Annuitable Service, Computation of Accredited Service", provides in part: "In computing length of service for the purposes of this act all periods of separation from the service, and so much of any leaves of absence as may exceed six months in the aggregate in any calendar year, shall be excluded, except such leaves of absence granted employees while receiving benefits under the United States Employees' Compensation Act, and in the case of substitutes in the Postal Service credit shall be given from date of original appointment as a substitute." The appellant in substance contends that the restoration of the name of this claimant to the rolls of the Post Office Department had the effect of placing him in a leave of absence status so long as he was receiving benefits under the U.S. Employees' Compensation Act and, accordingly, under the provision of the statute as quoted in the foregoing, he is entitled to include such service on leave of absence in computing the five years' service required for eligibility to benefits for disability retirement under section 6 of the retirement law. In determining this question there appears for consideration the decision of the Comptroller of December 5, 1919 (26 Comp. Decs. 448), wherein it was held to the effect that a separation from service having become effective, nothing but a new appointment to operate prospectively can operate to place the claimant again in the service. There is also for consideration the Executive order of June 2, 1920, prohibiting the reinstatement of former employees for the purpose of conferring upon them the benefits of the retirement law. If one may be permitted to include, for purposes of serving the required period for eligibility, the time during which he or she receives compensation under the U.S. Employees' Compensation Act, then there may be presented a dual |