statement made in the paragraph of the decision of February 25, 1943, above quoted, nothing appears in the statute or otherwise to deny such discretion to employees who enter the legislative branch for the first time from the executive branch of the Government. That being so, I am inclined to the view that such employees, if they desire the retirement benefits of the act must give notice of such desire to come within the purview of the act to the disbursing officer of the Senate or the House of Representatives within six months after the date of entrance into the legislative branch of the Government. However, the retirement status of any legislative employee who heretofore has entered the legislative branch of the Government from the executive branch with a retirement status acquired pursuant to the views of the Civil Service Commission should not be divested of his status unless he heretofore has made an election in the matter, or unless he be given an opportunity to make such election hereafter within a reasonable time.

As Miss Moore has elected not to remain within the purview of the retirement act, the question posed in the concluding paragraph of your letter is answered in the affirmative.

(B-36755)

PAY-ADDITIONAL-SEA AND FOREIGN SHORE DUTY-PARACHUTE DUTY

In computing the per centum increase on base pay authorized by section 2 of the Pay Readjustment Act of 1942 for members of the military forces on sea or foreign shore duty, the additional pay authorized for parachute duty by section 18 of the said act may not be included.

Assistant Comptroller General Yates to Capt. W. E. Mitchell, U. S. Marine Corps, October 2, 1943:

There has been received by indorsement dated August 28, 1943, your letter of July 31, transmitting a voucher stated in favor of Major George R. Stallings, U. S. Marine Corps, and requesting decision as to whether payment thereon is authorized. The voucher proposes payment of the percentage increase in pay for sea and foreign shore service provided by section 2 of the Pay Readjustment Act of 1942, 56 Stat. 360, computed on the additional pay the officer received as a parachutist for the period June 10, 1942, to July 31, 1943.

Section 2 of the Pay Readjustment Act of 1942, supra, provides:

The base pay of any enlisted man, warrant officer, or nurse (female) in the military or naval forces of the United States shall be increased by 20 per centum and the base pay of any commissioned officer of any of the services mentioned in the title of this Act shall be increased by 10 per centum for any period of service while on sea duty as such duty may be defined by the head of the Department concerned, or duty in any place beyond the continental

limits of the United States or in Alaska, which increases in pay shall be in addition to pay and allowances otherwise authorized: Provided, That the per centum increases herein authorized shall be included in computing increases in pay for aviation and submarine duty: Provided further, That this section shall be effective from December 7, 1941, and shall cease to be in effect twelve months after the termination of the present war is proclaimed by the President.

Authority for additional pay for personnel assigned to parachute duty is contained in the last paragraph of section 18 of the said Pay Readjustment Act of 1942, 56 Stat. 368, 369, which reads:

Any officer, warrant officer, or enlisted man of the Army, Navy, Marine Corps, or Coast Guard of the United States, not in flying-pay status, who is assigned or attached as a member of a parachute unit, including parachute-jumping schools, and for whom parachute jumping is an essential part of his military duty and who, under such regulations as may be prescribed by the Secretary of War, the Secretary of the Navy, or the Secretary of the Treasury, has received a rating as a parachutist or is undergoing training for such a rating shall receive, while engaged upon duty designated by the head of the department concerned as a parachute duty, additional pay of the rate of $100 per month in the case of any such officer or warrant officer, and additional pay at the rate of $50 per month in the case of any such enlisted man.

It will be noted that the percentage increase in pay for sea and foreign shore service is to be computed on base pay only. Since the additional pay provided for personnel assigned to parachute duty does not form a part of their base pay, no increase therein on account of sea or foreign shore service is authorized. Furthermore, the specific provision for including the percentage increases in pay for sea and foreign shore service in computing aviation pay and submarine pay negatives any implication that it was intended that such percentage increases were to be computed on parachutists' pay since, under the well settled rules of statutory interpretation, the specific mention of aviation and submarine pay excludes from the benefits of such provision other increases in pay of a similar nature. Compare decision of April 17, 1942, answer to the first question, 21 Comp. Gen. 932, 934.

Accordingly, you are advised that payment on the voucher, which is retained in this office, is not authorized.

(B-36720)

SIX MONTHS' DEATH GRATUITY PAY-CIVILIAN EMPLOYEES OF THE

GOVERNMENT

The provision in section 5 of the act of March 7, 1942, as originally enacted and as amended, with respect to the payment of the six months' death gratuity provided by law upon a finding of death of persons missing or missing in action, does not enlarge the classes of persons on account of whom the death gratuity is payable, but, rather, authorizes payment of the said gratnity only to classes of personnel on whose account specific provision is made by other statutes, so that payment of the said gratuity upon a finding of death of civilian employees of the Government, on whose account such payment has not been provided by other statutes, is unauthorized.

Assistant Comptroller General Yates to the Secretary of State, October 5, 1943: Reference is made to your letter of August 26, 1943, as follows: Under the terms of Public Law 490, 77th Congress, An Act to provide for continuing payment of pay and allowances of personnel of the Army, Navy, Marine Corps, and Coast Guard, including the retired and Reserve components thereof; the Coast and Geodetic Survey and the Public Health Service, and civilian employees of the executive departments, independent establishments, and agencies, during periods of absence from post of duty, and for other purposes, as amended by Public Law 848, 77th Congress, the Department of State is preparing to review the case of a civilian employee missing at sea. At the time he was reported missing he was on official business accompanying armed forces of the United States.

It seems probable that a finding of death must be made in accordance with the provisions of these acts. It has been noted that Section 5 of Public Law 490 provides:

"Following a finding of death, the six months' death gratuity provided by law is authorized to be paid."

Section 5 of Public Law 490, as amended by Public Law 848, also mentions "payments of death gratuities", although less clearly.

The death gratuities referred to are specifically granted to certain Army personnel by Section 903 of Title 10 of the United States Code and to certain personnel of the Navy and of the Coast Guard and Geodetic Survey by Section 943 of Title 34. These sections provide respectively:

"Immediately upon official notification of the death from wounds or disease of any officer or enlisted man on the active list of the Regular Army * the Chief of Finance of the Army shall cause to be paid to the widow an amount equal to six months' pay at the rate received by such officer or enlisted man at the date of his death." and

of

"Upon official notification of the death from wounds or disease any officer, enlisted man, or nurse on the active list of the regular Navy or regular Marine Corps the Paymaster General of the Navy shall cause

* *
*

*

*

to be paid to the widow an amount equal to six months' pay at the rate received by such officer, enlisted man, or nurse at the date of his or her death."

No similar provision has been made for civilian employees, although the language of Public Law 490 might indicate that all categories of personnel listed in the title of the Act (i. e. personnel of the Army, Navy, Marine Corps, Coast Guard, Coast and Geodetic Survey, the Public Health Service, and civilian employees of the executive departments, independent establishments, and agencies) should be treated alike in the matter of death gratuities as well as in that of pay and allowances.

I wish to inquire, therefore, whether a six months' death gratuity may be paid to any civilian employee of this Department who may be declared dead under the provisions of Public Law 490, 77th Congress, as amended.

As indicated in your letter, section 5 of the act of March 7, 1942, Public Law 490, 56 Stat. 145, provides, in pertinent part, that "Following a finding of death, the six months' death gratuity provided by law is authorized to be paid" [italics supplied], and that section as amended by the act of December 24, 1942, Public Law 848, 56 Stat. 1093, provides, insofar as is here material, that "When a finding of death is made it shall include the date upon which death shall be presumed to have occurred for the purposes of payments

of death gratuities."

In this connection, it is to be noted that when the Congress has seen fit to provide for payment of the six months' death gratuity its policy has been to provide therefor by specific legislation applicable to particular classes of personnel, and that, when the scope of exist

ing legislation was to be enlarged and extended to classes not already covered thereby, it has been by specific enumeration of the classes to which the legislation was to be extended. See, for example, the act of December 17, 1919, 41 Stat. 367, as amended, providing for payment of a six months' death gratuity in the case of officers and enlisted men of the Regular Army, as extended to nurses of the Regular Army by the act of March 8, 1928, 45 Stat. 249, and as extended by the act of December 10, 1941, 55 Stat. 796, to dependents of all Army personnel who die in line of duty while in active military service. Broadly speaking, a similar procedure has been followed in providing for payment of the six months' death gratuity in the case of naval personnel.

Even were the policy of the Congress not as thus indicated, it is not to be presumed that the words in regard to the payment of the six months' death gratuity quoted hereinbefore from section 5 of the act of March 7, 1942, as amended by the act of December 24, 1942, were intended to broaden the classes of personnel on account of whom the gratuity was to be payable, but rather is it to be considered that the words are to be given their usual and ordinary significance and that the intent of the Congress as thus expressed was that, upon the finding of death of an individual, payment of the six months' death gratuity should be made only where provision had been made therefor under other statutes.

While the act of September 7, 1916, as amended, provides (5 U. S. C. 751, 760), for the payment of compensation to heirs of civilian employees of the Government who die from injuries received while in the performance of their duties, there appears to be no provision of law for the payment upon death of a civilian employee of a six months' death gratuity such as is referred to in section 5 of the act of March 7, 1942, as amended.

Accordingly, your question is answered in the negative.

(B-36875)

WAR OVERTIME PAY ACT OF 1943-COMPENSATORY TIME OFF IN LIEU OF ADDITIONAL COMPENSATION FOR EXCESS OVERTIME Under section 2 of the War Overtime Pay Act of 1943, respecting the granting of compensatory time off in lieu of overtime compensation, the discretion to substitute compensatory time off from duty in lieu of overtime compensation for service in excess of 48 hours per week in any administrative workweek is vested in the administrative office rather than in the employee. Where, pursuant to section 2 of the War Overtime Pay Act of 1943 and the regulations issued thereunder, a full-time per annum employee is granted compensatory time off from duty, in lieu of overtime compensation, for work in excess of 48 hours per week, such compensatory time off is not to be regarded as additional leave of absence which must be applied for, but, rather, it is the duty and responsibility of the administrative office under the regulations to excuse the employee from duty, within 90 days from the

time the excess overtime was worked, for a period corresponding to the excess overtime worked.

Where the head of a department, etc., elects to grant a full-time per annum employee who works in excess of 48 hours per week compensatory time off from duty in lieu of overtime compensation pursuant to the War Overtime Pay Act of 1943 and the regulations issued thereunder, but, as a result of the employee's own fault or voluntary action (such as voluntary resignation, transfer at the employee's request or refusal to accept the compensatory time off) the department head is prevented from granting such time off within the 90-day period prescribed by the said regulations, the employee is not entitled to overtime compensation for overtime worked in excess of 48 hours per week. Where the head of a department, etc., elects to grant a full-time per annum employee who works in excess of 48 hours per week compensatory time off in lieu of overtime compensation pursuant to the discretionary authority vested in him by the War Overtime Pay Act of 1943 and the regulations issued thereunder, but the employee, through no fault or voluntary action on his part (such as, induction into the armed forces, termination of his services without his consent, or involuntary transfer pursuant to war manpower directives) is unable to utilize such compensatory time off prior to the expiration of the 90-day period prescribed by the said regulations, he is entitled to overtime compensation for such excess overtime.

Acting Comptroller General Yates to the Director, Office of Defense Transportation, October 5, 1943:

I have your letter of September 4, 1943 (file 20-27), as follows: Re: War Overtime Pay Act of 1943.

Public Law 49.

Compensatory time off in lieu of overtime compensation.

Under date of May 8, 1943, the United States Civil Service Commission issued Departmental Circular No. 424, subject War Overtime Pay Regulations. Section 1, Part III thereof as amended by Supplement No. 2, issued July 9, 1943, is particularly concerned with the subject of granting to full time per annum employees compensatory time off from duty without loss of pay, in lieu of overtime compensation, for such employment as may exceed forty-eight hours in any week.

Included within this Section 1 of Part III, as amended, is the following language:

66

* In the event that compensatory time off from duty for employment in excess of forty-eight hours in any week is not granted within ninety calendar days after such employment is performed, the employee shall be entitled, in lieu of such compensatory time off, to overtime compensation for such employment computed as provided in these regulations at the rate or rates of compensation which the employee received during the period of such employment:

* * 99

The Office of Defense Transportation in its consideration of this Departmental Circular and the administration thereof feels that because many of its field employees are now performing a considerable amount of overtime work, it is important to have a present determination of the effect of the ninety day limitation quoted above upon situations which it is believed may arise, particularly out of such field operations and generally with respect to all per annum employees.

Accordingly, predicated upon the constant premise that the head of such a department, establishment, or agency, as is within the purview of Public Law 49, May 7, 1943 (War Overtime Pay Act of 1943), shall elect to exercise the discretion thereby vested in him of granting to a per annum employee compensatory time off from duty in lieu of overtime compensation for work in excess of forty-eight hours in any administrative work-week, and shall forthwith notify such employee that such election has been made, the following questions have been formulated:

Under which, if any, of the following factual situations would a liability to pay overtime compensation in money result:

(1) The compensatory time off is not utilized within ninety days after election to grant it, irrespective of the reason therefor.

(2) The employee declines to accept compensatory time off.