B-86914, OCTOBER 23, 1950, 30 COMP. GEN. 166

B-86914, OCTOBER 23, 1950, 30 COMP. GEN. 166

LEAVES OF ABSENCE - NATIONAL GUARD CIVILIAN EMPLOYEES - PAYMENT FOR LEAVE NOT TAKEN PRIOR TO TERMINATION OF EMPLOYMENT IN VIEW OF THE AMENDED REGULATIONS PROMULGATED BY THE SECRETARY OF THE ARMY PURSUANT TO SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, AUTHORIZING A LUMP-SUM PAYMENT FOR LEAVE NOT TAKEN BY NATIONAL GUARD CIVILIAN EMPLOYEES PRIOR TO THE TERMINATION OF EMPLOYMENT BY DEATH, OR OTHERWISE, PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE NOT TAKEN BY A NATIONAL GUARD CARETAKER PRIOR TO HIS DEATH MAY BE MADE TO THE REPRESENTATIVE OF HIS ESTATE, PROVIDED DEATH OCCURRED ON OR AFTER THE EFFECTIVE DATE OF SUCH AMENDMENT. 29 COMP. GEN. 421, OVERRULED IN PART.

ASSISTANT COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, OCTOBER 23, 1950:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 20, 1950, WITH ENCLOSURE, REQUESTING TO BE ADVISED WHETHER OR NOT OFFICE DECISION OF APRIL 24, 1950, B-86914 (29 COMP. GEN. 421), WITH RESPECT TO PAYMENT FOR LEAVE NOT TAKEN BY NATIONAL GUARD CIVILIAN EMPLOYEES (CARETAKERS, ETC.) PRIOR TO DEATH, WILL CONTINUE TO BE EFFECTIVE ON AND AFTER THE DATE OF CHANGES NO. 3, MARCH 1, 1950, IN NATIONAL GUARD REGULATIONS NO. 75-16.

THE CITED DECISION HELD, QUOTING THE SYLLABUS:

THE REGULATIONS PROMULGATED BY THE SECRETARY OF THE ARMY UNDER SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, FIXING THE COMPENSATION OF CARETAKERS OF THE NATIONAL GUARD DO NOT PROVIDE ANY COMPENSABLE RIGHTS FOR LEAVE NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE, SO THAT NO GREATER RIGHT TO PAYMENT FOR SUCH LEAVE LEGALLY ACCRUES TO THE ESTATE OF A DECEASED CARETAKER AND, THEREFORE, PAYMENT MAY NOT BE MADE TO THE ADMINISTRATOR OF THE ESTATE FOR LEAVE NOT TAKEN BY THE CARETAKER PRIOR TO HIS DEATH.

SAID DECISION WAS BASED UPON THE PROVISIONS OF PARAGRAPH 12D (7), NGR 75- 16, DATED DECEMBER 29, 1947, AS CHANGED BY CHANGES NO. 1, DATED APRIL 16, 1948, PROMULGATED UNDER SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, 32 U.S.C. 42. AS IT THEN STOOD THE SAID REGULATIONS PROVIDED THAT---

(7) CASH SETTLEMENT OF ACCRUED LEAVE IS NOT AUTHORIZED WITH THE EXCEPTION OF CLAIMS FOR ACCRUED LEAVE DUE A DECEASED EMPLOYEE.

THE PROVISION IN SUCH REGULATION THAT CASH SETTLEMENT FOR ACCRUED LEAVE IS NOT AUTHORIZED WAS IN CONSONANCE WITH THE PRACTICE WHICH LONG HAD BEEN FOLLOWED WITH RESPECT TO OFFICERS OF THE MILITARY AND NAVAL SERVICES UNDER SECTION 1265 OF THE REVISED STATUTES, AS AMENDED, WHICH HAD NEVER BEEN UNDERSTOOD, EITHER ADMINISTRATIVELY OR BY THE ACCOUNTING OFFICERS, AS GRANTING PAY AND ALLOWANCES FOR LEAVE NOT TAKEN PRIOR TO TERMINATION OF THEIR ACTIVE SERVICE. EVEN WITH THE ENACTMENT OF THE ARMED FORCES LEAVE ACT OF 1946, PAY IN LIEU OF CERTAIN LEAVE NOT TAKEN BY OFFICERS AND ENLISTED MEN WHO DIE IN THE MILITARY OR NAVAL SERVICE DOES NOT SURVIVE AS AN ASSET FOR PAYMENT TO THE DECEDENT'S ESTATE. SEE THE LAST SENTENCE OF SECTION 4C OF THE ARMED FORCES LEAVE ACT OF 1946, AS AMENDED BY PUBLIC LAW 350, APPROVED AUGUST 4, 1947, 61 STAT. 748. LIKEWISE, PAYMENT IN LIEU OF UNUSED LEAVE TO CIVILIAN EMPLOYEES OF THE GOVERNMENT UPON TERMINATION OF THEIR EMPLOYMENT, OR UPON THEIR DEATH TO CERTAIN SURVIVING BENEFICIARIES, WAS NOT AUTHORIZED UNTIL LONG AFTER ENACTMENT OF SECTION 90 OF THE NATIONAL DEFENSE ACT OF JUNE 3, 1916, UNDER WHICH COMPENSATION OF CARETAKERS OF THE NATIONAL GUARD WAS AUTHORIZED UNDER SUCH REGULATIONS AS THE SECRETARY MAY PRESCRIBE. STRICTLY, OF COURSE, THE LEAVE PRIVILEGES GRANTED TO CARETAKERS BY REGULATIONS UNDER THE SAID SECTION 90 CONTEMPLATED AN "IN KIND" BENEFIT PRIMARILY TO PERMIT THE EMPLOYEES TO TAKE LIMITED TIME OFF FROM THEIR DUTIES IN ORDER THAT THEY MIGHT MORE EFFICIENTLY PERFORM THEIR WORK UPON RETURN AND THUS SECURE A BENEFIT BOTH TO THE GOVERNMENT AND TO THEMSELVES, AND THE PAYMENT TO SUCH EMPLOYEES OF COMPENSATION DURING SUCH AUTHORIZED ABSENCE AS PRESCRIBED BY REGULATIONS, WHILE THEY CONTINUED AS EMPLOYEES, WAS HELD TO BE WITHIN THE REGULATORY POWER OF THE SECRETARY OF WAR. SEE DECISION OF OCTOBER 12, 1920, 27 COMP. DEC. 344, WHERE IT WAS HELD, QUOTING THE SYLLABUS:

ENLISTED MEN OF THE NATIONAL GUARD DETAILED TO CARE FOR GOVERNMENT ANIMALS AND THEIR SUPPLIES ISSUED TO NATIONAL GUARD ORGANIZATIONS, WHO ARE PAID FROM FUNDS ALLOTTED BY THE SECRETARY OF WAR FOR THE SUPPORT OF THE NATIONAL GUARD UNDER AUTHORITY OF THE ACT OF JUNE 4, 1920, 41 STAT. 783, ARE NOT EMPLOYEES IN THE WAR DEPARTMENT WITHIN THE MEANING OF THE LAWS, RULES, AND REGULATIONS RELATING TO HOURS OF LABOR, LEAVES OF ABSENCE, AND HOLIDAYS OF EMPLOYEES IN THE EXECUTIVE DEPARTMENTS, BUT THE SECRETARY OF WAR MAY, UNDER AUTHORITY OF SAID ACT, PRESCRIBE SUCH REASONABLE REGULATIONS AS HE MAY DEEM PROPER FIXING THEIR PAY FOR HOLIDAYS, VACATIONS, AND SICK LEAVE.

THE ADVANCE COPY OF CHANGES NO. 3, DATED MARCH 1, 1950, SUBMITTED WITH YOUR LETTER CHANGES PARAGRAPH 12D (7), NGR 75-16, DATED DECEMBER 29, 1947, TO READ IN PERTINENT PART AS FOLLOWS:

12. LEAVE. * * *

D. MISCELLANEOUS PROVISIONS.---

(7) ( SUPERSEDED) LUMP SUM PAYMENT FOR ACCUMULATED AND CURRENT ANNUAL LEAVE MAY BE MADE WHEN (A) AN EMPLOYEE DIES, (B) AN EMPLOYEE IS SEPARATED FROM HIS POSITION AS A NATIONAL GUARD CIVILIAN EMPLOYEE (PAID FROM FEDERAL FUNDS) FOR CAUSE OR OTHERWISE.

THE SAID CHANGES NO. 3 WOULD HAVE THE EFFECT OF AUTHORIZING PAYMENT FOR LEAVE NOT TAKEN WHEN THE SERVICES OF THE CARETAKERS HAVE BEEN TERMINATED BY DEATH OR OTHERWISE. WHILE SUCH A PROVISION MIGHT HAVE BEEN REGARDED AS BEYOND THE REGULATIVE AUTHORITY OF THE SECRETARY UNDER CONDITIONS EXISTING WHEN THE SAID SECTION 90 WAS ENACTED, NO SUCH BENEFITS HAVING BEEN RECOGNIZED BY THE CONGRESS AS PROPER ELEMENTS OF COMPENSATION, I AM INCLINED TO THE VIEW THAT THE SAID AMENDED REGULATION IS PERMISSIBLE IN THE LIGHT OF SUBSEQUENT LEGISLATION WHICH HAS GIVEN GENERAL RECOGNITION TO SUCH AN ELEMENT OF COMPENSATION BY GRANTING LUMP-SUM PAYMENT FOR UNUSED LEAVE NOT ONLY TO CIVILIAN EMPLOYEES OF THE GOVERNMENT BUT TO ALL MEMBERS OF THE ARMED FORCES. THAT IS TO SAY, WHILE THE AUTHORITY OF THE SECRETARY UNDER THE STATUTE TO FIX THE COMPENSATION OF NATIONAL GUARD CARETAKERS HAS NOT CHANGED, THE ELEMENTS COMPRISING SUCH COMPENSATION ARE NOT STATIC UNDER THE STATUTE BUT PROPERLY MAY BE VARIED WITH CHANGING CONCEPTS OF APPROPRIATE COMPENSATION RECOGNIZED BY LAW.

INASMUCH AS THE NEW REGULATION GRANTS COMPENSATION FOR UNUSED LEAVE PAYABLE AT TERMINATION OF EMPLOYMENT, WHETHER BY DEATH OR OTHERWISE, SUCH COMPENSATION PROPERLY IS TO BE REGARDED AS ACCRUING TO THE EMPLOYEE OVER THE PERIOD OF HIS EMPLOYMENT AND, HENCE, THE RIGHT TO SUCH PAYMENT, IN CASES OF DEATH PRIOR TO RECEIPT THEREOF BY THE EMPLOYEE, SURVIVES TO HIS ESTATE. ON THAT BASIS YOU ARE ADVISED THAT THE SAID DECISION OF APRIL 24, 1950, WILL NOT BE FOR APPLICATION WHERE DEATH OF THE EMPLOYEE SHALL HAVE OCCURRED ON OR AFTER MARCH 1, 1950, THE EFFECTIVE DATE OF THE AMENDED REGULATION.