B-144198, NOVEMBER 21, 1961, 41 COMP. GEN. 320

B-144198, NOVEMBER 21, 1961, 41 COMP. GEN. 320

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - MILITARY DUTY--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - LEAVE, ETC., STATUS--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - EXCESS LEAVE--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - EXCESS LEAVE--- LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - MILITARY DUTY--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - EXCESS LEAVE--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - EXCESS LEAVE--- LEAVES OF ABSENCE - LUMP SUM PAYMENTS - MAXIMUM LIMITATION--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - RETROACTIVE PAYMENT--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CALENDAR V. FISCAL BASIS- -- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CALENDAR V. FISCAL BASIS--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CALENDAR V. FISCAL BASIS--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CALENDAR V. FISCAL BASIS--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CALENDAR V. FISCAL BASIS--- LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - CHARGING THE LIMITATION ON THE AMOUNT OF LEAVE WHICH CAN BE PAID FOR IN A LUMP SUM IN THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, IS APPLICABLE TO ALL EMPLOYEES ENTERING THE ARMED FORCES SO THAT AN EMPLOYEE WHO AT THE TIME OF ENTRY INTO THE ARMED FORCES FOR EXTENDED ACTIVE DUTY HAS 30 DAYS ACCUMULATED AND 15 DAYS CURRENT ANNUAL LEAVE MAY NOT BE PAID A LUMP SUM FOR MORE THAN 30 DAYS. EMPLOYEES OTHER THAN RESERVISTS OR NATIONAL GUARDSMEN WHO ENTER THE ARMED FORCES ON EXTENDED ACTIVE DUTY MAY NOT BE CARRIED IN AN ANNUAL LEAVE STATUS UNTIL THEIR ANNUAL LEAVE IS EXHAUSTED IN VIEW OF THE PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, WHICH REQUIRES PAYMENT IN A LUMP SUM WHEN THE EMPLOYEE ELECTS TO BE PAID FOR SUCH LEAVE. AN EMPLOYEE WHO, WHEN HE ENTERS THE ARMED FORCES ON EXTENDED ACTIVE DUTY, HAS MORE ACCUMULATED (30 DAYS) AND CURRENT ANNUAL LEAVE (15 DAYS) THAN HE CAN BE PAID FOR IN A LUMP SUM BECAUSE OF THE LIMITATION IN THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, MAY ELECT TO BE PAID IN A LUMP SUM FOR THE FULL AMOUNT FOR WHICH PAYMENT IS POSSIBLE IN HIS CASE (30 DAYS) AND HAVE THE EXCESS LEAVE (15 DAYS) REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM THE MILITARY SERVICE; HOWEVER, THE EMPLOYEE MAY NOT ELECT TO BE PAID IN A LUMP SUM FOR LESS THAN HE WOULD BE ENTITLED TO (30 DAYS) AND HAVE A LARGER AMOUNT REMAIN TO HIS CREDIT. UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, 5 U.S.C. 61A, EMPLOYEES ARE ENTITLED TO ELECT TO HAVE BOTH ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE REMAIN TO THEIR CREDIT UNTIL RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, SUCH RIGHT TO THEIR CREDIT UNTIL RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, SUCH RIGHT NOT BEING AFFECTED BY THE LUMP SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, OR THE MAXIMUM LIMITATION ON THE ACCUMULATION OF LEAVE IN THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (C); THEREFORE, AN EMPLOYEE WHO HAS ANNUAL LEAVE IN EXCESS OF THE LIMITATION AT THE END OF THE YEAR IN WHICH HE ENTERS THE ARMED FORCES AND WHO ELECTS TO HAVE IT REMAIN TO HIS CREDIT UNTIL HIS RETURN HAS SUCH LEAVE CREDIT FROZEN UNTIL HIS RETURN AND THE MAXIMUM LIMITATION ON LEAVE ACCUMULATION SHOULD BE APPLIED AT THE BEGINNING OF THE LEAVE YEAR FOLLOWING THE LEAVE YEAR IN WHICH THE EMPLOYEE IS RESTORED TO DUTY. ALTHOUGH AN EMPLOYEE WHO IS CALLED TO EXTENDED ACTIVE DUTY AS A RESERVIST OR NATIONAL GUARDSMAN IS ENTITLED UNDER 5 U.S.C. 30R (C) TO BE CARRIED ON AN AGENCY'S ROLLS UNTIL HIS ANNUAL LEAVE IS EXHAUSTED, THAT FACTOR DOES NOT PRECLUDE AN ELECTION TO RECEIVE A LUMP-SUM PAYMENT FOR ANNUAL LEAVE IF HE SO DESIRES. AN EMPLOYEE WHO, WHEN HE ENTERS ON EXTENDED ACTIVE DUTY AS A RESERVIST OR NATIONAL GUARDSMAN, HAS 30 DAYS ACCUMULATED AND 15 DAYS CURRENT ACCRUED LEAVE AND WHO ELECTS TO RECEIVE A LUMP-SUM PAYMENT MAY ONLY BE PAID FOR 30 DAYS, THE MAXIMUM PAYMENT POSSIBLE IN HIS CASE, THE BALANCE TO REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM SERVICE AND UPON RETURN TO HIS CIVILIAN POSITION THE MAXIMUM LEAVE LIMITATION SHOULD BE APPLIED AT THE BEGINNING OF THE LEAVE YEAR FOLLOWING THE LEAVE YEAR IN WHICH THE EMPLOYEE IS RESTORED TO DUTY. AN EMPLOYEE WHO, WHEN ENTERING ON EXTENDED ACTIVE DUTY AS A RESERVIST OR NATIONAL GUARDSMAN, ELECTS PURSUANT TO 5 U.S.C. 30R TO BE CARRIED ON THE ROLLS OF THE AGENCY ON ANNUAL LEAVE EXTENDING INTO THE NEXT LEAVE YEAR, IS SUBJECT TO THE MAXIMUM LEAVE ACCUMULATION PROVISIONS IN SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (C) SO THAT ANY BALANCE WOULD BE FORFEITED. ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE RIGHTS UNDER THE ACT OF AUGUST 1, 1941, 5 U.S.C. 61B, APPLICABLE TO EMPLOYEES ENTERING ON MILITARY DUTY ARE NOT AFFECTED BY THE MAXIMUM LIMITATION ON ACCUMULATION OF LEAVE CONTAINED IN SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062 (C), EVEN THOUGH THE LEAVE MIGHT BE IN EXCESS OF THE LIMITATION AT THE END OF THE YEAR IN WHICH AN EMPLOYEE ENTERS THE MILITARY SERVICE; HOWEVER, SUCH MAXIMUM LIMITATION IS FOR APPLICATION AT THE BEGINNING OF THE LEAVE YEAR FOLLOWING THE LEAVE YEAR IN WHICH THE EMPLOYEE IS RESTORED TO DUTY AND RECREDITED WITH LEAVE. THE PURPOSE OF THE RETROACTIVE DATE, JANUARY 1, 1961, OF SECTION 7 OF PUBLIC LAW 87-378, APPROVED OCTOBER 4, 1961, RELATING TO MILITARY LEAVE FOR EMPLOYEES WAS TO PERMIT EMPLOYEES WHO PREVIOUSLY HAD BEEN GRANTED MILITARY LEAVE IN THE FIRST HALF OF THE FISCAL YEAR 1961 TO AGAIN BE GRANTED MILITARY LEAVE IN THE CALENDAR YEAR 1961, EVEN THOUGH IT WAS TAKEN IN THE SAME FISCAL YEAR AS THE FIRST TOUR OF MILITARY DUTY; THEREFORE, AN EMPLOYEE WHO WAS GRANTED 15 DAYS' MILITARY LEAVE IN AUGUST 1960 AND IN APRIL 1961 HAD ANOTHER TOUR OF MILITARY DUTY WHICH WAS CHARGED TO ANNUAL LEAVE OR TO LEAVE WITHOUT PAY IS ENTITLED TO HAVE HIS LEAVE RECORD ADJUSTED TO CHANGE THE CHARGE FROM ANNUAL LEAVE OR LEAVE WITHOUT PAY TO MILITARY LEAVE THEREBY PERMITTING RECREDIT OF ANNUAL LEAVE OR PAYMENT OF SALARY IN THE CASE OF LEAVE WITHOUT PAY. AN EMPLOYEE WHO WAS GIVEN 15 DAYS OF MILITARY LEAVE IN APRIL 1961 AND AN ADDITIONAL 15 DAYS IN AUGUST 1961 WHICH WAS LEGAL AND PROPER UNDER THE LAW AS IT EXISTED AT THAT TIME, PUBLIC LAW 86-559, 5 U.S.C. 30R, PROVIDING FOR THE GRANTING OF MILITARY LEAVE ON A FISCAL YEAR BASIS, IS NOT REQUIRED TO HAVE AN ADJUSTMENT IN HIS MILITARY LEAVE UNDER PUBLIC LAW 87-378 WHICH SUBSTITUTED A CALENDAR YEAR BASIS FOR THE FISCAL YEAR BASIS. AN EMPLOYEE WHO WAS GRANTED 15 DAYS OF MILITARY LEAVE IN APRIL 1961 AND WHO AGAIN ENTERS ON MILITARY LEAVE ON JUNE 26, 1961, WHICH EXTENDED INTO JULY 1961, SHOULD BE GRANTED MILITARY LEAVE ONLY TO THE EXTENT THAT IT WAS AUTHORIZED UNDER THE LAW IN EXISTENCE AT THAT TIME; THEREFORE, ONLY THE PERIOD OF MILITARY DUTY ON AND AFTER JULY 1, 1961, MAY BE CHARGED TO THE 15-DAY MILITARY LEAVE CREDIT, THE PERIOD OF DUTY IN JUNE 1961 WHEN EITHER ANNUAL LEAVE OR LEAVE WITHOUT PAY WAS CHARGED MAY NOT BE CHANGED TO MILITARY LEAVE. AN EMPLOYEE WHO WAS GRANTED 15 DAYS' MILITARY LEAVE IN APRIL 1961 AND WHO ENTERED A SECOND PERIOD OF MILITARY LEAVE BEGINNING OCTOBER 1, 1961, WHICH CARRIED THROUGH OCTOBER 4, 1961--- THE DATE OF ENACTMENT OF PUBLIC LAW 87- 378 WHICH CHANGED THE BASIS FOR GRANTING MILITARY LEAVE FROM A FISCAL YEAR TO CALENDAR YEAR BASIS--- MAY NOT HAVE HIS ABSENCE ON MILITARY DUTY AFTER OCTOBER 4, 1961, CHARGED TO MILITARY LEAVE. ALTHOUGH AN EMPLOYEE WHO HAD 15 DAYS' MILITARY LEAVE IN JULY 1961 AND WHO WAS ORDERED TO EXTENDED ACTIVE DUTY OCTOBER 15, 1961, WOULD BE PRECLUDED UNDER PUBLIC LAW 87-378, APPROVED OCTOBER 4, 1961, FROM HAVING ANY FURTHER MILITARY LEAVE DURING THE CALENDAR YEAR 1961, HE MAY BE GRANTED 15 DAYS' MILITARY LEAVE BEGINNING JANUARY 1, 1962, FOR THE SECOND TOUR OF MILITARY DUTY. AN EMPLOYEE WHO WAS GRANTED 12 DAYS OF MILITARY LEAVE IN JULY 1961 AND WHO WAS CHARGED FOR 3 DAYS OF MILITARY LEAVE ON A SECOND PERIOD OF MILITARY DUTY AFTER OCTOBER 4, 1961--- THE EFFECTIVE DATE OF PUBLIC LAW 87 -378 WHICH CHANGED THE BASIS FOR CHARGING MILITARY LEAVE FROM A FISCAL YEAR TO A CALENDAR YEAR--- MAY RECEIVE 12 DAYS OF MILITARY LEAVE IN 1962, THE EMPLOYEE BEING ENTITLED TO 15 DAYS OF MILITARY LEAVE IN ANY ONE PERIOD OF EXTENDED ACTIVE DUTY, AND IN CASES WHERE AGENCIES DID NOT GRANT THE 3 DAYS' MILITARY LEAVE IN THE 1961 CALENDAR YEAR, THE EMPLOYEE MAY BE GRANTED 15 DAYS OF MILITARY LEAVE AFTER JANUARY 1, 1961, WHILE ON ACTIVE DUTY EXTENDING INTO THE 1962 CALENDAR YEAR. ALTHOUGH ORDINARILY AN AGENCY SHOULD CHARGE THE FIRST 15 DAYS OF MILITARY DUTY TO MILITARY LEAVE, THE AGENCY HAS DISCRETION TO DETERMINE WHEN MILITARY LEAVE SHOULD BE GRANTED IF THE PERIOD OF MILITARY DUTY IS FOR MORE THAN 15 DAYS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 21, 1961:

ON OCTOBER 31, 1961, THE ACTING CHAIRMAN REQUESTED ANSWERS TO (1) SEVERAL QUESTIONS CONCERNING THE DISPOSITION OF ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE FOR CIVILIAN EMPLOYEES ENTERING MILITARY SERVICE, AND (2) TO VARIOUS QUESTIONS ON MILITARY LEAVE FOR RESERVISTS AND NATIONAL GUARDSMEN ENTERING ON ACTIVE MILITARY DUTY.

ANNUAL LEAVE

THE QUESTIONS AND COMMENTS RELATING TO ANNUAL LEAVE ARE QUOTED AND ANSWERED UNDER CATEGORIES ," "B" AND "C.'

A. AN EMPLOYEE, WHO IS NOT A RESERVIST OR NATIONAL GUARDSMAN, AT THE TIME OF ENTRY ON EXTENDED ACTIVE DUTY WITH THE ARMED FORCES HAS 30 DAYS ACCUMULATED AND 15 DAYS CURRENT ACCRUED ANNUAL LEAVE TO HIS CREDIT. UNDER THE PROVISIONS OF 5 U.S.C. 61A, HE MAY BE PAID FOR HIS "ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE" REMAIN TO HIS CREDIT.

1. IF THE EMPLOYEE ELECTS TO BE PAID FOR THIS LEAVE, MAY HE BE PAID A LUMP SUM FOR THE ENTIRE 45 DAYS?

2. MAY THE EMPLOYEE BE CARRIED ON THE ROLLS OF THE AGENCY IN AN ANNUAL LEAVE STATUS UNTIL HIS ANNUAL LEAVE IS EXHAUSTED, OR IS THE AGENCY REQUIRED TO PAY THE EMPLOYEE IN A LUMP SUM TO THE EXTENT THAT THE LEAVE CAN BE SO PAID?

3. IF THE EMPLOYEE IS KEPT ON THE ROLLS OF THE AGENCY BECAUSE HE ELECTS TO BE PAID IN KIND FOR HIS ACCUMULATED AND ACCRUED ANNUAL LEAVE, AND THE LEAVE YEAR ENDS BEFORE HIS BALANCE IS REDUCED TO HIS ANNUAL LEAVE CEILING, HOW SHOULD HIS LEAVE ACCOUNT BE HANDLED?

4. MAY THE EMPLOYEE ELECT TO BE PAID IN A LUMP SUM FOR 30 DAYS AND HAVE THE REMAINDER (15 DAYS) REMAIN TO HIS CREDIT? OR, COULD HE ELECT TO BE PAID IN A LUMP SUM FOR 15 DAYS AND HAVE THE REMAINDER (30 DAYS) REMAIN TO HIS CREDIT?

5. IF THE EMPLOYEE ELECTS TO HAVE HIS LEAVE REMAIN TO HIS CREDIT, IS THE CREDIT FROZEN UNTIL HIS RETURN TO HIS CIVILIAN POSITION, REGARDLESS OF THE AMOUNT? IS THE CEILING APPLIED AT THE END OF THE LEAVE YEAR IN WHICH HE RETURNS?

THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, AS CODIFIED IN 5 U.S.C. 61A, IS AS FOLLOWS:

EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 137, AS CODIFIED IN 5 U.S.C. 2062 (C), PROVIDES AS FOLLOWS:

(C) THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE, SHALL ACCUMULATE FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT TO EXCEED THIRTY DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN ANY YEAR.

THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 137, AND THE ACT OF AUGUST 18. 1959, 73 STAT. 389, AS CODIFIED IN 5 U.S.C. 61B, PROVIDES IN PERTINENT PART, AS FOLLOWS:

WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH SECTION 61A OF THIS TITLE * * *, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, NO SUCH LUMP-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. * * *

THE ACT OF JULY 2, 1953, AMENDED THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, TO PRECLUDE PAYMENTS THEREUNDER FOR LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER FROM THE PRECEDING LEAVE YEAR, WHICHEVER IS GREATER. CONFERENCE REPORT ( HOUSE REPORT NO. 629), DATED JUNE 22, 1953, ACCOMPANYING H.R. 4654, WHICH BECAME THE ACT OF JULY 2, 1953, EXPLAINS THAT AMENDATORY PROVISION AS FOLLOWS:

SECTION 4 (A) OF THE CONFERENCE SUBSTITUTE AMENDS THE FIRST SECTION OF THE ACT OF DECEMBER 21, 1944, IN THE FOLLOWING RESPECTS: FIRST, THE LUMP- SUM PAYMENT FOR UNUSED ACCUMULATED LEAVE WHICH IS TO BE PAID TO AN OFFICER OR EMPLOYEE UPON HIS SEPARATION FROM THE SERVICE OR, IF HE SO ELECTS UPON HIS ENTRANCE INTO THE ARMED FORCES OF THE UNITED STATES OR THE MERCHANT MARINE OF THE UNITED STATES, SHALL NOT AFTER AUGUST 31, 1953, EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER.

IN LIGHT OF THE STATEMENT JUST QUOTED, IT IS CLEAR THAT THE LIMITATION ON THE AMOUNT OF LEAVE WHICH CAN BE PAID FOR IN A LUMP SUM IS APPLICABLE TO PERSONS ENTERING THE ARMED FORCES. THEREFORE, QUESTION A1 IS ANSWERED IN THE NEGATIVE.

CONCERNING QUESTION A2, AND AS PREVIOUSLY INDICATED, THE ACT OF AUGUST 1, 1941, AS AMENDED, NO LONGER PERMITS A CIVILIAN EMPLOYEE WHO ENTERS THE MILITARY SERVICE TO BE CARRIED ON THE ROLLS IN A CIVILIAN POSITION UNTIL HIS ANNUAL LEAVE IS EXHAUSTED FOR THE PURPOSE OF RECEIVING PAYMENT FOR SUCH LEAVE IN VIEW OF THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, REQUIRING PAYMENT THEREFOR IN A LUMP SUM WHEN A PERSON ELECTS TO BE PAID FOR SUCH LEAVE. WE ARE NOT AWARE OF ANY OTHER STATUTE SUCH AS 5 U.S.C. 30R, APPLICABLE TO RESERVISTS AND NATIONAL GUARDSMEN, WHICH WOULD AUTHORIZE ANNUAL LEAVE WITH PAY IN KIND AND MILITARY PAY OVER THE SAME PERIOD OF TIME WITHOUT REGARD TO THE DUAL EMPLOYMENT AND DUAL COMPENSATION STATUTES. CF. 20 COMP. GEN. 118.

NO ANSWER TO QUESTION A3 IS NECESSARY IN LIGHT OF OUR ANSWER TO QUESTION A2.

AS TO QUESTION A4, WE PREVIOUSLY HAVE HELD UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, AND SECTION 1 OF THE ACT OF DECEMBER 21, 1944, THAT AN EMPLOYEE MAY NOT ELECT TO BE PAID FOR PART OF HIS LEAVE AND HAVE THE BALANCE REMAIN TO HIS CREDIT. 24 COMP. GEN. 768. HOWEVER, WE ALSO HAVE HELD THAT IN A SITUATION WHEN THERE IS A RESTRICTION ON THE AMOUNT OF LEAVE FOR WHICH A PERSON MAY RECEIVE PAYMENT--- SUCH AS IS PRESENT IN THIS QUESTION--- THE EXCESS LEAVE MAY REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM THE MILITARY SERVICE. 22 COMP. GEN. 3; 23 ID. 96. THEREFORE, THE FIRST PART OF QUESTION A4 IS ANSWERED IN THE AFFIRMATIVE, AND THE ALTERNATE PART OF THAT QUESTION IS ANSWERED IN THE NEGATIVE, OUR VIEW BEING THAT THE ELECTION FOR PAYMENT OF LEAVE MUST EXTEND TO THE FULL AMOUNT FOR WHICH PAYMENT IS OTHERWISE POSSIBLE.

THE ACT OF AUGUST 1, 1941, AS AMENDED, SPECIFICALLY SAYS THAT AN EMPLOYEE IS ENTITLED TO HAVE BOTH ACCUMULATED AND CURRENT ACCRUED LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, THAT PORTION OF SUCH ACT NOT BEING AFFECTED BY THE LUMP SUM ACT OF DECEMBER 21, 1944. WE DO NOT BELIEVE THE MAXIMUM LIMITATION ON THE ACCUMULATION OF LEAVE CONTAINED IN THE ANNUAL AND SICK LEAVE ACT OF 1951, WAS INTENDED TO DISTURB ANY RIGHT GRANTED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, EVEN THOUGH THE CURRENT ACCRUED LEAVE MIGHT BE IN EXCESS OF THE LIMITATION AT THE END OF THE YEAR IN WHICH AN EMPLOYEE ENTERS THE MILITARY SERVICE. ON THE OTHER HAND, WE SEE NO REASON WHY SUCH MAXIMUM LIMITATION ON LEAVE ACCUMULATION SHOULD NOT BE APPLIED AT THE BEGINNING OF THE LEAVE YEAR FOLLOWING THE LEAVE YEAR IN WHICH AN EMPLOYEE IS RESTORED TO DUTY AND RECREDITED WITH HIS LEAVE. THEREFORE, BOTH PARTS OF THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE. (A5)

B. AN EMPLOYEE WHO IS CALLED INTO EXTENDED ACTIVE DUTY AS A RESERVIST HAS 30 DAYS ACCUMULATED LEAVE AND 15 DAYS CURRENT ACCRUED ANNUAL LEAVE TO HIS CREDIT. UNDER 5 U.S.C. 30R (C), IT HAS BEEN RECOGNIZED THAT HE MAY BE CARRIED ON THE AGENCY'S ROLLS IN AN ANNUAL LEAVE STATUS.

1. MAY HE NEVERTHELESS ELECT TO RECEIVE LUMP SUM PAYMENT FOR HIS LEAVE?

2. WOULD THE ANSWERS TO A1, A3, A4, OR A5 BE DIFFERENT IN THE CASE OF A RESERVIST?

ALTHOUGH, AS INDICATED, A RESERVIST MAY UNDER THE PROVISIONS OF 5 U.S.C. 30R, AS INTERPRETED IN 37 COMP. GEN. 255, AND DECISIONS CITED THEREIN, BE CARRIED ON AN AGENCY'S ROLLS UNTIL HIS ANNUAL LEAVE IS EXHAUSTED THAT FACTOR DOES NOT PRECLUDE HIS ELECTING TO RECEIVE A LUMP SUM PAYMENT FOR HIS LEAVE IF HE SO DESIRES. QUESTION B1 IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION B2 THE ANSWERS TO QUESTIONS A1, A4, AND A5 WOULD LIKEWISE BE APPLICABLE TO A RESERVIST.

WE DID NOT ANSWER QUESTION A3 BECAUSE, AS INDICATED IN THE ANSWER TO QUESTION A2, AN EMPLOYEE WHO IS NOT A RESERVIST OR NATIONAL GUARDSMAN CANNOT BE CARRIED ON THE ROLLS OF AN AGENCY IN AN ANNUAL LEAVE STATUS AND RECEIVE MILITARY PAY AT THE SAME TIME. ON THE OTHER HAND, A RESERVIST OR NATIONAL GUARDSMAN MAY BE CARRIED ON ANNUAL LEAVE WHILE RECEIVING HIS MILITARY PAY PURSUANT TO THE PROVISIONS OF 5 U.S.C. 30R. HOWEVER, IF HE REQUESTS TO BE CARRIED (AND IS SO CARRIED) ON ANNUAL LEAVE EXTENDING INTO THE NEXT LEAVE YEAR THE MAXIMUM LEAVE ACCUMULATION PROVISIONS OF SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, WOULD BE FOR APPLICATION. IF HE IS NOT CARRIED ON ANNUAL LEAVE EXTENDING INTO THE NEXT LEAVE YEAR, THE LEAVE CEILING WOULD NOT APPLY. SEE ANSWERS TO QUESTIONS A4 AND A5.

C. WHAT EFFECT, IF ANY, DOES THE 1953 AMENDMENT ( ACT OF JULY 2, 1953) TO THE LUMP SUM LEAVE PAYMENT ACT HAVE ON THE ACT OF AUGUST 1, 1941 AS AMENDED APRIL 7, 1942 (5 U.S.C. 61A/?

WE BELIEVE THIS QUESTION IS ANSWERED BY OUR ANSWERS TO THE PRECEDING QUESTIONS.

MILITARY LEAVE

THE QUESTIONS AND COMMENTS RELATING TO MILITARY LEAVE FOR CIVILIAN EMPLOYEES ENTERING UPON MILITARY DUTY ARE AS FOLLOWS:

1. AN EMPLOYEE TAKES 15 DAYS' MILITARY LEAVE IN AUGUST, 1960, TO TRAIN WITH HIS UNIT; IN APRIL, 1961, HIS UNIT GOES ON TRAINING DUTY AGAIN FOR TWO WEEKS, AND HE IS CHARGED ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR HIS ABSENCE. UNDER PUBLIC LAW 87-378, DOES HIS LEAVE RECORD HAVE TO BE ADJUSTED TO CHANGE THE CHARGE TO ANNUAL LEAVE OR LEAVE WITHOUT PAY TO MILITARY LEAVE SO AS TO PERMIT RECREDIT OF ANNUAL LEAVE, OR TO REQUIRE PAYMENT OF SALARY IF LEAVE WITHOUT PAY WAS CHARGED?

2. AN EMPLOYEE TAKES 15 DAYS OF MILITARY LEAVE IN APRIL 1961, AND 15 DAYS OF MILITARY LEAVE IN AUGUST 1961, WHICH WAS AUTHORIZED UNDER PUBLIC LAW 86 -559 BECAUSE TWO FISCAL YEARS WERE INVOLVED. UNDER PUBLIC LAW 87-378, MUST THE AGENCY ADJUST THE EMPLOYEE'S LEAVE ACCOUNT TO CHARGE THE SECOND PERIOD OF MILITARY LEAVE TO HIS ANNUAL LEAVE OR LEAVE WITHOUT PAY AS APPROPRIATE? OR MAY IT BE ALLOWED TO STAND AS GRANTED BECAUSE IT WAS PROPERLY GRANTED UNDER EXISTING LAW? IF THE SECOND PERIOD OF MILITARY LEAVE BEGAN JUNE 26, 1961 AND ENDED IN JULY 1961, MAY THE LEAVE RECORD OF EITHER ANNUAL LEAVE OR LEAVE WITHOUT PAY, AS THE CASE MAY BE, FOR THE PERIOD IN JUNE 1961 BE ADJUSTED TO SHOW THAT THOSE DAYS MAY BE CHARGED TO MILITARY LEAVE?

3. IF AN EMPLOYEE HAD 15 DAYS' MILITARY LEAVE IN APRIL 1961, AND HE ENTERED A SECOND PERIOD OF MILITARY LEAVE BEGINNING OCTOBER 1, 1961, MAY HE BE GRANTED THE FULL 15 DAYS OF THIS SECOND PERIOD AS MILITARY LEAVE WHICH WAS AUTHORIZED UNDER PUBLIC LAW 86-559, EVEN THOUGH IT CARRIED OVER INTO A PERIOD WHICH RAN ON AND AFTER OCTOBER 4, 1961, THE ENACTMENT DATE OF THE NEW LAW?

4. AN EMPLOYEE HAD 15 DAYS' MILITARY LEAVE IN JULY 1961 AND WAS ORDERED TO EXTENDED ACTIVE DUTY OCTOBER 15, 1961. MAY THIS EMPLOYEE BE GRANTED 15 DAYS' MILITARY LEAVE WHILE ON ACTIVE MILITARY DUTY AT ANY TIME BEGINNING JANUARY 1, 1962?

5. AN EMPLOYEE WAS GRANTED 12 DAYS' MILITARY LEAVE FOR A 15-DAY PERIOD OF TRAINING IN JULY 1961 (SEE 27 COMP. GEN. 245; ID. 353) LEAVING 3 DAYS' MILITARY LEAVE WHICH MAY REMAIN TO HIS CREDIT DURING THE YEAR 1961 FOR USE UNDER PUBLIC LAW 87-378. THE EMPLOYEE WAS ORDERED INTO EXTENDED ACTIVE DUTY OCTOBER 15, 1961. HE WAS GRANTED THE 3 DAYS OF MILITARY LEAVE WHICH CARRIED HIM ON CIVILIAN PAY FROM OCTOBER 16 THROUGH 18. MAY THIS EMPLOYEE RECEIVE 12 DAYS' MILITARY LEAVE IN 1962, BASED ON EARLIER INTERPRETATIONS THAT AN EMPLOYEE MAY BE GRANTED 15 DAYS OF MILITARY LEAVE IN ANY ONE PERIOD OF EXTENDED ACTIVE DUTY? (SEE 40 COMP. GEN. 186). IN THOSE CASES WHERE AGENCIES DID NOT GRANT THE 3 DAYS' MILITARY LEAVE WITHIN THE 1961 CALENDAR YEAR, MAY THIS EMPLOYEE BE GRANTED 15 DAYS' MILITARY LEAVE WHILE ON ACTIVE DUTY WHICH EXTENDED INTO THE 1962 CALENDAR YEAR? 6. MAY AN EMPLOYEE ELECT WHEN HE WOULD PREFER TO BE GRANTED 15 DAYS' MILITARY LEAVE TO WHICH HE MAY OTHERWISE BE ENTITLED DEPENDING ON HIS PERSONAL NEEDS OR DESIRES; OR MUST THE AGENCY DECIDE WHEN THIS LEAVE IS TO BE GRANTED? ARE VISUALIZING A CASE WHERE THE EMPLOYEE IS ON ACTIVE DUTY FOR A PERIOD BEGINNING LATE IN DECEMBER 1961 AND EXTENDING INTO 1963. COULD HE DECIDE THAT HE WOULD PREFER TO BE GIVEN HIS CIVILIAN PAY FOR THE 15 DAYS' MILITARY LEAVE DURING THE CHRISTMAS HOLIDAYS IN 1962, OR MUST THE AGENCY GRANT THE 15 DDYS' MILITARY LEAVE AT THE TIME OF ENTRY ON MILITARY DUTY? IF IT MUST BE GRANTED AT THE TIME OF ENTRY ON MILITARY DUTY, WHAT WOULD BE THE STATUS OF HIS ACCRUED ANNUAL LEAVE ACCOUNT AT THE END OF THE LEAVE YEAR (ASSUMING THAT HE WANTED TO, AND COULD, BE PAID IN KIND FOR THIS LEAVE/?

ANSWERS TO QUESTION 1:

THE RETROACTIVE DATE ( JANUARY 1, 1961) OF SECTION 7 OF PUBLIC LAW 87- 378, APPROVED OCTOBER 4, 1961 (FOR EMPLOYEES OTHER THAN SUBSTITUTE POSTAL EMPLOYEES) WAS ADOPTED IN LINE WITH A SUGGESTION BY OUR OFFICE (SEE PAGE 7 OF SENATE REPORT NO. 498). THE PURPOSE OF THE RETROACTIVE DATE IS TO PERMIT AN EMPLOYEE WHO PREVIOUSLY HAD BEEN GRANTED MILITARY LEAVE IN THE FIRST HALF OF FISCAL YEAR 1961, TO AGAIN BE GRANTED MILITARY LEAVE IN THE CALENDAR YEAR 1961 EVEN THOUGH IT WAS TAKEN IN THE SAME FISCAL YEAR AS THE FIRST TOUR OF MILITARY DUTY. THEREFORE, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE.

ANSWERS TO QUESTION 2:

SINCE THE CHARGE OF 15 DAYS' MILITARY LEAVE IN APRIL 1961 AND AN ADDITIONAL 15 DAYS MILITARY LEAVE IN AUGUST 1961 WAS LEGAL AND PROPER UNDER THE LAW AS IT EXISTED AT THAT TIME, NO ADJUSTMENT IN THE MILITARY LEAVE SO CHARGED IS NECESSARY. CF. 38 COMP. GEN. 103. AS TO THE EMPLOYEE WHO HAD 15 DAYS OF MILITARY LEAVE IN APRIL 1961, AND WHO AGAIN ENTERED ON MILITARY DUTY ON JUNE 26, 1961, WHICH EXTENDED INTO JULY 1961, IT IS APPARENT THAT THE CHARGING OF MILITARY LEAVE FOR THE PORTION OF THE MILITARY DUTY IN JUNE 1961 WAS PRECLUDED BY THE LAW IN EXISTENCE AT THAT TIME WHICH AUTHORIZED 15 DAYS OF MILITARY LEAVE DURING EACH FISCAL YEAR. ALSO, THE CHARGING OF SUCH PERIOD TO MILITARY LEAVE UNDER SECTION 7 OF PUBLIC LAW 87-378 WOULD LIKEWISE BE PRECLUDED IF THE RETROACTIVE PROVISION OF SUCH ACT BE APPLIED SINCE THE EMPLOYEE PREVIOUSLY HAD 15 DAYS OF MILITARY LEAVE IN THE CALENDAR YEAR 1961. WE BELIEVE THAT THE EMPLOYEE'S PERIOD OF MILITARY DUTY BEGINNING JUNE 26, 1961, AND ENDING IN JULY 1961, SHOULD BE CHARGED TO MILITARY LEAVE ONLY TO THE EXTENT IT WAS AUTHORIZED UNDER THE LAW IN EXISTENCE AT THAT TIME. THEREFORE, ONLY THE PERIOD OF DUTY ON AND AFTER JULY 1, 1961, MAY BE CHARGED TO MILITARY LEAVE. THE LATTER PART OF THIS QUESTION COVERING MILITARY LEAVE IN JUNE 1961 IS ANSWERED IN THE NEGATIVE.

ANSWER TO QUESTION 3:

SINCE MILITARY LEAVE IS CHARGED ON A DAILY BASIS WE DO NOT VIEW PUBLIC LAW 87-378, AFTER ITS ENACTMENT DATE AS DEPRIVING AN EMPLOYEE OF ANY VESTED RIGHTS SUCH AS IN THE CASE OF THE EMPLOYEE WHO HAS HAD A FULL PERIOD OF MILITARY LEAVE PRIOR TO SUCH ENACTMENT DATE. HENCE, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

ANSWER TO QUESTION 4:

WE HAVE HELD THAT THE APPLICABLE STATUTES DO NOT REQUIRE THAT THE FIRST 15 DAYS OF A LONGER PERIOD OF ACTIVE DUTY BE CONSIDERED AS MILITARY LEAVE AND THAT AN ADMINISTRATIVE AGENCY MAY CHARGE MILITARY LEAVE FOR A DIFFERENT PERIOD OF SUCH MILITARY DUTY IF WARRANTED IN A PARTICULAR CASE. 37 COMP. GEN. 313, 315. ALSO, WE GENERALLY HAVE RECOGNIZED THAT AN EMPLOYEE IS ENTITLED TO ONLY 15 DAYS OF MILITARY LEAVE FOR EACH TOUR OF MILITARY DUTY IF OTHERWISE ELIGIBLE. 40 COMP. GEN. 186. AN EMPLOYEE WHO HAS HAD 15 DAYS' MILITARY LEAVE COVERING A SEPARATE TOUR OF MILITARY DUTY PRIOR TO THE ENACTMENT DATE ( OCTOBER 4, 1961) OF PUBLIC LAW 87-378, WOULD BE PRECLUDED BY THE PROVISIONS OF THAT ACT FROM ANY FURTHER MILITARY LEAVE DURING THE CALENDAR YEAR 1961. HOWEVER, THE FACT THAT HE MAY NOT BE ENTITLED TO ANY FURTHER MILITARY LEAVE IN 1961, IS NOT VIEWED AS ERASING HIS ENTITLEMENT TO MILITARY LEAVE BEGINNING JANUARY 1, 1962, FOR HIS SECOND TOUR OF MILITARY DUTY, WHICH IS CONSISTENT WITH THE POLICY OF ALLOWING 15 DAYS OF MILITARY LEAVE FOR EACH TOUR OF DUTY IF AN EMPLOYEE OTHERWISE IS ELIGIBLE THEREFOR. THEREFORE, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE.

ANSWER TO QUESTION 5:

CONSISTENT WITH THE ANSWERS TO QUESTION 4, BOTH PARTS OF THIS QUESTION ARE ANSWERED IN THE AFFIRMATIVE.

ANSWER TO QUESTION 6:

THIS QUESTION IS ANSWERED BY SAYING THAT ONLY THE AGENCY HAS THE DISCRETION TO DETERMINE WHEN THE MILITARY LEAVE SHOULD BE GRANTED IF THE PERIOD OF MILITARY DUTY IS FOR MORE THAN 15 DAYS. ORDINARILY, AN AGENCY SHOULD CHARGE THE FIRST 15 DAYS OF MILITARY DUTY TO MILITARY LEAVE.