B-147031, SEP. 11, 1961

B-147031, SEP. 11, 1961

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION:

ON AUGUST 22, 1961, THE DEPUTY ADMINISTRATOR, VETERANS ADMINISTRATION, REQUESTED OUR DECISION UPON CERTAIN QUESTIONS CONCERNING THE GRANTING OF HOME LEAVE UNDER PUBLIC LAW 86-116, 73 STAT. 265 TO EMPLOYEES OF THE VETERANS ADMINISTRATION REGIONAL OFFICE, MANILA, PHILIPPINE ISLANDS.

THE DEPUTY ADMINISTRATOR SAYS THAT PUBLIC LAW 86-116 GAVE THE HEAD OF THE VETERANS ADMINISTRATION AUTHORITY TO ESTABLISH A POLICY ON ACCRUAL AND USE OF HOME LEAVE FOR ALL ITS UNITED STATES CITIZEN EMPLOYEES IN MANILA. UNDER THE PROVISIONS OF PUBLIC LAW 86-507 AND REGULATIONS ISSUED PURSUANT THERETO THAT AUTHORITY WAS TRANSFERRED TO THE CIVIL SERVICE COMMISSION FOR EMPLOYEES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951. THE VETERANS ADMINISTRATION HAS RETAINED THAT AUTHORITY, HOWEVER, FOR PHYSICIANS, DENTISTS, AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY AND HAS MADE THE POLICY DETERMINATION THAT GENERALLY THEIR HOME LEAVE BENEFITS SHOULD BE CONSISTENT WITH THOSE PRESCRIBED BY THE CIVIL SERVICE COMMISSION FOR OTHER EMPLOYEES.

UNDER VETERANS ADMINISTRATION POLICY STATEMENT, ISSUED BY THE VETERANS ADMINISTRATION PURSUANT TO PUBLIC LAW 86-116, EMPLOYEES WHO RETURNED TO THE UNITED STATES FOR FURTHER EMPLOYMENT WITH THE VETERANS ADMINISTRATION IN THE UNITED STATES WERE ALLOWED TO USE ANY HOME LEAVE TO THEIR CREDIT GRANTED BY PUBLIC LAW 86-116. UNDER THE PROVISIONS OF REGULATION 30.606 (C), PROMULGATED BY THE CIVIL SERVICE COMMISSION ON JANUARY 17, 1961, AND EFFECTIVE THE FIRST DAY OF THE FIRST PAY PERIOD AFTER SEPTEMBER 6, 1960, PURSUANT TO TITLE IV, PUBLIC LAW 86-707, AN EMPLOYEE MAY BE GRANTED HOME LEAVE AFTER HIS RETURN FROM SERVICE ABROAD ONLY WHEN IT IS CONTEMPLATED THAT HE WILL RETURN TO SERVICE ABROAD IMMEDIATELY OR UPON COMPLETION OF AN ASSIGNMENT IN THE UNITED STATES. THE DEPUTY ADMINISTRATOR SAYS THAT THE REQUIREMENT FOR FURTHER SERVICE ABROAD HAS GIVEN RISE TO SEVERAL QUESTIONS ON THE GRANTING OF HOME LEAVE (EARNED UNDER PUBLIC LAW 86-116) UPON TRANSFER OF AN EMPLOYEE TO A VETERANS ADMINISTRATION STATION IN THE UNITED STATES.

A SPECIFIC CASE IN POINT IS THAT OF MR. ROBERT L. BERRY. EFFECTIVE SEPTEMBER 21, 1958, MR. BERRY WAS ASSIGNED TO A POSITION OF SUPERVISING GENERAL ATTORNEY, GRADE CS-13, VETERANS ADMINISTRATION REGIONAL OFFICE, MANILA, PHILIPPINE ISLANDS, BY CHANGE OF HEADQUARTERS AND PROMOTION FROM A POSITION IN THE CENTRAL OFFICE OF THE VETERANS ADMINISTRATION, WASHINGTON, D.C. HE REMAINED ON DUTY AT MANILA THROUGH NOVEMBER 18, 1960. FROM JULY 28, 1959, THE APPROVAL DATE OF PUBLIC LAW 86-116, THROUGH NOVEMBER 18, 1960, HE ACCRUED HOME LEAVE FOR USE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS UNDER THAT ACT AND INSTRUCTIONS ISSUED BY THE VETERANS ADMINISTRATION.

ON NOVEMBER 19, 1960, MR. BERRY DEPARTED FROM THE MANILA REGIONAL OFFICE FOR REASSIGNMENT TO A POSITION IN THE VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C., EFFECTIVE JANUARY 16, 1961. UNDER VETERANS ADMINISTRATION REGULATIONS IN EFFECT AT THAT TIME, IT IS REPORTED THAT HE WAS ENTITLED TO USE HIS HOME LEAVE IN THE UNITED STATES EVEN THOUGH IT WAS KNOWN HE WOULD NOT RETURN TO MANILA FOR ANOTHER TOUR OF DUTY.

ON JANUARY 17, 1961, THE CIVIL SERVICE COMMISSION PUBLISHED ITS REGULATIONS IMPLEMENTING PUBLIC LAW 86-707. THOSE REGULATIONS PROVIDE THAT HOME LEAVE MAY BE GRANTED TO AN EMPLOYEE DURING A PERIOD OF SERVICE ABROAD OR WITHIN A REASONABLE TIME AFTER HIS RETURN FROM SERVICE ABROAD WHEN IT IS CONTEMPLATED THAT HE WILL RETURN TO SERVICE ABROAD IMMEDIATELY OR UPON COMPLETION OF AN ASSIGNMENT IN THE UNITED STATES. THOSE REGULATIONS ALSO PROVIDE THAT HOME LEAVE TO THE CREDIT OF THE EMPLOYEE ON THE DAY PRECEDING THEIR EFFECTIVE DATE SHALL BE AVAILABLE FOR USE IN ACCORDANCE WITH PUBLIC LAW 86-707 AND THE COMMISSION'S REGULATIONS. BECAUSE OF THOSE REGULATIONS--- WHICH WERE RETROACTIVE TO SEPTEMBER 18, 1960, FOR EMPLOYEES OF THE VETERANS ADMINISTRATION--- MR. BERRY HAS NOT BEEN GRANTED ANY OF HIS HOME LEAVE. INSTEAD, EXCEPT FOR THE TRAVEL TIME INVOLVED, HE HAS BEEN CHARGED ANNUAL LEAVE FOR THE PERIOD BETWEEN HIS DEPARTURE FROM THE MANILA REGIONAL OFFICE AND HIS REPORTING FOR DUTY AT THE VETERANS ADMINISTRATION CENTRAL OFFICE IN WASHINGTON, D.C. THE FOLLOWING IS A BREAKDOWN OF HIS LEAVE STATUS DURING THE PERIOD IN QUESTION.

NOVEMBER 19 THROUGH NOVEMBER 27, 1960--- ANNUAL LEAVE STATUS

NOVEMBER 28 THROUGH DECEMBER 18, 1960--- TRAVEL STATUS

DECEMBER 19, 1960, THROUGH JANUARY 15, 1961--- ANNUAL LEAVE STATUS

THE FOLLOWING QUESTIONS ARE SUBMITTED:

"QUESTION 1: IN MR. BERRY'S CASE FOR THE PERIOD OF DECEMBER 19, 1960 THROUGH JANUARY 15, 1961, EXCLUSIVE OF USE OF ANNUAL LEAVE TO REDUCE HIS LEAVE TO HIS CEILING OF 360 HOURS, ARE WE CORRECT IN CHARGING THE REMAINING ABSENCE TO HOME LEAVE EARNED UNDER PUBLIC LAW 86-116 EVEN THOUGH NO RETURN TO OVERSEAS ASSIGNMENT IS CONTEMPLATED?

"QUESTION 2: IF WE ARE PERMITTED TO GRANT HOME LEAVE TO MR. BERRY FOR PART OF THE PERIOD FROM DECEMBER 19, 1960 THROUGH JANUARY 15, 1961 REFERRED TO ABOVE, HE WILL STILL HAVE SOME HOME LEAVE TO HIS CREDIT THAT WAS EARNED UNDER PUBLIC LAW 86-116. MAY IT BE GRANTED AT THE DISCRETION OF THE DEPARTMENT HEAD CONCERNED EVEN THOUGH NO RETURN TO OVERSEAS DUTY IS CONTEMPLATED? * * *.

"QUESTION 3: OTHER EMPLOYEES OF THE MANILA OFFICE EARNED HOME LEAVE UNDER PUBLIC LAW 86-116. (THE LEAVE WAS EARNED PRIOR TO SEPTEMBER 18, 1960 BY EMPLOYEES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT, AND PRIOR TO FEBRUARY 5, 1961 BY PHYSICIANS, DENTISTS, AND NURSES APPOINTED IN THE DEPARTMENT OF MEDICINE AND SURGERY UNDER CHAPTER 73, TITLE 38, USC). CONSISTENT WITH THE REGULATIONS UNDER WHICH IT WAS EARNED, MAY THIS HOME LEAVE NOW BE GRANTED TO SUCH AN EMPLOYEE WHO TRANSFERS TO A VETERANS ADMINISTRATION STATION IN THE UNITED STATES EVEN THOUGH THERE IS NO CONTEMPLATION THAT HE WILL RETURN TO AN OVERSEAS STATION UPON COMPLETION OF THE ASSIGNMENT IN THE UNITED STATES?

"QUESTION 4: WE ASSUME YOUR ANSWER TO QUESTION 3 WILL BE THE SAME FOR BOTH CLASSES OF EMPLOYEES, BUT IF IT SHOULD BE IN THE NEGATIVE FOR ANNUAL AND SICK LEAVE ACT EMPLOYEES BECAUSE OF CIVIL SERVICE REGULATION 30.606 (C) ISSUED PURSUANT TO TITLE IV, PUBLIC LAW 86-707, MAY THE HOME LEAVE BE GRANTED TO PHYSICIANS, DENTISTS, AND NURSES IN THE DEPARTMENT OF MEDICINE AND SURGERY WHO ARE NOT SUBJECT TO THE LEAVE ACT OR TO CIVIL SERVICE REGULATIONS, BUT FOR WHOM WE HAVE ESTABLISHED SIMILAR REGULATIONS?

PUBLIC LAW 86-116, APPROVED JULY 28, 1959, WHICH AUTHORIZED CERTAIN ALLOWANCES AND BENEFITS TO PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE UNITED STATES CITIZENS AND ARE ASSIGNED TO THE VETERANS ADMINISTRATION OFFICE IN THE REPUBLIC OF THE PHILIPPINES, PROVIDES IN PART AS FOLLOWS:

"/A) THE ADMINISTRATOR MAY, UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT OR HIS DESIGNEE, PROVIDE TO PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE UNITED STATES CITIZENS AND ARE ASSIGNED BY THE ADMINISTRATOR TO THE VETERANS' ADMINISTRATION OFFICE IN THE REPUBLIC OF THE PHILIPPINES, ALLOWANCES AND BENEFITS SIMILAR TO THOSE PROVIDED BY THE FOLLOWING SECTIONS OF THE FOREIGN SERVICE ACT OF 1946:

"/7) SECTION 933 (RELATING TO THE RETURN OF PERSONNEL TO THE UNITED STATES ON LEAVE OF ABSENCE).

"/B) PERSONNEL OF THE VETERANS' ADMINISTRATION WHO ARE UNITED STATES CITIZENS AND ARE ASSIGNED TO THE REPUBLIC OF THE PHILIPPINES BY THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY BE GRANTED LEAVES OF ABSENCE IN THE UNITED STATES, BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, SIMILAR TO THAT PROVIDED BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 (5 U.S.C. 2061 (F) ).'

TITLE 5 U.S.C. 2062 (F), AS OF JULY 28, 1959, READS AS FOLLOWS:

"/F) SPECIAL LEAVE PROVISIONS FOR FOREIGN SERVICE PERSONNEL.

"OFFICERS AND EMPLOYEES IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE MAY BE GRANTED LEAVE OF ABSENCE, WITHOUT REGARD TO ANY OTHER LEAVE PROVIDED BY THIS CHAPTER, FOR USE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, AT A RATE EQUIVALENT TO ONE WEEK FOR EACH FOUR MONTHS OF SERVICE OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA. SUCH LEAVE MAY BE ACCUMULATED FOR FUTURE USE WITHOUT REGARD TO THE LIMITATION IN SUBSECTION (C) OF THIS SECTION BUT NO SUCH LEAVE WHICH IS NOT USED SHALL BE MADE THE BASIS FOR ANY TERMINAL LEAVE OR LUMP-SUM PAYMENT.'

SECTION 933 (A) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 22 U.S.C. 1148, 1958 EDITION, PROVIDES:

"/A) THE SECRETARY SHALL ORDER TO THE CONTINENTAL UNITED STATES, ITS TERRITORIES AND POSSESSIONS, ON STATUTORY LEAVE OF ABSENCE EVERY OFFICER AND EMPLOYEE OF THE SERVICE WHO IS A CITIZEN OF THE UNITED STATES UPON COMPLETION OF TWO YEARS' CONTINUOUS SERVICE ABROAD OR AS SOON AS POSSIBLE THEREAFTER.'

THE PURPOSE OF THE ABOVE-QUOTED PROVISIONS OF PUBLIC LAW 86-116 WAS TO PROVIDE FOR PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE UNITED STATES CITIZENS AND ASSIGNED TO THE REGIONAL OFFICE AT MANILA, HOME LEAVE BENEFITS SIMILAR TO THOSE PROVIDED UNDER SECTION 933 OF THE FOREIGN SERVICE ACT OF 1946, AND SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951.

PARAGRAPH 453.43, PART IV, OF THE FOREIGN SERVICE MANUAL (IN EFFECT AT THE TIME OF PASSAGE OF PUBLIC LAW 86-116) PROVIDES AS FOLLOWS:

"453.43 HOME LEAVE WILL BE GRANTED WHEN IT IS PLANNED THAT THE EMPLOYEE WILL RETURN TO AND COMPLETE A TOUR OF DUTY ABROAD, EITHER IMMEDIATELY OR UPON COMPLETION OF AN ASSIGNMENT IN THE UNITED STATES. AN EMPLOYEE WHO RESIGNS DURING HOME LEAVE SHALL BE INDEBTED TO THE UNITED STATES FOR AN AMOUNT EQUIVALENT TO THE SALARY PAYMENTS MADE FOR THE PERIOD CHARGED TO HOME LEAVE.'

THE ABOVE-QUOTED PARAGRAPH WAS PROMULGATED BY THE DEPARTMENT OF STATE TO PROVIDE A UNIFORM PROCEDURE FOR ADMINISTERING THE HOME LEAVE AUTHORIZED FOR OFFICERS AND EMPLOYEES IN THE FOREIGN SERVICE OF THE UNITED STATES BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680. THIS PROCEDURE CONFORMS WITH THE APPARENT INTENT OF THE CONGRESS TO PROVIDE HOME LEAVE ONLY FOR OFFICERS AND EMPLOYEES IN THE FOREIGN SERVICE WHO ARE EXPECTED TO RETURN TO ASSIGNMENTS OVERSEAS.

IN VIEW OF THE FOREGOING COMMENTS, IT IS APPARENT THAT CONGRESS IN PASSING P.L. 86-116 INTENDED THAT ELIGIBLE EMPLOYEES OF THE VETERANS ADMINISTRATION ASSIGNED TO AN OFFICE IN THE PHILIPPINES BE GRANTED HOME LEAVE ONLY IF THEY ARE TO RETURN TO ASSIGNMENTS OVERSEAS. ALSO, WE DIRECT YOUR ATTENTION TO SECTION 511 (B), PUBLIC LAW 86-707, AND THE LEGISLATIVE HISTORY THEREOF, PARTICULARLY PP. 29-31 OF HOUSE OF REPRESENTATIVES REPORT NO. 902, 86TH CONGRESS, ON H.R. 7758 (ENACTED AS PUBLIC LAW 86-707). THE QUESTIONS PRESENTED IN THE DEPUTY ADMINISTRATOR'S LETTER ARE, THEREFORE, ANSWERED AS FOLLOWS:

QUESTION 1 IS ANSWERED IN THE NEGATIVE.

QUESTION 2 IS ANSWERED IN THE NEGATIVE.

QUESTION 3 IS ANSWERED IN THE NEGATIVE.