A-84247, NOVEMBER 23, 1938, 18 COMP. GEN. 467

A-84247, NOVEMBER 23, 1938, 18 COMP. GEN. 467

LEAVES OF ABSENCE - ANNUAL - FOREIGN SERVICE ACCUMULATION LIMITATIONS SECTION 22, ACT FEBRUARY 23, 1931, 46 STAT. 1210, LIMITING THE AMOUNT OF ANNUAL LEAVE WHICH MAY BE ACCUMULATED BY FOREIGN SERVICE OFFICERS AND EMPLOYEES OF THE STATE DEPARTMENT TO 120 DAYS IN 3 YEARS OR 180 DAYS IN 4 YEARS, ALSO OPERATES AS A LIMITATION ON THE PERIOD OVER WHICH THE ACCUMULATION MAY OCCUR, AND THE MAXIMUM AMOUNT OF ANNUAL LEAVE AN OFFICER MAY HAVE IN THE CURRENT YEAR IS THE UNUSED LEAVE FOR THE PERIODS AS SO LIMITED PLUS CURRENT LEAVE. 17 COMP. GEN. 697, AFFIRMED, AND LEAVE ACT OF CIVILIAN OFFICERS AND EMPLOYEES OF MARCH 14, 1936, 49 STAT. 1161, AND LEAVE REGULATIONS FOR PANAMA CANAL, 7 COMP. GEN. 83, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO SECRETARY OF STATE, NOVEMBER 23, 1938:

YOUR LETTER OF OCTOBER 24, 1938, IS AS FOLLOWS:

THE RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF MARCH 2, 1938 (A 84247), IN REPLY TO MINE OF JANUARY 12, WITH REFERENCE TO THE INTERPRETATION OF THAT PORTION OF SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, DEALING WITH COMPUTATION OF LEAVE OF ABSENCE FOR FOREIGN SERVICE OFFICERS AND EMPLOYEES.

IN PRACTICE, I BELIEVE THAT THE APPLICATION OF YOUR DECISION MAY RESULT IN CONSIDERABLE HARDSHIP IN SOME CASES. IN EXAMINING OUR CORRESPONDENCE I FIND TO MY REGRET THAT ALL FACTORS AFFECTING THE PROBLEM HAVE NOT PREVIOUSLY BEEN SET FORTH. I WOULD THEREFORE APPRECIATE IT IF YOU WOULD RE-EXAMINE THE QUESTION IN THE LIGHT OF THE FOLLOWING CONSIDERATIONS:

THE STATUTORY PROVISION THAT THE SECRETARY OF STATE "IS AUTHORIZED, IN HIS DISCRETION AND SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED BY THE PRESIDENT," TO GRANT NOT TO EXCEED 60 DAYS' ANNUAL LEAVE WITH PAY OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE IS CLEARLY INTENDED TO GIVE THE SECRETARY FREEDOM FROM FIXED AND ARBITRARY LEGISLATIVE RESTRICTIONS AND OBLIGATIONS IN GRANTING LEAVE TO THE OFFICERS AND EMPLOYEES UNDER HIS JURISDICTION. IT WAS NOT INTENDED THAT ANNUAL LEAVE OF ABSENCE OF 60 DAYS WHICH WAS NOT SEASONABLY GRANTED SHOULD BE FORFEITED. THE EXIGENCIES OF THE SERVICE WERE ALWAYS TO BE THE PRIMARY CONSIDERATION OF THE SECRETARY OF STATE IN DECIDING WHETHER TO GRANT APPLICATIONS FOR LEAVE.

WHEN THE ACT OF FEBRUARY 23, 1931, WAS BEING CONSIDERED BY THE CONGRESS, THERE WERE NO PRINTED HEARINGS, AND NO COMMITTEE REPORT WAS PUBLISHED OTHER THAN A BRIEF CONFERENCE REPORT PUBLISHED AS HOUSE REPORT NO. 2702, 71ST CONGRESS, ON FEBRUARY 17, 1931. THIS REPORT MENTIONED THE CUMULATIVE LEAVE FEATURE OF SECTION 22 OF THE ACT BUT CONTAINS NO DISCUSSION THEREOF AND GIVES NO CLUE AS TO WHAT WERE THE SPECIFIC OBJECTIVES OF THE COMMITTEE. THE INTENTION OF THE CONGRESS, THEN, IN PASSING THIS ACT CANNOT NOW BE DETERMINED FROM INTERNAL EVIDENCE, BUT IT MUST, I THINK, BE ASSUMED THAT IN AUTHORIZING A MAXIMUM OF 60 DAYS' ANNUAL LEAVE THE CONGRESS EXPECTED THAT OFFICERS WOULD, NORMALLY, BE PERMITTED TO AVAIL THEMSELVES OF IT, OR AT LEAST A SUBSTANTIAL PART OF IT.

PURSUANT TO THE PROVISIONS OF THE ACT OF FEBRUARY 23, 1931, THE PRESIDENT ISSUED EXECUTIVE ORDER NO. 5642 OF JUNE 8, 1931, WHICH PROVIDES IN PART AS FOLLOWS:

"467. CONDITIONS UNDER WHICH LEAVES OF ABSENCE ARE GRANTED.--- LEAVE OF ABSENCE IS GRANTED, WITHIN STATUTORY LIMITATIONS, AT THE DISCRETION OF THE PRESIDENT, ACTING THROUGH THE SECRETARY OF STATE. LEAVES OF ABSENCE ARE OF THREE KINDS: SIMPLE LEAVE, LEAVE WITH PERMISSION TO VISIT THE UNITED STATES, AND SICK LEAVE. A CONSULAR OFFICER MUST RECEIVE EXPRESS PERMISSION TO RETURN TO THE UNITED STATES, IN ORDER THAT HE MAY BE ENTITLED TO THE BENEFIT OF THE STATUTORY ALLOWANCE OF SALARY IN TRANSIT.

"/A) SIMPLE LEAVE AND HOME LEAVE.--- THE SECRETARY OF STATE IS AUTHORIZED TO GRANT TO ANY OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE WHO IS AN AMERICAN CITIZEN, IN ACCORDANCE WITH LAW AND SUBJECT TO SUCH RULES AS MAY BE ESTABLISHED IN THE INTERESTS OF AND WITH DUE REGARD FOR THE EXIGENCIES OF THE SERVICE, NOT TO EXCEED 60 DAYS ANNUAL LEAVE OF ABSENCE WITH PAY. IF SUCH OFFICER OR EMPLOYEE RETURNS TO THE UNITED STATES, THE LEAVE OF ABSENCE GRANTED SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO HIS RESIDENCE OR DESTINATION IN THE UNITED STATES AND IN RETURNING TO HIS POST BY THE MOST DIRECT ROUTE, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING. ANY PORTION OF 60 DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE, NOT TO EXCEED, EXCLUSIVE OF TIME IN TRANSIT AND AWAITING SAILING, 120 DAYS IN THREE YEARS OR 180 DAYS IN FOUR YEARS. (ACT OF FEB. 23, 1931, SEC. 22.)

"468. LEAVE OF ABSENCE DISCRETIONARY WITH PRESIDENT.--- THE STATUTES LIMIT THE PERIOD OF A CONSULAR OFFICER'S OR EMPLOYEE'S ABSENCE FROM HIS POST, BUT DO NOT REQUIRE THAT HE BE GIVEN LEAVE OF ABSENCE EACH YEAR. (ACT OF FEB. 23, 1931, SEC. 22.) THE PRESIDENT, ACTING THROUGH THE DEPARTMENT OF STATE WILL DETERMINE IN EACH CASE WHETHER AN OFFICER OR EMPLOYEE MAY BE ABSENT.'

EXERCISING THE DISCRETION GRANTED IN THE ACT, AND UNDER THE FURTHER AUTHORITY GRANTED BY THE PRESIDENT IN EXECUTIVE ORDER, NO. 5642 OF JUNE 8, 1931, THE SECRETARY OF STATE ON JUNE 15, 1931, PRESCRIBED CERTAIN CHANGES IN THE INSTRUCTIONS TO DIPLOMATIC OFFICERS AND IN THE CONSULAR REGULATIONS, AMONG THEM THE FOLLOWING (SEC. 467, NOTE 10, CONSULAR REGULATIONS):

"NOTE 10. CUMULATIVE LEAVE.--- SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, AND PARTICULARLY THAT PART OF THE SECTION AUTHORIZING ANY PORTION OF THE ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR TO BECOME CUMULATIVE, ENABLES THE SECRETARY OF STATE IN HIS DISCRETION AND SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED BY THE PRESIDENT, TO GRANT TO EVERY OFFICER AND AMERICAN EMPLOYEE ADEQUATE LEAVES OF ABSENCE. HOWEVER, UNTIL SUFFICIENT PERSONNEL IN THE FOREIGN SERVICE IS AVAILABLE TO MAKE IT PRACTICABLE FOR THE DEPARTMENT TO GRANT THE MAXIMUM AMOUNT OF LEAVE AUTHORIZED BY THE STATUTE, IT WILL PROBABLY BE IMPRACTICABLE TO GRANT SUCH MAXIMUM LEAVE TO OFFICERS AND AMERICAN EMPLOYEES EXCEPT IN CASES OF UNHEALTHFUL CONDITIONS PREVAILING AT THEIR POSTS; THEIR ILLNESS OR THAT OF THEIR IMMEDIATE FAMILIES; OR OTHER EXTRAORDINARY CIRCUMSTANCES. THEREFORE, APPLICATION FOR CUMULATIVE LEAVE (IN EXCESS OF 60 DAYS) SHOULD NOT BE MADE UNLESS THE ACCUMULATION REQUESTED COVERS A PERIOD OF THREE OR FOUR CALENDAR YEARS.'

THE CONDITIONS AS TO LACK OF PERSONNEL WHICH EXISTED ON JUNE 15, 1931, AS SET FORTH ABOVE STILL EXIST AND THE FOREGOING INSTRUCTION IS STILL IN EFFECT. I BELIEVE THAT IN INTERPRETING THE ACT AND REGULATIONS ISSUED THEREUNDER YOU MAY TAKE NOTICE OF THE UNSETTLED STATE OF INTERNATIONAL RELATIONS EXISTING BEFORE THE ACT WAS ENACTED AND BECOMING MORE SERIOUS AS TIME HAS PASSED. DUE TO WARLIKE CONDITIONS AND UNFORESEEN EMERGENCIES IT HAS NOT SEEMED ADVISABLE OR IN THE INTEREST OF THE GOVERNMENT TO GRANT LEAVE OF ABSENCE TO SOME OF THESE PERSONS, WHOSE SERVICES ARE INDISPENSABLE IN HANDLING DELICATE NEGOTIATIONS AND SPECIAL PROBLEMS.

AS PROVIDED ELSEWHERE IN THE INSTRUCTIONS TO DIPLOMATIC OFFICERS AND CONSULAR REGULATIONS, SIMPLE OR LOCAL LEAVE OF ABSENCE IS GENERALLY RESTRICTED TO 30 DAYS IN ANY ONE YEAR; AND LEAVE OF ABSENCE WITH PERMISSION TO VISIT THE UNITED STATES IS USUALLY RESTRICTED TO 60 DAYS. (SEE SEC. 467, CONSULAR REGULATIONS, NOTES 2 AND 10.) THUS BY AUTHORIZED ADMINISTRATIVE ACTION THE SECRETARY OF STATE HAS, IN THE INTEREST OF THE GOVERNMENT, PREVENTED FOREIGN SERVICE OFFICERS AND AMERICAN EMPLOYEES FROM AVAILING THEMSELVES OF THE FULL AMOUNT OF LEAVE WHICH THE CONGRESS INTENDED THAT THEY MIGHT HAVE WHEN THE ACT OF FEBRUARY 23, 1931, WAS PASSED. THE UNUSED PORTION OF SUCH LEAVE HAS, HOWEVER, IN ACCORDANCE WITH THE LAW, BEEN RECORDED IN EACH INDIVIDUAL CASE, ACCUMULATED TO THE CREDIT OF THE OFFICER OR EMPLOYEE CONCERNED, TO BE AVAILABLE TO HIM AT SUCH TIME AS THE SECRETARY OF STATE, EXERCISING THE DISCRETION GRANTED HIM IN THE LAW, MAY DEEM IT IN THE PUBLIC INTEREST TO AUTHORIZE. YOUR DECISION AS EXPRESSED IN YOUR LETTER OF MARCH 2, 1938, WILL OPERATE TO DEPRIVE THE GREAT MAJORITY OF FOREIGN SERVICE OFFICERS AND AMERICAN EMPLOYEES OF PORTIONS OF THEIR LEGAL LEAVE OF ABSENCE. TO AVOID COMPELLING THEM THUS TO FORFEIT AN EARNED RIGHT TO LEAVE OF ABSENCE WITHHELD FROM THEM AT THE TIME OF ACCRUAL BY ADMINISTRATIVE ACTION FOR THE GOOD OF THE SERVICE, IT WOULD BE NECESSARY TO GRANT ALL ACCUMULATED LEAVE EVERY THIRD OR FOURTH YEAR WHICH EMPHATICALLY WOULD NOT, BECAUSE OF WORLD CONDITIONS AND THE SHORTAGE OF SUFFICIENT PERSONNEL, AT THIS TIME BE IN THE PUBLIC INTEREST.

YOUR LETTER OF MARCH 18, 1937 (A-84247), 16 COMP. GEN. 874, HOLDS IN EFFECT THAT WHEN LEAVE OF ABSENCE IS GRANTED TO AN OFFICER IN ANY GIVEN YEAR IT MAY BE CHARGED TO ACCUMULATED UNUSED LEAVE FROM PRIOR YEARS, THEN STANDING TO HIS CREDIT, THE STATUTORY LEAVE OF 60 DAYS FOR THE CURRENT YEAR BECOMING UNUSED LEAVE FOR CUMULATIVE PURPOSES IN SUBSEQUENT YEARS. THIS INTERPRETATION IS INDEED HELPFUL AND A PARTIAL SOLUTION OF THE PROBLEM HEREIN DISCUSSED, BUT IT IS APPARENT THAT IT WILL NOT DO FULL JUSTICE TO ALL CASES; FOR UNDER THE TERMS OF YOUR LETTER OF MARCH 2, 1938, LEAVE ACCUMULATED FROM FIVE OR MORE YEARS PRIOR TO THE YEAR IN WHICH LEAVE IS GRANTED COULD NOT BE USED, BUT WOULD IRRETRIEVABLY BE LOST.

IT IS DIFFICULT TO BELIEVE THE PROVISION THAT UNUSED STATUTORY LEAVE MIGHT BE CUMULATIVE "NOT TO EXCEED * * * 120 DAYS IN THREE YEARS OR 180 DAYS IN FOUR YEARS" WAS INTENDED BY THE CONGRESS TO OPERATE TO DEPRIVE OFFICERS AND EMPLOYEES OF ANY LEAVE OF ABSENCE WITH PAY AUTHORIZED AND EARNED AT THE RATE OF 60 DAYS PER ANNUM. MEMBERS AND COMMITTEES OF THE CONGRESS HAVE ON MORE THAN ONE OCCASION EXPRESSED THE VIEW THAT IT IS IN THE INTEREST OF THE UNITED STATES THAT FOREIGN SERVICE OFFICERS RETURN TO THIS COUNTRY AT REGULAR INTERVALS TO MAINTAIN AND RENEW CONTACTS WITH THE COUNTRY THEY REPRESENT ABROAD; SO MUCH SO THAT IN RECENT YEARS THE CONGRESS HAS MADE APPROPRIATIONS TO PERMIT THE SECRETARY OF STATE TO PAY TRAVELING EXPENSES OF OFFICERS COMING HOME ON LEAVE (E.G., DEPARTMENT OF STATE APPROPRIATION ACT, 1939, PUBLIC NO. 495, SEVENTY-FIFTH CONGRESS, APPROVED APRIL 27, 1938, WHEREIN THE FOLLOWING LANGUAGE IS FOUND: "TRANSPORTATION, FOREIGN SERVICE: TO PAY THE TRAVELING EXPENSES * * * OF DIPLOMATIC, CONSULAR, AND FOREIGN SERVICE OFFICERS * * * INCLUDING NOT TO EXCEED $110,000 FOR EXPENSES INCURRED IN CONNECTION WITH LEAVES OF ABSENCE

THE RESTRICTION ON ACCUMULATION OF LEAVE OF 120 DAYS IN THREE YEARS OR 180 DAYS IN FOUR YEARS IS NOT PHRASED AS A STATUTE OF LIMITATIONS RESULTING IN FORFEITURE OF LEAVE NOT AUTHORIZED BY THE SECRETARY OF STATE, BUT IS FOR THE PURPOSE OF INDICATING THE MAXIMUM LENGTH OF ABSENCE FROM THEIR OFFICIAL POST WHICH MAY BE AUTHORIZED IN THREE OR FOUR YEARS, RESPECTIVELY. IF FORFEITURE UNDER A STATUTE OF LIMITATIONS WERE INTENDED IT WOULD HAVE BEEN PLAINLY SO STATED IN THE ACT AND ONLY ONE PERIOD OF LIMITATION, NAMELY, 120 DAYS IN THREE YEARS, WOULD HAVE BEEN STATED. THE INTERPRETATION GIVEN THE ACT BY THIS DEPARTMENT TO THE EFFECT THAT THIS STATUTE DID NOT CONTEMPLATE FORFEITURE OF CUMULATIVE LEAVE IS ENTITLED TO GREAT WEIGHT IN THE CONSTRUCTION TO BE GIVEN TO ITS LANGUAGE. IN THIS CONNECTION REFERENCE IS MADE TO THE FOLLOWING EXTRACTS:

"IT IS A SETTLED RULE THAT THE PRACTICAL INTERPRETATION OF AN AMBIGUOUS OR DOUBTFUL STATUTE THAT HAS BEEN ACTED UPON BY OFFICIALS CHARGED WITH ITS ADMINISTRATION WILL NOT BE DISTURBED EXCEPT FOR WEIGHTY REASONS" (BREWSTER V. GAGE, 280 U.S. 327, P. 336).

"WHERE THE ACT USES AMBIGUOUS TERMS OR IS OF DOUBTFUL CONSTRUCTION A CLARIFYING REGULATION OR ONE INDICATING THE METHOD OF ITS APPLICATION TO SPECIFIC CASES NOT ONLY IS PERMISSIBLE BUT IS TO BE GIVEN GREAT WEIGHT BY THE COURTS. AND THE SAME PRINCIPLE GOVERNS WHERE THE STATUTE MERELY EXPRESSES A GENERAL RULE AND INVESTS THE SECRETARY OF THE TREASURY WITH AUTHORITY TO PROMULGATE REGULATIONS APPROPRIATE TO ITS ENFORCEMENT" (KOSHLAND V. HELVERING, 298 U.S. 441, P. 446).

"* * * SETTLED ADMINISTRATIVE CONSTRUCTION IS ENTITLED TO GREAT WEIGHT AND SHOULD NOT BE OVERTURNED EXCEPT FOR COGENT REASONS" (U.S.V. CHICAGO NORTH SHORE R. CO., 288 U.S. 1, P. 13).

"* * * ADMINISTRATIVE PRACTICE DOES NOT AVAIL TO OVERCOME A STATUTE SO PLAIN IN ITS COMMANDS AS TO LEAVE NOTHING FOR CONSTRUCTION * * * ADMINISTRATIVE PRACTICE * * * WILL NOT BE OVERTURNED EXCEPT FOR VERY COGENT REASONS IF THE SCOPE OF THE COMMAND IS INDEFINITE AND DOUBTFUL" (288 U.S. 294, P. 315).

I FEEL SO STRONGLY THAT YOUR PREVIOUS DECISION IN THIS MATTER WILL WORK INJUSTICE AND CREATE DIFFICULTIES BY PROVIDING GROUNDS FOR PRESSURE FOR EXCEPTIONS TO THE ADMINISTRATIVE REGULATIONS ADOPTED IN THE PUBLIC INTEREST, THAT I WOULD APPRECIATE YOUR THOUGHTFUL RECONSIDERATION OF THIS MATTER IN THE LIGHT OF THE FOREGOING EXPLANATION. I MAY ADD THAT VERY FEW OFFICERS OR EMPLOYEES OF THE FOREIGN SERVICE HAVE BEEN GRANTED ALL THE CUMULATIVE LEAVE EARNED BY THEM. NOR IS IT THE DEPARTMENT'S INTENTION TO LIBERALIZE ITS PRESENT REGULATIONS OR POLICY UNLESS AND UNTIL THE DEMANDS ON THE FIELD SERVICE ARE VERY MUCH LESS THAN THEY ARE TODAY DUE TO THREATS OF WAR AND UNTIL MORE PERSONNEL IS AVAILABLE. BUT TO DO SUBSTANTIAL JUSTICE TO THE PERSONNEL AND TO BE IN A POSITION TO MEET CONDITIONS AS THEY ARISE AND TAKE CARE OF EXTRAORDINARY SITUATIONS, A MAXIMUM OF FLEXIBILITY UNDER THE LAW AND REGULATIONS IS GREATLY TO BE DESIRED.

I REALIZE THAT IN ORDER FOR YOU TO APPROVE THE INTERPRETATION PLACED ON THE STATUTE IN QUESTION BY THIS DEPARTMENT, IT MUST BE BASED UPON LEGAL PRINCIPLES, AND THAT INEQUITIES RESULTING FROM A DIFFERENT INTERPRETATION DO NOT JUSTIFY A CONSTRUCTION CONTRARY TO THE LANGUAGE OF THE STATUTE. THIS CASE, HOWEVER, I BELIEVE THE STATUTE IS CLEARLY OPEN TO THE INTERPRETATION URGED BY THIS DEPARTMENT AND THAT A NARROW CONSTRUCTION OF THE STATUTE WOULD HAVE THE EFFECT OF PENALIZING THOSE MEMBERS OF THE FOREIGN SERVICE WHO HAVE DEMONSTRATED SPECIAL ABILITIES TO DEAL WITH IMPORTANT INTERNATIONAL DEVELOPMENTS. THE VERY FACT THAT THE DEPARTMENT REPOSES ESPECIAL CONFIDENCE IN SUCH OFFICERS NOT INFREQUENTLY RESULTS IN THEIR BEING COMPELLED TO REMAIN ABROAD FOR LONG PERIODS ON ACCOUNT OF EXIGENCIES WHICH MAKE IT IMPOSSIBLE FOR THE DEPARTMENT TO GRANT THEM THE LEAVES OF ABSENCE CONTEMPLATED BY LAW. BY REGARDING THEIR EARNED CUMULATIVE LEAVE, WHICH THE DEPARTMENT HAS BEEN UNABLE TO GRANT THEM, AS FORFEITED, THEY WOULD FIND THEMSELVES DISCRIMINATED AGAINST IN FAVOR OF OTHERS WHO COULD MORE READILY BE SPARED FROM THEIR POSTS OF DUTY. I TRUST YOU WILL AGREE THAT AN INTERPRETATION OF THE STATUTE REQUIRING SUCH FORFEITURES CANNOT HAVE BEEN THE INTENT OF CONGRESS.

BY EXECUTIVE ORDER NO. 7927, JUNE 14, 1938, THE INSTRUCTIONS TO DIPLOMATIC OFFICERS AND THE CONSULAR REGULATIONS WERE COMBINED TO FORM THE FOREIGN SERVICE REGULATIONS OF THE UNITED STATES. TO AVOID CONFUSION, SINCE REFERENCE HAS BEEN MADE IN PREVIOUS CORRESPONDENCE TO THE DIPLOMATIC AND CONSULAR REGULATIONS, THE CITATIONS IN THIS LETTER ARE TO THOSE REGULATIONS BEFORE THE COMBINATION WAS EFFECTED.

THE STATUTE IN QUESTION--- SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210--- PROVIDES:

THE SECRETARY OF STATE IS AUTHORIZED, IN HIS DISCRETION AND SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED BY THE PRESIDENT, TO GRANT TO ANY OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE NOT TO EXCEED SIXTY DAYS ANNUAL LEAVE OF ABSENCE WITH PAY. IF SUCH OFFICER OR EMPLOYEE RETURNS TO THE UNITED STATES, THE LEAVE OF ABSENCE GRANTED UNDER THE PROVISIONS OF THIS SECTION SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING. ANY PORTION OF SIXTY DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE, NOT TO EXCEED, EXCLUSIVE OF TIME IN TRANSIT AND AWAITING SAILING, ONE HUNDRED AND TWENTY DAYS IN THREE YEARS OR ONE HUNDRED AND EIGHTY DAYS IN FOUR YEARS: PROVIDED FURTHER, THAT EMPLOYEES, NOT AMERICAN CITIZENS, MAY BE GRANTED NOT TO EXCEED THIRTY DAYS LEAVE OF ABSENCE WITH PAY IN ANY ONE YEAR.

UNLIKE THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, THE LEAVE FOR GRANTING UNDER THE ABOVE-QUOTED STATUTE IS NOT A MATTER OF RIGHT BUT ONE OF DISCRETION ONLY. THEREFORE, THERE APPEARS NO PROPER BASIS FOR ANY ARGUMENT RESPECTING ANY FORFEITURE OF ALLEGED EARNED RIGHTS TO LEAVE WITH RESPECT TO THE OPERATION OF THE 1931 LEAVE STATUTE; UNDER SAID STATUTE AND APPLICABLE REGULATIONS THE GRANTING OF LEAVE BEING WITHIN THE DISCRETION OF THE SECRETARY OF STATE, A FACT WHICH YOUR LETTER ADMITS.

I HAVE GIVEN THE STATUTE FURTHER CONSIDERATION IN THE LIGHT OF THE ARGUMENT PRESENTED IN YOUR LETTER, SUPRA, BUT I AM UNABLE TO CONSTRUE THE STATUTE TO HOLD THAT THE LIMITATIONS THEREIN STATED APPLY ONLY TO THE MAXIMUM LEAVE WHICH MAY BE TAKEN WITHIN THE STATED PERIODS. TO SO HOLD WOULD REQUIRE READING INTO THE STATUTE WORDS WHICH ARE NOT THERE. IRRESPECTIVE OF WHAT MAY HAVE BEEN IN THE MIND OF THE LEGISLATORS IN THE ENACTMENT OF THE 1931 STATUTE IN QUESTION, I THINK THE LANGUAGE OF THE STATUTE IS CLEAR AND DOES NOT ADMIT OF CONSTRUCTION. THE RULE RESPECTING THE CONSTRUCTION OF A STATUTE BY THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT AS STATED IN YOUR LETTER IS WELL KNOWN, BUT THAT RULE IS FOR APPLICATION ONLY WHERE THE PARTICULAR STATUTE IS AMBIGUOUS AND, THEREFORE, SUSCEPTIBLE OF MORE THAN ONE INTERPRETATION.

THE LIMITATIONS OF 120 AND 180 DAYS SPECIFIED IN THE STATUTE ARE NOT ADDRESSED TO THE MAXIMUM LEAVE WHICH MAY BE TAKEN IN ANY ONE CALENDAR YEAR, OR THREE, OR FOUR YEARS (COMPARE PANAMA CANAL LEAVE REGULATIONS-- 7 COMP. GEN. 83), BUT ON THE CONTRARY ARE CLEARLY ADDRESSED TO THE LEAVE WHICH MAY BE ACCUMULATED DURING THE RESPECTIVE PERIODS, I.E., TO "ANY PORTION OF 60 DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY 1 YEAR," THE STATUTE CLEARLY STATING THAT SUCH UNUSED LEAVE "MAY BE CUMULATIVE, NOT TO EXCEED * * * 120 DAYS IN 3 YEARS; OR 180 DAYS IN 4 YEARS.' NOTE 10 TO SECTION 467, CONSULAR REGULATIONS, QUOTED IN YOUR LETTER, APPEARS TO APPLY THIS SAME CONSTRUCTION OF THE STATUTE IN QUESTION.

UPON THE BASIS OF THE FOREGOING I AM CONSTRAINED TO HOLD THAT THE DECISION OF MARCH 2, 1938, 17 COMP. GEN. 697, CORRECTLY APPLIED THE LAW TO THE FACTS THERE PRESENTED. ACCORDINGLY, SAID DECISION MUST BE AND IS HEREBY AFFIRMED.