A-10969, DECEMBER 2, 1925, 5 COMP. GEN. 404

A-10969: Dec 2, 1925

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LEAVE OF ABSENCE - NAVY YARD EMPLOYEES WHERE AN EMPLOYEE OF A NAVY YARD WAS SEPARATED FROM THE SERVICE BETWEEN TWO PERIODS OF EMPLOYMENT. NOTWITHSTANDING THE EMPLOYEE MAY HAVE RECEIVED DISABILITY COMPENSATION DURING THE PERIOD BETWEEN EMPLOYMENTS. 1925: I HAVE YOUR LETTER OF AUGUST 20. WHICH READS: YOUR ADVANCE DECISION IS REQUESTED UPON THE FOLLOWING STATE OF FACTS: MR. PARKER WAS EMPLOYED AS A HELPER. WAS DISCHARGED BECAUSE OF LACK OF WORK ON FEBRUARY 20. HE WAS AGAIN CERTIFIED FOR EMPLOYMENT AS A HELPER. HE WAS CARRIED ON THE ROLLS OF THE COMPENSATION COMMISSION FOR DISABILITY RESULTING FROM INJURY RECEIVED AT THE YARD FEBRUARY 4. IS MR. ACCRUES DURING THE PERIOD SUCH AN EMPLOYEE IS DISABLED AND RECEIVING PAY UNDER THE ACT OF MAY 30.

A-10969, DECEMBER 2, 1925, 5 COMP. GEN. 404

LEAVE OF ABSENCE - NAVY YARD EMPLOYEES WHERE AN EMPLOYEE OF A NAVY YARD WAS SEPARATED FROM THE SERVICE BETWEEN TWO PERIODS OF EMPLOYMENT, BY DISCHARGE AND REEMPLOYMENT, ONLY THE LATTER PERIOD OF EMPLOYMENT MAY BE COUNTED FOR LEAVE PURPOSES UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617, NOTWITHSTANDING THE EMPLOYEE MAY HAVE RECEIVED DISABILITY COMPENSATION DURING THE PERIOD BETWEEN EMPLOYMENTS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, DECEMBER 2, 1925:

I HAVE YOUR LETTER OF AUGUST 20, 1925, WHICH READS:

YOUR ADVANCE DECISION IS REQUESTED UPON THE FOLLOWING STATE OF FACTS:

MR. EDWARD F. PARKER WAS EMPLOYED AS A HELPER, MACHINIST, IN THE NAVY YARD, BOSTON, MASS., ON MARCH 26, 1923, AND WAS DISCHARGED BECAUSE OF LACK OF WORK ON FEBRUARY 20, 1925. HE WAS AGAIN CERTIFIED FOR EMPLOYMENT AS A HELPER, MACHINIST, BY THE LABOR BOARD AT THE YARD AND REEMPLOYED APRIL 6, 1925. DURING THE PERIOD OF HIS NONEMPLOYMENT, FROM FEBRUARY 20, TO APRIL 5, 1925, HE WAS CARRIED ON THE ROLLS OF THE COMPENSATION COMMISSION FOR DISABILITY RESULTING FROM INJURY RECEIVED AT THE YARD FEBRUARY 4, 1925.

IS MR. PARKER ENTITLED TO CONTINUOUS SERVICE FOR LEAVE PURPOSES UNDER THE ACT OF AUGUST 29, 1916, FROM THE DATE OF HIS ORIGINAL APPOINTMENT, MARCH 26, 1923, OR FROM THE DATE OF HIS REEMPLOYMENT, APRIL 6, 1925, IN VIEW OF THE DECISION OF THE COMPTROLLER OF THE TREASURY OF DECEMBER 1, 1913 (20 COMP. DEC. 358), THAT THE LEAVE ALLOWED CERTAIN EMPLOYEES OF THE GOVERNMENT BY THE ACT OF FEBRUARY 1, 1901 (31 STAT., 746), ACCRUES DURING THE PERIOD SUCH AN EMPLOYEE IS DISABLED AND RECEIVING PAY UNDER THE ACT OF MAY 30, 1908, (35 STAT. 556) THE SAME AS IF HE WORKED?

THE LEAVE LEGISLATION OF AUGUST 29, 1916, 39 STAT. 617, PROVIDES:

* * * THAT EACH AND EVERY EMPLOYEE OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT IS HEREBY GRANTED THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR, WITHOUT FORFEITURE OF PAY DURING SUCH LEAVE: PROVIDED FURTHER, THAT IT SHALL BE LAWFUL TO ALLOW PRO RATA LEAVE ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE: AND PROVIDED FURTHER, THAT IN ALL CASES THE HEADS OF DIVISIONS SHALL HAVE DISCRETION AS TO THE TIME WHEN THE LEAVE CAN BEST BE ALLOWED: AND PROVIDED FURTHER, THAT NOT MORE THAN THIRTY DAYS' LEAVE WITH PAY SHALL BE ALLOWED ANY SUCH EMPLOYEE IN ONE YEAR: PROVIDED FURTHER, THAT THIS PROVISION SHALL NOT BE CONSTRUED TO DEPRIVE EMPLOYEES OF ANY SICK LEAVE OR LEGAL HOLIDAYS TO WHICH THEY MAY NOW BE ENTITLED UNDER EXISTING LAW.

IT HAS BEEN HELD THAT AN ABSENCE ON ACCOUNT OF AN INJURY SUCH AS WOULD ENTITLE THE EMPLOYEE TO THE BENEFITS OF THE ACT OF SEPTEMBER 7, 1916, 39 STAT. 742, DOES NOT IPSO FACTO BREAK THE CONTINUITY OF SERVICE FOR LEAVE PURPOSES UNDER THE ACT OF AUGUST 29, 1916, SUPRA, OF AN EMPLOYEE WHO THEREAFTER RETURNS TO DUTY. 26 COMP. DEC. 763. IT HAS BEEN HELD ALSO THAT WHEN AN EMPLOYEE IS FURLOUGHED FOR THE CONVENIENCE OF THE GOVERNMENT, THE PERIOD OF ABSENCE BY PERMISSION IS TO BE COUNTED AS SERVICE WITHIN THE REQUIREMENTS OF SAID ACT OF AUGUST 29, 1916, 25 COMP. DEC. 437; SEE ALSO 15 ID. 5. IN 27 COMP. DEC. 100, IN HOLDING THAT AN EMPLOYEE WHO WAS ABSENT BECAUSE OF SICKNESS FOR MORE THAN THIRTY DAYS "AND WAS CONTINUED UPON THE ROLLS AS AN EMPLOYEE DURING SAID PERIOD," SHOULD BE REGARDED AS IN CONTINUOUS SERVICE FOR LEAVE PURPOSES UNDER THE ACT OF AUGUST 29, 1916, IT WAS SAID:

WHERE AN EMPLOYEE IS SICK FOR A LONG CONTINUED PERIOD THE QUESTION WHETHER HE BE CONTINUED ON THE ROLLS AS IN SERVICE, OR BE DROPPED AS AN EMPLOYEE, IS ONE PRIMARILY OF ADMINISTRATION. * * *

IN THE CASE HERE PRESENTED THE EMPLOYEE WAS NOT CONTINUED ON THE ROLLS AS IN SERVICE, BUT "WAS ABSOLUTELY SEPARATED FROM THE SERVICE FEBRUARY 20, 1925, BECAUSE OF THE LACK OF WORK.' THEREFORE, HIS SERVICE AFTER HIS REEMPLOYMENT ON APRIL 6, 1925, CAN NOT BE REGARDED AS CONTINUOUS WITH THE SERVICE WHICH BEGAN MARCH 26, 1923, AND ENDED FEBRUARY 20, 1925, BUT MUST BE REGARDED AS A NEW PERIOD OF SERVICE. 15 COMP. DEC. 118; ID. 778; 26 ID. 27.