A-17348, MARCH 1, 1927, 6 COMP. GEN. 560

A-17348: Mar 1, 1927

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CIVILIAN EMPLOYEES OF COAST GUARD STATIONS AND DEPOTS ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29. N. KERSHAW HAVE REQUESTED REVIEW OF SETTLEMENTS 0159714 AND 0158237. DISALLOWING THEIR CLAIMS FOR PAY IN LIEU OF LEAVE OF ABSENCE CLAIMED TO HAVE BEEN EARNED AS EMPLOYEES OF A COAST GUARD STATION OR DEPOT. IT APPEARS THAT THESE PER DIEM EMPLOYEES OF THE COAST GUARD FIELD SERVICE WERE DISCHARGED JULY 6. IT APPEARS THAT WHEN RESTORED TO DUTY CLAIMANTS WERE PAID FOR A PORTION OF THE PERIOD FROM JULY 6 TO JULY 19. IN THE CASE OF KAY IT ALSO APPEARS THAT HE WAS ABSENT FROM DUTY BECAUSE OF DISABILITY INCURRED IN THE LINE OF DUTY FROM AUGUST 24 TO SEPTEMBER 1.

A-17348, MARCH 1, 1927, 6 COMP. GEN. 560

LEAVE OF ABSENCE - COAST GUARD STATION EMPLOYEES THE PAYMENT OF COMPENSATION TO A FIELD EMPLOYEE OF THE COAST GUARD FOR THE PERIOD BETWEEN DATE OF HIS DISCHARGE FROM THE SERVICE AND REINSTATEMENT MAY NOT BE MADE BY APPLICATION IN LIEU THEREOF OF LEAVE OF ABSENCE WITH PAY EARNED PRIOR TO DISCHARGE BUT NOT USED. CIVILIAN EMPLOYEES OF COAST GUARD STATIONS AND DEPOTS ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, AUTHORIZING 30 DAYS' LEAVE OF ABSENCE WITH PAY TO EMPLOYEES OF NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 1, 1927 (AS AMENDED BY DECISION OF MARCH 30, 927):

JOHN A. KAY AND F. N. KERSHAW HAVE REQUESTED REVIEW OF SETTLEMENTS 0159714 AND 0158237, DATED DECEMBER 17, 1926, DISALLOWING THEIR CLAIMS FOR PAY IN LIEU OF LEAVE OF ABSENCE CLAIMED TO HAVE BEEN EARNED AS EMPLOYEES OF A COAST GUARD STATION OR DEPOT.

IT APPEARS THAT THESE PER DIEM EMPLOYEES OF THE COAST GUARD FIELD SERVICE WERE DISCHARGED JULY 6, 1926, FOR ALLEGED VIOLATIONS OF RULES OF THE COAST GUARD STATION, BALTIMORE, AND REINSTATED JULY 19, 1926, THE CLAIMANTS STATING "AS THOUGH NO FRICTION HAD OCCURRED.' IT APPEARS THAT WHEN RESTORED TO DUTY CLAIMANTS WERE PAID FOR A PORTION OF THE PERIOD FROM JULY 6 TO JULY 19, 1926, BY APPLICATION OF LEAVE OF ABSENCE ACCRUED PRIOR TO THEIR DISCHARGE, TWO AND FIVE-EIGHTHS DAYS IN THE CASE OF KAY AND TWO AND ONE-FOURTH DAYS IN THE CASE OF KERSHAW. IN THE CASE OF KAY IT ALSO APPEARS THAT HE WAS ABSENT FROM DUTY BECAUSE OF DISABILITY INCURRED IN THE LINE OF DUTY FROM AUGUST 24 TO SEPTEMBER 1, 1926, FOR WHICH HE WAS NOT PAID AT THE REGULAR RATE OF COMPENSATION.

CLAIMANTS ARE CONTENDING THAT THE COAST GUARD STATION COMES WITHIN THE ARSENAL LEAVE ACT OF AUGUST 29, 1916, 39 STAT. 617, AND THAT, THEREFORE, THEY SHOULD BE ENTITLED TO THE FULL AMOUNT OF THE INDICATED ABSENCES FROM DUTY AS FOR LEAVE OF ABSENCE WITH PAY.

WHATEVER LEAVE LAW AND REGULATIONS ARE APPLICABLE TO THE COAST GUARD, EMPLOYEES MAY NOT BE PAID FOR ANY PORTION OF ABSENCES FROM DUTY BETWEEN THE DATES OF DISCHARGE AND REINSTATEMENT BY APPLICATION OF LEAVE OF ABSENCE EARNED PRIOR TO DISCHARGE. ACCORDINGLY, IF THE FACTS ARE AS STATED BY CLAIMANTS, IT IS QUESTIONABLE WHETHER THERE WAS ANY AUTHORITY FOR THE ADMINISTRATIVE OFFICE TO PAY KAY FOR TWO AND FIVE EIGHTHS DAYS AND KERSHAW FOR TWO AND ONE-FOURTH DAYS DURING THE PERIOD FROM JULY 6 TO JULY 19, 1926, BETWEEN THE DATES OF DISCHARGE AND REINSTATEMENT. HOWEVER, THAT POINT NEED NOT BE CONSIDERED AT THIS TIME.

IN DECISION OF THE COMPTROLLER OF THE TREASURY, DECEMBER 23, 1919, WHEREIN WAS CONSIDERED THE CASE OF A PER DIEM EMPLOYEE AT THE COAST GUARD DEPOT, SOUTH BALTIMORE, MD., IT WAS STATED AS FOLLOWS:

THE EMPLOYEE IN QUESTION IS AN EMPLOYEE OF THE FIELD SERVICE OF THE TREASURY DEPARTMENT, AND THE RIGHT TO GRANT HIM LEAVE DOES NOT DEPEND ON THE ACT OF MARCH 15, 1898, 30 STAT. 316, AND REGULATIONS ISSUED UNDER AUTHORITY OF THAT ACT.

IN THE ABSENCE OF A STATUTE GOVERNING THE RIGHT TO GRANT LEAVE, THE RIGHT TO LEAVE DEPENDS ON THE CONTRACT UNDER WHICH THE EMPLOYEE PERFORMS SERVICE.

THE CONTRACT OF EMPLOYMENT MAY PROVIDE FOR LEAVE WITH PAY OR THERE MAY BE A GENERAL REGULATION APPLYING TO THE FIELD EMPLOYEES OF THE COAST GUARD, WHICH WOULD BECOME A PART OF THE CONTRACT OF EMPLOYMENT OF ALL EMPLOYEES SUBJECT TO THE REGULATION. SEE 4 COMP. DEC. 427.

IN LETTER DATED NOVEMBER 10, 1926, WHEREIN REPORT WAS MADE WITH RESPECT TO THE PRESENT CLAIMS, THE COMMANDANT OF THE COAST GUARD STATED AS FOLLOWS:

UNDER A DECISION OF THE COMPTROLLER OF THE TREASURY DATED DECEMBER 23, 1919 (A.D. 4260), THE SECRETARY OF THE TREASURY ISSUED AN ORDER PERMITTING ON AND AFTER JULY 1, 1920, THE GRANTING OF THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR TO EACH AND EVERY PER DIEM EMPLOYEE AT THE COAST GUARD DEPOT, WITHOUT FORFEITURE OF PAY DURING SUCH LEAVE, PROVIDED THAT PRO RATA LEAVE SHOULD BE GRANTED ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE; ALSO, THAT NO MORE THAN THIRTY DAYS' LEAVE WITH PAY SHOULD BE ALLOWED ANY SUCH EMPLOYEES IN ONE YEAR, EXCLUSIVE OF SUNDAYS, LEGAL HOLIDAYS, AND HOLIDAYS BY EXECUTIVE ORDER. THE LETTER OF THE SECRETARY OF THE TREASURY REFERRED TO WAS ON JUNE 25, 1923, REVOKED, FOR ADMINISTRATIVE REASONS, AND IN LIEU THEREOF AN ORDER WAS ISSUED PERMITTING ON AND AFTER JULY 1, 1923, THE GRANTING OF TWELVE DAYS' LEAVE OF ABSENCE EACH YEAR TO EACH AND EVERY PER DIEM CIVILIAN EMPLOYEE AT THE DEPOT WITHOUT FORFEITURE OF PAY DURING SUCH LEAVE, PROVIDED THAT PRO RATA LEAVE SHOULD BE GRANTED ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE; ALSO, PROVIDED THAT NOT MORE THAN TWELVE DAYS' LEAVE WITH PAY SHOULD BE ALLOWED ANY SUCH EMPLOYEE IN ONE YEAR, EXCLUSIVE OF SUNDAYS AND LEGAL HOLIDAYS.

THE PRACTICE OF GRANTING TWELVE DAYS' LEAVE DURING THE YEAR TO PER DIEM EMPLOYEES AT THE DEPOT HAS BEEN IN EFFECT SINCE JULY 1, 1923.

IT IS BELIEVED THAT THE DECISION OF THE COMPTROLLER OF THE TREASURY CORRECTLY STATES THE LAW APPLICABLE TO COAST GUARD EMPLOYEES IN THE FIELD. THE LEAVE ACT OF AUGUST 29, 1916, SUPRA, IS APPLICABLE ONLY TO"EACH AND EVERY EMPLOYEE OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT.' A CIVILIAN EMPLOYEE OF THE COAST GUARD IN TIME OF PEACE IS NOT A PART OF THE MILITARY OR NAVAL ESTABLISHMENT, BUT IS UNDER THE TREASURY DEPARTMENT. ITS DEPOTS AND STATIONS COULD NOT BE CONSIDERED AS COMING WITHIN THE TERMS OF THE ARSENAL LEAVE ACT OF 1916. WHILE A COAST GUARD STATION OR DEPOT MAY OPERATE OR FUNCTION IN PART SIMILAR TO A NAVY YARD, GUN FACTORY, NAVAL STATION, OR ARSENAL, THERE APPEARS NOTHING TO INDICATE THAT THE 1916 STATUTE WAS INTENDED TO INCLUDE COAST GUARD STATIONS OR DEPOTS WITHIN ITS TERMS.