A-17576, MARCH 16, 1927, 6 COMP. GEN. 581

A-17576: Mar 16, 1927

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THE RIGHT TO LEAVE WITH PAY IS NOT EARNED DURING A PERIOD THE EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY ON ACCOUNT OF SICKNESS. WHEREBY WAS DISALLOWED HIS CLAIM FOR $26.81 AS PAYMENT FOR FOUR AND ONE-HALF DAYS' LEAVE WITH PAY TO WHICH HE CONTENDS HE IS ENTITLED UNDER THE PROVISIONS OF THE ACT OF AUGUST 29. ARSENALS OF THE UNITED STATES GOVERNMENT IS HEREBY GRANTED THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR. 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. IS ENTITLED TO LEAVE WITH PAY UNDER THE ACT OF AUGUST 29. HE WAS CARRIED ON THE ROLLS WITHOUT PAY FROM JUNE 2 TO JULY 25. CLAIMANT WAS PAID FOR ONLY 25 1/2 DAYS' LEAVE.

A-17576, MARCH 16, 1927, 6 COMP. GEN. 581

LEAVES OF ABSENCE - ARSENAL EMPLOYEES UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, GRANTING LEAVE OF ABSENCE TO EMPLOYEES OF NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT, THE RIGHT TO LEAVE WITH PAY IS NOT EARNED DURING A PERIOD THE EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY ON ACCOUNT OF SICKNESS.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 16, 1927:

DAVID L. WALSH APPLIED MARCH 1, 1927, FOR REVIEW OF SETTLEMENT 0154544, DATED JANUARY 25, 1927, WHEREBY WAS DISALLOWED HIS CLAIM FOR $26.81 AS PAYMENT FOR FOUR AND ONE-HALF DAYS' LEAVE WITH PAY TO WHICH HE CONTENDS HE IS ENTITLED UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, WHICH PROVIDES AS FOLLOWS:

* * * 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.

CLAIMANT HAS BEEN AN EMPLOYEE OF THE PICATINNY ARSENAL AT DOVER, N.J., CONTINUOUSLY SINCE 1917, AND IS ENTITLED TO LEAVE WITH PAY UNDER THE ACT OF AUGUST 29, 1926, SUPRA. HE WAS CARRIED ON THE ROLLS WITHOUT PAY FROM JUNE 2 TO JULY 25, 1925, ON ACCOUNT OF ILLNESS NOT THE RESULT OF HIS OWN CONDUCT. FOR HIS SERVICE YEAR ENDING DECEMBER 6, 1925, CLAIMANT WAS PAID FOR ONLY 25 1/2 DAYS' LEAVE, THE 4 1/2 DAYS BEING DEDUCTED ON ACCOUNT OF THE PERIOD OF ABSENCE WITHOUT PAY FROM JUNE 2 TO JULY 25, 1925.

PARAGRAPH 261 OF GENERAL ORDERS, NO. 3, PRESCRIBED BY THE CHIEF OF ORDNANCE NOVEMBER 17, 1924, PROVIDES AS FOLLOWS:

* * * WHEN AN EMPLOYEE, WHO HAS ATTAINED HIS LEAVE STATUS * * * IS ABSENT BECAUSE OF SICKNESS OR DISABILITY, NOT THE RESULT OF HIS OWN CONDUCT, * * * HE IS CONSIDERED AS RENDERING SERVICE WITHIN THE MEANING OF THE ACT, AND SUCH ABSENCE SHALL NOT OPERATE TO PREVENT SUCH AN EMPLOYEE FROM OBTAINING THE AFORESAID LEAVE.

IN DECISION OF JULY 27, 1920, 27 COMP. DEC. 100, THE COMPTROLLER OF THE TREASURY HELD THAT WHEN AN ARSENAL EMPLOYEE WAS ABSENT DURING HIS FIRST SERVICE YEAR ON ACCOUNT OF SICKNESS OR DISABILITY NOT THE RESULT OF HIS OWN MISCONDUCT AND WAS CARRIED ON THE ROLLS DURING THE PERIOD OF ABSENCE, HIS FIRST SERVICE YEAR WAS COMPLETED ONE YEAR FROM THE DATE OF ENTERING THE SERVICE. THE DECISION WENT NO FURTHER THAN TO HOLD THAT IF THE EMPLOYEE CONTINUED TO BE CARRIED ON THE ROLLS DURING ABSENCE ON ACCOUNT OF SICKNESS OR DISABILITY NOT THE RESULT OF HIS OWN MISCONDUCT, SUCH ABSENCE DID NOT OPERATE TO BREAK THE CONTINUITY OF SERVICE SO AS TO MAKE IT NECESSARY FOR THE EMPLOYEE TO BEGIN ANOTHER SERVICE YEAR WHEN HE RETURNED TO DUTY. THE DECISION OF JULY 27, 1920, DID NOT HOLD AND WAS NOT INTENDED TO HOLD THAT DURING THE PERIOD THE EMPLOYEE WAS IN A NONPAY STATUS HE WOULD EARN LEAVE UNDER THE ACT OF AUGUST 29, 1916.

IN THE INSTANT CASE THE EMPLOYEE WAS SERVING IN A SERVICE YEAR SUBSEQUENT TO THE FIRST, AND THE ADMINISTRATIVE ACTION IN PAYING HIM AT THE END OF THE CURRENT SERVICE YEAR WAS IN ACCORDANCE WITH THE PRINCIPLE OF THE DECISION OF JULY 27, 1920; THAT IS, THE EMPLOYEE'S CONTINUITY OF SERVICE WAS REGARDED AS UNBROKEN, BUT HE WAS NOT CONSIDERED TO HAVE EARNED LEAVE DURING THE PERIOD OF ABSENCE IN A NONPAY STATUS.

IN PARAGRAPH 186 OF GENERAL ORDERS, NO. 7, OF 1917, QUOTED IN THE DECISION OF JULY 27, 1920, AND REPEATED AS PARAGRAPH 261 OF GENERAL ORDERS, NO. 3, THE PERTINENT PART OF WHICH IS QUOTED HEREIN IS FOUND THE ADMINISTRATIVE CONSTRUCTION OF THE ACT OF AUGUST 29, 1916, WITH REGARD TO THE EFFECT OF ABSENCE WITHOUT PAY ON ACCOUNT OF SICKNESS OR DISABILITY NOT DUE TO AN EMPLOYEE'S OWN CONDUCT. THOUGH THE PARAGRAPHS IN QUESTION ARE PERHAPS NOT APTLY WORDED TO SHOW THAT THEIR MEANING IS MERELY TO ALLOW CONTINUITY OF SERVICE OVER A PERIOD WHEN AN EMPLOYEE IS UNAVOIDABLY ABSENT FROM DUTY ON ACCOUNT OF ILLNESS OR DISABILITY NOT DUE TO HIS OWN CONDUCT, YET THE ACTION TAKEN ADMINISTRATIVELY CLEARLY SHOWS THAT SUCH WAS THE INTENT OF SUCH PARAGRAPHS.

THE CLEAR INTENT OF THE ACT OF AUGUST 29, 1916, IS TO GRANT EMPLOYEES OF NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS THE RIGHT TO LEAVE WITH PAY IF AND WHEN THE RIGHT IS EARNED BY SERVICE. WHEN AN EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY IT IS EQUALLY CLEAR THAT HE IS NOT RENDERING SERVICE AND IS THEREFORE NOT EARNING THE RIGHT TO LEAVE WITH PAY GRANTED BY THE STATUTE.