A-22645, MAY 17, 1928, 7 COMP. GEN. 732

A-22645: May 17, 1928

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LEAVES OF ABSENCE - NAVY-YARD EMPLOYEES WHERE NAVY-YARD EMPLOYEES ARE ON FURLOUGH FOR THE CONVENIENCE OF THE GOVERNMENT AT THE TERMINATION OF THEIR FIRST SERVICE YEAR AND ARE SUBSEQUENTLY DISCHARGED WITHOUT BEING RECALLED FROM FURLOUGH. THEY ARE ENTITLED TO PAY FOR ABSENCE ON ACCOUNT OF FURLOUGH OR OTHERWISE WITH PERMISSION DURING SUCH YEAR OR SUBSEQUENT TO SUCH YEAR AND WITHIN THE SECOND YEAR. 1928: REFERENCE IS MADE TO YOUR LETTER OF APRIL 23. IT WAS NECESSARY TO MAKE A REDUCTION IN THE YARD FORCE ON ACCOUNT OF LACK OF WORK. IN VIEW OF THE FACT THAT IT WAS CONTEMPLATED THAT THE SERVICES OF ALL THE EMPLOYEES WHO WERE ABOUT TO BE DISCHARGED WOULD BE REQUIRED LATER FOR THE WORK ON THE U.S.S.

A-22645, MAY 17, 1928, 7 COMP. GEN. 732

LEAVES OF ABSENCE - NAVY-YARD EMPLOYEES WHERE NAVY-YARD EMPLOYEES ARE ON FURLOUGH FOR THE CONVENIENCE OF THE GOVERNMENT AT THE TERMINATION OF THEIR FIRST SERVICE YEAR AND ARE SUBSEQUENTLY DISCHARGED WITHOUT BEING RECALLED FROM FURLOUGH, THEY ARE ENTITLED TO PAY FOR ABSENCE ON ACCOUNT OF FURLOUGH OR OTHERWISE WITH PERMISSION DURING SUCH YEAR OR SUBSEQUENT TO SUCH YEAR AND WITHIN THE SECOND YEAR, BUT PRIOR TO DISCHARGE, TO THE EXTENT OF AND IN LIEU OF LEAVE WITH PAY WHICH ACCRUED FOR ACTUAL SERVICE DURING THE FIRST SERVICE YEAR UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, AND WHICH THEY OTHERWISE WOULD BE ENTITLED TO TAKE DURING THE SECOND SERVICE YEAR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MAY 17, 1928:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1928, REQUESTING DECISION AS TO WHETHER CERTAIN PHILADELPHIA NAVY YARD EMPLOYEES MAY LEGALLY BE PAID FOR ACCRUED LEAVE OF ABSENCE UNDER THE CIRCUMSTANCES SET FORTH IN AN ACCOMPANYING LETTER DATED MARCH 24, 1928, FROM THE MANAGER OF THE INDUSTRIAL DEPARTMENT TO THE COMMANDANT OF THE NAVY YARD, AS FOLLOWS:

1. DURING THE LATTER PART OF SEPTEMBER, 1927, IT WAS NECESSARY TO MAKE A REDUCTION IN THE YARD FORCE ON ACCOUNT OF LACK OF WORK. IN VIEW OF THE FACT THAT IT WAS CONTEMPLATED THAT THE SERVICES OF ALL THE EMPLOYEES WHO WERE ABOUT TO BE DISCHARGED WOULD BE REQUIRED LATER FOR THE WORK ON THE U.S.S. OKLAHOMA, THEY WERE PLACED ON SIX MONTHS' LEAVE OF ABSENCE ON AUTHORITY CONTAINED IN REFERENCES, IN LIEU OF DISCHARGE. BETWEEN SEVEN AND EIGHT HUNDRED EMPLOYEES WERE PLACED IN THIS STATUS.

2. DURING THE MONTH OF DECEMBER, 1927, THE WORK LOAD OF THE YARD OTHER THAN WORK ON THE OKLAHOMA WAS CONSIDERABLY INCREASED DUE TO URGENT WORK ON A NUMBER OF SHIPS, AND ALL EXCEPT FORTY-TWO (42) OF THOSE ON LEAVE OF ABSENCE WERE RECALLED FOR THIS WORK. THIS WAS ONLY A TEMPORARY CONDITION, HOWEVER, AND EARLY IN JANUARY, 1928, THE MAJORITY OF THOSE RECALLED WERE AGAIN PLACED ON LEAVE OF ABSENCE, WITH THE EXCEPTION THAT THEIR SERVICES WOULD BE REQUIRED FOR WORK ON THE OKLAHOMA.

3. AT THE PRESENT TIME THERE ARE FOUR HUNDRED AND THIRTY-ONE (431) EMPLOYEES ON LEAVE OF ABSENCE, AND THE SIX-MONTH PERIOD FOR WHICH AUTHORITY WAS RECEIVED IN THE CASE OF THE 42 MEN NOT RECALLED IN DECEMBER WILL TERMINATE AT THE END OF THE CURRENT MONTH. THE PRESENT WORK LOAD OF THE YARD IS INSUFFICIENT TO RECALL, AT THIS TIME, ANY OF THESE EMPLOYEES ON LEAVE OF ABSENCE, AND IT IS POSSIBLE THAT THE WORK ON THE OKLAHOMA WILL NOT REQUIRE THE RECALL OF ALL OF THESE EMPLOYEES AT ANY STAGE OF THE MODERNIZATION WORK.

4. OF THOSE ON LEAVE OF ABSENCE APPROXIMATELY THREE HUNDRED (300) WERE PLACED ON LEAVE OF ABSENCE WITHIN ONE (1) TO THREE (3) MONTHS OF THE COMPLETION OF THEIR FIRST SERVICE YEAR, AND WHO WOULD BE IN AN IMMEDIATE LEAVE STATUS SHOULD THEY BE RECALLED TO WORK. IT IS ESTIMATED THAT THE AMOUNT OF PROPORTIONATE LEAVE WITH PAY THUS ACCRUED WOULD BE ABOUT $21,500.00 SHOULD THE EMPLOYEES CONCERNED BE RECALLED TO WORK.

5. IN VIEW OF THE PRESENT LACK OF WORK IN THE YARD AND THE POOR PROSPECTS FOR THEIR NEED IN THE NEAR FUTURE FOR WORK ON THE OKLAHOMA, INSTRUCTIONS ARE REQUESTED AS TO THE DISPOSITION OF THE EMPLOYEES IN THIS STATUS; THAT IS, WHETHER THEIR PRESENT PERIOD OF LEAVE OF ABSENCE SHOULD BE EXTENDED, MADE INDEFINITE, OR THEY BE DISCHARGED. UNLESS ADVISED TO THE CONTRARY, AT THE CONCLUSION OF THE SIX MONTHS' FURLOUGH PERIOD, THE WORKMEN WILL BE DISCHARGED. INSTRUCTIONS ARE ALSO REQUESTED AS TO WHETHER SUCH DISCHARGED MEN SHALL BE CREDITED WITH SUCH PROPORTION OF THEIR ANNUAL LEAVE AS THEY MAY HAVE EARNED BY REASON OF THEIR ACTUAL EMPLOYMENT PRIOR TO THEIR DISCHARGE.

LEAVE WITH PAY IS PROVIDED FOR NAVY-YARD EMPLOYEES IN THE ACT OF AUGUST 29, 1916, 39 STAT. 617, 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.

IT IS WELL SETTLED THAT UNDER THE ACT QUOTED, THE SAME AS UNDER THE PREVIOUS ACT OF FEBRUARY 1, 1901, 31 STAT. 746, EMPLOYEES OF NAVY YARDS, ETC., ARE NOT ENTITLED TO TAKE LEAVE WITH PAY DURING THEIR FIRST SERVICE YEAR, BUT THAT UPON COMPLETION OF THE FIRST SERVICE YEAR THEY BECOME ENTITLED TO LEAVE FOR SERVICE RENDERED DURING THE FIRST SERVICE YEAR, TO BE TAKEN DURING THE SECOND SERVICE YEAR IN ADDITION TO LEAVE ACCRUING DURING THE SECOND SERVICE YEAR. SEE 16 COMP. DEC. 788; 18 ID. 414; 23 ID. 193; 4 COMP. GEN. 322. THIS IS BASED ON THE PRINCIPLE THAT THE PROHIBITION IN THE STATUTE AGAINST ALLOWING PRO RATA LEAVE DURING THE FIRST 12 MONTHS OF SERVICE WAS NOT INTENDED TO DEPRIVE EMPLOYEES OF LEAVE FOR SUCH PERIOD, BUT WAS TO PREVENT THE GRANTING OF LEAVE TO TRANSIENT OR INTERMITTENT EMPLOYEES WHOSE CONTINUOUS SERVICE WAS LESS THAN A YEAR. COMP. DEC. 277, 279.

IT IS ALSO SETTLED THAT THE CONTINUITY OF SERVICE DURING THE FIRST OR SUBSEQUENT SERVICE YEARS IS NOT BROKEN BY ABSENCES WITHOUT PAY ON ACCOUNT OF SICKNESS OR INJURIES NOT DUE TO THE EMPLOYEES' OWN MISCONDUCT, OR BY FURLOUGHS OR OTHER ABSENCES WITHOUT PAY FOR THE CONVENIENCE OF THE GOVERNMENT DUE TO LACK OF WORK, ETC., WHERE THE EMPLOYEE IS CONTINUED ON THE ROLLS AND IS NOT SEPARATED FROM THE SERVICE, BUT LATER RETURNS TO WORK, EVEN THOUGH THE PERIOD OF ABSENCE EXCEEDS A FULL MONTH. SEE 15 COMP. DEC. 5; 26 ID. 763; 27 ID. 100; 5 COMP. GEN. 404; A-5279, OCTOBER 30, 1924. IN SUCH CASES, THE FIRST SERVICE YEAR TERMINATES AND THE EMPLOYEE ACQUIRES A LEAVE STATUS ONE YEAR FROM THE DATE OF ENTERING THE SERVICE BUT PRO RATA LEAVE ACCRUES FOR SUCH YEAR ONLY FOR THE TIME HE ACTUALLY RENDERED SERVICE, NO LEAVE BEING EARNED FOR THE PERIODS THE EMPLOYEE WAS ABSENT IN A NONPAY STATUS. 6 COMP. GEN. 581. PRESUMABLY, THESE DECISIONS ARE THE BASIS FOR THE STATEMENT IN THE SUBMITTED LETTER THAT IF THE EMPLOYEES IN QUESTION SHOULD BE RECALLED FOR ACTIVE DUTY, THEY WOULD IMMEDIATELY BE IN A LEAVE STATUS; I.E., ENTITLED TO LEAVE WITH PAY FOR LEAVE ACCRUED DURING THEIR FIRST SERVICE YEAR.

IT HAS BEEN HELD THAT THE STATUTE MAKES A GRANT OF LEAVE WITH PAY, TO THE EXTENT THAT IT IS MADE AN EXECUTIVE DUTY TO GRANT IT, THAT THE ADMINISTRATIVE DISCRETION IS LIMITED TO DETERMINING WHEN IT CAN BEST BE ALLOWED, AND THAT EMPLOYEES SHOULD BE GRANTED THE PRO RATA LEAVE DUE THEM PRIOR TO SEPARATION FROM THE SERVICE. SEE 23 COMP. DEC. 193, AND DECISIONS THEREIN CITED. HOWEVER, THE STATUTE GRANTS LEAVE WITH PAY AND NOT PAY FOR LEAVE NOT TAKEN AND IF LEAVE DUE AN EMPLOYEE IS NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE, HE IS NOT ENTITLED TO BE GRANTED LEAVE AS FOR A PERIOD AFTER THE DATE OF HIS SEPARATION, OR TO BE PAID FOR THE LEAVE DUE BUT NOT TAKEN PRIOR TO SUCH SEPARATION. 20 COMP. DEC. 358; 23 ID. 824; 1 COMP. GEN. 482.

SINCE 1906 IT HAS BEEN RECOGNIZED THAT EMPLOYEES FOR WHOM THE RIGHT TO LEAVE WITH PAY WAS PROVIDED IN THE LEAVE ACTS OF 1901 AND 1916, SUPRA, WHO, PRIOR TO THE TIME THAT THE RIGHT TO TAKE SUCH LEAVE ACCRUES, ARE ABSENT WITH PERMISSION IN A NONPAY STATUS DUE TO SICKNESS, FURLOUGH, OR FOR THEIR OWN CONVENIENCE, MAY LATER SUBSTITUTE EARNED LEAVE WITH PAY FOR THE LEAVE WITHOUT PAY THERETOFORE TAKEN, SO THAT PAY MAY BE ALLOWED AS FOR LEAVE WITH PAY FOR THE DAYS ABSENT IN A NONPAY STATUS, IN LIEU OF TAKING THE LEAVE WITH PAY WHICH LATER ACCRUES IN THE SAME SERVICE YEAR, AND, LIKEWISE, THAT LEAVE WHICH ACCRUES FOR THE FIRST SERVICE YEAR MAY BE SUBSTITUTED FOR LEAVE WITHOUT PAY IN THE FIRST SERVICE YEAR, INSTEAD OF TAKING SUCH LEAVE IN THE SECOND YEAR. 12 COMP. DEC. 398; 13 ID. 347; ID. 684; 20 ID. 358; 23 ID. 136; ID. 277; A-5279, OCTOBER 30, 1924; A-8902, MAY 1, 1925. IT IS ESTABLISHED, ALSO, THAT WHERE ACCRUED LEAVE IS NOT TAKEN AND THE EMPLOYEE HAS BEEN ABSENT ON LEAVE WITHOUT PAY FOR WHICH SUCH ACCRUED LEAVE COULD HAVE BEEN SUBSTITUTED, OR ABSENT SICK, OR BY PERMISSION, IN A NOMINAL NONPAY STATUS WHEN ENTITLED TO LEAVE WITH PAY, NO ADMINISTRATIVE GRANT OF LEAVE WITH PAY TO COVER SUCH ABSENCE IS NECESSARY TO ENTITLE THE EMPLOYEE TO PAY FOR SUCH ABSENCE, THE STATUTE HAVING GRANTED THE RIGHT TO LEAVE AND THE EMPLOYEE HAVING BEEN UNAVOIDABLY ABSENT OR ABSENT WITH PERMISSION. 15 COMP. DEC. 493; 26 ID. 544; A-5279, OCTOBER 30, 1924. IN 15 COMP. DEC. 493 IT WAS HELD THAT AN EMPLOYEE, WHOSE FIRST SERVICE YEAR TERMINATED JULY 15, 1908, WAS ENTITLED TO PAY FOR 15 DAYS' ACCRUED LEAVE FROM JULY 16 TO AUGUST 1, 1908, AT WHICH TIME HIS RESIGNATION TOOK EFFECT, WHERE HE HAD BEEN ABSENT DURING THAT PERIOD AS ON LEAVE WITHOUT PAY. IN A-5279, OCTOBER 30, 1924, IT WAS HELD THAT AN EMPLOYEE WHO WAS ABSENT ON FURLOUGH UPON TERMINATION OF HIS FIRST SERVICE YEAR, OCTOBER 5, 1922, AND WHO WAS DISCHARGED NOVEMBER 21, 1922, APPARENTLY WITHOUT HAVING BEEN RECALLED FROM FURLOUGH, WAS ENTITLED TO PAY FOR 23 2/3 DAYS OF ABSENCE TAKEN WITHOUT PAY DURING HIS FIRST SERVICE YEAR, IN LIEU OF ACCRUED LEAVE FOR SUCH YEAR NOT TAKEN IN THE SECOND SERVICE YEAR.

ACCORDINGLY, IT MUST BE HELD THAT THE PURPOSE OF THE STATUTE, AS IT HAS LONG BEEN CONSTRUED, REQUIRING THE COMPLETION OF THE FIRST SERVICE YEAR BY AN EMPLOYEE BEFORE ACQUIRING A LEAVE STATUS, IS SATISFIED WHERE, FOR PURPOSES OF THE GOVERNMENT, HE IS BEING CARRIED ON FURLOUGH AT THE END OF SUCH YEAR AND DOES NOT THEREAFTER REFUSE TO RETURN TO WORK, AND THAT THE RIGHT TO LEAVE OF ABSENCE WITH PAY WHICH ACCRUES FOR SERVICE ACTUALLY RENDERED DURING THE FIRST SERVICE YEAR, IS NOT REQUIRED BY THE STATUTE TO BE FORFEITED MERELY BECAUSE THE EMPLOYMENT IS TO BE TERMINATED WITHOUT RECALLING THE EMPLOYEE FROM FURLOUGH, WHERE HE HAS BEEN ABSENT WITH PERMISSION ON FURLOUGH OR OTHERWISE IN A NONPAY STATUS DURING EITHER HIS FIRST OR SECOND SERVICE YEARS, FOR WHICH DAYS OF ABSENCE THE ACCRUED LEAVE WITH PAY MAY BE SUBSTITUTED.

THEREFORE, YOU ARE ADVISED THAT THE EMPLOYEES HERE IN QUESTION WHO HAVE COMPLETED THEIR FIRST SERVICE YEAR AND WHO HAVE BEEN ABSENT ON LEAVE WITHOUT PAY ON ACCOUNT OF FURLOUGH, OR OTHERWISE BY PERMISSION, DURING SUCH YEAR OR SUBSEQUENT TO SUCH YEAR AND WITHIN THE SECOND YEAR, LEGALLY MAY BE PAID FOR SUCH ABSENCE TO THE EXTENT OF AND IN LIEU OF LEAVE WITH PAY WHICH THEY OTHERWISE WOULD BE ENTITLED TO TAKE IN THE SECOND SERVICE YEAR ON ACCOUNT OF THEIR ACTUAL SERVICE DURING THE FIRST YEAR.