A-25719, FEBRUARY 25, 1929, 8 COMP. GEN. 463

A-25719: Feb 25, 1929

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DEC. 128) WITH RESPECT TO THE RATE OF PAY OF NAVY-YARD EMPLOYEES WHERE LEAVE WITH PAY SURRENDERED IN THE SECOND SERVICE YEAR IS SUBSTITUTED FOR LEAVE TAKEN WITHOUT PAY IN THE FIRST SERVICE YEAR. THE RULE IS THAT SUCH PAY IS TO BE COMPUTED AT THE RATE CURRENT WHEN THE LEAVE WAS TAKEN. THAT IS. THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION OF THE RATE AT WHICH EMPLOYEES OF NAVY YARDS SHOULD BE PAID FOR A PERIOD OF LEAVE WITHOUT PAY TAKEN IN THE FIRST SERVICE YEAR. SURRENDER ACCRUED LEAVE THEY OTHERWISE WOULD HAVE BEEN ENTITLED TO TAKE IN THE SECOND SERVICE YEAR. 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.

A-25719, FEBRUARY 25, 1929, 8 COMP. GEN. 463

LEAVES OF ABSENCE - NAVY-YARD EMPLOYEES THE DECISION OF JULY 24, 1924, 4 COMP. GEN. 104, DID NOT CHANGE THE RULE THERETOFORE EXISTING (SEE 25 COMP. DEC. 128) WITH RESPECT TO THE RATE OF PAY OF NAVY-YARD EMPLOYEES WHERE LEAVE WITH PAY SURRENDERED IN THE SECOND SERVICE YEAR IS SUBSTITUTED FOR LEAVE TAKEN WITHOUT PAY IN THE FIRST SERVICE YEAR. THE RULE IS THAT SUCH PAY IS TO BE COMPUTED AT THE RATE CURRENT WHEN THE LEAVE WAS TAKEN, THAT IS, THE PERIOD OF ACTUAL ABSENCE IN THE FIRST SERVICE YEAR.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 25, 1929:

IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF CAPT. E. D. RYAN (SC), UNITED STATES NAVY, FOR THE MONTH OF MARCH, 1928, THERE IS BEFORE THIS OFFICE FOR CONSIDERATION THE QUESTION OF THE RATE AT WHICH EMPLOYEES OF NAVY YARDS SHOULD BE PAID FOR A PERIOD OF LEAVE WITHOUT PAY TAKEN IN THE FIRST SERVICE YEAR, WHERE THEY WORK AN EQUIVALENT LENGTH OF TIME IN THE SECOND SERVICE YEAR, AND SURRENDER ACCRUED LEAVE THEY OTHERWISE WOULD HAVE BEEN ENTITLED TO TAKE IN THE SECOND SERVICE YEAR.

THE ACT 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.

IN CONSTRUING THE SIMILAR PROVISIONS OF AN EARLIER STATUTE (ACT OF FEBRUARY 1, 1901, 31 STAT 746) IT WAS HELD IN DECISION OF JANUARY 16, 1906, 12 COMP. DEC. 398, QUOTING THE SYLLABUS:

EMPLOYEES OF NAVY YARDS WHOM THE GOVERNMENT DESIRES TO WORK AND WHO DO WORK AT A TIME WHEN THEY ARE ENTITLED TO LEAVE OF ABSENCE WITH PAY MAY BE REGARDED WHILE SO WORKING AS MAKING UP TIME LOST IN THE SAME YEAR BY ABSENCE WITH PERMISSION WITHOUT PAY, AND FOR EACH DAY THEY SO SURRENDER THEIR RIGHT TO LEAVE OF ABSENCE WITH PAY MAY BE ALLOWED PAY FOR A DAY THERETOFORE ABSENT BY PERMISSION WITHOUT PAY.

IN DECISION OF SEPTEMBER 22, 1916, 23 COMP. DEC. 192, 196, IT WAS STATED:

IT IS CONCLUDED THAT IT WAS NOT THE INTENT BY THE INSERTION OF THE PROVISO IN THE ACT OF AUGUST 29, 1916--- "THAT NO MORE THAN 30 DAYS' LEAVE WITH PAY SHALL BE ALLOWED ANY SUCH EMPLOYEE IN ONE YEAR"--- TO PRECLUDE THE GRANTING IN THE SECOND SERVICE YEAR OF THE 30 DAYS' LEAVE EARNED IN THE FIRST SERVICE YEAR, IN ADDITION TO THE GRANTING IN THE SECOND SERVICE YEAR OF THE PRO RATA LEAVE EARNED IN THAT YEAR, THUS DEPRIVING EMPLOYEES OF ANY LEAVE FOR THE FIRST SERVICE YEAR, BUT RATHER TO LIMIT THE LEAVE GRANTED FOR ANY SERVICE YEAR TO 30 DAYS.

IN DECISION OF NOVEMBER 2, 1916, 23 COMP. DEC. 277, IT WAS HELD, QUOTING THE SYLLABUS:

EMPLOYEES OF NAVY YARDS AND STATIONS WHO ARE GRANTED LEAVE WITHOUT PAY DURING THEIR FIRST SERVICE YEAR MAY BE ALLOWED PAY FOR SUCH LEAVE IN LIEU OF LEAVE WITH PAY DUE THEM IN THE SECOND SERVICE YEAR.

THE RATES AT WHICH EMPLOYEES ARE ENTITLED TO BE PAID WHEN LEAVE WITH PAY IN THE SECOND SERVICE YEAR IS SURRENDERED IN SUBSTITUTION FOR TIME ABSENT ON LEAVE WITHOUT PAY DURING THE FIRST SERVICE YEAR WERE HELD BY DECISION OF AUGUST 7, 1918, 25 COMP. DEC. 128, TO BE THE COMPENSATION RATES IN EFFECT AT THE TIME THE LEAVE WITHOUT PAY WAS TAKEN, FOR THE REASON THAT THE ALLOWANCE OF PAY FOR SUCH LEAVE IS IN THE NATURE OF A REIMBURSEMENT OF THE PAY LOST WHEN THE LEAVE WITHOUT PAY WAS TAKEN.

THERE SHOULD BE LITTLE QUESTION AS TO THE SOUNDNESS OF THIS RULE. SUPPOSE AN EMPLOYEE'S RATE OF PAY WAS $5 A DAY IN 1927, HIS FIRST SERVICE YEAR, AND $6 A DAY IN 1928, AND THAT HE TOOK 30 DAYS' LEAVE WITHOUT PAY IN 1927, THEREBY LOSING $150. IN 1928 HE MAY BE ABSENT 60 DAYS AND BE PAID $360 THEREFOR, OR HE MAY BE ABSENT ONLY 30 DAYS AND SURRENDER THE OTHER 30 DAYS' LEAVE AND SUBSTITUTE IT FOR THE LEAVE WITHOUT PAY TAKEN IN 1927. THE LATTER EVENT HE IS PAID AT $6 A DAY FOR THE FULL TIME SERVED IN 1928, INCLUDING THE 30 DAYS OF ABSENCE ON LEAVE, AND IN ADDITION THE $150 WHICH HE LOST IN 1927. THAT IS, HE IS ACTUALLY PAID AT THE 1928 RATE OF $6 A DAY OR $180 FOR THE 30 DAYS HE WORKS IN 1928, WHEN HE MIGHT HAVE BEEN ABSENT, AND IN ADDITION IS PAID THE $150 FOR THE 30 DAYS LOST IN 1927, WHICH IS NOW MADE UP BY WORKING THE 30 DAYS IN 1928 WHEN HE MIGHT HAVE BEEN ABSENT. TO PAY HIM AT THE RATE OF $6 A DAY OR $180 FOR MAKING UP THE 1927 TIME IN 1928, IN ADDITION TO THE $180 WHICH HE GETS FOR WORKING SUCH 30 DAYS IN 1928, WOULD BE TO PAY HIM MORE FOR THE TWO YEARS' SERVICE THAN HE WOULD HAVE RECEIVED IF HE HAD NOT BEEN ABSENT IN 1927 AND HAD BEEN ABSENT ON LEAVE WITH PAY 60 DAYS IN 1928. FUNDAMENTALLY, IT IS MERELY A MATTER OF PAY BEING ALLOWED FOR A PERIOD OF ABSENCE FOR WHICH LEAVE HAD NOT ACCRUED AT THE TIME BUT WHICH LATER ACCRUED AND WAS SURRENDERED TO COVER THE FORMER ABSENCE.

IN DECISION OF JULY 24, 1924, 4 COMP. GEN. 104, THE FORMER RULE AS TO THE APPROPRIATIONS CHARGEABLE IN SUCH CASES WAS MODIFIED SO AS TO AUTHORIZE CHARGING THE APPROPRIATION CURRENT IN THE SECOND SERVICE YEAR WHEN THE LEAVE WITH PAY ACCRUING FOR THE FIRST SERVICE YEAR MIGHT HAVE BEEN TAKEN, WHETHER IT WAS ACTUALLY TAKEN AT THAT TIME OR WAS SURRENDERED IN SUBSTITUTION FOR LEAVE WITHOUT PAY TAKEN IN THE FIRST SERVICE YEAR. SUCH DECISION OF JULY 24, 1924, WAS ADDRESSED PRIMARILY TO THE QUESTION OF APPROPRIATIONS AND WAS NOT INTENDED TO CHANGE, AND DID NOT CHANGE, THE RULE THERETOFORE EXISTING WITH RESPECT TO THE RATE OF PAY ALLOWABLE FOR LEAVE TAKEN WITHOUT PAY IN THE FIRST SERVICE YEAR WHERE AN EQUAL AMOUNT OF LEAVE IS SURRENDERED IN THE SECOND SERVICE YEARS. IT WAS STATED IN THE DECISION THAT THE RULE AS TO LEAVE WITH PAY IS THAT SUCH PAY IS TO BE COMPUTED AT THE RATE CURRENT WHEN THE LEAVE IS TAKEN. THAT IS, THE PROPER RATE OF PAY IS THAT IN EFFECT DURING THE ACTUAL PERIOD OF ABSENCE, REGARDLESS OF WHETHER SUCH ABSENCE IS IN THE FIRST OR SECOND SERVICE YEAR. WHILE IT MAY BE THAT A DIFFERENT CONCLUSION MIGHT BE DRAWN FROM THE GENERAL PHRASEOLOGY OF THE SYLLABUS OF THE DECISION IN SO FAR AS THE RATE OF PAY IS CONCERNED WHERE SURRENDERED LEAVE IN THE SECOND YEAR IS SUBSTITUTED FOR LEAVE WITHOUT PAY TAKEN IN THE FIRST YEAR, IT IS SIGNIFICANT THAT THE BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, DID NOT MISCONSTRUE THE EFFECT OF THE DECISION IN THAT RESPECT, BUT TO THE CONTRARY, ON OCTOBER 6, 1924, SUBSEQUENT TO THE DECISION IN QUESTION, DIRECTED THE FOLLOWING CHANGE IN THE "MANUAL FOR ACCOUNTING OFFICERS, 1922: "

142 (B) IN THE CASE OF RETROACTIVE LEAVE OF ABSENCE OF ALL EMPLOYEES THE CHARGE WILL BE LODGED AGAINST THE PROPER APPROPRIATION OR ACCOUNT FOR THE FISCAL YEAR IN WHICH THE LEAVE WITH PAY IS GRANTED AND PAID, AT THE RATE OF PAY WHICH WAS CURRENT WHEN THE ABSENCE OCCURRED. NO NOTATION OF THE APPROPRIATION CHARGEABLE WILL BE REQUIRED ON THE PAY ROLL. THE APPROPRIATION CHARGE WILL BE MADE IN THE USUAL MANNER ON THE PAY-ROLL SUMMARY.

WHILE THIS PARAGRAPH CORRECTLY STATES THE RULE ANNOUNCED IN THE DECISION 4 COMP. GEN. 104, SUPRA, AND SUCH RULE HAS GENERALLY BEEN FOLLOWED BY NAVY DISBURSING OFFICERS, IT APPEARS THAT IN AN OPINION DATED SEPTEMBER 6, 1927, THE JUDGE ADVOCATE GENERAL OF THE NAVY CONCLUDED THAT THE DECISION REQUIRED A DIFFERENT PROCEDURE IN SUCH CLASS OF CASES, THAT IS, THAT THE PROPER RATE PAYABLE WHERE LEAVE IS SURRENDERED IN THE SECOND SERVICE YEAR AND SUBSTITUTED FOR LEAVE WITHOUT PAY TAKEN IN THE FIRST SERVICE YEAR IS THE RATE CURRENT WHEN THE LEAVE IS SURRENDERED IN THE SECOND SERVICE YEAR AND NOT THE RATE PREVAILING WHEN THE ABSENCE OCCURRED. THIS CONCLUSION WAS APPARENTLY BASED ON THE SYLLABUS OF THE DECISION WHICH DID NOT DIFFERENTIATE BETWEEN CASES WHERE LEAVE EARNED THE FIRST YEAR WAS TAKEN THE SECOND YEAR AND CASES WHERE SUCH LEAVE WAS SURRENDERED TO COVER LEAVE WITHOUT PAY TAKEN IN THE FIRST YEAR.

THE ACTION OF THE DISBURSING OFFICER HERE INVOLVED IN MAKING PAYMENTS AT THE SECOND-YEAR RATES--- THE RATES CURRENT WHEN LEAVE WAS SURRENDERED--- WAS CONTRARY TO 4 COMP. GEN. 104, SUPRA, AND TO PARAGRAPH 142 (B) OF THE NAVY "MANUAL FOR ACCOUNTING OFFICERS," AND RESULTED IN OVERPAYMENTS TO THE EMPLOYEES CONCERNED IN THE AMOUNTS FOR WHICH CREDIT HAS BEEN SUSPENDED.

THE AMOUNT OF SUCH OVERPAYMENTS SHOULD BE DEPOSITED WITHOUT UNNECESSARY DELAY.