A-26575, MAY 16, 1929, 8 COMP. GEN. 606

A-26575: May 16, 1929

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LEAVES OF ABSENCE - ANNUAL - EMPLOYEES OF CHEMICAL WARFARE SERVICE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE NOT EMPLOYEES OF ARSENALS. ARE NOT ENTITLED TO LEAVE UNDER THE PROVISIONS OF THE ACT OF AUGUST 29. 1929: THERE IS BEFORE THIS OFFICE FOR CONSIDERATION IN CONNECTION WITH THE AUDIT OF THE SEPTEMBER. " ARE PROPERLY APPLICABLE TO EMPLOYEES AT EDGEWOOD ARSENAL AS LABORERS AND CLERKS PAID FROM THE APPROPRIATION "CHEMICAL WARFARE SERVICE. THE CHEMICAL WARFARE SERVICE WAS CREATED AS A SEPARATE BRANCH OF THE ARMY BY THE ACT OF JUNE 4. AT THE TIME THIS WORK WAS COMMENCED BY THE ARMY THE CORPS OF ENGINEERS WAS IN CHARGE OF ITS DEVELOPMENT UNDER A SECTION OF THAT CORPS SIMILAR TO THE AVIATION SECTION IN THE SIGNAL CORPS PRIOR TO THE CREATION OF A SEPARATE AIR CORPS.

A-26575, MAY 16, 1929, 8 COMP. GEN. 606

LEAVES OF ABSENCE - ANNUAL - EMPLOYEES OF CHEMICAL WARFARE SERVICE EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE NOT EMPLOYEES OF ARSENALS, ETC., AND ARE NOT ENTITLED TO LEAVE UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, GRANTING LEAVE TO EMPLOYEES OF NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 16, 1929:

THERE IS BEFORE THIS OFFICE FOR CONSIDERATION IN CONNECTION WITH THE AUDIT OF THE SEPTEMBER, 1928, ACCOUNTS OF CAPT. F. C. BEEBEE, UNITED STATES ARMY, EDGEWOOD ARSENAL, MD., THE QUESTION OF WHETHER OR NOT THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, GRANTING 30 DAYS' LEAVE OF ABSENCE EACH YEAR TO "EACH AND EVERY EMPLOYEE OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT," ARE PROPERLY APPLICABLE TO EMPLOYEES AT EDGEWOOD ARSENAL AS LABORERS AND CLERKS PAID FROM THE APPROPRIATION "CHEMICAL WARFARE SERVICE, ARMY.'

THE CHEMICAL WARFARE SERVICE WAS CREATED AS A SEPARATE BRANCH OF THE ARMY BY THE ACT OF JUNE 4, 1920, 41 STAT. 768. AT THE TIME THIS WORK WAS COMMENCED BY THE ARMY THE CORPS OF ENGINEERS WAS IN CHARGE OF ITS DEVELOPMENT UNDER A SECTION OF THAT CORPS SIMILAR TO THE AVIATION SECTION IN THE SIGNAL CORPS PRIOR TO THE CREATION OF A SEPARATE AIR CORPS. AS THE WORK PROGRESSED THIS SECTION BECAME PRACTICALLY AN INDEPENDENT UNIT TO WHICH ENGINEER OFFICERS WERE ASSIGNED. AT NO TIME DOES IT APPEAR TO HAVE BEEN CONSIDERED PART OF THE ORDNANCE DEPARTMENT NOR DID THE CONGRESS CONSIDER ITS WORK SUFFICIENTLY SIMILAR IN CHARACTER TO THAT OF THE ORDNANCE DEPARTMENT TO PLACE IT UNDER THAT DEPARTMENT. SEE HEARINGS ON THE ARMY REORGANIZATION ACT.

NEITHER THE ACT OF JUNE 4, 1920, SUPRA, NOR AMENDATORY ACTS (ACT OF JUNE 30, 1922, 42 STAT. 723, AND ACT OF FEBRUARY 24, 1925, 43 STAT. 970), SPECIFICALLY TRANSFER TO THE CHEMICAL WARFARE SERVICE ANY AUTHORITY PREVIOUSLY CONFERRED UPON THE ORDNANCE DEPARTMENT. THERE APPEARS TO BE NO LAW WHICH EXTENDS TO CIVILIAN PERSONNEL OF THE CHEMICAL WARFARE SERVICE THE RIGHTS AND PRIVILEGES ENJOYED BY CIVILIAN EMPLOYEES OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617.

THE CHEMICAL WARFARE SERVICE IS A SEPARATE BRANCH OR DEPARTMENT OF THE ARMY AND IS DISTINCT FROM ANY OTHER BRANCH OR DEPARTMENT OF THE ARMY. WHILE IT APPEARS THAT SOME OF THE CIVILIAN EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE STATIONED AT AN ARSENAL THAT FACT DOES NOT IPSO FACTO MAKE THEM EMPLOYEES OF THE ARSENAL. THE ACT OF AUGUST 29, 1916, SUPRA, DOES NOT APPLY TO EMPLOYEES WHO ARE AT ARSENALS, ETC., BUT TO EMPLOYEES OF THE ARSENALS, ETC. IT IS APPARENT THAT SUCH CIVILIAN EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE FIELD EMPLOYEES OF THE WAR DEPARTMENT.

NUMEROUS DECISIONS HAVE HELD, IN EFFECT, THAT IT IS SELF-EVIDENT THAT EMPLOYEES IN THE FIELD SERVICE GENERALLY ARE NOT EMPLOYEES OF ARSENALS, ETC., AND, ACCORDINGLY, ARE NOT ENTITLED TO LEAVE AS PROVIDED BY THE ACT OF AUGUST 29, 1916, SUPRA, 6 COMP. GEN. 560; 26 COMP. DEC. 873; ID. 27; ID. 23; 23 ID. 473; A-24467, DATED OCTOBER 1, 1928, AND A-22968, DATED MAY 25, 1928. IN OTHER WORDS, THE DECISIONS UNIFORMLY HAVE HELD THAT ONLY EMPLOYEES OF NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT ARE ENTITLED TO THE LEAVE PRIVILEGES EXTENDED BY SAID ACT.

ACCORDINGLY, EMPLOYEES OF THE CHEMICAL WARFARE SERVICE ARE NOT ENTITLED TO LEAVE OF ABSENCE AS A MATTER OF RIGHT BUT ARE ENTITLED TO LEAVE ONLY WITHIN THE DISCRETION OF THE HEAD OF THE DEPARTMENT. 26 COMP. DEC. 379.

HOWEVER, IN VIEW OF THE APPARENT MISUNDERSTANDING AS TO THE STATUS OF THIS CLASS OF EMPLOYEES AND THE FACT THAT HERETOFORE NO OBJECTION HAS BEEN MADE IN THE AUDIT AND SETTLEMENT OF THE ACCOUNTS WITH RESPECT TO SUCH STATUS PAYMENTS OF THIS CLASS WILL NOT BE QUESTIONED IN THE AUDIT FOR PERIODS PRIOR TO JULY 1, 1929, IF OTHERWISE CORRECT AND PROPER.