A-43339, JULY 20, 1932, 12 COMP. GEN. 90

A-43339: Jul 20, 1932

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ECONOMY ACT - FOREIGN SERVICE - LEAVE OF ABSENCE AND TRANSIT TIME AS ALL LEAVE WITH PAY TO FOREIGN SERVICE OFFICERS AND EMPLOYEES IS SUSPENDED DURING THE FISCAL YEAR 1933. ALL RIGHTS TO TRANSIT TIME PAY AS INCIDENTAL TO SUCH LEAVE ARE ALSO SUSPENDED. NO CHANGE IS MADE BY THE ECONOMY ACT IN THE RULE THAT AN EMPLOYEE MAY NOT BE GRANTED ANNUAL OR SICK LEAVE WITH PAY AT THE BEGINNING OF A CALENDAR OR OTHER LEAVE YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS IN A PRECEDING YEAR UNLESS AND UNTIL THERE HAS BEEN A RETURN TO DUTY. AS FOLLOWS: THE DEPARTMENT WILL APPRECIATE AN EARLY DECISION ON THE FOLLOWING QUESTIONS WHICH ARISE UNDER THE PROVISIONS OF THE LEGISLATIVE ACT APPROVED JUNE 30.

A-43339, JULY 20, 1932, 12 COMP. GEN. 90

ECONOMY ACT - FOREIGN SERVICE - LEAVE OF ABSENCE AND TRANSIT TIME AS ALL LEAVE WITH PAY TO FOREIGN SERVICE OFFICERS AND EMPLOYEES IS SUSPENDED DURING THE FISCAL YEAR 1933; ALL RIGHTS TO TRANSIT TIME PAY AS INCIDENTAL TO SUCH LEAVE ARE ALSO SUSPENDED, EXCEPT THAT EMPLOYEES IN THE UNITED STATES IN A LEAVE STATUS PRIOR TO JULY 1, 1932, MAY BE ALLOWED THEIR RETURN TRANSIT TIME AS AN INCIDENT TO THE LEAVE TAKEN PRIOR TO JULY 1, 1932. THE ECONOMY ACT MAKES NO CHANGE IN THE SICK LEAVE GRANTED TO THE FOREIGN SERVICE PERSONNEL AND IT REMAINS CUMULATIVE TO THE SAME EXTENT AS FORMERLY. NO CHANGE IS MADE BY THE ECONOMY ACT IN THE RULE THAT AN EMPLOYEE MAY NOT BE GRANTED ANNUAL OR SICK LEAVE WITH PAY AT THE BEGINNING OF A CALENDAR OR OTHER LEAVE YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS IN A PRECEDING YEAR UNLESS AND UNTIL THERE HAS BEEN A RETURN TO DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JULY 20, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 11, 1932, AS FOLLOWS:

THE DEPARTMENT WILL APPRECIATE AN EARLY DECISION ON THE FOLLOWING QUESTIONS WHICH ARISE UNDER THE PROVISIONS OF THE LEGISLATIVE ACT APPROVED JUNE 30, 1932:

1.UNDER THE PROVISIONS OF SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, A NUMBER OF OFFICERS WERE ORDERED TO THE UNITED STATES ON LEAVE OF ABSENCE AT GOVERNMENT EXPENSE. IT IS DESIRED TO ASCERTAIN WHETHER IT WILL BE HELD THAT THE TRANSIT PERIOD REQUIRED IN RETURNING TO THE POST OF DUTY SHALL BE CONSIDERED AS LEAVE, AND WITHOUT SALARY.

SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, IS IN PART AS FOLLOWS:

"SECTION 22. THAT THE SECRETARY OF THE STATE IS AUTHORIZED WHENEVER HE DEEMS IT TO BE IN THE PUBLIC INTEREST TO ORDER TO THE UNITED STATES ON HIS STATUTORY LEAVE OF ABSENCE ANY FOREIGN SERVICE OFFICER OR VICE CONSUL OF CAREER, WHO HAS PERFORMED THREE YEARS OR MORE OF CONTINUOUS SERVICE ABROAD: PROVIDED, THAT THE EXPENSES OF TRANSPORTATION AND SUBSISTENCE OF SUCH OFFICERS AND THEIR IMMEDIATE FAMILIES, IN TRAVELING FROM THEIR POSTS TO THEIR HOMES IN THE UNITED STATES AND RETURN, SHALL BE PAID UNDER THE SAME RULES AND REGULATIONS APPLICABLE IN THE CASE OF OFFICERS GOING TO AND RETURNING FROM THEIR POSTS UNDER ORDERS OF THE SECRETARY OF STATE WHEN NOT ON LEAVE: AND PROVIDED FURTHER, THAT WHILE IN THE UNITED STATES THE SERVICES OF SUCH OFFICERS SHALL BE AVAILABLE FOR TRADE CONFERENCE WORK OR FOR SUCH DUTIES IN THE DEPARTMENT OF STATE AS THE SECRETARY OF STATE MAY PRESCRIBE, BUT THE TIME OF SUCH WORK OR DUTIES SHALL NOT BE COUNTED AS LEAVE.

"THE SECRETARY OF STATE IS AUTHORIZED, IN HIS DISCRETION AND SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED BY THE PRESIDENT, TO GRANT TO ANY OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE NOT TO EXCEED SIXTY DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY. IF SUCH OFFICER OR EMPLOYEE RETURNS TO THE UNITED STATES, THE LEAVE OF ABSENCE GRANTED UNDER THE PROVISIONS OF THIS SECTION SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING. ANY PORTION OF SIXTY DAYS' ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE, NOT TO EXCEED, EXCLUSIVE OF TIME IN TRANSIT AND AWAITING SAILING, ONE HUNDRED AND TWENTY DAYS IN THREE YEARS OR ONE HUNDRED AND EIGHTY DAYS IN FOUR YEARS: PROVIDED FURTHER, THAT EMPLOYEES NOT AMERICAN CITIZENS MAY BE GRANTED NOT TO EXCEED THIRTY DAYS' LEAVE OF ABSENCE WITH PAY IN ANY ONE YEAR. * * *"

IN VIEW OF THE EXPRESS TERMS OF THIS SECTION IT IS THE DEPARTMENT'S BELIEF THAT SUCH TRANSIT PERIOD WOULD NOT BE CONSIDERED AS A PART OF THE LEAVE PERIOD, AS IT IS SPECIFIED THAT THE "LEAVE OF ABSENCE GRANTED UNDER THE PROVISIONS OF THIS SECTION SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING.' IT IS THEREFORE TRUSTED THAT YOU WILL CONCUR IN THE DEPARTMENT'S BELIEF THAT THE TRANSIT PERIOD SHOULD BE TREATED AS PURSUANT TO THE CARRYING OUT OF OFFICIAL ORDERS OF THIS DEPARTMENT, DURING WHICH TIME THE LEAVE WITHOUT PAY STATUS DOES NOT APPLY.

2. THE QUESTION OF THE STATUS OF OFFICERS UNDER THE PROVISIONS OF THE LEGISLATIVE ACT ALSO ARISES IN THE CASES OF THOSE OFFICERS WHO, HAVING BEEN GRANTED LEAVE OF ABSENCE AT THEIR OWN EXPENSE, WERE IN THE UNITED STATES ON THE EFFECTIVE DATE OF THE ACT. THE TERMS OF SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, IN SO FAR AS THE TRANSIT PERIOD IS CONCERNED, ARE ALSO APPLICABLE TO OFFICERS ON LEAVE AT THEIR OWN EXPENSE, AND IT IS TRUSTED THAT IT MAY BE HELD THAT THEIR STATUS DURING THE TRANSIT PERIOD IN RETURNING TO THEIR POSTS NEED NOT BE CONSIDERED AS LEAVE WITHOUT PAY.

3. A NUMBER OF OFFICERS ARE NOW ON LEAVE IN THE UNITED STATES AT THEIR OWN EXPENSE, AND UPON THE TERMINATION OF THEIR LEAVE THEY WILL NOT RETURN TO THEIR OLD POSTS, BUT WILL BE TRANSFERRED TO NEW POSTS. IT IS TRUSTED THAT IN SUCH CASES ALSO THE TRANSIT PERIOD IN PROCEEDING FROM THE UNITED STATES TO THE NEW POST NEED NOT BE CONSIDERED AS LEAVE WITHOUT SALARY.

4. IS SICK LEAVE COMMENCING JULY 1, 1932, CUMULATIVE?

5. MAY THE SICK LEAVE CUMULATED FROM 1931 BE TAKEN IN CONNECTION WITH 1932 SICK LEAVE?

6. MAY THE ANNUAL CUMULATIVE LEAVE FROM 1931 BE ALLOWED IN CASE OF SERIOUS PROLONGED ILLNESS AFTER JULY 1, 1932?

7. ARE THE PROVISIONS OPERATIVE WHICH INHIBIT THE TAKING OF LEAVE (FOR THE PURPOSE OF SICK LEAVE) WITH PAY FOLLOWING A PERIOD OF LEAVE WITHOUT PAY, WITHOUT HAVING IN THE INTERIM RETURNED TO THE POST?

AS THE DEPARTMENT HAS A NUMBER OF CASES PENDING THAT ARE PRESSING FOR DECISION ON THE QUESTION OF TRANSIT PERIODS AND LEAVES, AN EARLY REPLY WILL BE MUCH APPRECIATED.

SECTION 103 OF THE ACT OF JUNE 30, 1932, PUBLIC NO. 212, 47 STAT. 400, PROVIDES:

SEC. 103. ALL RIGHTS NOW CONFERRED OR AUTHORIZED TO BE CONFERRED BY LAW UPON ANY OFFICER OR EMPLOYEE TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY ARE HEREBY SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933.

IN DECISION OF JULY 8, 1932, A-43056, 12 COMP. GEN. 9, TO THE PUBLIC PRINTER, IT WAS STATED:

THE TERM "ANNUAL LEAVE" REFERS TO ALL "VACATION" LEAVE OF ABSENCE WITH PAY AUTHORIZED BY LAW AND/OR REGULATION FOR EACH YEAR, WHETHER BASED ON THE CALENDAR, FISCAL, OR SERVICE YEAR, FOR THE PERSONAL PLEASURE, CONVENIENCE, OR BENEFIT OF THE OFFICER OR EMPLOYEE, BUT DOES NOT INCLUDE SICK, QUARANTINE, AND MILITARY LEAVE. RIGHTS TO ANNUAL LEAVE, AS THUS DEFINED, AS WELL AS TO ALL BENEFITS INCIDENT THERETO, ARE SUSPENDED DURING THE FISCAL YEAR 1933, IRRESPECTIVE OF WHETHER THE LEAVE RIGHTS HERETOFORE HAVE BEEN GRANTED ABSOLUTELY BY STATUTE OR ALLOWED WITHIN ADMINISTRATIVE DISCRETION.

THE RIGHT TO PAY FOR TRANSIT TIME IS GRANTED IN SECTION 22 OF THE FOREIGN SERVICE ACT OF FEBRUARY 23, 1931, ONLY AS AN INCIDENT TO AND IN CONNECTION WITH ANNUAL LEAVE OF ABSENCE WITH PAY; AND AS ALL ANNUAL LEAVE OF ABSENCE WITH PAY HAS BEEN SUSPENDED DURING THE FISCAL YEAR 1933, IT FOLLOWS THAT ALL RIGHTS TO TRANSIT TIME PAY UNDER SAID SECTION 22 LIKEWISE ARE SUSPENDED DURING THE FISCAL YEAR 1933, EXCEPT AS HEREINAFTER STATED.

IT APPEARS FROM YOUR SUBMISSION THAT THERE WERE ON JULY 1, 1932, A NUMBER OF FOREIGN SERVICE OFFICERS AND EMPLOYEES IN THE UNITED STATES ON LEAVES OF ABSENCE PURSUANT TO THE STATUTORY PROVISIONS QUOTED IN YOUR SUBMISSION. IN VIEW OF THE SUSPENSION OF ALL LEAVE WITH PAY DURING THE FISCAL YEAR 1933, THESE OFFICERS AND EMPLOYEES WERE AUTOMATICALLY IN A NONPAY STATUS BEGINNING JULY 1, 1932, AND WILL REMAIN SO DURING ALL TIME ABSENT FROM THEIR POSTS OF DUTY ON LEAVE. BUT WITH RESPECT TO THE TRANSIT TIME FOR THE RETURN TRIP, SINCE SAID TRIP IS INCIDENT TO AND NECESSARY AS A RESULT OF LEAVE LEGALLY TAKEN PRIOR TO JULY 1, 1932, THE RIGHT ACQUIRED UNDER THE ACT OF FEBRUARY 23, 1931, TO BE REGARDED AS IN A DUTY AND PAY STATUS DURING THE TIME NECESSARY FOR THE RETURN TRIP WAS NOT SUSPENDED BY THE PROVISIONS OF SECTION 103, SUPRA. ACCORDINGLY, I HAVE TO ADVISE THAT SUCH OF THE FOREIGN SERVICE OFFICERS AND EMPLOYEES WHO WERE IN THE UNITED STATES ON STATUTORY LEAVES OF ABSENCE WITH PAY PRIOR TO JULY 1, 1932, WILL RESUME A DUTY AND PAY STATUS UPON THE DATES THEY BEGIN THEIR RETURN TRIP TO THEIR POSTS OF DUTY, PROVIDED THERE BE NO UNNECESSARY DELAY IN COMPLETING SUCH TRIP. QUESTIONS 1, 2, AND 3 ARE ANSWERED ACCORDINGLY.

IT IS PRESUMED THAT QUESTIONS 4 TO 7 OF YOUR SUBMISSION ARE INTENDED AS PERTAINING TO FOREIGN SERVICE PERSONNEL ONLY, AND THEY WILL BE ANSWERED ON THAT BASIS.

IN ADDITION TO THE MATTER QUOTED IN YOUR SUBMISSION FROM SECTION 22 OF THE FOREIGN SERVICE ACT, SAID SECTION CONTAINS THE FOLLOWING PROVISION:

THE SECRETARY OF STATE IS ALSO AUTHORIZED TO GRANT TO ANY OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE ON ACCOUNT OF PERSONAL ILLNESS OR ON ACCOUNT OF EXPOSURE TO A CONTAGIOUS DISEASE WHICH WOULD RENDER PRESENCE AT A POST OF DUTY HAZARDOUS TO THE HEALTH OF FELLOW EMPLOYEES, SICK LEAVE OF ABSENCE WITH PAY AT THE RATE OF FIFTEEN DAYS A YEAR, THE UNUSED PORTION OF SUCH SICK LEAVE TO BE CUMULATIVE NOT TO EXCEED ONE HUNDRED AND TWENTY DAYS: PROVIDED, THAT DURING THE FIRST YEAR OF OPERATION OF THIS ACT NOT TO EXCEED THIRTY DAYS OF ADDITIONAL SICK LEAVE OF ABSENCE WITH PAY MAY BE GRANTED.

SECTION 215 OF THE ACT OF JUNE 30, 1932, PERMANENTLY AMENDING THE LEAVE LAWS APPLICABLE TO OFFICERS AND EMPLOYEES OF THE GOVERNMENT, EXCEPTS FROM ITS OPERATION OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE HOLDING AN OFFICIAL STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. THEREFORE, SAID SECTION DOES NOT MAKE ANY CHANGE IN THE SICK-LEAVE PROVISIONS APPLICABLE TO SUCH FOREIGN SERVICE EMPLOYEES. NEITHER DOES SECTION 103 OF SAID ACT AFFECT IN ANY WAY ANY RIGHTS ACQUIRED UNDER LAW OR AUTHORIZED REGULATION TO SICK LEAVE WITH PAY.

IN ANSWER TO QUESTIONS 4 AND 5 IT MAY BE STATED THAT THE SICK LEAVE FOR FOREIGN SERVICE EMPLOYEES REMAINS CUMULATIVE TO THE SAME EXTENT AS PRIOR TO JUNE 30, 1932.

AS TO QUESTION 6 IT MAY BE STATED THAT NO ANNUAL LEAVE WITH PAY CAN BE GRANTED OR TAKEN BETWEEN JUNE 30, 1932, AND JULY 1, 1933, IRRESPECTIVE OF WHETHER IT WAS CUMULATIVE OR OTHERWISE, AND THE FACT THAT AN OFFICER OR EMPLOYEE HAS TAKEN ALL THE SICK LEAVE WITH PAY TO WHICH HE MAY BE ENTITLED DURING THE FISCAL YEAR 1933 DOES NOT AUTHORIZE THE GRANTING TO HIM OF EITHER CURRENT OR ACCUMULATED ANNUAL LEAVE TO COVER FURTHER OR ADDITIONAL PERIODS OF ABSENCE ON ACCOUNT OF ILLNESS OR OTHERWISE.

THERE IS NOTHING IN THE ACT OF JUNE 30, 1932, WHICH REQUIRES OR AUTHORIZES ANY CHANGE IN THE RULE THAT EMPLOYEES MAY NOT BE GRANTED ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF A CALENDAR OR OTHER LEAVE YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS IN A PRECEDING YEAR UNLESS AND UNTIL THERE HAS BEEN A RETURN TO DUTY. COMP. GEN. 102, AND A-41582, APRIL 8, 1932. ACCORDINGLY, QUESTION 7 IS ANSWERED IN THE AFFIRMATIVE.