A-4531, DECEMBER 31, 1924, 4 COMP. GEN. 575

A-4531: Dec 31, 1924

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HOLDING THAT EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS SERVING UNDER TEMPORARY APPOINTMENTS ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29. WILL NOT BE APPLIED SO AS TO REQUIRE A CHECK AGE OF PAYMENTS MADE PRIOR THERETO FOR LEAVE OF ABSENCE GRANTED FOR SERVICE UNDER TEMPORARY APPOINTMENTS. IN WHICH WAS DISALLOWED HIS CLAIM FOR $59.92. THE CHECK AGE WAS MADE BY THE NAVY DEPARTMENT UNDER ITS CONSTRUCTION OF THE DECISION OF THIS OFFICE DATED DECEMBER 19. THE BUREAU IS ADVISED THAT H. V. TYDINGS WAS EMPLOYED AT ENGINEERING EXPERIMENT STATION AS LABORATORY HELPER (PERMANENT APPOINTMENT). IS NOW EMPLOYED UNDER THIS APPOINTMENT. * * * THE AMOUNT CHECKED REPRESENTS PAY FOR JANUARY 2.

A-4531, DECEMBER 31, 1924, 4 COMP. GEN. 575

LEAVE OF ABSENCE - PERMANENT AND TEMPORARY EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS WHERE AN EMPLOYEE OF A NAVY YARD OR NAVAL STATION SERVES CONTINUOUSLY UNDER SUCCESSIVE PERMANENT, TEMPORARY, AND PERMANENT APPOINTMENTS DURING TWO CONSECUTIVE YEARS, THE ENTIRE PERIOD OF SERVICE MAY BE COUNTED FOR LEAVE PURPOSES, UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617, BUT THAT LEAVE ACCRUED FOR THE FIRST SERVICE YEAR MAY NOT BE GRANTED DURING THE SECOND SERVICE YEAR UNTIL SUFFICIENT SERVICE HAS BEEN RENDERED UNDER THE PERMANENT APPOINTMENT IN THE SECOND SERVICE YEAR. THE DECISION OF DECEMBER 19, 1923, 3 COMP. GEN. 382, HOLDING THAT EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS SERVING UNDER TEMPORARY APPOINTMENTS ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 36 STAT. 617, WILL NOT BE APPLIED SO AS TO REQUIRE A CHECK AGE OF PAYMENTS MADE PRIOR THERETO FOR LEAVE OF ABSENCE GRANTED FOR SERVICE UNDER TEMPORARY APPOINTMENTS, IF OTHERWISE PROPER.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 31, 1924:

HENRY V. TYDINGS HAS REQUESTED REVIEW OF SETTLEMENT NO. 040467, DATED JULY 29, 1924, IN WHICH WAS DISALLOWED HIS CLAIM FOR $59.92, AMOUNT CHECKED AGAINST HIS PAY AS A NAVAL STATION EMPLOYEE, ANNAPOLIS, MD., REPRESENTING PAY PREVIOUSLY PAID HIM FOR DAYS WHILE ON LEAVE OF ABSENCE DURING HIS FIRST SERVICE YEAR. THE CHECK AGE WAS MADE BY THE NAVY DEPARTMENT UNDER ITS CONSTRUCTION OF THE DECISION OF THIS OFFICE DATED DECEMBER 19, 1923. 3 COMP. GEN., 382.

THE NAVY DEPARTMENT HAS FORWARDED THE FOLLOWING REPORT OF THE SUPERINTENDENT, UNITED STATES NAVAL ACADEMY, SHOWING THE SERVICE OF CLAIMANT:

1. IN REPLY TO REFERENCE (B), THE BUREAU IS ADVISED THAT H. V. TYDINGS WAS EMPLOYED AT ENGINEERING EXPERIMENT STATION AS LABORATORY HELPER (PERMANENT APPOINTMENT), 14 NOVEMBER, 1922. HE SERVED IN THIS CAPACITY UNTIL 18 JULY, 1923, WHEN HE RECEIVED TEMPORARY APPOINTMENT AS LABORATORIAN. HE RECEIVED PROBATIONAL APPOINTMENT IN THE LATTER POSITION 11 APRIL, 1924, AND IS NOW EMPLOYED UNDER THIS APPOINTMENT. * * *

THE AMOUNT CHECKED REPRESENTS PAY FOR JANUARY 2, MARCH 10, 17, 31, MAY 31, JUNE 16, JULY 28, SEPTEMBER 1, OCTOBER 3, 4, 8, 10, 15, 17, 22, 24, 27, AND 31, 1923.

THE DECISION OF DECEMBER 19, 1923, HELD THAT EMPLOYEES OF THE NAVY YARDS AND NAVAL STATIONS SERVING UNDER A TEMPORARY APPOINTMENT ARE NOT ENTITLED TO ACCRUED LEAVE OF ABSENCE WITH PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, 39 STAT., 617. THE DECISION OF JULY 5, 1924, 4 COMP. GEN., 18, AFFIRMED THE PRIOR DECISION AND IN ADDITION THE FOLLOWING QUESTIONS SUBMITTED BY THE SECRETARY OF THE NAVY WERE ANSWERED IN THE AFFIRMATIVE:

ARE EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS, WHO ARE SUBSEQUENTLY PERMANENTLY APPOINTED WITHOUT BREAK IN THE CONTINUITY OF SERVICE, ENTITLED TO ACCRUED LEAVE WITH PAY FROM THE DATE OF THEIR TEMPORARY APPOINTMENT AFTER 12 CONSECUTIVE MONTHS OF SERVICE IN BOTH TEMPORARY AND PERMANENT STATUS?

ARE SHOP EMPLOYEES SERVING UNDER PERMANENT APPOINTMENTS WHO ARE GIVEN TEMPORARY APPOINTMENTS IN OFFICE RATINGS AND LATER PERMANENT APPOINTMENTS AS SUCH OR, AFTER TERMINATION OF TEMPORARY APPOINTMENTS AS OFFICE EMPLOYEES, RETURNED TO THEIR SHOPS IN A PERMANENT STATUS, ENTITLED TO ACCRUED LEAVE WITH PAY AT THE EXPIRATION OF 12 CONSECUTIVE MONTHS' SERVICE?

THERE WAS APPROVED ALSO THE DEFINITION OF "PERMANENT" APPOINTMENT SUBMITTED BY THE SECRETARY OF THE NAVY WHICH INCLUDED "PROBATIONAL" APPOINTMENT.

IN THE PRESENT CASE THERE HAS BEEN CONTINUOUS SERVICE FROM NOVEMBER 14, 1922, TO THE PRESENT TIME UNDER, FIRST, A PERMANENT APPOINTMENT, SECOND, A TEMPORARY APPOINTMENT, AND, THIRD, A PERMANENT APPOINTMENT, DURING TWO CONSECUTIVE YEARS. THE LEAVE WAS TAKEN WITHOUT PAY DURING THE FIRST SERVICE YEAR EXPIRING NOVEMBER 13, 1923, AND PAID FOR ON THE DECEMBER 1 TO 15, 1923, PAY ROLL SUBSTITUTING THE SAME NUMBER OF DAYS' LEAVE ASSUMED TO BE DUE DURING THE SECOND SERVICE YEAR. SEE 4 COMP. GEN., 104, AND CASES THEREIN CITED.

AS IT IS SHOWN THAT AT THE TIME PAYMENT WAS MADE FOR THE LEAVE, DECEMBER, 1923, CLAIMANT WAS SERVING UNDER A TEMPORARY APPOINTMENT WHICH ENTITLED TO NO LEAVE, CLAIMANT SHOULD NOT THEN HAVE BEEN PAID FOR THE LEAVE TAKEN WITHOUT PAY DURING THE FIRST SERVICE YEAR. HOWEVER, ON APRIL 11, 1924, PRIOR TO THE EXPIRATION OF THE SECOND YEAR OF SERVICE, CLAIMANT WAS AGAIN APPOINTED PERMANENTLY AND HAS SERVED A SUFFICIENT TIME UNDER SUCH PERMANENT APPOINTMENT IN THE SECOND YEAR OF SERVICE TO BE ENTITLED TO THE FULL 30 DAYS' LEAVE ACCRUED FOR THE FIRST SERVICE YEAR. THE SERVICE UNDER THE THREE APPOINTMENTS MAY BE CONSIDERED AS ANALOGOUS TO THE SERVICE SHOWN IN THE SECOND QUESTION ABOVE QUOTED FROM THE DECISION OF JULY 5, 1924.

ACCORDINGLY IT MAY BE HELD THAT WHERE AN EMPLOYEE OF A NAVY YARD OR NAVAL STATION SERVES CONTINUOUSLY UNDER A PERMANENT, TEMPORARY, AND PERMANENT APPOINTMENT DURING TWO CONSECUTIVE YEARS OF SERVICE, THAT THE ENTIRE PERIOD OF THE SERVICE MAY BE COUNTED FOR LEAVE PURPOSES UNDER THE ACT OF AUGUST 29, 1916, BUT THAT THE LEAVE ACCRUED FOR THE FIRST SERVICE YEAR MAY NOT BE GRANTED DURING THE SECOND SERVICE YEAR UNTIL SUFFICIENT SERVICE HAS BEEN RENDERED UNDER THE PERMANENT APPOINTMENT IN THE SECOND SERVICE YEAR.

THE NAVY DEPARTMENT HAS ALSO SUBMITTED THE QUESTION IN THIS CASE AND THE CASE OF J. A. RIDOUT, WHOSE SERVICE RECORD IS SIMILAR, WHETHER THE DECISION OF DECEMBER 19, 1923, SHOULD BE GIVEN EFFECT RETROACTIVELY. PRIOR THERETO IT HAD BEEN THE PRACTICE TO GRANT LEAVE OF ABSENCE UNDER THE ACT OF AUGUST 29, 1916, BASED ON SERVICE UNDER TEMPORARY APPOINTMENTS. THE DECISION OF DECEMBER 19, 1923, WILL NOT BE APPLIED SO AS TO REQUIRE THE CHECK AGE OF PAYMENTS MADE PRIOR THERETO FOR LEAVE OF ABSENCE GRANTED FOR SERVICE UNDER TEMPORARY APPOINTMENTS, IF OTHERWISE PROPER.