A-45580, JANUARY 11, 1933, 12 COMP. GEN. 486

A-45580: Jan 11, 1933

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IS ONE OF THE "FOREIGN SERVICES OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 215 OF THE ECONOMY ACT. THE EMPLOYEES THEREOF ARE EXEMPTED FROM THE RESTRICTIONS ON ANNUL LEAVE OF ABSENCE FIXED BY SAID SECTION. AS FOLLOWS: REFERENCE IS MADE TO THE CONCLUSION STATED IN YOUR DECISION OF NOVEMBER 28. AS FOLLOWS: "IT WILL BE NOTED THAT IN THE PROVISO TO SECTION 215 OF THE ECONOMY ACT IN QUESTION. THERE IS NOT EXCEPTED FROM THE RESTRICTIONS OF THE SECTION THE FOREIGN SERVICE OF THE UNITED STATES GENERALLY. THERE IS USED THE PROPER NAME "FOREIGN SERVICE OF THE UNITED STATES.'. ATTENTION IS INVITED TO THE FACT THAT THE WORDS ARE NOT "FOREIGN SERVICE OF THE UNITED STATES. IT IS TRUE THAT THE WORDS ARE "FOREIGN SERVICES.

A-45580, JANUARY 11, 1933, 12 COMP. GEN. 486

ECONOMY ACT - ANNUAL LEAVE - FOREIGN SERVICE OF THE UNITED STATES THE FOREIGN COMMERCE SERVICE OF THE UNITED STATES ESTABLISHED BY THE ACT OF MARCH 3, 1927, 44 STAT. 1394, IS ONE OF THE "FOREIGN SERVICES OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 215 OF THE ECONOMY ACT, AND THE EMPLOYEES THEREOF ARE EXEMPTED FROM THE RESTRICTIONS ON ANNUL LEAVE OF ABSENCE FIXED BY SAID SECTION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, JANUARY 11, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 8, 1932, AS FOLLOWS:

REFERENCE IS MADE TO THE CONCLUSION STATED IN YOUR DECISION OF NOVEMBER 28, 1932 (A-45580), ADDRESSED TO THE SECRETARY OF WAR, AS FOLLOWS:

"IT WILL BE NOTED THAT IN THE PROVISO TO SECTION 215 OF THE ECONOMY ACT IN QUESTION, THERE IS NOT EXCEPTED FROM THE RESTRICTIONS OF THE SECTION THE FOREIGN SERVICE OF THE UNITED STATES GENERALLY, BUT THERE IS USED THE PROPER NAME "FOREIGN SERVICE OF THE UNITED STATES.'

"SECTION 1 OF THE ACT OF MAY 24, 1924, 43 STAT. 140, PROVIDES:

" "THAT HEREAFTER THE DIPLOMATIC AND CONSULAR SERVICE OF THE UNITED STATES SHALL BE KNOWN AS THE FOREIGN SERVICE OF THE UNITED STATES.'

"IT SEEMS CLEAR, THEREFORE, THAT THE EXCEPTION IN QUESTION RELATED ONLY TO THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE AND NOT TO OFFICERS AND EMPLOYEES OF THE WAR DEPARTMENT SERVING ABROAD.'

ATTENTION IS INVITED TO THE FACT THAT THE WORDS ARE NOT "FOREIGN SERVICE OF THE UNITED STATES," BUT "FOREIGN SERVICES OF THE UNITED STATES.' IT IS TRUE THAT THE WORDS ARE "FOREIGN SERVICES," BEGINNING WITH CAPITAL LETTERS, BUT IT IS ALSO TRUE THAT THE WORD IS "SERVICES," THE PLURAL FORM. IT IS ALSO DESIRED TO INVITE ATTENTION TO THE FACT THAT AT ONE TIME DURING THE DISCUSSION OF THE BILL THE WORDS WERE "FOREIGN SERVICE," THE WORD "SERVICE" BEING IN THE SINGULAR FORM. IT WAS NATURALLY FELT THAT CONGRESS DID NOT INTEND TO REFER ONLY TO THE FOREIGN SERVICE OF THE STATE DEPARTMENT AND CONSEQUENTLY THE ATTENTION OF INDIVIDUALS CONNECTED WITH THE SENATE APPROPRIATIONS COMMITTEE WAS DRAWN TO THE FACT THAT THE WORDS BEGAN WITH CAPITAL LETTERS AND THAT THE WORD ,SERVICE" WAS IN THE SINGULAR FORM. THE MATTER WAS CORRECTED TO THE EXTENT THAT THE WORD SERVICE" WAS CHANGED TO "SERVICES," ALTHOUGH IT IS REALIZED THAT THE MATTER WOULD BE LESS OPEN TO QUESTION IF THE WORDS ALSO BEGAN WITH SMALL LETTERS.

IT IS HOPED THAT UPON RECONSIDERATION OF THIS MATTER YOUR DECISION OF NOVEMBER 28, 1932, WILL BE MODIFIED.

THE DECISION OF NOVEMBER 28, 1932, A-45580, OF WHICH RECONSIDERATION IS REQUESTED, WAS TO THE SECRETARY OF WAR AND INVOLVED PRIMARILY EMPLOYEES UNDER THE WAR DEPARTMENT SERVING ABROAD AND MAY NOT PROPERLY BE RECONSIDERED AT YOUR REQUEST.

IT MAY BE STATED, HOWEVER, THAT THERE IS A DISTINCTION BETWEEN FOREIGN SERVICES OF THE UNITED STATES WHICH HAVE BEEN CREATED BY STATUTE, AND FOREIGN SERVICES OF THE UNITED STATES COMPRISED MERELY OF THE OFFICERS AND EMPLOYEES OF VARIOUS BRANCHES OF THE GOVERNMENT WITH DUTY STATIONS ABROAD AND TO WHOM THE REGULAR LEAVE LAWS AND REGULATIONS OF THE DEPARTMENT OR ESTABLISHMENT TO WHICH ATTACHED ARE APPLICABLE. SINCE THE PROPER NAME "FOREIGN SERVICES OF THE UNITED STATES" APPEARS IN SECTION 215, AND THE PHRASE "FOREIGN SERVICES OF THE UNITED STATES" USED IN A GENERAL SENSE, APPEARS IN SECTION 322 OF THE ECONOMY ACT, IT IS EVIDENT THAT THE PROPER NAME "FOREIGN SERVICES OF THE UNITED STATES" APPEARING IN THE FIRST MENTIONED SECTION WAS INTENDED TO REFER ONLY TO THOSE FOREIGN SERVICES WHICH HAVE BEEN CREATED BY STATUTE AS SEPARATE AND DISTRICT ENTITIES UNDER A BUREAU, OFFICE, OR DEPARTMENT OF THE GOVERNMENT, AND FOR WHICH SPECIAL LEAVE LAWS OR REGULATIONS HAD BEEN PROVIDED.

AS NO FOREIGN SERVICE HAS BEEN CREATED AS A SEPARATE ENTITY UNDER THE WAR DEPARTMENT, THE DECISION OF NOVEMBER 28, 1932, SUPRA, PROPERLY HELD THAT THE EXCEPTION IN QUESTION WAS NOT APPLICABLE TO ANY OFFICERS OR EMPLOYEES OF THAT DEPARTMENT.

THE ACT OF MARCH 3, 1927, 44 STAT. 1394, PROVIDES "THERE IS HEREBY ESTABLISHED IN THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE OF THE DEPARTMENT OF COMMERCE THE FOREIGN COMMERCE SERVICE OF THE UNITED STATES * * *.' AS THIS FOREIGN SERVICE HAS BEEN CREATED BY STATUTE, THE OFFICERS AND EMPLOYEES THEREUNDER WHILE SERVING ABROAD WOULD APPEAR TO BE EXEMPT FROM THE RESTRICTIONS ON ANNUAL LEAVE OF ABSENCE APPEARING IN SECTION 215 OF THE ECONOMY ACT.