A-48494, APRIL 28, 1933, 12 COMP. GEN. 609

A-48494: Apr 28, 1933

Additional Materials:

Contact:

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

 

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

FOR THE CALENDAR OR LEAVE YEAR 1932 CURRENT WHEN SECTION 215 OF THE ECONOMY ACT WAS PASSED. WAS REDUCED FROM 30 CALENDAR DAYS TO 15 WORKING DAYS. IS 7 1/2 DAYS. WHO IS EMPLOYED AS ASSOCIATE ENGINEER IN THE ENGINEER DEPARTMENT AT LARGE. IT IS DESIRED TO ALLOW HIM THE FULL PERIOD OF LEAVE DUE. SINCE THIS OFFICE IS NOT CERTAIN AS TO THE AMOUNT OF LEAVE WHICH PROPERLY MAY BE GRANTED UNDER THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30. THE FACTS IN THE CASE OF THIS EMPLOYEE WILL BE SET FORTH BELOW. ACCRUED LEAVE WAS ALLOWED TO EMPLOYEES OF THE ENGINEER DEPARTMENT AT LARGE IN PUERTO RICO IN ACCORDANCE WITH THE PROVISIONS OF W. IS NOT CLEAR AND A RULING ON THIS POINT IS REQUESTED.

A-48494, APRIL 28, 1933, 12 COMP. GEN. 609

ECONOMY ACT, AMENDED - LEAVE OF ABSENCE - WAR DEPARTMENT EMPLOYEES THE LEAVE CREDIT FOR AN EMPLOYEE OF THE WAR DEPARTMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES UNDER WAR DEPARTMENT REGULATIONS AUTHORIZING ACCRUAL THROUGH FOUR CALENDAR OR LEAVE YEARS, FOR THE CALENDAR OR LEAVE YEAR 1932 CURRENT WHEN SECTION 215 OF THE ECONOMY ACT WAS PASSED, WAS REDUCED FROM 30 CALENDAR DAYS TO 15 WORKING DAYS, AND SINCE WITH RESPECT TO LEAVE NOT TAKEN IT CAN NOT BE HELD THAT THE MAXIMUM AMOUNT AUTHORIZED FOR THE ENTIRE YEAR ACCRUED DURING THE FIRST HALF OF THE YEAR, ONLY, THE LEAVE CREDIT FOR THE PERIOD FROM JANUARY TO JUNE, 1932, IS 7 1/2 DAYS. DUE TO SECTION 103 OF THE ECONOMY ACT NO CREDIT CAN BE ALLOWED FOR ANY LEAVE FOR THE PERIOD FROM JULY 1, 1932, TO MARCH 31, 1933. UNDER THE AMENDMENT TO SECTION 215 OF THE ECONOMY ACT APPEARING IN THE ACT OF MARCH 20, 1933, 48 STAT. 14, EXPRESSLY EXCEPTING THESE EMPLOYEES FROM SECTION 215, THUS RESTORING TO THEM 30 CALENDAR DAYS' LEAVE FOR EACH LEAVE YEAR, LEAVE BEGAN TO ACCRUE AGAIN AT THE RATE OF 30 CALENDAR DAYS EACH CALENDAR YEAR, OR 2 1/2 CALENDAR DAYS FOR EACH MONTH AFTER APRIL 1, 1933.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, APRIL 28, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 12, 1933, AS FOLLOWS:

MR. WALTER J. TRUSS, WHO IS EMPLOYED AS ASSOCIATE ENGINEER IN THE ENGINEER DEPARTMENT AT LARGE, PUERTO RICO DISTRICT, SAN JUAN, PUERTO RICO, HAS APPLIED FOR LEAVE OF ABSENCE FOR THE PURPOSE OF VISITING THE UNITED STATES.

IT IS DESIRED TO ALLOW HIM THE FULL PERIOD OF LEAVE DUE, BUT SINCE THIS OFFICE IS NOT CERTAIN AS TO THE AMOUNT OF LEAVE WHICH PROPERLY MAY BE GRANTED UNDER THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, AND THE ACT OF MARCH 20, 1933, THE FACTS IN THE CASE OF THIS EMPLOYEE WILL BE SET FORTH BELOW, WITH REQUEST FOR RULING AS TO THE AMOUNT OF LEAVE ALLOWABLE.

BEFORE THE PASSAGE OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, ACCRUED LEAVE WAS ALLOWED TO EMPLOYEES OF THE ENGINEER DEPARTMENT AT LARGE IN PUERTO RICO IN ACCORDANCE WITH THE PROVISIONS OF W. D. CIRCULAR (A) DATED JANUARY 12, 1912, COPY HEREWITH. MR. TRUSS HAD ACCUMULATED SOME LEAVE PRIOR TO JUNE 30, 1932, WHICH HE COULD NOT TAKE DURING THE PERIOD JULY 1, 1932, TO MARCH 31, 1933, UNDER THE PROVISIONS OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, AS INTERPRETED BY DECISION OF THE COMPTROLLER GENERAL OF JULY 9, 1932, A-43069. THE ACT OF MARCH 20, 1933, REPEALS THE SUSPENSION OF "ALL RIGHTS * * * TO RECEIVE ANNUAL LEAVE.' IT SEEMS CLEAR, THEREFORE, THAT MR. TRUSS WOULD, WITH OTHER EMPLOYEES OF THE GOVERNMENT, BE ENTITLED TO ANNUAL LEAVE WITH PAY BEGINNING APRIL 1, 1933. WHETHER THE ACT OF MARCH 20, 1933, RESTORES THE RIGHT OF THIS EMPLOYEE TO RECEIVE THE ANNUAL LEAVE WHICH HAD ACCRUED TO HIS CREDIT PRIOR TO JULY 1, 1932, AND WHICH HE HAD NOT TAKEN, IS NOT CLEAR AND A RULING ON THIS POINT IS REQUESTED.

THE ENACTMENT OF MARCH 20, 1933, MOREOVER, BY SECTION 4, PARAGRAPH (C), OF TITLE II, MAKES INAPPLICABLE TO "* * * EMPLOYEES OF THE UNITED STATES * * * HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES * * *" THE PROVISION OF LAW AS TO LIMITATION OF ANNUAL LEAVE TO FIFTEEN DAYS IN ANY ONE YEAR, AS CONTAINED IN SECTION 215, PART II, OF THE ECONOMY ACT OF JUNE 30, 1932. IT WOULD APPEAR, THEREFORE, THAT MR. TRUSS, AS AN EMPLOYEE OF THE UNITED STATES HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES, IS ENTITLED, EFFECTIVE APRIL 1, 1933, NOT TO FIFTEEN DAYS' ANNUAL LEAVE IN ANY ONE YEAR, BUT IS SUBJECT TO "ALL RIGHTS * * * TO RECEIVE ANNUAL LEAVE" WHICH OBTAINED PRIOR TO THE EFFECTIVE DATE OF THE ECONOMY ACT OF JUNE 30, 1932. IN OTHER WORDS, MR. TRUSS WILL BE ENTITLED, ON AND AFTER APRIL 1, 1933, TO THIRTY DAYS' ANNUAL LEAVE IN EACH LEAVE YEAR, AND TO CUMULATION OF SUCH UNUSED LEAVE NOT TO EXCEED 120 DAYS, COUNTING SUNDAYS AND HOLIDAYS, LESS SUCH SICK LEAVE OF ABSENCE WITH PAY TAKEN IN EXCESS OF FIFTEEN DAYS IN EACH YEAR OF THE CUMULATIVE PERIOD.

IN ADDITION, BY DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES DATED MARCH 23, 1933, MR. TRUSS MAY BE PERMITTED TO TAKE, BETWEEN MARCH 31 AND JULY 1, 1933, THE UNUSED PORTION OF THE EIGHTEEN DAYS' FURLOUGH WHICH HE HAD PAID FOR BY MARCH 31, 1933.

IF THE UNDERSTANDING OF THIS OFFICE BE CORRECT, MR. TRUSS MAY BE GRANTED LEAVE FROM DUTY WITH PAY AS FOLLOWS, THE CUMULATIVE LEAVE BEING BASED UPON COMPUTATIONS FOR FOUR YEARS PRECEDING JULY 1, 1933:

TABLE

CUMULATIVE LEAVE OF ABSENCE

JULY 1 TO DECEMBER 31, 1929------ 15 CALENDAR DAYS.

JANUARY 1 TO DECEMBER 31, 1930--- 30 CALENDAR DAYS.

JANUARY 1 TO DECEMBER 31, 1931--- 30 CALENDAR DAYS.

JANUARY 1 TO JUNE 30, 1932------- 15 CALENDAR DAYS.

APRIL 1 TO JUNE 30, 1933--------- 7 1/2 CALENDAR DAYS.

97 1/2 CALENDAR DAYS. 97 1/2 CAL.DAS.

LESS:

LEAVE OF ABSENCE 1930------------ 70 CALENDAR DAYS.

SICK LEAVE IN EXCESS OF 15 DAYS IN

ANY CALENDAR YEAR IN ABOVE

CUMULATIVE PERIOD--------------- 0 CALENDAR DAYS.

70 CALENDAR DAYS. 70 CAL.DAS.

CUMULATIVE LEAVE DUE JUNE 30, 1933------------------- 27 1/2 CAL.DAS.

LEGISLATIVE FURLOUGH

DEDUCTED FOR JULY 1, 1932, TO MARCH 31, 1933--------- 18 WORKING DAYS.

ABSENCE TAKEN JULY 1, 1932, TO MARCH 31, 1933-------- 0 WORKING DAYS.

18 WORKING DAYS.

TOTAL ACCRUED FOR USE MARCH 31 TO JULY 1, 1933, 27 1/2 CAL.DAS., 18 WORKING DAYS.

A RULING IS REQUESTED AS TO WHETHER THE INTERPRETATION OF THIS OFFICE IS CORRECT. IF THE INTERPRETATION SHOULD BE FOUND INCORRECT, A STATEMENT OF THE CORRECT PRINCIPLES FOR THE COMPUTATION OF LEAVE IN THIS CASE IS REQUESTED.

WAR DEPARTMENT CIRCULAR (A) DATED JANUARY 12, 1912, PROVIDED AS FOLLOWS:

1. UNUSED ANNUAL LEAVE OF ABSENCE PROVIDED BY THE DEPARTMENT'S CIRCULAR (J) OF AUGUST 5, 1899, SHALL ACCRUE, NOT TO EXCEED 120 DAYS, COUNTING SUNDAYS AND HOLIDAYS, FOR EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES AND WHO ARE ON DUTY IN ALASKA, THE PHILIPPINES, OR OUTSIDE THE LIMITS OF THE UNITED STATES, PROVIDED THAT IN CALCULATING ACCRUED LEAVE THERE SHALL BE DEDUCTED FROM THE UNUSED ANNUAL LEAVE OF EACH OF THE CALENDAR YEARS IN THE CUMULATIVE PERIOD ALL SICK LEAVE WITH PAY TAKEN IN EXCESS OF 15 DAYS IN EACH YEAR OF THE CUMULATIVE PERIOD.

2. WHERE ACCRUED LEAVE WITH PAY FOR NOT LESS THAN 60 DAYS IS GRANTED AN EMPLOYEE FOR THE PURPOSE OF COMING TO THE UNITED STATES, THE RUNNING OF SUCH LEAVE SHALL BE BETWEEN THE DATES OF REACHING AND LEAVING THE UNITED STATES, VIA THE USUALLY TRAVELED ROUTES, BUT THIS PROVISION SHALL NOT APPLY OFTENER THAN ONCE IN THREE YEARS AND OPERATES TO RESCIND THE DEPARTMENT'S CIRCULAR (H) OF JULY 7, 1904, ON THIS SUBJECT.

3. WHERE LEAVE OF ABSENCE IS GRANTED AN EMPLOYEE IN THE PHILIPPINES TO BE ABSENT THEREFROM OTHER THAN TO VISIT THE UNITED STATES, THE RUNNING OF SUCH LEAVE SHALL BE BETWEEN THE DATE OF REACHING MANILA FROM HIS PLACE OF EMPLOYMENT AND THE DATE OF LEAVING MANILA IN RETURNING TO HIS PLACE OF EMPLOYMENT.

4. WHERE AN EMPLOYEE WHO IS GRANTED LEAVE OF ABSENCE UNDER EITHER OF THE TWO PRECEDING PARAGRAPHS FAILS TO RETURN TO DUTY AT THE PLACE AT WHICH LEAVE WAS GRANTED, THE RUNNING OF SUCH LEAVE SHALL BE FROM THE DATE HE LEFT HIS STATION AND NOT FROM THE DATE OF ARRIVAL IN THE UNITED STATES OR AT MANILA AS THE CASE MAY BE. TO INSURE THE ENFORCEMENT OF THIS PROVISION, PAYMENT OF A SUFFICIENT PORTION OF THE EMPLOYEE'S SALARY WILL BE SUSPENDED UNTIL HIS RETURN.

5. HEREAFTER EMPLOYEES COMING TO THE UNITED STATES ON A LEAVE OF ABSENCE FROM OUTLYING STATIONS WILL NOT BE ALLOWED SICK LEAVE WITH PAY WHILE IN THE UNITED STATES; IN OTHER WORDS, ALL ABSENCE OF SUCH EMPLOYEES WHILE IN THE UNITED STATES AWAY FROM THEIR STATIONS SHALL BE CHARGED AGAINST ANNUAL LEAVE WHICH HAS ACCRUED, AND AFTER THAT LEAVE IS EXHAUSTED SHALL BE CHARGED AS ABSENCE WITHOUT PAY. APPLICATIONS OF SUCH EMPLOYEES FOR ANY LEAVE WITHOUT PAY WHILE IN THE UNITED STATES SHALL BE MADE DIRECT TO THE OFFICERS UNDER WHOM THEY ARE EMPLOYED AND NOT TO THE WAR DEPARTMENT AT WASHINGTON.

A COPY OF CIRCULAR (J) OF AUGUST 5, 1899, REFERRED TO IN THE QUOTED CIRCULAR, IS NOT AVAILABLE TO THIS OFFICE, BUT IT WILL BE ASSUMED FOR THE PURPOSE OF THIS DECISION THAT IT AUTHORIZED THE GRANTING OF 30 CALENDAR DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY TO THESE EMPLOYEES IN ANY CALENDAR YEAR.

SECTION 103 OF THE ECONOMY ACT OF JUNE 30, 1932, PROVIDED AS FOLLOWS:

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.

THIS SECTION WAS REPEALED EFFECTIVE APRIL 1, 1933, BY SECTION 4 (D) OF THE ACT OF MARCH 20, 1933, PUBLIC, NO. 2, 48 STAT. 14.

SECTION 215 OF THE ECONOMY ACT OF JUNE 30, 1932, ORIGINALLY PROVIDED, IN SO FAR AS HERE MATERIAL, AS FOLLOWS:

HEREAFTER NO CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO RECEIVES ANNUAL LEAVE WITH PAY SHALL BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY IN EXCESS OF FIFTEEN DAYS IN ANY ONE YEAR, EXCLUDING SUNDAYS AND LEGAL HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR MAY BE CUMULATIVE FOR ANY SUCCEEDING YEAR: PROVIDED FURTHER, THAT NOTHING HEREIN SHALL APPLY TO CIVILIAN OFFICERS AND EMPLOYEES OF THE PANAMA CANAL LOCATED ON THE ISTHMUS AND WHO ARE AMERICAN CITIZENS OR TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICES OF THE UNITED STATES HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES: * * *

DECISION OF NOVEMBER 28, 1932, A-45580, AND UPON RECONSIDERATION OF JANUARY 1, 1933, 12 COMP. GEN. 486, HELD THAT THE EXCEPTION CONTAINED IN THE SECOND PROVISO TO SECTION 215 WAS NOT APPLICABLE TO OFFICERS AND EMPLOYEES OF THE WAR DEPARTMENT WITH DUTY STATIONS ABROAD BUT APPLIED TO ONLY CERTAIN RECOGNIZED FOREIGN SERVICES TO NONE OF WHICH DOES IT APPEAR THAT THIS EMPLOYEE BELONGED. THEREFORE, THE FIRST PROVISO OF SECTION 215 OF THE ECONOMY ACT ABOVE QUOTED REDUCED THE LEAVE OF THESE EMPLOYEES FROM 30 CALENDAR DAYS TO 15 WORKING DAYS; THAT IS, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR THE CALENDAR OR LEAVE YEAR 1932 THEN CURRENT AND SECTION 103, SUPRA, PREVENTED THE GRANTING OF ANY PART OF SAID LEAVE WITH PAY FOR THE PERIOD FROM JULY 1, 1932, TO MARCH 31, 1933.

SECTION 6 (A) OF THE ACT OF MARCH 3, 1933, PUBLIC, NO. 428, 47 STAT. 1515, PROVIDED AS FOLLOWS:

SECTIONS 103 AND 215 OF THE LEGISLATIVE APPROPRIATION ACT, FISCAL YEAR 1933, SHALL BE HELD APPLICABLE TO THE OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD COMPANY ON THE ISTHMUS OF PANAMA, AND TO OFFICERS AND EMPLOYEES OF THE UNITED STATES (INCLUDING ENLISTED PERSONNEL) HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES, ONLY TO THE EXTENT OF DEPRIVING EACH OF THEM OF ONE MONTH'S LEAVE OF ABSENCE WITH PAY DURING EACH OF THE FISCAL YEARS ENDING JUNE 30, 1933, AND JUNE 30, 1934.

THIS AMENDMENT WHICH WAS EFFECTIVE ONLY FROM MARCH 3 TO 20, 1933, WAS MERELY A SAVING CLAUSE OR LIMITATION ON THE LOSS OF LEAVE TO RESULT FROM THE OPERATION OF SECTION 215 AND SECTION 103 AND WOULD NOT AFFECT THIS MAN'S LEAVE RIGHTS.

SECTION 4 (C), TITLE II, OF THE ACT OF MARCH 20, 1933, FURTHER AMENDED SECTION 215 OF THE ECONOMY ACT BY SUBSTITUTING FOR THE SECOND PROVISO, AS ORIGINALLY ENACTED JUNE 30, 1932, THE FOLLOWING:

* * * PROVIDED FURTHER, THAT NOTHING HEREIN SHALL APPLY TO OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD COMPANY ON THE ISTHMUS OF PANAMA, OR TO OFFICERS AND EMPLOYEES OF THE UNITED STATES (INCLUDING ENLISTED PERSONNEL) HOLDING OFFICIAL STATIONS OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA.

WHILE THIS AMENDMENT TO SECTION 215 OF THE ECONOMY ACT OPERATED TO RESTORE THE RIGHT TO 30 CALENDAR DAYS' ANNUAL LEAVE IN ANY ONE CALENDAR OR LEAVE YEAR WITH THE RIGHT OF CUMULATION AS PROVIDED BY CIRCULAR (A) OF JANUARY 12, 1912, SUPRA, SUCH RESTORATION WAS NOT RETROACTIVELY EFFECTIVE AND COULD NOT OPERATE TO RESTORE TO 30 DAYS THE AUTHORIZED LEAVE FOR THE CALENDAR YEAR 1932 WHICH SECTION 215, AS ORIGINALLY ENACTED JUNE 30, 1932, HAD REDUCED TO 15 DAYS. THEREFORE, IT MUST BE HELD THAT THE LEAVE CREDIT FOR THIS EMPLOYEE FOR THE CALENDAR OR LEAVE YEAR 1932, WHICH WAS CURRENT WHEN THE ACT WAS PASSED, WAS REDUCED FROM 30 CALENDAR DAYS TO 15 WORKING DAYS AND SINCE WITH RESPECT TO LEAVE NOT TAKEN, IT CAN NOT BE HELD THAT THE MAXIMUM AMOUNT AUTHORIZED FOR THE ENTIRE YEAR ACCRUED DURING THE FIRST HALF OF THE YEAR, ONLY, IT MUST BE HELD THAT THE LEAVE CREDIT FOR THE PERIOD FROM JANUARY 1 TO JUNE 30, 1932, IS 7 1/2 DAYS. DUE TO SECTION 103 NO CREDIT CAN BE ALLOWED FOR ANY LEAVE FOR THE PERIOD FROM JULY 1, 1932, TO MARCH 31, 1933, BUT LEAVE BEGAN TO ACCRUE AGAIN AT THE RATE OF 30 CALENDAR DAYS EACH CALENDAR YEAR OR 2 1/2 CALENDAR DAYS FOR EACH MONTH FROM APRIL 1, 1933.

ON THE BASIS OF THE RULES ABOVE STATED AND THE FACTS PRESENTED THE COMPUTATION OF LEAVE AND FURLOUGH IN THIS CASE FOR THE 4 YEARS PRECEDING JULY 1, 1933, WOULD BE AS FOLLOWS:

TABLE

CUMULATIVE LEAVE OF ABSENCE

JULY 1 TO DECEMBER 31, 1929----- 15 CALENDAR DAYS.

JANUARY 1 TO DECEMBER 31, 1930-- 30 CALENDAR DAYS.

JANUARY 1 TO DECEMBER 31, 1931-- 30 CALENDAR DAYS.

JANUARY 1 TO JUNE 30, 1932------ 7 1/2 WORKING DAYS.

APRIL 1 TO JUNE 30, 1933-------- 7 1/2 CALENDAR DAYS.

82 1/2 CALENDAR DAYS 7 1/2 WORKING

DAYS. LESS:

LEAVE OF ABSENCE TAKEN IN 1930-- 70 CALENDAR DAYS.

SICK LEAVE IN EXCESS OF 15 DAYS

IN ANY CALENDAR YEAR IN ABOVE

CUMULATIVE PERIOD--------------- 0 CALENDAR DAYS.

70 CALENDAR DAYS.

CUMULATIVE LEAVE DUE TO JUNE 30,

1933 12 1/2 CALENDAR DAYS.

7 1/2 WORKING DAYS.

LEGISLATIVE FURLOUGH

DEDUCTED FOR JULY 1, 1932, TO MARCH 31, 1933----- 18 WORKING DAYS.

ABSENCE TAKEN JULY 1, TO MARCH 31, 1933---------- 0 WORKING DAYS.

18 WORKING DAYS.

TOTAL AMOUNT OF ABSENCE WHICH MAY BE PERMITTED BETWEEN MARCH 31 AND JULY 1, 1933, WITHOUT LOSS OF PAY, 25 1/2 WORKING DAYS AND 12 1/2 CALENDAR DAYS.