A-5028, SEPTEMBER 23, 1924, 4 COMP. GEN. 322

A-5028: Sep 23, 1924

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WHERE 30 DAYS' LEAVE IS GRANTED AN ARSENAL EMPLOYEE AT THE BEGINNING OF A SERVICE YEAR AFTER THE SECOND. I HAVE YOUR REQUEST FOR DECISION OF QUESTIONS PRESENTED BY THE CHIEF OF ORDNANCE (1) WHETHER. IF AN ARSENAL EMPLOYEE IS GRANTED 30 DAYS' LEAVE AT THE BEGINNING OF ANY SERVICE YEAR AFTER THE SECOND AND IF LATER DURING THE SERVICE YEAR HE SHOULD HAVE TO BE LAID OFF DUE TO LACK OF WORK. ARSENALS OF THE UNITED STATES GOVERNMENT IS HEREBY GRANTED THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR. THAT IN ALL CASES THE HEADS OF DIVISIONS SHALL HAVE DISCRETION AS TO THE TIME WHEN THE LEAVE CAN BEST BE ALLOWED: AND PROVIDED FURTHER. WHICH WAS PRACTICALLY IDENTICAL THEREWITH EXCEPT THAT THE EARLIER ACT GRANTED ONLY 15 DAYS' LEAVE WITH PAY INSTEAD OF 30.

A-5028, SEPTEMBER 23, 1924, 4 COMP. GEN. 322

LEAVE OF ABSENCE - ARSENAL EMPLOYEES AS REGULATIONS GOVERNING LEAVE FOR EMPLOYEES OF THE ORDNANCE DEPARTMENT AT LARGE PROVIDE THAT IN ALL YEARS AFTER THE SECOND YEAR THE ENTIRE 30 DAYS' ANNUAL LEAVE, UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617, MAY BE GRANTED AT ANY ONE TIME IN THE YEAR OR IN INSTALLMENTS, AT THE DISCRETION OF THE COMMANDING OFFICER, WHERE 30 DAYS' LEAVE IS GRANTED AN ARSENAL EMPLOYEE AT THE BEGINNING OF A SERVICE YEAR AFTER THE SECOND, SUCH EMPLOYEE CAN NOT BE COMPELLED TO REFUND THE PAY FOR THE DIFFERENCE BETWEEN THE LEAVE GRANTED AND THAT ACCRUED TO THE DATE OF HIS CESSATION OF SERVICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, SEPTEMBER 23, 1924:

BY FOURTH INDORSEMENT, DATED SEPTEMBER 5, 1924, OF THE ACTING ASSISTANT AND CHIEF CLERK, I HAVE YOUR REQUEST FOR DECISION OF QUESTIONS PRESENTED BY THE CHIEF OF ORDNANCE (1) WHETHER, IF AN ARSENAL EMPLOYEE IS GRANTED 30 DAYS' LEAVE AT THE BEGINNING OF ANY SERVICE YEAR AFTER THE SECOND AND IF LATER DURING THE SERVICE YEAR HE SHOULD HAVE TO BE LAID OFF DUE TO LACK OF WORK, INSUFFICIENT FUNDS, OR SHOULD RESIGN, THE EMPLOYEE WOULD BE COMPELLED TO REFUND THE DIFFERENCE BETWEEN THE PAY FOR THE LEAVE GRANTED AND THAT ACTUALLY EARNED; AND (2) IF REFUND MUST BE MADE, WHETHER IT CAN BE COLLECTED FROM THE 2 1/2 PERCENT RETIREMENT DEDUCTIONS AND FROM PAY DUE, IF SUFFICIENT TO COVER.

THE ACT OF AUGUST 29, 1916, 39 STAT. 617, PROVIDES AS FOLLOWS:

* * * THAT EACH AND EVERY EMPLOYEE OF THE NAVY YARDS, GUN FACTORIES, NAVAL STATIONS, AND ARSENALS OF THE UNITED STATES GOVERNMENT IS HEREBY GRANTED THIRTY DAYS' LEAVE OF ABSENCE EACH YEAR, WITHOUT FORFEITURE OF PAY DURING SUCH LEAVE: PROVIDED FURTHER, THAT IT SHALL BE LAWFUL TO ALLOW PRO RATA LEAVE ONLY TO THOSE SERVING TWELVE CONSECUTIVE MONTHS OR MORE: AND PROVIDED FURTHER, THAT IN ALL CASES THE HEADS OF DIVISIONS SHALL HAVE DISCRETION AS TO THE TIME WHEN THE LEAVE CAN BEST BE ALLOWED: AND PROVIDED FURTHER, THAT NOT MORE THAN THIRTY DAYS' LEAVE WITH PAY SHALL BE ALLOWED ANY SUCH EMPLOYEE IN ONE YEAR: PROVIDED FURTHER, THAT THIS PROVISION SHALL NOT BE CONSTRUED TO DEPRIVE EMPLOYEES OF ANY SICK LEAVE OR LEGAL HOLIDAYS TO WHICH THEY MAY NOW BE ENTITLED UNDER EXISTING LAW.

UNDER THE ACT QUOTED AND THE PREVIOUS ACT OF FEBRUARY 1, 1901, 31 STAT. 746, WHICH WAS PRACTICALLY IDENTICAL THEREWITH EXCEPT THAT THE EARLIER ACT GRANTED ONLY 15 DAYS' LEAVE WITH PAY INSTEAD OF 30, IT IS OBVIOUS THAT EMPLOYEES OF NAVY YARDS, ETC., ARE NOT ENTITLED TO ANY LEAVE WITH PAY DURING THEIR FIRST SERVICE YEAR. AT THE BEGINNING OF THE SECOND SERVICE YEAR THEY ARE ENTITLED TO 30 DAYS' LEAVE WITH PAY FOR SERVICE PERFORMED DURING THE FIRST SERVICE YEAR. DURING ANY SERVICE YEAR SUBSEQUENT TO THE FIRST THEY ARE ENTITLED TO 30 DAYS' LEAVE WITH PAY FOR SERVICES PERFORMED DURING SAID SUBSEQUENT YEAR. THE LEAVE EARNED DURING ANY SERVICE YEAR AFTER THE FIRST MUST BE TAKEN DURING THE YEAR IN WHICH EARNED. SEE 23 COMP. DEC. 724.

SINCE THE EMPLOYEES IN QUESTION ARE NOT ENTITLED TO ANY LEAVE WITH PAY DURING THE FIRST SERVICE YEAR AND SINCE THE LEAVE EARNED DURING ANY YEAR AFTER THE FIRST MUST BE TAKEN DURING THE YEAR IN WHICH IT IS EARNED, THE EMPLOYEES ARE ENTITLED TO 60 DAYS' LEAVE WITH PAY DURING THE SECOND SERVICE YEAR. IT DOES NOT VIOLATE THE PROVISO THAT NOT MORE THAN 30 DAYS' LEAVE SHALL BE ALLOWED AN EMPLOYEE IN ONE YEAR SINCE ONLY 30 DAYS ARE ALLOWED FOR THE FIRST AND 30 FOR THE SECOND SERVICE YEAR. SEE 16 COMP. DEC. 788.

IT WAS HELD IN DECISION OF NOVEMBER 2, 1916, 23 COMP. DEC. 277, THAT THE STATUTE DID NOT EXPRESSLY REQUIRE THAT THE LEAVE DURING THE SECOND AND SUBSEQUENT SERVICE YEARS SHOULD BE PRORATED BUT THAT SUCH PRORATING HAD BEEN DEEMED NECESSARY TO A PROPER ADMINISTRATION OF THE ACT OF AUGUST 29, 1916.

GENERAL ORDERS NO. 7 GOVERNING THE ORDNANCE DEPARTMENT AT LARGE HAS THE FOLLOWING PROVISION IN REGARD TO LEAVE:

* * * IN ALL YEARS AFTER THE SECOND, THE ENTIRE 30 DAYS MAY BE GRANTED AT ANY ONE TIME IN THE YEAR OR INSTALLMENTS, AT THE DISCRETION OF THE COMMANDING OFFICER. * * *

THE PROVISO AS TO PRO RATA LEAVE PROHIBITS GRANTING PRO RATA LEAVE BEFORE THE END OF THE FIRST SERVICE YEAR, THE OBJECT BEING TO DENY LEAVE TO TRANSIENT EMPLOYEES, AND TO ENCOURAGE EMPLOYEES TO REMAIN IN EMPLOYMENT. THE PROHIBITION DOES NOT CARRY THE IMPLICATION THAT ONLY PRO RATA LEAVE CAN BE GRANTED AFTER THE FIRST SERVICE YEAR.

IN VIEW OF THE LANGUAGE OF THE STATUTE UNDER CONSIDERATION AND OF THE DECISIONS CONSTRUING IT, IT MUST BE HELD THAT THE PROVISION IN GENERAL ORDERS NO. 7 REFERRED TO IS VALID. IF LEAVE WITH PAY IS GRANTED IN ACCORDANCE WITH SAID PROVISION, THE EMPLOYEE TO WHOM THE LEAVE IS GRANTED WOULD BE ENTITLED TO PAY FOR THE PERIOD OF LEAVE GRANTED AND TAKEN AND THERE WOULD BE NO AUTHORITY OF LAW TO COMPEL THE EMPLOYEE TO REFUND THE PAY FOR THE DIFFERENCE BETWEEN THE LEAVE GRANTED AND THAT ACCRUED TO THE DATE OF CESSATION OF SERVICE.

IT IS FOR YOUR CONSIDERATION WHETHER OR NOT THE PROVISION IN QUESTION SHOULD BE CHANGED IN THE INTEREST OF BETTER ADMINISTRATION. IN VIEW OF THE ANSWER TO THE FIRST QUESTION THE SECOND DOES NOT REQUIRE AN ANSWER.