A-54239, MARCH 30, 1934, 13 COMP. GEN. 251

A-54239: Mar 30, 1934

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IS. AS FOLLOWS: THE ANNUAL LEAVE OF CIVIL EMPLOYEES OF THE GOVERNMENT WAS PERMANENTLY REDUCED BY SECTION 215 OF THE ACT OF JUNE 30. IS GOVERNED BY THE ACT OF AUGUST 29. 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. THE RIGHT TO ACCUMULATE LEAVE OF CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES IS CONFERRED BY THE FOLLOWING PROVISION OF THE ACT OF AUGUST 29. - "THAT HEREAFTER ANY CIVILIAN EMPLOYEE OF THE NAVY DEPARTMENT WHO IS A CITIZEN OF THE UNITED STATES AND EMPLOYED AT ANY STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY.

A-54239, MARCH 30, 1934, 13 COMP. GEN. 251

LEAVES OF ABSENCE - EMPLOYEES OUTSIDE THE UNITED STATES THE LEAVE OF ABSENCE WITH PAY GRANTED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 617, TO EMPLOYEES OF NAVY YARDS, NAVAL STATIONS, GUN FACTORIES AND ARSENALS, MAY NOT BE REDUCED BY ADMINISTRATIVE REGULATION INSOFAR AS IT APPLIES TO EMPLOYEES OUTSIDE OF THE CONTINENTAL UNITED STATES. THE RIGHT TO ACCUMULATE ANNUAL LEAVE PURSUANT TO THE ACT OF AUGUST 29, 1916, 39 STAT. 557, IS, HOWEVER, DISCRETIONARY WITH THE SECRETARY OF THE NAVY AND MAY BE RESTRICTED TO EMPLOYEES MAINTAINING HOMES WITHIN THE UNITED STATES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, MARCH 30, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 5, 1934, AS FOLLOWS:

THE ANNUAL LEAVE OF CIVIL EMPLOYEES OF THE GOVERNMENT WAS PERMANENTLY REDUCED BY SECTION 215 OF THE ACT OF JUNE 30, 1932 (FIRST ECONOMY ACT), AS AMENDED BY SECTION 6 (A) OF THE ACT OF MARCH 3, 1933 (SECOND ECONOMY ACT), AND SECTION 4 (C), TITLE II, OF THE ACT OF MARCH 20, 1933 (THIRD ECONOMY ACT), TO FIFTEEN DAYS PER YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, WITH THE FOLLOWING EXCEPTION:

"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 STATION OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA.'

THE LEAVE OF CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT, WITHIN AND WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES, IS GOVERNED BY THE ACT OF AUGUST 29, 1916, (39 STAT. 617-8, TITLE 34, U.S. CODE, SECTION 511), WHICH READS 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.'

THE RIGHT TO ACCUMULATE LEAVE OF CIVIL EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES IS CONFERRED BY THE FOLLOWING PROVISION OF THE ACT OF AUGUST 29, 1916, (39 STAT. 557-8, TITLE 34, U.S. CODE, SECTION 513), VIZ---

"THAT HEREAFTER ANY CIVILIAN EMPLOYEE OF THE NAVY DEPARTMENT WHO IS A CITIZEN OF THE UNITED STATES AND EMPLOYED AT ANY STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AFTER AT LEAST TWO YEARS' CONTINUOUS, FAITHFUL, AND SATISFACTORY SERVICE ABROAD, AND SUBJECT TO THE INTERESTS OF THE PUBLIC SERVICE, BE GRANTED ACCRUED LEAVE OF ABSENCE, WITH PAY, FOR EACH YEAR OF SERVICE, AND IF AN EMPLOYEE SHOULD ELECT TO POSTPONE THE TAKING OF ANY OR ALL OF THE LEAVE TO WHICH HE MAY BE ENTITLED IN PURSUANCE HEREOF SUCH LEAVE MAY BE ALLOWED TO ACCUMULATE FOR A PERIOD OF NOT EXCEEDING FOUR YEARS, THE RATE OF PAY FOR ACCRUED LEAVE TO BE AT THE RATE OBTAINING AT THE TIME THE LEAVE IS GRANTED.'

THE EFFECT OF THE LEGISLATION REGARDING LEAVE CONTAINED IN SECTION 215 OF THE FIRST ECONOMY ACT, AS AMENDED, IF LITERALLY APPLIED, WOULD HAVE BEEN TO REDUCE THE ANNUAL LEAVE OF EMPLOYEES OF THE NAVY DEPARTMENT AT THE SEAT OF THE GOVERNMENT, NUMBERING 7,911, INCLUDING 1,972 IN THE EXECUTIVE DEPARTMENT OF THE NAVY, AND 35,959 ELSEWHERE IN THE UNITED STATES, FROM THIRTY DAYS TO FIFTEEN DAYS AND TO CONTINUE THE THIRTY DAYS ANNUAL LEAVE TO EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, NUMBERING 6,749 WITH THE RIGHT TO ACCUMULATE SUCH LEAVE. OF THIS NUMBER, APPROXIMATELY 1,600 ARE AMERICAN CITIZENS, INCLUDING APPROXIMATELY 1,300 IN THE TERRITORY OF HAWAII.

THE SECRETARY OF THE NAVY, IN THE EXERCISE OF THE DISCRETION GIVEN HIM BY THE ACT OF AUGUST 29, 1916, AND IN THE INTEREST OF EQUITABLE AND UNIFORM TREATMENT OF ALL ITS EMPLOYEES DIRECTED, UNDER DATE OF MAY 25, 1933, IN A DISPATCH TO ALL FIELD SERVICE ACTIVITIES AS FOLLOWS:

"0625. REFER ALNAVSTA 0012 1200 ALL CIVIL EMPLOYEES BEYOND CONTINENTAL LIMITS OF UNITED STATES SHALL BE GRANTED LEAVE WITH PAY AT THE RATE OF ONE AND ONE-QUARTER DAYS PER MONTH AS EARNED AFTER MARCH 31, 1933, EXCEPT EMPLOYEES SENT OUT FROM THE CONTINENTAL UNITED STATES UNDER CONTRACT WHO SHALL BE GRANTED LEAVE WITH PAY AT THE RATE OF TWO AND ONE-HALF DAYS PER MONTH PERIOD IN ACCORDANCE WITH DEPARTMENT'S CIRCULAR LETTER OF OCTOBER 23, 1929, AND SEPTEMBER 4, 1931, ONLY EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES AND WHOSE HOMES ARE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL BE ACCORDED THE PRIVILEGE OF ACCUMULATING LEAVE 1355.'

IT WAS PRESUMABLY THE INTENTION OF THE CONGRESS WHEN ENACTING THE ORIGINAL SECTION 215 OF THE FIRST ECONOMY ACT TO EXEMPT FROM THE REDUCTION IN THE ANNUAL LEAVE ALL CIVIL EMPLOYEES SENT OUT FROM THE UNITED STATES BY THE GOVERNMENT, IN ORDER THAT SUCH EMPLOYEES COULD ACCUMULATE LEAVE SUFFICIENT TO COME BACK TO THEIR HOMES IN CONTINENTAL UNITED STATES TO VISIT THEIR PEOPLE AND TO RECUPERATE FROM THE ENERVATING EFFECT OF SERVICE IN COUNTRIES IN WHICH THEY ARE NOT ACCLIMATED. THIS VIEW IS IN CONSONANCE WITH THE PROVISIONS IN THE ACT OF AUGUST 29, 1916, ABOVE QUOTED, GRANTING ACCUMULATED LEAVE TO CIVIL EMPLOYEES OF THE NAVY DEPARTMENT OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES, WHICH PRIVILEGE IS LIMITED TO "CITIZENS" OF THE UNITED STATES. APPROXIMATELY 600 EMPLOYEES WERE SENT TO STATIONS OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES UNDER CONTRACT, WHO ARE ENTITLED TO THIRTY DAYS ANNUAL LEAVE WITH PAY UNDER THE ABOVE QUOTED ORDER OF MAY 25, 1933.

TO EXTEND THE RIGHT OF FULL RESTORATION OF LEAVE PRIVILEGES TO THE NATIVE EMPLOYEES AND OTHERS WHOSE HOMES ARE IN FACT BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES WOULD HAVE THE EFFECT OF PLACING SUCH EMPLOYEES IN A MORE FAVORABLE STATUS THAN CITIZENS OF THE UNITED STATES LIVING IN THIS COUNTRY AND GRANTING THEM TWICE AS MUCH ANNUAL LEAVE AS IS GIVEN TO EMPLOYEES PERFORMING EXACTLY SIMILAR SERVICES IN THIS COUNTRY.

IN THE CASE OF THE CLASSIFICATION OF EMPLOYEES OF THE NAVAL ESTABLISHMENT UNDER SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930 (46 STAT. 1005) THE COMPTROLLER GENERAL IN DECISION OF JANUARY 23, 1931, SAID THAT WHILE THE LANGUAGE OF THE ACT "IS BROAD ENOUGH TO EMBRACE ALL EMPLOYEES CARRIED UNDER GROUP IV (B) * * * AND MAKES NO DISTINCTION BETWEEN DIFFERENT CLASSES OF EMPLOYEES WHO COME WITHIN GROUP IV (B), NEVERTHELESS I AM CONSTRAINED TO VIEW THE MATTER * * * THAT THE CONGRESS COULD NOT HAVE INTENDED TO INCLUDE EMPLOYEES BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES THERETOFORE PAID UNDER NATIVE AND ALIEN SCHEDULES WHICH ARE NOT AT ALL COMPARABLE WITH THE SCHEDULES ESTABLISHED BY THE CLASSIFICATION ACT *

IN VIEW OF YOUR DECISION OF JUNE 1, 1933, A-48684, TO THE GOVERNOR, BALBOA HEIGHTS, CANAL ZONE, IN WHICH IT IS HELD THAT "AS SECTION 6 (A) OF THE ACT OF MARCH 3, 1933, MAKES NO DISTINCTION BETWEEN EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES AND ALIEN EMPLOYEES, ALIEN EMPLOYEES ARE ENTITLED THEREUNDER TO THE SAME PRIVILEGES AS AMERICAN EMPLOYEES" AND PROTEST AGAINST THE DEPARTMENT'S ORDER, ABOVE QUOTED, YOUR DECISION IS REQUESTED AS TO WHETHER SUCH ORDER MAY BE CONTINUED IN FORCE.

AS SECTION 4 (C), TITLE II, OF THE ACT OF MARCH 20, 1933, EXEMPTS EMPLOYEES HOLDING STATION OUTSIDE OF THE CONTINENTAL UNITED STATES FROM THE REDUCTION IN ANNUAL LEAVE PRESCRIBED BY SECTION 215 OF THE ACT OF JUNE 30, 1932, IT FOLLOWS THAT NO CHANGE HAS BEEN MADE IN THE STATUTE GOVERNING THE LEAVE RIGHTS OF EMPLOYEES OF NAVAL STATIONS OUTSIDE OF THE UNITED STATES WHOSE LEAVE WAS PREVIOUSLY GOVERNED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 617. THE LEAVE PROVIDED BY SAID ACT IS AN ABSOLUTE GRANT TO THE EMPLOYEE TO THE EXTENT THAT IT IS MADE THE EXECUTIVE DUTY TO GRANT IT, THE ONLY DISCRETION BEING AS TO THE TIME WHEN IT CAN BEST BE GRANTED. COMP. DEC. 192. SUCH BEING THE CASE IT WOULD NOT APPEAR TO BE WITHIN THE AUTHORITY OF THE SECRETARY OF THE NAVY TO REDUCE THE ANNUAL LEAVE WITH PAY WHICH EMPLOYEES OUTSIDE OF THE CONTINENTAL UNITED STATES WOULD OTHERWISE BE ENTITLED TO UNDER THE ACT OF AUGUST 29, 1916, SUPRA. THE ACCUMULATION OF LEAVE PURSUANT TO THE ACT OF AUGUST 29, 1916, 39 STAT. 557, IS HOWEVER, DISCRETIONARY WITH THE SECRETARY OF THE NAVY, AND MAY BE RESTRICTED TO EMPLOYEES MAINTAINING HOMES WITHIN THE UNITED STATES.