A-54786, MAY 28, 1934, 13 COMP. GEN. 394

A-54786: May 28, 1934

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THE SYLLABUS OF WHICH READS: EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES WHO WERE IN THEIR SECOND SERVICE YEAR APRIL 1. THAT IS. ARE ENTITLED TO LEAVE WHICH ACCRUED AND WAS UNUSED PRIOR TO JUNE 30. THAT IS. WHEREBY LEAVE WITH PAY WAS AUTHORIZED TO BE SURRENDERED BY EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS AND SUBSTITUTED FOR LEAVE PREVIOUSLY TAKEN WITHOUT PAY. INCLUDED THEREIN FOR PAY CERTAIN SATURDAYS WHEN THE ARSENAL WAS CLOSED APPARENTLY FOR LACK OF FUNDS. THE FIGURES IN THE PARENTHESES ARE THOSE APPLICABLE IN THE CASES HERE UNDER REVIEW AS A RESULT OF SECTION 215 OF THE ECONOMY ACT. THE DISALLOWED ITEMS ARE ON VOUCHERS 200 AND 1564 OF THE JUNE 1933 ACCOUNTS.

A-54786, MAY 28, 1934, 13 COMP. GEN. 394

LEAVE OF ABSENCE - ARSENAL EMPLOYEES - RETROACTIVE SUBSTITUTION THE RULE UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617, APPLICABLE T0 EMPLOYEES OF ARSENALS, PERMITTING THE SUBSTITUTION OF LEAVE WITH PAY ACCRUED DURING THE SECOND SERVICE YEAR, RETROACTIVELY FOR AUTHORIZED LEAVE WITHOUT PAY TAKEN DURING THE FIRST SERVICE YEAR, DOES NOT PERMIT SUBSTITUTION OF LEAVE FOR NONWORK DAYS CAUSED BY THE CLOSING OF AN OFFICE OR PLANT. FOR EACH 30 DAYS IN A NONPAY STATUS DURING THE FIRST SERVICE YEAR OF EMPLOYEES OF ARSENALS IN EXCESS OF THE 15 DAYS FOR WHICH LEAVE WITH PAY ACCRUED DURING THE SECOND SERVICE YEAR MIGHT BE SUBSTITUTED, THE 15 DAYS' LEAVE ALLOWANCE MUST BE REDUCED BY 1 1/4 DAYS, OR AT THE RATE OF 20 MINUTES FOR EACH DAY OF EXCESS LEAVE.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 28, 1934:

REVIEW HAS BEEN REQUESTED OF THE ACTION OF THIS OFFICE WITH RESPECT TO CERTAIN PAY-ROLL ITEMS IN THE ACCOUNTS OF FIRST LT. W. J. D ESPINOSA AS FINANCE OFFICER, ORDNANCE DEPARTMENT, FRANKFORD ARSENAL. THE QUESTIONED ITEMS INVOLVE PAYMENTS TO ARSENAL EMPLOYEES FOR LEAVE TAKEN WITHOUT PAY IN THEIR FIRST SERVICE YEAR UNDER THE ACT OF AUGUST 29, 1916, 39 STAT. 617, AS AMENDED BY SECTION 215 OF THE ECONOMY ACT AND CONSTRUED BY DECISION OF THIS OFFICE OF MAY 9, 1933, 12 COMP. GEN. 621, THE SYLLABUS OF WHICH READS:

EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES WHO WERE IN THEIR SECOND SERVICE YEAR APRIL 1, 1933, THAT IS, HAD NOT PREVIOUSLY LOST THE RIGHT TO ACCRUE LEAVE FROM THEIR FIRST SERVICE YEAR, ARE ENTITLED TO LEAVE WHICH ACCRUED AND WAS UNUSED PRIOR TO JUNE 30, 1932, AT THE RATE OF 30 LEAVE-PAY DAYS FOR THEIR FIRST SERVICE YEAR WHICH TERMINATED PRIOR TO JUNE 30, 1932, AND AT THE RATE OF 15 WORKING DAYS FOR THE SECOND SERVICE YEAR RUNNING ON JUNE 30, 1932, THAT IS, 1 1/4 WORKING DAYS FOR EACH SERVICE MONTH PRIOR TO JUNE 30, 1932.

THE SAME PRACTICE IN FORCE PRIOR TO JULY 1, 1932, WHEREBY LEAVE WITH PAY WAS AUTHORIZED TO BE SURRENDERED BY EMPLOYEES OF NAVY YARDS AND NAVAL STATIONS AND SUBSTITUTED FOR LEAVE PREVIOUSLY TAKEN WITHOUT PAY, MAY CONTINUE ON AND AFTER APRIL 1, 1933, SUBJECT TO THE REDUCTION IN THE AMOUNT OF LEAVE AUTHORIZED BY SECTION 215 OF THE ECONOMY ACT. LEAVE EARNED AFTER MARCH 31, 1932, IN ACCORDANCE WITH THE PRACTICE THERETOFORE EXISTING, BUT LEAVE EARNED AFTER MARCH 31, 1933, MAY NOT BE SURRENDERED FOR LEAVE WITHOUT PAY TAKEN DURING THE PERIOD JULY 1, 1932, TO MARCH 31,1933, INCLUSIVE.

THE DISBURSING OFFICER, WHEN ADDING THE LEAVE CREDITS, INCLUDED THEREIN FOR PAY CERTAIN SATURDAYS WHEN THE ARSENAL WAS CLOSED APPARENTLY FOR LACK OF FUNDS, WHICH COMPELLED A STATUS OF ABSENCE WITHOUT PAY INSTEAD OF PERMITTING A LEAVE OF ABSENCE WITHOUT PAY, IN THE FIRST SERVICE YEAR. ALSO, HE FAILED TO TAKE INTO CONSIDERATION IN THE CALCULATION THE RULE STATED IN THE DECISION OF MARCH 31, 1932, A 41435, THAT FOR EACH 30 DAYS' ABSENCE FROM THE FIRST SERVICE YEAR IN EXCESS OF THE 30 (15) DAYS FOR WHICH LEAVE WITH PAY MIGHT BE SUBSTITUTED, THE 30 (15) DAYS' LEAVE ALLOWANCE MUST BE REDUCED AT THE RATE OF 40 (20) MINUTES FOR EACH DAY OF EXCESS LEAVE. THE FIGURES IN THE PARENTHESES ARE THOSE APPLICABLE IN THE CASES HERE UNDER REVIEW AS A RESULT OF SECTION 215 OF THE ECONOMY ACT.

THE DISALLOWED ITEMS ARE ON VOUCHERS 200 AND 1564 OF THE JUNE 1933 ACCOUNTS, COVERING, RESPECTIVELY, THE MONTHS OF MAY AND JUNE 1933. INASMUCH AS THE ITEMS ARE NUMEROUS, TWO WILL BE SELECTED AS ILLUSTRATIVE IN A GENERAL WAY OF THE OTHERS.

FIRST. VOUCHER 200, PAGE 3, NO. AP-15, ADELAIDE PARK, CLERK. THE SUSPENSION AS TO THIS ITEM WAS AS FOLLOWS:

TABLE.

PAID $1,200 PER ANNUM FOR 21 1/2 DAYS LESS 3 1/2 PERCENT ($2.51)

15 PERCENT ($10.75) ------------------------------------------- $58.41

PAY $1,200 PER ANNUM FOR 12 19/24 DAYS LESS 3 1/2 PERCENT

($1.50) 15 PERCENT ($6.38) ------------------------------------ 34.73

23.68

NOTATION IN PART: "FIRST YEAR ENDS AUG. 11, 1932.' PAY ROLLS FOR THE PERIOD 8/12/31 TO 6/30/32 SHOW A TOTAL ABSENCE WITHOUT PAY OF 25 5/16 DAYS OR 12 1/48 DAYS IN EXCESS OF THE 13 1/24 DAYS LEAVE AUTHORIZED FOR THIS PERIOD. THIS EMPLOYEE'S RIGHT TO LEAVE WITH PAY IS DIMINISHED BY 20 MIN. FOR EACH DAY OF ABSENCE WITHOUT PAY IN EXCESS OF 13/7/24 DAYS.

THE FINANCE OFFICER REPLIED THERETO, UNDER DATE OF FEBRUARY 16, 1934, AS FOLLOWS:

PAGE 3, AP-15, ADELAIDE PARK, CLERK. THE NOTATION ON THE PAY ROLL SHOULD BE AMPLIFIED TO INDICATE THAT THE DAYS FOR WHICH REIMBURSEMENT IS INDICATED REPRESENT ABSENCE OF 1/2 DAY ON SATURDAY MORNINGS WHEN THE ARSENAL WAS CLOSED AND DURING THIS PERIOD THE EMPLOYEE WAS NOT ON A LEAVE STATUS. HAVING SUBSEQUENTLY ATTAINED A LEAVE STATUS THE EMPLOYEE IS ENTITLED TO RECEIVE NOT ONLY PAY FOR THE SATURDAY MORNING (AS LEAVE) BUT ALSO FOR THE SATURDAY AFTERNOON (HALF HOLIDAY). REIMBURSEMENT FOR 21 1/2 DAYS REPRESENTS 13 DAYS ANNUAL LEAVE AND 8 1/2 DAYS SATURDAY HALF HOLIDAYS.

SECOND. VOUCHER 1564, WITHHOLDING CREDIT ON AN ITEM AS FOLLOWS:

TABLE.

PAGE 5, NO. D.O. 10, JAMES D. GRAUER, CHECKER, PAID $4 PER DAY FOR

21 DAYS LESS 3 1/2 PERCENT ($2.94) 15 PERCENT ($12.60) ----- $68.46

PAY $4 PER DAY 10.932 DAYS LESS 3 1/2 PERCENT ($1.54) 15 PERCENT

($6.56) ---------------------------------------------------- 35.62

32.84

NOTATION: "FIRST YEAR ENDS 9/27/32. REIMBURSEMENT FOR TIME TAKEN WITHOUT PAY DURING FIRST YEAR OF SERVICE.' PAY ROLLS FOR THE PERIOD 9/28/31 TO 6/30/32 SHOW A TOTAL ABSENCE WITHOUT PAY OF 22 DAYS OR 10 5/8 DAYS IN EXCESS OF THE 11 3/8 DAYS LEAVE AUTHORIZED FOR THIS PERIOD. THIS EMPLOYEE'S RIGHT TO LEAVE WITH PAY IS DIMINISHED BY 20 MINUTES FOR EACH DAY OF ABSENCE WITHOUT PAY IN EXCESS OF 11 3/8 DAYS. A-41435, MARCH 31, 1932.

TO THE FOREGOING ITEM, THE FINANCE OFFICER REPLIED, UNDER DATE OF FEBRUARY 16, 1934, AS OLLOWS:

PAGE 5, NO. D.O. 10, JAMES D. GRAUER, CHECKER. THE NOTATION ON THE PAY ROLL SHOULD BE AMPLIFIED TO INDICATE THAT THE DAYS FOR WHICH REIMBURSEMENT IS INDICATED REPRESENT ABSENCE OF 1/2 DAY ON SATURDAY MORNINGS WHEN THE ARSENAL WAS CLOSED AND DURING THIS PERIOD THE EMPLOYEE WAS NOT ON A LEAVE STATUS. HAVING SUBSEQUENTLY ATTAINED A LEAVE STATUS THE EMPLOYEE IS ENTITLED TO RECEIVE NOT ONLY PAY FOR THE SATURDAY MORNING (AS LEAVE) BUT ALSO FOR THE SATURDAY AFTERNOON (HALF HOLIDAY). REIMBURSEMENT FOR 21 DAYS REPRESENTS 11 DAYS ANNUAL LEAVE AND 10 DAYS SATURDAY HALF HOLIDAY.

UNDER DATE OF FEBRUARY 28, 1934, THE FINANCE OFFICER WAS ADVISED THAT THE ITEMS WERE DISALLOWED.

IN HIS LETTER OF MARCH 17, 1934, AFTER QUOTING FROM THE ACT OF AUGUST 29, 1916, AND DECISIONS OF MAY 9, 1933, SUPRA, AND SEPTEMBER 29, 1931, 11 COMP. GEN. 119, AND CITING SECTIONS 103 AND 215 OF THE ECONOMY ACT, IT WAS STATED:

IN THE PREPARATION OF THE PAY ROLLS INVOLVED IN VOUCHERS NO. 200 AND NO. 1564 OF JUNE, 1933, THE REIMBURSEMENTS WERE MADE IN ACCORDANCE WITH EXISTING REGULATIONS AND DECISIONS AS QUOTED ABOVE. THE LEAVE ACT OF AUGUST 29, 1916, SPECIFICALLY PROVIDES FOR AN ACCUMULATION OF LEAVE DURING THE SECOND SERVICE YEAR OF THE EMPLOYEE AND IT WOULD BE MANIFESTLY UNJUST TO PENALIZE AN EMPLOYEE TO DEPRIVE THEM FOR LEAVE OR REIMBURSEMENT THEREOF BY CONSIDERING THAT NO LEAVE HAD BEEN EARNED WHILE THE EMPLOYEE WAS ON A NO-LEAVE STATUS WHEN ENFORCED ABSENCE OCCURRED. UNDER THESE CONDITIONS AN EMPLOYEE COULD UNDER NO CIRCUMSTANCES ACCRUE LEAVE DURING THEIR FIRST SERVICE YEAR WHICH IS CLEARLY CONTRARY TO THE SPIRIT AND INTENT OF THE LEAVE ACT.

IT IS REQUESTED THAT THE SUSPENSIONS BE REVIEWED, HAVING IN MIND THE FACT THAT ALL OF THE EMPLOYEES INVOLVED WERE SERVING IN THEIR FIRST SERVICE YEAR.

IT IS UNDERSTOOD THAT THE ARSENAL WAS CLOSED ON THE SATURDAYS IN QUESTION IN THE FIRST SERVICE YEAR DUE TO LACK OF FUNDS AND THAT THERE WAS DEDUCTED FROM THE COMPENSATION OF ALL THE EMPLOYEES FOR EACH SATURDAY THE ARSENAL WAS CLOSED 1 DAY'S COMPENSATION, NOT 4 HOURS' COMPENSATION, WHICH WAS CORRECT UNDER THE SETTLED RULE THAT FOR ABSENCE FROM DUTY IN A NONPAY STATUS FOR ALL OF SATURDAY, 1 DAY'S PAY MUST BE DEDUCTED. IT IS FURTHER UNDERSTOOD THAT EMPLOYEES, WHO WERE THEN IN THEIR SECOND AND SUBSEQUENT LEAVE YEARS AND WERE ENTITLED TO ANNUAL LEAVE WITH PAY, WERE NOT AUTHORIZED OR PERMITTED TO USE SUCH LEAVE ON SATURDAY IN LIEU OF HAVING ONE DAY'S PAY DEDUCTED. HENCE, THERE APPEARS NO BASIS FOR THE ACTION IN THE INSTANT MATTER OF PERMITTING THESE EMPLOYEES TO SUBSTITUTE LEAVE DUE IN THE SECOND LEAVE YEAR FOR ANY PART OF THE NONWORK DAYS, EITHER 4 HOURS OR ALL DAY ON SATURDAY, AS DISTINGUISHED FROM AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY, IN THE FIRST-SERVICE YEAR. IN OTHER WORDS, THE RULE PERMITTING THE SUBSTITUTION OF LEAVE WITH PAY RETROACTIVELY FOR AUTHORIZED LEAVE WITHOUT PAY DOES NOT PERMIT SUBSTITUTION OF LEAVE FOR NONWORK DAYS CAUSED BY THE CLOSING OF AN OFFICE OR PLANT.

IN DECISION OF MARCH 31, 1932, A-41435, SUPRA, IT WAS HELD:

* * * NO DEDUCTION IN THE AMOUNT OF LEAVE TO WHICH AN EMPLOYEE IS ENTITLED BY REASON OF 12 MONTHS' SERVICE IS MADE WHERE ABSENT IN A NONPAY STATUS WITH PERMISSION IN THE FIRST-SERVICE YEAR FOR NOT EXCEEDING 30 DAYS. HOWEVER, NO LEAVE ACCRUES FOR TIME ABSENT FROM DUTY DURING THE FIRST-SERVICE YEAR IN EXCESS OF 30 DAYS. 23 COMP. DEC. 277; 6 COMP. GEN. 581; 7 ID. 732; A-35492, APRIL 29, 1931. FOR EACH 30 DAYS' ABSENCE FROM THE FIRST-SERVICE YEAR IN EXCESS OF THE 30 DAYS FOR WHICH LEAVE WITH PAY MIGHT BE SUBSTITUTED, THE 30-DAY LEAVE ALLOWANCE MUST BE REDUCED BY 2 1/2 DAYS, OR AT THE RATE OF 40 MINUTES FOR EACH DAY OF EXCESS LEAVE.

APPLYING THIS PRINCIPLE TO THE REDUCED ANNUAL LEAVE OF 15 DAYS AUTHORIZED BY SECTION 215 OF THE ECONOMY ACT, FOR EACH 30 DAYS IN A NONPAY STATUS DURING THE FIRST-SERVICE YEAR IN EXCESS OF THE 15 DAYS FOR WHICH LEAVE WITH PAY MIGHT BE SUBSTITUTED, THE 15 DAYS' LEAVE ALLOWANCE MUST BE REDUCED BY 1 1/4 DAYS, OR AT THE RATE OF 20 MINUTES FOR EACH DAY OF EXCESS LEAVE. THIS PRINCIPLE IS APPLICABLE IRRESPECTIVE OF THE CAUSE FOR THE NONPAY STATUS DURING THE FIRST-SERVICE YEAR, WHETHER AUTHORIZED LEAVE OF ABSENCE WITHOUT PAY, OR THE CLOSING OF THE OFFICE OR PLANT FOR ADMINISTRATIVE REASONS.

THE ACCOUNTS IN QUESTION MUST BE AUDITED AND SETTLED ON THE BASIS OF THE RULES HEREIN STATED.