A-57679, OCTOBER 26, 1934, 14 COMP. GEN. 336

A-57679: Oct 26, 1934

Additional Materials:

Contact:

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

 

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

UPON HIS STATUS AT THE TIME HE IS CALLED FOR MILITARY TRAINING. AS TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY. A SUBSEQUENT PERMANENT APPOINTMENT WITHOUT BREAK IN CONTINUITY OF SERVICE IS NO BASIS FOR PAYING THE EMPLOYEES FOR THE TIME ABSENT ON MILITARY LEAVE WITHOUT PAY WHILE SERVING UNDER THE TEMPORARY APPOINTMENT. HELD THAT A CIVIL EMPLOYEE SERVING UNDER A TEMPORARY APPOINTMENT WHO IS SUBSEQUENTLY PERMANENTLY APPOINTED WITHOUT A BREAK IN THE CONTINUITY OF HIS SERVICE IS ENTITLED TO ACCRUED LEAVE WITH PAY FROM THE DATE OF HIS TEMPORARY APPOINTMENT. THE COMPTROLLER GENERAL HAS REPEATEDLY HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY (MILITARY LEAVE) WHILE ON MILITARY DUTY WITH THE NATIONAL GUARD AND THE OFFICERS RESERVE CORPS.

A-57679, OCTOBER 26, 1934, 14 COMP. GEN. 336

LEAVE OF ABSENCE - MILITARY - TEMPORARY, FOLLOWED BY PERMANENT APPOINTMENT AS AN EMPLOYEE'S RIGHT TO THE COMPENSATION OF HIS CIVILIAN POSITION DURING ABSENCE ON MILITARY TRAINING DEPENDS NOT UPON LENGTH OF SERVICE, BUT UPON HIS STATUS AT THE TIME HE IS CALLED FOR MILITARY TRAINING, AND AS TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY, A SUBSEQUENT PERMANENT APPOINTMENT WITHOUT BREAK IN CONTINUITY OF SERVICE IS NO BASIS FOR PAYING THE EMPLOYEES FOR THE TIME ABSENT ON MILITARY LEAVE WITHOUT PAY WHILE SERVING UNDER THE TEMPORARY APPOINTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, OCTOBER 26, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 11, 1934, AS FOLLOWS:

THE COMPTROLLER GENERAL, UNDER DATE OF JULY 5, 1934 (1924) (A-2804), HELD THAT A CIVIL EMPLOYEE SERVING UNDER A TEMPORARY APPOINTMENT WHO IS SUBSEQUENTLY PERMANENTLY APPOINTED WITHOUT A BREAK IN THE CONTINUITY OF HIS SERVICE IS ENTITLED TO ACCRUED LEAVE WITH PAY FROM THE DATE OF HIS TEMPORARY APPOINTMENT, AFTER TWELVE CONSECUTIVE MONTHS OF SERVICE IN BOTH TEMPORARY AND PERMANENT STATUS. THE COMPTROLLER GENERAL HAS REPEATEDLY HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY (MILITARY LEAVE) WHILE ON MILITARY DUTY WITH THE NATIONAL GUARD AND THE OFFICERS RESERVE CORPS.

IN VIEW OF THE FOREGOING, YOU DECISION IS REQUESTED WHETHER A CIVIL EMPLOYEE IN THE FIELD SERVICE OF THE NAVY DEPARTMENT SERVING UNDER A TEMPORARY APPOINTMENT AND WHO IS ORDERED TO DUTY FOR TRAINING WITH THE OFFICERS RESERVE CORPS AND WHO IS CARRIED ON THE ROLLS IN A LEAVE WITHOUT- PAY STATUS WHILE ON SUCH DUTY, MAY BE REIMBURSED FOR SUCH LEAVE WITHOUT PAY, WITHOUT CHARGE TO THE ANNUAL LEAVE ACCRUED AND DUE HIM, IF HE IS SUBSEQUENTLY PERMANENTLY APPOINTED WITHOUT A BREAK IN THE CONTINUITY OF HIS SERVICE, AFTER TWELVE CONSECUTIVE MONTHS OF SERVICE IN BOTH TEMPORARY AND PERMANENT STATUS.

IN DECISION OF SEPTEMBER 20, 1933, 13 COMP. GEN. 84, 85, IT WAS STATED:

THE GENERAL RULE IS THAT LEAVE OF ABSENCE WITH PAY MAY NOT BE GRANTED TO EMPLOYEES SERVING UNDER TEMPORARY APPOINTMENTS, THAT IS, EMPLOYEES SERVING UNDER APPOINTMENTS OF A DEFINITE DURATION (3 COMP. GEN. 382; 4 ID. 650; 5 ID. 903; 6 ID. 178, 266, 275).

TWO OF THE CITED DECISIONS APPLY THE RULE SPECIFICALLY TO MILITARY LEAVE. SEE ALSO 3 COMP. GEN. 112 AND 9 ID. 119.

IN DECISION OF MARCH 8, 1934, 13 COMP. GEN. 237, 238, WHEREIN THE GENERAL RULE WAS APPLIED TO EMPLOYEES GIVEN TEMPORARY APPOINTMENTS INCIDENT TO REORGANIZATION, IT WAS STATED:

* * * AFTER THESE EMPLOYEES RECEIVED PERMANENT APPOINTMENTS IN THE DIVISION OF DISBURSEMENT THEIR SERVICES MAY BE REGARDED, FOR LEAVE PURPOSES, AS THOUGH THE SERVICE UNDER THE TEMPORARY APPOINTMENT AND THE PRECEDING REGULAR APPOINTMENT HAD BEEN UNDER THE PRESENT PERMANENT APPOINTMENT. SEE 8 COMP. GEN. 463, AND DECISIONS THEREIN CITED, AND 12 ID. 621.

ALSO, IN DECISION OF MAY 12, 1934, 13 COMP. GEN. 347, 349, IT WAS STATED:

IT WOULD APPEAR FROM YOUR SUBMISSION THAT MR. FALLON IS AT PRESENT HOLDING AN APPOINTMENT MADE UNDER RULE VIII OF THE CIVIL SERVICE RULES AND REGULATIONS, WHICH POSITION MUST ACCORDINGLY BE CONSIDERED AS TEMPORARY. DURING THE CONTINUANCE OF SUCH TEMPORARY APPOINTMENT HE IS NOT ENTITLED TO LEAVE OF ABSENCE, EITHER SICK OR ANNUAL. HOWEVER, SHOULD HE BE GIVEN A PERMANENT APPOINTMENT FOLLOWING IMMEDIATELY UPON THE TERMINATION OF HIS TEMPORARY APPOINTMENT, HIS SERVICES FOR LEAVE PURPOSES MAY THEN BE REGARDED AS THOUGH THE SERVICE UNDER THE TEMPORARY AND PERMANENT APPOINTMENTS HAD ALL BEEN UNDER A PERMANENT APPOINTMENT AND HE MAY BE PAID FOR THE TIME ABSENT WITHOUT PAY DUE TO SICKNESS TO THE EXTENT THAT THE ABSENCE COULD HAVE BEEN COVERED BY SICK LEAVE ACCRUING FOR THE CALENDAR YEAR ENDING DECEMBER 31, 1933, IN ACCORDANCE WITH EXECUTIVE ORDER NO. 6021, FEBRUARY 9, 1933; 13 COMP. GEN. 237; A 54436, APRIL 10, 1934.

THE RULE LAST STATED IS BASED ON THE FACT THAT UNDER THE PROVISIONS OF APPLICABLE LAW AND ADMINISTRATIVE REGULATIONS ANNUAL AND SICK LEAVE MAY ACCRUE FROM MONTH TO MONTH, AND UNDER CERTAIN CIRCUMSTANCES FROM YEAR TO YEAR, AND IN THE APPLICATION THEREOF A CONTINUOUS PERIOD OF EMPLOYMENT UNDER A TEMPORARY, FOLLOWED BY A PERMANENT, APPOINTMENT, HAS BEEN REGARDED AS THOUGH SERVED UNDER THE PERMANENT APPOINTMENT. SUCH IS NOT THE SITUATION AS TO MILITARY LEAVE WHICH DOES NOT ACCRUE, UNLESS IN FACT TAKEN AND CANNOT BE DEFERRED TO SOMETIME OF THE EMPLOYEE'S SELECTION. FURTHERMORE, WHEN AN EMPLOYEE TAKES MILITARY LEAVE WHILE IN A TEMPORARY STATUS THERE CAN BE NO MILITARY LEAVE WHICH HE MAY FOREGO AFTER BECOMING PERMANENT SO AS TO AUTHORIZE PAYMENT FOR THE MILITARY LEAVE WHICH HE TAKES WHEN NOT ENTITLED TO COMPENSATION THEREFOR.

AN EMPLOYEE'S RIGHT TO THE COMPENSATION OF HIS CIVILIAN POSITION DURING ABSENCE ON MILITARY TRAINING DEPENDS NOT UPON LENGTH OF SERVICE BUT UPON HIS STATUS AT THE TIME HE IS CALLED FOR MILITARY TRAINING AND IS NOT AFFECTED BY ANY SUBSEQUENT CHANGE IN STATUS. AS IT HAS BEEN HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO MILITARY LEAVE OF ABSENCE WITH PAY, A SUBSEQUENT PERMANENT EMPLOYMENT IS NO BASIS FOR PAYING THE EMPLOYEES FOR THE TIME ABSENT WITHOUT PAY WHEN SERVING UNDER THE TEMPORARY APPOINTMENT.