A-80826, OCTOBER 21, 1936, 16 COMP. GEN. 400

A-80826: Oct 21, 1936

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AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF JUNE 4. AMONG THE QUESTIONS PRESENTED FOR YOUR CONSIDERATION WAS THE FOLLOWING: "QUESTION 7. "THERE IS GREAT VARIATION IN THE GRANTS OF ANNUAL LEAVE AND SICK LEAVE TO FEDERAL EMPLOYEES STATIONED IN ALASKA. SOME HAVE BEEN CONSTRUED AS NOT PERMITTING SICK LEAVE. "DECISION IS DESIRED WHETHER THE LANGUAGE OF SECTION 5 OF THE TWO ACTS IS SUCH AS TO PERMIT A CHOICE BETWEEN THE LEAVE GRANTED BY PUBLIC. OR WHETHER IT IS PERMISSIBLE TO SELECT THE MOST DESIRABLE FEATURES OF THE LAWS AND MERGE THEM INTO REGULATIONS FOR EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. BE PERMITTED TO HAVE THE THIRTY DAYS' LEAVE PLUS THE ACCUMULATION PERMITTED BY PUBLIC.

A-80826, OCTOBER 21, 1936, 16 COMP. GEN. 400

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - DIFFERENTIALS THE ANNUAL LEAVE DIFFERENTIAL OBTAINING IN THE CASE OF CIVILIAN EMPLOYEES UNDER THE NAVY DEPARTMENT, STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, BY REASON OF THE ACT OF AUGUST 29, 1916, 39 STAT. 617, AND ADMINISTRATIVE REGULATIONS ISSUED THEREUNDER PRIOR TO THE PASSAGE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, NEED NOT BE MODIFIED BY REASON OF THE PASSAGE OF THE LATTER ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, OCTOBER 21, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 28, 1936, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JUNE 4, 1936, TO THE U.S. CIVIL SERVICE COMMISSION (15 C.G. 1058), COVERING CERTAIN QUESTIONS RELATING TO THE ANNUAL LEAVE AND THE SICK LEAVE ACTS APPROVED MARCH 14, 1936 (PUBLIC, NOS. 471 AND 472, 74TH CONGRESS).

AMONG THE QUESTIONS PRESENTED FOR YOUR CONSIDERATION WAS THE FOLLOWING:

"QUESTION 7.--- SECTION 5 OF PUBLIC, NO. 471, AND SECTION 5 OF PUBLIC, NO. 472, READ:

" "NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.'

"THERE IS GREAT VARIATION IN THE GRANTS OF ANNUAL LEAVE AND SICK LEAVE TO FEDERAL EMPLOYEES STATIONED IN ALASKA, HAWAII, PUERTO RICO, CANAL ZONE, ETC., AND IN FOREIGN COUNTRIES. SOME STATUTES PERMIT THIRTY DAYS' ANNUAL LEAVE WITHOUT ACCUMULATION, AND SOME HAVE BEEN CONSTRUED AS NOT PERMITTING SICK LEAVE.

"DECISION IS DESIRED WHETHER THE LANGUAGE OF SECTION 5 OF THE TWO ACTS IS SUCH AS TO PERMIT A CHOICE BETWEEN THE LEAVE GRANTED BY PUBLIC, NO. 471, AND PUBLIC, NO. 472, RESPECTIVELY, AS A WHOLE, AND THE LEAVE GRANTED BY OTHER EXISTING AND APPLICABLE LAWS AS A WHOLE; OR WHETHER IT IS PERMISSIBLE TO SELECT THE MOST DESIRABLE FEATURES OF THE LAWS AND MERGE THEM INTO REGULATIONS FOR EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. AS A SPECIFIC ILLUSTRATION, MAY AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE STATIONED IN ALASKA FOR WHOM EXISTING LAW (SEC. 583, TITLE 5, U.S. CODE) GRANTS THIRTY DAYS' ANNUAL LEAVE WITHOUT ACCUMULATION, BE PERMITTED TO HAVE THE THIRTY DAYS' LEAVE PLUS THE ACCUMULATION PERMITTED BY PUBLIC, NO. 471? OR MAY HE BE PERMITTED TO COME WITHIN THE TERMS OF PUBLIC, NO. 471, AS A WHOLE?

IN ANSWERING SAID QUESTION YOU SAID THAT---

"REFERRING TO QUESTION 7, IT MAY BE STATED THAT THE LEGISLATIVE INTENT OF SECTION 5 OF THE LEAVE ACTS OF MARCH 14, 1936, IS NOT ENTIRELY CLEAR. WOULD SEEM, HOWEVER, THAT AS THERE COULD BE NO "CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL" WITHOUT CONTINUING ALSO THE TERMS AND CONDITIONS ON WHICH SUCH DIFFERENTIAL NOW OBTAINS, IT IS CONCLUDED THAT ALL EXISTING LEAVE LAWS APPLICABLE TO "EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES," WHICH ALLOW AN AMOUNT OF ANNUAL OR SICK LEAVE IN EXCESS OF THAT GRANTED BY THE LEAVE ACTS OF MARCH 14, 1936, REMAIN IN FULL FORCE AND EFFECT AND THAT NO PORTION OF THE RESPECTIVE ANNUAL OR SICK-LEAVE ACTS OF MARCH 14, 1936, SO EXCEEDED, WILL BE APPLICABLE TO SUCH EMPLOYEES.'

THE LEAVE LAW APPLICABLE TO CIVILIAN EMPLOYEES UNDER THE NAVY DEPARTMENT STATIONED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES IS THE ACT OF AUGUST 29, 1916 (39 STAT. 557-8; 34 U.S.C. SEC. 513), WHICH READS:

"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.'

PURSUANT TO SECTION 5 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, THE NAVY DEPARTMENT, UNDER DATE OF AUGUST 29, 1936, ISSUED THE FOLLOWING ADMINISTRATIVE REGULATIONS GOVERNING THE GRANTING OF LEAVE TO CIVILIAN EMPLOYEES STATIONED OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES:

"0629 IN ACCORDANCE WITH SECTION FIVE ANNUAL LEAVE ACT MARCH 14, CIVIL EMPLOYEES OF THE NAVAL ESTABLISHMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ARE ENTITLED TO THIRTY DAYS' ANNUAL LEAVE FROM JANUARY 1, 1936 PERIOD NONWORK DAYS OCCURRING WITHIN PERIOD OF ANNUAL LEAVE GRANTED TEMPORARY EMPLOYEES SUBSEQUENT JUNE 30 SHALL NOT BE CHARGED PERIOD NONWORK DAYS OCCURRING WITHIN A PERIOD OF SICK LEAVE GRANTED PER DIEM EMPLOYEES SUBSEQUENT JUNE 30 SHALL NOT BE CHARGED PERIOD 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 NOT TO EXCEED ONE HUNDRED TWENTY DAYS PERIOD QUESTION AS TO STATUS OF ALL OTHER EMPLOYEES REGARDING ACCUMULATION OF LEAVE SUBMITTED TO COMPTROLLER GENERAL. 1205.'

PRIOR TO THE PASSAGE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, THE FOLLOWING ADMINISTRATIVE REGULATIONS GOVERNING THE PRIVILEGE OF ACCUMULATING LEAVE UNDER THE ACT OF AUGUST 29, 1916, HAD BEEN ISSUED BY THE NAVY DEPARTMENT:

"IT HAS COME TO THE ATTENTION OF THE DEPARTMENT THAT THE PRIVILEGE OF ACCUMULATING THE THIRTY DAYS ANNUAL LEAVE OF ABSENCE WITH PAY FOR A PERIOD OF NOT EXCEEDING FOUR YEARS, PROVIDED IN THE ACT OF AUGUST 29, 1916 (39 STAT. 557), HAS BEEN ACCORDED ALL CIVILIAN EMPLOYEES AT CERTAIN NAVAL STATIONS OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES, REGARDLESS OF WHERE THEIR HOMES MAY BE OR WHETHER OR NOT THEY ARE NATIVES OF THE COUNTRY IN WHICH THEY ARE EMPLOYED, IF THEY WERE CITIZENS OF THE UNITED STATES.

"THE ABOVE MENTIONED PROVISION OF LAW WAS ENACTED IN ORDER THAT CIVILIAN EMPLOYEES AT NAVAL STATIONS OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES, WHOSE HOMES ARE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, COULD ACCUMULATE LEAVE SUFFICIENT TO COME BACK TO THEIR HOME TO VISIT THEIR PEOPLE AND TO RECUPERATE FROM THE ENERVATING EFFECT OF SERVICE IN COUNTRIES IN WHICH THEY ARE NOT ACCLIMATED.

"UNDER THE AUTHORITY GRANTED BY THE ACT OF AUGUST 29, 1916, THAT THE LEAVE PROVIDED THEREIN MAY BE GRANTED "IN THE DISCRETION OF THE SECRETARY OF THE NAVY," IT IS DIRECTED THAT FROM AND INCLUDING THE DATE OF RECEIPT OF THIS LETTER THE PRIVILEGE OF ACCUMULATING LEAVE BE ACCORDED ONLY TO CIVILIAN EMPLOYEES WHOSE HOMES ARE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES AND WHO ARE CITIZENS THEREOF, AFTER AT LEAST TWO YEARS CONTINUOUS, FAITHFUL, AND SATISFACTORY SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. ACCUMULATED LEAVE SHALL NOT BE GRANTED CIVILIAN EMPLOYEES WHOSE HOMES ARE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ON AND AFTER THE DATE OF RECEIPT OF THIS LETTER, EXCEPT AS PROVIDED IN PARAGRAPH 4. LEAVE ACCRUED WITH PAY BY SUCH EMPLOYEES AFTER THAT DATE MUST BE TAKEN DURING THE SERVICE YEAR IN WHICH ACCRUED, EXCEPT LEAVE ACCRUED DURING THE FIRST SERVICE YEAR, WHICH MAY BE TAKEN AT ANY TIME DURING THE SECOND SERVICE YEAR, IN ACCORDANCE WITH EXISTING REGULATION.

"IN ORDER THAT EMPLOYEES NOT ENTITLED TO ACCUMULATED LEAVE MAY NOT LOSE ANY LEAVE ACCUMULATED UP TO THE DATE OF RECEIPT OF THIS LETTER THEY MAY BE ALLOWED SUCH LEAVE DURING THEIR CURRENT SERVICE YEAR. IN CASES WHERE THE INTERESTS OF THE PUBLIC SERVICE OR THE DATE OF EXPIRATION OF THE SERVICE YEAR OF THE EMPLOYEE WILL NOT PERMIT OF THE GRANTING OF THE ACCUMULATED LEAVE DURING HIS CURRENT SERVICE YEAR, IT MAY BE GRANTED DURING HIS NEXT SUCCEEDING SERVICE YEAR. IN THESE CASES ACCUMULATED LEAVE SHALL NOT BE GRANTED AFTER THE SECOND SERVICE YEAR AND ANY ACCRUED LEAVE THAT HAS NOT BEEN TAKEN BY THE EMPLOYEE LAPSES WITH THE EXPIRATION OF THE SECOND SERVICE YEAR. (DEPARTMENT'S CIRCULAR LETTER OF OCTOBER 23, 1929, SONYD-7- MD, TO ALL NAVAL AND MARINE CORPS ACTIVITIES CONCERNED.)

"THE WORD "HOME" AS USED IN REFERENCE (DEPARTMENT'S CIRCULAR LETTER OF OCTOBER 23, 1929), RESTRICTING THE PRIVILEGE OF ACCUMULATING LEAVE TO "CIVIL EMPLOYEES WHOSE HOMES ARE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES AND WHO ARE CITIZENS THEREOF, AFTER AT LEAST TWO YEARS' CONTINUOUS, FAITHFUL, AND SATISFACTORY SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED TES," MEANS ACTUAL RESIDENCE IN CONTINENTAL UNITED STATES SOMETIME PRIOR TO APPOINTMENT AT A NAVAL STATION OUTSIDE CONTINENTAL UNITED STATES. EMPLOYEES WHO HAVE NOT RESIDED IN CONTINENTAL UNITED STATES SHALL NOT BE ACCORDED THE PRIVILEGE OF ACCUMULATING LEAVE.' (DEPARTMENT'S CIRCULAR LETTER OF SEPTEMBER 4, 1931, SONYD-4-GR. TO NAVAL AND MARINE CORPS ACTIVITIES CONCERNED.)

THE ABOVE QUOTED REGULATIONS ISSUED BY THE NAVY DEPARTMENT ARE IN CONSONANCE WITH YOUR DECISION OF MARCH 30, 1934 (13 C.G. 251) IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS) THAT:

"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.'

IN VIEW OF THE LANGUAGE OF SECTION 5 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AND YOUR DECISION THEREON OF JUNE 4, 1936, SUPRA, THE QUESTION HAS ARISEN AS TO WHETHER THE REGULATIONS OF THE NAVY DEPARTMENT ACCORDING THE PRIVILEGE OF ACCUMULATING LEAVE UNDER THE ACT OF AUGUST 29, 1916, ONLY TO CIVILIAN EMPLOYEES WHOSE HOMES ARE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES AND WHO ARE CITIZENS THEREOF MAY BE CONTINUED IN FULL FORCE AND EFFECT.

YOUR DECISION ON SAID QUESTION IS ACCORDINGLY REQUESTED.

SECTION 4 (C), TITLE II, OF THE ACT OF MARCH 20, 1933, 48 STAT. 14, AMENDED SECTION 215 OF THE ORIGINAL ECONOMY ACT OF JUNE 30, 1932, REDUCING ANNUAL LEAVE CREDIT FROM 30 TO 15 DAYS, TO READ, IN PART, AS FOLLOWS:

* * * THAT NOTHING HEREIN SHALL APPLY * * * TO OFFICERS AND EMPLOYEES OF THE UNITED STATES (INCLUDING ENLISTED PERSONNEL) HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA.

THE DECISION OF MARCH 30, 1934, 13 COMP. GEN. 251, CITED BY YOU, APPLIED THE QUOTED STATUTE TO PRECLUDE THE REDUCTION IN THE ANNUAL LEAVE CREDIT OF 30 DAYS GRANTED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 617, TO EMPLOYEES OF THE NAVY DEPARTMENT "EMPLOYED AT ANY STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES," INCLUDING NOT ONLY THOSE WHOSE HOMES WERE IN THE CONTINENTAL UNITED STATES, BUT, ALSO, THOSE NATIVE TO LOCALITIES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. HENCE, THE "EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED TES," SAVED BY SECTION 5 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, INCLUDES THE THIRTY DAYS' ANNUAL LEAVE CREDIT GRANTED TO FEDERAL EMPLOYEES UNDER THE ACT OF AUGUST 29, 1916, WHO ARE NATIVE TO LOCALITIES OUTSIDE THE CONTINENTAL UNITED STATES AS WELL AS THOSE NATIVE TO THE CONTINENTAL UNITED STATES.

ACCORDINGLY, THERE IS NO AUTHORITY TO REDUCE THE ANNUAL LEAVE CREDIT OF EITHER CLASS TO 26 DAYS, AND AS 30 DAYS IS IN EXCESS OF 26 DAYS--- A 4-DAY DIFFERENTIAL--- UNDER THE RULES STATED IN THE DECISION OF JUNE 4, 1936, 15 COMP. GEN. 1059, ALSO CITED BY YOU, THERE IS NO REQUIREMENT ON THE PART OF THE SECRETARY OF THE NAVY TO MODIFY THE CONDITIONS EXISTING PRIOR TO JANUARY 1, 1936, UNDER WHICH THE THIRTY DAYS' ANNUAL LEAVE CREDIT IS GRANTED EITHER TO EMPLOYEES NATIVE TO LOCALITIES OUTSIDE THE CONTINENTAL UNITED STATES OR TO THOSE NATIVE TO THE CONTINENTAL UNITED STATES.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THEREFORE, THAT THE ADMINISTRATIVE REGULATION ISSUED PRIOR TO THE PASSAGE OF THE LEAVE ACTS OF MARCH 14, 1936, QUOTED IN YOUR LETTER, MAY BE CONTINUED IN FULL FORCE AND EFFECT.