B-105001, AUGUST 30, 1951, 31 COMP. GEN. 58

B-105001: Aug 30, 1951

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IS SUSPENDED WITHOUT PAY OR REMOVED FROM THE SERVICE UNDER THE PROVISIONS OF THE ACT OF AUGUST 26. WHO IS SUBSEQUENTLY RESTORED TO DUTY AND ALLOWED COMPENSATION FOR THE PERIOD OF SUCH SUSPENSION OR REMOVAL IS ENTITLED UNDER SAID ACT TO BE CREDITED WITH ANNUAL AND SICK LEAVE FOR SAID PERIOD. 1951: REFERENCE IS MADE TO LETTER OF AUGUST 3. REQUESTING A DECISION WHETHER IT IS MANDATORY THAT ANNUAL AND SICK LEAVE BE CREDITED TO AN EMPLOYEE FOR A PERIOD OF SUSPENSION FROM THE SERVICE WITHOUT PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 26. THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY. IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNTS SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION.

B-105001, AUGUST 30, 1951, 31 COMP. GEN. 58

LEAVES OF ABSENCE - ACCRUALS DURING PERIODS OF SUSPENSION IN INTEREST OF NATIONAL SECURITY AN EMPLOYEE WHO, IN THE INTEREST OF NATIONAL SECURITY, IS SUSPENDED WITHOUT PAY OR REMOVED FROM THE SERVICE UNDER THE PROVISIONS OF THE ACT OF AUGUST 26, 1950, AND WHO IS SUBSEQUENTLY RESTORED TO DUTY AND ALLOWED COMPENSATION FOR THE PERIOD OF SUCH SUSPENSION OR REMOVAL IS ENTITLED UNDER SAID ACT TO BE CREDITED WITH ANNUAL AND SICK LEAVE FOR SAID PERIOD. COMPARE 23 COMP. GEN. 204.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, AUGUST 30, 1951:

REFERENCE IS MADE TO LETTER OF AUGUST 3, 1951, FROM THE ASSISTANT SECRETARY OF THE NAVY FOR AIR, REQUESTING A DECISION WHETHER IT IS MANDATORY THAT ANNUAL AND SICK LEAVE BE CREDITED TO AN EMPLOYEE FOR A PERIOD OF SUSPENSION FROM THE SERVICE WITHOUT PAY UNDER THE PROVISIONS OF THE ACT OF AUGUST 26, 1950, PUBLIC LAW 733, WHERE SUCH AN EMPLOYEE HAS BEEN RESTORED TO DUTY AND ALLOWED COMPENSATION FOR THE PERIOD OF SUSPENSION.

THE SAID 1950 ACT AUTHORIZES THE SECRETARY OF THE NAVY AND THE HEADS OF OTHER NAMED DEPARTMENTS AND AGENCIES TO SUSPEND WITHOUT PAY ANY OFFICER OR EMPLOYEE OF SUCH AGENCY WHEN DEEMED NECESSARY IN THE INTEREST OF NATIONAL SECURITY. SECTION 1 OF THAT ACT, 64 STAT. 477, FURTHER PROVIDES, IN PERTINENT PART:

* * * PROVIDED FURTHER, THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BY REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNTS SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON; * * *

SECTION 4 OF THIS ACT, 64 STAT. 477, SPECIFICALLY REPEALS SECTION 3 OF THE ACT OF DECEMBER 17, 1942, 56 STAT. 1053, WHICH READS IN PART AS FOLLOWS:

* * * THOSE PERSONS SUMMARILY REMOVED UNDER THE AUTHORITY OF THIS SECTION MAY, IF IN THE OPINION OF THE SECRETARY CONCERNED, SUBSEQUENT INVESTIGATION SO WARRANTS, BE REINSTATED, AND IF SO REINSTATED MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH REMOVAL IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH REMOVAL, AT THE RATE HE WAS RECEIVING ON THE DATE OF REMOVAL, AND THE INTERIM NET EARNINGS OF SUCH PERSON.

IN THE DEPARTMENT'S LETTER REFERENCE IS MADE TO OFFICE DECISION OF SEPTEMBER 18, 1943, 23 COMP. GEN. 204, INVOLVING THE CREDIT OF LEAVE UNDER THE ACT OF DECEMBER 17, 1942, THE LETTER STATING WITH REFERENCE THERETO THAT " THIS DECISION IS UNDERSTOOD AS HOLDING THAT THE HEAD OF THE DEPARTMENT CONCERNED MAY, IN HIS DISCRETION, CREDIT AN EMPLOYEE WITH LEAVE FOR A PERIOD OF SUSPENSION AND NOT AS PASSING UPON THE QUESTION OF WHETHER OR NOT IT IS MANDATORY THAT THE EMPLOYEE BE CREDITED WITH LEAVE UNDER THE CIRCUMSTANCES.'

WHILE NOT SPECIFICALLY SO STATED IN THE DECISION OF SEPTEMBER 18, 1943, THE CONCLUSION THEREIN WAS PREDICATED UPON THE FACT THAT THE ALLOWANCE OF COMPENSATION FOR A PERIOD OF SUSPENSION FROM THE SERVICE UNDER THAT STATUTE HAD THE EFFECT OF PLACING THE EMPLOYEE IN A STATUS TANTAMOUNT TO AN ACTIVE DUTY STATUS, THUS ENTITLING HIM TO LEAVE AS A MATTER OF RIGHT TO THE SAME EXTENT AS THOUGH THE SUSPENSION HAD NOT OCCURRED--- THERE BEING NO INDICATION OF ANY INTENT TO THE CONTRARY IN THE LEGISLATIVE HISTORY OF THE EARLIER ENACTMENTS WHICH WERE REENACTED IN SUBSTANCE BY THE ACT OF DECEMBER 17, 1942.

THE ACT OF AUGUST 26, 1950, HERE INVOLVED, DOES NOT CONTAIN A PROVISION SUCH AS THAT CONTAINED IN THE ACT OF JUNE 10, 1948, 62 STAT. 354--- AUTHORIZING THE SUSPENSION OR REMOVAL OF EMPLOYEES FOR THE REASONS STATED THEREIN--- TO THE EFFECT THAT, UPON REINSTATEMENT OR RESTORATION, THE EMPLOYEE ,SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE, BE DEEMED TO HAVE RENDERED SERVICES DURING SUCH PERIOD.' ALSO, THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 26, 1950, FAILS TO INDICATE ANY INTENT TO DEPRIVE EMPLOYEES OF LEAVE WHERE THEY HAVE BEEN RESTORED TO DUTY AND ALLOWED COMPENSATION FOR PERIODS OF SUSPENSION OR REMOVAL. IN VIEW THEREOF, AND IN LINE WITH THE DECISION OF SEPTEMBER 18, 1943, IT FOLLOWS THAT, WHEN AN EMPLOYEE IS ALLOWED COMPENSATION FOR A PERIOD OF SUSPENSION OR TERMINATION FROM THE SERVICE UNDER THE ACT OF AUGUST 26, 1950, IT IS MANDATORY THAT HE ALSO BE CREDITED WITH ANNUAL AND SICK LEAVE FOR SUCH PERIOD.