B-1113, FEBRUARY 11, 1939, 18 COMP. GEN. 653

B-1113: Feb 11, 1939

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IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION DATED JULY 28. IN WHICH IT IS HELD THAT IN THE APPLICATION OF THE PROVISIONS OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS. A CIVILIAN EMPLOYEE WHO WAS FURLOUGHED WITHOUT PAY TO PERMIT OF HIS ASSIGNMENT AS A RESERVE OFFICER TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS. THE QUESTION ARISES AS TO WHETHER THE RULE STATED IS ALSO APPLICABLE TO CASES IN WHICH THE CIRCUMSTANCES ARE AS FOLLOWS: FROM TIME TO TIME CIVILIAN EMPLOYEES OF THIS DEPARTMENT ARE ORDERED TO ACTIVE DUTY FOR THE PURPOSE OF RECEIVING INSTRUCTIONS AT OFFICERS' TRAINING SCHOOLS. THESE ASSIGNMENTS ARE FOR DEFINITE PERIODS OF TIME. AS THE PAY IS PRACTICALLY ALWAYS IN EXCESS OF $2.

B-1113, FEBRUARY 11, 1939, 18 COMP. GEN. 653

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - CIVILIAN EMPLOYEE FURLOUGHED WITHOUT PAY DURING MILITARY SCHOOL TRAINING - ACCRUED LEAVE FORFEITURES A CIVILIAN EMPLOYEE OF THE GOVERNMENT ORDERED WITH HIS CONSENT TO ACTIVE DUTY AS AN ARMY RESERVE OFFICER FOR THE PURPOSE OF RECEIVING INSTRUCTION AT AN OFFICERS' TRAINING SCHOOL AND FURLOUGHED WITHOUT PAY FOR THE PERIOD INVOLVED, FORFEITS, UNDER THE TERMS OF SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, ALL ANNUAL LEAVE ACCRUED UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, BUT UNUSED PRIOR TO THE REPORTING FOR SUCH DUTY. 18 COMP. GEN. 94, AMPLIFIED, AND 17 ID. 806, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, FEBRUARY 11, 1939:

YOUR LETTER OF JANUARY 31, 1939, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION DATED JULY 28, 1938 (A-96323) (VOL. 18, P. 94), IN WHICH IT IS HELD THAT IN THE APPLICATION OF THE PROVISIONS OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, A CIVILIAN EMPLOYEE WHO WAS FURLOUGHED WITHOUT PAY TO PERMIT OF HIS ASSIGNMENT AS A RESERVE OFFICER TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS, MAY NOT BE ALLOWED, UPON HIS RETURN TO CIVILIAN EMPLOYMENT, THE ANNUAL LEAVE WHICH STOOD TO HIS CREDIT AT THE TIME OF HIS FURLOUGH.

THE QUESTION ARISES AS TO WHETHER THE RULE STATED IS ALSO APPLICABLE TO CASES IN WHICH THE CIRCUMSTANCES ARE AS FOLLOWS: FROM TIME TO TIME CIVILIAN EMPLOYEES OF THIS DEPARTMENT ARE ORDERED TO ACTIVE DUTY FOR THE PURPOSE OF RECEIVING INSTRUCTIONS AT OFFICERS' TRAINING SCHOOLS. THESE ASSIGNMENTS ARE FOR DEFINITE PERIODS OF TIME, AND OF SHORT DURATION, GENERALLY FOR THREE MONTHS OR LESS. THE EMPLOYEE RECEIVES THE ACTIVE-DUTY PAY AND ALLOWANCES OF A COMMISSIONED OFFICER OF HIS RANK WHILE UNDERGOING THE TRAINING, AND AS THE PAY IS PRACTICALLY ALWAYS IN EXCESS OF $2,000 PER ANNUM IT IS NOT POSSIBLE TO ALLOW ANNUAL LEAVE CONCURRENTLY WITH THE MILITARY DUTY. IT IS IMPRACTICABLE IN MOST CASES OF THIS KIND TO GRANT ANNUAL LEAVE BEFORE THE ACTIVE DUTY AS RESERVE OFFICER BECOMES EFFECTIVE. A FURLOUGH WITHOUT PAY IS ACCORDINGLY GRANTED, AND SINCE THE ACTIVE DUTY FOR PURPOSES OF INSTRUCTION IS CLEARLY REQUIRED FOR THE NATIONAL DEFENSE, THE FURLOUGH IS REGARDED AS HAVING BEEN ALLOWED IN THE INTERESTS OF THE GOVERNMENT. A FURLOUGH GRANTED UNDER THESE CONDITIONS DIFFERS FROM A GRANT OF LEAVE WITHOUT PAY ON THE REQUEST OF THE EMPLOYEE FOR PURPOSES THAT ARE PERSONAL AND HAVE NO BEARING WHATSOEVER ON THE INTERESTS OF THE GOVERNMENT.

BECAUSE OF THE SPECIAL CIRCUMSTANCES OUTLINED, THIS DEPARTMENT IS IN DOUBT AS TO WHETHER THE FURLOUGH WITHOUT PAY GRANTED IN THE CLASS OF CASES DESCRIBED IS TO BE CONSIDERED AS IN THE SAME CLASS AS A LEAVE WITHOUT PAY, SO FAR AS SECTION 9 OF THE ANNUAL LEAVE REGULATIONS IS CONCERNED. LEAVE WITHOUT PAY NORMALLY IS GRANTED FOR THE CONVENIENCE OF THE EMPLOYEE, AND IT IS ASSUMED THEREFORE, THAT THE PURPOSE OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS MAY HAVE BEEN TO INSURE THAT AN EMPLOYEE SHOULD NOT BE PERMITTED TO CHOOSE FOR HIS OWN CONVENIENCE TO TAKE LEAVE WITHOUT PAY AND DEFER THE TAKING OF ANNUAL LEAVE. THE DECISION OF THE COMPTROLLER GENERAL DATED APRIL 2, 1938 (A-93663), WHICH PERMITS THE RESTORATION TO DUTY OF AN EMPLOYEE SUSPENDED WITHOUT PAY FOR THE PURPOSE OF ALLOWING HIM THE ANNUAL LEAVE DUE HIM, INDICATES THAT ALL CLASSES OF NONPAY STATUS ARE NOT COVERED BY SECTION 9 OF THE LEAVE REGULATIONS. IT IS CONSIDERED REASONABLE TO BELIEVE, THEREFORE, THAT IF AN EMPLOYEE WHO IS SUSPENDED WITHOUT PAY AS A DISCIPLINARY MEASURE RETAINS HIS RIGHT TO ANNUAL LEAVE THROUGH THE PERIOD OF NONPAY STATUS OCCASIONED BY THE SUSPENSION, AN EMPLOYEE WHO IS FURLOUGHED WITHOUT PAY FOR A DEFINITE PERIOD FOR A PURPOSE IN THE INTEREST OF THE SERVICE, SHOULD RETAIN HIS RIGHTS TO ANNUAL LEAVE ALSO.

A RULING, THEREFORE, IS REQUESTED AS TO WHETHER AN EMPLOYEE, UNDER THE CONDITIONS ABOVE STATED, MAY RETAIN CREDIT FOR ANNUAL LEAVE DUE HIM AT THE TIME OF THE FURLOUGH WITHOUT PAY AND MAY BE ALLOWED SUCH LEAVE AT AN APPROPRIATE TIME FOLLOWING HIS RESTORATION TO DUTY.

IN THE DECISION CITED IN THE FIRST PARAGRAPH OF YOUR LETTER IT WAS STATED:

SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

"LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED LEAVE AND CURRENT LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT EMPLOYEES INJURED IN LINE OF DUTY MAY TAKE LEAVE WITHOUT PAY, IF DESIRED, COVERING THEIR ABSENCE DUE TO SUCH INJURY INSTEAD OF COVERING SUCH TIME BY ANNUAL LEAVE; AND DURING ABSENCE BECAUSE OF SUCH INJURY AND WHILE BEING PAID BY THE EMPLOYEES' COMPENSATION COMMISSION, EMPLOYEES SHALL CONTINUE TO EARN LEAVE, WHICH SHALL, HOWEVER, BE GRANTED ONLY IN THE EVENT OF THEIR RETURN TO ACTUAL DUTY.'

THIS REGULATION PRECLUDES THE GRANTING OF LEAVE OR FURLOUGH WITHOUT PAY FOR ANY PURPOSE WITH THE ONE EXCEPTION MENTIONED IN THE REGULATIONS UNTIL ALL ANNUAL LEAVE HAS BEEN EXHAUSTED. HENCE, IT WOULD FOLLOW THAT, IF FURLOUGH WITHOUT PAY BE GRANTED AN EMPLOYEE TO PERMIT HIM TO SERVE WITH THE CIVILIAN CONSERVATION CORPS ON ACTIVE DUTY AS A MEMBER OF THE OFFICERS' RESERVE CORPS OF THE ARMY, SUCH FURLOUGH OR LEAVE WITHOUT PAY BEING IN EFFECT A SEPARATION FROM OR A BREAK IN THE SERVICE, ANY ACCRUED UNUSED ANNUAL LEAVE AT THE TIME SUCH FURLOUGH OR LEAVE IS GRANTED MUST BE REGARDED AS FORFEITED. QUESTION (2) IS ANSWERED ACCORDINGLY.

UNDER THE PROVISIONS OF SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776, THE ORDER OF RESERVE OFFICERS TO ACTIVE MILITARY DUTY TO RECEIVE INSTRUCTION IN OFFICERS' TRAINING SCHOOLS IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR MAY NOT BE MADE WITHOUT HIS CONSENT, EXCEPT IN TIME OF NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS. SUCH ASSIGNMENT TO ACTIVE MILITARY DUTY FOR TRAINING IS ENTIRELY VOLUNTARY ON THE PART OF THE RESERVE OFFICER, WHO IS PAID THE ACTIVE SERVICE PAY AND ALLOWANCES OF HIS RATING DURING THE PERIOD OF THE ASSIGNMENT. AS TO THIS, THERE IS NO DIFFERENCE BETWEEN A RESERVE OFFICER ASSIGNED (EXCEPT IN TIME OF NATIONAL EMERGENCY) TO ACTIVE DUTY TO RECEIVE INSTRUCTION AT AN OFFICERS' TRAINING SCHOOL IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR AND A RESERVE OFFICER ASSIGNED TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS. BOTH ASSIGNMENTS ARE AUTHORIZED UNDER SECTION 37A OF THE NATIONAL DEFENSE ACT. IN EITHER CASE, IF THE RESERVE OFFICER IS A CIVILIAN EMPLOYEE OF THE GOVERNMENT HE MUST APPLY FOR LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION PURSUANT TO THE REGULATIONS PROMULGATED BY THE PRESIDENT, IN ORDER TO ACCEPT THE ASSIGNMENT TO ACTIVE MILITARY DUTY WITH HIS CONSENT. SECTION 9 OF THE UNIFORM ANNUAL-LEAVE REGULATIONS SPECIFICALLY PROHIBITS THE GRANTING OF LEAVE WITHOUT PAY UNTIL ALL ACCUMULATED AND CURRENT ANNUAL LEAVE HAVE BEEN EXHAUSTED, WITH THE EXCEPTION STATED IN THE REGULATIONS NOT HERE APPLICABLE. IF THE ADMINISTRATIVE OFFICE ALLOWS THE LEAVE WITHOUT PAY TO PERMIT THE EMPLOYEE TO ACCEPT ASSIGNMENT AS A RESERVE OFFICER TO ACTIVE MILITARY DUTY IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR, IT FOLLOWS THAT THE UNUSED ANNUAL LEAVE MUST BE FORFEITED UNLESS USED PRIOR TO REPORTING FOR MILITARY DUTY. THESE ARE THE CONDITIONS FIXED BY THE LEAVE REGULATIONS OF THE PRESIDENT, TO WHICH NO EXCEPTION IS AUTHORIZED.

I FIND NO MERIT IN THE COMPARISON WHICH IS SOUGHT TO BE DRAWN IN THE NEXT TO THE LAST PARAGRAPH OF YOUR LETTER BETWEEN THE SITUATION HERE PRESENTED AND THAT CONSIDERED IN DECISION OF APRIL 2, 1938, 17 COMP. GEN. 806, WHEREIN WAS DISCUSSED THE ADMINISTRATIVE DISCRETION TO GRANT LEAVE TO EMPLOYEES SUSPENDED FROM DUTY FOR DISCIPLINARY REASONS. NOT ONLY IS THE QUESTION OF LEAVE OF SUSPENDED EMPLOYEES GOVERNED BY ANOTHER SECTION OF THE LEAVE REGULATIONS, VIZ, SECTION 8, BUT IN SUCH CASES THE EMPLOYEE DOES NOT VOLUNTARILY APPLY FOR LEAVE WITHOUT PAY DURING THE PERIOD OF SUSPENSION, BUT IT IS IMPOSED BY ADMINISTRATIVE ACTION.

THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.