B-11143, JULY 20, 1940, 20 COMP. GEN. 35

B-11143: Jul 20, 1940

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PROVIDED THERE WAS NO BREAK IN SERVICE INVOLVED AND THAT DURING THE PERIOD IN THE DEPARTMENTAL POSITION THE EMPLOYEE WAS GRANTED ONLY SUCH LEAVE AS ACCUMULATED OR ACCRUED UNDER THE ACTS OF MARCH 14. 1940: I HAVE YOUR LETTER OF JULY 2. A CASE IN POINT IS THAT OF A POST OFFICE INSPECTOR WHO ON SEPTEMBER 16. IT WILL BE APPRECIATED IF YOU WILL FURNISH THIS DEPARTMENT WITH A RULING AS TO THE PROPRIETY OF CREDITING THIS INSPECTOR WITH THE ANNUAL AND SICK LEAVE WHICH HE HAD ACCUMULATED AND ACCRUED ON SEPTEMBER 16. SECTION 19 OF EXECUTIVE ORDER NO. 8384 AND SECTION 23 OF EXECUTIVE ORDER NO. 8385 HAVE SIMILAR PROVISIONS EXCEPTING EMPLOYEES IN OR UNDER THE POST OFFICE DEPARTMENT FROM THE APPLICATION OF THE REGULATIONS.

B-11143, JULY 20, 1940, 20 COMP. GEN. 35

LEAVES OF ABSENCE - POSTAL EMPLOYEES - TRANSFERS AN EMPLOYEE TRANSFERRED FROM A FIELD SERVICE POSITION SUBJECT TO THE POSTAL SERVICE LEAVE ACT OF FEBRUARY 28, 1925, AS AMENDED, TO A DEPARTMENTAL POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, AND SUBSEQUENTLY TRANSFERRED BACK TO THE POSTAL SERVICE FIELD POSITION, MAY BE CREDITED, AFTER THE LATER TRANSFER, WITH LEAVE ACCUMULATED AND ACCRUED PRIOR TO THE ORIGINAL TRANSFER, PROVIDED THERE WAS NO BREAK IN SERVICE INVOLVED AND THAT DURING THE PERIOD IN THE DEPARTMENTAL POSITION THE EMPLOYEE WAS GRANTED ONLY SUCH LEAVE AS ACCUMULATED OR ACCRUED UNDER THE ACTS OF MARCH 14, 1936.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, JULY 20, 1940:

I HAVE YOUR LETTER OF JULY 2, 1940 (FILE 4), AS FOLLOWS:

IN SECTION 7 OF THE ACTS OF MARCH 14, 1936, THE CONGRESS EXPRESSED A LEGISLATIVE INTENT THAT LEAVES OF ABSENCE BE ADMINISTERED WITH AS MUCH UNIFORMITY AS POSSIBLE. SECTION 6 OF EXECUTIVE ORDER 8384, DATED MARCH 29, 1940, AND SECTION 9 OF EXECUTIVE ORDER 8385 OF THE SAME DATE PROVIDE IN EFFECT, AS APPLIED TO THE EMPLOYEES OF THIS DEPARTMENT, THAT ANNUAL AND SICK LEAVE ACCUMULATED AND ACCRUED TO THE CREDIT OF EMPLOYEES IN THE DEPARTMENTAL SERVICE ON THE DATE OF THEIR TRANSFER TO THE FIELD SERVICE SHALL BE PLACED AT THEIR CREDIT UNTIL SUCH TIME AS THEY MAY BE RETRANSFERRED TO THE DEPARTMENTAL SERVICE PROVIDED SUCH TRANSFERS BE MADE WITHOUT BREAK IN THE SERVICE.

WHILE THE EXECUTIVE ORDERS CITED DO NOT PROVIDE THAT THE SAME RULE SHALL BE APPLIED IN THE EVENT OF TRANSFERS FROM THE FIELD TO THE DEPARTMENTAL SERVICE AND SUBSEQUENT RETRANSFER TO THE FIELD SERVICE, IT WOULD SEEM IN THE INTEREST OF UNIFORMITY THAT SUCH A RULE SHOULD OBTAIN.

A CASE IN POINT IS THAT OF A POST OFFICE INSPECTOR WHO ON SEPTEMBER 16, 1938, TRANSFERRED FROM A FIELD SERVICE POSITION TO THE BUREAU OF THE BUDGET AND ON OCTOBER 2, 1939, RETRANSFERRED TO HIS POSITION AS A POST OFFICE INSPECTOR. IT WILL BE APPRECIATED IF YOU WILL FURNISH THIS DEPARTMENT WITH A RULING AS TO THE PROPRIETY OF CREDITING THIS INSPECTOR WITH THE ANNUAL AND SICK LEAVE WHICH HE HAD ACCUMULATED AND ACCRUED ON SEPTEMBER 16, 1938.

SECTIONS 4 AND 7 OF THE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, PROVIDE AS FOLLOWS:

SEC. 4. NOTHING IN THIS ACT SHALL AFFECT THE POSTMASTER GENERAL AND OFFICERS AND EMPLOYEES IN OR UNDER THE POST OFFICE DEPARTMENT: PROVIDED, THAT OFFICERS AND EMPLOYEES IN THE DEPARTMENTAL SERVICE AND IN THE MAIL EQUIPMENT SHOPS OF THE POST OFFICE DEPARTMENT SHALL BE INCLUDED WITHIN THE PROVISIONS OF THIS ACT.

SEC. 7. THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

SECTION 19 OF EXECUTIVE ORDER NO. 8384 AND SECTION 23 OF EXECUTIVE ORDER NO. 8385 HAVE SIMILAR PROVISIONS EXCEPTING EMPLOYEES IN OR UNDER THE POST OFFICE DEPARTMENT FROM THE APPLICATION OF THE REGULATIONS.

IN THE CASE IN POINT REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IT IS UNDERSTOOD THAT THE EMPLOYEE DOES NOT COME WITHIN THE TERMS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, BUT RATHER, COMES WITHIN THE TERMS OF SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1064, AS AMENDED BY THE ACT OF MAY 15, 1939, 53 STAT. 745, AS FOLLOWS:

EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EXCLUSIVE OF SATURDAYS, SUNDAYS, AND HOLIDAYS, EACH FISCAL YEAR, AND SICK LEAVE WITH PAY AT THE RATE OF TEN DAYS A YEAR, EXCLUSIVE OF SATURDAYS, SUNDAYS, AND HOLIDAYS, TO BE CUMULATIVE, BUT NO SICK LEAVE WITH PAY IN EXCESS OF SIX MONTHS SHALL BE GRANTED DURING ANY ONE FISCAL YEAR. SICK LEAVE SHALL BE GRANTED ONLY UPON SATISFACTORY EVIDENCE OF ILLNESS IN ACCORDANCE WITH THE REGULATIONS TO BE PRESCRIBED BY THE POSTMASTER GENERAL: PROVIDED, THAT THE FIFTEEN DAYS' LEAVE SHALL BE CREDITED AT THE RATE OF ONE AND ONE-QUARTER DAYS FOR EACH MONTH OF ACTUAL SERVICE.

REGULATIONS FOR THE ADMINISTERING OF THE LEAVE ACT LAST ABOVE QUOTED ARE FOR PRESCRIBING BY THE POSTMASTER GENERAL. I HAVE EXAMINED THE REGULATIONS PRESCRIBED BY THE POSTMASTER GENERAL, AS SET OUT ON PAGES 94 AND 95 OF THE POSTAL GUIDE OF JULY 1939, AND I DO NOT FIND ANY PROVISION THEREIN EITHER FOR, OR AGAINST, THE CREDITING OF LEAVE UPON TRANSFER, RETRANSFER, OR REAPPOINTMENT WITHOUT BREAK IN SERVICE OF AN EMPLOYEE OF THE POSTAL SERVICE. COMPARE, FOR INSTANCE, THE SECOND SENTENCE OF SECTIONS 6 AND 9 OF THE ANNUAL LEAVE AND SICK LEAVE REGULATIONS, RESPECTIVELY ( EXECUTIVE ORDERS NOS. 8384 AND 8385, DATED MARCH 29, 1940). HOWEVER, IF IT BE ADMINISTRATIVELY DETERMINED IN A CASE SUCH AS HERE PRESENTED THAT THE TRANSFERRED EMPLOYEE'S ACCUMULATED LEAVE SHOULD BE CREDITED UPON HIS RETRANSFER, THERE APPEARS TO BE NO LEGAL OBJECTION TO SUCH ACTION PROVIDED THERE BE NO BREAK IN SERVICE AS DEFINED IN THE DEPARTMENTAL REGULATIONS. SEE 19 COMP. GEN. 445; B 8067, DATED JANUARY 30, 1940; COMPARE 19 COMP. GEN. 366. FURTHERMORE, IF ADMINISTRATIVELY DEEMED DESIRABLE, FUTURE SIMILAR CASES COULD BE PROVIDED FOR BY SUITABLY DRAFTED REGULATIONS.

IN THE SPECIFIC CASE REFERRED TO IN THE LAST PARAGRAPH OF YOUR LETTER, THE ACTION PROPOSED IS UNDERSTOOD TO BE THAT THE POST OFFICE INSPECTOR IS TO BE CREDITED AS OF OCTOBER 2, 1939, THE DATE OF HIS RETURN TO THE POSTAL SERVICE, WITH THE LEAVE ACCUMULATED AND ACCRUED PRIOR TO SEPTEMBER 16, 1938, THE DATE THAT HE LEFT THE POSTAL SERVICE BY TRANSFER TO THE BUREAU OF THE BUDGET. IN OTHER WORDS, IT IS PROPOSED TO REGARD THE LEAVE ACCRUED PRIOR TO SEPTEMBER 16, 1938, AS HELD IN ABEYANCE DURING THE PERIOD FROM SEPTEMBER 16, 1938, TO OCTOBER 2, 1939--- AN ACTION ANALOGOUS TO THAT AUTHORIZED BY THE SECOND SENTENCE OF SECTION 6 OF EXECUTIVE ORDER NO. 8384 AND OF SECTION 9 OF EXECUTIVE ORDER NO. 8385. IN VIEW OF WHAT HAS BEEN STATED ABOVE, THE POST OFFICE INSPECTOR MAY BE CREDITED AS OF OCTOBER 2, 1939, BY APPROPRIATE ADMINISTRATIVE ACTION, WITH THE LEAVE ACCUMULATED AND ACCRUED PRIOR TO SEPTEMBER 16, 1938, PROVIDED IT HAS BEEN DEFINITELY ASCERTAINED FROM THE BUREAU OF THE BUDGET THAT THERE WAS NO BREAK IN SERVICE DURING THE PERIOD FROM SEPTEMBER 16, 1938, TO OCTOBER 2, 1939, AND THAT THE EMPLOYEE WAS GRANTED DURING SAID PERIOD ONLY SUCH LEAVE AS MAY HAVE ACCUMULATED OR ACCRUED UNDER THE PROVISIONS OF THE ACT OF MARCH 14, 1936.