B-11679, AUGUST 26, 1940, 20 COMP. GEN. 114

B-11679: Aug 26, 1940

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CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHO ARE CITIZENS OF THE UNITED STATES ON DUTY IN THE PHILIPPINES MAY BE GRANTED UNDER THE LEAVE DIFFERENTIAL CONTINUANCE AUTHORITY OF SECTION 5 OF THE ANNUAL LEAVE ACT OF MARCH 14. INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. AGAINST ACCRUED ANNUAL LEAVE OF CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHO ARE CITIZENS OF THE UNITED STATES ON DUTY IN THE PHILIPPINES. FOR SICK LEAVE WITH PAY TAKEN IN EXCESS OF 15 DAYS IN EACH YEAR OF THE CUMULATIVE ANNUAL LEAVE PERIOD MAY BE DISCONTINUED IF IT IS ADMINISTRATIVELY DETERMINED THAT THERE SHOULD BE ADOPTED THE MORE ADVANTAGEOUS BENEFITS OF THE SICK LEAVE ACT OF MARCH 14. THE ADVANCING OF SICK LEAVE TO COVER SUCH EXCESS WHERE THERE IS NO ACCUMULATION.

B-11679, AUGUST 26, 1940, 20 COMP. GEN. 114

LEAVES OF ABSENCE AND TRAVEL TIME ALLOWANCES - CIVILIAN EMPLOYEES OUTSIDE CONTINENTAL LIMITS OF THE UNITED STATES SECTION 5 OF EACH OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, SAVES TO EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES THE BENEFIT OF ANY THEN EXISTING LEAVE DIFFERENTIAL-- WHETHER GRANTED BY PRIOR LEAVE LAWS OR ADMINISTRATIVE REGULATIONS. CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHO ARE CITIZENS OF THE UNITED STATES ON DUTY IN THE PHILIPPINES MAY BE GRANTED UNDER THE LEAVE DIFFERENTIAL CONTINUANCE AUTHORITY OF SECTION 5 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS, AND HOLIDAYS, WITH ACCRUAL ON THAT BASIS UP TO 104 DAYS FOR 4 YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. CHARGES MADE, UNDER EXISTING ADMINISTRATIVE REGULATIONS, AGAINST ACCRUED ANNUAL LEAVE OF CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHO ARE CITIZENS OF THE UNITED STATES ON DUTY IN THE PHILIPPINES, FOR SICK LEAVE WITH PAY TAKEN IN EXCESS OF 15 DAYS IN EACH YEAR OF THE CUMULATIVE ANNUAL LEAVE PERIOD MAY BE DISCONTINUED IF IT IS ADMINISTRATIVELY DETERMINED THAT THERE SHOULD BE ADOPTED THE MORE ADVANTAGEOUS BENEFITS OF THE SICK LEAVE ACT OF MARCH 14, 1936, WHICH PERMITS ACCUMULATION OF SICK LEAVE NOT TO EXCEED 90 DAYS AGAINST WHICH THE EXCESS SICK LEAVE MAY BE CHARGED, AND THE ADVANCING OF SICK LEAVE TO COVER SUCH EXCESS WHERE THERE IS NO ACCUMULATION. A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT WHO IS A CITIZEN OF THE UNITED STATES ON DUTY IN THE PHILIPPINES AND HAS ACCRUED ANNUAL LEAVE OF NOT LESS THAN 60 DAYS, AND WHO DESIRES TO RETURN TO THE UNITED STATES AFTER HAVING COMPLETED HIS AGREED TOUR OF DUTY AND TO SEPARATE HIMSELF FROM THE SERVICE AT EXPIRATION OF HIS LEAVE, MAY NOT, UNDER THE APPLICABLE ADMINISTRATIVE REGULATIONS, BE GRANTED TRAVEL TIME IN ADDITION TO HIS ACCRUED ANNUAL LEAVE. A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT WHO WAS BORN IN THE UNITED STATES; HAS A PLACE OF RESIDENCE IN FACT IN THE UNITED STATES; WAS HIRED IN THE PHILIPPINE ISLANDS; HAS ACCRUED ANNUAL LEAVE OF NOT LESS THAN 60 DAYS; AND DESIRES TO RETURN TO THE UNITED STATES AFTER HAVING COMPLETED HIS AGREED TOUR OF DUTY AND TO SEPARATE HIMSELF FROM THE SERVICE AT EXPIRATION OF HIS LEAVE, MAY NOT UNDER THE APPLICABLE ADMINISTRATIVE REGULATIONS, BE GRANTED TRAVEL TIME IN ADDITION TO HIS ACCRUED ANNUAL LEAVE. A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT WHO IS AN AMERICAN BORN IN THE PHILIPPINES AND HIRED THERE, AND WHO DESIRES TO VISIT THE UNITED STATES AFTER 3 OR MORE YEARS' SERVICE MAY NOT, UNDER THE APPLICABLE ADMINISTRATIVE REGULATIONS, BE GRANTED TRAVEL TIME IN ADDITION TO HIS ACCRUED ANNUAL LEAVE REGARDLESS OF WHETHER RETURN TO THE PHILIPPINES IS OR IS NOT CONTEMPLATED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, AUGUST 26, 1940:

I HAVE YOUR ENDORSEMENT OF JULY 31, 1940, PRESENTING FOR DECISION A NUMBER OF QUESTIONS CONTAINED IN THE FOLLOWING COMMUNICATION TO YOU FROM THE CHIEF OF ENGINEERS, WAR DEPARTMENT:

1. SECTION 5 OF THE ACT OF CONGRESS APPROVED MARCH 14, 1936, IS AS FOLLOWS:

"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.'

SECTION 16 OF THE UNIFORM ANNUAL LEAVE REGULATIONS IS AS FOLLOWS AND A SIMILAR PROVISION IS CONTAINED IN THE UNIFORM SICK LEAVE REGULATIONS:

"NOTHING IN THESE REGULATIONS SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY LEAVE DIFFERENTIAL EXISTING PRIOR TO JANUARY 1, 1936, FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES. HOWEVER, ANY DEPARTMENT MAY, IF IT SO DESIRES, APPLY THESE REGULATIONS TO EMPLOYEES STATIONED WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES, SUBJECT TO THE CONTINUANCE OF SUCH LEAVE DIFFERENTIAL.'

2. THE DEPARTMENT ENGINEER, PHILIPPINE DEPARTMENT, HAS PRESENTED CERTAIN QUESTIONS TO THIS OFFICE WHICH NECESSITATE AN INTERPRETATION OF THE SECOND SENTENCE OF SECTION 16 OF THE UNIFORM ANNUAL LEAVE REGULATIONS. THIS SENTENCE DID NOT APPEAR IN THE UNIFORM ANNUAL LEAVE REGULATIONS ISSUED JULY 9, 1936, SO THAT INTERPRETATION AS TO APPLICATION OF THE LEAVE REGULATIONS TO EMPLOYEES OUTSIDE THE CONTINENTAL UNITED STATES ISSUED BY THE JUDGE ADVOCATE GENERAL ON NOVEMBER 9, 1936, AND RULING GIVEN BY THE OFFICE OF THE SECRETARY OF WAR ON FEBRUARY 19, 1937, MAY NO LONGER GOVERN. COPIES OF THE RULINGS REFERRED TO ARE ENCLOSED FOR REFERENCE.

3. UNDER THE PROVISIONS OF WAR DEPARTMENT CIRCULAR (A) OF JANUARY 12, 1912, EMPLOYEES OF THE WAR DEPARTMENT WHO ARE CITIZENS OF THE UNITED STATES AND WHO ARE ON DUTY IN THE PHILIPPINES MAY NOW RECEIVE ACCRUED LEAVE NOT TO EXCEED 120 DAYS. THIS ACCRUAL IS TO CONSIST OF "UNUSED ANNUAL LEAVE OF ABSENCE" PROVIDED BY THE DEPARTMENT'S CIRCULAR (J) OF AUGUST 5, 1899, UNDER WHICH ANNUAL LEAVE NOT TO EXCEED 30 DAYS IN A CALENDAR YEAR COULD BE GRANTED TO EMPLOYEES OF THE WAR DEPARTMENT. WAR DEPARTMENT CIRCULAR (A) OF JANUARY 25, 1912, ALSO PROVIDED THAT "IN CALCULATING ACCRUED LEAVE THERE SHALL BE DEDUCTED FROM THE UNUSED ANNUAL LEAVE OF EACH OF THE CALENDAR YEARS IN THE CUMULATIVE PERIOD OF SICK LEAVE WITH PAY TAKEN IN EXCESS OF 15 DAYS IN EACH YEAR OF THE CUMULATIVE PERIOD.'

4. INFORMATION IS REQUESTED AS TO WHETHER THE SECOND SENTENCE OF SECTION 16 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PERMITS THE ALLOWANCE TO EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES ON DUTY IN THE PHILIPPINES OF ANNUAL LEAVE AT THE RATE OF 26 DAYS IN EACH CALENDAR YEAR, WITH ACCRUAL UP TO 120 DAYS, AND IN ADDITION THE ALLOWANCE OF 26 DAYS CURRENT ANNUAL LEAVE.

5. INFORMATION ALSO IS REQUESTED AS TO WHETHER IT IS STILL REQUIRED THAT ALL SICK LEAVE WITH PAY TAKEN IN EXCESS OF 15 DAYS IN EACH YEAR OF THE CUMULATIVE PERIOD MUST BE DEDUCTED FROM THE ACCRUAL OF ANNUAL LEAVE, OR WHETHER THE UNIFORM SICK LEAVE REGULATIONS ARE TO BE APPLIED AS FOLLOWS:

(A) TO PERMIT ACCUMULATION OF SICK LEAVE NOT TO EXCEED 90 DAYS, AND THEREFORE TO PROVIDE FOR CHARGE OF SICK LEAVE IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR AGAINST THIS ACCUMULATION;

(B) TO PERMIT OF ADVANCE OF SICK LEAVE TO EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES ON DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES RATHER THAN TO CHARGE SICK LEAVE IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR AGAINST THE ACCRUED LEAVE.

6. THE FOLLOWING QUESTIONS ARE PRESENTED FOR DECISION:

(A) AN EMPLOYEE WITH 85 DAYS ACCRUED LEAVE DESIRES TO RETURN TO THE UNITED STATES AFTER HAVING COMPLETED HIS AGREED TOUR AND TO SEPARATE HIMSELF FROM THE SERVICE AT THE EXPIRATION OF HIS LEAVE. IS THE EFFECTIVE DATE OF LEAVE THE DATE OF DEPARTURE FROM MANILA, THE DATE OF ARRIVAL AT SAN FRANCISCO, OR THE THEORETICAL DATE OF ARRIVAL AT HIS LAST DUTY STATION IN THE UNITED STATES?

(B) AN EMPLOYEE WHO WAS BORN IN THE UNITED STATES AND WHO HAS A PLACE OF RESIDENCE IN FACT IN THE UNITED STATES BUT WHOSE SERVICES WERE ENGAGED IN THE PHILIPPINES DESIRES TO RETURN TO THE UNITED STATES AND SEPARATE HIMSELF FROM THE SERVICE AS EMPLOYEE UNDER FOREGOING QUESTION. WHAT IS THE EFFECTIVE DATE OF LEAVE IN THIS INSTANCE?

(C) AN AMERICAN WHO WAS BORN IN THE PHILIPPINES AND WHO WAS EMPLOYED LOCALLY DESIRES TO VISIT THE UNITED STATES AFTER THREE OR MORE YEARS' SERVICE. IS THIS EMPLOYEE ENTITLED TO TRAVEL TIME WHEN RETURN TO THE PHILIPPINES IS CONTEMPLATED? IS EMPLOYEE ENTITLED TO TRAVEL TIME WHEN RETURN IS NOT CONTEMPLATED?

THERE IS NO STATUTE SPECIFICALLY CONTROLLING THE GRANTING OF ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT ON DUTY IN THE PHILIPPINES. THE MATTER APPEARS TO HAVE BEEN CONTROLLED BY ADMINISTRATIVE REGULATIONS OF THE WAR DEPARTMENT--- PARTICULARLY CIRCULAR A OF JANUARY 12, 1912, PROVIDING AS FOLLOWS,*

1. UNUSED ANNUAL LEAVE OF ABSENCE PROVIDED BY THE DEPARTMENT'S CIRCULAR (J) OF AUGUST 5, 1899, SHALL ACCRUE, NOT TO EXCEED 120 DAYS, COUNTING SUNDAYS AND HOLIDAYS, FOR EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES AND WHO ARE ON DUTY IN ALASKA, THE PHILIPPINES, OR OUTSIDE THE LIMITS OF THE UNITED STATES, PROVIDED THAT IN CALCULATING ACCRUED LEAVE THERE SHALL BE DEDUCTED FROM THE UNUSED ANNUAL LEAVE OF EACH OF THE CALENDAR YEARS IN THE CUMULATIVE PERIOD ALL SICK LEAVE WITH PAY TAKEN IN EXCESS OF 15 DAYS IN EACH YEAR OF THE CUMULATIVE PERIOD.

2. WHERE ACCRUED LEAVE WITH PAY FOR NOT LESS THAN 60 DAYS IS GRANTED AN EMPLOYEE FOR THE PURPOSE OF COMING TO THE UNITED STATES, THE RUNNING OF SUCH LEAVE SHALL BE BETWEEN THE DATES OF REACHING AND LEAVING THE UNITED STATES, VIA THE USUALLY TRAVELED ROUTES, BUT THIS PROVISION SHALL NOT APPLY OFTENER THEN ONCE IN THREE YEARS AND OPERATES TO RESCIND THE DEPARTMENT'S CIRCULAR (H) OF JULY 7, 1904 ON THIS SUBJECT.

3. WHERE LEAVE OF ABSENCE IS GRANTED AN EMPLOYEE IN THE PHILIPPINES TO BE ABSENT THEREFROM OTHER THAN TO VISIT THE UNITED STATES, THE RUNNING OF SUCH LEAVE SHALL BE BETWEEN THE DATE OF REACHING MANILA FROM HIS PLACE OF EMPLOYMENT AND THE DATE OF LEAVING MANILA IN RETURNING TO HIS PLACE OF EMPLOYMENT.

4. WHERE AN EMPLOYEE WHO IS GRANTED LEAVE OF ABSENCE UNDER EITHER OF THE TWO PRECEDING PARAGRAPHS FAILS TO RETURN TO DUTY AT THE PLACE AT WHICH LEAVE WAS GRANTED, THE RUNNING OF SUCH LEAVE SHALL BE FROM THE DATE HE LEFT HIS STATION AND NOT FROM THE DATE OF ARRIVAL IN THE UNITED STATES OR AT MANILA AS THE CASE MAY BE. TO INSURE THE ENFORCEMENT OF THIS PROVISION, PAYMENT OF A SUFFICIENT PORTION OF THE EMPLOYEE'S SALARY WILL BE SUSPENDED UNTIL HIS RETURN.

5. HEREAFTER EMPLOYEES COMING TO THE UNITED STATES ON A LEAVE OF ABSENCE FROM OUTLYING STATIONS WILL NOT BE ALLOWED SICK LEAVE WITH PAY WHILE IN THE UNITED STATES; IN OTHER WORDS, ALL ABSENCE OF SUCH EMPLOYEES WHILE IN THE UNITED STATES AWAY FROM THEIR STATIONS SHALL BE CHARGED AGAINST ANNUAL LEAVE WHICH HAS ACCRUED, AND AFTER THAT LEAVE IS EXHAUSTED SHALL BE CHARGED AS ABSENCE WITHOUT PAY. APPLICATIONS OF SUCH EMPLOYEES FOR ANY LEAVE WITHOUT PAY WHILE IN THE UNITED STATES SHALL BE MADE DIRECT TO THE OFFICERS UNDER WHOM THEY ARE EMPLOYED AND NOT TO THE WAR DEPARTMENT AT WASHINGTON. SEE, ALSO, WAR DEPARTMENT CIRCULAR 1-15, PARAGRAPHS 110-111.

IT IS UNDERSTOOD THIS ADMINISTRATIVE REGULATION WAS BASED ON THE GENERAL LEAVE STATUTES IN FORCE PRIOR TO THE DATE OF THE ECONOMY ACT, VIZ., ACTS OF MARCH 3, 1893, 27 STAT. 715; MARCH 15, 1898, 30 STAT. 316; JULY 7, 1898, 30 STAT. 653, AND FEBRUARY 24, 1899, 30 STAT. 890 (5 U.S.C. 30). THE ECONOMY ACTS OF JUNE 30, 1932, 47 STAT. 407, AND MARCH 20, 1933, 48 STAT. 14 (5 U.S.C. 30A), EXPRESSLY EXCEPTED FROM THE PROVISIONS THEREOF WHICH REDUCED THE AMOUNT OF LEAVE ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES HOLDING OFFICIAL STATIONS OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA. IT MAY BE CONCLUDED, THEREFORE, THAT THE CONGRESS RECOGNIZED THE AUTHORITY OF THE SECRETARY OF WAR TO FIX THE TERMS AND CONDITIONS PURSUANT TO WHICH LEAVE OF ABSENCE WITH PAY MIGHT BE GRANTED TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT ON DUTY IN THE PHILIPPINES.

SECTION 5 OF EACH OF THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162 (ANNUAL LEAVE AND SICK LEAVE) SPECIFICALLY SAVES TO EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES THE BENEFIT OF ANY THEN EXISTING LEAVE DIFFERENTIAL--- WHETHER GRANTED BY PRIOR LEAVE LAWS OR ADMINISTRATIVE REGULATIONS. THE FIRST ANNUAL- AND SICK-LEAVE REGULATIONS ISSUED UNDER THE NEW LEAVE STATUTE, WHICH REGULATIONS WERE IN FORCE PRIOR TO JANUARY 1, 1938, DID NOT AUTHORIZE APPLICATION OF SUCH REGULATIONS TO CIVILIAN EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES. SEE 15 COMP. GEN. 1058, 1063; 16 ID. 400. HOWEVER, SECTION 16 OF THE ANNUAL-LEAVE REGULATIONS (QUOTED IN THE PRESENT SUBMISSION) AND SECTION 21 OF THE SICK-LEAVE REGULATIONS, BOTH EFFECTIVE JANUARY 1, 1938 ( EXECUTIVE ORDERS NOS. 7845 AND 7846), AUTHORIZE THE APPLICATION OF THE UNIFORM REGULATIONS PROMULGATED BY THE PRESIDENT UNDER THE NEW LEAVE ACTS TO CIVILIAN EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE. SEE, ALSO, SECTION 16 OF THE ANNUAL-LEAVE REGULATIONS, AND SECTION 21 OF THE SICK-LEAVE REGULATIONS DATED MARCH 29, 1940 ( EXECUTIVE ORDERS NOS. 8384 AND 8385).

THE GENERAL EFFECT OF THIS AUTHORITY IN THE INSTANT MATTER IS TO VEST IN THE SECRETARY OF WAR DISCRETION TO ADOPT LEAVE REGULATIONS FOR EMPLOYEES STATIONED IN THE PHILIPPINE ISLANDS COMPRISING ANY OF THE FEATURES OF EITHER THE ADMINISTRATIVE REGULATIONS--- WAR DEPARTMENT CIRCULAR A, DATED JANUARY 12, 1912--- IN FORCE PRIOR TO JANUARY 1, 1936, EFFECTIVE DATE OF THE NEW LEAVE ACTS, OR THE PRESIDENT'S REGULATIONS ISSUED PURSUANT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936. 19 COMP. GEN. 66. HOWEVER, THE TERMS OF SUCH REGULATIONS MUST BE WITHIN THE LIMITS OF WHICHEVER OF THE COMPARABLE PROVISIONS OF THE PRIOR ADMINISTRATIVE REGULATIONS--- WAR DEPARTMENT CIRCULAR A OF JANUARY 12, 1912--- AND THE NEW LEAVE ACTS AND REGULATIONS, RESULT IN GREATER ADVANTAGE TO THE EMPLOYEES--- OTHERWISE THE DIFFERENTIAL WOULD NOT BE PRESERVED.

ANNUAL LEAVE WITH PAY WAS AUTHORIZED FOR THESE EMPLOYEES AT THE RATE OF 30 DAYS PER ANNUM, INCLUDING SUNDAYS AND HOLIDAYS, AND ACCRUAL OF ANNUAL LEAVE WAS AUTHORIZED UP TO 120 DAYS FOR 4 YEARS, INCLUDING 30 DAYS FOR THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. WAR DEPARTMENT CIRCULAR A OF JANUARY 12, 1912. THERE IS NOTHING IN THE NEW ANNUAL LEAVE ACT OR THE UNIFORM LEAVE REGULATIONS, OR IN THE DECISIONS OF THIS OFFICE, AUTHORIZING THE GRANTING TO THESE EMPLOYEES OF 30 DAYS' ANNUAL LEAVE PER ANNUM EXCLUSIVE OF SUNDAYS AND HOLIDAYS. HENCE, THE STATEMENT IN WAR DEPARTMENT CIRCULAR 1-15, PARAGRAPH 110B IS ERRONEOUS. THESE BENEFITS AUTHORIZED BY THE WAR DEPARTMENT CIRCULAR OF JANUARY 12, 1912, IN THIS RESPECT ARE MORE ADVANTAGEOUS TO THE EMPLOYEES THAN THE CORRESPONDING BENEFITS GRANTED BY THE ANNUAL LEAVE ACT OF MARCH 14, 1936, VIZ, 26 DAYS PER ANNUM EXCLUSIVE OF SUNDAYS AND HOLIDAYS, WITH ACCRUAL OF 60 DAY PLUS 26 DAYS FOR THE CURRENT LEAVE YEAR, OR A TOTAL OF 86 DAYS, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. ANNUAL LEAVE AT THE RATE OF 30 DAYS PER ANNUM, INCLUSIVE OF SUNDAYS AND HOLIDAYS, IS APPROXIMATELY THE SAME AS LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. IT WOULD BE PROPER THEREFORE TO GRANT THESE EMPLOYEES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, BUT THE ACCRUAL ON THAT BASIS WOULD HAVE TO BE LIMITED TO 104 DAYS FOR 4 YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. ACCORDINGLY, THE QUESTION IN PARAGRAPH NUMBERED 4 OF THE QUOTED SUBMISSION IS ANSWERED IN THE NEGATIVE.

ANNUAL AND SICK LEAVE IS GRANTED BY THE ACTS OF MARCH 14, 1936, AS SEPARATE AND DISTINCT BENEFITS. IT IS WITHIN THE DISCRETION OF THE SECRETARY OF WAR TO ADOPT THE MORE ADVANTAGEOUS BENEFITS OF THE SICK LEAVE ACT OF MARCH 14, 1936, AND OF THE PRESIDENT'S UNIFORM REGULATIONS ISSUED PURSUANT THERETO, AND TO DISCONTINUE CHARGING SICK LEAVE OF EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES TO ACCRUED ANNUAL LEAVE AND TO ADOPT REGULATIONS IN CONFORMITY WITH PARAGRAPHS 5 (A) AND (B) OF THE SUBMISSION WHICH ARE BENEFITS GRANTED BY THE SICK LEAVE ACT OF MARCH 14, 1936.

TRAVEL TIME AS AUTHORIZED BY WAR DEPARTMENT CIRCULAR A OF JANUARY 12, 1912, IS SAVED TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT ON DUTY OUTSIDE THE CONTINENTAL UNITED STATES. HENCE, THE LEAVE OF EACH OF THE EMPLOYEES MENTIONED IN SUBPARAGRAPHS (A) AND (B) OF PARAGRAPH 6 BEGINS TO RUN FROM THE DATE HE LEFT HIS STATION IN THE PHILIPPINES AS PROVIDED BY PARAGRAPH 4 OF THE CIRCULAR. REFERRING TO SUBPARAGRAPH (C) OF SAID PARAGRAPH 6 THE FOLLOWING IS QUOTED FROM WAR DEPARTMENT CIRCULAR 1-15, PARAGRAPH 110F: TRAVEL TIME FOR CITIZENS NOT HAVING HOME IN U.S. THE BASIS OF W.D. CIR. A, OF JANUARY 12, 1912, WAS TO AMELIORATE THE CONDITIONS INCIDENT TO AMERICAN CITIZENS GOING FROM THE CONTINENTAL U.S. TO OVERSEAS POSSESSIONS. ITS PROVISIONS WITH RESPECT TO CUMULATIVE LEAVE FOR VISITING THE U.S. WERE NOT INTENDED TO APPLY TO OTHER THAN EMPLOYEES WHOSE ACTUAL AND NOT TECHNICAL, HOMES WERE IN THE U.S. ( DEC. J.A.G. JAN 8, 1937). THERE IS NO DIFFERENTIATION BETWEEN EMPLOYEES ACTUALLY TRANSFERRED FROM THE U.S. TO FOREIGN STATIONS AND THOSE APPOINTED LOCALLY WHOSE ACTUAL, AND NOT TECHNICAL, HOMES WERE IN THE U.S. ( DEC. SEC. OF WAR, AUG. 11, 1938). IS UNDERSTOOD THIS WAS THE ADMINISTRATIVE APPLICATION OF WAR DEPARTMENT CIRCULAR A DATED JANUARY 12, 1912, PRIOR TO JANUARY 1, 1936, EFFECTIVE DATE OF THE NEW LEAVE ACTS. IF SO, NO RIGHT TO TRAVEL TIME WAS SAVED TO THE EMPLOYEE MENTIONED IN SUBPARAGRAPH (C), AND, ACCORDINGLY, HE WOULD NOT BE ENTITLED THERETO, REGARDLESS OF WHETHER RETURN TO THE PHILIPPINES IS OR IS NOT CONTEMPLATED.