B-131356, DECEMBER 23, 1957, 37 COMP. GEN. 429
Highlights
OVERSEAS EMPLOYEES - LEAVES OF ABSENCE - TRAVEL TIME - HOME LEAVE - INITIAL AND SUBSEQUENT PERIODS OF ELIGIBILITY ALTHOUGH THE INITIAL FREE TRAVEL TIME WHICH OVERSEAS EMPLOYEES ARE ENTITLED TO INCIDENT TO HOME LEAVE MAY BE GRANTED AT ANY TIME DURING THE PERIOD OF OVERSEAS SERVICE. THE ASSISTANT SECRETARY SAYS THAT HAD THE STATUTE INTENDED THAT COMPLETION OF A FULL 24 MONTHS OF SERVICE WOULD BE REQUIRED FOR SUBSEQUENT TOURS OVERSEAS THE WORDING WOULD HAVE SPECIFIED THAT IT WOULD BE EARNED ON COMPLETION OF 24 MONTHS OF SERVICE RATHER THAN "IN ANY TWENTY-FOUR MONTH PERIOD.'. THAT IT WAS THE INTENT OF CONGRESS THAT EMPLOYEES OVERSEAS BE ENTITLED TO LEAVE-FREE TRAVEL TIME ONCE DURING EACH TWO-YEAR PERIOD AND THAT THE SELECTION OF THE ACTUAL TIME BE A MATTER OF ADMINISTRATIVE DISCRETION AS WITH THE GRANTING OF ANNUAL LEAVE.
B-131356, DECEMBER 23, 1957, 37 COMP. GEN. 429
OVERSEAS EMPLOYEES - LEAVES OF ABSENCE - TRAVEL TIME - HOME LEAVE - INITIAL AND SUBSEQUENT PERIODS OF ELIGIBILITY ALTHOUGH THE INITIAL FREE TRAVEL TIME WHICH OVERSEAS EMPLOYEES ARE ENTITLED TO INCIDENT TO HOME LEAVE MAY BE GRANTED AT ANY TIME DURING THE PERIOD OF OVERSEAS SERVICE, THE SECOND AND SUBSEQUENT FREE TRAVEL TIME PERIODS MAY NOT BE GRANTED UNTIL AFTER THE EXPIRATION OF 24 MONTHS FROM THE DATE OF THE EMPLOYEES' RETURN OVERSEAS AFTER EACH PERIOD OF HOME LEAVE.
TO THE SECRETARY OF DEFENSE, DECEMBER 23, 1957:
ON OCTOBER 31, 1957, THE ASSISTANT SECRETARY OF DEFENSE REQUESTED THAT WE RECONSIDER OUR DECISION OF APRIL 17, 1957, B-131356, 36 COMP. GEN. 722. IN THAT DECISION WE INTERPRETED THE PHRASE "THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY WITH RESPECT TO MORE THAN ONE PERIOD OF LEAVE IN ANY TWENTY-FOUR MONTH PERIOD," CONTAINED IN SECTION 203 (E) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PUBLIC LAW 233, 82ND CONGRESS, 65 STAT. 680, 50 U.S.C. 2062 (E), TO MEAN THAT AN OVERSEAS EMPLOYEE DOES NOT AGAIN ACQUIRE FREE TRAVEL TIME ELIGIBILITY INCIDENT TO LEAVE UNTIL AFTER THE EXPIRATION OF A 24-MONTH PERIOD FROM THE DATE OF HIS RETURN OVERSEAS AFTER A PERIOD OF SUCH LEAVE.
THE ASSISTANT SECRETARY SAYS THAT THE REFERENCE TO ONE PERIOD OF LEAVE "IN ANY TWENTY-FOUR MONTH PERIOD" IN PUBLIC LAW 233, AND IN OUR DECISION OF APRIL 17, 1957, AND IN SUBSEQUENT INFORMAL DISCUSSIONS WITH REPRESENTATIVES OF OUR OFFICE WOULD INDICATE THAT FOR THE INITIAL PERIOD OF SERVICE OVERSEAS THE EMPLOYEE WOULD NOT BE REQUIRED TO SERVE A FULL 24- MONTH PERIOD BEFORE BEING ENTITLED TO FREE TRAVEL TIME FOR LEAVE PURPOSES. THE ASSISTANT SECRETARY SAYS THAT HAD THE STATUTE INTENDED THAT COMPLETION OF A FULL 24 MONTHS OF SERVICE WOULD BE REQUIRED FOR SUBSEQUENT TOURS OVERSEAS THE WORDING WOULD HAVE SPECIFIED THAT IT WOULD BE EARNED ON COMPLETION OF 24 MONTHS OF SERVICE RATHER THAN "IN ANY TWENTY-FOUR MONTH PERIOD.' THE ASSISTANT SECRETARY ALSO SAYS THAT THE USE OF THE WORD "IN" WOULD INDICATE, IN THE ABSENCE OF ANY FURTHER QUALIFICATION, THAT IT WAS THE INTENT OF CONGRESS THAT EMPLOYEES OVERSEAS BE ENTITLED TO LEAVE-FREE TRAVEL TIME ONCE DURING EACH TWO-YEAR PERIOD AND THAT THE SELECTION OF THE ACTUAL TIME BE A MATTER OF ADMINISTRATIVE DISCRETION AS WITH THE GRANTING OF ANNUAL LEAVE.
SECTION 203 (E) OF PUBLIC LAW 233, PROVIDES AS FOLLOWS:
(E) WHERE AN OFFICER OR EMPLOYEE TO WHOM THE PROVISIONS OF SUBSECTION (D) ARE APPLICABLE, OR WHO IS IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE, AND WHOSE POST OF DUTY IS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA RETURNS TO ANY SUCH STATE OR THE DISTRICT OF COLUMBIA ON LEAVE, THE LEAVE GRANTED PURSUANT TO THIS ACT SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN AWAITING SAILING OR FLIGHT. THE PROVISIONS ON THIS SUBSECTION SHALL NOT APPLY WITH RESPECT TO MORE THAN ONE PERIOD OF LEAVE IN ANY TWENTY-FOUR MONTH PERIOD.
OUR DECISION OF APRIL 17 WAS PREDICATED UPON THE CONCEPT THAT ONCE AN EMPLOYEE HAS UTILIZED THE FREE TRAVEL TIME ALLOWED BY SECTION 203 (E) HE DOES NOT AGAIN ACQUIRE THE RIGHT INCIDENT TO ANOTHER PERIOD OF LEAVE UNTIL 24 MONTHS HAS ELAPSED FROM THE DATE OF HIS RETURN OVERSEAS. TO HOLD OTHERWISE WOULD PERMIT VIOLATION OF THE SPECIFIC TERMS OF THE STATUTE LIMITING THE FREE TRAVEL TIME WITH RESPECT TO "NOT * * * MORE THAN ONE PERIOD OF LEAVE" IN "ANY" 24-MONTH PERIOD. THE STATUTE, HOWEVER, DOES NOT REQUIRE THE EMPLOYEE TO COMPLETE 24 MONTHS DUTY OVERSEAS BEFORE HE MAY BE GRANTED THE INITIAL PERIOD OF FREE TRAVEL TIME INCIDENT TO A PERIOD OF LEAVE. THEREFORE, WE HOLD THAT THE INITIAL FREE TRAVEL TIME MAY BE GRANTED AT ANY TIME DURING THE PERIOD OF OVERSEAS SERVICE. WE SEE NO BASIS, HOWEVER, FOR CHANGING THE CONCLUSION IN OUR DECISION OF APRIL 17 THAT THE EMPLOYEE DOES NOT AGAIN ACQUIRE FREE TRAVEL TIME ELIGIBILITY INCIDENT TO A PERIOD OF LEAVE UNTIL AFTER THE EXPIRATION OF 24 MONTHS FROM THE DATE OF HIS RETURN OVERSEAS AFTER A PERIOD OF LEAVE INCIDENT TO WHICH HE WAS ALLOWED FREE TRAVEL TIME.