B-138919, JUNE 15, 1959, 38 COMP. GEN. 833

B-138919, JUNE 15, 1959, 38 COMP. GEN. 833

MILITARY PERSONNEL - PUBLIC HEALTH SERVICE OFFICERS - LEAVE - RECALL AFTER MANDATORY RETIREMENT A PUBLIC HEALTH SERVICE COMMISSIONED OFFICER WHO HAS 60 DAYS OF ACCRUED MANUAL LEAVE ON THE DATE OF MANDATORY RETIREMENT FOR AGE IN TIME OF PEACE BUT WHO IS IMMEDIATELY RECALLED TO ACTIVE DUTY DOES NOT COME WITHIN ANY OF THE EXCEPTIONS IN SECTION 219 (C) OF THE PUBLIC HEALTH SERVICE ACT, 42 U.S.C. 210-1 (C) PROHIBITING LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO (1) AN OFFICER WHOSE COMMISSION EXPIRES OR IS TERMINATED BUT WHO, WITHOUT A BREAK IN SERVICE, ACCEPTS A NEW COMMISSION, (2) AN OFFICER RETIRED FOR AGE IN TIME OF WAR BUT WHO IS CONTINUED ON OR RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN SERVICE, AND (3) AN OFFICER TRANSFERRED TO ANOTHER DEPARTMENT WHERE LEAVE IS TRANSFERABLE; AND, THEREFORE, TO DENY THE OFFICER A LUMP- SUM LEAVE PAYMENT ON RETIREMENT WHEN ACCRUED ANNUAL LEAVE DOES NOT SURVIVE RETIREMENT WOULD BE CONTRARY TO THE PURPOSE OF THE LUMP-SUM LEAVE PAYMENT PROVISIONS OF THE ACT.

TO F. N. HEARN, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, JUNE 15, 1959:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 4, 1959, FIN:FO, WITH ENCLOSURES, PRESENTING FOR DECISION A VOUCHER STATED IN FAVOR OF THOMAS A. FOSTER, PHARMACIST DIRECTOR, U.S. PUBLIC HEALTH SERVICE, IN THE NET AMOUNT OF $1,984.76, REPRESENTING A LUMP-SUM PAYMENT OF 60 DAYS' ANNUAL LEAVE ACCRUED ON THE DATE OF HIS RETIREMENT.

YOU SAY THAT MR. FOSTER RETIRED AT THE MANDATORY AGE OF 64 ON FEBRUARY 1, 1959, AND THAT HE WAS RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN SERVICE PURSUANT TO PERSONNEL ORDER NO. 3, DATED JANUARY 5, 1959, 42 U.S.C. 212 (C), UNDER THE PROVISIONS OF SECTION 211 (C) OF THE PUBLIC HEALTH SERVICE ACT. ACCOMPANYING YOUR LETTER IS MR. FOSTER'S APPLICATION FOR THE LUMP- SUM PAYMENT WHICH HAS BEEN APPROVED BY THE ACTING SURGEON GENERAL IN ACCORDANCE WITH THE PROVISIONS OF SECTION 219 (C) OF THE ACT, 42 U.S.C. 210-1 (C).

A LUMP-SUM LEAVE PAYMENT IS AUTHORIZED TO BE PAID TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE AS SET FORTH IN SECTION 219 OF THE PUBLIC HEALTH SERVICE ACT, AS ADDED BY SECTION 2 OF THE ACT OF AUGUST 9, 1950, 64 STAT. 426, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS (QUOTING FROM 42 U.S.C. 210-1):

(A) IN ACCORDANCE WITH REGULATIONS OF THE PRESIDENT, COMMISSIONED OFFICERS OF THE REGULAR CORPS AND OFFICES OF THE RESERVE CORPS ON ACTIVE DUTY MAY BE GRANTED ANNUAL LEAVE * * *

(C) * * * IF SUCH OFFICER IS CREDITED WITH UNUSED ACCUMULATED AND ACCRUED ANNUAL LEAVE ON THE DATE OF HIS SEPARATION, RETIREMENT, OR RELEASE FROM ACTIVE DUTY, HE SHALL, IN THE EVENT THAT HIS APPLICATION FOR SUCH LEAVE IS APPROVED BY THE SURGEON GENERAL, BE COMPENSATED FOR SUCH LEAVE IN A LUMP- SUM PAYMENT ON THE BASIS OF HIS BASIC PAY, HIS ALLOWANCE FOR SUBSISTENCE, AND THE ALLOWANCE FOR RENTAL OF QUARTERS WHETHER OR NOT HE IS RECEIVING SUCH ALLOWANCE ON SUCH DATE: PROVIDED, THAT THE NUMBER OF DAYS UPON WHICH SUCH LUMP-SUM PAYMENT MAY BE COMPUTED SHALL NOT EXCEED SIXTY DAYS: PROVIDED FURTHER, THAT NO LUMP SUM PAYMENT SHALL BE MADE FOR SUCH UNUSED LEAVE TO AN OFFICER WHOSE COMMISSION EXPIRES OR IS TERMINATED BUT WHO, WITHOUT A BREAK IN ACTIVE SERVICE, ACCEPTS A NEW COMMISSION, OR TO AN OFFICER WHO IS RETIRED FOR AGE IN TIME OF WAR BUT WHO IS CONTINUED ON OR RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN ACTIVE SERVICE, OR TO AN OFFICER WHO IS TRANSFERRED TO ANOTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT UNDER CIRCUMSTANCES WHERE, BY OTHER PROVISION OF LAW, SUCH LEAVE IS TRANSFERABLE.' ( ITALICS SUPPLIED.)

IN EXPRESSING DOUBT AS TO THE PROPRIETY OF THE PROPOSED PAYMENT, YOU REFER TO THE PROVISO PRECLUDING PAYMENT TO AN OFFICER RETIRED FOR AGE IN TIME OF WAR, ETC., AND YOU SAY THE LAW IS SILENT WITH RESPECT TO AN OFFICER WHO IS RETIRED FOR AGE IN TIME OF PEACE BUT WHO IS RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN SERVICE. YOU POINT OUT FURTHER THAT PAYMENT OF UNUSED ACCRUED LEAVE TO THE ESTATE OF AN OFFICER WHO DIES WHILE ON ACTIVE DUTY IS PROHIBITED.

THE LANGUAGE USED IN THE SECOND PROVISO OF SECTION 219 (C) IS SIMILAR IN SOME RESPECTS TO THE LANGUAGE IN SECTION 211 (C) OF THE PUBLIC HEALTH SERVICE ACT APPROVED JULY 1, 1944, AS AMENDED BY SECTION 521 OF THE CAREER COMPENSATION ACT OF 1949, 63 STAT. 834, 42 U.S.C. 212 (C). SECTION 211 (C) PROVIDES THAT " IN TIME OF WAR, A COMMISSIONED OFFICER WHO HAS BEEN RETIRED UNDER THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION MAY, IN ACCORDANCE WITH REGULATIONS OF THE PRESIDENT, BE RECALLED TO ACTIVE DUTY.' BEFORE THE ENACTMENT OF SECTION 219 THE PRESIDENT, UNDER THE PROVISIONS OF SECTION 209 (C) OF THE PUBLIC HEALTH SERVICE ACT OF 1944 (REDESIGNATED 208 (C) BY THE ACT OF FEBRUARY 28, 1948, 62 STAT. 40), 42 U.S.C. 210 (C) (1946 USED.) (, ALSO WAS AUTHORIZED TO PRESCRIBE REGULATIONS AUTHORIZING LEAVES OF ABSENCE FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. AND UNDER THE REGULATIONS THEN IN EFFECT, 42 C.F.R. 21.85, 1949 EDITION, ANNUAL LEAVE ACCRUED AND ACCUMULATED BUT NOT TAKEN SURVIVED THE EXPIRATION, TERMINATION, OR INACTIVATION OF A COMMISSION, OR RETIREMENT, ONLY IN THE CASES OF AN OFFICER WHOSE COMMISSION EXPIRED OR WAS TERMINATED BUT WHO, WITHOUT A BREAK IN ACTIVE SERVICE, ACCEPTED A NEW COMMISSION, AND AN OFFICER WHO WAS RETIRED FOR AGE IN TIME OF WAR BUT WHO WAS CONTINUED ON OR WAS RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN ACTIVE SERVICE.

THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THE ACT OF AUGUST 9, 1950, 42 U.S.C. 210, TO SHOW WHY THE PROHIBITION AGAINST PAYMENT TO RETIRED OFFICERS CONTINUED ON ACTIVE DUTY WAS RESTRICTED TO ,IN TIME OF WAR" RETIREMENTS. THE FACT, HOWEVER, THAT, AT THE TIME OF ENACTMENT OF THE 1950 ACT, ONLY COMMISSIONED OFFICERS RETIRED FOR AGE COULD BE RECALLED TO ACTIVE DUTY IN TIME OF WAR AND WERE AUTHORIZED TO CARRY THEIR LEAVE FORWARD TO THEIR NEW STATUS, INDICATES THAT THE PROHIBITION AGAINST THE PAYMENT OF LUMP-SUM LEAVE UPON RETIREMENT WAS RESTRICTED TO OFFICERS IN THAT CATEGORY. SINCE THE LEAVE DID NOT SURVIVE RETIREMENT IN OTHER RETIREMENT CASES A PROHIBITION AGAINST PAYMENT IN SUCH OTHER CASES COULD HAVE WORKED A LEAVE FORFEITURE, A RESULT OBVIOUSLY NOT INTENDED BY THE ENACTMENT OF SECTION 219.

SECTION 211 (C) OF THE 1944 ACT (42 U.S.C. 212 (C) ( WAS AMENDED BY SECTION 5 (C) OF THE ACT OF APRIL 27, 1956, 70 STAT. 116, 117, AND NOW PROVIDES THAT A COMMISSIONED OFFICER WHO HAS BEEN RETIRED FOR AGE MAY, (1) IF AN OFFICER OF THE REGULAR CORPS, BE INVOLUNTARILY RECALLED TO ACTIVE DUTY DURING SUCH TIMES AS THE CORPS MAY CONSTITUTE A BRANCH OF THE LAND AND NAVAL FORCES OF THE UNITED STATES, AND (2) IF AN OFFICER OF EITHER THE REGULAR CORPS OR THE RESERVE CORPS, BE RECALLED TO ACTIVE DUTY AT ANY TIME WITH HIS CONSENT. NO ACTION WAS TAKEN, HOWEVER, EITHER BY LAW OR STATUTORY REGULATION TO PROVIDE FOR A CARRY-OVER OF LEAVE AFTER RETIREMENT IN CASES OF RECALL NOT IN TIME OF WAR AND IT IS SETTLED THAT LEAVE EARNED BY OFFICERS ON THE ACTIVE LIST DOES NOT SURVIVE RETIREMENT IN THE ABSENCE OF SOME AUTHORITY SO PROVIDING. SEE 24 COMP. GEN. 291. HENCE, WHILE THE PROVISIONS OF 42 C.F.R. 21.85 DO NOT APPEAR TO HAVE BEEN CARRIED FORWARD IN THE CUMULATIVE POCKET SUPPLEMENT TO THE CODE OF FEDERAL REGULATIONS, EFFECTIVE JANUARY 1, 1958, THE RULE SET OUT IN THOSE REGULATIONS REGARDING NONSURVIVAL OF LEAVE STILL APPLIES EXCEPT AS OTHERWISE PROVIDED OR IMPLIED BY THE PROVISIONS OF SECTION 219.

THE LEGISLATIVE HISTORY OF SECTION 219 (C) OF THE ACT OF AUGUST 9, 1950, SHOWS THAT CONGRESS INTENDED TO CONFER UPON COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE SUBSTANTIALLY THE SAME LUMP-SUM LEAVE PAYMENT BENEFITS AS WERE PROVIDED FOR MEMBERS OF THE ARMED FORCES UNDER THE PROVISIONS OF THE ARMED FORCES LEAVE ACT OF 1946, 37 U.S.C. 32-37. THE PROVISIONS OF SECTION 219 ARE DIFFERENT, HOWEVER, IN THAT THE LEAVE RIGHTS OF PUBLIC HEALTH SERVICE OFFICERS ARE LEFT LARGELY TO PRESIDENTIAL REGULATIONS AND NO PROVISION IS MADE FOR A CARRY-OVER OF LEAVE EXCEPT AS CONTEMPLATED BY THE EXCEPTIONS CONTAINED IN THE SECOND PROVISO OF SECTION 219 (C). DECISIONS SUCH AS 30 COMP. GEN. 326 CONSTRUING THE LUMP-SUM LEAVE PAYMENT PROVISIONS OF THE ARMED FORCES LEAVE ACT ARE NOT FOR APPLICATION IN PUBLIC HEALTH SERVICE LEAVE CASES WHERE THE DIFFERENT STATUTORY PROVISIONS REQUIRE A DIFFERENT RESULT.

UNDER THE PLAIN TERMS OF SECTION 219 (C), AN OFFICER OF THE PUBLIC HEALTH SERVICE IS ENTITLED TO BE COMPENSATED FOR UNUSED, ACCUMULATED, AND ACCRUED ANNUAL LEAVE (NOT TO EXCEED 60 DAYS) STANDING TO HIS CREDIT "ON THE DATE OF * * * RETIREMENT * * *.' THE LUMP-SUM PAYMENT IS PROHIBITED AT THAT TIME ONLY IF THE OFFICER FALLS WITHIN ONE OF THE THREE CATEGORIES DESCRIBED IN THE SECOND PROVISO OF SECTION 219 (C), NAMELY, (1) AN OFFICER WHOSE COMMISSION EXPIRES OR IS TERMINATED BUT WHO, WITHOUT A BREAK IN ACTIVE SERVICE, ACCEPTS A NEW COMMISSION, (2) AN OFFICER WHO IS RETIRED FOR AGE IN TIME OF WAR BUT WHO IS CONTINUED ON OR RECALLED TO ACTIVE DUTY WITHOUT A BREAK IN ACTIVE SERVICE, AND (3) AN OFFICER WHO IS TRANSFERRED TO ANOTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT UNDER CIRCUMSTANCES WHERE, BY OTHER PROVISION OF LAW, SUCH LEAVE IS TRANSFERABLE. MR. FOSTER'S CASE DOES NOT COME WITHIN THE THREE EXCEPTIONS AND WE BELIEVE IT WOULD BE CONTRARY TO THE INTENT AND PURPOSE OF THE LUMP-SUM LEAVE PAYMENT PROVISIONS TO DENY HIM SUCH A LUMP-SUM PAYMENT UPON RETIREMENT WHEN HIS ACCRUED ANNUAL LEAVE DOES NOT SURVIVE RETIREMENT AND, THEREFORE, HE CANNOT BE PAID FOR SUCH LEAVE UPON ULTIMATE RELEASE FROM ACTIVE DUTY.

MR. FOSTER WAS ENTITLED TO THE LUMP-SUM LEAVE PAYMENT AUTHORIZED IN HIS CASE ON FEBRUARY 1, 1959, THE DATE OF HIS RETIREMENT. PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH, IS AUTHORIZED IF OTHERWISE CORRECT.