B-141444, SEPTEMBER 2, 1960, 40 COMP. GEN. 151

B-141444: Sep 2, 1960

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CIVILIAN PERSONNEL - OVERSEAS EMPLOYEES - HAWAII STATEHOOD EFFECT - LEAVE RIGHTS WHEN HAWAII WAS ADMITTED AS A STATE ON AUGUST 21. TO HOLD THAT THE SECTION WOULD APPLY ONLY IF HAWAII WAS A STATE AT THE TIME OF RECRUITMENT OR TRANSFER IS AN UNNECESSARILY NARROW CONSTRUCTION OF THE LAW. ALTHOUGH THE EMPLOYEES WERE REQUIRED TO EXECUTE NEW EMPLOYMENT AGREEMENTS OR AGREEMENT ADDENDUMS SOLELY TO ACQUIRE OVERSEAS LEAVE BENEFITS. SUCH AGREEMENTS FOR LEAVE PURPOSES ARE UNNECESSARY AND IN NO WAY AFFECT THE EMPLOYEES' TRAVEL OR TRANSPORTATION RIGHTS UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946. WERE RECRUITED IN THAT TERRITORY FOR PERMANENT ASSIGNMENTS ON GUAM. THE SPECIFIC QUESTIONS ARE AS FOLLOWS: A.

B-141444, SEPTEMBER 2, 1960, 40 COMP. GEN. 151

CIVILIAN PERSONNEL - OVERSEAS EMPLOYEES - HAWAII STATEHOOD EFFECT - LEAVE RIGHTS WHEN HAWAII WAS ADMITTED AS A STATE ON AUGUST 21, 1959, EMPLOYEES WHO PREVIOUSLY HAD BEEN RECRUITED OR TRANSFERRED FROM THAT TERRITORY FOR PERMANENT ASSIGNMENTS TO STATIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA BECAME AUTOMATICALLY ENTITLED TO THE 45-DAY ANNUAL LEAVE CEILING BENEFITS PROVIDED BY SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (D); TO HOLD THAT THE SECTION WOULD APPLY ONLY IF HAWAII WAS A STATE AT THE TIME OF RECRUITMENT OR TRANSFER IS AN UNNECESSARILY NARROW CONSTRUCTION OF THE LAW, AND, ALTHOUGH THE EMPLOYEES WERE REQUIRED TO EXECUTE NEW EMPLOYMENT AGREEMENTS OR AGREEMENT ADDENDUMS SOLELY TO ACQUIRE OVERSEAS LEAVE BENEFITS, SUCH AGREEMENTS FOR LEAVE PURPOSES ARE UNNECESSARY AND IN NO WAY AFFECT THE EMPLOYEES' TRAVEL OR TRANSPORTATION RIGHTS UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3.

TO THE SECRETARY OF THE NAVY, SEPTEMBER 2, 1960:

ON AUGUST 12, 1960, YOUR ASSISTANT SECRETARY PRESENTED TWO QUESTIONS CONCERNING THE LEAVE ACCUMULATION RIGHTS OF CERTAIN EMPLOYEES WHO, PRIOR TO THE ADMISSION OF HAWAII AS A STATE, WERE RECRUITED IN THAT TERRITORY FOR PERMANENT ASSIGNMENTS ON GUAM. WE UNDERSTAND THAT THE PERMANENT ASSIGNMENTS ON GUAM CONTINUED UNTIL AFTER THE ADMISSION OF HAWAII AS A STATE.

THE SPECIFIC QUESTIONS ARE AS FOLLOWS:

A. UNDER SECTION 7 OF THE ACT OF 2 AUGUST 1946, AS AMENDED, 5 U.S.C. 73 (B) 3, TWO TRANSPORTATION AGREEMENTS ARE PROVIDED: ONE AGREEMENT FOR EXPENSES OF TRAVEL AND TRANSPORTATION TO THE OVERSEAS STATION AND RETURN THEREFROM FOR PURPOSES OF SEPARATION, AND THE OTHER AGREEMENT FOR THE EXPENSES OF ROUND-TRIP TRAVEL FOR PURPOSES OF LEAVE PRIOR TO SERVING ANOTHER TOUR OF OVERSEAS DUTY. MUST THE AGREEMENT FOR CONTINUED SERVICE REFERRED TO ABOVE BE A NEW AGREEMENT FOR AN 18-MONTH TOUR OF DUTY ON GUAM, OR WILL A NEW AGREEMENT OR AN ADDENDUM TO THE OLD AGREEMENT WHICH WOULD READ AS FOLLOWS SUFFICE?

"WITH THE ADMISSION OF HAWAII AS A STATE, EFFECTIVE 21 AUGUST 1959, THE UNDERSIGNED WHO WAS RECRUITED FROM HAWAII PRIOR TO THAT DATE, AGREES TO CONTINUED SERVICE OUTSIDE THE SEVERAL STATES AND THEREBY BECOMES ELIGIBLE FOR THE BENEFITS OF SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AS AMENDED 5 U.S.C. 2062. THE LENGTH OF TOUR INDICATED IN MY CURRENT TRANSPORTATION AGREEMENT WILL NOT BE AFFECTED BY THIS SUPPLEMENTAL AGREEMENT.'

B. IF A NEW AGREEMENT IS REQUIRED, WHAT EFFECT DOES THE NEW AGREEMENT HAVE ON THE RIGHTS AND BENEFITS OF THE EMPLOYEE IN REGARD TO RETURN TRANSPORTATION UNDER THE AGREEMENT UNDER WHICH HE IS SERVING IMMEDIATELY PRIOR TO THE EXECUTION OF THE NEW AGREEMENT? SUPPOSE, FOR EXAMPLE, A RESIDENT OF THE TERRITORY OF HAWAII BEGAN AN 18-MONTH TOUR OF DUTY IN GUAM UNDER AN EMPLOYMENT AGREEMENT DATE 1 OCTOBER 1958. ON 1 FEBRUARY 1960 HE EXECUTED A NEW AGREEMENT FOR CONTINUED SERVICE IN GUAM AND THUS BECAME ELIGIBLE FOR 45-DAY MAXIMUM LEAVE ACCUMULATION. WHEN IS THIS EMPLOYEE ENTITLED TO RETURN TRANSPORTATION TO HAWAII FOR SEPARATION OR FOR ROUND- TRIP TRAVEL UNDER AN AGREEMENT FOR AN ADDITIONAL TOUR OF DUTY?

BOTH QUESTIONS ARISE BY REASON OF THE LANGUAGE APPEARING IN CIVIL SERVICE COMMISSION DEPARTMENT CIRCULAR NO. 1006, SUPPLEMENT 1, DECEMBER 25, 1959, WHICH IS QUOTED, IN PERTINENT PART, IN YOUR ASSISTANT SECRETARY'S LETTER AS FOLLOWS:

"AN EMPLOYEE WHO WAS RECRUITED IN HAWAII AND ENTERED ON DUTY PRIOR TO AUGUST 21, 1959, FOR SERVICE OUTSIDE THE SEVERAL STATES AND HAWAII DOES NOT AUTOMATICALLY BECOME ELIGIBLE FOR THE BENEFITS OF SECTION 203 (D) OF THE LEAVE ACT ON AUGUST 21, 1959. HOWEVER, IF HE EXECUTES AN EMPLOYMENT AGREEMENT ON OR AFTER AUGUST 21, 1959, FOR CONTINUED SERVICE "OUTSIDE THE SEVERAL STATES" (WHICH NOW INCLUDE HAWAII), HE IS CONSIDERED AS RECRUITED IN THE STATE OF HAWAII, AND HE IS ELIGIBLE FOR THE BENEFITS OF SECTION 203 (D) OF THE LEAVE ACT WITHOUT PHYSICAL RETURN TO HAWAII.

"SECTION 203 (E) OF THE LEAVE ACT WHICH PROVIDES FOR TRAVEL TIME FOR OVERSEAS EMPLOYEES IS BASED UPON THE APPLICATION OF SECTION 203 (D). ACCORDINGLY, AN EMPLOYEE IS ENTITLED TO TRAVEL TIME UNDER SECTION 203 (E) ONLY IF HE IS ENTITLED TO THE BENEFITS OF SECTION 203 (D).'

THE LEAVE ACCUMULATION RIGHTS OF EMPLOYEES STATIONED OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA ARE PROVIDED FOR BY SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062 (D), WHICH READS AS FOLLOWS:

(D) PERSONS EXCEPTED FROM MAXIMUM ACCUMULATED LEAVE UNDER SUBSECTION (C); MAXIMUM.

NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (C) OF THIS SECTION, A MAXIMUM ACCUMULATION NOT TO EXCEED FORTY-FIVE DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, IN ANY YEAR IS AUTHORIZED TO THE FOLLOWING CATEGORIES OF EMPLOYEES OF THE FEDERAL GOVERNMENT, OTHER THAN OFFICERS AND EMPLOYEES IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE, STATIONED OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA:

(1) PERSONS DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES BY THE FEDERAL GOVERNMENT.

(2) PERSONS EMPLOYED LOCALLY BUT (A) WHO WERE ORIGINALLY RECRUITED FROM THE UNITED STATES AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY OTHER FEDERAL AGENCIES, UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS, INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES, OR FOREIGN GOVERNMENTS, AND WHOSE CONDITIONS OF EMPLOYMENT PROVIDE FOR THEIR RETURN TRANSPORTATION TO THE UNITED STATES, OR (B) WHO WERE AT THE TIME OF EMPLOYMENT TEMPORARILY ABSENT FROM THE UNITED STATES FOR PURPOSES OF TRAVEL OR FORMAL STUDY AND MAINTAINED RESIDENCE IN THE UNITED STATES DURING SUCH TEMPORARY ABSENCE.

(3) PERSONS WHO ARE NOT NORMALLY RESIDENTS OF THE AREA CONCERNED AND WHO ARE DISCHARGED FROM THE MILITARY SERVICE OF THE UNITED STATES TO ACCEPT EMPLOYMENT WITH AN AGENCY OF THE FEDERAL GOVERNMENT.

WHILE NOT EXPRESSLY STATED IN YOUR ASSISTANT SECRETARY'S LETTER, WE ASSUME THAT NONE OF THE EMPLOYEES INVOLVED WAS ENTITLED TO THE 45-DAY LEAVE ACCUMULATION CEILING PRIOR TO THE DATE HAWAII WAS ADMITTED AS A STATE. HENCE, THE BASIC QUESTION APPEARS TO BE WHETHER THE ADMISSION OF HAWAII OPERATED AUTOMATICALLY TO EXTEND TO THEM THE ANNUAL LEAVE ACCUMULATION BENEFITS PROVIDED BY SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.

THERE IS NOTHING IN SECTION 203 (D) REQUIRING THAT AN EMPLOYEE EXECUTE AN EMPLOYMENT AGREEMENT FOR SERVICE OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA AS A CONDITION PRECEDENT TO HIS ENTITLEMENT TO ACCUMULATE ANNUAL LEAVE UP TO THE CEILING OF 45 DAYS AS PRESCRIBED IN THAT SECTION. THE QUESTION WHETHER OR NOT HE HAS EXECUTED SUCH AN AGREEMENT WOULD, IN OUR OPINION, HAVE NO BEARING UPON HIS RIGHTS UNDER THAT SECTION. IT FOLLOWS THAT WE DO NOT VIEW CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 1006 AS AFFECTING IN ANY WAY THE LEAVE ACCUMULATION RIGHTS OF THE EMPLOYEES IN QUESTION.

IT IS TRUE THAT AT THE TIME OF THEIR RECRUITMENT HAWAII WAS NOT A STATE AND THAT THEREFORE PRIOR TO HER ADMISSION AS A STATE THE EMPLOYEES INVOLVED WOULD NOT BE ENTITLED TO THE 45-DAY LEAVE CEILING UPON THE BASIS OF THEIR HAVING BEEN "DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES BY THE FEDERAL GOVERNMENT.' HOWEVER, UPON ADMISSION, HAWAII BECAME ONE OF THE SEVERAL STATES AND THERE IS NO DOUBT THAT THE EMPLOYEES INVOLVED WERE RECRUITED IN THE GEOGRAPHICAL AREA WHICH NOW IS THE STATE OF HAWAII. TO CONSTRUE SECTION 203 (D) (1), 5 U.S.C. 2062 (D) (1), OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AS APPLYING ONLY IF AT THE TIME OF RECRUITMENT HAWAII WAS, IN FACT, A STATE WOULD, IN OUR OPINION, CONSTITUTE AN UNNECESSARILY NARROW CONSTRUCTION OF THE PROVISION. WE THINK THE BETTER VIEW IS THAT AFTER HAWAII BECAME A STATE THE EMPLOYEES HERE INVOLVED WHO PREVIOUSLY HAD BEEN RECRUITED WITHIN OR TRANSFERRED FROM WITHIN HER BORDERS TO STATIONS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA WOULD BECOME ELIGIBLE FOR THE BENEFITS OF SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. THAT IS TO SAY, THE 45-DAY ANNUAL LEAVE CEILING THEREAFTER WOULD APPLY TO THEM. COMPARE OUR DECISIONS IN 38 COMP. GEN. 261 AND 38 COMP. GEN. 401. ALSO SEE 30 COMP. GEN. 251.

IT FOLLOWS THAT NEITHER A NEW AGREEMENT NOR AN ADDENDUM TO AN AGREEMENT ENTERED INTO UNDER SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3, WOULD BE REQUIRED BY THE EMPLOYEES INVOLVED TO ACQUIRE ELIGIBILITY FOR THE BENEFITS OF SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AND THAT IF, IN FACT, A NEW AGREEMENT OR ADDENDUM ALREADY HAS BEEN EXECUTED IN ACCORDANCE WITH THE CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 1006 SOLELY FOR THE PURPOSE OF ACQUIRING THE LEAVE ACCUMULATION BENEFITS OF SECTION 203 (D) IT IN NO WAY WOULD AFFECT OR DISTURB THE TRAVEL AND TRANSPORTATION RIGHTS OF EMPLOYEES UNDER AGREEMENTS ENTERED INTO PURSUANT TO SECTION 7 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 73B-3.