B-141607, JANUARY 26, 1960, 39 COMP. GEN. 543

B-141607, JANUARY 26, 1960, 39 COMP. GEN. 543

CIVILIAN PERSONNEL - OVERSEAS - VETERANS ADMINISTRATION EMPLOYEES IN REPUBLIC OF PHILIPPINES - HOME LEAVE THE ACT OF JULY 28, 1959, 38 U.S.C. 235, WHICH GRANTED TO VETERANS ADMINISTRATION EMPLOYEES, WHO ARE UNITED STATES CITIZENS EMPLOYED IN THE REPUBLIC OF THE PHILIPPINES, CERTAIN BENEFITS ACCORDED FOREIGN SERVICE PERSONNEL MUST BE APPLIED PROSPECTIVELY, IN THE ABSENCE OF EXPRESS OR IMPLIED LANGUAGE REQUIRED FOR A RETROACTIVE CONSTRUCTION, SO THAT CREDITABLE SERVICE FOR HOME LEAVE BEGINS TO ACCRUE FOR SUCH EMPLOYEES ON JULY 28, 1959, AND SUCH LEAVE SHOULD BE RECORDED AND AVAILABLE FOR USE WITHOUT LIMITATION PURSUANT TO 5 U.S.C. 2062F, BUT NO LUMP-SUM PAYMENT IS AUTHORIZED FOR ANY UNUSED HOME LEAVE.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JANUARY 26, 1960:

THIS REFERS TO LETTER OF DECEMBER 30, 1959, FILE 1052, FROM YOUR DEPUTY ADMINISTRATOR REQUESTING OUR DECISION ON CERTAIN QUESTIONS (PARAGRAPH BELOW) CONCERNING LEAVE RIGHTS AND BENEFITS PROVIDED BY THE ACT OF JULY 28, 1959 ( PUBLIC LAW 86-116), 73 STAT. 265, 38 U.S.C. 235, FOR PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE UNITED STATES CITIZENS EMPLOYED IN THE REPUBLIC OF THE PHILIPPINES.

SECTIONS 1 (A) (7) AND 1 (B) OF THE ABOVE-CITED ACT, PROVIDE, AS FOLLOWS:

(A) THE ADMINISTRATOR, MAY, UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT OR HIS DESIGNEE, PROVIDE TO PERSONNEL OF THE VETERANS' ADMINISTRATION WHO ARE UNITED STATES CITIZENS AND ARE ASSIGNED BY THE ADMINISTRATOR TO THE VETERANS ADMINISTRATION OFFICE IN THE REPUBLIC OF THE PHILIPPINES, ALLOWANCES AND BENEFITS SIMILAR TO THOSE PROVIDED BY THE FOLLOWING SECTIONS OF THE FOREIGN SERVICE ACT OF 1946:

(7) SECTION 933 (RELATING TO THE RETURN OF PERSONNEL TO THE UNITED STATES ON LEAVES OF ABSENCE).

(B) PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE UNITED STATES CITIZENS AND ARE ASSIGNED TO THE REPUBLIC OF THE PHILIPPINES BY THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY BE GRANTED LEAVES OF ABSENCE IN THE UNITED STATES, BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, SIMILAR TO THAT PROVIDED BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 (5 U.S.C. 2061 (F) ( (5 U.S.C. 2062 (F) ).

TITLE 5 U.S.C. 2062 (F) READS AS FOLLOWS:

OFFICERS AND EMPLOYEES IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE MAY BE GRANTED LEAVE OF ABSENCE, WITHOUT REGARD TO ANY OTHER LEAVE PROVIDED BY THIS CHAPTER, FOR USE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, AT A RATE EQUIVALENT TO ONE WEEK FOR EACH FOUR MONTHS OF SERVICE OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA. SUCH LEAVE MAY BE ACCUMULATED FOR FUTURE USE WITHOUT REGARD TO THE LIMITATION IN SUBSECTION (C) OF THIS SECTION BUT NO SUCH LEAVE WHICH IS NOT USED SHALL BE MADE THE BASIS FOR ANY TERMINAL LEAVE OR LUMP SUM PAYMENT.

THE QUESTIONS (AS PARAPHRASED) ARE:

1. ARE WE CORRECT IN ASSUMING THAT "CREDITABLE SERVICE" AS THAT TERM IS USED IN 5 U.S.C. 2062 (F) REFERS TO ANY OVERSEAS SERVICE IN THE EMPLOY OF THE VETERANS ADMINISTRATION, REGARDLESS OF WHETHER IT MAY HAVE BEEN PERFORMED PRIOR OR SUBSEQUENT TO JULY 28, 1959, THE EFFECTIVE DATE OF THE ACT CITED IN PARAGRAPH 1 ABOVE?

2. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, ARE WE NOT ALSO CORRECT IN ASSUMING THAT THE PERMISSIVE AUTHORITY OF THE ADMINISTRATOR TO GRANT OR NOT TO GRANT SUCH "HOME LEAVE," EXTENDS TO DETERMINING WHICH PORTIONS OF THE SERVICE RENDERED, BOTH PRIOR AND SUBSEQUENT TO EFFECTIVE DATE OF THE ACT, MAY BE ACCEPTED AS CREDITABLE?

3. IF THE ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, WHAT HOME LEAVE RIGHTS OR LUMP-SUM PAYMENTS IN LIEU THEREOF ACCRUE TO EMPLOYEES ON DUTY IN MANILA AT THE TIME THE ACT WAS APPROVED JULY 28, 1959), WHO HAVE SINCE RETURNED TO THE UNITED STATES?

THE DEPUTY ADMINISTRATOR SAYS THAT A NORMAL OVERSEAS TOUR FOR EMPLOYEES OF YOUR ADMINISTRATION IS TWO YEARS. WE NOTE, ALSO, THAT YOUR AGENCY PROPOSES TO ALLOW CREDIT FOR PRIOR SERVICE ONLY FROM THE BEGINNING OF THE CURRENT TOUR OF OVERSEAS DUTY AND IN NO EVENT PRIOR TO JULY 28, 1957, AND FURTHER PROPOSES TO LIMIT THE MAXIMUM CREDIT "TO TWELVE UNITS OF SERVICE FOR ANY TOUR OR SERIES OF TOURS," THEREBY RESTRICTING THE AMOUNT OF HOME LEAVE THAT AN APPLICABLE EMPLOYEE MAY ACCUMULATE TO 60 DAYS (TWELVE UNITS OF FIVE LEAVE DAYS EACH).

THE PROVISIONS OF THE ANNUAL AND SICK ACT OF 1951, AS AMENDED (5 U.S.C. 2061-2066), ARE APPLICABLE TO ALL UNITED STATES CITIZENS EMPLOYED BY YOUR AGENCY IN THE REPUBLIC OF THE PHILIPPINES, EXCEPT THOSE SPECIFICALLY EXCLUDED THEREFROM SINCE THE BEGINNING OF THE LEAVE YEAR 1953. THEREFORE, ALL EMPLOYEES FALLING WITHIN THE SCOPE OF THE 1951 ACT WHO WERE ASSIGNED TO THE REPUBLIC OF THE PHILIPPINES PRIOR TO JULY 28, 1959, ACCRUED ANNUAL AND SICK LEAVE AS THEREIN AUTHORIZED FOR SERVICES RENDERED UP TO AND INCLUDING JULY 27, 1959. ALSO, WE DIRECT YOUR ATTENTION TO THE ADMINISTRATIVE EXPENSES ACT OF 1946, AS AMENDED (5 U.S.C. 73B-3), WHICH CONTAINS AUTHORIZATION, WHEN OTHERWISE PROPER, FOR ROUND-TRIP TRAVEL AT GOVERNMENT EXPENSE OF FEDERAL CIVILIAN EMPLOYEES FROM THEIR POST OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES TO PLACES OF ACTUAL RESIDENCE AT TIME OF APPOINTMENT, FOR THE PURPOSES OF TAKING LEAVE PRIOR TO SERVING ANOTHER TOUR OF DUTY AT THE SAME OR SOME OTHER OVERSEAS POST. SEE EXECUTIVE ORDER NO. 9805, AS AMENDED, INCLUDING BUREAU OF THE BUDGET CIRCULAR NO. A-4, DATED MAY 2, 1955.

THE GENERAL RULE IS THAT STATUTES ARE CONSTRUED TO APPLY PROSPECTIVELY UNLESS A RETROACTIVE CONSTRUCTION IS REQUIRED BY EXPRESS LANGUAGE OR BY NECESSARY IMPLICATION. CONSEQUENTLY, SINCE NO SUCH LANGUAGE EITHER EXPRESS OR IMPLIED APPEARS IN THE ACT OF JULY 28, 1959, THE BENEFITS PROVIDED BY THAT ACT INCLUDING THE "HOME LEAVE" RIGHTS AUTHORIZED BY SECTIONS 1 (A) (7) AND 1 (B/--- 22 U.S.C. 1148 AND 5 U.S.C. 2062 (F), ARE EFFECTIVE ON AND AFTER JULY 28, 1959.

THE CIVIL SERVICE COMMISSION IS VESTED WITH AUTHORITY TO PRESCRIBE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO ADMINISTER THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. 2065). SEE TITLE 5, PART 30, CODE OF FEDERAL REGULATIONS. PERTINENT SECTIONS FROM (5 CFR) ARE QUOTED BELOW FOR YOUR INFORMATION:

30.601 HOME LEAVE. THE LEAVE PROVIDED FOR IN SUBSECTION 203 (F) OF THE ACT SHALL BE DESIGNATED AS "HOME LEAVE.'

30.602 CREDITABLE SERVICE FOR HOME LEAVE. CREDITABLE SERVICE FOR PURPOSE OF ACCRUING HOME LEAVE SHALL INCLUDE THE PERIOD BETWEEN THE DATE OF THE EMPLOYEE'S ARRIVAL AT A POST OF DUTY OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA TO WHICH HE IS TRANSFERRED OR ASSIGNED AND THE DATE OF HIS DEPARTURE FROM ANY SUCH POST TO RETURN BY TRANSFER OR ASSIGNMENT TO A POST OF DUTY WITHIN THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA.

30.803 RESPONSIBILITY FOR ADMINISTRATION. THE HEADS OF AGENCIES TO WHICH THIS PART APPLIES SHALL BE RESPONSIBLE FOR THE PROPER ADMINISTRATION OF THIS PART SO FAR AS IT PERTAINS TO EMPLOYEES UNDER THEIR RESPECTIVE JURISDICTIONS, AND THEY SHALL MAINTAIN AN ACCOUNT OF LEAVE FOR EACH EMPLOYEE IN ACCORDANCE WITH METHODS PRESCRIBED BY THE GENERAL ACCOUNTING OFFICE.

ON THE BASIS OF THE ABOVE-MENTIONED STATUTORY PROVISIONS AND THE APPLICABLE LEAVE REGULATIONS IN EFFECT PRIOR TO JULY 28, 1959, OUR VIEW IS THAT CREDITABLE SERVICE FOR THE PURPOSE OF HOME LEAVE (AS DISTINGUISHED FROM ANNUAL LEAVE) AUTHORIZED BY THE ACT OF JULY 28, 1959, COMMENCED TO ACCRUE FOR EMPLOYEES OF YOUR AGENCY OTHERWISE ELIGIBLE THERETO ON JULY 28, 1959.

HOME LEAVE ACCUMULATES UNDER THE STATUTE, PUBLIC LAW 86-116, WITHOUT LIMITATION AND SHALL BE RECORDED AND AVAILABLE FOR FUTURE USE. NO LUMP SUM LEAVE PAYMENT IS AUTHORIZED FOR UNUSED HOME LEAVE. HOWEVER, THE RECENT ENACTMENT DOES NOT AFFECT LUMP-SUM LEAVE PAYMENTS OTHERWISE DUE UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 848, AS AMENDED, 5 U.S.C. 61B.