B-157398, SEPT. 24, 1965, 45 COMP. GEN. 166

B-157398: Sep 24, 1965

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LEAVES OF ABSENCE - HOME LEAVE TRAVEL OF OVERSEAS EMPLOYEE - MILITARY SERVICE CREDIT A CIVILIAN EMPLOYEE ON THE BASIS OF 2 YEARS OF MILITARY SERVICE PERFORMED DURING AN ASSIGNMENT IN PUERTO RICO IS NOT ENTITLED TO THE HOME LEAVE AUTHORIZED IN 5 U.S.C. 2062 (F) FOR AN EMPLOYEE COMPLETING 24 MONTHS OF CONTINUOUS SERVICE OVERSEAS. " OR ANY OTHER EXTENDED PERIOD OF SERVICE THAT IS UNRELATED TO EARNING HOME LEAVE. ITS INTENDED MEANING WILL BE CLARIFIED. WE NOTE THAT YOU ARE ASKING THE QUESTION AT THIS TIME RATHER THAN ON THE VOUCHER WHICH WOULD PAY FOR THE HOME LEAVE SINCE TO GRANT SUCH LEAVE AND THEN BE ADVISED THAT IT WAS IMPROPER WOULD PRESENT OBVIOUS PROBLEMS. 5 U.S.C. 2062 (F). IF THEIR RESPECTIVE PLACES OF RESIDENCE ARE OUTSIDE THE AREA OF EMPLOYMENT.

B-157398, SEPT. 24, 1965, 45 COMP. GEN. 166

LEAVES OF ABSENCE - HOME LEAVE TRAVEL OF OVERSEAS EMPLOYEE - MILITARY SERVICE CREDIT A CIVILIAN EMPLOYEE ON THE BASIS OF 2 YEARS OF MILITARY SERVICE PERFORMED DURING AN ASSIGNMENT IN PUERTO RICO IS NOT ENTITLED TO THE HOME LEAVE AUTHORIZED IN 5 U.S.C. 2062 (F) FOR AN EMPLOYEE COMPLETING 24 MONTHS OF CONTINUOUS SERVICE OVERSEAS, ABSENT AN INDICATION IN THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, AND ITS LEGISLATIVE HISTORY THAT LEAVE ACCRUES DURING A TOUR OF MILITARY DUTY NOT OTHERWISE COVERED BY MILITARY OR ANNUAL LEAVE, AND THE REFERENCE TO "MILITARY SERVICE" AS SERVICE ABROAD IN THE CIVIL SERVICE REGULATIONS IMPLEMENTING SECTION 2062 (F) HAVING AS ITS PURPOSE THE PREVENTION OF AN INTERRUPTION IN THE REQUIREMENT FOR "24 MONTHS CONTINUOUS SERVICE ABROAD," OR ANY OTHER EXTENDED PERIOD OF SERVICE THAT IS UNRELATED TO EARNING HOME LEAVE, ITS INTENDED MEANING WILL BE CLARIFIED.

TO MAURICE F. ROW, UNITED STATES DEPARTMENT OF JUSTICE, SEPTEMBER 24, 1965:

YOUR LETTER OF AUGUST 3, 1965, POINTS OUT THAT AN EMPLOYEE WHO HAS BEEN ASSIGNED TO THE SAN JUAN, PUERTO RICO, OFFICE SINCE JULY 6, 1961, PERFORMED MILITARY DUTY FROM APRIL 9, 1963, AND RETURNED TO HIS POSITION ON MAY 14, 1965, IMMEDIATELY UPON COMPLETION OF SUCH MILITARY SERVICE. YOU ASK WHETHER HE WOULD EARN HOME LEAVE WHILE IN THE MILITARY SERVICE.

WE NOTE THAT YOU ARE ASKING THE QUESTION AT THIS TIME RATHER THAN ON THE VOUCHER WHICH WOULD PAY FOR THE HOME LEAVE SINCE TO GRANT SUCH LEAVE AND THEN BE ADVISED THAT IT WAS IMPROPER WOULD PRESENT OBVIOUS PROBLEMS.

5 U.S.C. 2062 (F), READS, IN PERTINENT PART, AS FOLLOWS:

* * * UPON COMPLETION OF 24 MONTHS OF CONTINUOUS SERVICE OUTSIDE THE UNITED STATES, OFFICERS AND EMPLOYEES MAY BE GRANTED, IN ACCORDANCE WITH REGULATIONS OF THE PRESIDENT, LEAVE OF ABSENCE AT A RATE NOT TO EXCEED 1 WEEK FOR EACH 4 MONTHS OF SUCH SERVICE WITHOUT REGARD TO ANY OTHER LEAVE PROVIDED BY THIS TITLE, FOR USE IN THE UNITED STATES, OR, IF THEIR RESPECTIVE PLACES OF RESIDENCE ARE OUTSIDE THE AREA OF EMPLOYMENT, IN THE COMMONWEALTH OF PUERTO RICO OR THE POSSESSIONS OF THE UNITED STATES.

EXECUTIVE ORDER NO. 10530 DATED MAY 10, 1954, AS AMENDED BY EXECUTIVE ORDER NO. 10903 DATED JANUARY 9, 1961, READS, IN PERTINENT PART, AS FOLLOWS:

SECTION 2. THE UNITED STATES CIVIL SERVICE COMMISSION IS HEREBY DESIGNATED AND EMPOWERED TO PERFORM THE FOLLOWING DESCRIBED FUNCTIONS WITHOUT THE APPROVAL, RATIFICATION, OR OTHER ACTION OF THE PRESIDENT:

(E) THE AUTHORITY VESTED IN THE PRESIDENT BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (65 STAT. 680; 74 STAT. 799- 800; 5 U.S.C. 2062 (F) (, TO PRESCRIBE REGULATIONS GOVERNING THE GRANTING OF LEAVE OF ABSENCE AS THEREIN DESCRIBED.

THE CIVIL SERVICE COMMISSION HAS ISSUED REGULATIONS CONCERNING HOME LEAVE, IN PERTINENT PART, AS FOLLOWS:

SEC. 630.601. "/C) SERVICE ABROAD MEANS SERVICE ... BY AN EMPLOYEE AT A POST OF DUTY OUTSIDE THE UNITED STATES AND OUTSIDE THE EMPLOYEE'S PLACE OF RESIDENCE IF HIS PLACE OF RESIDENCE IS IN THE COMMONWEALTH OF PUERTO RICO OR A POSSESSION OF THE UNITED STATES.'

SEC. 630.603. "FOR THE PURPOSE OF THIS SUBPART, SERVICE ABROAD: (C) INCLUDES ... (3) TIME SPENT IN THE ARMED FORCES OF THE UNITED STATES WHICH INTERRUPTS SERVICE ABROAD....'

SEC. 630.605. "/A) FOR EACH MONTH OF SERVICE ABROAD, AN EMPLOYEE EARNS HOME LEAVE ... IN THE AMOUNTS SET FORTH IN THE FOLLOWING TABLE: ...'

WE HAVE OBTAINED THE VIEWS OF THE CIVIL SERVICE COMMISSION AS TO THE INTENT OF THE ABOVE REGULATIONS WHICH ARE AS FOLLOWS:

WHEN READ LITERALLY, THESE REGULATIONS PROVIDE THAT AN EMPLOYEE WOULD EARN HOME LEAVE WHILE HE IS ABSENT IN MILITARY SERVICE. THIS WAS NOT INTENDED. THE INCLUSION OF MILITARY SERVICE AS SERVICE ABROAD WAS PRIMARILY FOR THE PURPOSE OF PREVENTING AN INTERRUPTION OF THE REQUIREMENT FOR ,24 MONTHS OF CONTINUOUS SERVICE ABROAD" OR ANY OTHER INSTANCE WHERE THERE WAS A REQUIREMENT FOR AN EXTENDED PERIOD OF SERVICE UNRELATED TO THE EARNING OF HOME LEAVE.

IN VIEW OF THE FOREGOING EXPLANATION AND AS THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061 NOTE, INCLUDING THE LEGISLATIVE HISTORY THEREOF, FAILS TO CONTAIN ANY INDICATION THAT LEAVE ACCRUES DURING A TOUR OF MILITARY DUTY NOT OTHERWISE COVERED BY MILITARY OR ANNUAL LEAVE, WE CONCLUDE THAT THE EMPLOYEE HERE INVOLVED WOULD NOT EARN HOME LEAVE FOR THE PERIOD HE WAS ABSENT IN MILITARY SERVICE, APRIL 9, 1963 TO MAY 14, 1965, DURING HIS ASSIGNMENT OVERSEAS. WE NOTE THAT ANNUAL AND SICK LEAVE HAS NEVER BEEN REGARDED AS ACCRUING UNDER SIMILAR CIRCUMSTANCES.

WE UNDERSTAND THAT A CLARIFYING CHANGE WILL BE MADE IN THE REGULATIONS.