B-19324, AUGUST 19, 1941, 21 COMP. GEN. 158

B-19324, AUGUST 19, 1941, 21 COMP. GEN. 158

LEAVES OF ABSENCE - ANNUAL - TRANSFERS - DIFFERENTIAL ACCUMULATIONS A WAR DEPARTMENT CIVILIAN EMPLOYEE WITH POST OF DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHO IS TRANSFERRED TO A POST OF DUTY WITHIN THE SAID LIMITS--- BOTH POSITIONS BEING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936--- LOSES THE LEAVE DIFFERENTIAL AUTHORIZED FOR THE FORMER DUTY BY THE SAID LEAVE ACT, AND THEREFORE IS NOT ENTITLED TO ACCUMULATED LEAVE IN EXCESS OF THE 60 DAYS AUTHORIZED FOR EMPLOYEES WITHIN THE SAID LIMITS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, AUGUST 19, 1941:

I HAVE YOUR LETTER OF JULY 29, 1941, AS FOLLOWS:

ATTENTION IS INVITED TO THE ENCLOSED CORRESPONDENCE. SINCE THE MATTER OF TRANSFER OF LEAVE AS HEREIN STATED IS ONE THAT MAY COME UP FROM TIME TO TIME DURING THE PRESENT EMERGENCY, IT IS REQUESTED THAT A DECISION ON THE QUESTIONS INVOLVED TO BE GIVEN THIS OFFICE AND THE ATTACHED ENCLOSURES RETURNED.

AMONG THE CORRESPONDENCE FORWARDED WITH YOUR LETTER IS A COMMUNICATION DATED JULY 2, 1941, FROM THE UNITED STATES ENGINEER OFFICE, JACKSONVILLE, FLORIDA, TO THE CHIEF OF ENGINEERS, U.S. ARMY, READING AS FOLLOWS:

1. LEAVE REQUEST SUBMITTED BY GEORGE E. EDWARDS FOR 120 DAYS ANNUAL LEAVE IS SUBMITTED HEREWITH FOR INFORMATION AS TO THE MAXIMUM AMOUNT OF LEAVE ALLOWABLE IN THIS CASE.

2. MR. EDWARDS WAS TRANSFERRED FROM THE QUARTERMASTER DEPARTMENT, MACDILL FIELD, TAMPA, FLORIDA, ON JANUARY 1, 1941. HIS ACCRUED ANNUAL LEAVE WAS REPORTED TO THIS OFFICE AS 97 1/6 DAYS AS OF THE DATE OF TRANSFER. THIS AMOUNT WAS REDUCED TO THE 60 DAY MAXIMUM OF "ACCUMULATED LEAVE" AUTHORIZED BY THE UNIFORM LEAVE REGULATIONS AND MR. EDWARDS WAS SO ADVISED. LETTER DATED MARCH 18, 1941, HE PROTESTED THE REDUCTION OF HIS LEAVE ACCOUNT AND COPIES OF THIS LETTER AND SUBSEQUENT INDORSEMENTS THERETO AND COPY OF HIS LETTER OF JUNE 25, 1941, ARE FORWARDED HEREWITH.

3. THE RECORDS OF THIS OFFICE SHOW THAT MR. EDWARDS HAS BEEN GRANTED ELEVEN DAYS ANNUAL LEAVE DURING THE CURRENT YEAR, PRIOR TO SUBMISSION OF THE INCLOSED REQUEST. NO RECORDS ARE AVAILABLE FOR LEAVE EARNED OR TAKEN PRIOR TO HIS TRANSFER TO THIS OFFICE OTHER THAN THE REPORT FROM THE QUARTERMASTER DEPARTMENT THAT HE HAD 97 1/6 DAYS ANNUAL LEAVE ACCUMULATED AS OF JANUARY 1, 1941.

4. IT IS REQUESTED THAT MR. EDWARDS BE FURNISHED DIRECT A COPY OF YOUR DECISION AT HIS HOME ADDRESS, 2301 ARDSON PLACE, TAMPA, FLORIDA.

BY SECOND INDORSEMENT DATED MARCH 27, 1941, FROM THE U.S. ENGINEER OFFICE, JACKSONVILLE, FLORIDA, MR. EDWARDS WAS ADVISED AS FOLLOWS:

1. UNDER THE UNIFORM LEAVE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE ANNUAL LEAVE REGULATIONS PRESCRIBED BY EXECUTIVE ORDER NO. 8384 OF MARCH 29, 1940, THE AMOUNT OF LEAVE THAT CAN BE CARRIED FORWARD FROM PRECEDING YEARS " ACCUMULATED" IS LIMITED TO 60 DAYS. A COPY OF EXECUTIVE ORDER NO. 8384 IS FORWARDED HEREWITH FOR YOUR INFORMATION.

2. SECTION 16 OF THE ANNUAL LEAVE REGULATIONS PROVIDES FOR THE CONTINUANCE OF ANY LEAVE DIFFERENTIAL EXISTING PRIOR TO JANUARY 1, 1936,FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED WITHOUT THE CONTINENTAL LIMITS OF THE UNITED STATES. THERE IS NO PROVISION IN THE LEAVE ACT, THE ANNUAL LEAVE REGULATIONS, OR THE WAR DEPARTMENT REGULATIONS GOVERNING THE CONTINUANCE OF SUCH LEAVE DIFFERENTIAL IF TRANSFERRED OR REEMPLOYED WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES WHEREAS BOTH THE LEAVE ACT AND THE ANNUAL LEAVE REGULATIONS SPECIFICALLY LIMIT THE AMOUNT OF "ACCUMULATED LEAVE" TO 60 DAYS. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE FACT THE REDUCTION OF YOUR LEAVE ACCOUNT FROM 97 1/6 DAYS TO 60 DAYS AS OF JANUARY 1, 1941, DOES NOT AFFECT THE LEAVE ACCUMULATED TO YOUR CREDIT FOR YEARS PRIOR TO 1939, BUT THE UNUSED CURRENT LEAVE FOR THE YEARS 1939 AND 1940, IN EXCESS OF THE AMOUNT AUTHORIZED TO BE CARRIED FORWARD AS "ACCUMULATED LEAVE" IS NOT CUMULATIVE AND, THEREFORE, MUST BE CONSIDERED FORFEITED.

IN THE FOURTH INDORSEMENT DATED APRIL 4, 1941, MR. EDWARDS PURPORTS TO QUOTE FROM " REGULATION GOVERNING CIVILIAN EMPLOYEES FROM THE OFFICE OF THE QUARTERMASTER GENERAL ( CIR. 1-15 110-111)," THE FOLLOWING:

E. LEAVE ACCUMULATED AT RATE OF 30 DAYS PER YEAR ON FOREIGN SERVICE MAY BE GRANTED WITHIN A REASONABLE TIME AFTER JOINING STATION IN U.S. IF EMPLOYEE'S SERVICES CANNOT BE SPARED TO TAKE THIS LEAVE ON RETURNING ( DEC. SEC. OF WAR, JAN. 9, 1936).

SECTION 5 OF BOTH THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, PROVIDES AS FOLLOWS:

NOTHING IN THIS ACT SHALL BE CONSIDERED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

IN DECISION OF AUGUST 26, 1940, 20 COMP. GEN. 114, THE ABOVE-QUOTED STATUTORY PROVISIONS WERE APPLIED IN CONNECTION WITH THE LEAVE DIFFERENTIAL AUTHORIZED BY THE ADMINISTRATIVE REGULATIONS IN FORCE PRIOR TO THE EFFECTIVE DATE OF SAID STATUTES FOR EMPLOYEES OF THE WAR DEPARTMENT SERVING BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, THE FIRST TWO PARAGRAPHS OF THE SYLLABUS READING AS FOLLOWS:

SECTION 5 OF EACH OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, SAVES TO EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES THE BENEFIT OF ANY THEN EXISTING LEAVE DIFFERENTIAL- - WHETHER GRANTED BY PRIOR LEAVE LAWS OR ADMINISTRATIVE REGULATIONS.

CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT WHO ARE CITIZENS OF THE UNITED STATES ON DUTY IN THE PHILIPPINES MAY BE GRANTED UNDER THE LEAVE DIFFERENTIAL CONTINUANCE AUTHORITY OF SECTION 5 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, WITH ACCRUAL ON THAT BASIS UP TO 104 DAYS FOR 4 YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. COMPARE 15 COMP. GEN. 1058; 16 ID. 400.

HOWEVER, SECTION 5 OF THE ANNUAL AND SICK LEAVE ACTS ABOVE QUOTED MAY NOT BE CONSTRUED AS CONTINUING THE LEAVE DIFFERENTIAL ACQUIRED WHILE IN A POSITION BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES AFTER TRANSFER TO A POSITION WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES. UPON TRANSFER TO A POST OF DUTY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES FROM A POST OF DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES, BOTH POSITIONS OR EMPLOYMENTS COMING WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE EMPLOYEE'S LEAVE RIGHTS ARE FOR DETERMINATION EXCLUSIVELY UNDER THOSE PROVISIONS OF THE CONTROLLING STATUTES AND REGULATIONS ISSUED PURSUANT THERETO APPLICABLE TO EMPLOYEES WHOSE POSTS OF DUTY ARE WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

REFERRING TO PARAGRAPH (E) OF THE WAR DEPARTMENT REGULATIONS TO WHICH MR. EDWARDS CALLS ATTENTION, THERE IS NO AUTHORITY IN THE SECRETARY OF WAR TO GRANT EMPLOYEES LEAVE EARNED IN A POSITION BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES "WITHIN A REASONABLE TIME AFTER JOINING STATION IN U.S.' IN EXCESS OF THE MAXIMUM AMOUNT OF LEAVE THAT IS AUTHORIZED FOR EMPLOYEES SERVING IN POSITIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES. AS TO THAT REGULATION, HOWEVER, THE U.S. ENGINEER OFFICE, JACKSONVILLE, FLORIDA, BY SIXTH INDORSEMENT DATED APRIL 8, 1941, ADVISED MR. EDWARDS AS FOLLOWS:

1. IN APPLYING THE TERM "A REASONABLE TIME" AS CITED IN PARAGRAPH 1 (E) OF PRECEDING 4TH ENDORSEMENT THE ONLY POSSIBLE CONSTRUCTION IS PRIOR TO THE EXPIRATION OF THE CALENDAR YEAR, AS THE UNIFORM LEAVE REGULATIONS SPECIFICALLY LIMIT THE AMOUNT OF LEAVE THAT CAN BE CARRIED FORWARD TO 60 DAYS. THESE REGULATIONS, ARE APPLICABLE TO YOUR PRESENT POSITION AND ARE FOR APPLICATION--- NOT THE REGULATIONS TO WHICH YOUR FORMER POSITION WAS SUBJECT.

2. THE DECISION OF THE SECRETARY OF WAR OF JANUARY 9, 1936, ON WHICH YOU BASE YOUR OPINION THAT LEAVE DIFFERENTIAL EARNED IN FOREIGN SERVICE WILL REMAIN TO YOUR CREDIT INDEFINITELY, WAS BASED ON DIFFERENT LEAVE REGULATIONS THAN ARE NOW IN EFFECT. AT THAT TIME THERE WAS NO PROVISION LIMITING THE AMOUNT OF "ACCUMULATED LEAVE" THAT MIGHT BE CARRIED FORWARD BY EMPLOYEES STATIONED WITHIN THE UNITED STATES--- THE REGULATIONS PROVIDING ONLY THAT THE PORTION OF LEAVE UNUSED IN ANY CALENDAR YEAR WOULD BE CUMULATIVE FOR ANY SUCCEEDING YEAR. THE UNIFORM LEAVE ACT OF MARCH 14, 1936 (49 STAT. 1161), LIMITED THE AMOUNT OF "ACCUMULATED LEAVE" TO 60 DAYS AND UPON YOUR TRANSFER TO A POSITION SUBJECT TO THE UNIFORM LEAVE REGULATIONS YOU BECAME SUBJECT TO THE SAME RESTRICTIONS AS TO "ACCUMULATED LEAVE" APPLIED TO ALL OTHER EMPLOYEES HOLDING SIMILAR POSITIONS AND THIS OFFICE HAS NO KNOWLEDGE OF ANY PROVISION IN LAW OR REGULATION AUTHORIZING AN EXCEPTION IN YOUR CASE.

THE MAXIMUM ACCUMULATION OF LEAVE AUTHORIZED FOR AN EMPLOYEE OF THE WAR DEPARTMENT WITH POST OF DUTY BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES IS 104 DAYS EXCLUSIVE OF SUNDAYS AND HOLIDAYS FOR 4 YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN--- 20 COMP. GEN. 114, SUPRA--- WHEREAS THE MAXIMUM ACCUMULATION OF LEAVE AUTHORIZED FOR AN EMPLOYEE OF THE WAR DEPARTMENT WITH POST OF DUTY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES IS 60 DAYS EXCLUSIVE OF SUNDAYS AND HOLIDAYS AT THE BEGINNING OF ANY CALENDAR OR LEAVE YEAR PLUS CURRENT ACCRUED LEAVE FOR THE YEAR IN WHICH THE LEAVE IS TAKEN. UPON TRANSFER FROM THE FIRST- MENTIONED TO THE SECOND-MENTIONED STATUS, THE EMPLOYEE LOSES THE DIFFERENTIAL, THAT IS, HE LOSES ALL LEAVE IN EXCESS OF 60 DAYS ACCUMULATED LEAVE ON JANUARY 1, PLUS CURRENT ACCRUED LEAVE. COMPARE 16 COMP. GEN. 105; ID. 212; 19 ID. 14; ID. 366; ID. 445; 20 ID. 35.

ACCORDINGLY, MR. EDWARDS HAS BEEN PROPERLY ADVISED THAT HE MAY NOT BE GRANTED LEAVE DURING THE CURRENT YEAR IN EXCESS OF 60 DAYS ANNUAL LEAVE ACCUMULATED AS OF JANUARY 1, 1941, PLUS THE LEAVE THAT WILL ACCRUE TO HIM DURING THE CURRENT LEAVE YEAR INCLUDING THE LEAVE THAT WILL ACCRUE DURING THE TIME HE IS ON ANNUAL LEAVE. SEE SECTION 10 OF THE ANNUAL LEAVE REGULATIONS.

THE CORRESPONDENCE FORWARDED WITH YOUR LETTER IS RETURNED HEREWITH AS REQUESTED.