B-22290, JANUARY 20, 1942, 21 COMP. GEN. 688

B-22290: Jan 20, 1942

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PAYMENTS FOR RELINQUISHED VACATIONS WHILE UNDER THE LEAVE-DIFFERENTIAL PROVISIONS OF EXISTING LEAVE LAWS AND REGULATIONS IT IS WITHIN THE DISCRETION OF THE WAR DEPARTMENT TO GRANT ITS CIVILIAN EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM. PRESCRIBING THE RULES AND REGULATIONS UNDER WHICH PAYMENTS ARE TO BE MADE PURSUANT TO THE ACT OF JUNE 3. - LEAVE THAT AN EMPLOYEE WOULD FORFEIT IF HE IS REQUIRED TO FOREGO HIS VACATION. INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. APPLIES FOR AND IS DENIED DURING HIS FOURTH CONSECUTIVE YEAR OF SERVICE THE AMOUNT OF ANNUAL LEAVE.

B-22290, JANUARY 20, 1942, 21 COMP. GEN. 688

CIVILIAN EMPLOYEES OUTSIDE CONTINENTAL LIMITS OF UNITED STATES - LEAVE DIFFERENTIALS; PAYMENTS FOR RELINQUISHED VACATIONS WHILE UNDER THE LEAVE-DIFFERENTIAL PROVISIONS OF EXISTING LEAVE LAWS AND REGULATIONS IT IS WITHIN THE DISCRETION OF THE WAR DEPARTMENT TO GRANT ITS CIVILIAN EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, OR AT THE RATE OF 30 DAYS PER ANNUM, INCLUSIVE OF SUNDAYS AND HOLIDAYS, THE GRANTING OF THE LEAVE AND THE RATE OF ACCRUAL SHOULD BE UPON THE SAME BASIS. A WAR DEPARTMENT FIELD SERVICE EMPLOYEE WITHIN THE PURVIEW OF SECTION 1 OF EXECUTIVE ORDER NO. 8817, PRESCRIBING THE RULES AND REGULATIONS UNDER WHICH PAYMENTS ARE TO BE MADE PURSUANT TO THE ACT OF JUNE 3, 1941, FOR DENIED VACATIONS, MAY NOT BE COMPENSATED PURSUANT TO THE STATUTE FOR ANY FORFEITABLE LEAVE ACCRUED DURING THE CALENDAR YEAR 1941 IF THE REQUEST FOR AND DENIAL OF THE LEAVE OCCURRED PRIOR TO THE EFFECTIVE DATE, JULY 5, 1941, OF THE EXECUTIVE ORDER. FOR PURPOSES OF PAYMENT UNDER SECTION 1 OF EXECUTIVE ORDER NO. 8817, ISSUED PURSUANT TO THE ACT OF JUNE 3, 1941, FOR THE CURRENT--- AS DISTINGUISHED FROM ACCUMULATED--- LEAVE THAT AN EMPLOYEE WOULD FORFEIT IF HE IS REQUIRED TO FOREGO HIS VACATION, THE 26 OR 30 DAYS, AS THE CASE MAY BE, OF ANNUAL LEAVE WHICH WAR DEPARTMENT EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ACCRUE EACH YEAR FOR 4 CONSECUTIVE YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN, TO BE CLASSED AS CURRENT LEAVE ONLY DURING THE YEAR IN WHICH IT ACCRUES. IF A WAR DEPARTMENT "NONINDUSTRIAL" CIVILIAN EMPLOYEE STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, WHO MAY ACCUMULATE A MAXIMUM OF 104 DAYS' ANNUAL LEAVE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, THROUGH 4 CONSECUTIVE YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN, APPLIES FOR AND IS DENIED DURING HIS FOURTH CONSECUTIVE YEAR OF SERVICE THE AMOUNT OF ANNUAL LEAVE, NOT TO EXCEED 26 DAYS EXCLUSIVE OF SUNDAYS AND HOLIDAYS, HE WOULD FORFEIT AT THE END OF THAT YEAR, HE MAY BE PAID FOR SUCH LEAVE, SUBJECT TO THE TERMS AND CONDITIONS OF SECTION 1 OF EXECUTIVE ORDER NO. 8817, ISSUED PURSUANT TO THE ACT OF JUNE 3, 1941, AUTHORIZING PAYMENTS FOR DENIED VACATIONS AS THEREIN SPECIFIED. IF A WAR DEPARTMENT "NONINDUSTRIAL" CIVILIAN EMPLOYEE STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES HAD, ON JANUARY 1, 1941, ACCUMULATED 104 DAYS' ANNUAL LEAVE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR 4 CONSECUTIVE YEARS OF SERVICE, HE MUST BE CONSIDERED AS HAVING ALREADY FORFEITED 26 DAYS' LEAVE AS OF THAT DATE, NONE OF WHICH MAY BE COMPENSATED FOR UNDER THE TERMS OF SECTION 1 OF EXECUTIVE ORDER NO. 8817 ISSUED PURSUANT TO THE ACT OF JUNE 3, 1941, AUTHORIZING PAYMENTS FOR DENIED VACATIONS AS THEREIN SPECIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JANUARY 20, 1942:

THERE HAS BEEN CONSIDERED YOUR UNDATED LETTER, RECEIVED HERE DECEMBER 2, 1941, AS FOLLOWS:

ATTENTION IS INVITED TO THE COPY OF LETTER DATED OCTOBER 9, 1941, FROM THE COMMANDING OFFICER, HAWAIIAN ORDNANCE DEPOT, HONOLULU, TERRITORY OF HAWAII, THROUGH THE CHIEF OF ORDNANCE, WASHINGTON, D.C., AND THE REQUEST FOR INFORMATION IN PARAGRAPH 3, LETTER SUBMITTED BY THE OFFICE OF CHIEF OF ORDNANCE TO THE SECRETARY OF WAR UNDER DATE OF OCTOBER 28, 1941. YOUR DECISION IS RESPECTFULLY REQUESTED ON QUESTIONS PROPOUNDED THEREIN.

IN PARAGRAPH 2 OF LETTER DATED OCTOBER 28, THE FOLLOWING IS SUBMITTED FOR COMMENT:

"IN VIEW OF THE RULINGS REFERRED TO, IT WOULD APPEAR THAT WHILE THE WAR DEPARTMENT MAY ADMINISTRATIVELY DETERMINE THAT LEAVE FOR EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES SHOULD BE COMPUTED AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, THE RATE OF ACCRUAL SHOULD REMAIN AT 30 DAYS PER ANNUM, INCLUDING SUNDAYS AND PUBLIC HOLIDAYS, AS OUTLINED IN WAR DEPARTMENT ORDERS J OF AUGUST 5, 1899, AND CIRCULAR A OF JANUARY 12, 1912, UNLESS AND UNTIL A FURTHER ORDER IS ISSUED BY THE DEPARTMENT.'

THIS OFFICE CONCURS WITH THE CHIEF OF ORDNANCE IN THE STATEMENT AS QUOTED ABOVE.

THE REFERRED-TO LETTER OF OCTOBER 28, 1941, FROM THE CHIEF OF ORDNANCE TO YOU, READS AS FOLLOWS: SUBJECT: VACATION PAY FOR EMPLOYEES OF THE FIELD SERVICE OUTSIDE

THE CONTINENTAL LIMITS OF THE UNITED STATES WHO FOREGO THEIR

VACATIONS.

1. A COPY OF A LETTER ADDRESSED TO THIS OFFICE BY THE HAWAIIAN ORDNANCE DEPOT IS TRANSMITTED HEREWITH.

2. IT WILL BE NOTED THAT ANNUAL LEAVE FOR EMPLOYEES OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES IS BASED UPON WAR DEPARTMENT ORDERS J OF AUGUST 5, 1899, AND WAR DEPARTMENT CIRCULAR A, JANUARY 12, 1912, RATHER THAN UPON THE ANNUAL LEAVE LAWS AND REGULATIONS OF MARCH 29, 1940. PARAGRAPH 1 OF CIRCULAR A REFERRED TO PROVIDES IN PART AS FOLLOWS: "UNUSED ANNUAL LEAVE OF ABSENCE PROVIDED BY THE DEPARTMENT'S CIRCULAR J OF AUGUST 5, 1899, SHALL ACCRUE NOT TO EXCEED 120 DAYS COUNTING SUNDAYS AND HOLIDAYS FOR EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES AND WHO ARE ON DUTY IN ALASKA, THE PHILIPPINES, OR OUTSIDE THE LIMITS OF THE UNITED STATES * * *.' IN RENDERING A DECISION ON A NUMBER OF MATTERS RELATING TO LEAVE OF ABSENCE FOR CIVILIAN EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES (20 COMP. GEN. 114) THE COMPTROLLER GENERAL HAS HELD THAT IT WOULD BE PROPER TO GRANT SUCH EMPLOYEES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, BUT THAT THE ACCRUAL ON THAT BASIS WOULD HAVE TO BE LIMITED TO 104 DAYS FOR FOUR YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. IN THE SAME DECISION IT IS HELD THAT "THE GENERAL EFFECT OF THIS AUTHORITY (SECTION 5 OF THE ANNUAL LEAVE ACT) IN THE INSTANT MATTER IS TO VEST IN THE SECRETARY OF WAR DISCRETION TO ADOPT LEAVE REGULATIONS FOR EMPLOYEES STATIONED IN THE PHILIPPINE ISLANDS COMPRISING ANY OF THE FEATURES OF EITHER THE ADMINISTRATIVE REGULATIONS--- WAR DEPARTMENT CIRCULAR A DATED JANUARY 12, 1912--- IN FORCE PRIOR TO JANUARY 1, 1936, EFFECTIVE DATE OF THE NEW LEAVE ACTS, OR THE PRESIDENT'S REGULATIONS ISSUED PURSUANT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936.' IN VIEW OF THE RULINGS REFERRED TO, IT WOULD APPEAR THAT WHILE THE WAR DEPARTMENT MAY ADMINISTRATIVELY DETERMINE THAT LEAVE FOR EMPLOYEES OUTSIDE OF THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL BE COMPUTED AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, THE RATE OF ACCRUAL SHOULD REMAIN AT 30 DAYS PER ANNUM, INCLUDING SUNDAYS AND PUBLIC HOLIDAYS, AS OUTLINED IN WAR DEPARTMENT'S ORDERS J OF AUGUST 5, 1899, AND CIRCULAR A OF JANUARY 12, 1912, UNLESS AND UNTIL A FURTHER ORDER IS ISSUED BY THE DEPARTMENT. COMMENT IS REQUESTED ON THIS POINT.

3. WHETHER LEAVE FOR CIVILIAN EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES ACCRUES AT THE RATE OF 30 DAYS PER ANNUM, INCLUDING SUNDAYS AND HOLIDAYS, UP TO A MAXIMUM OF 120 DAYS, OR AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS UP TO A MAXIMUM OF 104 DAYS, THE LANGUAGE OF PARAGRAPH 1 OF WAR DEPARTMENT CIRCULAR A PROVIDING THAT ACCRUED LEAVE SHALL NOT EXCEED 120 DAYS, AND THE SIMILAR LIMIT NOT TO EXCEED 104 DAYS IN THE EVENT ACCRUAL IS AT THE RATE OF 26 DAYS PER ANNUM, APPEARS TO PREVENT ANY REIMBURSEMENT FOR ANNUAL LEAVE FOR A CIVILIAN EMPLOYEE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES NOT CLASSED AS "INDUSTRIAL," AS DEFINED IN PARAGRAPH 3D OF LETTER OF THE UNDER SECRETARY OF WAR OF JULY 16, 1941, SUBJECT," VACATION PAY FOR EMPLOYEES OF THE FIELD SERVICE OF THE WAR DEPARTMENT WHO FOREGO THEIR CATIONS.' OTHER WORDS, NONINDUSTRIAL EMPLOYEES WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES GOVERNED BY THE ANNUAL LEAVE REGULATIONS OF MARCH 29, 1940, MAY ACCUMULATE ANNUAL LEAVE NOT TO EXCEED 60 DAYS. THEY MAY ALSO CURRENTLY ACCRUE IN ANY CALENDAR YEAR NOT TO EXCEED 26 ADDITIONAL DAYS OF ANNUAL LEAVE, FOR WHICH THEY MAY BE COMPENSATED PRIOR TO LOSING SUCH LEAVE WITH THE CLOSE OF THE CURRENT CALENDAR YEAR. ON THE OTHER HAND, IT APPEARS THAT EMPLOYEES OCCUPYING SIMILAR POSITIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY ACCRUE LEAVE ONLY TO A TOTAL OF 120 DAYS, INCLUDING THE CURRENT CALENDAR YEAR; AFTER REACHING THAT FIGURE NO FURTHER LEAVE ACCRUES TO THE EMPLOYEE SO THAT HE CANNOT BE CONSIDERED TO HAVE TO HIS CREDIT ANY LEAVE FOR WHICH HE MIGHT BE COMPENSATED UNDER THE PROVISIONS OF SECTION 1 OF EXECUTIVE ORDER 8817, JULY 5, 1941.

4. IT IS REQUESTED THAT THIS OFFICE BE ADVISED IN THIS MATTER AT AN EARLY DATE.

THE REFERRED-TO LETTER OF OCTOBER 9, 1941, FROM THE COMMANDING OFFICER, HAWAIIAN ORDNANCE DEPOT, HONOLULU, T.H., TO THE CHIEF OF ORDNANCE, READS AS FOLLOWS:

1. REFERENCE EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941. ADVICE IS REQUESTED AS TO WHETHER THIS ORDER CAN BE MADE TO APPLY RETROACTIVELY.

2. THERE ARE THREE POSSIBLE DATES FROM WHICH THE PAY CAN BE CALCULATED FOR EMPLOYEES HAVING ALREADY PERMANENTLY FORFEITED LEAVE AS A RESULT OF EXCESS ACCUMULATION WHICH ARE AS FOLLOWS:

A. FROM DATE OF RECEIPT OF THE EXECUTIVE ORDER NO. 8817 IN THIS OFFICE ( AUGUST 4, 1941).

INASMUCH AS SECTION 1 OF THE EXECUTIVE ORDER STATES "SUCH COMPENSATION SHALL BE ONLY FOR THE PORTION OF THE REQUESTED LEAVE WHICH WOULD OTHERWISE BE FORFEITED * * *," IT WOULD APPEAR THAT ONLY THOSE REQUESTS SUBMITTED AFTER THE RECEIPT IN THIS OFFICE OF THE ORDER ( AUGUST 4, 1941) AND THE SUBSEQUENT EDUCATION OF THE EMPLOYEES COULD BE CONSIDERED.

B. FROM DATE OF SIGNING BY THE PRESIDENT ( JULY 5, 1941).

SINCE SECTION 7 STATES THAT "THIS ORDER SHALL BECOME EFFECTIVE IMMEDIATELY * * *," IT SEEMS LOGICAL THAT ALL PERMANENTLY FORFEITED LEAVE DUE TO EXCESS ACCUMULATION RESULTING AFTER JULY 5, 1941, BE CONSIDERED FOR PAYMENT OF COMPENSATION.

C. FROM THE FIRST DAY OF THIS CALENDAR YEAR ( JANUARY 1, 1941).

THE ANNUAL LEAVE BEING CALCULATED ON THE BASIS OF THE CALENDAR YEAR, THERE EXISTS THE POSSIBILITY THAT ALL LEAVE FORFEITED SINCE JANUARY 1, 1941, MIGHT BE RIGHTFULLY COMPENSATED FOR BY CONSCIENTIOUS EMPLOYEES OF THIS OFFICE WHO, HAVING REQUESTED A VACATION, WERE PERSUADED TO POSTPONE THE TAKING OF LEAVE UNTIL A LATER OPPORTUNE TIME.

3. A SPECIFIC EXAMPLE MIGHT SERVE TO CLARIFY THE QUESTION BY PRESENTING THE THREE POSSIBILITIES.

A. THE EMPLOYEES OF THIS OFFICE ARE GIVEN 2 1/6 DAYS' LEAVE CREDIT FOR EVERY MONTH EMPLOYED. THE MAXIMUM THAT CAN BE ACCRUED IS 104 DAYS (FROM 4 YEARS).

B. ON JANUARY 1, 1941, EMPLOYEE A HAD ACCRUED 104 DAYS' LEAVE. HE DID NOT SUBMIT A REQUEST FOR A VACATION AS HE KNEW HIS SERVICES WERE URGENTLY NEEDED. EMPLOYEE A HAS TAKEN NO LEAVE DURING THIS CALENDAR YEAR. OUR RECORDS SHOW AN ACCRUED LEAVE OF 104 DAYS ON JULY 5, 1941, BY WHICH TIME HE HAD PERMANENTLY FORFEITED 13 DAYS' LEAVE.

C. ON SEPTEMBER 30, 1941, EMPLOYEE A READ THE EXECUTIVE ORDER NO. 8817 AND REQUESTED 26 DAYS' ANNUAL LEAVE OR THE COMPENSATION IN LIEU OF THE LEAVE. HIS SERVICES CANNOT BE SPARED WITHOUT DETRIMENT TO THE NATIONAL DEFENSE.

D. UNDER THE PROVISIONS OF SECTION 1, EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941, HE CAN BE GIVEN COMPENSATION IN LIEU OF THE ANNUAL LEAVE.

E. IS THIS OFFICE TO PAY EMPLOYEE A---

(1) FOR 26 DAYS UNDER INTERPRETATION OF THE EXECUTIVE ORDER STATED

IN PARAGRAPH 2C THIS LETTER.

(2) FOR 13 DAYS UNDER INTERPRETATION STATED IN PARAGRAPH 2B.

(3) FOR 11 DAYS UNDER INTERPRETATION STATED IN PARAGRAPH 2A, OR

(4) FOR 6 1/2 DAYS WHICH IS THE NUMBER OF DAYS WHICH WOULD BE

PERMANENTLY FORFEITED AFTER THE EMPLOYEE REQUESTED LEAVE.

4.THE CORRECT INTERPRETATIONS TO BE MADE FROM EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941, ARE URGENTLY NEEDED SO THAT THE OPPORTUNITIES INVOLVED CAN BE JUDICIOUSLY USED. IT IS REQUESTED THAT THE CORRECT APPLICATIONS OF THE ORDER NO. 8817, AS OUTLINED IN PARAGRAPHS 2 AND 3, BE DETERMINED AND THAT THIS OFFICE BE NOTIFIED BY RADIO.

WHILE THE DECISION OF AUGUST 26, 1940, 20 COMP. GEN. 114, CITED IN THE LETTER OF THE CHIEF OF ORDNANCE, CONSIDERED THE LEAVE BENEFITS OF CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT STATIONED IN THE PHILIPPINE ISLANDS, THE RULES THEREIN STATED ARE APPLICABLE, ALSO, TO CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT STATIONED IN HAWAII--- THERE BEING FOR NOTING THAT WAR DEPARTMENT CIRCULAR A OF JANUARY 12, 1912, QUOTED IN THE DECISION, IS APPLICABLE TO "EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES AND WHO ARE ON DUTY IN ALASKA, THE PHILIPPINES, OR OUTSIDE THE LIMITS OF THE UNITED STATES" (MEANING CONTINENTAL UNITED STATES). IN THE DECISION IT WAS HELD AS FOLLOWS:

ANNUAL LEAVE WITH PAY WAS AUTHORIZED FOR THESE EMPLOYEES AT THE RATE OF 30 DAYS PER ANNUM, INCLUDING SUNDAYS AND HOLIDAYS, AND ACCRUAL OF ANNUAL LEAVE WAS AUTHORIZED UP TO 120 DAYS FOR 4 YEARS, INCLUDING 30 DAYS FOR THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. WAR DEPARTMENT CIRCULAR A OF JANUARY 12, 1912. THERE IS NOTHING IN THE NEW ANNUAL LEAVE ACT OR THE UNIFORM LEAVE REGULATIONS, OR IN THE DECISIONS OF THIS OFFICE, AUTHORIZING THE GRANTING TO THESE EMPLOYEES OF 30 DAYS' ANNUAL LEAVE PER ANNUM EXCLUSIVE OF SUNDAYS AND HOLIDAYS. HENCE, THE STATEMENT IN WAR DEPARTMENT CIRCULAR 1-15, PARAGRAPH 110B IS ERRONEOUS. THESE BENEFITS AUTHORIZED BY THE WAR DEPARTMENT CIRCULAR OF JANUARY 12, 1912, IN THIS RESPECT ARE MORE ADVANTAGEOUS TO THE EMPLOYEES THAN THE CORRESPONDING BENEFITS GRANTED BY THE ANNUAL LEAVE ACT OF MARCH 14, 1936, VIZ, 26 DAYS PER ANNUM EXCLUSIVE OF SUNDAYS AND HOLIDAYS, WITH ACCRUAL OF 60 DAYS PLUS 26 DAYS FOR THE CURRENT LEAVE YEAR, OR A TOTAL OF 86 DAYS, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. ANNUAL LEAVE AT THE RATE OF 30 DAYS PER ANNUM, INCLUSIVE OF SUNDAYS AND HOLIDAYS, IS APPROXIMATELY THE SAME AS LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. IT WOULD BE PROPER THEREFORE TO GRANT THESE EMPLOYEES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, BUT THE ACCRUAL ON THAT BASIS WOULD HAVE TO BE LIMITED TO 104 DAYS FOR 4 YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. * * *

SECTIONS 2, 3, AND 4 OF PUBLIC LAW 100, APPROVED JUNE 3, 1941, 55 STAT. 241, PROVIDE AS FOLLOWS:

SEC. 2. EMPLOYEES OF THE FIELD SERVICE OF THE WAR DEPARTMENT AND THE PANAMA CANAL ZONE MAY, DURING THE PERIOD OF THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST, BE EMPLOYED DURING THE TIME THEY WOULD OTHERWISE BE ON VACATION WITHOUT DEPRIVATION OF THEIR VACATION PAY FOR THE TIME SO WORKED. EMPLOYEES WHO FOREGO THEIR VACATIONS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION MAY BE PAID, IN ADDITION TO THEIR REGULAR PAY, THE EQUIVALENT OF THE PAY THEY WOULD HAVE DRAWN DURING THE PERIOD OF SUCH VACATION. THE PROVISIONS OF THIS SECTION SHALL BE APPLICABLE ONLY TO EMPLOYEES WHOSE SERVICE AT THE TIME CANNOT, IN THE JUDGMENT OF THE SECRETARY OF WAR OR THE GOVERNOR OF THE PANAMA CANAL, AS THE CASE MAY BE, BE SPARED WITHOUT DETRIMENT TO THE NATIONAL DEFENSE.

SEC. 3. THE PROVISIONS OF SECTION 2 OF THIS ACT AND OF SECTION 7 OF THE ACT OF JUNE 28, 1940 ( PUBLIC, NUMBERED 671), SHALL BE ADMINISTERED IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY PRESCRIBE.

SEC. 4. THE PROVISIONS OF THIS ACT SHALL BE EFFECTIVE DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST, AND SHALL TERMINATE JUNE 30, 1942, UNLESS THE CONGRESS SHALL OTHERWISE PROVIDE.

PURSUANT TO THE PROVISIONS OF SECTION 3 OF THE STATUTE, SUPRA, THE PRESIDENT, BY EXECUTIVE ORDER NO. 8817 DATED JULY 5, 1941, ISSUED REGULATIONS AS FOLLOWS:

SECTION 1. EXCEPT AS PROVIDED IN SECTION 2 OF THESE REGULATIONS, THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, THE SECRETARY OF THE TREASURY, AND THE GOVERNOR OF THE PANAMA CANAL MAY AUTHORIZE PAYMENT OF COMPENSATION IN LIEU OF ANNUAL LEAVE TO THOSE EMPLOYEES OF THE FIELD SERVICES OF THE WAR DEPARTMENT, THE NAVY DEPARTMENT, THE COAST GUARD, AND THE PANAMA CANAL WHOSE SERVICES CANNOT BE SPARED WITHOUT DETRIMENT TO THE NATIONAL DEFENSE AND WHO, THROUGH BEING REQUIRED TO FOREGO THEIR VACATIONS, WOULD PERMANENTLY FORFEIT BECAUSE OF EXCESS ACCUMULATION, OR BECAUSE OF LACK OF ACCUMULATION PRIVILEGES, ANY LEAVE DUE THEM UNDER EXISTING LAW AND REGULATIONS. SUCH COMPENSATION SHALL BE ONLY FOR THE PORTION OF THE REQUESTED LEAVE WHICH OTHERWISE WOULD BE FORFEITED AND SHALL BE, IN ADDITION TO THEIR REGULAR PAY, THE EQUIVALENT OF THE PAY THEY WOULD HAVE DRAWN FOR SUCH LEAVE: PROVIDED, THAT ANY COMPENSATION IN LIEU OF ANNUAL LEAVE SHALL NOT BE SUBJECT TO DEDUCTIONS FOR RETIREMENT PURPOSES.

SECTION 2. EMPLOYEES TO WHICH SECTION 1 HEREOF IS APPLICABLE WHO ARE ENGAGED IN CONSTRUCTION, MANUFACTURING, PROCESSING, AND SIMILAR PURSUITS, AND WHOSE SERVICES ARE OF A CHARACTER IN DEMAND BY PRIVATE INDUSTRY AND CANNOT BE SPARED WITHOUT DETRIMENT TO THE NATIONAL DEFENSE, MAY BE ALLOWED COMPENSATION IN LIEU OF CURRENT ANNUAL LEAVE DUE THEM UNDER EXISTING LAW AND REGULATIONS, REGARDLESS OF THE AMOUNT OF ACCUMULATED LEAVE TO THEIR CREDIT: PROVIDED, THAT THE MAXIMUM LEAVE IN LIEU OF WHICH SUCH COMPENSATION MAY BE PAID SHALL NOT EXCEED THE AMOUNT OF ACCRUED LEAVE TO THE CREDIT OF THE EMPLOYEE AT THE TIME OF THE PAYMENT AND IN ANY CALENDAR YEAR SHALL NOT EXCEED THE CURRENT ANNUAL LEAVE TO WHICH HE IS ENTITLED DURING THAT CALENDAR YEAR AND WHICH HE HAS NOT TAKEN.

SECTION 3. THE NUMBER OF DAYS FOR WHICH AN EMPLOYEE IS GRANTED COMPENSATION IN LIEU OF ANNUAL LEAVE SHALL BE DEDUCTED FROM THE LEAVE TO WHICH HE IS ENTITLED BY LAW OR REGULATION.

SECTION 4. THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, THE SECRETARY OF THE TREASURY, AND THE GOVERNOR OF THE PANAMA CANAL MAY DELEGATE TO SUCH SUBORDINATE OFFICERS AS THEY DEEM NECESSARY THE AUTHORITY TO REQUIRE EMPLOYEES TO FOREGO ANNUAL LEAVE WHEN THEIR SERVICES CANNOT BE SPARED WITHOUT DETRIMENT TO THE NATIONAL DEFENSE AND TO AUTHORIZE PAYMENT OF COMPENSATION IN LIEU OF ANNUAL LEAVE TO SUCH EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS OF THESE REGULATIONS. SUCH OFFICERS SHALL BE REQUIRED TO AUTHORIZE SPECIFICALLY IN ADVANCE ALL PAYMENTS OF COMPENSATION IN LIEU OF ANNUAL LEAVE TO SUCH EMPLOYEES IN ACCORDANCE WITH THE PROVISIONS OF THESE REGULATIONS. SUCH OFFICERS SHALL BE REQUIRED TO AUTHORIZE SPECIFICALLY IN ADVANCE ALL PAYMENTS OF COMPENSATION IN LIEU OF ANNUAL LEAVE, AND SPECIFICALLY TO CERTIFY THAT EACH EMPLOYEE FOR WHOM SUCH COMPENSATION IS AUTHORIZED WAS REQUIRED TO FOREGO HIS VACATION BECAUSE HIS SERVICES COULD NOT IN THE JUDGMENT OF THE CERTIFYING OFFICER BE SPARED WITHOUT DETRIMENT TO THE NATIONAL DEFENSE AT THAT TIME OR AT ANY TIME DURING THE THEN CURRENT CALENDAR YEAR AND THAT IT HAD BEEN DETERMINED THAT ADDITIONAL QUALIFIED EMPLOYEES COULD NOT BE SECURED TO MEET THE REQUIREMENTS OF THE SITUATION. IF THE EMPLOYEE IS DEEMED TO BE ENTITLED TO COMPENSATION UNDER THE TERMS OF SECTION 2 ABOVE, IT MUST BE FURTHER CERTIFIED THAT HE IS ENGAGED IN CONSTRUCTION, MANUFACTURING, PROCESSING, OR A SIMILAR PURSUIT AND THAT HIS SERVICES ARE OF A CHARACTER IN DEMAND BY PRIVATE INDUSTRY.

SECTION 5. NO EMPLOYEE SHALL BE REQUIRED TO FOREGO HIS VACATION WHO, BECAUSE OF HIS PHYSICAL CONDITION OR THE CHARACTER OR LOCATION OF HIS EMPLOYMENT OR FOR ANY OTHER EXCEPTIONALLY URGENT REASON, IS DETERMINED BY A RESPONSIBLE OFFICER DESIGNATED BY THE HEAD OF THE PROPER DEPARTMENT OR AGENCY TO REQUIRE, IN THE INTEREST OF HEALTH OR EFFICIENCY, ALL OR ANY PORTION OF THE ANNUAL LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW OR REGULATION.

SECTION 6. THE SECRETARY OF WAR, THE SECRETARY OF THE NAVY, THE SECRETARY OF THE TREASURY, AND THE GOVERNOR OF THE PANAMA CANAL MAY ISSUE FOR THEIR RESPECTIVE SERVICES NECESSARY INSTRUCTIONS NOT INCONSISTENT HEREWITH TO CARRY OUT THE PROVISIONS OF SECTION 7 OF THE ACT OF JUNE 28, 1940, SUPRA, AND SECTION 2 OF THE ACT OF JUNE 3, 1941, SUPRA.

SECTION 7. THIS ORDER SHALL BECOME EFFECTIVE IMMEDIATELY AND SHALL BE PUBLISHED IN THE FEDERAL REGISTER.

PARAGRAPH 3D OF MEMORANDUM OR LETTER OF THE UNDER SECRETARY OF WAR DATED JULY 15, 1941, REFERRED TO IN THE LETTER OF OCTOBER 28, 1941, SUPRA, READS AS FOLLOWS:

FIELD SERVICE EMPLOYEES WHO ARE ENTITLED TO COMPENSATION UNDER SECTION 2 OF EXECUTIVE ORDER NO. 8817 SHALL BE CLASSED AS "INDUSTRIAL" AND SO DESIGNATED IN THE CERTIFICATE OR ON THE LIST ACCOMPANYING THE CERTIFICATE REFERRED TO IN THE SUCCEEDING SUBPARAGRAPH HEREOF. THE WORD ,INDUSTRIAL" AS USED HEREIN, SHALL APPLY ONLY TO EMPLOYEES OCCUPYING POSITIONS NOT CLASSIFIED UNDER THE CLASSIFICATION ACT OF MARCH 4, 1923 (42 STAT. 1488; 5 U.S.C. CH. 13), AS AMENDED.

BUT IT IS UNDERSTOOD THAT THE SUBMITTED QUESTIONS ARE DIRECTED ONLY TO "NONINDUSTRIAL" EMPLOYEES COMING WITHIN THE PROVISIONS OF SECTION 1 OF THE EXECUTIVE ORDER, SUPRA.

THE CONCLUSION IN THE STATEMENT QUOTED IN YOUR UNDATED LETTER, SUPRA, CONCURRENCE IN WHICH IS INDICATED IN YOUR LETTER, IS NOT ENTIRELY CORRECT. IN THE DECISION OF AUGUST 26, 1940, SUPRA, IT WAS STATED:

* * * IT WOULD BE PROPER, THEREFORE, TO GRANT THESE EMPLOYEES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, BUT THE ACCRUAL ON THAT BASIS WOULD HAVE TO BE LIMITED TO 104 DAYS FOR 4 YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. * * *

HENCE, IF THE WAR DEPARTMENT HAS CONCLUDED, OR SHOULD CONCLUDE, TO GRANT THESE EMPLOYEES ANNUAL LEAVE AT THE RATE OF 26 DAYS PER ANNUM, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, THE RATE OF ACCRUAL SHOULD BE UPON THE SAME BASIS, NOT TO EXCEED 104 DAYS, EXCLUSIVE OF SUNDAYS AND HOLIDAYS, FOR 4 CONSECUTIVE YEARS, INCLUDING THE YEAR CURRENT WHEN THE LEAVE IS TAKEN. OTHER WORDS, IT WOULD NOT BE PROPER TO EXCLUDE SUNDAYS AND HOLIDAYS IN COMPUTING CURRENT LEAVE AND INCLUDE SUNDAYS AND HOLIDAYS IN COMPUTING ACCUMULATED LEAVE.

THERE IS NOTHING IN THE ACT OF JUNE 3, 1941, PUBLIC LAW 100, OR EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941, IMPLEMENTING THE STATUTE, WHICH EXCLUDES FROM THE BENEFITS THEREOF CIVILIAN EMPLOYEES STATIONED OUTSIDE THE LIMITS OF THE CONTINENTAL UNITED STATES. ON THE CONTRARY, THE INCLUSION OF THE PANAMA CANAL SHOWS A DEFINITE INTENTION TO INCLUDE SUCH EMPLOYEES WITHIN THE BENEFITS OF THE STATUTE.

CIVILIAN EMPLOYEES OF THE WAR DEPARTMENT STATIONED OUTSIDE THE LIMITS OF THE CONTINENTAL UNITED STATES ACCRUE LEAVE AT THE RATE OF 30 DAYS EACH YEAR INCLUSIVE OF SUNDAYS AND HOLIDAYS OR 26 DAYS EACH YEAR EXCLUSIVE OF SUNDAYS AND HOLIDAYS, AND SUCH LEAVE ACCUMULATES THROUGH 4 CONSECUTIVE YEARS OF SERVICE. THE 30 OR 26 DAYS' LEAVE IS PROPERLY CLASSED AS CURRENT LEAVE ONLY DURING THE YEAR IN WHICH IT ACCRUES. AFTER THAT YEAR IT IS PROPERLY CLASSED AS ACCUMULATED LEAVE DURING THE REMAINING THREE YEARS OF CONSECUTIVE SERVICE. SECTION 1 OF EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941, HERE INVOLVED, AUTHORIZES PAYMENT FOR THE CURRENT LEAVE--- NOT ACCUMULATED LEAVE--- THAT AN EMPLOYEE WOULD PERMANENTLY FORFEIT IF HE IS REQUIRED TO FOREGO HIS VACATION. ACCORDINGLY, IF AN EMPLOYEE APPLIES FOR AND IS DENIED DURING HIS FOURTH CONSECUTIVE YEAR OF SERVICE THE AMOUNT OF ANNUAL LEAVE HE WOULD FORFEIT AT THE END OF THAT YEAR, NOT TO EXCEED 26 DAYS EXCLUSIVE OF SUNDAYS AND HOLIDAYS, HE MAY BE PAID FOR SUCH LEAVE, SUBJECT TO THE TERMS AND CONDITIONS OF SECTION 1 OF EXECUTIVE ORDER NO. 8817--- SUBJECT TO THE CONDITION THAT THE AMOUNT PAYABLE AT ANY TIME IN THE CURRENT YEAR MAY NOT EXCEED THE VALUE OF THAT PORTION OF THE CURRENT YEAR'S LEAVE WHICH HAS ACCRUED AT THE TIME OF THE PAYMENT.

REFERRING TO PARAGRAPH 2 OF THE LETTER OF OCTOBER 9, 1941, FROM THE COMMANDING OFFICER OF THE HAWAIIAN ORDNANCE DEPOT, SECTION 3 OF THE ACT OF JUNE 3, 1941, PUBLIC LAW 100, PROVIDES THAT ,SECTION 2 OF THIS ACT * * * SHALL BE ADMINISTERED IN ACCORDANCE WITH SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY PRESCRIBE.' SECTION 7 OF EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941, PROVIDES THAT THE REGULATIONS SHALL BECOME EFFECTIVE "IMMEDIATELY," WHICH MAY BE ACCEPTED AS MEANING THE DATE OF THE EXECUTIVE ORDER, TO WIT, JULY 5, 1941.

IN DECISION OF JANUARY 5, 1942, B-21911, 21 COMP. GEN. 629, IT WAS STATED IN ANSWER TO QUESTIONS A AND S AS FOLLOWS:

QUESTION A: IN THE PENULTIMATE SENTENCE OF THE ANSWER, IT IS INDICATED THAT AT THE CLOSE OF THE CALENDAR YEAR THE EMPLOYEE MAY BE PAID AUTOMATICALLY FOR ANY REMAINING CURRENT ANNUAL LEAVE WHICH WOULD OTHERWISE BE FORFEITED BECAUSE THE ACCUMULATED LEAVE HAS ALREADY REACHED THE MAXIMUM TOTAL OF SIXTY DAYS PERMITTED BY STATUTE. BUT IT IS MANIFEST THAT NO EMPLOYEE MAY BE PAID FOR A VACATION WHICH HE HAS NOT REQUESTED PERMISSION TO TAKE AND WHICH PERMISSION HAS AUTHORITATIVELY BEEN DENIED HIM. SECTION 1 OF THE EXECUTIVE ORDER LIMITS COMPENSATION TO THE "REQUESTED" LEAVE WHICH OTHERWISE WOULD BE FORFEITED, WHILE SECTION 4 REQUIRES THE PROPER OFFICER TO CERTIFY THAT THE EMPLOYEE WAS "REQUIRED TO FOREGO" HIS VACATION. SUCH REGULATIONS ARE APPROPRIATE, IF NOT ESSENTIAL, TO CARRY OUT THE PURPOSE OF THE ACT, WHICH IS TO PROVIDE A PAYMENT WHICH IS "LIMITED TO ONLY THOSE EMPLOYEES WHO FOREGO THEIR VACATIONS * * *" ( HOUSE REPORT NO. 593, 77TH CONGRESS, AND SEE SENATE REPORT NO. 335). AS TO THE REQUIREMENT IN THE FINAL SENTENCE OF THE ANSWER TO QUESTION A, SEE MY COMMENTS REGARDING QUESTION S, INFRA.

QUESTION S: IF AN ELIGIBLE EMPLOYEE HAS COMPLIED WITH THE STATUTE BY ACTUALLY REQUESTING LEAVE IN ADVANCE (WHETHER SUCH APPLICATION BE MADE FORMALLY, ORALLY, OR OTHERWISE), AND IF SUCH APPLICATION HAS BEEN AUTHORITATIVELY DENIED, AND IF, ALSO, DURING SUCH PERIOD, HE REMAINS AT WORK, HIS RIGHT TO THE PAYMENT MUST BE REGARDED AS COMPLETE AND VESTED, SUBJECT ONLY TO THE CERTIFICATION REQUIRED BY SECTION 4 OF THE EXECUTIVE ORDER. THAT CERTIFICATION, AND THE ACTUAL DISBURSEMENT UPON THE PAY ROLL, MAY FOLLOW AT ANY PROPER DATE, WHETHER IN THE SAME OR A SUBSEQUENT CALENDAR YEAR OR YEARS.

ACCORDINGLY, ALTERNATIVE ANSWER C IN PARAGRAPH 2 OF THE COMMANDER'S LETTER OF OCTOBER 9, 1941, IS CORRECT, PROVIDED THE REQUEST FOR, AND DENIAL OF, LEAVE WAS MADE ON OR AFTER JULY 5, 1941, DATE OF THE EXECUTIVE ORDER. A REQUEST FOR LEAVE PRIOR TO JULY 5, 1941, MAY NOT NOW BE GIVEN CONSIDERATION UNDER THE TERMS OF THE STATUTE AND EXECUTIVE ORDER.

WITH REFERENCE TO THE EXAMPLE STATED IN PARAGRAPH 3 OF THE COMMANDER'S LETTER, ANNUAL LEAVE ACCUMULATES ON THE BASIS OF THE YEAR, NOT ON THE BASIS OF THE MONTH. IF IT IS MEANT BY SUBSECTION B THAT THIS EMPLOYEE HAD, ON JANUARY 1, 1941, ACCUMULATED 104 DAYS OF ANNUAL LEAVE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS--- COUNTING THE CALENDAR YEAR 1940 AS THE FOURTH YEAR--- HE HAD ALREADY FORFEITED AS OF THAT DATE 26 DAYS' LEAVE NONE OF WHICH COULD BE COMPENSATED FOR UNDER THE TERMS OF SECTION 1 OF THE EXECUTIVE ORDER, SUPRA. HOWEVER, IF IT IS MEANT THAT 1941 WAS THE FOURTH YEAR, THERE WOULD BE FOR FORFEITING 26 DAYS' CURRENT ANNUAL LEAVE WHICH ACCRUED DURING THE CALENDAR YEAR 1941, IN WHICH EVENT THE EMPLOYEE, AS HE APPLIED FOR AND WAS DENIED 26 DAYS' ANNUAL LEAVE EXCLUSIVE OF SUNDAYS AND HOLIDAYS AFTER JULY 5, 1941, DATE OF THE EXECUTIVE ORDER, COULD NOW (AFTER JANUARY 1, 1942) BE PAID FOR THAT AMOUNT OF LEAVE IF HE OTHERWISE QUALIFIED UNDER THE TERMS OF THE STATUTE AND SECTION 1 OF THE EXECUTIVE ORDER. THAT IS, SUBSECTION E (1), SUBJECT TO THE FOREGOING QUALIFICATIONS, APPEARS TO BE THE CORRECT ANSWER.