B-22808, JANUARY 13, 1942, 21 COMP. GEN. 660

B-22808: Jan 13, 1942

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OFFICERS AND EMPLOYEES - LEAVE PAYMENTS AFTER MILITARY DUTY WHERE AN EMPLOYEE WHO WAS ON ORDERED MILITARY DUTY ON AUGUST 1. FOR ACCUMULATED AND CURRENT ACCRUED CIVILIAN LEAVE IN ADDITION TO MILITARY PAY BUT DECISION THEREON WAS NOT REACHED UNTIL AFTER RESTORATION TO HIS CIVILIAN POSITION. 1942: I HAVE YOUR LETTER OF DECEMBER 27. AT THE TIME THIS LETTER WAS RECEIVED INSPECTOR STEPHENS HAD TO HIS CREDIT 39 1/4 DAYS' ANNUAL LEAVE. STEPHENS ADDRESSED THIS LETTER TO THE INSPECTOR IN CHARGE WHILE HE WAS STILL ON ACTIVE MILITARY DUTY. HE RESUMED HIS CIVILIAN POSITION BEFORE A DECISION COULD BE REACHED WHETHER HE WAS ENTITLED TO COMPENSATION FOR ACCUMULATED ANNUAL LEAVE. YOUR DECISION IS REQUESTED WHETHER IN THE CIRCUMSTANCES MR.

B-22808, JANUARY 13, 1942, 21 COMP. GEN. 660

OFFICERS AND EMPLOYEES - LEAVE PAYMENTS AFTER MILITARY DUTY WHERE AN EMPLOYEE WHO WAS ON ORDERED MILITARY DUTY ON AUGUST 1, 1941, MADE APPLICATION PRIOR TO RELIEF FROM SUCH DUTY FOR COMPENSATION PURSUANT TO THE ACT OF AUGUST 1, 1941, FOR ACCUMULATED AND CURRENT ACCRUED CIVILIAN LEAVE IN ADDITION TO MILITARY PAY BUT DECISION THEREON WAS NOT REACHED UNTIL AFTER RESTORATION TO HIS CIVILIAN POSITION, THE EMPLOYEE MAY AT THIS TIME BE PAID FOR THE LEAVE SO APPLIED FOR, BUT A SIMILARLY SITUATED EMPLOYEE WHO MADE NO APPLICATION FOR COMPENSATION FOR HIS CIVILIAN LEAVE UNTIL AFTER RESTORATION TO HIS CIVILIAN POSITION MAY NOT BE PAID THEREFOR EXCEPT FOR THAT THEREAFTER TAKEN.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, JANUARY 13, 1942:

I HAVE YOUR LETTER OF DECEMBER 27, 1941, AS FOLLOWS:

POST OFFICE INSPECTOR DAVID H. STEPHENS WENT ON ACTIVE DUTY AS A CAPTAIN, ADJUTANT GENERAL'S DEPARTMENT ( POSTAL SECTION) RESERVE CORPS OF THE UNITED STATES ARMY ON MAY 25, 1941, AND HE RESUMED HIS CIVILIAN POSITION AS A POST OFFICE INSPECTOR ON OCTOBER 16, 1941.

MR. STEPHENS HAS ADDRESSED A LETTER TO THE INSPECTOR IN CHARGE OF HIS DIVISION READING IN PART AS FOLLOWS:

"IN CONNECTION WITH ORDER NO. 16188 (AMENDING SECTION 44, PARAGRAPH (A), POSTAL LAWS AND REGULATIONS) ( PUBLIC LAW 202), APPEARING IN POSTAL BULLETIN OF SEPTEMBER 15, 1941, WHICH I JUST SAW YESTERDAY, I WOULD APPRECIATE YOUR ADVICE AS TO WHETHER I COULD PROPERLY RECEIVE COMPENSATION FOR APPROXIMATELY THIRTY DAYS OF ACCUMULATED ANNUAL LEAVE.'

AT THE TIME THIS LETTER WAS RECEIVED INSPECTOR STEPHENS HAD TO HIS CREDIT 39 1/4 DAYS' ANNUAL LEAVE.

ALTHOUGH MR. STEPHENS ADDRESSED THIS LETTER TO THE INSPECTOR IN CHARGE WHILE HE WAS STILL ON ACTIVE MILITARY DUTY, HE RESUMED HIS CIVILIAN POSITION BEFORE A DECISION COULD BE REACHED WHETHER HE WAS ENTITLED TO COMPENSATION FOR ACCUMULATED ANNUAL LEAVE.

YOUR DECISION IS REQUESTED WHETHER IN THE CIRCUMSTANCES MR. STEPHENS MAY AT THIS TIME BE GRANTED COMPENSATION FOR ACCRUED LEAVE TO HIS CREDIT AT THE TIME HE ENTERED ON MILITARY DUTY. YOUR FURTHER DECISION IS REQUESTED AS TO THE PROPRIETY OF ALLOWING COMPENSATION FOR ACCRUED LEAVE IN ANY CASE WHEN APPLICATION IS MADE THEREFOR AFTER AN EMPLOYEE HAS RETURNED TO HIS CIVILIAN POSITION.

THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, PROVIDES AS FOLLOWS:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

THAT STATUTE IS EFFECTIVE FROM AND AFTER ITS DATE AND IS APPLICABLE TO ANY CIVILIAN OFFICER OR EMPLOYEE WHO HAD A STATUS ON AUGUST 1, 1941, ENTITLING HIM TO THE BENEFITS OF THE STATUTE. THEREFORE, IF MR. STEPHENS WAS IN THE ARMY ON ACTIVE DUTY ON AUGUST 1, 1941, AS A RESULT OF HIS HAVING BEEN ORDERED TO SUCH ACTIVE DUTY MAY 25, 1941 (AS DISTINGUISHED FROM VOLUNTARY ENTERING THE MILITARY SERVICE, SEE 21 COMP. GEN. 212; ID. 237), AND RETURNED TO HIS CIVILIAN POSITION OCTOBER 16, 1941, AFTER THE DATE OF THE STATUTE, SUPRA, HE MAY AT THIS TIME BE GRANTED COMPENSATION FOR THE ACCRUED LEAVE TO HIS CREDIT AT THE TIME HE ENTERED UPON MILITARY DUTY. COMPARE 21 COMP. GEN. 423, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

IF AN EMPLOYEE RETURNED TO HIS CIVILIAN POSITION FROM ACTIVE MILITARY SERVICE PRIOR TO AUGUST 1, 1941, THE DATE OF APPROVAL OF PUBLIC LAW 202, GRANTING TO EMPLOYEES ORDERED TO MILITARY DUTY THE RIGHT TO RECEIVE PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE IN ADDITION TO THEIR MILITARY PAY, HE WAS NOT IN A STATUS UPON WHICH THE STATUTE COULD OPERATE AND IS ENTITLED MERELY TO BE RECREDITED WITH SUCH LEAVE.

ALSO, IF AN EMPLOYEE WHO WAS IN THE MILITARY SERVICE ON AUGUST 1, 1941, DOES NOT APPLY FOR THE COMPENSATION COVERING THE PERIOD OF HIS ACCUMULATED LEAVE UNTIL AFTER HIS RETURN TO HIS CIVILIAN EMPLOYMENT, HE WILL BE REGARDED AS HAVING ELECTED TO HAVE SUCH LEAVE REMAIN TO HIS CREDIT AND CANNOT BE PAID THEREFOR EXCEPT FOR LEAVE THEREAFTER TAKEN.