B-25187, APRIL 22, 1942, 21 COMP. GEN. 945

B-25187: Apr 22, 1942

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COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS TIME ABSENT FROM DUTY DURING WHICH AN EMPLOYEE IS RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT SHOULD BE REGARDED AS A PERIOD OF LEAVE WITHOUT PAY IN APPLYING SECTION 2 OF EXECUTIVE ORDER NO. 8882 PRESCRIBING THE SERVICE THAT MAY BE CREDITED IN COMPUTING THE 18 OR 30 MONTHS' SERVICE NECESSARY TO ENTITLE EMPLOYEES TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1. 1942: I HAVE YOUR LETTER OF APRIL 9. AN EMPLOYEE RECEIVING COMPENSATION FROM THE EMPLOYEES' COMPENSATION COMMISSION EARNS LEAVE EVEN THOUGH HE IS IN A STATUS OF LEAVE WITHOUT PAY. YOUR RULING IS RESPECTFULLY REQUESTED WHETHER AN EMPLOYEE WHO HAS BEEN INJURED OR BECOMES ILL IN LINE OF DUTY AND WHO DRAWS COMPENSATION THEREFOR FROM THE EMPLOYEES' COMPENSATION COMMISSION WOULD BE INELIGIBLE FOR AN AUTOMATIC INCREASE IF HE IS ABSENT BECAUSE OF SUCH INJURY OR ILLNESS FOR MORE THAN THIRTY DAYS ON LEAVE WITHOUT PAY.

B-25187, APRIL 22, 1942, 21 COMP. GEN. 945

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS TIME ABSENT FROM DUTY DURING WHICH AN EMPLOYEE IS RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT SHOULD BE REGARDED AS A PERIOD OF LEAVE WITHOUT PAY IN APPLYING SECTION 2 OF EXECUTIVE ORDER NO. 8882 PRESCRIBING THE SERVICE THAT MAY BE CREDITED IN COMPUTING THE 18 OR 30 MONTHS' SERVICE NECESSARY TO ENTITLE EMPLOYEES TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 22, 1942:

I HAVE YOUR LETTER OF APRIL 9, 1942, AS FOLLOWS:

AN EMPLOYEE OF THIS DEPARTMENT HAS BEEN ABSENT ON ACCOUNT OF ILLNESS DURING WHICH TIME HE HAS BEEN RECEIVING COMPENSATION FROM THE EMPLOYEES' COMPENSATION COMMISSION. THE QUESTION HAS ARISEN WHETHER SUCH ABSENCE CONSTITUTES A BREAK IN SERVICE, THUS DESTROYING CONTINUITY OF SERVICE NECESSARY TO CONSTITUTE ELIGIBILITY FOR AN AUTOMATIC INCREASE UNDER THE MEAD-RAMSPECK ACT.

UNDER THE ANNUAL LEAVE REGULATIONS, AN EMPLOYEE RECEIVING COMPENSATION FROM THE EMPLOYEES' COMPENSATION COMMISSION EARNS LEAVE EVEN THOUGH HE IS IN A STATUS OF LEAVE WITHOUT PAY. SIMILARLY AN EMPLOYEE ACCUMULATES SERVICE CREDIT UNDER THE RETIREMENT ACT WHILE RECEIVING AN INCOME FROM THE EMPLOYEES' COMPENSATION COMMISSION.

YOUR RULING IS RESPECTFULLY REQUESTED WHETHER AN EMPLOYEE WHO HAS BEEN INJURED OR BECOMES ILL IN LINE OF DUTY AND WHO DRAWS COMPENSATION THEREFOR FROM THE EMPLOYEES' COMPENSATION COMMISSION WOULD BE INELIGIBLE FOR AN AUTOMATIC INCREASE IF HE IS ABSENT BECAUSE OF SUCH INJURY OR ILLNESS FOR MORE THAN THIRTY DAYS ON LEAVE WITHOUT PAY.

SECTION 2 OF THE PRESIDENT'S " REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS," EXECUTIVE ORDER NO. 8882 DATED SEPTEMBER 3, 1941, PROVIDES AS FOLLOWS:

IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

(A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH, EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

(B) TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY.

(C) TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

(D) SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.

SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940, PROVIDES IN PERTINENT PART AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT

(A) AN EMPLOYEE INJURED IN LINE OF DUTY MAY BE GRANTED LEAVE WITHOUT PAY, IF DESIRED, COVERING THE PERIOD OF ABSENCE NECESSARY TO RECOVER FROM SUCH INJURY, INSTEAD OF COVERING SUCH TIME BY ANNUAL LEAVE; AND DURING ABSENCE BECAUSE OF SUCH INJURY AND WHILE BEING PAID BY THE EMPLOYEES' COMPENSATION COMMISSION, SUCH AN EMPLOYEE SHALL CONTINUE TO EARN LEAVE, WHICH SHALL, HOWEVER, BE GRANTED ONLY IN THE EVENT OF HIS RETURN TO ACTUAL DUTY. ITALICS SUPPLIED.)

THE LAST-QUOTED REGULATION SPECIFICALLY DESIGNATES TIME ABSENT DURING A PERIOD AN EMPLOYEE IS RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT AS "LEAVE WITHOUT PAY.' THE FACT THAT ANNUAL LEAVE MAY BE EARNED DURING SUCH PERIOD AND THAT SUCH PERIOD MAY BE CREDITED FOR RETIREMENT PURPOSES HAS NO BEARING UPON THE QUESTION PRESENTED; RATHER THE QUESTION PRESENTED IS FOR DETERMINATION SOLELY IN THE LIGHT OF THE PRESIDENT'S REGULATIONS ISSUED PURSUANT TO THE ACT OF AUGUST 1, 1941, 55 STAT. 613. COMPARE 21 COMP. GEN. 369, 373. DURING ANY SUCH PERIOD THE EMPLOYEE IS NOT RECEIVING THE SALARY OF HIS POSITION AND IT FOLLOWS THAT HE MUST BE REGARDED AS ON LEAVE OF ABSENCE WITHOUT PAY FROM HIS POSITION WITHIN THE MEANING OF SUBSECTIONS (C) AND (D) OF SECTION 2 OF THE PRESIDENT'S REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS, AND THAT HE MAY NOT BE REGARDED AS IN CONTINUOUS CIVILIAN EMPLOYMENT WITHIN THE MEANING OF SUBSECTION (A); NEITHER MAY THE TIME INVOLVED IN SUCH PERIODS BE REGARDED AS TIME ELAPSING ON ANNUAL, SICK, OR OTHER LEAVE WITH PAY WITHIN THE MEANING OF SUBSECTION (B) OF SAID SECTION OF THE SAME REGULATIONS.

ACCORDINGLY, TIME ABSENT FROM DUTY DURING WHICH AN EMPLOYEE IS RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT SHOULD BE REGARDED AS ANY OTHER PERIOD OF LEAVE OF ABSENCE WITHOUT PAY FOR THE PURPOSE OF APPLYING THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER. THUS, IF AT THE BEGINNING OF ANY QUARTER AN EMPLOYEE HAS BEEN ABSENT WITHOUT PAY RECEIVING DISABILITY COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT FOR MORE THAN 30 DAYS, HE WOULD BE INELIGIBLE AT THAT TIME FOR AN AUTOMATIC PROMOTION. HIS ELIGIBILITY AT THE BEGINNING OF ANY SUBSEQUENT QUARTER WOULD BE FOR DETERMINATION UPON HIS RETURN TO DUTY, AT WHICH TIME THE SAME RULES WOULD BE FOR APPLICATION AS IN ANY OTHER CASE OF LEAVE OF ABSENCE WITHOUT PAY. SEE DECISION OF FEBRUARY 21, 1942, B-23577, 21 COMP. GEN. 791.