B-25551, MAY 5, 1942, 21 COMP. GEN. 989

B-25551: May 5, 1942

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LEAVES OF ABSENCE - SICK - ADVANCES - "WAR SERVICE" APPOINTEES SICK LEAVE MAY BE ADVANCED TO EMPLOYEES GIVEN " WAR SERVICE" APPOINTMENTS FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER PURSUANT TO THE CIVIL SERVICE REGULATIONS PROMULGATED UNDER EXECUTIVE ORDER NO. 9063 TO THE SAME EXTENT AND UPON THE SAME BASIS AS SICK LEAVE IS AUTHORIZED TO BE ADVANCED TO PERMANENT EMPLOYEES. 1942: I HAVE YOUR LETTER OF APRIL 22. ARE ENTITLED TO ADVANCED SICK LEAVE WITH PAY. TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANY ADVANCE SICK LEAVE. IT WAS HELD THAT A PROBATIONARY EMPLOYEE IS NOT ENTITLED UNDER THE SICK LEAVE ACT OF MARCH 14. YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES APPOINTED UNDER THE WAR SERVICE REGULATIONS LAST MENTIONED MAY BE ADVANCED ANY SICK LEAVE.

B-25551, MAY 5, 1942, 21 COMP. GEN. 989

LEAVES OF ABSENCE - SICK - ADVANCES - "WAR SERVICE" APPOINTEES SICK LEAVE MAY BE ADVANCED TO EMPLOYEES GIVEN " WAR SERVICE" APPOINTMENTS FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER PURSUANT TO THE CIVIL SERVICE REGULATIONS PROMULGATED UNDER EXECUTIVE ORDER NO. 9063 TO THE SAME EXTENT AND UPON THE SAME BASIS AS SICK LEAVE IS AUTHORIZED TO BE ADVANCED TO PERMANENT EMPLOYEES, EXCEPT THAT DURING A WAR SERVICE APPOINTEE'S TRIAL PERIOD, WHICH MAY BE REGARDED AS TANTAMOUNT TO A "LIMITED APPOINTMENT" WITHIN THE MEANING OF SECTION 6 OF THE SICK LEAVE REGULATIONS, THE SICK LEAVE ADVANCED MAY NOT EXCEED THE AMOUNT THAT WOULD ACCUMULATE DURING SUCH PERIOD.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF NAVY, MAY 5, 1942:

I HAVE YOUR LETTER OF APRIL 22, 1942, JAG:S:MFL:KG SO-8580, AS FOLLOWS.

AN INQUIRY HAS BEEN RECEIVED FROM ONE OF THE NAVY YARDS AS TO WHETHER OR NOT CIVILIAN EMPLOYEES APPOINTED FOR THE DURATION OF THE NATIONAL DEFENSE PROGRAM UNDER EXECUTIVE ORDER NO. 8564 OF OCTOBER 8, 1940, ARE ENTITLED TO ADVANCED SICK LEAVE WITH PAY, AND IF SO, THE LIMIT OF THE AMOUNT THAT COULD BE SO ADVANCED.

BY THE PROVISIONS OF SECTION 4 OF THE STANDARD SICK LEAVE REGULATIONS PROMULGATED BY EXECUTIVE ORDER NO. 8385 OF MARCH 29, 1940, TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANY ADVANCE SICK LEAVE. IN DECISIONS OF THE COMPTROLLER GENERAL OF AUGUST 1, 1936 (16 COMP. GEN. 105), AND FEBRUARY 12, 1942 (21 COMP. GEN. 706), IT WAS HELD THAT A PROBATIONARY EMPLOYEE IS NOT ENTITLED UNDER THE SICK LEAVE ACT OF MARCH 14, 1936, AND REGULATIONS ISSUED PURSUANT THERETO, TO SICK LEAVE IN EXCESS OF THE AMOUNT THAT WOULD ACCUMULATE TO THE END OF THE PROBATIONARY PERIOD.

AS EMPLOYEES APPOINTED UNDER THE WAR SERVICE REGULATIONS FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER, UNDER THE PROVISIONS OF CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 323, DO NOT APPEAR TO COME WITHIN THE CATEGORY OF EITHER TEMPORARY OR PROBATIONARY EMPLOYEES, YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES APPOINTED UNDER THE WAR SERVICE REGULATIONS LAST MENTIONED MAY BE ADVANCED ANY SICK LEAVE, AND IF SO, TO WHAT EXTENT.

BY DIRECTION OF THE SECRETARY OF THE NAVY.

SECTIONS 3 AND 7 OF THE SICK LEAVE REGULATIONS OF MARCH 14, 1936, 49 STAT. 1162, PROVIDE AS FOLLOWS:

SEC. 3. ADMINISTRATIVE OFFICERS MAY ADVANCE THIRTY DAYS' SICK LEAVE WITH PAY BEYOND ACCRUED SICK LEAVE IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.

SEC. 7. THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

THE UNIFORM SICK LEAVE REGULATIONS ISSUED BY THE PRESIDENT ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940) CONTAINED THE FOLLOWING PROVISION:

SEC. 6. SICK LEAVE SHALL NOT BE ADVANCED IN AN AMOUNT THAT WOULD EXCEED THE TOTAL THAT WOULD ACCUMULATE DURING THE PERIOD FROM THE DATE OF THE ADVANCE TO THE TERMINATION OF A LIMITED APPOINTMENT (NOT TEMPORARY IN CHARACTER) OR ONE EXPIRING ON A SPECIFIED DATE.

EXECUTIVE ORDER NO. 9063, DATED FEBRUARY 16, 1942, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

1. THE UNITED STATES CIVIL SERVICE COMMISSION IS AUTHORIZED TO ADOPT AND PRESCRIBE SUCH SPECIAL PROCEDURES AND REGULATIONS AS IT MAY DETERMINE TO BE NECESSARY IN CONNECTION WITH THE RECRUITMENT, PLACEMENT, AND CHANGES IN STATUS OF PERSONNEL FOR ALL DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND OTHER FEDERAL AGENCIES, EXCEPT POSITIONS IN THE FIELD SERVICE OF THE POSTAL ESTABLISHMENT. THE PROCEDURES AND REGULATIONS THUS ADOPTED AND PRESCRIBED SHALL BE BINDING WITH RESPECT TO ALL POSITIONS AFFECTED THEREBY WHICH ARE SUBJECT TO THE PROVISIONS OF THE CIVIL SERVICE ACT AND RULES.

2. PERSONS APPOINTED SOLELY BY REASON OF ANY SPECIAL PROCEDURES ADOPTED UNDER AUTHORITY OF THIS ORDER TO POSITIONS SUBJECT TO THE PROVISIONS OF THE CIVIL SERVICE ACT AND RULES SHALL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL-SERVICE STATUS BUT, IN THE DISCRETION OF THE CIVIL SERVICE COMMISSION, MAY BE RETAINED FOR THE DURATION OF THE WAR AND FOR SIX MONTHS THEREAFTER.

UNITED STATES CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 323 CONSTITUTES THE REGULATIONS AND PROCEDURES FOR EFFECTING WAR SERVICE APPOINTMENTS UNDER EXECUTIVE ORDER NO. 9063, SUPRA. SECTIONS 2 AND 3 OF " REGULATION V," APPENDED TO SAID CIRCULAR, PROVIDE FOLLOWS:

SECTION 2. STATUS OF APPOINTEES.--- PERSONS APPOINTED UNDER THESE REGULATIONS WILL NOT THEREBY ACQUIRE A CLASSIFIED (COMPETITIVE) CIVIL SERVICE STATUS. UNLESS OTHERWISE SPECIFICALLY LIMITED SUCH APPOINTMENTS MAY BE FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER.

SECTION 3. TRIAL PERIOD.--- EXCEPT FOR PERSONS APPOINTED FOR A SPECIFIC PERIOD OF ONE YEAR OR LESS, THE FIRST SIX MONTHS OF SERVICE SHALL BE A TRIAL PERIOD, SATISFACTORY COMPLETION OF WHICH SHALL BE CONSIDERED PART OF THE ENTRANCE EXAMINATION. THE COMMISSION AND THE DEPARTMENT OR AGENCY CONCERNED MAY BY REGULATION FIX A LONGER TRIAL PERIOD FOR ANY SPECIFIED POSITIONS. FOR POSITIONS FOR WHICH THE PROBATIONARY PERIOD UNDER THE CIVIL SERVICE RULES HAS BEEN FIXED BY REGULATION AT ONE YEAR, THE TRIAL PERIOD UNDER THESE REGULATIONS WILL ALSO BE ONE YEAR. IF AND WHEN AFTER A FULL AND FAIR TRIAL THE CONDUCT OR CAPACITY OF THE TRIAL APPOINTEE BE NOT SATISFACTORY TO THE APPOINTING OFFICER, THE APPOINTEE MAY AT ANY TIME THEREAFTER DURING THE TRIAL PERIOD BE SO NOTIFIED IN WRITING AND SUCH NOTICE SHALL TERMINATE HIS SERVICE.

THE TERM "LIMITED APPOINTMENT," AS USED IN SECTION 6 OF THE SICK LEAVE REGULATIONS ABOVE QUOTED APPEARS TO COVER AN APPOINTMENT THE TENURE OF WHICH MAY, WITH REASONABLE CERTAINTY, BE MEASURED IN ADVANCE. WHILE WAR SERVICE APPOINTMENTS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063 AND THE CIVIL SERVICE REGULATIONS THEREUNDER ARE "LIMITED" IN THE SENSE THAT THEY ARE MADE "FOR THE DURATION OF THE WAR AND FOR 6 MONTHS THEREAFTER," THERE IS NO PRESENT MEANS OF DEFINITELY MEASURING THE TENURE OF SUCH APPOINTMENTS. THEREFORE, IT MAY BE CONCLUDED THAT WAR SERVICE APPOINTMENTS ARE NOT REQUIRED TO BE CLASSED AS "LIMITED APPOINTMENTS" WITHIN THE MEANING OF SECTION 6 OF THE SICK LEAVE REGULATIONS. COMPARE DECISION OF APRIL 10, 1942, B-24902, 21 COMP. GEN. 924, WHEREIN WAS DISCUSSED THE STATUS OF WAR SERVICE APPOINTMENTS IN RESPECT OF THE APPLICATION OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS.

HOWEVER, UNDER SECTION 3 OF " REGULATION V" OF CIVIL SERVICE REGULATIONS APPENDED TO DEPARTMENTAL CIRCULAR NO. 323, THE FIRST 6 MONTHS OR ONE YEAR, AS THE CASE MAY BE, OF A WAR SERVICE APPOINTMENT CONSTITUTES A TRIAL PERIOD AND MAY BE VIEWED AS TANTAMOUNT TO A PROBATIONARY OR ,LIMITED APPOINTMENT" WITHIN THE MEANING OF SECTION 6 OF THE SICK LEAVE REGULATIONS. SEE 16 COMP. GEN. 105; 21 ID. 766. COMPARE DECISION OF APRIL 21, 1942, B-24971.

YOU ARE ADVISED, THEREFORE, THAT DURING THE TRIAL PERIOD SICK LEAVE MAY BE ADVANCED TO EMPLOYEES SERVING UNDER WAR SERVICE APPOINTMENTS ONLY IN AN AMOUNT THAT WILL NOT EXCEED THE TOTAL THAT WOULD ACCUMULATE DURING SUCH PERIOD; BUT THAT, AFTER THE TRIAL PERIOD SHALL HAVE EXPIRED, SICK LEAVE MAY BE ADVANCED TO EMPLOYEES SERVING UNDER WAR SERVICE APPOINTMENTS TO THE SAME EXTENT AND UPON THE SAME BASIS AS IS AUTHORIZED TO BE ADVANCED TO PERMANENT EMPLOYEES. SEE SECTION 4 OF THE SICK LEAVE REGULATIONS.