B-25775, MAY 18, 1942, 21 COMP. GEN. 1023

B-25775: May 18, 1942

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LEAVES OF ABSENCE - ANNUAL - PAYMENTS FOR RELINQUISHED VACATIONS A WAR DEPARTMENT FIELD SERVICE EMPLOYEE WHO IS ENTITLED TO PAYMENT UNDER THE ACT OF JUNE 3. FOR A PERIOD OF ANNUAL LEAVE COVERING A RELINQUISHED VACATION IS NOT ENTITLED TO PAYMENT FOR SUNDAYS AND OTHER NONWORK DAYS OCCURRING AT THE BEGINNING OR END OF SUCH PERIOD. FOR WHICH 4 HOURS OR ONE-HALF DAY OF LEAVE IS CHARGED. ARE ENTITLED TO PAYMENT FOR ONLY SO MUCH OF THEIR CURRENT ACCRUED LEAVE COVERING A RELINQUISHED VACATION AS WOULD BE FORFEITED BECAUSE OF EXCESS ACCUMULATION. SHOULD CONTAIN A CERTIFICATION THAT THE LEAVE FOR WHICH PAYMENT IS PROPOSED WOULD BE FORFEITED AT THE END OF THE CALENDAR YEAR DURING WHICH THE LEAVE ACCRUED.

B-25775, MAY 18, 1942, 21 COMP. GEN. 1023

LEAVES OF ABSENCE - ANNUAL - PAYMENTS FOR RELINQUISHED VACATIONS A WAR DEPARTMENT FIELD SERVICE EMPLOYEE WHO IS ENTITLED TO PAYMENT UNDER THE ACT OF JUNE 3, 1941, AND THE PRESIDENT'S REGULATIONS ISSUED PURSUANT THERETO, FOR A PERIOD OF ANNUAL LEAVE COVERING A RELINQUISHED VACATION IS NOT ENTITLED TO PAYMENT FOR SUNDAYS AND OTHER NONWORK DAYS OCCURRING AT THE BEGINNING OR END OF SUCH PERIOD, BUT HE MAY BE PAID A FULL DAY'S SALARY FOR EVERY SATURDAY, FOR WHICH 4 HOURS OR ONE-HALF DAY OF LEAVE IS CHARGED, OCCURRING WITHIN OR ON THE FIRST OR LAST DAY OF THE PERIOD, AS WELL AS FOR SUNDAYS OCCURRING WITHIN SUCH PERIOD. VOUCHERS PROPOSING PAYMENT PURSUANT TO THE ACT OF JUNE 3, 1941, FOR ANNUAL LEAVE COVERING A VACATION APPLIED FOR AND DENIED TO THOSE WAR DEPARTMENT FIELD SERVICE EMPLOYEES WHO, UNDER SECTION 1 OF EXECUTIVE ORDER NO. 8817 ISSUED PURSUANT TO THE ACT, ARE ENTITLED TO PAYMENT FOR ONLY SO MUCH OF THEIR CURRENT ACCRUED LEAVE COVERING A RELINQUISHED VACATION AS WOULD BE FORFEITED BECAUSE OF EXCESS ACCUMULATION, SHOULD CONTAIN A CERTIFICATION THAT THE LEAVE FOR WHICH PAYMENT IS PROPOSED WOULD BE FORFEITED AT THE END OF THE CALENDAR YEAR DURING WHICH THE LEAVE ACCRUED.

COMPTROLLER GENERAL WARREN TO LT. COL. G. L. BOYLE, U.S. ARMY, MAY 18, 1942:

BY FIRST ENDORSEMENT DATED APRIL 29, 1942, THE CHIEF OF FINANCE, WAR DEPARTMENT, FORWARDED HERE FOR CONSIDERATION YOUR LETTER DATED MARCH 4, 1942, AS FOLLOWS:

1. THE ENCLOSED STANDARD FORM 1013D COVERING CLAIM FOR PAYMENT OF ACCRUED ANNUAL LEAVE UNDER PROVISIONS OF ACT OF JUNE 3, 1941, PUBLIC LAW 100, 77TH CONGRESS AND EXECUTIVE ORDER NO. 8817 DATED JULY 5, 1941, HAS BEEN PRESENTED TO THE UNDERSIGNED, AN ACCOUNTABLE DISBURSING OFFICER, FOR PAYMENT.

2. DOUBT IS ENTERTAINED AS TO VALIDITY OF ENCLOSED CLAIM FOR THE FOLLOWING REASONS:

A. REMARKS ON ENCLOSED FORM 1013D INDICATE EMPLOYEE REQUESTED 14 1/2 DAYS' LEAVE FOR THE PERIOD SEPTEMBER 10, 1941 THROUGH SEPTEMBER 28, 1941; THAT SHE WAS GRANTED LEAVE FROM SEPTEMBER 10, 1941 THROUGH SEPTEMBER 14, 1941 WITH THE REMAINDER OF THE LEAVE DENIED. EMPLOYEE AGAIN REQUESTED LEAVE FOR 11 1/2 DAYS FOR PERIOD OCTOBER 4, 1941, THROUGH OCTOBER 19, 1941, AND THIS REQUEST WAS ALSO DENIED. THE QUESTION ARISES AS TO WHETHER OR NOT EMPLOYEE HAS REQUESTED LEAVE FOR 26 DAYS, 3 1/2 DAYS' LEAVE BEING GRANTED, OR HAS EMPLOYEE IN FACT REQUESTED LEAVE FOR A PERIOD OF 15 DAYS ONLY.

B. SECTION 2 OF PUBLIC LAW 100, 77TH CONGRESS, PROVIDES THAT FIELD SERVICE EMPLOYEES MAY "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.' AN ANALYSIS OF THE FOREGOING AS CONTAINED IN CIVILIAN PERSONNEL DIVISION MEMORANDUM NO. 141, OCTOBER 10, 1941, INDICATES THAT EMPLOYEES WOULD BE PAID FOR SUNDAYS AND OTHER NONWORK DAYS OCCURRING DURING VACATION PERIOD DENIED. IT IS NOTED BY THIS OFFICE THAT THE DATES SHOWN ON ENCLOSED CLAIM COVERING PERIODS OF DENIED LEAVE INCLUDE THREE SATURDAY HALF-HOLIDAYS AND THREE SUNDAYS OCCURRING EITHER AT THE BEGINNING OR TERMINATION OF THE PERIODS OF REQUESTED LEAVE. SINCE THESE DAYS AND HALF-DAYS DO NOT OCCUR DURING VACATION PERIOD DENIED, BUT RATHER AT THE BEGINNING OR TERMINATION THEREOF, DOUBT IS ENTERTAINED BY THIS OFFICE AS TO WHETHER OR NOT THESE SAME DAYS MAY BE COUNTED IN COMPUTATION OF THE NUMBER OF DAYS OF DENIED LEAVE FOR WHICH EMPLOYEE IS ENTITLED TO PAYMENT.

3. BECAUSE OF REASONS AS STATED ABOVE, THE ENCLOSED CLAIM IS FORWARDED WITH REQUEST FOR ADVANCE DECISION AS TO LEGALITY OF PAYMENT.

THE VOUCHER IN QUESTION, PROPOSING PAYMENT OF $150 TO ESTHER Z. HATTAN CLERK-STENOGRAPHER, FOR VACATION PAY FOR 30 DAYS AT THE RATE OF $1,800 PER ANNUM, CONTAINS THE FOLLOWING REMARKS AND CERTIFICATION:

THIS EMPLOYEE REQUESTED 14 1/2 DAYS' ANNUAL LEAVE ON SEPT. 9, 1941, TO BE EFFECTIVE SEPTEMBER 10, 1941, AND END SEPT. 28, 1941. SHE WAS GRANTED LEAVE FROM SEPT. 10, 1941, THROUGH SEPT. 14, 1941, AND THE BALANCE OF LEAVE REQUESTED WAS DENIED. AGAIN ON OCT. 3, 1941, THIS EMPLOYEE REQUESTED 11 1/2 DAYS' ANNUAL LEAVE, TO BE EFFECTIVE OCT. 4, 1941, AND END OCTOBER 19, 1941. THIS REQUEST WAS DENIED.

COMPENSATION IN LIEU OF ANNUAL LEAVE IS NOT SUBJECT TO RETIREMENT DEDUCTIONS. AUTHORITY FOR THE ABOVE PAYMENT: PUBLIC LAW 100--- 77TH CONGRESS, AS PUBLISHED IN BULLETIN NO. 19, WAR DEPARTMENT, DATED JULY 17, 1941.

I HEREBY CERTIFY THAT THE PERSON WHOSE NAME APPEARS ON THE ABOVE LIST IS A FIELD SERVICE EMPLOYEE OF THE WAR DEPARTMENT, WAS REQUIRED TO FOREGO HER VACATION FOR THE PERIODS INDICATED BECAUSE SUCH EMPLOYEE'S SERVICES COULD NOT BE SPARED, IN MY JUDGMENT, AT THIS TIME OR AT ANY TIME DURING THE CALENDAR YEAR, WITHOUT DETRIMENT TO THE NATIONAL DEFENSE, AND ADDITIONAL EMPLOYEES CANNOT BE SECURED TO MEET THE REQUIREMENTS OF THE SITUATION.

THERE ARE ATTACHED TO THE VOUCHER TWO APPLICATIONS BY THE EMPLOYEE FOR ANNUAL LEAVE, ONE BEING DATED SEPTEMBER 9, 1941, WITH AN ENDORSEMENT THEREON, OF THE SAME DATE, RESPECTIVELY, AS FOLLOWS:

APPLICATION: "REQUEST THAT I BE GRANTED FOURTEEN AND ONE-HALF (14 1/2) DAYS' ANNUAL LEAVE, EFFECTIVE SEPTEMBER 10, 1941 AND ENDING SEPTEMBER 28, 1941.'

INDORSEMENT: " ANNUAL LEAVE FOR 3 1/2 DAYS IS HEREBY GRANTED YOU, EFFECTIVE SEPTEMBER 10, 1941, AND ENDING SEPTEMBER 14, 1941. BALANCE OF REQUEST FOR ANNUAL LEAVE IS DENIED.' AND THE OTHER BEING DATED OCTOBER 3, 1941, WITH ENDORSEMENT THEREON OF THE SAME DATE, RESPECTIVELY, AS FOLLOWS:

APPLICATION: "REQUEST THAT I BE GRANTED ELEVEN AND ONE-HALF (11 1/2) DAYS ANNUAL LEAVE, EFFECTIVE OCTOBER 4, 1941, AND ENDING OCTOBER 19, 1941.'

INDORSEMENT: "REQUEST FOR ELEVEN AND ONE-HALF (11 1/2) DAYS OF ANNUAL LEAVE, EFFECTIVE OCTOBER 4, 1941 AND ENDING OCTOBER 19, 1941,IS HEREBY DENIED.'

REFERRING TO PARAGRAPH 2A OF YOUR LETTER, THE ABOVE-QUOTED APPLICATIONS AND ENDORSEMENTS ESTABLISHED THAT THE EMPLOYEE REQUESTED LEAVE FOR 26 DAYS, 3 1/2 DAYS OF WHICH WERE GRANTED, AND THE REMAINDER, 22 1/2 DAYS, DENIED. ALSO, SAID DOCUMENTS SHOW THAT THE 30 DAYS FOR WHICH PAYMENT IS PROPOSED INCLUDES TWO PERIODS, VIZ, (1) FROM AND INCLUDING MONDAY, SEPTEMBER 15, 1941, THROUGH SUNDAY, SEPTEMBER 28, 1941 (14 DAYS); AND (2) FROM AND INCLUDING SATURDAY, OCTOBER 4, 1941, THROUGH SUNDAY, OCTOBER 19, 1941 (16 DAYS).

WAR DEPARTMENT CIVILIAN PERSONNEL DIVISION MEMORANDUM NO. 141 DATED OCTOBER 10, 1941, REFERRED TO IN YOUR LETTER, WHICH MEMORANDUM WAS GIVEN CONSIDERATION IN DECISION OF THIS OFFICE DATED JANUARY 5, 1942, 21 COMP. GEN. 629, SETS FORTH A QUESTION AND ANSWER, AS FOLLOWS:

A. QUESTION: SHOULD THOSE EMPLOYEES UNDER SECTION 1 OF EXECUTIVE ORDER 8817 WHO WOULD PERMANENTLY FORFEIT, BECAUSE OF EXCESS ACCUMULATION, ANY LEAVE DUE THEM UNDER EXISTING LAWS AND REGULATIONS, AND WHO ARE ENTITLED TO COMPENSATION FOR SUCH TIME, BE PAID FOR THE INTERVENING SATURDAYS AND SUNDAYS DURING THE PERIOD FOR WHICH THEY ARE COMPENSATED?

ANSWER: SECTION 2 OF THE ACT OF JUNE 3, 1941 ( PUBLIC LAW NO. 100, 77TH CONGRESS), PROVIDES THAT FIELD SERVICE EMPLOYEES MAY 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.' FOR THE PERIOD OF VACATION DENIED THE EMPLOYEE AND FOR WHICH HE IS PAID, THE EMPLOYEE MUST BE CONSIDERED AS ON LEAVE FROM HIS CIVILIAN POSITION AND WOULD BE PAID FOR SUNDAYS AND OTHER NONWORK DAYS. THE EMPLOYEE MUST MAKE APPLICATION FOR LEAVE FOR A CERTAIN PERIOD IN ORDER TO TAKE ADVANTAGE OF THIS, OTHERWISE HE WOULD ONLY BE ELIGIBLE FOR COMPENSATION FOR THE ACTUAL NUMBER OF DAYS IN EXCESS OF 60 DAYS THAT HE WOULD AUTOMATICALLY FORFEIT ON THE FIRST OF JANUARY. THE EMPLOYEE SHOULD BE PAID BEFORE JANUARY 1 FOR THE LEAVE HE WOULD FORFEIT.

THE COMMENTS IN THE DECISION OF JANUARY 5, 1942, REGARDING THE ABOVE QUOTED PORTION OF THE WAR DEPARTMENT MEMORANDUM, ARE 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 60 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 * * *" (H. REPT. NO. 593, 77TH CONG., AND SEE S. REPT. NO. 335). AS TO THE REQUIREMENT IN THE FINAL SENTENCE OF THE ANSWER TO QUESTION A, SEE MY COMMENTS REGARDING QUESTION S, INFRA.

(S) CAN AN EMPLOYEE WHO MAKES APPLICATION FOR LEAVE PRIOR TO DECEMBER 31, AND THE LEAVE IS DENIED, BE COMPENSATED FOR SUCH LEAVE ON A PAY ROLL WHICH IS PAID AFTER DECEMBER 31?

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.

WITH REGARD TO THE QUESTION THERE PRESENTED, THIS OFFICE UNDERSTOOD THE QUOTED REGULATION AS AUTHORIZING PAYMENT ONLY FOR SUNDAYS AND OTHER NONWORK DAYS OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE WHICH WAS APPLIED FOR AND DENIED, AND NOT AS AUTHORIZING PAYMENT FOR NONWORK DAYS OCCURRING AT THE BEGINNING OR END OF SUCH VACATION PERIOD. SEE THE SECOND PARAGRAPH OF SYLLABUS OF THE DECISION OF JANUARY 5, 1942, READING AS FOLLOWS:

A WAR DEPARTMENT FIELD SERVICE EMPLOYEE WHO IS ENTITLED TO PAYMENT UNDER THE ACT OF JUNE 3, 1941, AND THE PRESIDENT'S REGULATIONS ISSUED PURSUANT THERETO, FOR SUCH TIME, BE PAID FOR THE INTERVENING SATURDAYS AND SUNDAYS DURING THE BUT WHICH WAS DENIED BECAUSE HIS SERVICES COULD NOT BE SPARED SHOULD BE PAID AS IF HE WERE ACTUALLY ON VACATION FOR THE PERIOD SO DENIED HIM, AND, THEREFORE, CREDIT FOR SUNDAYS AND OTHER NONWORK DAYS OCCURRING WITHIN SUCH PERIOD SHOULD BE ALLOWED.

ANY PERIOD OF ANNUAL LEAVE OF ABSENCE WITH PAY ALWAYS BEGINS AND ENDS ON A WORKDAY FOR WHICH LEAVE IS AUTHORIZED TO BE CHARGED. SEE THE ACT OF MARCH 2, 1940, 54 STAT. 38, AND SECTION 11 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940. SUNDAYS OR OTHER NONWORK DAYS FOR WHICH LEAVE IS NOT CHARGEABLE OCCURRING AT THE BEGINNING AND/OR END OF A PERIOD OF LEAVE APPLIED FOR AND DENIED, MAY NOT BE REGARDED AS A PART OF THE VACATION WHICH AN EMPLOYEE FOREGOES WHEN REQUIRED TO WORK AND FOR WHICH PAYMENT IS AUTHORIZED TO BE MADE UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 3, 1941, 55 STAT. 241, AND EXECUTIVE ORDER NO. 8817, DATED JULY 5, 1941.

ACCORDINGLY, PAYMENT ON THE VOUCHER MAY NOT BE MADE FOR SUNDAY, SEPTEMBER 28, 1941, OR SUNDAY, OCTOBER 19, 1941. HOWEVER, A FULL DAY'S SALARY MAY BE PAID FOR EVERY SATURDAY FOR WHICH FOUR HOURS OR ONE-HALF DAY'S LEAVE IS CHARGED OCCURRING ON THE FIRST OR LAST DAY OR WITHIN A PERIOD OF LEAVE APPLIED FOR AND DENIED, IN THIS CASE, SATURDAYS, SEPTEMBER 20 AND 27, OCTOBER 4, 11, AND 18, 1941, AND, ALSO, FOR SUNDAYS OCCURRING WITHIN A PERIOD OF LEAVE APPLIED FOR AND DENIED, IN THIS CASE, SUNDAYS, SEPTEMBER 21, OCTOBER 5, AND 12, 1941.

IN ADDITION TO CERTIFICATION SHOWN ON THE VOUCHER IT SHOULD BE CERTIFIED THAT THE EMPLOYEE WOULD HAVE PERMANENTLY FORFEITED ON JANUARY 1, 1942, THE LEAVE FOR WHICH PAYMENT IS HERE PROPOSED (SEE SECTION 1 OF EXECUTIVE ORDER NO. 8817/--- IT BEING UNDERSTOOD THAT THE EMPLOYEE HERE INVOLVED (A CLERK- STENOGRAPHER) MAY NOT BE REGARDED AS COMING WITHIN THE PURVIEW OF SECTION 2 OF SAID EXECUTIVE ORDER RELATING TO CURRENT ACCRUED LEAVE. ALSO, THE CERTIFICATE ON THE VOUCHER RELATIVE TO THE NECESSITY FOR FOREGOING OF THE EMPLOYEE'S REQUESTED LEAVE IS SIGNED BY E. J. PURFIELD, CAPTAIN, Q.M.C., ASSISTANT, BUT SAID OFFICER DOES NOT APPEAR TO BE ONE AUTHORIZED TO EXECUTE SUCH CERTIFICATIONS IN THIS CLASS OF CASES. SEE SUBPARAGRAPHS B AND C OF PARAGRAPH 3 OF MEMORANDUM OF THE UNDER SECRETARY OF WAR DATED JULY 15, 1941, QUOTED IN THE DECISION OF JANUARY 5, 1942, B-21911, 21 COMP. GEN. 629, AT PAGE 635.