B-27048, JULY 20, 1942, 22 COMP. GEN. 47

B-27048, JULY 20, 1942, 22 COMP. GEN. 47

OFFICERS AND EMPLOYEES - LEAVE PAYMENTS CONCURRENTLY WITH MILITARY DUTY RIGHTS IN GENERAL; RETROACTIVE RESIGNATION DATE CHANGES UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, A CIVILIAN EMPLOYEE UPON ENTERING ON ACTIVE MILITARY OR NAVAL DUTY, IS ENTITLED TO PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH THE MILITARY OR NAVAL DUTY WHETHER HE BE SEPARATED FROM HIS CIVILIAN POSITION BY RESIGNATION, ADMINISTRATIVE SEPARATION, OR FURLOUGH, AND REGARDLESS OF WHETHER HE ENTERS THE MILITARY OR NAVAL FORCES BY INDUCTION, VOLUNTARY ENLISTMENT, OR OTHERWISE, PROVIDED THERE BE NO BREAK IN SERVICE BETWEEN CIVILIAN AND MILITARY SERVICE. WHERE, SUBSEQUENT TO MAY 1, 1940, AND PRIOR TO THE ACT OF APRIL 7, 1942, EXTENDING TO EMPLOYEES VOLUNTARILY ENLISTED IN THE ARMED FORCES AFTER MAY 1, 1940, THE PAYMENT-FOR-LEAVE BENEFITS OF THE ACT OF AUGUST 1, 1941, A CIVILIAN EMPLOYEE RESIGNED FROM HIS POSITION TO ENLIST IN THE NAVY WITHOUT A BREAK IN SERVICE INTERVENING BETWEEN HIS CIVILIAN AND NAVAL SERVICE, THE EFFECTIVE DATE OF THE RESIGNATION MAY NOW BE CHANGED SO AS TO INCLUDE THE PERIOD OF ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE FOR WHICH HE IS ENTITLED TO PAYMENT CONCURRENTLY WITH ACTIVE NAVAL DUTY UNDER SAID ACT OF APRIL 7, 1942. 21 COMP. GEN. 403, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 20, 1942:

I HAVE YOUR LETTER OF JUNE 26, 1942, AS FOLLOWS:

REFERENCE IS MADE TO THE CASE OF JOHN W. MILES, JR., WHO RESIGNED FROM A POSITION OF SENIOR TYPIST, CAF-2, $1,440 PER ANNUM, VETERANS' ADMINISTRATION, COLUMBIA, SOUTH CAROLINA, WITHOUT PREJUDICE, EFFECTIVE AT THE CLOSE OF BUSINESS DECEMBER 19, 1941, ENLISTED IN THE NAVY DECEMBER 20, 1941, AND WHO HAS MADE APPLICATION TO BE PAID FOR ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF ENLISTMENT.

THERE IS PRESENTED FOR YOUR DECISION THE QUESTION OF WHETHER MR. MILES MAY BE PAID FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF HIS ENLISTMENT UNDER THE PROVISIONS OF PUBLIC 517--- 77TH CONGRESS, APPROVED APRIL 7, 1942, WHICH STATES " 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, SUBSEQUENTLY TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, 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.'

IF THE DECISION IS FAVORABLE IT IS DESIRED TO HAVE INFORMATION AS TO WHETHER THE EFFECTIVE DATE OF RESIGNATION IN THIS CASE OR SEPARATIONS IN OTHER CASES MAY BE CHANGED SO AS TO ISSUE PAYMENT COVERING ANNUAL LEAVE CONCURRENTLY WITH MILITARY OR NAVAL DUTY. IF THIS MAY NOT BE DONE, A DECISION IS REQUESTED AS TO HOW IT SHOULD BE HANDLED. THESE QUESTIONS ARE RAISED SINCE IT HAS BEEN ESTABLISHED BY A NUMBER OF COMPTROLLER GENERAL'S DECISIONS, THAT WHEN AN AUTHORIZED SEPARATION, BY RESIGNATION OR OTHERWISE, BECOMES AN ACCOMPLISHED FACT, IT CANNOT THEREAFTER BE RESCINDED AND SET ASIDE FOR ADMINISTRATIVE ACTION. FOR INSTANCE, 21 COMP. GEN. 403 STATES " ACTION TAKEN TO SEPARATE AN EMPLOYEE FROM THE GOVERNMENT SERVICE UPON HIS VOLUNTARY ENLISTMENT IN THE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940, MAY NOT THEREAFTER BE RESCINDED BY RETROACTIVELY CHANGING THE ADMINISTRATIVE RECORDS TO SHOW SUCH EMPLOYEE AS IN A LEAVE-WITHOUT-PAY STATUS, NOTWITHSTANDING THE PROVISIONS OF SECTION 7 OF THE SERVICE EXTENSION ACT OF 1941.'

UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC 517, 56 STAT. 200, QUOTED IN THE SECOND PARAGRAPH OF YOUR LETTER, AN EMPLOYEE IS ENTITLED TO BE PAID FOR THE ACCUMULATED AND/OR CURRENT ACCRUED ANNUAL LEAVE TO HIS CREDIT WHEN HE ENTERS THE MILITARY OR NAVAL SERVICE, REGARDLESS OF THE NATURE OF THE SEPARATION FROM HIS CIVILIAN POSITION, WHETHER BY RESIGNATION, ADMINISTRATIVE SEPARATION, OR FURLOUGH, AND REGARDLESS OF THE NATURE OF HIS ENTRY INTO THE MILITARY OR NAVAL SERVICE, WHETHER BY VOLUNTARY ENLISTMENT, INDUCTION, ACCEPTANCE OF A COMMISSION, ORDER TO ACTIVE DUTY AS A RESERVE OFFICER, OR OTHERWISE, PROVIDED THERE BE NO BREAK IN SERVICE BETWEEN CIVILIAN AND MILITARY SERVICE.

ACCORDINGLY, IN THE CASE PRESENTED, AS THERE WAS NO BREAK BETWEEN SERVICE IN THE CIVILIAN POSITION WHICH TERMINATED BY RESIGNATION DECEMBER 19, 1941, AND ENTRANCE UPON NAVAL SERVICE BY ENLISTMENT EFFECTIVE DECEMBER 20, 1941, THE QUESTION IN THE SECOND PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.

IN THE CASE HERE PRESENTED AND IN OTHER SIMILAR CASES, IT IS PROPER TO CHANGE THE DATE OF RESIGNATION OR OTHER SEPARATION FROM A CIVILIAN POSITION SO AS TO INCLUDE THE PERIOD OF ANNUAL LEAVE FOR WHICH PAYMENT IS AUTHORIZED TO BE MADE, AND IS MADE, UNDER THE ACT OF APRIL 7, 1942. THIS EXCEPTION TO THE GENERAL RULE IS REQUIRED BY REASON OF THE PROVISIONS OF THAT STATUTE AND BECAUSE THE PERIOD OF ANNUAL LEAVE--- WHICH IS SYNONYMOUS WITH A DUTY STATUS--- MUST BE INCLUDED AS A PART OF THE SERVICE IN THE CIVILIAN POSITION FOR ALL PURPOSES. THAT IS TO SAY, THERE MUST BE ESTABLISHED A CIVILIAN EMPLOYEE STATUS UPON WHICH THE CONCURRENT CIVILIAN COMPENSATION AUTHORIZED BY SAID ACT MAY OPERATE, AND THAT CAN BE ACCOMPLISHED ONLY BY CHANGING THE EFFECTIVE DATE OF RESIGNATION IN THIS CLASS OF CASES. THE RULE IN THE REFERRED-TO DECISION OF NOVEMBER 3, 1941, 21 COMP. GEN. 403, WHICH WAS STATED PRIOR TO THE ENACTMENT OF APRIL 7, 1942, MUST YIELD TO EFFECTUATE THE PURPOSES OF SAID ACT.