B-27100, JULY 8, 1942, 22 COMP. GEN. 3

B-27100: Jul 8, 1942

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WHO ENTER THE MILITARY OR NAVAL SERVICE ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1. EMPLOYEES ENTERING THE MILITARY OR NAVAL FORCES ARE NOT ENTITLED UNDER THE ACT OF AUGUST 1. 1942: I HAVE YOUR LETTER OF JUNE 29. AS FOLLOWS: REFERENCE IS MADE TO THE ACT OF APRIL 7. SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE. OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.'. IT IS CONSIDERED THAT SAID ACT OF APRIL 7. TWENTY-FOUR DAYS ANNUAL LEAVE WILL BE ALLOWED EACH EMPLOYEE FOR EACH YEAR AFTER ENTRY INTO SERVICE AND ANY ANNUAL LEAVE NOT USED PRIOR TO THE END OF THE SERVICE YEAR IN WHICH IT IS EARNED SHALL BE THEREAFTER IN THE SAME STATUS AND SUBJECT TO THE SAME RULES AS CUMULATIVE LEAVE. "29.

B-27100, JULY 8, 1942, 22 COMP. GEN. 3

PANAMA CANAL AND PANAMA RAILROAD CO. EMPLOYEES - LEAVE PAYMENTS WHILE ON MILITARY, ETC., DUTY; RECREDIT OF ACCRUED LEAVE ON RETURN TO CIVILIAN DUTY EMPLOYEES OF THE PANAMA CANAL AND THE PANAMA RAILROAD CO. WHO ENTER THE MILITARY OR NAVAL SERVICE ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE. PANAMA CANAL AND PANAMA RAILROAD CO. EMPLOYEES ENTERING THE MILITARY OR NAVAL FORCES ARE NOT ENTITLED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE, TO PAYMENT FOR ANY LEAVE TO THEIR CREDIT IN EXCESS OF THE 120 DAYS MAXIMUM AUTHORIZED BY THE PANAMA CANAL LEAVE REGULATIONS TO BE TAKEN AT ANY ONE TIME OR COMMUTED INTO CASH UPON TERMINATION OF SERVICE, BUT UPON RETURN TO THEIR CIVILIAN POSITIONS AFTER THE MILITARY OR NAVAL DUTY, THE EXCESS MAY BE RECREDITED. 21 COMP. GEN. 422, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE CHIEF OF OFFICE, THE PANAMA CANAL, JULY 8, 1942:

I HAVE YOUR LETTER OF JUNE 29, 1942, AS FOLLOWS:

REFERENCE IS MADE TO THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 77TH CONGRESS, AMENDING THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 77TH CONGRESS, 55 STAT. 616 (5 U.S.C. 61A), WHICH PROVIDES THAT GOVERNMENT EMPLOYEES "WHO, SUBSEQUENT 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.'

IT IS CONSIDERED THAT SAID ACT OF APRIL 7, 1942, APPLIES TO ALL PANAMA CANAL AND PANAMA RAILROAD COMPANY EMPLOYEES WHO ENTER INTO ACTIVE MILITARY OR NAVAL SERVICE. PERTINENT LEAVE PROVISIONS OF THE PANAMA CANAL'S CONDITIONS OF EMPLOYMENT EXECUTIVE ORDER OF FEBRUARY 2, 1914, AS AMENDED JANUARY 15, 1917 (SEE CANAL ZONE CODE, TITLE 2, SECTION 81, AS AMENDED JULY 9, 1937, CH. 470, SEC. 3, 50 STAT. 487, FOR STATUTORY AUTHORITY), PROVIDE AS FOLLOWS:

"22. TWENTY-FOUR DAYS ANNUAL LEAVE WILL BE ALLOWED EACH EMPLOYEE FOR EACH YEAR AFTER ENTRY INTO SERVICE AND ANY ANNUAL LEAVE NOT USED PRIOR TO THE END OF THE SERVICE YEAR IN WHICH IT IS EARNED SHALL BE THEREAFTER IN THE SAME STATUS AND SUBJECT TO THE SAME RULES AS CUMULATIVE LEAVE.

"29. THIRTY DAYS' CUMULATIVE LEAVE WILL BE ALLOWED EACH EMPLOYEE PAID ON A MONTHLY OR ANNUAL BASIS FOR EACH YEAR OF HIS SERVICE, AND TWENTY DAYS TO EACH EMPLOYEE PAID ON AN HOURLY BASIS. THIS LEAVE WILL BE DUE AFTER COMPLETING TEN MONTHS' SERVICE EACH YEAR AND MAY BE TAKEN WHEN THE EMPLOYEE'S SERVICE CAN BE SPARED. IT MAY BE TAKEN ANNUALLY OR LEFT TO ACCUMULATE TO THE CREDIT OF THE EMPLOYEE, PROVIDED, HOWEVER, THAT THE MAXIMUM NUMBER OF DAYS LEAVE WITH PAY OF ALL KINDS WHICH MAY BE GRANTED AT ANY ONE TIME OR WHICH MAY BE COMMUTED INTO A CASH PAYMENT AT TERMINATION OF SERVICE IS 120.

"35. AFTER ACCUMULATING LEAVE OF ALL KINDS AMOUNTING TO 120 DAYS, AN EMPLOYEE CEASES TO EARN ADDITIONAL CUMULATIVE LEAVE UNTIL HE IS GRANTED ALL OR PART OF THE CUMULATIVE LEAVE ALREADY EARNED, UNLESS HE SHALL ENTER ON CUMULATIVE LEAVE WITHIN TWO MONTHS THEREAFTER, OR BE ORDERED BY THE GOVERNOR TO DEFER TAKING LEAVE FOR OFFICIAL REASONS.

"36. WHEN AN EMPLOYEE'S SERVICE IS TERMINATED, A CASH PAYMENT IN COMMUTATION OF LEAVE WILL BE MADE TO HIM FOR THE NUMBER OF DAYS CUMULATIVE LEAVE DUE, PLUS THE ANNUAL LEAVE DUE. IN THE EVENT OF HIS DEATH HIS ESTATE WILL BE PAID THE SUM DUE.'

IN REFERENCE TO QUOTED SECTIONS 29 AND 35, IT IS PROVIDED IN SECTION 52.2 OF THE GOVERNOR'S PERSONNEL REGULATIONS DATED MARCH 1, 1928, THAT IN DETERMINING THE AMOUNT OF CUMULATIVE LEAVE, THE ANNUAL LEAVE SHOULD NOT BE ADDED TO MAKE THE CUMULATIVE LEAVE TOTAL OF 120 DAYS UNTIL THE END OF THE YEAR, WHEN IT BECOMES CUMULATIVE LEAVE AND LOSES ITS IDENTITY AS ANNUAL LEAVE, AND THAT IF, AT THE BEGINNING OF THE NEW SERVICE YEAR, THE EMPLOYEE HAS A TOTAL OF LESS THAN 120 DAYS' CUMULATIVE LEAVE PREVIOUSLY ACCUMULATED, HE CONTINUES TO EARN ANNUAL AND CUMULATIVE LEAVE IN THE REGULAR AMOUNTS THROUGHOUT THAT YEAR, SUBJECT TO THE LIMITATION THAT NOT MORE THAN 120 DAYS' LEAVE WITH PAY OF ALL KINDS MAY BE GRANTED AT ANY ONE TIME OR COMMUTED INTO A CASH PAYMENT AT TERMINATION OF SERVICE.

THERE IS ENCLOSED A COPY OF A CIRCULAR DATED MAY 28, 1942, STATING POLICIES WHICH, PENDING A DECISION UPON THE QUESTIONS HEREIN SUBMITTED, ARE BEING FOLLOWED WITH RESPECT TO LEAVE IN THE CASE OF EMPLOYEES ENTERING ACTIVE MILITARY OR NAVAL SERVICE. SUCH POLICIES, PARTICULARLY THOSE STATED IN PARAGRAPHS 3 (C) AND 3 (D) OF THE CIRCULAR, WERE FORMULATED WITH THE UNDERSTANDING THAT THE FOLLOWING THREE QUESTIONS WOULD BE SUBMITTED FOR YOUR DECISION:

QUESTION ONE: WHERE AN EMPLOYEE ENTERING UPON ACTIVE MILITARY OR NAVAL SERVICE HAS MORE THAN 120 DAYS' LEAVE, SAY 155 DAYS, TO HIS CREDIT UNDER THE QUOTED PANAMA CANAL LEAVE PROVISIONS, DOES THE CANAL LEAVE PROVISION (SECTION 29) LIMITING TO 120 DAYS THE MAXIMUM LEAVE WITH PAY WHICH MAY BE GRANTED AT ANY ONE TIME OR WHICH MAY BE COMMUTED INTO A CASH PAYMENT AT TERMINATION OF SERVICE, APPLY TO PAYMENT OF COMPENSATION FOR LEAVE UNDER THE ACT OF APRIL 7, 1942, SO AS TO LIMIT SUCH PAYMENT TO 120 DAYS, OR IS THE EMPLOYEE ENTITLED TO BE PAID FOR THE ENTIRE 155 DAYS AS ,ACCUMULATED OR CURRENT ACCRUED LEAVE" WITHIN THE MEANING OF SAID ACT OF APRIL 7, 1942. IN THIS CONNECTION REFERENCE IS MADE TO 21 COMP. GEN. 422 RULING THAT UNDER THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616 (5 U.S.C. 61A), POSTMASTERS WERE ENTITLED TO ALL OF THE ACCUMULATED AND CURRENT ACCRUED LEAVE TO THEIR CREDIT WHEN THEY WERE ORDERED INTO ACTIVE MILITARY SERVICE, WITHOUT REGARD TO THE POSTAL REGULATION LIMITING TO 30 DAYS THE AMOUNT OF ACCUMULATED LEAVE WHICH COULD BE TAKEN IN ANY ONE FISCAL YEAR.

QUESTION TWO: IF, WITH REFERENCE TO QUESTION ONE, THE EMPLOYEE IS ENTITLED TO COMPENSATION COVERING THE ENTIRE 155 DAYS' ACCRUED LEAVE, MAY HE BE TERMINATED AT THE TIME HE ENTERS ACTIVE MILITARY SERVICE AND THEREUPON BE PAID FOR THE ENTIRE 155 DAYS' ACCRUED LEAVE IN A SINGLE LUMP- SUM PAYMENT, OR DOES THE ACT OF APRIL 7, 1942, CONTEMPLATE THAT PAYMENT THEREUNDER SHOULD BE MADE BY PAY PERIODS AS THOUGH THE EMPLOYEE WERE ON LEAVE. THE PRESENT POLICY OF THE PANAMA CANAL IS TO TERMINATE THE SERVICES OF ALL EMPLOYEES ENTERING ACTIVE MILITARY OR NAVAL SERVICE, RATHER THAN TO PLACE THEM IN A LEAVE OR FURLOUGH STATUS (SEE PARAGRAPH 3 (A) OF THE ENCLOSED CIRCULAR OF MAY 28, 1942).

QUESTION THREE: IF, WITH REFERENCE TO QUESTION ONE, PAYMENT UNDER THE ACT OF APRIL 7, 1942, IS LIMITED TO 120 DAYS' ACCRUED LEAVE, IS THE ACCRUED LEAVE IN EXCESS OF 120 DAYS TO REMAIN TO THE CREDIT OF THE EMPLOYEE UNTIL HIS RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, AS STATED IN PARAGRAPH 3 (D) OF THE ENCLOSED CIRCULAR OF MAY 28, 1942?

AS STATED IN PARAGRAPH 2 OF THE PANAMA CANAL CIRCULAR DATED MAY 28, 1942, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER, EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD CO. ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, A PORTION OF WHICH IS QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER. PARAGRAPHS 3 (C) AND 3 (D) OF SAID CIRCULAR PROVIDE AS FOLLOWS:

3. THE FOLLOWING POLICIES WITH RESPECT TO LEAVE SHALL APPLY TO EMPLOYEES ENTERING ACTIVE MILITARY OR NAVAL SERVICE:

(C) ACCRUED LEAVE STANDING TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF HIS ENTRY UPON ACTIVE MILITARY OR NAVAL DUTY MAY BE COMMUTED INTO CASH, UP TO A MAXIMUM OF 120 DAYS, IN ACCORDANCE WITH PANAMA CANAL LEAVE REGULATIONS.

(D) ACCRUED LEAVE IN EXCESS OF 120 DAYS SHALL REMAIN TO THE CREDIT OF THE EMPLOYEE UNTIL HIS RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

SECTION 52.2 OF THE GOVERNOR'S PERSONNEL REGULATIONS, REFERRED TO IN YOUR LETTER, PROVIDES AS FOLLOWS:

ONE HUNDRED AND TWENTY DAYS MAXIMUM.--- IN DETERMINING THE AMOUNT OF CUMULATIVE LEAVE, THE ANNUAL LEAVE SHOULD NOT BE ADDED TO MAKE THE CUMULATIVE LEAVE TOTAL OF 120 DAYS UNTIL THE END OF THE YEAR, WHEN IT BECOMES CUMULATIVE LEAVE AND LOSES ITS IDENTITY AS ANNUAL LEAVE. IF, AT THE BEGINNING OF THE NEW SERVICE YEAR, THE EMPLOYEE HAS A TOTAL OF LESS THAN 120 DAYS' CUMULATIVE LEAVE PREVIOUSLY ACCUMULATED, HE CONTINUES TO EARN ANNUAL AND CUMULATIVE LEAVE IN THE REGULAR AMOUNTS THROUGHOUT THAT YEAR, BUT CANNOT AT ANY TIME BE GRANTED LEAVE OF ABSENCE WITH PAY OR HAVE LEAVE COMMUTED INTO A CASH PAYMENT UPON TERMINATION OF SERVICE FOR MORE THAN THE MAXIMUM NUMBER OF 120 DAYS.

AS STATED IN YOUR LETTER, SUPRA, IT WOULD BE POSSIBLE UNDER THE QUOTED REGULATIONS OF THE PANAMA CANAL FOR AN EMPLOYEE TO HAVE TO HIS CREDIT A TOTAL OF MORE THAN 120 DAYS LEAVE AT CERTAIN TIMES OF HIS SERVICE (LEAVE) YEAR. FOR INSTANCE, AN EMPLOYEE IN THE ELEVENTH OR TWELFTH MONTH OF HIS CURRENT SERVICE YEAR MAY HAVE AS MUCH AS 119 DAYS CUMULATIVE LEAVE FOR PRIOR SERVICE (LEAVE) YEARS, PLUS 30 DAYS CUMULATIVE LEAVE FOR THE CURRENT SERVICE (LEAVE) YEAR, PLUS THE ANNUAL LEAVE WHICH HAD ACCRUED DURING THE CURRENT SERVICE (LEAVE) YEAR. OF COURSE, IT IS RECOGNIZED THAT THERE MAY BE EMPLOYEES WHO ENTER THE MILITARY OR NAVAL SERVICE AT A TIME IN THEIR SERVICE YEARS WHEN THEY MAY HAVE TO THEIR CREDIT MORE THAN 120 DAYS OF BOTH CUMULATIVE AND ANNUAL LEAVE. HOWEVER, THE REGULATIONS OF THE PANAMA CANAL CLEARLY AND DEFINITELY LIMIT THE MAXIMUM NUMBER OF DAYS LEAVE OF BOTH KINDS TO 120 THAT MAY BE GRANTED AT ANY TIME OR COMMUTED INTO CASH UPON SEPARATION FROM THE SERVICE OR AT DEATH. APPLICATION OF THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, IS SUBJECT TO AND LIMITED BY THE CONTROLLING LEAVE REGULATIONS OF THE PANAMA CANAL.

THE REGULATION OF THE POST OFFICE DEPARTMENT (SEC. 445, SUBSEC. POSTAL LAWS AND REGULATIONS, 1940) CONSIDERED IN THE DECISION OF NOVEMBER 4, 1941, 21 COMP. GEN. 422, CITED IN YOUR LETTER, IS IN ENTIRELY DIFFERENT TERMS FROM THE REGULATIONS OF THE PANAMA CANAL HERE UNDER CONSIDERATION, AND IT DOES NOT NECESSARILY FOLLOW THAT THE RULES STATED IN THAT DECISION MAY BE APPLIED HERE--- THE POSTMASTER GENERAL HAVING EXPLAINED TO THIS OFFICE IN HIS LETTER OF OCTOBER 18, 1941, QUOTED IN THE DECISION, THAT "THE LIMITATION CONTAINED IN PARAGRAPH 5 (A) OF SECTION 445 OF THE POSTAL LAWS AND REGULATIONS DOES NOT OPERATE TO CANCEL ACCUMULATED LEAVE IN EXCESS OF 30 DAYS BUT IS DESIGNED, IN THE INTEREST OF GOOD ADMINISTRATION, TO PREVENT TOO LONG AN ABSENCE IN ANY ONE FISCAL YEAR.' IN OTHER WORDS, IT WOULD BE POSSIBLE FOR A POSTMASTER TO BE GRANTED MORE THAN 30 DAYS AT ONE TIME DURING 2 FISCAL (LEAVE) YEARS. FURTHERMORE, THERE IS NO PROVISION IN THAT REGULATION FOR, OR LIMITATION UPON, CASH COMMUTATION PAYMENT FOR LEAVE. SUCH IS NOT THE SITUATION HERE. UNDER THE PANAMA CANAL REGULATIONS 120 DAYS' LEAVE IS THE MAXIMUM THAT MAY BE TAKEN OR PAID FOR AT ANY TIME. WHILE IT IS UNDERSTOOD FROM THE REGULATIONS THAT ANY LEAVE IN EXCESS OF 120 DAYS TO THE CREDIT OF A PANAMA CANAL EMPLOYEE AT CERTAIN TIMES OF A SERVICE YEAR IS NOT LOST IF THE EMPLOYEE SHOULD TAKE ALL OR A PART OF THE CUMULATIVE LEAVE SO AS TO REDUCE THE TOTAL TO HIS CREDIT AT THE END OF THE YEAR TO 120 DAYS, UNDER THE PLAIN TERMS OF THE REGULATIONS HE CANNOT TAKE OR BE PAID FOR MORE THAN 120 DAYS' LEAVE AT ANY ONE TIME.

ACCORDINGLY, REFERRING TO QUESTION 1, YOU ARE ADVISED THAT 120 DAYS LEAVE IS THE MAXIMUM FOR WHICH PAYMENT MAY BE MADE TO EMPLOYEES OF THE PANAMA CANAL AND OF THE PANAMA RAILROAD CO. UNDER THE PROVISIONS OF THE ACT OF APRIL 7, 1942.

IN VIEW OF THE ANSWER TO QUESTION 1 AN ANSWER TO QUESTION 2 APPEARS UNNECESSARY.

IF, AS IS UNDERSTOOD TO BE THE CASE AND AS STATED ABOVE, AN EMPLOYEE WHO HAS TO HIS CREDIT AT CERTAIN TIMES OF HIS SERVICE (LEAVE) YEAR MORE THAN 120 DAYS LEAVE DOES NOT LOSE THE EXCESS WHEN HE TAKES ALL OR A PART THEREOF DURING THE CURRENT SERVICE (LEAVE) YEAR SO AS TO REDUCE THE TOTAL TO 120 DAYS OR LESS AT THE END OF THE YEAR, THEN THE SAME RULE WOULD APPLY HERE, THAT IS, NOTWITHSTANDING PAYMENT UNDER THE ACT OF APRIL 7, 1942, FOR 120 DAYS BEFORE THE END OF THE SERVICE (LEAVE) YEAR, THE BALANCE STANDING TO HIS CREDIT WHEN HE ENTERS THE MILITARY OR NAVAL SERVICE COULD BE RECREDITED TO HIM UPON HIS RETURN AFTER TERMINATION OF MILITARY OR NAVAL SERVICE. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.