B-27414, JULY 24, 1942, 22 COMP. GEN. 54

B-27414: Jul 24, 1942

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WHO ARE ENTITLED TO ANNUAL LEAVE WITH PAY. A UNITED STATES ATTORNEY WHO RESIGNED HIS OFFICE TO ENTER ON ACTIVE MILITARY DUTY UNDER A COMMISSION IN THE ARMY IS ENTITLED UNDER THE ACT OF AUGUST 1. TO BE PAID FOR HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH RECEIPT OF MILITARY PAY IF THERE WAS NO BREAK IN SERVICE BETWEEN THE EFFECTIVE DATE OF HIS RESIGNATION AND ACTUAL ENTRANCE ON MILITARY DUTY. SO THAT A UNITED STATES ATTORNEY WHO ENTERED THE MILITARY SERVICE IMMEDIATELY UPON CEASING TO PERFORM DUTY IN HIS CIVILIAN OFFICE IS ENTITLED TO PAYMENT FOR ALL ANNUAL LEAVE TO HIS CREDIT EVEN THOUGH HIS SUCCESSOR IN OFFICE WAS APPOINTED AND ENTERED UPON DUTY PRIOR TO EXPIRATION OF THE LEAVE PERIOD.

B-27414, JULY 24, 1942, 22 COMP. GEN. 54

OFFICERS AND EMPLOYEES - LEAVE PAYMENTS WHILE ON MILITARY DUTY THE TERM "EMPLOYEES OF THE UNITED STATES GOVERNMENT" AS USED IN THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE CONCURRENTLY WITH ACTIVE MILITARY DUTY, INCLUDES OFFICERS, AS WELL AS EMPLOYEES, WHO ARE ENTITLED TO ANNUAL LEAVE WITH PAY. A UNITED STATES ATTORNEY WHO RESIGNED HIS OFFICE TO ENTER ON ACTIVE MILITARY DUTY UNDER A COMMISSION IN THE ARMY IS ENTITLED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO BE PAID FOR HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH RECEIPT OF MILITARY PAY IF THERE WAS NO BREAK IN SERVICE BETWEEN THE EFFECTIVE DATE OF HIS RESIGNATION AND ACTUAL ENTRANCE ON MILITARY DUTY. THE ACT OF AUGUST 1, 1941, AS AMENDED, CONFERRING ON CIVILIAN OFFICERS THE RIGHT TO BE PAID FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH RECEIPT OF MILITARY PAY, REQUIRES AN EXCEPTION TO THE GENERAL RULE THAT ONLY ONE PERSON MAY BE PAID THE SALARY OF AN OFFICE FOR THE SAME PERIOD, SO THAT A UNITED STATES ATTORNEY WHO ENTERED THE MILITARY SERVICE IMMEDIATELY UPON CEASING TO PERFORM DUTY IN HIS CIVILIAN OFFICE IS ENTITLED TO PAYMENT FOR ALL ANNUAL LEAVE TO HIS CREDIT EVEN THOUGH HIS SUCCESSOR IN OFFICE WAS APPOINTED AND ENTERED UPON DUTY PRIOR TO EXPIRATION OF THE LEAVE PERIOD.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, JULY 24, 1942.

I HAVE YOUR LETTER OF JULY 13, 1942, REF. A3-5, AS FOLLOWS:

ONE OF THE UNITED STATES ATTORNEYS HAS RESIGNED HIS POSITION TO ACCEPT A COMMISSION IN THE UNITED STATES ARMY. QUESTIONS RELATIVE TO LEAVE AND REEMPLOYMENT HAVE ARISEN. YOUR ANSWERS TO THE FOLLOWING HYPOTHETICAL QUESTIONS ARE REQUESTED, WITH PARTICULAR REFERENCE TO OFFICES LIKE THOSE OF UNITED STATES ATTORNEYS:

1. IF THE UNITED STATES ATTORNEY RESIGNED EFFECTIVE APRIL 16, 1942, TO ENTER THE MILITARY SERVICE AND IF HIS RESIGNATION WAS ACCEPTED BY THE PRESIDENT EFFECTIVE AS OF THAT DAY, IS THE UNITED STATES ATTORNEY ENTITLED TO PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE PURSUANT TO THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, WHICH ACT MAKES THE PAYMENT OF COMPENSATION FOR LEAVE OBLIGATORY?

2. IF YOUR ANSWER TO THE FOREGOING IS IN THE AFFIRMATIVE, MAY HE BE PAID FOR HIS ANNUAL LEAVE THROUGH THE CLOSE OF BUSINESS JUNE 4, A SUCCESSOR HAVING BEEN APPOINTED AND ENTERED ON DUTY JUNE ?

3. IF THE ANSWER TO NUMBER 2 IS IN THE NEGATIVE, TO THE CLOSE OF WHAT DAY MAY HE BE PAID FOR HIS LEAVE, ASSUMING THAT THERE STOOD TO HIS CREDIT SUFFICIENT LEAVE TO CARRY HIM FROM APRIL 17 TO JUNE 4, INCLUSIVE?

4. DOES THE UNITED STATES ATTORNEY HAVE ANY REEMPLOYMENT RIGHTS IN THE CIRCUMSTANCES UNDER THE ACT OF AUGUST 18, 1941, PUBLIC LAW 213?

5. IN THE EVENT THE RESIGNATION OF THE UNITED STATES ATTORNEY WAS NOT FOR THE PURPOSE OF ENTERING THE ARMED FORCES, WOULD YOUR ANSWERS TO NUMBERS 1, 2, AND 3 BE DIFFERENT?

IN CONNECTION WITH THE FOREGOING, TO WHAT EXTENT ARE THE PRINCIPLES FOLLOWED IN 4 COMP. DEC. 601 TO BE OBSERVED, PARTICULARLY IN VIEW OF THE DECISION IN 19 COMP. GEN. 501?

THIS OFFICE IS NOT REQUIRED OR AUTHORIZED BY LAW TO ANSWER HYPOTHETICAL QUESTIONS. HOWEVER, SINCE IT IS STATED IN THE SUBMISSION THAT ONE UNITED STATES ATTORNEY HAS RESIGNED TO ACCEPT A COMMISSION IN THE ARMY, THE QUESTION PRESENTED WITH REFERENCE TO HIS LEAVE WILL BE ANSWERED ON THE ASSUMPTION THAT HIS RESIGNATION WAS TO BE EFFECTIVE APRIL 16, 1942, THAT HE IMMEDIATELY ENTERED THE MILITARY SERVICE AND THAT HIS SUCCESSOR ENTERED UPON DUTY JUNE 1, 1942.

THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, PROVIDES, AS FOLLOWS:

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, 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.

THE TERM "EMPLOYEES OF THE UNITED STATES GOVERNMENT" AS USED IN THE ABOVE -QUOTED STATUTE INCLUDES OFFICERS WHO ARE ENTITLED TO ANNUAL LEAVE OF ABSENCE WITH PAY. SEE 21 COMP. GEN. 237; ID. 422. CF. 21 ID. 191.

IN DECISION OF JULY 20, 1942, B-27048, 22 COMP. GEN. 47, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC 517, 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.

WHAT WAS STATED IN THE DECISION, SUPRA, IS EQUALLY APPLICABLE IN THE CASE OF A CIVILIAN OFFICER WHO OCCUPIES AN OFFICE WHICH TERMINATES UPON THE APPOINTMENT BY THE PRESIDENT OF A SUCCESSOR TO THE OFFICE. THE TERMS OF THE STATUTE SEEM TO REQUIRE THE MAKING OF AN EXCEPTION TO THE GENERAL RULE THAT ONLY ONE PERSON MAY BE PAID THE SALARY OF AN OFFICE FOR THE SAME PERIOD. CF. 4 COMP. DEC. 01; 19 COMP. GEN. 501. THE STATUTE APPEARS TO HAVE FOR ITS PURPOSE THE PAYMENT FOR LEAVE OF ABSENCE CONCURRENTLY WITH RECEIPT OF MILITARY PAY IN THOSE CASES WHERE THE OFFICER OR EMPLOYEE ENTERS THE MILITARY OR NAVAL SERVICE IMMEDIATELY UPON CEASING TO PERFORM DUTY IN HIS CIVIL OFFICE OR POSITION. THAT PURPOSE WOULD NOT APPEAR TO BE DEFEATED SIMPLY BECAUSE A SUCCESSOR HAS BEEN APPOINTED TO THE CIVILIAN OFFICE OCCUPIED PRIOR TO ENTRANCE INTO THE MILITARY SERVICE.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE PROVIDED THE UNITED STATES ATTORNEY ACTUALLY ENTERED THE MILITARY SERVICE ON APRIL 17, 1942. HOWEVER, IF AS MUCH AS 1 DAY ELAPSED BETWEEN THE EFFECTIVE DATE OF HIS RESIGNATION AND THE DATE OF HIS ACTUAL ENTRANCE INTO THE MILITARY SERVICE, SAID QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE, IF THERE WAS NO BREAK IN SERVICE AND HE HAD SUFFICIENT LEAVE TO COVER THE PERIOD FROM APRIL 17 TO JUNE 4, 1942.

BECAUSE OF THE AFFIRMATIVE ANSWER TO QUESTION 2 NO ANSWER IS REQUIRED TO QUESTION 3.

THE OTHER QUESTIONS PRESENTED ARE NOT REQUIRED TO BE ANSWERED AT THIS TIME.