B-28274, SEPTEMBER 3, 1942, 22 COMP. GEN. 178

B-28274: Sep 3, 1942

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SUBSTITUTION OF ANNUAL LEAVE FOR LEAVE WITHOUT PAY THERE IS NO GENERAL LAW WHICH PROHIBITS THE PAYMENT OF COMPENSATION TO A CIVILIAN OFFICER OR EMPLOYEE DURING A PERIOD OF ANNUAL LEAVE WHEN SAID OFFICER OR EMPLOYEE IS EMPLOYED BY A PRIVATE CONTRACTOR. AN EMPLOYEE WITH ANNUAL LEAVE TO HIS CREDIT APPLIED FOR AND WAS GRANTED LEAVE WITHOUT PAY DURING A PERIOD OF EMPLOYMENT WITH A GOVERNMENT CONTRACTOR. 1942: I HAVE YOUR LETTER OF AUGUST 18. AS FOLLOWS: YOUR OPINION IS REQUESTED WHETHER AN EMPLOYEE MAY BE PAID FOR ACCUMULATED ANNUAL LEAVE DURING A PERIOD WHEN HE WAS WORKING FOR THE UNITED STATES MILITARY NORTH AFRICAN MISSION AND WAS CARRIED ON THE PAYROLL OF A CONTRACTOR WORKING UNDER THE SUPERVISION OF THAT MISSION.

B-28274, SEPTEMBER 3, 1942, 22 COMP. GEN. 178

LEAVES OF ABSENCE - EMPLOYMENT BY PRIVATE CONTRACTOR DURING ANNUAL LEAVE PERIOD; SUBSTITUTION OF ANNUAL LEAVE FOR LEAVE WITHOUT PAY THERE IS NO GENERAL LAW WHICH PROHIBITS THE PAYMENT OF COMPENSATION TO A CIVILIAN OFFICER OR EMPLOYEE DURING A PERIOD OF ANNUAL LEAVE WHEN SAID OFFICER OR EMPLOYEE IS EMPLOYED BY A PRIVATE CONTRACTOR, EVEN THOUGH THE CONTRACTOR MAY BE WORKING FOR OR UNDER THE DIRECTION OF THE UNITED STATES GOVERNMENT; NOR DO THE DUAL COMPENSATION STATUTES APPLY IN SUCH A CASE. WHERE, DUE TO AN ADMINISTRATIVE ERROR RESULTING FROM A MISUNDERSTANDING OF THE REQUIREMENTS OF THE DUAL COMPENSATION STATUTES, AN EMPLOYEE WITH ANNUAL LEAVE TO HIS CREDIT APPLIED FOR AND WAS GRANTED LEAVE WITHOUT PAY DURING A PERIOD OF EMPLOYMENT WITH A GOVERNMENT CONTRACTOR, THE ANNUAL LEAVE, WHICH THE EMPLOYEE PURPORTEDLY FORFEITED WHEN HE APPLIED FOR THE LEAVE WITHOUT PAY, MAY NOW BE SUBSTITUTED, RETROACTIVELY EFFECTIVE, FOR A CORRESPONDING PERIOD OF THE LEAVE WITHOUT PAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 3, 1942:

I HAVE YOUR LETTER OF AUGUST 18, 1942, AS FOLLOWS:

YOUR OPINION IS REQUESTED WHETHER AN EMPLOYEE MAY BE PAID FOR ACCUMULATED ANNUAL LEAVE DURING A PERIOD WHEN HE WAS WORKING FOR THE UNITED STATES MILITARY NORTH AFRICAN MISSION AND WAS CARRIED ON THE PAYROLL OF A CONTRACTOR WORKING UNDER THE SUPERVISION OF THAT MISSION, PENDING THE APPROVAL OF AN OFFICER'S COMMISSION IN THE ENGINEER CORPS OF THE ARMY.

AT THE REQUEST OF THE UNITED STATES MILITARY NORTH AFRICAN MISSION ON JANUARY 20, 1942, FOR THE SERVICES OF AN EXPERIENCED GROUND WATER GEOLOGIST OF THE GEOLOGICAL SURVEY FOR ASSIGNMENT WITH THAT MISSION, MR. RICHARD C. CADY, ASSOCIATE GEOLOGIST OF THE GEOLOGICAL SURVEY, WAS CHOSEN FOR THIS ASSIGNMENT. WHEN THIS DECISION WAS MADE IT WAS UNDERSTOOD THAT IMMEDIATE STEPS WOULD BE TAKEN TO HAVE MR. CADY COMMISSIONED AS AN OFFICER IN THE ENGINEER CORPS OF THE ARMY AND THE WAR DEPARTMENT HAS ADVISED THAT HE ACCEPTED HIS COMMISSION AS CAPTAIN, A.U.S., ON MARCH 31, 1942. INASMUCH AS TIME WAS REQUIRED TO HAVE THE COMMISSION APPROVED AND BECAUSE MR. CADY'S SERVICES WERE URGENTLY NEEDED, HE WAS, AT THE SUGGESTION OF THE UNITED STATES MILITARY NORTH AFRICAN MISSION, EMPLOYED BY A CIVILIAN CONTRACTOR WORKING UNDER THE SUPERVISION OF THE MISSION.

THIS ARRANGEMENT WAS ESSENTIALLY A CONVENIENCE THAT WAS UTILIZED BECAUSE THE AVAILABILITY OF MR. CADY'S SERVICES COULD NOT BE DEFERRED UNTIL HIS COMMISSION WAS APPROVED. SOLELY BECAUSE THE CONTRACTOR ASSERTED THAT HE COULD NOT PLACE MR. CADY ON HIS PAYROLL WHILE IN A PAY STATUS WITH THE GOVERNMENT, MR. CADY, THOUGH WITH NATURAL RELUCTANCE, SUBMITTED APPLICATION FOR LEAVE WITHOUT PAY, AND ENDORSED IT: " I HEREBY FORFEIT MY ACCUMULATED ANNUAL LEAVE.' ON THE BASIS OF THIS REQUEST HE WAS PLACED ON LEAVE WITHOUT PAY BEGINNING FEBRUARY 1, 1942.

ACCORDING TO INFORMATION SUPPLIED SUBSEQUENTLY BY THE CONTRACTOR, ACKNOWLEDGMENT IS MADE THAT AN ERROR WAS COMMITTED AND THAT MR. CADY COULD HAVE BEEN EMPLOYED AND PAID WHILE HE WAS IN A LEAVE-WITH-PAY STATUS FROM THE GOVERNMENT. IF THIS IS TRUE, AN INJUSTICE HAS BEEN DONE TO MR. CADY WHICH SHOULD BE CORRECTED IF PERMISSIBLE. AS FAR BACK AS FEBRUARY 13, MR. CADY WROTE TO THE DIRECTOR OF THE GEOLOGICAL SURVEY STATING THAT HIS SACRIFICE OF LEAVE SEEMED TO HAVE BEEN THROUGH ERROR AND REQUESTING THAT, IF POSSIBLE, HE BE PAID FOR HIS ACCRUED ANNUAL LEAVE.

ACCORDINGLY, I INQUIRE WHETHER IT IS PERMISSIBLE FOR THE DEPARTMENT OF THE INTERIOR RECORDS TO BE CHANGED TO SHOW THAT RICHARD C. CADY WAS ON ANNUAL LEAVE FEBRUARY 1 THROUGH 4 HOURS ON MARCH 6; AND THEREAFTER ON LEAVE WITHOUT PAY THROUGH MARCH 30, 1942.

THERE IS NO GENERAL LAW WHICH PROHIBITS PAYMENT OF COMPENSATION IN A CIVILIAN OFFICE OR POSITION DURING A PERIOD OF ANNUAL LEAVE WHEN THE OFFICER OR EMPLOYEE IS EMPLOYED BY A PRIVATE CONTRACTOR, WHETHER OR NOT THE CONTRACTOR IS WORKING FOR OR UNDER THE DIRECTION OF THE UNITED STATES GOVERNMENT, AND THE DUAL COMPENSATION STATUTES DO NOT APPLY IN SUCH A CASE. IT IS UNDERSTOOD THAT THE APPLICATION FOR AND GRANTING OF LEAVE OF ABSENCE WITHOUT PAY PRIOR TO GRANTING OF ACCRUED ANNUAL LEAVE IN THE CASE PRESENTED WAS AN ADMINISTRATIVE ERROR DUE ENTIRELY TO A MISUNDERSTANDING. WHILE THERE WOULD HAVE BEEN A FORFEITURE OF THE ANNUAL LEAVE TO THE CREDIT OF THIS EMPLOYEE WHEN HE WAS PLACED ON LEAVE OF ABSENCE WITHOUT PAY, HAD SUCH ACTION BEEN TAKEN UNDER CIRCUMSTANCES EFFECTING A SEPARATION FROM THE SERVICE (SEE 18 COMP. GEN. 94), IN VIEW OF THE FACT STATED IN YOUR LETTER THAT THE ADMINISTRATIVE ACTION WAS IN ERROR, THERE MAY BE APPLIED IN THIS CASE THE RULE THAT ANNUAL LEAVE DUE AN EMPLOYEE MAY BE SUBSTITUTED RETROACTIVELY EFFECTIVE FOR A CORRESPONDING PERIOD OF LEAVE OF ABSENCE WITHOUT PAY PRIOR TO SEPARATION FROM THE SERVICE. SEE 16 COMP. GEN. 818; 19 ID. 716, 719 (ANSWER TO QUESTION 5); ID. 959.