B-28756, SEPTEMBER 18, 1942, 22 COMP. GEN. 246

B-28756, SEPTEMBER 18, 1942, 22 COMP. GEN. 246

LEAVES OF ABSENCE - FORFEITURE UPON TRANSFER FROM PERMANENT TO TEMPORARY POSITIONS; PAYMENT FOR LEAVE CONCURRENTLY WITH MILITARY SERVICE SINCE SECTION 6 OF THE ANNUAL LEAVE REGULATIONS DOES NOT PROVIDE FOR THE TRANSFER OF LEAVE CREDIT TO OR FROM A TEMPORARY POSITION, ANNUAL LEAVE ACCRUED IN A PERMANENT POSITION IS LOST UPON TRANSFER TO A TEMPORARY ONE, AND, THEREFORE, AN EMPLOYEE WHO ENTERS THE MILITARY SERVICE WHILE SERVING IN A TEMPORARY POSITION TO WHICH HE TRANSFERRED WITHOUT BREAK IN SERVICE FROM A PERMANENT POSITION IS NOT ENTITLED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, TO BE PAID, CONCURRENTLY WITH MILITARY SERVICE, FOR ANNUAL LEAVE EARNED DURING SERVICE IN THE PERMANENT POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, SEPTEMBER 18, 1942:

THERE HAS BEEN CONSIDERED THE MATTER PRESENTED BY THE CHAIRMAN, CIVIL AERONAUTICS BOARD, IN HIS LETTER OF SEPTEMBER 5, 1942, AS FOLLOWS:

THE CIVIL AERONAUTICS BOARD HAS BEFORE IT THE QUESTION OF WHETHER IT POSSESSES THE AUTHORITY TO PAY AN EMPLOYEE HIS ACCRUED ANNUAL LEAVE UNDER THE FOLLOWING CIRCUMSTANCES:

AN EMPLOYEE WAS PROMOTED FROM A PERMANENT POSITION IN THE CLASSIFIED CIVIL SERVICE TO AN EXCEPTED POSITION UNDER AUTHORITY OF SCHEDULE A, SECTION XXXIV, PARAGRAPH 4, OF THE CIVIL SERVICE RULES AND SECTION 202 (B) OF THE CIVIL AERONAUTICS ACT OF 1938. THE APPOINTMENT IN THE EXCEPTED POSITION IS LIMITED IN TIME NOT TO EXCEED SIX MONTHS. WITH NO BREAK IN SERVICE, THIS EMPLOYEE HAS ENTERED THE MILITARY SERVICE AND REQUESTS THAT HE BE GRANTED HIS ACCRUED ANNUAL LEAVE.

THE ANNUAL LEAVE REGULATIONS FOR GOVERNMENT EMPLOYEES ISSUED BY EXECUTIVE ORDER NO. 8384 ON MARCH 29, 1940, DEFINE "PERMANENT EMPLOYEES" UNDER SECTION I (B) AS "THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE FOR DEFINITE PERIODS IN EXCESS OF SIX MONTHS," AND "TEMPORARY EMPLOYEES" UNDER (C) OF THAT SAME SECTION AS "THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS.'

SECTION 6 OF THE ABOVE REGULATIONS PROVIDES:

"AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITH THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 15, 1936. AN EMPLOYEE TRANSFERRED OR APPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 15, 1936, TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT, SHALL BE CREDITED WITH ALL LEAVE ACCUMULATED AND ACCRUED ON THE DATE OF SUCH TRANSFER OR APPOINTMENT AT SUCH TIME AS HE MAY BE SUBSEQUENTLY RETRANSFERRED OR REAPPOINTED TO A POSITION WITHIN THE PURVIEW OF THAT ACT, PROVIDED SUCH SUBSEQUENT RETRANSFER OR REAPPOINTMENT IS WITHOUT BREAK IN SERVICE. "BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.'

ON SEVERAL OCCASIONS YOU HAVE INTERPRETED THE PREDECESSOR SECTION TO THE ABOVE SECTION 6 AS GIVING NO AUTHORITY FOR THE TRANSFER OF ACCRUED ANNUAL LEAVE FROM A PERMANENT POSITION TO A TEMPORARY POSITION. SEE 16 C.G. 403; 17 ID. 830; AND 18 ID. 317. THE LANGUAGE OF THE PREDECESSOR SECTION 6 READS:

"AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED. "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.'

THE EXISTING SECTION 6 OF THE LEAVE REGULATIONS MAKES POSSIBLE THE SAVING OF ANNUAL LEAVE ON CREDIT FOR AN EMPLOYEE ACCRUED IN A POSITION WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT WHEN THERE IS A TRANSFER BACK TO A POSITION WITHIN THE ACT. HOWEVER, MAY THIS SECTION BE INTERPRETED AS PROVIDING FOR TRANSFER OF LEAVE FROM A PERMANENT POSITION TO A TEMPORARY POSITION, BOTH OF WHICH POSITIONS ARE WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT?

YOUR DECISION ON THIS QUESTION IS REQUESTED.

IN DECISION OF SEPTEMBER 11, 1942, B-28489, A COPY OF WHICH IS ENCLOSED, THERE WAS CONSIDERED, AMONG OTHERS, A QUESTION SIMILAR TO THAT PRESENTED IN THE ABOVE-QUOTED LETTER. SO FAR AS HERE PERTINENT, IT WAS STATED IN THAT DECISION WITH RELATION TO ADMINISTRATIVE EMPLOYEES OF THE WORKS PROJECTS ADMINISTRATION WHO WERE TRANSFERRED TO PROJECTS AND RETURNED TO TEMPORARY ADMINISTRATIVE POSITIONS OF 60 DAYS DURATION, AS FOLLOWS:

* * * IF THE EMPLOYEES INVOLVED HERE HAD BEEN RETRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE TO ADMINISTRATIVE POSITIONS OTHER THAN TEMPORARY, WITHIN THE PURVIEW OF THE LEAVE ACTS, THEY WOULD HAVE BEEN ENTITLED TO HAVE HAD THE LEAVE TO THEIR CREDIT AT THE TIME THEY WERE TRANSFERRED TO THE PROJECT RECREDITED TO THEM WHEN THEY WERE RETRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE TO ADMINISTRATIVE POSITIONS. SEE SECOND SENTENCE OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940), AND COMPARE 20 COMP. GEN. 35. HOWEVER, AS THE TENURE OF THE ADMINISTRATIVE POSITIONS TO WHICH THEY WERE RETRANSFERRED OR REAPPOINTED AFTER SERVICE ON THE WPA PROJECT WAS EXPRESSLY LIMITED TO 60 DAYS--- LESS THAN 6 MONTHS--- THEY WERE RETRANSFERRED OR REAPPOINTED TO "TEMPORARY" POSITIONS AS THAT TERM IS DEFINED IN SECTION 1 (C) OF THE ANNUAL LEAVE REGULATIONS AND THEY THEREBY LOST THEIR RIGHT TO HAVE THEIR LEAVE RECREDITED TO THEM FOR THE REASON THAT SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, QUOTED IN YOUR LETTER, DOES NOT PROVIDE FOR TRANSFER OR RETRANSFER OF LEAVE CREDIT TO OR FROM A "TEMPORARY" POSITION. SEE 16 COMP. GEN. 403; 17 ID. 414; ID. 830; 18 ID. 317. CF. 18 COMP. GEN. 599; 19 ID. 30. SEE, ALSO, 19 COMP. GEN. 14; ID. 366, WHICH HAVE BEEN RENDERED INOPERATIVE IN THE INSTANT CASES BY REASON OF A SUBSEQUENT CHANGE IN SECTION 6 OF THE ANNUAL LEAVE REGULATIONS.

* * * IN THE CASE OF MAJOR DOUGLASS, IT IS NOT CLEAR JUST WHEN HE ENTERED THE MILITARY SERVICE BUT IF HE ENTERED SAID SERVICE WHILE HE WAS SERVING UNDER THE TEMPORARY APPOINTMENT OF 60 DAYS, HE WOULD HAVE NO RIGHT UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, TO BE PAID FOR THE ANNUAL LEAVE WHICH HE LOST AT THE TIME HE WAS REAPPOINTED TO THE TEMPORARY POSITION.

SIMILARLY HERE, IF THE EMPLOYEE MENTIONED IN THE SECOND PARAGRAPH OF THE QUOTED LETTER, SUPRA, ENTERED THE MILITARY SERVICE WHILE HE WAS SERVING IN A TEMPORARY POSITION "LIMITED IN TIME NOT TO EXCEED 6 MONTHS" HE COULD NOT BE PAID UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, FOR THE ANNUAL LEAVE EARNED DURING SERVICE IN HIS PERMANENT POSITION BUT WHICH WAS LOST TO HIM WHEN HE WAS TRANSFERRED AND APPOINTED TO THE TEMPORARY POSITION HELD AT THE TIME HE ENTERED THE MILITARY SERVICE. THUS, THE QUESTION IN THE LAST SENTENCE OF THE PENULTIMATE PARAGRAPH OF THE SAID LETTER MUST BE AND IS ANSWERED IN THE NEGATIVE.