B-32590, FEBRUARY 26, 1943, 22 COMP. GEN. 841

B-32590: Feb 26, 1943

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LEAVES OF ABSENCE - ANNUAL - ADVANCES - "WAR SERVICE" APPOINTEES EMPLOYEES WHO HAVE BEEN GIVEN " WAR SERVICE" APPOINTMENTS FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER PURSUANT TO THE CIVIL SERVICE REGULATIONS PROMULGATED UNDER EXECUTIVE ORDER NO. 9063 MAY BE REGARDED AS "PERMANENT EMPLOYEES" WITHIN THE MEANING OF THE ANNUAL LEAVE REGULATIONS. 1943: I HAVE YOUR LETTER OF FEBRUARY 18. AS FOLLOWS: THE QUESTION HAS ARISEN IN THIS DEPARTMENT AS TO WHETHER EMPLOYEES WHO HAVE BEEN APPOINTED IN ACCORDANCE WITH WAR SERVICE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION MAY BE GRANTED ANNUAL LEAVE IN ADVANCE OF ITS ACCRUAL. THE MATTER OF ALLOWING THE ABOVE-MENTIONED CLASS OF EMPLOYEES ADVANCES OF SICK LEAVE WAS CONSIDERED.

B-32590, FEBRUARY 26, 1943, 22 COMP. GEN. 841

LEAVES OF ABSENCE - ANNUAL - ADVANCES - "WAR SERVICE" APPOINTEES EMPLOYEES WHO HAVE BEEN GIVEN " WAR SERVICE" APPOINTMENTS FOR THE DURATION OF THE WAR AND 6 MONTHS THEREAFTER PURSUANT TO THE CIVIL SERVICE REGULATIONS PROMULGATED UNDER EXECUTIVE ORDER NO. 9063 MAY BE REGARDED AS "PERMANENT EMPLOYEES" WITHIN THE MEANING OF THE ANNUAL LEAVE REGULATIONS, AND, AS SUCH, MAY BE ADVANCED ANNUAL LEAVE UNDER THE TERMS AND CONDITIONS OF SECTION 2 AND OTHER PROVISIONS OF SAID REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, FEBRUARY 26, 1943:

I HAVE YOUR LETTER OF FEBRUARY 18, 1943, AS FOLLOWS:

THE QUESTION HAS ARISEN IN THIS DEPARTMENT AS TO WHETHER EMPLOYEES WHO HAVE BEEN APPOINTED IN ACCORDANCE WITH WAR SERVICE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION MAY BE GRANTED ANNUAL LEAVE IN ADVANCE OF ITS ACCRUAL.

IN A DECISION OF YOUR OFFICE DATED MAY 5, 1942 (B-25551), THE MATTER OF ALLOWING THE ABOVE-MENTIONED CLASS OF EMPLOYEES ADVANCES OF SICK LEAVE WAS CONSIDERED. YOU ADVISED THAT:

"* * * DURING THE TRIAL PERIOD SICK LEAVE MAY BE ADVANCED TO EMPLOYEES SERVING UNDER WAR SERVICE APPOINTMENTS ONLY IN AN AMOUNT THAT WILL NOT EXCEED THE TOTAL THAT WOULD ACCUMULATE DURING SUCH PERIOD; BUT THAT, AFTER THE TRIAL PERIOD SHALL HAVE EXPIRED, SICK LEAVE MAY BE ADVANCED TO EMPLOYEES SERVING UNDER WAR SERVICE APPOINTMENTS TO THE SAME EXTENT AND UPON THE SAME BASIS AS IS AUTHORIZED TO BE ADVANCED TO PERMANENT EMPLOYEES.'

IT WILL BE APPRECIATED IF YOU WILL ADVISE THIS DEPARTMENT WHETHER ANNUAL LEAVE LIKEWISE MAY BE ADVANCED TO WAR SERVICE EMPLOYEES.

THE UNIFORM ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER 8384, DATED MARCH 29, 1940, CONTAIN THE FOLLOWING PERTINENT PROVISIONS:

SEC. 1. AS USED IN THESE REGULATIONS:

(B) "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE OR FOR DEFINITE PERIODS IN EXCESS OF 6 MONTHS.

SEC. 2. PERMANENT EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE AND WHO DO NOT CONTEMPLATE LEAVING THE SERVICE DURING THE CURRENT CALENDAR YEAR SHALL BE ENTITLED TO CURRENT ANNUAL LEAVE WITH PAY AT ANY TIME DURING SUCH CALENDAR YEAR NOT IN EXCESS OF 26 DAYS. ADDITION TO CURRENT ANNUAL LEAVE SUCH EMPLOYEES MAY BE GRANTED ACCUMULATED LEAVE NOT TO EXCEED 60 DAYS.

BY THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, PUBLIC LAW 806, RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939, THE 60-DAY LIMITATION ON ACCUMULATED LEAVE WAS EXTENDED TO 90 DAYS SUBJECT TO CERTAIN CONDITIONS AFTER 60 DAYS HAS BEEN ACCUMULATED. SEE DECISION OF JANUARY 26, 1943, B- 31772, 22 COMP. GEN. 704, TO THE FEDERAL SECURITY ADMINISTRATOR, AND FEBRUARY 16, 1943, B-32225, 22 COMP. GEN. 810, TO THE DIRECTOR, OFFICE OF STRATEGIC SERVICES.

IN THE DECISION OF MAY 5, 1942, 21 COMP. GEN. 989, TO WHICH YOU REFER--- WHEREIN WERE CITED AND CONSIDERED THE EXECUTIVE ORDER AND CIVIL SERVICE REGULATIONS APPLICABLE TO WAR SERVICE APPOINTMENTS WHICH "MAY BE MADE FOR THE DURATION OF THE PRESENT WAR AND FOR 6 MONTHS THEREAFTER" (QUOTING FROM CIVIL SERVICE DEPARTMENTAL CIRCULAR NO. 323, ISSUED UNDER EXECUTIVE ORDER 9063, DATED FEBRUARY 16, 1942/--- IT WAS STATED:

THE TERM "LIMITED APPOINTMENT," AS USED IN SECTION 6 OF THE SICK LEAVE REGULATIONS ABOVE QUOTED APPEARS TO COVER AN APPOINTMENT THE TENURE OF WHICH MAY, WITH REASONABLE CERTAINTY, BE MEASURED IN ADVANCE. WHILE WAR SERVICE APPOINTMENTS ISSUED PURSUANT TO EXECUTIVE ORDER NO. 9063 AND THE CIVIL SERVICE REGULATIONS THEREUNDER ARE "LIMITED" IN THE SENSE THAT THEY ARE MADE "FOR THE DURATION OF THE WAR AND FOR 6 MONTHS THEREAFTER," THERE IS NO PRESENT MEANS OF DEFINITELY MEASURING THE TENURE OF SUCH APPOINTMENTS. THEREFORE, IT MAY BE CONCLUDED THAT WAR SERVICE APPOINTMENTS ARE NOT REQUIRED TO BE CLASSED AS "LIMITED APPOINTMENTS" WITHIN THE MEANING OF SECTION 6 OF THE SICK LEAVE REGULATIONS. COMPARE DECISION OF APRIL 10, 1942, B-24902, 21 COMP. GEN. 924, WHEREIN WAS DISCUSSED THE STATUS OF WAR SERVICE APPOINTMENTS IN RESPECT OF THE APPLICATION OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, PROVIDING FOR WITHIN-GRADE SALARY ADVANCEMENTS.

IN LINE WITH THAT REASONING IT MAY BE CONCLUDED THAT EMPLOYEES WHO HAVE BEEN GIVEN WAR SERVICE APPOINTMENTS ARE PROPERLY FOR REGARDING AS "PERMANENT EMPLOYEES" FOR THE PURPOSE, AND WITHIN THE MEANING, OF THE ANNUAL LEAVE REGULATIONS; AND IT WOULD THUS FOLLOW THAT ANNUAL LEAVE MAY BE ADVANCED TO THEM SUBJECT TO THE TERMS AND CONDITIONS OF SECTION 2 AND OTHER PROVISIONS OF THE REGULATIONS.