B-32647, APRIL 6, 1943, 22 COMP. GEN. 944

B-32647, APRIL 6, 1943, 22 COMP. GEN. 944

LEAVES OF ABSENCE - FORFEITURE UPON TRANSFER FROM PERMANENT TO TEMPORARY POSITION; RECREDITING UPON RETURN TO PERMANENT POSITION A POSITION WITH THE AIR CORPS FERRYING COMMAND--- A CIVILIAN ORGANIZATION --- TO WHICH A PERMANENT EMPLOYEE WAS INITIALLY REAPPOINTED FOR A PERIOD OF 90 DAYS MUST BE REGARDED AS A ,TEMPORARY" POSITION WITHIN THE MEANING OF THE ANNUAL LEAVE REGULATIONS, EVEN THOUGH THE EMPLOYEE CONTINUED TO SERVE IN THE TEMPORARY POSITION FOR AN AGGREGATE PERIOD OF MORE THAN 6 MONTHS UNDER EXTENSIONS OF THE INITIAL APPOINTMENT. AN EMPLOYEE WHO ENTERED THE MILITARY SERVICE WHILE SERVING IN A "TEMPORARY" POSITION WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, TO WHICH HE HAD TRANSFERRED WITHOUT BREAK IN SERVICE FROM A PERMANENT POSITION, IS NOT ENTITLED UNDER SECTION 6 OF THE ANNUAL LEAVE REGULATIONS TO HAVE RECREDITED TO HIM, UPON RETURN FROM THE MILITARY SERVICE AND REEMPLOYMENT IN THE PERMANENT POSITION, THE UNUSED ANNUAL LEAVE EARNED IN HIS PERMANENT POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, APRIL 6, 1943:

THE DECISION HAS BEEN REQUESTED OF QUESTIONS PRESENTED BY THE ADMINISTRATIVE OFFICER, CIVIL AERONAUTICS ADMINISTRATION, CHICAGO, ILLINOIS, IN HIS LETTER OF JANUARY 30, 1943, AS FOLLOWS:

SUBJECT: COMPENSATION FOR ANNUAL LEAVE--- WILLIAM NISKANEN.

MR. WILLIAM NISKANEN, FORMERLY AN AIRWAY TRAFFIC CONTROLLER, CAF-8, $2900 PER ANNUM AT THE AIRWAY TRAFFIC CONTROL CENTER, MINNEAPOLIS, MINNESOTA, RESIGNED FROM THE CIVIL AERONAUTICS ADMINISTRATION EFFECTIVE AT THE CLOSE OF MARCH 15, 1942 AND THE NEXT DAY ENTERED ON DUTY WITH THE AIR CORPS FERRYING COMMAND IN A TEMPORARY POSITION OF PILOT IN A CIVILIAN STATUS. AT THE TIME OF HIS SEPARATION FROM THE CIVIL AERONAUTICS ADMINISTRATION HE HAD ACCUMULATED TO HIS CREDIT A TOTAL OF 37 DAYS, 1 HOUR, 41 MINUTES ANNUAL LEAVE.

UNDER DATE OF APRIL 7, 1942 MR. NISKANEN MADE INQUIRY OF THIS OFFICE AS TO THE POSSIBILITY OF HIS BEING PAID FOR HIS ACCRUED LEAVE. HE WAS ADVISED THAT SUCH PAYMENT COULD NOT BE MADE BECAUSE OF THE FACT THAT IT WOULD BE IN VIOLATION OF THE DUAL COMPENSATION STATUTE, INASMUCH AS HE WAS ALREADY RECEIVING CIVILIAN COMPENSATION FROM THE AIR CORPS FERRYING COMMAND.

ON OCTOBER 1, 1942 HIS SERVICES IN A CIVILIAN CAPACITY WITH THE AIR CORPS FERRYING COMMAND WERE TERMINATED AND HE WAS IMMEDIATELY COMMISSIONED AS A FIRST LIEUTENANT IN THE U.S. AIR CORPS AND SINCE THAT TIME HAS BEEN STATIONED WITH THE TRANSITION FLIGHT SECTION, THIRD FERRYING GROUP, AIR TRANSPORT COMMAND, ROMULUS, MICHIGAN.

HE HAS NOW MADE CLAIM FOR PAYMENT OF HIS ACCRUED ANNUAL LEAVE IN THIS SERVICE, BASING HIS DEMAND UPON THE STATUTE PROVIDING THAT EMPLOYEES ENTERING MILITARY SERVICE SHALL BE ENTITLED TO SUCH PAYMENT.

DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING POINTS:

(1) IN VIEW OF THE FACT THAT MR. NISKANEN SERVED IN A TEMPORARY POSITION IN A CIVILIAN CAPACITY FOR THE PERIOD FROM MARCH 16, 1942 THROUGH SEPTEMBER 30, 1942, PRIOR TO HIS ACTUAL COMMISSIONING IN THE U.S. AIR CORPS, IS THE CIVIL AERONAUTICS ADMINISTRATION RESPONSIBLE FOR THE PAYMENT OF HIS SALARY FOR THE PERIOD OF LEAVE ACCRUED TO HIS CREDIT AT THE TIME HIS RESIGNATION FROM THE CIVIL AERONAUTICS ADMINISTRATION WAS EFFECTED?

(2) IN VIEW OF THE TEMPORARY NATURE OF THE CIVILIAN POSITION WITH THE AIR CORPS FERRYING COMMAND, CAN THE AMOUNT OF HIS ACCUMULATED LEAVE BE TRANSFERRED TO THAT ORGANIZATION AND THAT ORGANIZATION HELD RESPONSIBLE FOR THE PAYMENT OF TOTAL ACCRUED LEAVE AT THE TIME OF MR. NISKANEN'S COMMISSIONING?

(3) IF BOTH OF THE ABOVE QUESTIONS ARE ANSWERED IN THE NEGATIVE, IS MR. NISKANEN ENTITLED TO A RECREDIT OF THE ABOVE MENTIONED ACCRUED LEAVE IF AND WHEN HE AGAIN ENTERS THE SERVICE OF THE CIVIL AERONAUTICS ADMINISTRATION IN A CIVILIAN CAPACITY WITHIN THE ALLOWABLE PERIOD AFTER HIS DISCHARGE FROM THE AIR CORPS.

IN LETTER OF MARCH 4, 1943, THIS OFFICE REQUESTED THE SECRETARY OF WAR TO FURNISH DEFINITE INFORMATION REGARDING THE STATUS OF THE AIR CORPS FERRYING COMMAND, TO WHICH REQUEST REPLY WAS MADE UNDER DATE OF MARCH 26, 1943, AS FOLLOWS:

IN REPLY TO YOUR LETTER OF MARCH 4, 1943, TO THE SECRETARY OF WAR (B- 32647), THE FOLLOWING INFORMATION IS FURNISHED:

"THE AIR CORPS FERRYING COMMAND WAS CONSTITUTED AND ESTABLISHED AS OF MAY 29, 1941, BY ORDER OF SECRETARY OF WAR, IN AGO LETTER DATED JUNE 5, 1941, FILE AG-320.2 (6-3-41). GENERAL ORDER NO. 8, HEADQUARTERS AAF, DATED JUNE 20, 1942, REDESIGNATED THE AIR FORCES FERRYING COMMAND TO " AIR TRANSPORT COMMAND.'

"ENCLOSED IS A COPY OF THE AUTHORITY OF THE CIVIL SERVICE COMMISSION DATED JUNE 20, 1941, AND ST ENDORSEMENT FROM THE SECRETARY OF WAR TO CHIEF OF THE AIR CORPS, FOR THE HIRE OF CIVILIAN PILOTS AND CO-PILOTS AT THE RATE OF $5,000, $5,500, AND $6,500 PER ANNUM. THIS LETTER WAS AMENDED TO INCLUDE AUTHORIZATION OF TEMPORARY APPOINTMENT OF STUDENT 4 ENGINE PILOTS AT $3,600 PER ANNUM, UNDER THE SAME CONDITIONS OUTLINED IN ORIGINAL AUTHORIZATION BY CIVIL SERVICE COMMISSION LETTER DATED AUGUST 29, 1941.

"UNDER WAR SERVICE REGULATIONS, SECTION 4, CIVIL SERVICE RULE VIII, APPOINTMENTS WERE AUTOMATICALLY CONVERTED EFFECTIVE MARCH 16, 1942, TO WAR SERVICE APPOINTMENTS, UNDER EXECUTIVE ORDER 9063. SECTION 4 (B) WAR SERVICE REGULATION V, STIPULATES THAT EXISTING SPECIAL AGREEMENTS BETWEEN THE COMMISSION AND ANY DEPARTMENT SHALL CONTINUE IN EFFECT UNTIL FURTHER NOTICE, AND EXTENSION OF EMPLOYMENT BEYOND THE PERIOD AUTHORIZED IN SPECIAL AGREEMENT MUST BE OBTAINED FROM THE COMMISSION OR ITS REPRESENTATIVE. APPOINTMENTS OF CIVILIAN PILOTS AFTER MARCH 16, 1942, THEREFORE, WERE MADE UNDER EO 9063 ( TEMPORARY--- 90 DAYS). DURING THAT TIME THE CIVILIAN PILOT WAS RECOMMENDED FOR COMMISSION IN THE AUS, PROVIDING HE HAD THE NECESSARY QUALIFICATIONS, EXPERIENCE, MORAL CHARACTER, ETC. IF COMMISSION WERE GRANTED, CIVILIAN EMPLOYMENT WAS TERMINATED AND PAYMENT MADE OF ACCRUED AND ACCUMULATED ANNUAL LEAVE; IF NOT GRANTED, HIS CIVILIAN EMPLOYMENT COULD BE CONTINUED BY EXTENDING THE APPOINTMENT AT 90-DAY INTERVALS, NOT EXCEEDING ONE YEAR.

"INCLOSED HEREWITH IS A COPY OF THE INSTRUMENT OF APPOINTMENT OF MR. NISKANEN AS CIVILIAN PILOT, UNGRADED, $3,600 PER ANNUM, EFFECTIVE MARCH 21, 1942, UNDER EO 9063 (TEMPORARY). EXTENSIONS OF THIS APPOINTMENT WERE MADE ON JUNE 21, 1942, SEPTEMBER 21, 1942 AND TERMINATION, ON OCTOBER 8, 1942, DUE TO THE FACT THAT HE WAS COMMISSIONED OCTOBER 1, 1942.'

WE TRUST THAT THIS INFORMATION IS SUFFICIENT TO ENABLE YOU TO ARRIVE AT YOUR DECISION.

IT IS CLEAR FROM THE LETTER OF THE ADMINISTRATIVE OFFICER, CIVIL AERONAUTICS ADMINISTRATION, AND FROM THE WAR DEPARTMENT REPORT ABOVE QUOTED (1) THAT THE AIR CORPS FERRYING COMMAND IS A CIVILIAN, AS DISTINGUISHED FROM A MILITARY, ORGANIZATION (2) THAT WILLIAM NISKANEN WAS REAPPOINTED FROM A PERMANENT CIVILIAN POSITION, SALARY RATE $2,900 PER ANNUM, UNDER THE CIVIL AERONAUTICS ADMINISTRATION, TO A TEMPORARY CIVILIAN POSITION (90 DAYS), WITH THE AIR CORPS FERRYING COMMAND, SALARY RATE $3,600, PER ANNUM, EFFECTIVE MARCH 21, 1942, WHICH SERVICE WAS EXTENDED BY TWO SUBSEQUENT TEMPORARY APPOINTMENTS UNTIL OCTOBER 8, 1942, AND (3) THAT HE WAS COMMISSIONED IN THE ARMY OCTOBER 1, 1942, WHILE HE WAS SERVING IN THE TEMPORARY CIVILIAN POSITION WITH THE AIR CORPS FERRYING COMMAND. THE OVERLAPPING PERIOD FROM OCTOBER 1 TO 8, 1942, IS NOT EXPLAINED, BUT THAT FACT SEEMS IMMATERIAL OR UNIMPORTANT SO FAR AS CONCERNS THE QUESTIONS HERE PRESENTED.

IN DECISION OF SEPTEMBER 18, 1942, 22 COMP. GEN. 246, 247, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

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 WORK 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.

IN DECISION OF JANUARY 7, 1939, 18 COMP. GEN. 596, IT WAS HELD (QUOTING FROM THE SYLLABUS):

TEMPORARY SERVICE FOR A PERIOD OF 6 MONTHS UNDER A 3 MONTHS' INITIAL APPOINTMENT WHICH IS EXTENDED WITHOUT BREAK IN SERVICE FOR ANOTHER 3 MONTHS UNDER AUTHORITY OF SECTION 2 OF RULE VIII OF THE CIVIL SERVICE LAWS AND REGULATIONS MAY BE REGARDED AS ONE TEMPORARY APPOINTMENT FOR LEAVE PURPOSES UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AND THE UNUSED LEAVE ACCRUED PRIOR TO THE EXTENSION MAY BE SUBSTITUTED FOR A PERIOD OF LEAVE WITHOUT PAY AFTER THE DATE OF THE EXTENSION.

IN DECISION OF MAY 13, 1939, 18 COMP. GEN. 853, 854, IT WAS STATED THAT--

* * * A SERIES OF ADMINISTRATIVE APPOINTMENTS EACH FOR A DEFINITE PERIOD NOT EXCEEDING 6 MONTHS (BUT THE SERIES OF APPOINTMENTS AGGREGATING MORE THAN 6 MONTHS) DOES NOT CHANGE THE STATUS OF THE EMPLOYEE FROM TEMPORARY TO PERMANENT OR EMERGENCY FOR LEAVE PURPOSES, * * * SEE, ALSO, 20 COMP. GEN. 223, AND 20 COMP. GEN. 332, THE LATTER DECISION HOLDING AS FOLLOWS (QUOTING FROM THE YLLABUS):

EMPLOYEES ORIGINALLY APPOINTED FOR DEFINITE PERIODS NOT EXCEEDING 6 MONTHS WHOSE APPOINTMENTS ARE EXTENDED AT THE END OF 6 MONTHS, OR WHO ARE GIVEN NEW TEMPORARY APPOINTMENTS AT SUCH TIME, ARE TO BE REGARDED AS TEMPORARY EMPLOYEES FOR LEAVE PURPOSES REGARDLESS OF THE AGGREGATE LENGTH OF SERVICE, AND SUCH A SERIES OF APPOINTMENTS OR EXTENSIONS IS TO BE CONSIDERED AS ONE TEMPORARY APPOINTMENT FOR THE PURPOSE OF TRANSFERRING ACCRUED LEAVE CREDIT FROM ONE PERIOD OF THE TEMPORARY APPOINTMENT TO ANOTHER. COMPARE 19 COMP. GEN. 520.

IN THE INSTANT CASE, THEREFORE, THE POSITION WITH THE AIR CORPS FERRYING COMMAND TO WHICH REAPPOINTMENT WAS INITIALLY MADE FOR A PERIOD OF 90 DAYS- -- LESS THAN 6 MONTHS--- MUST BE REGARDED AS "TEMPORARY" FOR LEAVE PURPOSES EVEN THOUGH THE EMPLOYEE CONTINUED TO SERVE FOR AN AGGREGATE PERIOD OF MORE THAN 6 MONTHS UNDER EXTENSIONS OF THE INITIAL APPOINTMENT PRIOR TO THE TIME HE WAS COMMISSIONED IN THE ARMY. ACCORDINGLY, WHEN MR. NISKANEN WAS REAPPOINTED FROM A PERMANENT POSITION UNDER THE CIVIL AERONAUTICS ADMINISTRATION TO A TEMPORARY POSITION WITH THE AIR CORPS FERRYING COMMAND, A CIVILIAN ORGANIZATION, THERE WAS NO AUTHORITY TO TRANSFER TO THE TEMPORARY POSITION THE 37 DAYS, 1 HOUR, 41 MINUTES ANNUAL LEAVE WHICH STOOD TO HIS CREDIT IN HIS PERMANENT POSITION. ACCORDINGLY, QUESTIONS (1) AND (2) MUST BE AND ARE ANSWERED IN THE NEGATIVE.

THE SECOND SENTENCE OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER 8384, DATED MARCH 29, 1940, PROVIDES:

* * * 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 14, 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 ALSO WITHOUT BREAK IN SERVICE. * * *

IN THE INSTANT CASE, WHILE THE LEAVE EARNED IN THE PERMANENT POSITION UNDER THE CIVIL AERONAUTICS ADMINISTRATION WAS NOT AUTHORIZED TO BE TRANSFERRED TO THE CREDIT OF THE EMPLOYEE UPON REAPPOINTMENT TO THE TEMPORARY POSITION WITH THE AIR CORPS FERRYING COMMAND, NEVERTHELESS, SUCH TEMPORARY POSITION WAS "WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936," AND, ACCORDINGLY, THE QUOTED REGULATION CONSTITUTES NO AUTHORITY TO RECREDIT TO THE EMPLOYEE THE UNUSED LEAVE HE HAD EARNED IN HIS PERMANENT POSITION WITH THE CIVIL AERONAUTICS ADMINISTRATION IF AND WHEN HE SHOULD BE REEMPLOYED IN THAT POSITION AFTER RETURN FROM MILITARY SERVICE, BUT ON THE CONTRARY, THE EMPLOYEE PERMANENTLY LOST SUCH LEAVE WHEN HE WAS TRANSFERRED OR REAPPOINTED TO THE TEMPORARY POSITION UNDER THE AIR CORPS FERRYING COMMAND.