B-35822, AUGUST 12, 1943, 23 COMP. GEN. 96

B-35822, AUGUST 12, 1943, 23 COMP. GEN. 96

CIVILIAN EMPLOYEES REEMPLOYED AFTER MILITARY OR NAVAL DUTY - ANNUAL AND SICK LEAVE ACCRUAL RIGHTS; RESTORATION OF SICK LEAVE CREDIT THE PROVISIONS OF SECTIONS 10 OF THE ANNUAL AND SICK LEAVE REGULATIONS, WITH RESPECT TO THE ACCRUAL OF LEAVE WHILE AN EMPLOYEE IS IN A NON-PAY STATUS DUE TO LEAVE WITHOUT PAY OR FURLOUGH, RELATE ONLY TO PERIODS OF LEAVES OF ABSENCE WITHOUT PAY GRANTED WHILE AN EMPLOYEE RETAINS THE STATUS OF A CIVILIAN EMPLOYEE OF THE GOVERNMENT AND HAVE NO APPLICATION TO PERIODS OF ABSENCE WHILE HE IS IN THE MILITARY SERVICE OR PERIODS BETWEEN THE TERMINATION OF HIS MILITARY SERVICE AND RESTORATION TO CIVILIAN SERVICE. UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, PROVIDING THAT AN EMPLOYEE WHO IS RESTORED TO HIS CIVILIAN POSITION AFTER DISCHARGE FROM THE MILITARY SERVICE SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING SUCH PERIOD, AND THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING EMPLOYEES TO ELECT TO HAVE LEAVE REMAIN TO THEIR CREDIT UNTIL THEY RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, THERE MAY BE RESTORED TO SUCH AN EMPLOYEE SO MUCH OF HIS ANNUAL LEAVE CREDIT AS HAD NOT BEEN LIQUIDATED BY PAYMENT, AS WELL AS ALL THE SICK LEAVE CREDIT, WHICH HE HAD WHEN HE ENTERED THE MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF CENSORSHIP, AUGUST 12, 1943:

I HAVE YOUR LETTER OF JULY 17, 1943, AS FOLLOWS:

SEVERAL EMPLOYEES OF THIS OFFICE WHO HAD BEEN FURLOUGHED WITHOUT PAY FOR MILITARY TRAINING AND SERVICE HAVE RETURNED TO DUTY IN THE OFFICE OF CENSORSHIP FOLLOWING AN HONORABLE DISCHARGE FROM THE MILITARY SERVICE. QUESTION HAS ARISEN WITH REGARD TO COMPUTING LEAVE FOR THESE EMPLOYEES.

IN DECISION OF JULY 16, 1942, B-27224 (22 COMP./GEN. 42), TO THE SECRETARY OF WAR, IT IS STATED, IN PART, AS FOLLOWS:

"A FURLOUGH WITHOUT PAY TO ENTER THE MILITARY SERVICE IS TO BE REGARDED AS A "SEPARATION" WITHIN THE MEANING OF SECTION 7 OF THE ANNUAL LEAVE REGULATIONS FOR THE PURPOSE OF COMPUTING TERMINAL LEAVE OF ABSENCE.

"UNDER SECTION 10 OF THE ANNUAL LEAVE REGULATIONS, AN EMPLOYEE EARNS ANNUAL LEAVE DURING A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY AGGREGATING LESS THAN 30 CALENDAR DAYS ONLY WHERE THERE IS A RETURN TO DUTY.'

SECTION 10 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 10 OF THE SICK LEAVE REGULATIONS PROVIDE ALSO THAT WHEN THE DURATION OF NON-PAY STATUS DUE TO LEAVE WITHOUT PAY OR FURLOUGH IS IN EXCESS OF 30 CALENDAR DAYS IN ANY CALENDAR YEAR, SUCH EXCESS SHALL AFFECT THE ACCRUAL OF LEAVE ONLY WHEN IT AGGREGATES 10 CALENDAR DAYS THEREAFTER.

TO CITE A SPECIFIC CASE, MR. GALO E. SOLES WAS FURLOUGHED FROM THE OFFICE OF CENSORSHIP ON SEPTEMBER 30, 1942, AT WHICH TIME HIS ACCRUED ANNUAL LEAVE WAS EXHAUSTED. HE WAS HONORABLY DISCHARGED FROM THE UNITED STATES ARMY ON FEBRUARY 26, 1943, AND RETURNED TO DUTY IN THE OFFICE OF CENSORSHIP ON MARCH 8, 1943, AFTER BEING IN FURLOUGH STATUS FOR A PERIOD OF 157 DAYS.

QUESTION 1: SHOULD MR. SOLES, UPON HIS RETURN TO DUTY ON MARCH 8, 1943 BE ALLOWED ACCRUAL OF ANNUAL AND SICK LEAVE FOR THE 7-DAY PERIOD FROM MARCH 1 TO 7, INCLUSIVE, AND IN THIS WAY LOSE ACCRUAL FOR ONLY 150 OF THE 157 DAYS DURING WHICH HE WAS IN FURLOUGH STATUS?

QUESTION 2: SHOULD MR. SOLES BE CREDITED ON MARCH 8 WITH THE SICK LEAVE THAT HAD NOT BEEN USED AT THE TIME OF HIS FURLOUGH ON SEPTEMBER 30, 1942?

YOUR RULING ON THESE QUESTIONS IS RESPECTFULLY REQUESTED.

IN ADDITION TO THE DECISION QUOTED IN YOUR LETTER, 22 C. G. 42, SEE DECISION OF APRIL 24, 1943, 22 COMP. GEN. 990, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE ENTRY OF AN EMPLOYEE INTO THE ACTIVE MILITARY OR NAVAL SERVICE IS TO BE REGARDED AS A ,SEPARATION" UNDER SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT AN EMPLOYEE WHO IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE AT THE TIME OF HIS SEPARATION FROM THE SERVICE SHALL BE CHARGED WITH SUCH INDEBTEDNESS.

UNDER SECTION 11 OF THE SICK LEAVE REGULATIONS, PROVIDING THAT EMPLOYEES BE CHARGED WITH OVERDRAWN SICK LEAVE UPON THEIR VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE, THE ENTRY OF AN EMPLOYEE INTO THE ACTIVE MILITARY OR NAVAL SERVICE--- WHETHER BY ENLISTMENT OR BY INDUCTION--- WITHOUT BREAK IN SERVICE IS NOT TO BE REGARDED AS A "VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE" SO AS TO REQUIRE COLLECTION FROM HIM FOR OVERDRAWN SICK LEAVE.

THOSE DECISIONS RELATE TO EMPLOYEES WHO HAD NOT BEEN RESTORED TO THEIR CIVIL POSITIONS AFTER MILITARY SERVICE UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, SUBSECTION (C) OF WHICH PROVIDES:

(C) ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUBSECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.

IN THE INSTANT CASE IT IS UNDERSTOOD THE EMPLOYEE COMPLIED WITH ALL OF THE TERMS AND CONDITIONS OF LAW TO ENTITLE HIM TO BE RESTORED TO HIS CIVIL POSITION AND THAT HE WAS SO RESTORED THERETO.

IN DECISION OF NOVEMBER 3, 1941, 21 COMP. GEN. 403, 408, IT WAS STATED:

* * * AS ABOVE NOTED, UPON COMPLIANCE WITH THOSE CONDITIONS THE EMPLOYEES ARE ENTITLED TO BE ,RESTORED" TO THEIR FORMER CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY STATUS AND PAY; AND IT IS ONLY UPON SUCH RESTORATION THAT THERE MATERIALIZES A RIGHT TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" AND TO REQUIRE THE LEAVE AND OTHER BENEFITS WHICH WOULD OTHERWISE HAVE BEEN LOST TO THEM. IN OTHER WORDS, IT IS ONLY IN THE EVENT THAT THE CONDITIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, HAVE BEEN COMPLIED WITH THAT SUCH AN EMPLOYEE IS ENTITLED TO BE RESTORED TO HIS POSITION; AND IT IS ONLY IN THE EVENT THAT HE BE SO RESTORED THAT HE IS ENTITLED TO BE CONSIDERED AS HAVING BEEN ON LEAVE OF ABSENCE FROM HIS POSITION AND TO BE RECREDITED WITH HIS ACCRUED LEAVE.

SECTION 10 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384) PROVIDES:

SEC. 10. ANNUAL LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS. EXCEPT AS PROVIDED IN SECTION 9 HEREOF, ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE IN A NON-PAY STATUS DUE TO LEAVE WITHOUT PAY OR FURLOUGH WHEN THE DURATION OF SUCH NON-PAY STATUS IN ANY CALENDAR YEAR AGGREGATES 30 CALENDAR DAYS OR MORE: PROVIDED, THAT WHEN THE DURATION OF SUCH NON-PAY STATUS IS IN EXCESS OF 30 CALENDAR DAYS IN ANY CALENDAR YEAR, SUCH EXCESS SHALL AFFECT THE ACCRUAL OF ANNUAL LEAVE ONLY WHEN IT AGGREGATES 10 CALENDAR DAYS, AND LIKEWISE FOR EACH AGGREGATE PERIOD OF 10 CALENDAR DAYS THEREAFTER. ANNUAL LEAVE SHALL NOT ACCRUE DURING ANY PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS.

THE PROVISIONS OF SECTION 10 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940) ARE TO THE SAME EFFECT.

I AM NOT AWARE OF ANY LAW OR REGULATION WHICH WOULD AUTHORIZE THE ACCRUAL OF ANNUAL OR SICK LEAVE IN A CIVILIAN POSITION DURING THE PERIOD THE ENCUMBENT THEREOF IS IN THE ACTIVE MILITARY SERVICE, OR DURING PERIODS WHEN HE IS NOT IN FEDERAL SERVICE BETWEEN TERMINATION OF MILITARY SERVICE AND RESTORATION TO HIS CIVILIAN POSITION. IN VIEW THEREOF, THE RULES STATED IN SECTION 10 OF BOTH THE ANNUAL AND SICK LEAVE REGULATIONS, TO WHICH YOU REFER, ARE TO BE REGARDED AS RELATING ONLY TO PERIODS OF LEAVE OF ABSENCE WITHOUT PAY GRANTED WHILE AN EMPLOYEE RETAINS THE STATUS OF A CIVILIAN EMPLOYEE AND AS HAVING NO APPLICATION TO PERIODS OF ABSENCE WHILE HE IS IN THE MILITARY SERVICE OR PERIODS BETWEEN TERMINATION OF MILITARY SERVICE AND RESTORATION TO CIVILIAN SERVICE. HENCE, THE BENEFITS UNDER THOSE RULES MAY NOT BE REGARDED AS "ESTABLISHED" AND "OFFERED BY THE EMPLOYER ( GOVERNMENT)" AT THE TIME AN EMPLOYEE ENTERS THE MILITARY SERVICE WITHIN THE MEANING OF THOSE WORDS AS USED IN SECTION 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACTS OF 1940.

WHILE IT IS TRUE THAT IF AND WHEN A DISCHARGED SOLDIER IS RESTORED TO HIS CIVILIAN POSITION HE IS NOT TO BE REGARDED AS HAVING BEEN SEPARATED FROM CIVILIAN SERVICE, NEVERTHELESS, IT WOULD SEEM TO BE THE INTENT OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 (AND OTHER STATUTES IN PARI MATERIA) WHEN CONSIDERED IN THE LIGHT OF THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, AUTHORIZING EMPLOYEES "TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE," TO RESTORE TO AN EMPLOYEE SO MUCH OF HIS ANNUAL LEAVE CREDIT AS HAD NOT BEEN LIQUIDATED BY PAYMENT, AS WELL AS ALL HIS SICK LEAVE CREDIT WHICH HE HAD WHEN HE ENTERED THE ACTIVE MILITARY SERVICE, BUT I FIND NOTHING TO INDICATE AN INTENT TO ALLOW ACCRUAL OF ANNUAL AND SICK LEAVE REGULATIONS FOR ANY PART OF THE PERIOD FROM THE DATE HE LEFT HIS CIVILIAN POSITION TO ENTER THE MILITARY SERVICE TO THE DATE OF HIS ACTUAL RETURN TO A CIVILIAN POSITION.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, AND QUESTION 2 IN THE AFFIRMATIVE.