B-40518, MARCH 16, 1944, 23 COMP. GEN. 677

B-40518: Mar 16, 1944

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A PERIOD OF LEAVE WITHOUT PAY BREAKS A "MONTH OF SERVICE" SO AS TO PRECLUDE THE CREDITING OF ANNUAL AND SICK LEAVE TO TEMPORARY AND INDEFINITE EMPLOYEES WHO ARE ABSENT ON LEAVE WITHOUT PAY FOR A PORTION OF A MONTH. GEN. 993 AND 20 ID. 827 ARE NOT CHANGED BY THE LEAVE REGULATIONS EFFECTIVE JANUARY 1. IS NOT SELF-EXECUTING. THAT IS. HAS NO APPLICATION TO AUTHORIZE THE GRANTING OF TERMINAL LEAVE OF ABSENCE WITH PAY TO AN EMPLOYEE WHO IS REMOVED FROM THE SERVICE FOR VIOLATING THE PROVISIONS OF SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT. WHICH ARE SELF-EXECUTING AND CONSTITUTE AN ABSOLUTE PROHIBITION AGAINST THE USE OF SALARY APPROPRIATIONS FOR PAYMENT OF THE SALARY OF ANY PERSON WHO ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE.

B-40518, MARCH 16, 1944, 23 COMP. GEN. 677

LEAVES OF ABSENCE THE "MONTH OF SERVICE" REQUIRED UNDER SECTIONS 2.1 (B) AND 2.1 (C) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 3.1 (B) OF THE SICK LEAVE REGULATIONS, AS A CONDITION TO THE CREDITING OF ANNUAL AND SICK LEAVE OF TEMPORARY AND INDEFINITE EMPLOYEES, RELATES TO A PERIOD OF EMPLOYMENT WITH PAY, AND, THEREFORE, A PERIOD OF LEAVE WITHOUT PAY BREAKS A "MONTH OF SERVICE" SO AS TO PRECLUDE THE CREDITING OF ANNUAL AND SICK LEAVE TO TEMPORARY AND INDEFINITE EMPLOYEES WHO ARE ABSENT ON LEAVE WITHOUT PAY FOR A PORTION OF A MONTH. THE RULES STATED IN 16 COMP. GEN. 993 AND 20 ID. 827 ARE NOT CHANGED BY THE LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944. SECTION 9 (B) OF THE ACT OF AUGUST 2, 1939 ( HATCH ACT), AS AMENDED, WHICH REQUIRES THE REMOVAL FROM OFFICE, AND PROHIBITS THE PAYMENT OF THE COMPENSATION THEREAFTER, OF ANY PERSON VIOLATING THE POLITICAL ACTIVITY PROVISIONS OF SECTION 9 (A), IS NOT SELF-EXECUTING, THAT IS, IT REQUIRES AFFIRMATIVE ADMINISTRATIVE ACTION REMOVING AN EMPLOYEE FROM THE SERVICE BEFORE THE SEPARATION ACTUALLY BECOMES EFFECTIVE (SEE 19 COMP. GEN. 834), AND, AS THE REMOVAL OF AN EMPLOYEE UNDER SUCH CIRCUMSTANCES WOULD CONSTITUTE AN "INVOLUNTARY SEPARATION" WITHIN THE MEANING OF SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, THE EFFECTIVE DATE OF THE EMPLOYEE'S SEPARATION SHOULD BE SO FIXED AS TO PERMIT HIM TO TAKE, OR TO BE PAID FOR, TERMINAL ANNUAL LEAVE. SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT AN EMPLOYEE'S SEPARATION, WHETHER VOLUNTARY OR INVOLUNTARY, SHALL NOT BECOME EFFECTIVE ON A DATE PRIOR TO THE TERMINATION OF HIS UNUSED ANNUAL LEAVE, HAS NO APPLICATION TO AUTHORIZE THE GRANTING OF TERMINAL LEAVE OF ABSENCE WITH PAY TO AN EMPLOYEE WHO IS REMOVED FROM THE SERVICE FOR VIOLATING THE PROVISIONS OF SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, WHICH ARE SELF-EXECUTING AND CONSTITUTE AN ABSOLUTE PROHIBITION AGAINST THE USE OF SALARY APPROPRIATIONS FOR PAYMENT OF THE SALARY OF ANY PERSON WHO ADVOCATES THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE. IN VIEW OF THE PROVISION IN SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, THAT IN NO CASE SHALL THE SEPARATION OF AN EMPLOYEE FROM SERVICE BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF UNUSED ANNUAL LEAVE, AN EMPLOYEE WHO IS SEPARATED THROUGH ADMINISTRATIVE ERROR OR NEGLIGENCE BEFORE RECEIVING THE FULL AMOUNT OF ANNUAL LEAVE TO HIS CREDIT MAY BE RESTORED TO THE PAYROLL MERELY FOR THE PURPOSE OF GRANTING THE BALANCE OF ANY ANNUAL LEAVE DUE BUT NOT TAKEN AT THE TIME OF SEPARATION. UNDER SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROVIDING THAT ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION, LEAVE ON LEAVE MAY NOT BE GRANTED DURING TERMINAL LEAVE OF EMPLOYEES WHO ENTER THE ACTIVE MILITARY SERVICE--- THE PLACING OF AN EMPLOYEE ON LEAVE OF ABSENCE WITHOUT PAY, OR ON A MILITARY FURLOUGH WHEN ENTERING THE MILITARY SERVICE CONSTITUTING A "FURLOUGH," IF NOT A ,SEPARATION.' IF AN EMPLOYEE IS EXCUSED FROM WORKING ON A HOLIDAY BY ADMINISTRATIVE ACTION TAKEN EITHER BEFORE OR AFTER THE HOLIDAY, NO DEDUCTION OF COMPENSATION FOR THE HOLIDAY IS REQUIRED UNDER SECTION 4.5 OF THE ANNUAL AND SICK LEAVE REGULATIONS, BUT IF AN EMPLOYEE IS ABSENT WITHOUT AUTHORITY ON A HOLIDAY AND IS NOT EXCUSED BY ADMINISTRATIVE ACTION, THE SAID SECTION 4.5 SPECIFICALLY REQUIRES THE DEDUCTION OF ONE DAY'S PAY ON ACCOUNT OF THE UNAUTHORIZED ABSENCE ON A HOLIDAY. IF AN EMPLOYEE IS EXCUSED FROM WORKING ON A HOLIDAY BY ADMINISTRATIVE ACTION, THERE IS NO AUTHORITY UNDER SECTION 4.5 OF THE ANNUAL AND SICK LEAVE REGULATIONS TO CHARGE THE ABSENCE TO EARNED COMPENSATORY TIME--- WHICH IS GRANTED IN LIEU OF PAYING ADDITIONAL OVERTIME COMPENSATION UNDER SECTION 2 OF THE WAR OVERTIME PAY ACT OF 1943--- OR TO REQUIRE ADDITIONAL OVERTIME WORK TO MAKE UP THE TIME NOT WORKED ON THE HOLIDAY. AS NATIONAL HOLIDAYS ESTABLISHED BY FEDERAL STATUTE SPECIFICALLY HAVE BEEN EXCLUDED BY THE ACT OF MARCH 2, 1940, FROM COUNTING AS DAYS OF ANNUAL OR SICK LEAVE UNDER THE LEAVE LAWS, AUTHORITY TO GRANT AND CHARGE ANNUAL OR SICK LEAVE FOR ABSENCE ON A NATIONAL HOLIDAY ON WHICH EMPLOYEES ARE REQUIRED TO WORK BY ADMINISTRATIVE ORDER MAY NOT BE ACCOMPLISHED BY AN AMENDMENT TO THE LEAVE REGULATIONS--- WHICH WOULD BE LEGISLATING--- BUT MAY BE EFFECTED ONLY BY AN AMENDMENT OF THE LEAVE STATUTES. UNDER SECTION 4.7 OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, AN EMPLOYEE WHO, AT THE TIME OF HIS SEPARATION FROM THE SERVICE, IS INDEBTED FOR OVERDRAWN OR EXCESS ANNUAL OR SICK LEAVE OVER A PERIOD BEGINNING ON OR AFTER JANUARY 1, 1944, IS REQUIRED TO REFUND THE TOTAL AMOUNT OF COMPENSATION ACTUALLY PAID FOR THE ENTIRE PERIOD OF THE OVERDRAWN OR EXCESS LEAVE WHICH WAS ADVANCED, INCLUDING COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE PERIOD OF SUCH LEAVE. THE AMOUNT TO BE REFUNDED BY AN EMPLOYEE FOR OVERDRAWN OR EXCESS ANNUAL OR SICK LEAVE UPON HIS SEPARATION FROM THE SERVICE SHOULD BE COMPUTED UNDER THE ANNUAL AND SICK LEAVE REGULATIONS IN FORCE AT THE TIME THE LEAVE WAS TAKEN. IF AN EMPLOYEE IS INDEBTED FOR OVERDRAWN ANNUAL OR SICK LEAVE AT THE TIME OF HIS RESIGNATION IN ONE AGENCY, AND THE AGENCY BELIEVES, BUT DOES NOT KNOW, THAT THE EMPLOYEE WILL BE REEMPLOYED IN ANOTHER DEPARTMENT OR AGENCY WITHOUT A "BREAK IN SERVICE" (THAT IS, WITHIN LESS THAN 30 DAYS), A COLLECTION FOR OVERDRAWN LEAVE SHOULD BE MADE FROM THE EMPLOYEE'S LAST SALARY CHECK IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4.7 OF THE ANNUAL AND SICK LEAVE REGULATIONS, INSTEAD OF WITHHOLDING ACTION PENDING INFORMATION AS TO THE EMPLOYEE'S REAPPOINTMENT IN ANOTHER AGENCY WITHOUT BREAK IN SERVICE FOR THE PURPOSE OF TRANSFERRING THE LEAVE CHARGE THERETO PURSUANT TO SECTION 4.11 OF THE REGULATIONS. UNDER SECTION 4.11 OF THE ANNUAL AND SICK LEAVE REGULATIONS, IF A TEMPORARY EMPLOYEE RESIGNS IN ONE AGENCY WHILE INDEBTED FOR OVERDRAWN ANNUAL OR SICK LEAVE, AND THE AGENCY BELIEVES, BUT DOES NOT KNOW, THAT THE EMPLOYEE WILL BE REEMPLOYED IN ANOTHER AGENCY IN A PERMANENT POSITION WITHOUT "BREAK IN SERVICE" (THAT IS, WITHIN LESS THAN 30 DAYS) THE AMOUNT DUE FOR OVERDRAWN LEAVE SHOULD BE COLLECTED FROM THE EMPLOYEE'S LAST SALARY CHECK IN ACCORDANCE WITH SECTION 4.7 OF THE REGULATIONS, INSTEAD OF WITHHOLDING ACTION PENDING INFORMATION AS TO THE EMPLOYEE'S REAPPOINTMENT IN ANOTHER AGENCY FOR THE PURPOSE OF TRANSFERRING THE LEAVE CHARGE THERETO PURSUANT TO SECTION 4.11 OF THE REGULATIONS. UNDER SECTION 4.8 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, RESPECTING THE GRANTING OF LEAVE WITHOUT PAY, AN EMPLOYEE WHO APPLIES FOR AND IS ADMINISTRATIVELY GRANTED DURING A PERIOD OF SUSPENSION FROM DUTY WHICH LATER IS DETERMINED TO HAVE BEEN UNJUSTIFIED AND THE EMPLOYEE IS RESTORED TO DUTY, OR WHEN LEAVE WITHOUT PAY OTHERWISE IS CHARGED AS A RESULT OF A MISTAKE OF FACT OR LAW, THE ACTION MAY BE CORRECTED TO THE EXTENT OF SUBSTITUTING RETROACTIVELY EFFECTIVE THE LEAVE WITH PAY STANDING TO THE EMPLOYEE'S CREDIT ON THE DATE OF SUSPENSION OR OTHER ERRONEOUS ACTION CHARGING LEAVE WITHOUT PAY, FOR A CORRESPONDING PERIOD OF LEAVE WITHOUT PAY. THE PURPOSE AND INTENT OF SECTION 4 OF THE ANNUAL AND SICK LEAVE REGULATIONS IS THAT LEAVE ON LEAVE, EITHER SICK OR ANNUAL, IS EARNED ONLY IF THERE IS A RETURN TO DUTY; AND NO LEAVE ON LEAVE, EITHER SICK OR ANNUAL, IS EARNED DURING TERMINAL SICK OR ANNUAL LEAVE. THE ENTRY OF AN EMPLOYEE INTO THE ACTIVE MILITARY OR NAVAL SERVICE WITHOUT BREAK IN SERVICE IS NOT TO BE REGARDED AS A "SEPARATION" WITHIN THE MEANING OF SECTION 4.7 OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, REQUIRING AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE ANNUAL AND SICK LEAVE AT THE TIME OF HIS SEPARATION FROM CIVILIAN SERVICE TO REFUND THE AMOUNT PAID HIM FOR SUCH EXCESS LEAVE. CF. 22 COMP. GEN. 990. UNDER THE ANNUAL AND SICK LEAVE REGULATIONS, THE MINIMUM CHARGE OF 1 HOUR, AND ADDITIONAL CHARGES IN MULTIPLES OF 1 HOUR FOR ANNUAL AND SICK LEAVE SHOULD BE MADE ON EACH SEPARATE CALENDAR DAY, THAT IS, ANNUAL AND SICK LEAVE ABSENCES MAY NOT ACCUMULATE FROM DAY TO DAY FOR THE PURPOSE OF CHARGING UNITS OF HOURS, AND, THEREFORE, AN EMPLOYEE WHO WAS ABSENT FOR 1 1/2 HOURS AT THE CLOSE OF BUSINESS ONE DAY AND 1/2 HOUR AT THE BEGINNING OF BUSINESS ON THE FOLLOWING DAY SHOULD BE CHARGED 2 HOURS ON THE FIRST DAY AND 1 HOUR ON THE SECOND DAY, REGARDLESS OF THE FACT THAT THE ABSENCE CONSTITUTED "ONE CONTINUOUS ABSENCE.'

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 16, 1944:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1944, AS FOLLOWS:

EXECUTIVE ORDER NO. 9414, JANUARY 13, 1944, PRESCRIBING REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES, AUTHORIZED THE CIVIL SERVICE COMMISSION TO PROMULGATE AMENDMENTS TO THESE REGULATIONS FOR THE PERIOD OF THE WAR. THE COUNCIL OF PERSONNEL ADMINISTRATION, COMPOSED OF DIRECTORS OF PERSONNEL OF THE VARIOUS AGENCIES, HAS REQUESTED THE COMMISSION TO SUBMIT FOR YOUR DECISION CERTAIN QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE NEW LEAVE REGULATIONS CONTAINED IN EXECUTIVE ORDER NO. 9414. ACCORDINGLY, THE COMMISSION RESPECTFULLY REQUESTS YOUR DECISION ON THE FOLLOWING QUESTIONS:

QUESTION 1. SECTION 2.1 (B) OF THE REGULATIONS PROVIDES THAT "TEMPORARY EMPLOYEES SHALL BE CREDITED WITH LEAVE OF 2 1/2 DAYS FOR EACH MONTH OF SERVICE. AFTER THE FIRST MONTH OF SERVICE SUCH LEAVE MAY BE CREDITED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES.' DOES THE MONTH OF SERVICE MEAN THE PERIOD OF EMPLOYMENT WHETHER WITH OR WITHOUT PAY BREAK A MONTH OF SERVICE?

THIS QUESTION WOULD APPEAR TO BE CONTROLLED BY YOUR DECISION OF MAY 10, 1937, 16 COMP. GEN. 993 WHEREIN IT WAS STATED:

"IN DECISION OF APRIL 16, 1937, A-84992, 16 COMP. GEN. 934, IT WAS HELD THAT TEMPORARY EMPLOYEES ARE ENTITLED TO 2 1/2 DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY * * * FOR EACH FULL MONTH OF SERVICE. THE STATUTORY GRANT OF ANNUAL LEAVE TO TEMPORARY EMPLOYEES IS CLEARLY ON A MONTHLY BASIS, THAT IS,"FOR EACH MONTH OF SERVICE.' * * *"

QUESTION 2. SECTION 2.1 (C) OF THE REGULATIONS PROVIDES THAT "INDEFINITE EMPLOYEES SHALL BE CREDITED WITH LEAVE OF 2 DAYS FOR EACH MONTH OF SERVICE PLUS AN ADDITIONAL 1/2 DAY WHEN THE SERVICE AGGREGATES 3 MONTHS.' DOES THE ANSWER TO QUESTION 1 APPLY EQUALLY TO THIS SUB SECTION?

THE DEFINITION OF INDEFINITE EMPLOYEES IN THE NEW REGULATIONS IS THE SAME AS THAT CONTAINED IN THE FORMER REGULATIONS ( EXECUTIVE ORDER NO. 8384). IN DECISION OF MAY 28, 1941, 20 COMP. GEN. 827 IT WAS HELD THAT "* * * "INDEFINITE EMPLOYEES," AS DEFINED IN THE LEAVE REGULATIONS, WHETHER OR NOT THEY BE PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED," ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE OF ABSENCE FOR A FRACTIONAL MONTH'S SERVICE. * * *" IS THIS DECISION CONTROLLING UNDER THE NEW REGULATIONS?

QUESTION 3. SECTION 3.1 (B) OF THE REGULATIONS PROVIDES THAT "TEMPORARY AND INDEFINITE EMPLOYEES SHALL BE CREDITED WITH 1 1/4 DAYS OF SICK LEAVE FOR EACH MONTH OF SERVICE.' DOES A MONTH OF SERVICE MEAN PERIOD OF EMPLOYMENT WHETHER WITH OR WITHOUT PAY OR DOES A PERIOD OF LEAVE WITHOUT PAY BREAK A MONTH OF SERVICE?

THE RULE STATED IN 16 COMP. GEN. 993 WITH RESPECT TO ANNUAL LEAVE OF TEMPORARY EMPLOYEES WAS APPLIED TO SICK LEAVE IN DECISION OF MAY 28, 1941, 20 COMP. GEN. 827. ARE THESE DECISIONS CONTROLLING UNDER THE NEW REGULATIONS?

QUESTION 4. SECTION 2.4 OF THE REGULATIONS READS: " AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE SHALL BE ENTITLED TO THE UNUSED ANNUAL LEAVE STANDING TO HIS CREDIT, AND THE DATE OF HIS SEPARATION SHALL BE SO FIXED AS TO PERMIT HIM TO TAKE SUCH LEAVE, AND IN NO CASE, WHETHER THE SEPARATION BE VOLUNTARY OR INVOLUNTARY, SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE: * * *" SECTIONS 9 (B) AND 9A (2) OF THE HATCH ACT OF AUGUST 2, 1939, 53 STAT. 1147, AS AMENDED, REQUIRE THE IMMEDIATE REMOVAL OF AN EMPLOYEE WHO VIOLATES THE PROVISIONS OF THE ACT WITH RESPECT TO POLITICAL ACTIVITY OR MEMBERSHIP IN ANY POLITICAL PARTY OR ORGANIZATION WHICH ADVOCATES THE OVERTHROW OF OUR CONSTITUTIONAL FORM OF GOVERNMENT IN THE UNITED STATES. MOST APPROPRIATION ACTS CONTAIN A PROVISION TO THE EFFECT THAT NO PART OF ANY FUNDS APPROPRIATED BY SUCH ACTS SHALL BE USED TO PAY THE COMPENSATION, SALARY OR WAGES OF ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE. IF AN EMPLOYEE'S IMMEDIATE REMOVAL IS REQUIRED BECAUSE OF VIOLATION OF THE PROVISIONS OF THE HATCH ACT, OR PAYMENT OF HIS SALARY IS PROHIBITED BY AN APPROPRIATION ACT, DOES SECTION 2.4 OF THE LEAVE REGULATIONS AUTHORIZE OR REQUIRE THAT THE DATE OF HIS SEPARATION BE SO FIXED AS TO PERMIT HIM TO TAKE ANNUAL LEAVE STANDING TO HIS CREDIT?

ATTENTION IS INVITED TO THE FACT THAT SECTION 2.4 PROVIDES THAT "IN NO CASE, WHETHER THE SEPARATION BE VOLUNTARY OR INVOLUNTARY, SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE.'

QUESTION 5. IN A LONG LINE OF DECISIONS IT HAS BEEN ESTABLISHED AS A GENERAL RULE THAT WHERE AN EMPLOYEE HAS BEEN FINALLY SEPARATED FROM THE FEDERAL SERVICE THERE IS NO AUTHORITY TO RESTORE THE EMPLOYEE TO THE ROLL SOLELY FOR THE PURPOSE OF GRANTING ANNUAL LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SEPARATION EVEN THOUGH FAILURE TO TAKE ACCRUED LEAVE RESULTED FROM ADMINISTRATIVE MISUNDERSTANDING, MISTAKE, OR NEGLIGENCE. 16 COMP. GEN. 28, 899; 17 ID. 48, 369, 481; 22 ID. 810. IN VIEW OF THE PROVISIONS OF SECTION 2.4 OF THE LEAVE REGULATIONS IF AN EMPLOYEE IS SEPARATED THROUGH ADMINISTRATIVE ERROR OR NEGLIGENCE BEFORE RECEIVING THE FULL AMOUNT OF ANNUAL LEAVE TO HIS CREDIT MAY HE BE RESTORED TO THE PAYROLL MERELY FOR THE PURPOSE OF GRANTING THE BALANCE OF LEAVE DUE AT TIME OF SEPARATION?

IT HAS BEEN HELD THAT THE ANNUAL LEAVE ACT OF MARCH 14, 1936 "MADE THE GRANTING OF LEAVE AN ABSOLUTE RIGHT AS DISTINGUISHED FROM A PRIVILEGE.' 20 COMP. GEN. 9 (CITING 16 COMP. GEN. 481; THOMAS V. UNITED STATES, 87 CT.1CLS. 573); 21 COMP. GEN. 596. UNDER THE LANGUAGE OF SECTION 2.4 OF THE REGULATIONS THIS RIGHT IS RECOGNIZED BY THE PROVISION THAT IN NO CASE SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF UNUSED ANNUAL LEAVE. IT IS OUR OPINION THAT THIS LANGUAGE REQUIRES AN ADMINISTRATIVE OFFICE TO GRANT THE FULL AMOUNT OF UNUSED ANNUAL LEAVE STANDING TO AN EMPLOYEE'S CREDIT NOTWITHSTANDING THE FACT THAT HE MAY HAVE BEEN ERRONEOUSLY SEPARATED BEFORE RECEIVING ALL OF SUCH LEAVE.

QUESTION 6. SECTION 4.2 (B) OF THE REGULATIONS READS: "ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION. IN SUCH CASES THE ACCRUAL OF LEAVE SHALL CEASE AT THE CLOSE OF THE LAST DAY ON WHICH HE WAS PRESENT FOR DUTY, AND THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE: PROVIDED, THAT THIS SUBSECTION SHALL NOT APPLY TO EMPLOYEES WHO ARE ON TERMINAL LEAVE ON THE DATE OF ISSUANCE OF THIS ORDER.' THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, PROVIDES THAT EMPLOYEES WHO ENTER UPON ACTIVE MILITARY OR NAVAL SERVICE "SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.' WOULD AN EMPLOYEE WHO IS BEING PAID FOR ACCUMULATED AND CURRENT ACCRUED LEAVE IN ACCORDANCE WITH THE TERMS OF THIS ACT AND WHO, AT THE END OF THE PERIOD COVERING SUCH LEAVE, IS TO BE PLACED ON LEAVE WITHOUT PAY FOR THE DURATION OF HIS MILITARY SERVICE BE CONSIDERED AS ON TERMINAL LEAVE WITHIN THE MEANING OF SECTION 4.2 (B/?

IT IS SUGGESTED THAT, WHEN CONSIDERATION IS GIVEN TO THE PURPOSE AND INTENT OF THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, AND THE PROVISIONS OF THE NEW LEAVE REGULATIONS AS A WHOLE, A STRICT CONSTRUCTION OF THE LANGUAGE OF SECTION 4.2 (B) WITH RESPECT TO PERSONS PLACED ON LEAVE WITHOUT PAY TO ENTER THE MILITARY SERVICE MAY BE JUSTIFIED. IT WILL BE OBSERVED THAT THE ACT OF AUGUST 1, 1941, AS AMENDED APRIL 7, 1942, PROVIDES THAT EMPLOYEES SHALL BE ENTITLED TO COMPENSATION COVERING THEIR ACCUMULATED AND CURRENT ACCRUED LEAVE. THE PHRASE "CURRENT ACCRUED LEAVE" DOES NOT APPEAR IN THE NEW LEAVE REGULATIONS. THE LEGISLATIVE HISTORY OF THE ACT ( SENATE REPORT NO. 350 ON S. 505) CLEARLY IMPLIES THAT THE LEAVE FOR WHICH PAYMENT WAS TO BE AUTHORIZED WAS THE AMOUNT OF LEAVE AUTHORIZED BY THE REGULATIONS THEN IN EFFECT. IN ITS REPORT THE COMMITTEE STATED THAT THE BILL, AS AMENDED, IS FAVORED BY THE WAR AND NAVY DEPARTMENTS, AND QUOTED FROM THE WAR DEPARTMENT'S LETTER IN PART AS FOLLOWS:

"THE WAR DEPARTMENT FAVORS IN PRINCIPLE THE OBJECT SOUGHT TO BE ACCOMPLISHED BY S. 505; HOWEVER, IT DOES NOT RECOMMEND ENACTMENT OF THIS LEGISLATION IN THE PRECISE FORM PRESENTED IN THE BILL.

"THE BUREAU OF THE BUDGET ADVISES THAT THE ENACTMENT OF THE LEGISLATION IN ITS PRESENT FORM WOULD NOT BE IN ACCORD WITH THE PROGRAM OF THE PRESIDENT, BUT THAT THERE WOULD BE NO OBJECTION TO THE ENACTMENT OF SUCH LEGISLATION WHICH WOULD PROVIDE THAT EMPLOYEES * * * ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES * * * SHALL BE ENTITLED TO RECEIVE * * * COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE (AS THOSE TERMS ARE DEFINED IN EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940), OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY SERVICE.'

THE BILL AS ENACTED CONTAINED SUBSTANTIALLY THIS LANGUAGE. IT WILL ALSO BE OBSERVED THAT BOTH THE REPORT AND THE ACT RECOGNIZE THAT EMPLOYEES NEED NOT BE SEPARATED FROM THE SERVICE BECAUSE PROVISION IS MADE FOR AN ELECTION TO HAVE LEAVE REMAIN TO THE EMPLOYEES' CREDIT "UNTIL THEIR RETURN FROM ACTIVE MILITARY SERVICE.'

PERSONS WHO LEAVE POSITIONS (OTHER THAN TEMPORARY) IN THE FEDERAL SERVICE TO ENTER UPON ACTIVE MILITARY SERVICE ARE GRANTED REEMPLOYMENT BENEFITS BY SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT. WHEN RESTORED TO THEIR FORMER POSITIONS IN ACCORDANCE WITH THIS ACT THEY ARE TO BE CONSIDERED AS HAVING BEEN ON LEAVE WITHOUT PAY. UNDER A SERIES OF DECISIONS OF THE COMPTROLLER GENERAL THE JUSTIFICATION FOR PLACING EMPLOYEES ON LEAVE WITHOUT PAY, RATHER THAN SEPARATING THEM FROM THE SERVICE, IS THE FACT THAT CONGRESS HAS GRANTED THEM REEMPLOYMENT RIGHTS. THE PURPOSE OF THIS SECTION OF THE SELECTIVE TRAINING AND SERVICE ACT, AND OTHER STATUTES, EXECUTIVE ORDERS, AND REGULATIONS, GIVING BENEFITS TO PERSONS ENTERING THE MILITARY SERVICE HAS BEEN TO GRANT TO EMPLOYEES AS MANY OF THE BENEFITS THEY WOULD DERIVE FROM CONTINUOUS EMPLOYMENT AS THE NATURE OF THEIR MILITARY SERVICE WILL PERMIT.

IT IS SUGGESTED THAT WHEN AN EMPLOYEE IS BEING PLACED ON LEAVE WITHOUT PAY AT THE END OF HIS ,ACCUMULATED AND CURRENT ACCRUED LEAVE" FOR THE PURPOSE OF ENTERING THE MILITARY SERVICE SUCH ACTION DOES NOT CONSTITUTE A "SEPARATION" WITHIN THE MEANING OF SECTION 4.2 (B) OF THE NEW REGULATIONS. IN A BROAD SENSE OF THE TERM THERE HAS BEEN NO "SEPARATION" BECAUSE HE HAS MERELY BEEN GRANTED LEAVE WITHOUT PAY TO PERFORM SERVICE IN ANOTHER PART OF THE FEDERAL SERVICE. YOUR DECISIONS OF JULY 16, 1942 (22 COMP. GEN. 42) AND APRIL 24, 1943 (22 COMP. GEN. 990) TO THE EFFECT THAT THE ENTRY OF AN EMPLOYEE INTO ACTIVE MILITARY SERVICE IS TO BE REGARDED AS A "SEPARATION" WITHIN THE MEANING OF SECTION 7 AND SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS CONTAINED IN EXECUTIVE ORDER NO. 8384 HAVE NOT BEEN OVERLOOKED. IT IS BELIEVED, HOWEVER, THAT IT MAY BE POSSIBLE TO LIMIT THE APPLICATION OF THESE DECISIONS TO THE FACTS THEN UNDER CONSIDERATION AND TO THE PARTICULAR SECTIONS OF THE OLD LEAVE REGULATIONS INVOLVED. THE RULING MADE IN 22 COMP. GEN. 42 REQUIRED AN INTERPRETATION OF THREE SECTIONS OF THE OLD ANNUAL LEAVE REGULATIONS AND INVOLVED THE QUESTION OF EARNING LEAVE ON A TWO-DAY PERIOD OF LEAVE WITHOUT PAY. WAS STATED THAT "THE CREDITING OF SUCH ADDITIONAL ANNUAL LEAVE TO THE EMPLOYEE WOULD BE TANTAMOUNT TO CONVERTING THE LEAVE WITHOUT PAY TO ANNUAL LEAVE IN CONTRAVENTION OF THE LAST SENTENCE OF SECTION 13 OF THE ANNUAL LEAVE REGULATIONS.' A STATEMENT MADE IN THIS DECISION WAS FOLLOWED IN 22 COMP. GEN. 990, INTERPRETING SECTION 4 (B) OF THE OLD LEAVE REGULATIONS, AND IT WAS HELD THAT AN EMPLOYEE WHO HAS BEEN ADVANCED ANNUAL LEAVE AT THE TIME OF ENTERING THE MILITARY SERVICE MUST MAKE REFUND FOR SUCH ADVANCE. IT IS SUBMITTED THAT AN EMPLOYEE IS REQUIRED TO REFUND FOR ADVANCED UNEARNED LEAVE UNDER THE TERMS OF THE ACT OF AUGUST 1, 1941, AS AMENDED, INASMUCH AS HE IS ENTITLED TO RECEIVE COMPENSATION COVERING ONLY HIS ACCUMULATED AND CURRENT ACCRUED LEAVE. UNDER THIS VIEW IT DOES NOT APPEAR THAT IT WOULD BE NECESSARY TO CONSIDER THAT PLACING HIM ON LEAVE WITHOUT PAY CONSTITUTES A "SEPARATION" WITHIN THE MEANING OF SECTION 4.2 (B) OF THE REGULATIONS.

IN VIEW OF THE FOREGOING IS IT NECESSARY TO CONSIDER THAT PERSONS ARE ON TERMINAL LEAVE WHILE BEING COMPENSATED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, WHEN THEY ARE TO BE PLACED ON LEAVE WITHOUT PAY FOR THE PERIOD OF THEIR MILITARY SERVICES? QUESTION 7. SECTION 4.5 OF THE REGULATIONS READS: "LEAVE SHALL BE CHARGED ONLY FOR ABSENCE UPON DAYS WHICH AN EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER TO BE A WORK DAY, AN EMPLOYEE WHO ABSENTS HIMSELF FROM WORK WITHOUT PERMISSION ON THAT DAY SHALL BE SUBJECT TO A DEDUCTION OF ONE DAY'S .'

BECAUSE OF THIS PROVISION THAT LEAVE SHALL NOT BE CHARGED FOR AN ABSENCE ON A HOLIDAY THE THEORY HAS BEEN ADVANCED THAT WHEN A HOLIDAY IS DECLARED BY GENERAL ADMINISTRATIVE ORDER TO BE A WORK DAY IT IS UNFAIR TO THE EMPLOYEES WHO ARE REQUIRED TO WORK TO EXCUSE AN INDIVIDUAL EMPLOYEE OR EMPLOYEES FOR THAT DAY. FOR EXAMPLE, DURING THE MONTH OF FEBRUARY AN EMPLOYEE MAY REQUEST ANNUAL LEAVE FOR THE PERIOD FEBRUARY 21 TO 23, INCLUSIVE, WHICH, IF GRANTED WOULD BE CHARGED AS TWO DAYS' ANNUAL LEAVE. UNDER THESE CIRCUMSTANCES MAY THE 8 HOURS' ABSENCE ON FEBRUARY 22, BE CHARGED AGAINST ANY COMPENSATORY TIME DUE THE EMPLOYEE FOR EXCESS OVERTIME, OR, IF HE HAS NONE, MAY HE BE REQUIRED TO MAKE UP THE TIME BY WORKING 8 HOURS' EXCESS OVERTIME?

QUESTION 8. IN 21 COMP. GEN. 901, APRIL 2, 1942, IT WAS HELD THAT ABSENCE ON A HOLIDAY DECLARED BY GENERAL ADMINISTRATIVE ORDER TO BE A WORK DAY MAY NOT BE CHARGED AGAINST ANNUAL OR SICK LEAVE. MANY AGENCIES STATE THAT FROM AN ADMINISTRATIVE STANDPOINT IT WOULD BE HIGHLY DESIRABLE TO MAKE SOME PROVISION FOR CHARGING LEAVE WITH PAY ON HOLIDAYS RATHER THAN EXCUSING EMPLOYEES. THE COMMISSION HAS BEEN REQUESTED TO SECURE YOUR DECISION AS TO WHETHER THE LEAVE REGULATIONS MAY BE AMENDED IN ORDER PERMIT CHARGING LEAVE WITH PAY ON HOLIDAYS WHICH ARE DECLARED BY GENERAL ADMINISTRATIVE ORDER TO BE WORK DAYS, OR WHETHER LEGISLATION WOULD BE NECESSARY. IT HAS BEEN SUGGESTED THAT PERHAPS THE PROVISO OF SECTION 4.5 OF THE REGULATIONS COULD BE AMENDED TO READ: "PROVIDED, THAT WHEN A HOLIDAY IS DECLARED BY GENERAL ADMINISTRATIVE ORDER TO BE A WORK DAY SUCH DAY SHALL BE CONSIDERED FOR LEAVE PURPOSES AS BEING WITHIN THE REGULAR TOUR OF DUTY.' IN VIEW OF THE PROVISIONS OF THE ACT OF MARCH 2, 1940, 54 STAT. 38, WOULD THE COMMISSION BE AUTHORIZED TO AMEND THE LEAVE REGULATIONS AS ABOVE INDICATED?

QUESTION 9. SECTION 4.7 OF THE NEW LEAVE REGULATIONS READS IN PART AS FOLLOWS: "IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCED LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTIONS THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM.' SECTION 4 (B) OF THE OLD ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384) PROVIDED THAT "IN CASES OF SEPARATION WHERE AN EMPLOYEE IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE, SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH SUCH EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NON-WORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER.' THUS THE NEW REGULATIONS PROVIDE FOR THE COLLECTION OF OVERDRAWN LEAVE INCLUSIVE OF SUNDAYS AND HOLIDAYS, INSTEAD OF EXCLUSIVE OF SUNDAYS AND HOLIDAYS AS HERETOFORE. IS SECTION 4.7 APPLICABLE JANUARY 1, 1944, SO AS TO REQUIRE THAT ALL COLLECTIONS FOR OVERDRAWN LEAVE MADE THEREAFTER SHALL BE INCLUSIVE OF SUNDAYS AND HOLIDAYS, OR WILL THE REGULATIONS IN FORCE AT THE TIME LEAVE WAS TAKEN, GOVERN?

QUESTION 10. SECTION 4.9 OF THE REGULATIONS PRESCRIBES THE CONDITIONS UNDER WHICH THE LEAVE ACCOUNT OF AN EMPLOYEE MAY BE TRANSFERRED FROM ONE EMPLOYMENT TO ANOTHER WHERE THERE IS NO BREAK IN SERVICE. "BREAK IN SERVICE" IS DEFINED IN SECTION 1.1 (G) TO MEAN "SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF 30 OR MORE CALENDAR DAYS.' SECTION 4.9 PROVIDES FOR TRANSFERRING BOTH CREDITS AND CHARGES OF LEAVE TO ANOTHER AGENCY. APPARENTLY SOME DIFFICULTY HAS ARISEN BY REASON OF THE NEW DEFINITION OF BREAK IN SERVICE (I.E., THE CHANGE FROM ONE DAY SEPARATION UNDER THE OLD REGULATIONS, TO LESS THAN 30 DAYS UNDER THE NEW REGULATIONS). SECTION 4.9 PROVIDES THAT WHEN AN EMPLOYEE IS "APPOINTED, REAPPOINTED OR TRANSFERRED * * * WITHOUT A BREAK IN SERVICE * * * THE LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO THE EMPLOYEE.' THE QUESTION PRESENTED IS: "IF AN EMPLOYEE RESIGNS IN ONE AGENCY, INDEBTED FOR OVERDRAWN LEAVE, AND THE AGENCY BELIEVES, BUT DOES NOT KNOW THAT THE EMPLOYEE WILL BE REAPPOINTED IN LESS THAN 30 CALENDAR DAYS, SHALL THE AGENCY: (1) MAKE THE COLLECTION FOR OVERDRAWN LEAVE FROM THE LAST SALARY CHECK, OR (2) HOLD THE LAST SALARY CHECK FOR 30 DAYS PENDING INFORMATION AS TO THE REAPPOINTMENT, OR (3) RELEASE THE SALARY CHECK AND COLLECT LATER IF THE EMPLOYEE IS NOT REAPPOINTED TO A PERMANENT POSITION WITHIN THE PERIOD OF LESS THAN 30 CALENDAR DAYS.'

THE COMMISSION IS OF THE OPINION THAT THIS QUESTION IS CONTROLLED BY SECTION 4.7 OF THE REGULATIONS RATHER THAN BY SECTION 4.9. SECTION 4.7 PROVIDES THAT "IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM.'

QUESTION 11. SECTION 4.11 OF THE REGULATIONS PROVIDES THAT " TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT APPOINTMENTS WITHOUT BREAK IN SERVICE, EITHER IN THE SAME OR A DIFFERENT DEPARTMENT OR AGENCY, SHALL BE CREDITED WITH SUCH LEAVE AS MAY BE DUE THEM, OR CHARGED WITH AN UNACCUMULATED LEAVE WHICH MAY HAVE BEEN ADVANCED.' THE COMMISSION ALSO HAS BEEN REQUESTED TO PRESENT THE SAME QUESTION QUOTED UNDER QUESTION 10 ABOVE "AS IT WOULD APPLY TO TEMPORARY EMPLOYEES WHO MIGHT HAVE EXCEEDED THEIR ACCUMULATED LEAVE, BUT WHO, WITHIN A PERIOD OF LESS THAN 30 CALENDAR DAYS, MIGHT BE APPOINTED TO A PERMANENT POSITION, TO WHICH THEY WOULD BE ENTITLED TO TRANSFER A CHARGE FOR SUCH OVERDRAWN LEAVE.'

QUESTION 12. MAY LEAVE WITHOUT PAY BE CONVERTED TO ANNUAL LEAVE AFTER RETURN TO DUTY? THERE IS NO PROVISION IN THE NEW REGULATIONS COVERING THIS POINT.

QUESTION 13. AN EMPLOYEE HAD BEEN ADVANCED SICK LEAVE WHICH WAS NOT SUBSEQUENTLY EARNED. HE RESIGNED HAVING 60 DAYS LEAVE TO HIS CREDIT. DURING TERMINAL ANNUAL LEAVE DOES HE EARN SICK LEAVE WHICH MAY BE CREDITED AGAINST THE CHARGE FOR ADVANCED LEAVE? IN PRESENTING THIS QUESTION IT WAS POINTED OUT THAT "THE REGULATIONS STATE THAT A TERMINAL DATE SHALL NOT BE EXTENDED BY THE GRANTING OF SICK LEAVE BUT SAY NOTHING ABOUT CREDITING EARNED SICK LEAVE, AND THERE IS NO PROVISION AGAINST THE EARNING OF SICK LEAVE THROUGH TERMINAL LEAVE.'

SECTION 4.2 (A) OF THE REGULATIONS PROVIDES THAT "LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS PROVIDING HE RETURNS TO DUTY.' SECTION 4.2 (B) MERELY PROVIDES THAT "ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE * * *.' IS THE COMMISSION CORRECT IN ASSUMING THAT SECTION 4.2 (A) APPLIES TO BOTH SICK AND ANNUAL LEAVE AND THAT IN ORDER FOR AN EMPLOYEE TO EARN SICK LEAVE WHILE ON ANNUAL LEAVE THERE MUST BE A RETURN TO DUTY?

QUESTION 14. "TERMINAL LEAVE" IS DEFINED IN SECTION 1.1 (J) AS "THE PERIOD BETWEEN THE LAST DAY OF DUTY AND THE EXPIRATION OF ANNUAL LEAVE.' DOES AN EMPLOYEE EARN ANNUAL LEAVE WHILE ON SICK LEAVE?

(A) IF HE IS FIRST GRANTED HIS ANNUAL LEAVE, THEN IS GRANTED SICK LEAVE, AND WITHOUT RETURNING TO DUTY, RESIGNS?

(B) IF HE HAS NO ANNUAL LEAVE BUT HAS 90 DAYS SICK LEAVE WHICH HE TAKES, AND THEN RESIGNS WITHOUT A RETURN TO DUTY?

IN VIEW OF THE FACT THAT SECTION 4.2 (B) PROVIDES THAT "ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE * * *.' THE QUESTION HAS BEEN PRESENTED: "DOES SICK LEAVE ACCRUE DURING TERMINAL LEAVE? " THIS QUESTION IS SIMILAR TO THAT PRESENTED IN QUESTION 13.

QUESTION 15. UNDER SECTION 11 OF THE OLD SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385) REFUND FOR OVERDRAWN SICK LEAVE WAS REQUIRED ONLY IN CASES OF "VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE.' IN 22 COMP. GEN. 990, APRIL 24, 1943, IT WAS HELD THAT "UNDER THE TERMS OF SECTION 11 OF THE SICK LEAVE REGULATIONS, OVERDRAWN SICK LEAVE IS NOT REQUIRED TO BE CHARGED TO AN EMPLOYEE WHOSE "SEPARATION" IS DUE TO HIS ENTERING INTO THE ACTIVE MILITARY OR NAVAL SERVICE WITHOUT A BREAK IN SERVICE.' SECTION 4.7 OF THE NEW REGULATIONS PROVIDES THAT "IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS * * *.' INASMUCH AS THE NEW REGULATIONS MAKE NO DISTINCTION BETWEEN VOLUNTARY AND INVOLUNTARY SEPARATIONS, ARE EMPLOYEES WHO ENTER THE MILITARY FORCES ON AND AFTER JANUARY 1, 1944, REQUIRED TO REFUND FOR OVERDRAWN SICK LEAVE:

(A) IF THEY RESIGN FROM THEIR CIVILIAN POSITIONS;

(B) IF THEY ARE TO BE CARRIED ON LEAVE WITHOUT PAY FROM THEIR CIVILIAN POSITIONS?

AS INDICATED IN THE DISCUSSION OF QUESTION 6 ABOVE THE COMMISSION DOES NOT BELIEVE THAT A ,SEPARATION," WITHIN THE MEANING OF THE LEAVE REGULATIONS, IS NECESSARILY INVOLVED IN THOSE CASES WHERE AN EMPLOYEE IS TO BE CARRIED ON LEAVE WITHOUT PAY FOR THE PERIOD OF HIS MILITARY SERVICE.

QUESTION 16. UNDER SECTION 2.3 OF THE REGULATIONS,"THE MINIMUM CHARGE FOR ANNUAL LEAVE SHALL BE ONE HOUR, AND ADDITIONAL LEAVE SHALL BE CHARGED IN MULTIPLES OF ONE HOUR.' WHEN AN EMPLOYEE IS ABSENT FOR 1 1/2 HOURS AT THE CLOSE OF BUSINESS ONE DAY AND 1/2 HOUR AT THE BEGINNING OF BUSINESS ON THE FOLLOWING DAY, WOULD HE BE CHARGED 2 HOURS FOR THE FIRST PERIOD AND ONE HOUR FOR THE SECOND PERIOD, OR 2 HOURS FOR THE TWO PERIODS COMBINED (ONE CONTINUOUS ABSENCE/?

IN VIEW OF THE INTEREST OF THE VARIOUS AGENCIES IN THESE QUESTIONS YOUR EARLY REPLY WILL BE APPRECIATED.

THE QUESTIONS PRESENTED ARE ANSWERED IN THE ORDER STATED, AS FOLLOWS:

QUESTION 1

A MONTH OF SERVICE RELATES TO A PERIOD OF EMPLOYMENT WITH PAY; HENCE, A PERIOD OF LEAVE WITHOUT PAY OCCURRING DURING SUCH PERIOD BREAKS A "MONTH OF SERVICE.' SEE QUESTION AND ANSWER 2, DECISION OF FEBRUARY 29, 1944, B- 40144, 23 COMP. GEN. 638 TO THE DIRECTOR, DIVISION OF CENTRAL ADMINISTRATIVE SERVICES, OFFICE FOR EMERGENCY MANAGEMENT, AND THE DECISIONS THERE CITED.

QUESTION 2

BOTH QUESTIONS PRESENTED UNDER THIS GENERAL QUESTION ARE ANSWERED IN THE AFFIRMATIVE. THAT IS TO SAY, THE ANSWER TO QUESTION 1, SUPRA, RELATING TO TEMPORARY EMPLOYEES, APPLIES, ALSO, TO ,INDEFINITE EMPLOYEES" AND THE REFERRED-TO DECISION OF MAY 28, 1941, 20 COMP. GEN. 827, APPLIED WITH EQUAL FORCE UNDER THE NEW LEAVE REGULATIONS.

QUESTION 3.

THE ANSWER TO QUESTION 1, SUPRA, ANSWERS, ALSO, THE FIRST QUESTION UNDER THIS HEADING, AND THE SECOND QUESTION IN RESPECT OF THE APPLICABILITY HERE OF THE TWO CITED DECISIONS (16 COMP. GEN. 993 AND 20 ID. 827), IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 4.

IN DECISION OF MARCH 29, 1940, 19 COMP. GEN. 834, 835, IT WAS STATED:

THE PROVISIONS OF SECTION 9 (B) OF THE STATUTE ( HATCH ACT) ARE NOT SELF- EXECUTING, AND IT FOLLOWS THAT THERE IS REQUIRED ADMINISTRATIVE OR EXECUTIVE ACTION TO REMOVE AN OFFICER OR EMPLOYEE WHO VIOLATES SECTION 9 (A) OF THE STATUTE. THE INHIBITION OF THE STATUTE AGAINST THE USE ,THEREAFTER" OF APPROPRIATED FUNDS FOR PAYMENT OF THE COMPENSATION OF "SUCH PERSON" ATTACHES UPON THE REMOVAL FROM OFFICE OR POSITION AS THEREIN PRESCRIBED THE WORD "THEREAFTER" AS USED IN THE STATUTE RELATING BACK TO THE PRESCRIBED ACTION OF REMOVAL, AND NOT TO THE DATE OF SOME ACTION ON THE PART OF AN OFFICER OR EMPLOYEE WHICH SUBSEQUENTLY MAY BE DETERMINED TO HAVE VIOLATED SECTION 9 (A) OF THE STATUTE. IN OTHER WORDS, THE STATUTE PRESCRIBES A CAUSE OF REMOVAL FROM THE SERVICE AND MAY NOT BE REGARDED AS WORKING A FORFEITURE OF ALL OR ANY PART OF THE ACCRUED UNPAID COMPENSATION OF AN OFFICER OR EMPLOYEE WHO HAS NOT BEEN REMOVED FROM HIS OFFICE OR POSITION PURSUANT TO SUCH STATUTE.

SINCE, UNDER THE DECISION JUST QUOTED, AN AFFIRMATIVE ADMINISTRATIVE ACTION IS REQUIRED FOR REMOVAL OF AN EMPLOYEE FROM THE SERVICE BECAUSE OF HIS VIOLATION OF THE HATCH ACT BEFORE THE SEPARATION ACTUALLY BECOMES EFFECTIVE, AND SINCE A REMOVAL UNDER SUCH CIRCUMSTANCES CONSTITUTES AN INVOLUNTARY SEPARATION FROM THE SERVICE IT CERTAINLY WOULD CONSTITUTE, ALSO, AN INVOLUNTARY SEPARATION WITHIN THE MEANING OF THESE WORDS AS USED IN SECTION 2.4 OF THE NEW LEAVE REGULATIONS. HENCE, IT WOULD FOLLOW THAT THE EFFECTIVE DATE OF SUCH AN INVOLUNTARY SEPARATION SHOULD BE SO FIXED AS TO PERMIT THE EMPLOYEE TO TAKE, OR TO BE PAID FOR, TERMINAL ANNUAL LEAVE.

SECTION 103 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1944, APPROVED JUNE 26, 1943, 57 STAT. 194, PUBLIC LAW 90, PROVIDES:

SEC. 103. NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE SALARY OR WAGES OF ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED, THAT FOR THE PURPOSES HEREOF AN AFFIDAVIT SHALL BE CONSIDERED PRIMA FACIE EVIDENCE THAT THE PERSON MAKING THE AFFIDAVIT DOES NOT ADVOCATE, AND IS NOT A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE: PROVIDED FURTHER, THAT ANY PERSON WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE AND ACCEPTS EMPLOYMENT THE SALARY OR WAGES FOR WHICH ARE PAID FROM ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE GUILTY OF A FELONY AND, UPON CONVICTION, SHALL BE FINED NOT MORE THAN $1,000 OR IMPRISONED FOR NOT MORE THAN ONE YEAR, OR OTH: PROVIDED FURTHER, THAT THE ABOVE PENAL CLAUSE SHALL BE IN ADDITION TO, AND NOT IN SUBSTITUTION FOR, ANY OTHER PROVISIONS OF EXISTING LAW. THAT PROVISION OF LAW IS SELF-EXECUTING, THAT IS, CONSTITUTES AN ABSOLUTE PROHIBITION AGAINST THE USE OF SALARY APPROPRIATIONS FOR PAYMENT OF THE SALARY OF ANY PERSON "WHO ADVOCATES, OR WHO IS A MEMBER OF AN ORGANIZATION THAT ADVOCATES, THE OVERTHROW OF THE GOVERNMENT OF THE UNITED STATES BY FORCE OR VIOLENCE.' HENCE, SECTION 2.4 OF THE NEW LEAVE REGULATIONS WOULD HAVE NO APPLICATION TO AUTHORIZE THE GRANTING OF TERMINAL LEAVE OF ABSENCE WITH PAY TO AN EMPLOYEE WHO IS REMOVED FROM THE SERVICE UNDER THE ABOVE-QUOTED PROVISION OR SIMILAR PROVISION APPEARING IN OTHER APPROPRIATION ACTS.

QUESTION 5.

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. FOR A DISCUSSION, THEREOF SEE ANSWER TO QUESTION 6 IN DECISION OF FEBRUARY 29, 1944, B 40144, 23 COMP. GEN. 638.

QUESTION 6.

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF FEBRUARY 18, 1944, B-39998, 23 COMP. GEN. 603, TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, THE SYLLABUS OF WHICH DECISION CONTAINS A PARAGRAPH, AS FOLLOWS:

THE PROVISION OF SECTION 4.2 (B) OF THE CURRENT ANNUAL LEAVE REGULATIONS, PROVIDING THAT " ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION," IS APPLICABLE TO OFFICERS AND EMPLOYEES ENTERING THE ACTIVE MILITARY SERVICE. AS SECTION 4.2 (B) IS SPECIFICALLY APPLICABLE IN RESPECT OF TERMINAL LEAVE OF EMPLOYEES INCLUDING THOSE WHO ARE PLACED ON "FURLOUGH"-- - THE PLACING OF AN EMPLOYEE ON LEAVE OF ABSENCE WITHOUT PAY, OR OF MILITARY FURLOUGH WHEN ENTERING THE MILITARY SERVICE ORDINARILY CONSTITUTING A ,FURLOUGH," IF NOT A "SEPARATION"--- I FIND NO MERIT IN THE CONTENTION THAT LEAVE ON LEAVE SHOULD BE GRANTED DURING TERMINAL LEAVE OF EMPLOYEES WHO ENTER THE ACTIVE MILITARY SERVICE.

QUESTION 7.

SECTION 4.5 OF THE NEW LEAVE REGULATIONS, QUOTED IN YOUR LETTER, IS INTENDED TO IMPLEMENT THE FOLLOWING RULE STATED IN DECISION OF APRIL 2, 1942, 21 COMP. GEN. 901 (QUOTING FROM THE SYLLABUS):

ANNUAL OR SICK LEAVE MAY NOT BE CHARGED AGAINST AN EMPLOYEE FOR ABSENCE ON A HOLIDAY ON WHICH HE WOULD OTHERWISE BE REQUIRED TO WORK UNDER A GENERAL ADMINISTRATIVE ORDER, BUT IT IS WITHIN ADMINISTRATIVE DISCRETION TO EXCUSE AN INDIVIDUAL EMPLOYEE FROM WORKING EITHER WITH OR WITHOUT PAY-- - REGARDLESS OF THE BASIS OF COMPENSATION OR WHETHER THE EMPLOYEE IS SUBJECT TO THE HOLIDAY PAY STATUTE OF JUNE 29, 1938--- ON SUCH A HOLIDAY, OR, IF AN EMPLOYEE SHOULD ARBITRARILY ABSENT HIMSELF FROM WORK ON THAT DAY, TO DEDUCT ONE DAY'S PAY AS A DISCIPLINARY MEASURE FOR FAILURE TO WORK. IF AN EMPLOYEE IS EXCUSED FROM WORKING ON A HOLIDAY BY ADMINISTRATIVE ACTION TAKEN EITHER BEFORE OR AFTER THE HOLIDAY, NO DEDUCTION OF COMPENSATION FOR THE HOLIDAY IS REQUIRED, BUT IF THE EMPLOYEE IS NOT EXCUSED FOR AN UNAUTHORIZED ABSENCE ON A HOLIDAY BY ADMINISTRATIVE ACTION TAKEN BEFORE OR AFTER THE HOLIDAY, THE REGULATION SPECIFICALLY REQUIRES THE DEDUCTION OF ONE DAY'S PAY ON ACCOUNT OF THE UNAUTHORIZED ABSENCE ON THE HOLIDAY. COMPENSATORY TIME IS AUTHORIZED TO BE GRANTED IN LIEU OF PAYING ADDITIONAL OVERTIME COMPENSATION BY SECTION 2 OF THE WAR OVERTIME PAY ACT OF MAY 7, 1943, 57 STAT. 76, PUBLIC LAW 49. THUS, SO FAR AS HERE MATERIAL, COMPENSATORY TIME SHOULD BE REGARDED IN THE SAME LIGHT AS OVERTIME COMPENSATION. IF AN EMPLOYEE IS EXCUSED FROM WORK ON A HOLIDAY, THERE WOULD BE NO AUTHORITY TO CHARGE THE ABSENCE TO EARNED COMPENSATORY TIME OR REQUIRE ADDITIONAL OVERTIME WORK TO MAKE UP THE TIME NOT WORKED ON THE HOLIDAY. IF AN EMPLOYEE ABSENTS HIMSELF FROM WORK ON A HOLIDAY WITHOUT AUTHORITY AND IS NOT EXCUSED FROM WORKING ON THE HOLIDAY BY ADMINISTRATIVE ACTION, THE REGULATION IN PLAIN TERMS REQUIRES DEDUCTION OF ONE DAY'S PAY. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

QUESTION 8.

THE ACT OF MARCH 2, 1940, 54 STAT. 38, PROVIDES:

THAT THE DAYS OF ANNUAL LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1161), AND THE DAYS OF SICK LEAVE WITH PAY PROVIDED FOR IN THE ACT OF MARCH 14, 1936 (49 STAT. 1162), SHALL MEAN DAYS UPON WHICH EMPLOYEES WOULD OTHERWISE WORK AND RECEIVE PAY, AND SHALL BE EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. IN DECISION OF APRIL 2, 1942, 21 COMP. GEN. 901, 903, IT WAS STATED:

UNDER THE PLAIN PROVISIONS OF THE SAID ACT OF MARCH 2, 1940, NEITHER ANNUAL NOR SICK LEAVE OF ABSENCE WITH PAY MAY BE GRANTED OR CHARGED ANY CLASS OF EMPLOYEES OF THE GOVERNMENT PRINTING OFFICE FOR ABSENCE ON A HOLIDAY, INCLUDING FEBRUARY 23, 1942, WHETHER OR NOT THE EMPLOYEES WHO WERE NOT OTHERWISE ON AUTHORIZED LEAVE ON SAID DAY WERE REQUIRED TO WORK ON THE HOLIDAY BY ADMINISTRATIVE ORDER. THE STATUTE EXPRESSLY EXCLUDES "HOLIDAYS" FROM "DAYS" ON WHICH ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY MAY BE CHARGED. ALSO, SEE DECISION OF MAY 29, 1943, 22 COMP. GEN. 1057, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

PRESIDENTIAL OR ADMINISTRATIVE ORDERS REQUIRING WORK ON LEGAL HOLIDAYS DURING THE WAR EMERGENCY DO NOT AND CANNOT CHANGE THE STATUS OF SUCH HOLIDAYS FOR THE PURPOSE OF APPLYING STATUTES AND REGULATIONS HAVING THE FORCE AND EFFECT OF LAW GRANTING RIGHTS AND BENEFITS ON THE BASIS OF THE HOLIDAYS. CF. 23 COMP. GEN. 68, 70.

ACCORDINGLY, AS NATIONAL HOLIDAYS ESTABLISHED BY FEDERAL STATUTE SPECIFICALLY HAVE BEEN EXCLUDED, BY THE ACT OF MARCH 2, 1940, FROM COUNTING AS DAYS OF ANNUAL OR SICK LEAVE UNDER THE LEAVE LAWS, AUTHORITY TO GRANT AND CHARGE ANNUAL OR SICK LEAVE FOR ABSENCE ON ONE OF THE NATIONAL HOLIDAYS ON WHICH EMPLOYEES ARE REQUIRED TO WORK BY ADMINISTRATIVE ORDER, MAY NOT BE ACCOMPLISHED BY AN AMENDMENT TO THE NEW LEAVE REGULATIONS--- FOR THAT WOULD BE LEGISLATING--- BUT COULD BE EFFECTED ONLY BY STATUTE SUCH AS AN AMENDMENT OF THE LEAVE ACTS AS AMENDED BY THE ACT OF MARCH 2, 1940, SUPRA.

QUESTION 9.

THE FIRST ALTERNATIVE QUESTION IS ANSWERED IN THE AFFIRMATIVE. AS TO THE SECOND ALTERNATIVE QUESTION, THE AMOUNT TO BE REFUNDED FOR THE EXCESS LEAVE IS FOR COMPUTING UNDER THE REGULATIONS IN FORCE AT THE TIME THE LEAVE WAS TAKEN. SEE THE ANSWER TO QUESTION 7 IN DECISION OF FEBRUARY 29, 1944, B-40144, 23 C.G. 638, WHICH FULLY DISCUSSES THE POINT.

QUESTION 10.

THIS OFFICE CONCURS IN YOUR VIEW THAT SECTION 4.7, RATHER THAN SECTION 4.9 OF THE NEW LEAVE REGULATIONS CONTROLS THE COLLECTION UPON SEPARATION FROM THE SERVICE FOR OVERDRAWN LEAVE. SECTION 4.7 OF THE NEW LEAVE REGULATIONS PROVIDES:

IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT FOUND ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE. HENCE, ANSWER (1) SUGGESTED IN YOUR LETTER IS CORRECT IN CASES WHERE THE ADMINISTRATIVE OFFICE HAD NO KNOWLEDGE THAT THE EMPLOYEE WAS TO BE REEMPLOYED IN ANOTHER AGENCY WITHIN 30 DAYS. SEE QUESTION AND ANSWER 7 IN DECISION OF FEBRUARY 29, 1944, B-40144, 23 C.G. 638.

QUESTION 11.

THE ANSWER TO QUESTION 10 ANSWERS THIS QUESTION, ALSO, IN CASES OF TEMPORARY EMPLOYEES SEPARATED FROM THE SERVICE WHERE THE ADMINISTRATIVE OFFICE HAD NO KNOWLEDGE THAT THE EMPLOYEE WAS TO BE REAPPOINTED TO A PERMANENT POSITION WITHIN 30 DAYS.

QUESTION 12.

SECTION 4.8 (A) OF THE NEW LEAVE REGULATIONS PROVIDE:

LEAVE WITHOUT PAY MAY BE GRANTED TO AN EMPLOYEE FOR A PERIOD NOT EXCEEDING TWELVE MONTHS REGARDLESS OF WHETHER HE HAS LEAVE STANDING TO HIS CREDIT. THAT REGULATIONS DIFFERS MATERIALLY FROM THE CORRESPONDING SECTION 9 OF THE OLD LEAVE REGULATIONS; AND THE CONCLUSION APPEARS TO BE REQUIRED THAT IF AN EMPLOYEE APPLIES FOR AND IS ADMINISTRATIVELY GRANTED LEAVE WITHOUT PAY AT A TIME WHEN HE HAS ANNUAL LEAVE TO HIS CREDIT OF WHICH THE EMPLOYEE HAS KNOWLEDGE, THE EMPLOYEE SHOULD NOT BE PERMITTED AFTER RETURN TO DUTY TO CONVERT THE LEAVE WITHOUT PAY TO ANNUAL LEAVE. HOWEVER, WHEN LEAVE WITHOUT PAY IS GRANTED DURING A PERIOD OF SUSPENSION FROM DUTY WHICH LATER IS DETERMINED TO HAVE BEEN UNJUSTIFIED AND THE EMPLOYEE IS RESTORED TO DUTY, OR WHEN LEAVE WITHOUT PAY OTHERWISE IS CHARGED AS A RESULT OF A MISTAKE OF FACT OR LAW, THE ACTION MAY BE CORRECTED TO THE EXTENT OF SUBSTITUTING RETROACTIVELY EFFECTIVE THE LEAVE WITH PAY STANDING TO THE CREDIT OF THE EMPLOYEE ON THE DATE OF SUSPENSION OR OTHER ERRONEOUS ACTION CHARGING LEAVE WITHOUT PAY, FOR A CORRESPONDING PERIOD OF LEAVE WITHOUT PAY. 16 COMP. GEN. 818; 17 ID. 199; 18 ID. 136.

QUESTION 13

SECTION 4.2 (B) OF THE NEW LEAVE REGULATIONS PROVIDES:

ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION. IN SUCH CASES THE ACCRUAL OF LEAVE SHALL CEASE AT THE CLOSE OF THE LAST DAY ON WHICH HE WAS PRESENT FOR DUTY, AND THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE: PROVIDED, THAT THIS SUBSECTION SHALL NOT APPLY TO EMPLOYEES WHO ARE ON TERMINAL LEAVE ON THE DATE OF ISSUANCE OF THIS ORDER. THE PROHIBITION IN THE REGULATION AGAINST EXTENSION OF TERMINAL ANNUAL LEAVE TO GRANT SICK LEAVE CLEARLY MANIFESTS THE INTENTION THAT SICK LEAVE DOES NOT ACCRUE DURING TERMINAL ANNUAL LEAVE. ACCORDINGLY, THE QUESTION RAISED IN THE FIRST PARAGRAPH UNDER THIS QUESTION IS ANSWERED IN THE NEGATIVE. CF. QUESTION AND ANSWER 4 IN DECISION OF FEBRUARY 29, 1944, B-40144, 23 C.G. 638.

QUESTION 14.

ON THE BASIS OF THE ANSWER TO QUESTION 13, SUPRA, AND THE ANSWER TO QUESTION 4 IN DECISION OF FEBRUARY 29, 1944, B-40144, 23 C.G. 638, QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE. IN OTHER WORDS, THE PURPOSE AND INTENT OF SECTION 4.2 OF THE NEW LEAVE REGULATIONS IS THAT LEAVE ON LEAVE, EITHER SICK OR ANNUAL, IS EARNED ONLY IF THERE IS A RETURN TO DUTY, AND NO LEAVE ON LEAVE, EITHER SICK OR ANNUAL, IS EARNED DURING TERMINAL SICK OR ANNUAL LEAVE.

QUESTION 15.

IN VIEW OF THE EXISTING PROVISIONS OF LAW AND CIVIL SERVICE REGULATIONS GRANTING REEMPLOYMENT BENEFITS TO EMPLOYEES--- THAT IS, GRANTING A RIGHT TO RESTORATION TO DUTY IN THE SAME OR SIMILAR STATUS HELD BY THE EMPLOYEE WHEN ENTERING ACTIVE MILITARY SERVICE REGARDLESS OF THE FORM OF THE SEPARATION FROM CIVILIAN SERVICE OR WHETHER CARRIED AS ON MILITARY FURLOUGH WITHOUT PAY--- IT SEEMS REASONABLE TO CONCLUDE THAT AN ENTRANCE INTO THE ACTIVE MILITARY SERVICE NEED NO LONGER BE REGARDED AS A "SEPARATION" FROM CIVILIAN SERVICE WITHIN THE MEANING OF SECTION 4.7 OF THE NEW LEAVE REGULATIONS. HENCE, IN THAT VIEW, EMPLOYEES NEED NOT BE REQUIRED TO REFUND OVERDRAWN ANNUAL OR SICK LEAVE WHEN THEY ENTER THE ACTIVE MILITARY SERVICE WITHOUT BREAK IN SERVICE (CF. 22 COMP. GEN. 990). QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE.

QUESTION 16.

THE MINIMUM CHARGE OF ONE HOUR, AND ADDITIONAL CHARGES IN MULTIPLES OF ONE HOUR FOR ANNUAL OR SICK LEAVE SHOULD BE MADE ON EACH SEPARATE CALENDAR DAY, THAT IS, ANNUAL AND SICK LEAVE ABSENCES MAY NOT ACCUMULATE FROM DAY TO DAY FOR THE PURPOSE OF CHARGING UNITS OF HOURS. HENCE, IN THE EXAMPLE, GIVEN, THE EMPLOYEE SHOULD BE CHARGED TWO HOURS ON THE FIRST DAY AND ONE HOUR ON THE SECOND DAY REGARDLESS OF THE FACT THAT THE ABSENCE CONSTITUTED "ONE CONTINUOUS ABSENCE.'