B-41541, JUNE 17, 1944, 23 COMP. GEN. 960

B-41541: Jun 17, 1944

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COMPENSATION - NON-WORK DAY BETWEEN LEAVE WITHOUT PAY AND RETURN TO DUTY WHERE AN EMPLOYEE HAVING NO ANNUAL OR SICK LEAVE TO HIS CREDIT HAS ABSENTED HIMSELF FROM WORK FOR A SINGLE WORK DAY WITHOUT PRIOR AUTHORIZATION AND IT IS ADMINISTRATIVELY DETERMINED AFTER HIS RETURN TO DUTY THAT CONDITIONS RENDERED AN ADVANCE APPLICATION FOR LEAVE WITHOUT PAY IMPRACTICABLE. JUSTIFYING A CONCLUSION THAT HE WAS NOT "A.W.O.L.'. 1944: I HAVE YOUR LETTER OF APRIL 11. GEN. 807 WHERE IT WAS STATED: "WHERE. THE LEAVE WITHOUT PAY IS TAKEN WITHOUT OBTAINING APPROPRIATE AUTHORIZATION PRIOR TO THE TAKING OF SUCH LEAVE. THE ESTABLISHED RULE IS THAT. THE EMPLOYEE IS CONSIDERED IN A NON-PAY STATUS FOR THE ENTIRE PERIOD DURING WHICH HE ABSENTS HIMSELF FROM DUTY.

B-41541, JUNE 17, 1944, 23 COMP. GEN. 960

COMPENSATION - NON-WORK DAY BETWEEN LEAVE WITHOUT PAY AND RETURN TO DUTY WHERE AN EMPLOYEE HAVING NO ANNUAL OR SICK LEAVE TO HIS CREDIT HAS ABSENTED HIMSELF FROM WORK FOR A SINGLE WORK DAY WITHOUT PRIOR AUTHORIZATION AND IT IS ADMINISTRATIVELY DETERMINED AFTER HIS RETURN TO DUTY THAT CONDITIONS RENDERED AN ADVANCE APPLICATION FOR LEAVE WITHOUT PAY IMPRACTICABLE, JUSTIFYING A CONCLUSION THAT HE WAS NOT "A.W.O.L.' THE EMPLOYEE'S PAY STATUS MAY BE REGARDED THE SAME AS THOUGH LEAVE WITHOUT PAY HAD BEEN GRANTED IN ADVANCE AND HE MAY BE ALLOWED PAY FOR A NON-WORK DAY OCCURRING IMMEDIATELY PRIOR TO THE ACTUAL RETURN TO DUTY. 16 COMP. GEN. 807, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JUNE 17, 1944:

I HAVE YOUR LETTER OF APRIL 11, 1944, AS FOLLOWS:

AS A RESULT OF AN ADMINISTRATIVE AUDIT OF PAYROLL CARDS FOR CIVILIAN EMPLOYEES AT A FIELD INSTALLATION OF THIS DEPARTMENT, A QUESTION HAS BEEN PRESENTED TO THIS OFFICE CONCERNING THE PROPER METHOD OF COMPUTING PAY FOR NON-WORK DAYS OCCURRING WITHIN A PERIOD OF LEAVE WITHOUT PAY. THIS QUESTION ARISES OUT OF PRESENT TRANSPORTATION AND COMMUNICATION DIFFICULTIES AND LITERAL APPLICATION OF A DECISION BY YOUR OFFICE IN 16 COMP. GEN. 807 WHERE IT WAS STATED:

"WHERE, HOWEVER, THE LEAVE WITHOUT PAY IS TAKEN WITHOUT OBTAINING APPROPRIATE AUTHORIZATION PRIOR TO THE TAKING OF SUCH LEAVE, THE ESTABLISHED RULE IS THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING OTHERWISE, THE EMPLOYEE IS CONSIDERED IN A NON-PAY STATUS FOR THE ENTIRE PERIOD DURING WHICH HE ABSENTS HIMSELF FROM DUTY, AND IN SUCH CASES DEDUCTION OF PAY IS REQUIRED FOR ALL DAYS COMING WITHIN THAT PERIOD, INCLUDING SUNDAYS AND HOLIDAYS, IRRESPECTIVE OF WHETHER OCCURRING IMMEDIATELY PRIOR TO THE DAY ON WHICH THE EMPLOYEE REPORTS FOR DUTY.'

IN THIS CONNECTION, IT IS PERTINENT TO OBSERVE THAT CIRCUMSTANCES OFTEN REQUIRE EMPLOYEES TO LIVE RELATIVELY LONG DISTANCES FROM THEIR PLACES OF EMPLOYMENT AND IT IS NOT ALWAYS POSSIBLE IN EMERGENCY SITUATIONS TO SECURE ADVANCE APPROVAL OF ABSENCE FROM DUTY. IN SUCH INSTANCES, ADMINISTRATIVE OFFICERS HAVE BEEN GRANTED AUTHORITY TO CONSIDER THE CIRCUMSTANCES OF THE ABSENCE AND TO PLACE THE EMPLOYEE ONAN ABSENCE WITHOUT LEAVE STATUS IF IT IS FOUND THAT THE ABSENCE WITHOUT AUTHORIZATION IS DUE TO THE EMPLOYEE'S MISCONDUCT OR CARELESSNESS. IF THE EMPLOYEE HAS ANNUAL OR SICK LEAVE TO HIS CREDIT AND THE SUPERVISORY OR OTHER LEAVE APPROVING OFFICER DETERMINES THAT THE FAILURE TO SECURE PRIOR APPROVAL FOR THE PERIOD OF LEAVE IS NOT DUE TO ANY FAULT OF THE EMPLOYEE, HE MAY GIVE POST AUTHORIZATION FOR LEAVE WITH PAY TO COVER THE PERIOD OF ABSENCE. THUS, IF A PER ANNUM EMPLOYEE IS ABSENT ON A SATURDAY THROUGH NO FAULT OF HIS OWN AND LEAVE WITH PAY IS RETROACTIVELY AUTHORIZED FOR THAT DAY, HE WOULD ALSO BE ENTITLED TO COMPENSATION FOR THE FOLLOWING SUNDAY, A NON-WORK DAY. UNDER THE DECISION CITED ABOVE, HOWEVER, IF THE EMPLOYEE HAS NO SICK OR ANNUAL LEAVE TO HIS CREDIT AND IT IS NECESSARY TO CHARGE THAT DAY AS LEAVE WITHOUT PAY, EVEN THOUGH THE CIRCUMSTANCES SURROUNDING THE ABSENCE BE THE SAME, THE DEPARTMENT IS REQUIRED TO DEDUCT PAY FOR THE FOLLOWING NON-WORK DAY AS WELL.

IN REFERRING THIS MATTER FOR YOUR FURTHER ATTENTION AND ADVICE, THE DEPARTMENT IS NOT UNMINDFUL OF A RECENT DECISION (B-40144, FEBRUARY 29, 1944 (23 COMP. GEN. 638) IN WHICH THE DIRECTOR, DIVISION OF CENTRAL ADMINISTRATIVE SERVICES, OFFICE FOR EMERGENCY MANAGEMENT, WAS ADVISED SUBSTANTIALLY IN ACCORDANCE WITH THE DECISION QUOTED ABOVE. IN ANOTHER RECENT DECISION, HOWEVER, IT WAS INDICATED VERY BROADLY THAT PERIODS OF ABSENCE FROM DUTY WERE TO BE REGARDED AS ADMINISTRATIVE PROBLEMS TO BE SOLVED BY THE OFFICE CONCERNED IN ACCORDANCE WITH THE CIRCUMSTANCES SURROUNDING THE ABSENCE. A PORTION OF THAT DECISION (B-40518, MARCH 16, 1944, (23 COMP. GEN. 677) PROVIDES AS FOLLOWS:

"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.' (ITALICS SUPPLIED).

IN STILL ANOTHER RECENT DECISION, CONSIDERABLE ADMINISTRATIVE LATITUDE WAS RECOGNIZED IN THE MATTER OF REQUIRING EMPLOYEES TO BE AVAILABLE FOR WORK (B-40033, FEBRUARY 25, 1944).

IN THE INTEREST OF SECURING AN ANSWER TO THE IMMEDIATE PROBLEM FACING THE DEPARTMENT, AND IN ORDER TO PROVIDE CLARIFYING INSTRUCTIONS WHICH WILL ASSURE EQUITABLE TREATMENT OF ALL EMPLOYEES INSOFAR AS THE LAW WILL PERMIT, YOUR ADVICE IS REQUESTED AS TO WHETHER THE NEW LEAVE REGULATIONS AND PRESENT CONDITIONS WITH RESPECT TO TRANSPORTATION AND COMMUNICATION FACILITIES HAVE RESULTED IN ANY CHANGE WHICH WOULD PERMIT MODIFICATION OF YOUR EARLIER DECISION TO THE EXTENT THAT POST AUTHORIZATION OF LEAVE WITHOUT PAY COULD BE SUBSTITUTED FOR THE PRIOR GRANTING OF SUCH LEAVE. IS THE DEPARTMENT'S VIEW THAT ADMINISTRATIVE OFFICERS SHOULD BE GRANTED, WHEREVER POSSIBLE, SUFFICIENT LATITUDE FOR THE EXERCISE OF DISCRETION IN MEETING PROBLEMS SUCH AS THOSE REFERRED TO ABOVE, INCLUDING AUTHORITY TO PLACE EMPLOYEES HAVING NO LEAVE TO THEIR CREDIT ON THE SAME BASIS AS THOSE ENTITLED TO LEAVE WITH PAY FOR ABSENCE UNDER SIMILAR CIRCUMSTANCES AND THEREBY TO PERMIT PAYMENT FOR A NON-WORK DAY OCCURRING IMMEDIATELY PRIOR TO THEIR RETURN TO DUTY.

THE GENERAL RULE STATED IN THE DECISION OF MARCH 3, 1937, 16 COMP. GEN. 807, QUOTED IN YOUR LETTER, AND IN OTHER DECISIONS (SEE PARTICULARLY 13 COMP. GEN. 207, STATING THE BASIC RULE), WAS STATED WITH REFERENCE PRIMARILY TO CASES WHERE AN EMPLOYEE IS ABSENT FROM DUTY WITHOUT AUTHORITY, COMMONLY REFERRED TO AS "A.W.O.L.' THE REASONABLE INFERENCE IS THAT AN EMPLOYEE WHO ABSENTS HIMSELF FROM WORK WITHOUT ADVANCE AUTHORIZATION IS "A.W.O.L.' HOWEVER, THIS OFFICE HAS NEITHER THE AUTHORITY NOR THE INCLINATION TO PREVENT AN ADMINISTRATIVE DETERMINATION AFTER THE RETURN OF THE EMPLOYEE TO DUTY THAT THE FACTS AND CIRCUMSTANCES OF THE INDIVIDUAL CASES ARE SUCH AS TO WARRANT A CONCLUSION THAT THE EMPLOYEE WAS NOT "A.W.O.L.' EVEN THOUGH HE WAS ABSENT WITHOUT PAY. SUCH A MATTER IS AN ADMINISTRATIVE ONE, NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. IN SUCH CASES--- THAT IS, WHERE IT IS DETERMINED ADMINISTRATIVELY THAT THE ABSENCE WITHOUT PRIOR AUTHORITY FOR A SINGLE WORK DAY WAS EXCUSABLE BECAUSE UNDER CONDITIONS WHICH RENDERED THE APPLICATION THEREFOR IN ADVANCE IMPRACTICABLE--- THIS OFFICE WILL NOT OBJECT TO THE ALLOWANCE OF PAY FOR A NON-WORK DAY OCCURRING IMMEDIATELY PRIOR TO THE ACTUAL RETURN TO DUTY. IN OTHER WORDS, THE PAY STATUS IN SUCH CASES MAY BE REGARDED THE SAME AS THOUGH THE LEAVE WITHOUT PAY HAD BEEN GRANTED IN ADVANCE.