B-41663, MAY 10, 1944, 23 COMP. GEN. 869

B-41663, MAY 10, 1944, 23 COMP. GEN. 869

LEAVES OF ABSENCE - RESTORATION OF CREDITS AND DEBITS AFTER RETURN FROM MILITARY SERVICE WHEN A FORMER EMPLOYEE IS RESTORED TO HIS CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, HE IS TO BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE, AND IS TO BE RESTORED WITH THE SAME LEAVE STATUS (AS TO BOTH CREDITS AND DEBITS) AS HE HAD WHEN HE LEFT HIS CIVILIAN POSITION TO ENTER THE ACTIVE MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MAY 10, 1944:

THERE HAS BEEN RECEIVED A LETTER DATED APRIL 24, 1944, FROM THE ADMINISTRATOR, SOUTHWESTERN POWER ADMINISTRATION, TULSA, OKLAHOMA (FILE ACCOUNTING: DGW:1MP:BE), READING AS FOLLOWS:

MR. HAROLD F. BROWN, AN EMPLOYEE OF THIS ADMINISTRATION, WAS PLACED ON MILITARY FURLOUGH, NOVEMBER 6, 1943, AT WHICH TIME HE ENTERED THE MILITARY SERVICE. HE HAD PREVIOUSLY BEEN GRANTED ADVANCE SICK LEAVE, SOME OF WHICH REMAINED UNPAID AT THE TIME HE WAS PLACED ON MILITARY FURLOUGH.

UNDER DATE OF FEBRUARY 9, 1944, HE ADVISED US BY LETTER THAT HE WAS HONORABLY DISCHARGED FROM MILITARY SERVICE ON JANUARY 21, 1944, AND THAT HE DESIRED TO RETURN TO ACTIVE DUTY WITH THIS ADMINISTRATION. THE MATTER WAS HANDLED BY CORRESPONDENCE AND HE RETURNED TO ACTIVE DUTY WITH THIS ADMINISTRATION, FEBRUARY 29, 1944.

QUESTION 1. UPON RETURN TO ACTIVE DUTY, SHOULD HE STAND CHARGED WITH THE ADVANCE SICK LEAVE THAT REMAINED UNPAID AT THE TIME HE WAS PLACED ON MILITARY FURLOUGH, AND HE BE REQUIRED TO REPAY IT THROUGH ACCRUALS; OR SHOULD IT BE CONSIDERED AS FORGIVEN AS AT THE TIME HE ENTERED MILITARY SERVICE?

AT THE TIME MR. BROWN ENTERED THE MILITARY SERVICE, THERE WAS IN FORCE SECTION 11 OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940, WITH RESPECT TO WHICH IT WAS STATED IN DECISION OF APRIL 24, 1943, 22 COMP. GEN. 990, 992, ON THE CLAIM OF T. BARDEN SEXTON, AS FOLLOWS:

HOWEVER, THE SITUATION AS TO COLLECTION ON ACCOUNT OF OVERDRAWN SICK LEAVE UNDER SECTION 11 OF THE SICK LEAVE REGULATIONS ABOVE QUOTED, IS DIFFERENT IN YOUR CASE FOR THE REASON THAT SAID SECTION OF THE REGULATION IN RESPECT OF THE REQUIREMENT FOR REFUND ON ACCOUNT OF EXCESS SICK LEAVE IS SPECIFICALLY LIMITED TO "THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE.' YOUR ENTRY INTO THE ACTIVE MILITARY SERVICE, WHETHER BY ENLISTMENT OR BY INDUCTION, IS NOT FOR REGARDING AS A "VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE" WITHIN THE MEANING SECTION 11 OF THE SICK LEAVE REGULATIONS, SO AS TO REQUIRE COLLECTION FROM YOU FOR OVERDRAWN SICK LEAVE. WHILE THE EARLIER LAWS AND DECISIONS MADE A DISTINCTION BETWEEN EMPLOYEES WHO WERE "ORDERED" INTO THE ACTIVE MILITARY OR NAVAL SERVICE AND THOSE WHO VOLUNTARILY ENLISTED, WITH RESPECT TO LEAVE BENEFITS AND REEMPLOYMENT RIGHTS (SEE 21 COMP. GEN. 210, 403, AND THE STATUTES THEREIN CONSIDERED), LATER STATUTES NOW IN FORCE AND THE DECISION THEREUNDER SHOW A DEFINITE INTENTION TO TREAT ALL EMPLOYEES ALIKE WITH REGARD TO SUCH BENEFITS, REGARDLESS OF THE CIRCUMSTANCES UNDER WHICH THEY ENTER THE ACTIVE MILITARY OR NAVAL SERVICE (I.E., WHETHER BY INDUCTION OR BY ENLISTMENT). SEE SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, AMENDING THE ACT OF AUGUST 1, 1941, AND 22 COMP. GEN. 47. IT IS CONCLUDED, THEREFORE, 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.

A SIMILAR CONCLUSION WAS REACHED IN THE APPLICATION OF THE NEW LEAVE REGULATIONS IN FORCE ON AND AFTER JANUARY 1, 1944 ( EXECUTIVE ORDER 9494, DATED JANUARY 13, 1944). SEE QUESTION AND ANSWER 15, DECISION OF MARCH 16, 1944, B-40518, 23 C.G. 677, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION. THE SPECIFIC QUESTION PRESENTED IN THE ABOVE QUOTED LETTER--- WHETHER A SICK LEAVE CHARGE MUST BE RESTORED TO AN EMPLOYEE UPON RETURN OF THE EMPLOYEE TO HIS CIVILIAN POSITION AFTER DISCHARGE FROM THE ACTIVE MILITARY SERVICE--- WAS NOT CONSIDERED OR DECIDED IN EITHER OF THOSE DECISIONS.

IN DECISION OF AUGUST 12, 1943, 23 COMP. GEN. 96, 98, IT WAS STATED:

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 * * *.

AS A COROLLARY TO SAID HOLDING THERE IS REQUIRED THE CONCLUSION THAT A SICK LEAVE CHARGE, ALSO, MUST BE RESTORED TO AN EMPLOYEE WHEN HE IS RESTORED TO HIS CIVILIAN POSITION UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, 54 STAT. 885, AFTER DISCHARGE FROM THE ACTIVE MILITARY SERVICE. THAT IS TO SAY, WHEN AN EMPLOYEE IS RESTORED TO HIS CIVILIAN POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS AND PAY UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, HE IS TO "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" (21 COMP. GEN. 403, 408), AND IS TO BE RESTORED WITH THE SAME LEAVE STATUS (AS TO BOTH CREDITS AND DEBITS) AS HE HAD WHEN HE LEFT HIS CIVILIAN POSITION TO ENTER THE ACTIVE MILITARY SERVICE.

ACCORDINGLY, THE FIRST OF ALTERNATIVE QUESTIONS IS ANSWERED IN THE AFFIRMATIVE AND THE SECOND IN THE NEGATIVE.