B-41681, MAY 10, 1944, 23 COMP. GEN. 871

B-41681: May 10, 1944

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH PRECLUDED THE TRANSFER OF AN EMPLOYEE'S ACCRUED SICK LEAVE FROM ONE AGENCY TO ANOTHER UNLESS HIS TRANSFER WAS WITHOUT "BREAK IN SERVICE". MADE TIMELY APPLICATION FOR REEMPLOYMENT IN HIS FORMER POSITION AND WAS RESTORED AFTER A LAPSE OF MORE THAN ONE DAY BUT WITHIN THE 40-DAY PERIOD PRESCRIBED BY THE WAR SERVICE REGULATIONS. 1944: I HAVE YOUR LETTER OF APRIL 26. WHICH WAS TRANSFERRED TO THE WAR RELOCATION AUTHORITY. THIS EMPLOYEE WAS SEPARATED BY THE WAR RELOCATION AUTHORITY INVOLUNTARILY AND WITHOUT CAUSE. HE APPLIED IMMEDIATELY FOR EMPLOYMENT IN THIS AGENCY AND WAS REEMPLOYED IN A PERMANENT POSITION ON AUGUST 28. THE EMPLOYEE IN QUESTION HAD A BALANCE OF SLIGHTLY UNDER 90 DAYS OF ACCUMULATED SICK LEAVE AT THE TIME HE WAS SEPARATED BY THE WAR RELOCATION AUTHORITY.

B-41681, MAY 10, 1944, 23 COMP. GEN. 871

LEAVES OF ABSENCE - TRANSFERS - EMPLOYEES REINSTATED AFTER WAR SERVICE TRANSFERS SECTION 9 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385), WHICH PRECLUDED THE TRANSFER OF AN EMPLOYEE'S ACCRUED SICK LEAVE FROM ONE AGENCY TO ANOTHER UNLESS HIS TRANSFER WAS WITHOUT "BREAK IN SERVICE"--- A SEPARATION OF ONE OR MORE WORK DAYS--- DOES NOT OPERATE TO PREVENT THE TRANSFER OF ACCRUED SICK LEAVE OF AN EMPLOYEE WHO TRANSFERRED WITH REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THE WAR SERVICE REGULATIONS AND WHO, AFTER THE INVOLUNTARY TERMINATION OF HIS SERVICE IN THE POSITION TO WHICH TRANSFERRED, MADE TIMELY APPLICATION FOR REEMPLOYMENT IN HIS FORMER POSITION AND WAS RESTORED AFTER A LAPSE OF MORE THAN ONE DAY BUT WITHIN THE 40-DAY PERIOD PRESCRIBED BY THE WAR SERVICE REGULATIONS.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, MAY 10, 1944:

I HAVE YOUR LETTER OF APRIL 26, 1944, AS FOLLOWS:

A PERMANENT EMPLOYEE OF THIS AGENCY TRANSFERRED ON APRIL 8, 1942, WITHOUT BREAK IN SERVICE TO A PERMANENT POSITION IN THE WAR RELOCATION AUTHORITY WITH REEMPLOYMENT BENEFITS AS PROVIDED IN SECTION 2, SUBSECTION (A) OF WAR SERVICE REGULATION IX. AT THE TIME OF TRANSFER HE HAD ACCUMULATED 70 DAYS OF SICK LEAVE WITH THIS AGENCY, WHICH WAS TRANSFERRED TO THE WAR RELOCATION AUTHORITY. ON AUGUST 23, 1943, THIS EMPLOYEE WAS SEPARATED BY THE WAR RELOCATION AUTHORITY INVOLUNTARILY AND WITHOUT CAUSE. HE APPLIED IMMEDIATELY FOR EMPLOYMENT IN THIS AGENCY AND WAS REEMPLOYED IN A PERMANENT POSITION ON AUGUST 28, 1943. THE EMPLOYEE IN QUESTION HAD A BALANCE OF SLIGHTLY UNDER 90 DAYS OF ACCUMULATED SICK LEAVE AT THE TIME HE WAS SEPARATED BY THE WAR RELOCATION AUTHORITY.

SECTION 9 OF EXECUTIVE ORDER 8385 OF MARCH 29, 1940, CONTAINING THE SICK LEAVE REGULATIONS IN EFFECT AT THE TIME OF THE INDIVIDUAL'S SEPARATION AND REEMPLOYMENT, PROVIDED THAT AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME, OR A DIFFERENT GOVERNMENTAL AGENCY, SHOULD HAVE HIS ACCUMULATED SICK LEAVE TRANSFERRED. THE ORDER DEFINED "BREAK IN SERVICE" TO MEAN SEPARATION FOR A PERIOD OF ONE OR MORE WORK DAYS, AND IT WAS CONSTRUED TO PROHIBIT THE TRANSFER OF SUCH LEAVE WHERE THERE WAS A BREAK IN SERVICE. IF THE REEMPLOYMENT OF THE INDIVIDUAL IN THIS AGENCY HAD BEEN WITHOUT REGARD TO THE WAR SERVICE REGULATIONS THERE WOULD BE NO QUESTION BUT THAT HIS ACCUMULATED SICK LEAVE WAS FORFEITED UPON HIS SEPARATION FROM THE WAR RELOCATION AUTHORITY.

HOWEVER, SECTION 5, SUBSECTION (A), OF WAR SERVICE REGULATION IX PROVIDES IN PERTINENT PART AS FOLLOWS:

"ANY PERSON, EXCEPT ONE HOLDING A TEMPORARY POSITION, TRANSFERRED UNDER THIS REGULATION UNDER SUCH CONDITIONS AS TO ENTITLE HIM TO REEMPLOYMENT BENEFITS, WHOSE SERVICES ARE SUBSEQUENTLY TERMINATED INVOLUNTARILY AND WITHOUT CAUSE, SUCH AS WOULD REFLECT ON HIS SUITABILITY FOR EMPLOYMENT IN THE FEDERAL SERVICE, SHALL BE ENTITLED TO THE RIGHTS SPECIFIED BELOW, PROVIDED * * * THAT HE MAKES APPLICATION FOR REINSTATEMENT WITHIN FORTY DAYS AFTER THE TERMINATION OF HIS SERVICES * * * HE SHALL BE REINSTATED WITHIN THIRTY DAYS OF HIS APPLICATION * * * IN HIS FORMER POSITION OR IN A POSITION OF LIKE SENIORITY, STATUS AND PAY, IN SUCH MANNER, TO THE EXTENT CONSISTENT WITH LAW, THAT HE DOES NOT LOSE ANY OF THE RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED OR RELEASED, PROVIDED THAT SUCH A POSITION THEN ISTS.'

IT MAY BE NOTED THAT A BREAK IN SERVICE IS EXPRESSLY CONTEMPLATED BY THE PROVISIONS OF THE REGULATION PERMITTING APPLICATION AND REEMPLOYMENT WITHIN A SPECIFIED PERIOD SUBSEQUENT TO THE EMPLOYEE'S TERMINATION. INSOFAR AS THE ABOVE PROVISION EXPRESSLY PRECLUDES DENIAL OF ANY RIGHTS OR BENEFITS TO WHICH THE INDIVIDUAL WOULD HAVE BEEN ENTITLED HAD HE NOT BEEN TRANSFERRED, IT APPEARS TO ADD BENEFITS TO THOSE STIPULATED BY THE APPLICABLE SECTION OF THE WAR SERVICE REGULATIONS IN EFFECT PRIOR TO SEPTEMBER 14, 1942, ON WHICH DATE THE LANGUAGE QUOTED ABOVE WAS PROMULGATED. THE EARLIER REGULATION, TO THE EXTENT HERE MATERIAL, REQUIRED ONLY REINSTATEMENT "IN HIS FORMER POSITION OR IN A POSITION OF LIKE SENIORITY, STATUS, OR PAY * * *.'

MAY THE RULE OF SECTION 9 OF EXECUTIVE ORDER 8385 THAT AN EMPLOYEE WHO HAD A BREAK IN SERVICE WOULD FORFEIT ACCUMULATED LEAVE, BE REGARDED AS INAPPLICABLE IN THE CASE OF REEMPLOYMENT UNDER SECTION 5, SUBSECTION (A), OF WAR SERVICE REGULATION IX? AND IS THIS AGENCY AUTHORIZED TO CREDIT THE EMPLOYEE IN QUESTION WITH THE SICK LEAVE WHICH WAS TO HIS CREDIT AT THE TIME HE WAS SEPARATED FROM THE WAR RELOCATION AUTHORITY?

IN DECISION OF OCTOBER 8, 1943, 23 COMP. GEN. 265, 266, TO YOU IT WAS STATED:

THE EVIDENT PURPOSE AND INTENT OF THAT PORTION OF THE WAR SERVICE REGULATION QUOTED IN YOUR LETTER--- PARTICULARLY THE UNDERSCORED PORTION-- - IS TO RESTORE AN EMPLOYEE TO A POSITION IN THE AGENCY FROM WHICH TRANSFERRED--- IN THIS CASE THE FEDERAL SECURITY AGENCY--- WITH THE SAME SENIORITY STATUS AND PAY AND WITHOUT THE LOSS OF ANY RIGHTS OR BENEFITS TO WHICH HE WOULD HAVE BEEN ENTITLED HAD HE CONTINUED TO SERVE IN SUCH AGENCY WHILE HE SERVED IN THE OTHER AGENCY. SAID REGULATION THUS RENDERS INAPPLICABLE THE GENERAL RULE STATED IN 21 COMP. GEN. 285, ET ALIA. OTHER WORDS, THE PURPOSE AND INTENT APPEARS TO HAVE BEEN TO PROVIDE SUBSTANTIALLY THE SAME BENEFITS IN THAT RESPECT AS IS AUTHORIZED BY LAW AND REGULATION FOR EMPLOYEES WHO ENTER THE ACTIVE MILITARY OR NAVAL FORCES

COMPARE 22 COMP. GEN. 969.

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 * * *.

IN VIEW OF SAID DECISIONS IT MAY BE HELD THAT SINCE SICK LEAVE CREDIT IS A RIGHT OR BENEFIT TO WHICH THE EMPLOYEE MENTIONED IN YOUR LETTER WOULD HAVE BEEN ENTITLED HAD HE CONTINUED TO SERVE IN THE FEDERAL SECURITY AGENCY DURING THE PERIOD HE SERVED IN THE WAR RELOCATION AUTHORITY; AND AS THE EMPLOYEE APPLIED FOR REEMPLOYMENT WITHIN THE TIME PRESCRIBED BY THE WAR SERVICE REGULATIONS AND WAS RESTORED TO HIS POSITION IN THE FEDERAL SECURITY AGENCY, HE IS ENTITLED TO HAVE RESTORED TO HIM THE SICK LEAVE TO HIS CREDIT WHEN HE LEFT THE EMPLOYMENT OF THE WAR RELOCATION AUTHORITY--- THERE HAVING BEEN NO BREAK IN SERVICE WITHIN THE MEANING OF THE WAR SERVICE REGULATIONS. HENCE, BOTH QUESTIONS POSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER ARE ANSWERED IN THE AFFIRMATIVE.

Sep 27, 2016

Sep 22, 2016

Sep 21, 2016

Sep 20, 2016

Looking for more? Browse all our products here