B-44445, SEPTEMBER 18, 1944, 24 COMP. GEN. 225

B-44445: Sep 18, 1944

Additional Materials:

Contact:

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

 

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

IS REQUIRED TO APPEAR AS A WITNESS FOR THE UNITED STATES IN A CASE "INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED. AN EMPLOYEE ON TERMINAL LEAVE WHEN CALLED TO TESTIFY FOR THE UNITED STATES AS TO INFORMATION OBTAINED IN THE COURSE OF HIS EMPLOYMENT IS ON ACTIVE DUTY RATHER THAN COURT LEAVE DURING SUCH SERVICE AS A WITNESS. IS ENTITLED TO AN EXTENSION OF HIS FINAL SEPARATION DATE BY THE PERIOD OF WITNESS SERVICE. 1944: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8. FOR ADVANCE DECISION IS A PAYROLL VOUCHER FOR SALARY PAYMENT OF STEPHEN J. THE FACTS IN THIS CASE ARE AS FOLLOWS: MR. ORDERS WERE ISSUED IN COMPLIANCE WITH THIS LETTER ON 15 JUNE 1944 AND CERTIFICATION WAS RECEIVED FROM THE JUSTICE DEPARTMENT.

B-44445, SEPTEMBER 18, 1944, 24 COMP. GEN. 225

WITNESSES - GOVERNMENT EMPLOYEES - RECALL FOR WITNESS DUTY DURING LEAVE OF ABSENCE WHERE AN EMPLOYEE ON LEAVE, TERMINAL OR OTHERWISE, IS REQUIRED TO APPEAR AS A WITNESS FOR THE UNITED STATES IN A CASE "INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED," WITHIN THE MEANING OF SECTION 850, REVISED STATUTES, AS AMENDED, RELATING TO THE TRAVELING EXPENSES HAS THE EFFECT OF RESTORING HIM TO AN ACTIVE DUTY STATUS. AN EMPLOYEE ON TERMINAL LEAVE WHEN CALLED TO TESTIFY FOR THE UNITED STATES AS TO INFORMATION OBTAINED IN THE COURSE OF HIS EMPLOYMENT IS ON ACTIVE DUTY RATHER THAN COURT LEAVE DURING SUCH SERVICE AS A WITNESS, AND IS ENTITLED TO AN EXTENSION OF HIS FINAL SEPARATION DATE BY THE PERIOD OF WITNESS SERVICE, NOTWITHSTANDING THE INCLUSION IN SECTION 1.1 (F) OF THE ANNUAL AND SICK LEAVE REGULATIONS OF "LEAVE FOR ATTENDING COURT AS A WITNESS ON BEHALF OF THE UNITED STATES" WITHIN THE DEFINITION OF "COURT LEAVE," AND THE PROHIBITION IN SECTION 4.2 (B) OF THE REGULATIONS PROHIBITING EXTENSION OF THE FINAL DATE OF SEPARATION BY THE GRANTING OF SUCH LEAVE.

COMPTROLLER GENERAL WARREN TO LT. ALEX DUCCINI, U.S. ARMY, SEPTEMBER 18, 1944:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1944, SPEPV, AS FOLLOWS:

SUBMITTED, HEREWITH, FOR ADVANCE DECISION IS A PAYROLL VOUCHER FOR SALARY PAYMENT OF STEPHEN J. LUKASIK, FISCAL ACCOUNTANT, A CIVILIAN EMPLOYEE OF THE OFFICE OF THE CHIEF OF ENGINEERS, FOR PERIOD OF FOUR HOURS ON 14 AUGUST TO FOUR HOURS ON 19 AUGUST 1944. MR. LUKASIK HAS SUBMITTED A CLAIM FOR THIS SALARY PAYMENT BUT, IN VIEW OF THE CIRCUMSTANCES SURROUNDING THIS CASE, I AM UNCERTAIN AS TO THE PROPRIETY OF ITS PAYMENT.

THE FACTS IN THIS CASE ARE AS FOLLOWS:

MR. LUKASIK SUBMITTED HIS RESIGNATION FROM THE POSITION OF FISCAL ACCOUNTANT, CAF-13, $5800, IN THIS OFFICE, DATED 17 MAY 1944, HIS LAST WORKING DAY BEING 31 MAY 1944 AND HIS TERMINAL LEAVE BEGINNING 1 JUNE 1944 AND EXPIRING AT THE EXPIRATION OF FOUR HOURS OF DUTY ON 14 AUGUST 1944.

THIS OFFICE RECEIVED A LETTER, DATED 1 JUNE 1944, FROM THE ADJUTANT'SGENERAL'S OFFICE REQUESTING THAT TRAVEL ORDERS BE ISSUED TO MR. LUKASIK DIRECTING HIM TO REPORT ON TEMPORARY DETAIL TO THE UNITED STATES ATTORNEY AT FAYETTEVILLE, NORTH CAROLINA, AT 9 A.M. ON 10 JULY 1944 FOR THE PURPOSE OF TESTIFYING ON BEHALF OF THE GOVERNMENT IN A CASE CONCERNING WHICH MR. LUKASIK HAD OBTAINED INFORMATION DURING HIS TENURE OF EMPLOYMENT IN THIS OFFICE. ORDERS WERE ISSUED IN COMPLIANCE WITH THIS LETTER ON 15 JUNE 1944 AND CERTIFICATION WAS RECEIVED FROM THE JUSTICE DEPARTMENT, DATED 30 AUGUST 1944, TO THE FACT THAT MR. LUKASIK WAS PRESENT AT THE TRIAL AS DIRECTED UNDER THE TRAVEL ORDERS REFERRED TO ABOVE.

SECTION 1.1 (F) OF EXECUTIVE ORDER 9414 READS AS FOLLOWS:

" " COURT LEAVE" MEANS LEAVE FOR ATTENDING COURT AS A WITNESS ON BEHALF OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR FOR JURY DUTY.'

SECTION 4.2 (B) STATES:

"ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER FOR 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.'

I AM UNABLE TO DETERMINE WHETHER, DURING THE PERIOD 10 JULY THROUGH 15 JULY 1944, MR. LUKASIK SHOULD BE CONSIDERED ON " COURT LEAVE" WITHIN THE TERMS OF THE ABOVE QUOTED SECTIONS OF EXECUTIVE ORDER 9414 AND, THUS NOT ENTITLED TO EXTENSION OF HIS FINAL DATE OF SEPARATION, OR WHETHER HE SHOULD BE CONSIDERED AS BEING IN A DUTY STATUS AND THUS ENTITLED TO EXTENSION OF HIS FINAL SEPARATION DATE, IN VIEW OF THE FACT THAT HE WAS ORDERED TO REPORT AS A WITNESS BY THE WAR DEPARTMENT IN CONNECTION WITH A CASE, KNOWLEDGE OF WHICH HE HAD GAINED DURING HIS EMPLOYMENT, AND WAS NOT SUBPOENAED BY THE JUSTICE DEPARTMENT. I HAVE BEEN UNABLE TO LOCATE AN APPLICABLE DECISION.

SECTION 850, REVISED STATUTES, AS AMENDED BY THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, PROVIDES, IN PERTINENT PART, THAT:

* * * WHENEVER ANY SUCH OFFICER OR EMPLOYEE OF THE UNITED STATES PERFORMS TRAVEL IN ORDER TO APPEAR AS A WITNESS ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED, HIS TRAVEL EXPENSES AND PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE IN CONNECTION THEREWITH SHALL BE PAYABLE FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR THE TRAVEL EXPENSES OF SUCH OFFICER OR EMPLOYEE, SUCH PAYMENT TO BE MADE BY THE DISBURSING OFFICER CHARGED WITH THE DISBURSEMENT OF FUNDS UNDER THAT APPROPRIATION AFTER PROPER CERTIFICATION BY A CERTIFYING OFFICER OF THE DEPARTMENT OR AGENCY CONCERNED.

SEE 23 COMP. GEN. 47, ID. 658, WHEREIN THE STATUTE WAS INTERPRETED.

AN EMPLOYEE ON LEAVE, TERMINAL OR OTHERWISE, WHO IS REQUIRED TO TESTIFY "ON BEHALF OF THE UNITED STATES IN ANY CASE INVOLVING THE ACTIVITY IN CONNECTION WITH WHICH SUCH PERSON IS EMPLOYED," IS RESTORED TO AN ACTIVE DUTY STATUS WHEN A TRAVEL ORDER IS ISSUED TO HIM PURSUANT TO WHICH HE IS AUTHORIZED TO BE PAID TRAVELING EXPENSES. COMPARE PARAGRAPH 45 (A) OF THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS. NOTWITHSTANDING SECTION 1.1 (F) OF THE LEAVE REGULATIONS QUOTED IN YOUR LETTER, E.O. 9414, JAN. 13, 1944, SERVICE AS A WITNESS IN SUCH A CAPACITY IS AS MUCH ACTIVE DUTY AS HAD THE EMPLOYEE BEEN PERFORMING HIS REGULAR DUTIES, AND MAY NOT BE REGARDED AS " COURT LEAVE" WITHIN THE MEANING OF SECTION 4.2 (B) OF THE LEAVE REGULATIONS, ALSO QUOTED IN YOUR LETTER. HENCE, THAT REGULATION HAS NO EFFECT IN THE CASE PRESENTED TO DENY PAYMENT OF COMPENSATION FOR ACTIVE DUTY AS A WITNESS ON BEHALF OF THE UNITED STATES DURING THE INVOLVED PERIOD JULY 10 THROUGH 15, 1944, AND THE PERFORMANCE OF SUCH ACTIVE DUTY DOES NOT HAVE THE EFFECT OF REDUCING THE AMOUNT OF TERMINAL ANNUAL LEAVE OTHERWISE DUE THE EMPLOYEE. IN OTHER WORDS, THE TERMINATION DATE OF HIS SERVICES MUST BE EXTENDED TO A DATE SO AS TO INCLUDE BOTH THE TERMINAL ANNUAL LEAVE AND THE PERIOD OF ACTIVE DUTY PERFORMED AS A WITNESS ON BEHALF OF THE UNITED STATES.

THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.