B-44515, SEPTEMBER 16, 1944, 24 COMP. GEN. 222

B-44515, SEPTEMBER 16, 1944, 24 COMP. GEN. 222

LEAVES OF ABSENCE - ANNUAL - SEPARATION FROM SERVICE - CONTINUANCE OF ACTIVE DUTY DURING TERMINAL LEAVE PERIOD THE ADMINISTRATIVE ACTION OF PERMITTING AN EMPLOYEE TO CONTINUE WORK DURING A PERIOD WHICH HAD BEEN DESIGNATED AS TERMINAL ANNUAL LEAVE HAD THE EFFECT OF CANCELING THE GRANT OF LEAVE, SO THAT THE EMPLOYEE MAY BE RESTORED TO THE ROLL FOR THE PURPOSE OF GRANTING SUCH LEAVE IN ACCORDANCE WITH THE MANDATORY REQUIREMENTS OF SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS WITH RESPECT TO THE GRANTING OF UNUSED LEAVE UPON SEPARATION FROM SERVICE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, BOARD OF INVESTIGATION AND RESEARCH, SEPTEMBER 16, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 14, 1944, AS FOLLOWS:

THE BOARD OF INVESTIGATION AND RESEARCH, A TEMPORARY AGENCY WHOSE LIFE EXPIRES ON SEPTEMBER 18, 1944, WAS CREATED UNDER THE TRANSPORTATION ACT OF 1940 TO INVESTIGATE AND REPORT TO THE PRESIDENT AND THE CONGRESS ON VARIOUS TRANSPORTATION QUESTIONS OF NATIONAL IMPORTANCE. ONE OF THE SPECIFIC DUTIES OF THE BOARD, AS PROVIDED IN TITLE III, PART I, SECTION 302 (A) (2) OF THE ACT, HAS BEEN TO CONDUCT A COMPREHENSIVE INVESTIGATION OF PUBLIC AIDS TO THE SEVERAL KINDS OF TRANSPORTATION.

BECAUSE OF A STRINGENCY OF FUNDS, IT BECAME NECESSARY, ON FEBRUARY 29, 1944, FOR THE BOARD TO GIVE NOTICE OF TERMINATION OF SERVICE TO DR. BURTON N. BEHLING, DIRECTOR OF THE PUBLIC AIDS INVESTIGATION FOR THE BOARD, SUCH TERMINATION TO BE EFFECTIVE ON MARCH 31, 1944. AT THAT TIME THE PREPARATION OF THE REPORT HAD NOT BEEN COMPLETED, AND UNDER THE CIRCUMSTANCES DR. BEHLING OFFERED TO CONTINUE WITH THE PREPARATION OF THE REPORT ON HIS OWN TIME, IN ORDER TO AVOID THE PROSPECT THAT THE BOARD WOULD HAVE TO SUBMIT AN UNFINISHED REPORT. THE AFOREMENTIONED DATE OF TERMINATION WAS SUBSEQUENTLY EXTENDED BY THE BOARD TO APRIL 15, 1944, AND LATER TO APRIL 24, 1944. THE BUDGETARY SITUATION OF THE BOARD AT THAT TIME MADE IT IMPOSSIBLE TO COMMIT ANY ADDITIONAL FUNDS FOR THIS STUDY. SINCE APRIL 24, DR. BEHLING HAS CONTINUED TO WORK HARD AND CONSTANTLY IN COMPLETING THIS REPORT, UNTIL THE EXPIRATION OF HIS ACCUMULATED ANNUAL LEAVE ON JULY 31, 1944, AND THEREAFTER WHILE ON LEAVE WITHOUT PAY.

THE REPORT ON THE PUBLIC AIDS INVESTIGATION HAS BEEN COMPLETED BY DR. BEHLING, AND IS NOW BEING PUT IN FINAL FORM FOR SUBMISSION TO THE PRESIDENT AND THE CONGRESS BEFORE THE BOARD'S LIFE EXPIRES NEXT MONDAY, SEPTEMBER 18. THE REPORT ON THIS EXTREMELY DIFFICULT AND CONTROVERSIAL SUBJECT COMPRISES SOME 1350 PAGES, AND IT WILL, I AM SURE, BE A VERY USEFUL DOCUMENT RELATIVE TO THE TRANSPORTATION PROBLEMS WITH WHICH IT DEALS.

IT IS HIGHLY DOUBTFUL THAT THIS REPORT COULD HAVE BEEN COMPLETED IN A SUITABLE MANNER, AS CONTEMPLATED BY THE TRANSPORTATION ACT OF 1940, EXCEPT FOR THE PERSEVERING EFFORTS OF DR. BEHLING, WHO HAS DIRECTED THE INVESTIGATION SINCE ITS INCEPTION. THE MEMBERS OF THE BOARD GREATLY APPRECIATE THE LOYALTY AND DEVOTION WHICH DR. BEHLING HAS SO FULLY DEMONSTRATED IN CARRYING TO COMPLETION HIS WORK FOR THE BOARD.

BY REASON OF VERY STRICT ECONOMY IN THE USE OF ITS AVAILABLE FUNDS OVER THE PAST SEVERAL MONTHS, THE BOARD WILL REACH THE END OF ITS STATUTORY LIFE WITH AN UNEXPENDED BALANCE OF SEVERAL THOUSAND DOLLARS. THE AMOUNT REQUIRED TO COMPENSATE DR. BEHLING FOR HIS SERVICES FROM AUGUST 1 TO SEPTEMBER 18 IS SLIGHTLY LESS THAN ONE THOUSAND DOLLARS. WE THEREFORE STRONGLY DESIRE TO TAKE APPROPRIATE ACTION TO RESTORE DR. BEHLING TO AN EMPLOYMENT STATUS WITH THE BOARD FROM APRIL 24, 1944, TO SEPTEMBER 18, 1944, IN ORDER TO COMPENSATE HIM FAIRLY FOR HIS SERVICES AND TO RESTORE HIS ACCUMULATED ANNUAL LEAVE.

IT WILL BE NECESSARY THAT ANY SUCH ACTION BE TAKEN PRIOR TO SEPTEMBER 18, 1944, THE DATE OF EXPIRATION OF THE BOARD'S LIFE, AND HENCE WE SHALL GREATLY APPRECIATE YOUR ADVICE IN THIS MATTER AT YOUR EARLIEST CONVENIENCE.

IT IS UNDERSTOOD FROM THE SECOND PARAGRAPH OF YOUR LETTER THAT THE LAST DAY OF ACTIVE SERVICE OF DR. BEHLING WAS FIXED ADMINISTRATIVELY AS APRIL 24, 1944, AND THAT THE TERMINATION DATE OF HIS APPOINTMENT WAS FIXED ADMINISTRATIVELY AS JULY 31, 1944, THE DATE OF EXPIRATION OF HIS ACCRUED ANNUAL LEAVE, BUT THAT HE CONTINUED TO SERVE WITH ADMINISTRATIVE KNOWLEDGE AND CONSENT DURING THE PERIOD SO ADMINISTRATIVELY DESIGNATED AS TERMINAL ANNUAL LEAVE AND THEREAFTER.

SECTION 2.4 OF THE LEAVE REGULATIONS ( EXECUTIVE ORDER 9414) PROVIDES AS FOLLOWS:

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: PROVIDED, THAT AN EMPLOYEE WHO ELECTS TO FORFEIT THE LEAVE STANDING TO HIS CREDIT MAY DO SO BY FILING A WRITTEN NOTICE TO SUCH EFFECT.

IN DECISION OF FEBRUARY 29, 1944, 23 COMP. GEN. 638, IT WAS HELD (QUOTING FROM THE 10TH PARAGRAPH OF THE SYLLABUS):

THE PROVISION IN SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1944 THAT THE SEPARATION OF AN EMPLOYEE SHALL NOT BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF HIS UNUSED ANNUAL LEAVE, WAS SO PHRASED FOR THE SPECIFIC PURPOSE OF OVERCOMING THE HERETOFORE ESTABLISHED RULE (SEE 16 COMP. GEN. 899; 17 ID. 48) TO THE EFFECT THAT "PAYMENT MAY NOT BE MADE AFTER SEPARATION FROM SERVICE FOR LEAVE NOT TAKEN, NOTWITHSTANDING THE FAILURE TO RECEIVE SAME RESULTED FROM MISUNDERSTANDING, MISTAKE OR NEGLIGENCE IN THE ADMINISTRATION OF THE LEAVE ," AND, THEREFORE, AN EMPLOYEE MAY NOT BE EFFECTIVELY SEPARATED FROM THE SERVICE ON OR AFTER JANUARY 1, 1944, PRIOR TO THE TERMINATION IF HIS UNUSED ANNUAL LEAVE.

ALSO, IN DECISION OF MARCH 16, 1944, 23 COMP. GEN. 677, IT WAS HELD (QUOTING FROM THE 4TH PARAGRAPH OF THE SYLLABUS):

IN VIEW OF THE PROVISIONS 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.

AND IN DECISION OF AUGUST 17, 1944 (B-43283), 24 COMP. GEN. 134, WITH REFERENCE TO SAID PROVISION OF THE REGULATIONS IT WAS SAID: "THAT REGULATION NOW MAKES IT MANDATORY THAT TERMINAL ANNUAL LEAVE SHALL BE GRANTED UNLESS AN EMPLOYEE AFFIRMATIVELY FORFEITS THE LEAVE.'

THE ACTION OF THE ADMINISTRATIVE OFFICE IN PERMITTING DR. BEHLING TO CONTINUE TO WORK DURING THE PERIOD WHICH HAD BEEN ADMINISTRATIVELY DESIGNATED AS TERMINAL ANNUAL LEAVE HAD THE EFFECT OF CANCELING THE GRANT OF LEAVE. AS SPECIFICALLY PROVIDED IN THE CONTROLLING LEAVE REGULATION, ABOVE QUOTED, THE ONLY MANNER IN WHICH DR. BEHLING COULD HAVE FORFEITED HIS TERMINAL ANNUAL LEAVE WAS BY ,FILING A WRITTEN NOTICE TO SUCH EFFECT.' THIS OFFICE HAS BEEN ADVISED INFORMALLY FROM YOUR OFFICE THAT DR. BEHLING HAS NOT FILED A WRITTEN NOTICE FORFEITING HIS TERMINAL ANNUAL LEAVE.

ACCORDINGLY, AS DR. BEHLING HAS NOT RECEIVED HIS TERMINAL ANNUAL LEAVE AND AS THE ADMINISTRATIVE OFFICE MAY NOT DENY HIM SUCH BENEFIT OVER A PERIOD PRIOR TO THE TERMINATION OF THE AGENCY, HE MAY BE RESTORED TO THE ROLL FOR THE PURPOSE OF GRANTING HIM SUCH LEAVE WHICH, OF COURSE, MAY NOT EXTEND BEYOND SEPTEMBER 18, 1944, THE DATE FIXED BY STATUTE FOR THE TERMINATION OF THE BOARD. SEE 14 COMP. GEN. 738; 17 ID. 641.