B-5858, SEPTEMBER 15, 1939, 19 COMP. GEN. 366

B-5858: Sep 15, 1939

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1936 - TRANSFERS TO POSITIONS WITH THE PANAMA CANAL SUBJECT TO OTHER LEAVE LAWS AS EMPLOYEES OF THE PANAMA CANAL ARE EXPRESSLY EXCLUDED FROM THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14. THERE IS NO EXISTING AUTHORITY TO TRANSFER LEAVE CREDITS FROM A POSITION IN THE WAR DEPARTMENT. WHERE AN EMPLOYEE OF THE WAR DEPARTMENT WAS TRANSFERRED TO A POSITION WITH THE PANAMA CANAL AND SUBSEQUENTLY RETRANSFERRED TO A POSITION IN THE WAR DEPARTMENT. DURING WHICH HE WAS NOT SUBJECT TO THE ACT OF MARCH 14. 1939: I HAVE YOUR LETTER OF AUGUST 31. AS FOLLOWS: REFERENCE IS MADE TO SECTION 6. PRESCRIBING THE CONDITIONS UNDER WHICH AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE GOVERNMENTAL AGENCY TO ANOTHER IS ENTITLED TO BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM AT THE TIME OF SUCH TRANSFER.

B-5858, SEPTEMBER 15, 1939, 19 COMP. GEN. 366

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - TRANSFERS TO POSITIONS WITH THE PANAMA CANAL SUBJECT TO OTHER LEAVE LAWS AS EMPLOYEES OF THE PANAMA CANAL ARE EXPRESSLY EXCLUDED FROM THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS PRESCRIBED BY THE PRESIDENT PURSUANT THERETO, THERE IS NO EXISTING AUTHORITY TO TRANSFER LEAVE CREDITS FROM A POSITION IN THE WAR DEPARTMENT, EITHER IN THE CONTINENTAL UNITED STATES OR IN THE CANAL ZONE, TO A POSITION WITH THE PANAMA CANAL--- THE PANAMA CANAL BEING SUBJECT TO OTHER LEAVE LAWS AND REGULATIONS. WHERE AN EMPLOYEE OF THE WAR DEPARTMENT WAS TRANSFERRED TO A POSITION WITH THE PANAMA CANAL AND SUBSEQUENTLY RETRANSFERRED TO A POSITION IN THE WAR DEPARTMENT, HE WOULD NOT BE ENTITLED, AFTER THE RETRANSFER, TO CREDIT FOR THE LEAVE EARNED UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND REGULATIONS ISSUED PURSUANT THERETO, DURING THE FIRST PERIOD OF SERVICE WITH THE WAR DEPARTMENT, THE PERIOD OF SERVICE WITH THE PANAMA CANAL, DURING WHICH HE WAS NOT SUBJECT TO THE ACT OF MARCH 14, 1936, BUT TO OTHER LEAVE LAWS AND REGULATIONS, BEING A "BREAK IN SERVICE" WITHIN THE MEANING OF SECTION 6 OF THE UNIFORM ANNUAL LEAVE REGULATIONS ISSUED UNDER THE SAID ACT OF MARCH 14, 1936.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF WAR, SEPTEMBER 15, 1939:

I HAVE YOUR LETTER OF AUGUST 31, 1939, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 6, EXISTING ANNUAL LEAVE REGULATIONS, PRESCRIBING THE CONDITIONS UNDER WHICH AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE GOVERNMENTAL AGENCY TO ANOTHER IS ENTITLED TO BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM AT THE TIME OF SUCH TRANSFER.

THE FOLLOWING ITEMS OF SERVICE HISTORY ARE QUOTED FROM THE SERVICE RECORD OF MR. LLOYD G. CARWILE, A PERMANENT CIVIL-SERVICE EMPLOYEE OF THIS DEPARTMENT:

NATURE OF ACTION POSITION AND SALARY DATE ESTABLISHMENT PROB. APPTD. RES. W.O. ASST. CLERK, $1,620 10-1-37 WAR, ENGINEER, PREJ. P/A.

PANAMA CANAL. (TRANS. TO PANAMA -------------------- 5-6 38 PANAMA CANAL CANAL.)

DEPARTMENT. APPTD. BY TRANSFER ---- CLERK, $131.25 MONTH. 5-7-38 THE PANAMA

CANAL. RES. W.O. PREJ. -------------------- 7-5-38 THE PANAMA (TRANS. TO DEPT. CANAL. ENGR., P.C.D.). APPTD. BY TRANSFER ---- PRIN. CLERK, $2,300 7-6-38 WAR, ENGINEER,

P/A. PANAMA CANAL

DEPARTMENT.

AT THE TIME OF HIS TRANSFER FROM THIS DEPARTMENT TO THE PANAMA CANAL ON MAY 7, 1938, MR. CARWILE HAD TO HIS CREDIT 18 DAYS' ANNUAL LEAVE. LEAVE WAS GRANTED HIM DURING THE PERIOD MAY 7, 1938, TO JULY 5, 1938, WHILE HE WAS EMPLOYED UNDER THE PANAMA CANAL AND NO BREAK IN SERVICE WAS INVOLVED.

EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA ARE DEFINITELY EXCLUDED FROM BENEFITS OF THE ANNUAL LEAVE ACTS APPROVED MARCH 14, 1936 (49 STAT. 1161 AND 1162), BY PROVISIONS CONTAINED IN THE SAID ACTS, AND ARE LISTED UNDER PART III, SECTION 19 (B) OF THE UNIFORM ANNUAL LEAVE REGULATIONS AND UNDER PART III, SECTION 23 (C) OF THE UNIFORM SICK LEAVE REGULATIONS AS AMONG THE EMPLOYEES EXCEPTED FROM THE BENEFITS OF THE LEAVE ACTS OF MARCH 14, 1936. IN VIEW OF THE LIMITATION REFERRED TO ABOVE, IT HAS NOT BEEN THE CUSTOM OF THE PANAMA CANAL TO CREDIT EMPLOYEES TRANSFERRED FROM OTHER DEPARTMENTS OR AGENCIES WITH LEAVE EARNED UNDER THE UNIFORM LEAVE ACTS OF MARCH 14, 1936. IN LIKE MANNER, LEAVE EARNED AS AN EMPLOYEE OF THE PANAMA CANAL UNDER THE SPECIAL ACT PERTAINING TO THAT SERVICE IS NOT TRANSFERABLE TO ANOTHER DEPARTMENT.

IN THE PRESENT CASE THE CIRCUMSTANCES ARE SUCH, HOWEVER, AS TO GIVE RISE TO THE QUESTION AS TO WHETHER LEAVE EARNED UNDER THE UNIFORM LEAVE ACTS OF MARCH 14, 1936, AND STANDING TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF TRANSFER TO THE PANAMA CANAL, MAY NOT BE RESTORED TO THE CREDIT OF THE EMPLOYEE UPON HIS RETRANSFER TO A POSITION SUBJECT TO THE ACTS REFERRED TO, WHERE THERE HAS BEEN NO ACTUAL BREAK IN SERVICE UNDER THE FEDERAL GOVERNMENT, ALTHOUGH THE PERIOD OF EMPLOYMENT WITH THE PANAMA CANAL CONSTITUTES A BREAK IN SERVICE SUBJECT TO THE UNIFORM LEAVE ACTS.

IT IS ANTICIPATED THAT, DUE TO THE PRESENT ACTIVITY IN THE PANAMA CANAL ZONE, THERE PROBABLY WILL BE A CONSIDERABLE INTERCHANGE OF EMPLOYEES BETWEEN THE WAR DEPARTMENT AND THE PANAMA CANAL AND THAT A NUMBER OF CASES SIMILAR TO THAT OF MR. CARWILE MAY ARISE. FOR GUIDANCE IN THIS AND POSSIBLE FUTURE CASES, IT IS REQUESTED THAT A RULING BE GIVEN AS TO WHETHER THE CREDIT FOR LEAVE EARNED UNDER THE FIRST PERIOD OF EMPLOYMENT WITH THIS DEPARTMENT MAY BE CREDITED TO THE EMPLOYEE UPON HIS RETRANSFER TO THIS DEPARTMENT.

SECTION 6 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 7879, DATED MAY 9, 1938, PROVIDES AS FOLLOWS:

AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED. "BREAK IN SERVICE" MEANS SEPARATION FROM THE SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.

SEE, ALSO, A SIMILAR PROVISION AS TO SICK LEAVE IN SECTION 9 OF THE UNIFORM SICK LEAVE REGULATIONS, AS AMENDED BY EXECUTIVE ORDER NO. 7880, DATED MAY 9, 1939. THE AUTHORITY UNDER THESE REGULATIONS TO TRANSFER ANNUAL AND SICK LEAVE CREDITS IS, OF COURSE, LIMITED TO TRANSFERS BETWEEN DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT WHOSE PERSONNEL ARE SUBJECT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, AND THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT PURSUANT TO SECTION 7 OF EACH OF THE STATUTES.

AS THE EMPLOYEES OF THE PANAMA CANAL ARE, AS YOU STATE, EXPRESSLY EXCLUDED FROM SAID LEAVE ACTS AND REGULATIONS, THERE IS NO AUTHORITY IN THE EXISTING REGULATIONS TO TRANSFER LEAVE CREDITS FROM A POSITION IN THE WAR DEPARTMENT, EITHER IN THE CONTINENTAL UNITED STATES OR IN THE CANAL ZONE, TO A POSITION WITH THE PANAMA CANAL--- THE PANAMA CANAL BEING SUBJECT TO OTHER LEAVE LAWS AND REGULATIONS. SEE SECTION 4 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 561, AND SECTION 3 OF THE ACT OF JULY 9, 1937, 50 STAT. 487, AND THE LEAVE REGULATIONS ISSUED PURSUANT THERETO.

WHERE AN EMPLOYEE HAS BEEN TRANSFERRED FROM ONE POSITION OR EMPLOYMENT TO ANOTHER POSITION OR EMPLOYMENT TO WHICH LEAVE CREDITS ARE NOT AUTHORIZED TO BE TRANSFERRED UNDER EXISTING REGULATIONS, FOLLOWED BY A RETRANSFER AFTER AN INTERVAL OF SERVICE TO A POSITION FROM WHICH LEAVE CREDITS MAY BE TRANSFERRED, THE UNIFORM RULE HAS BEEN THAT THE SERVICE IN THE POSITION OR EMPLOYMENT TO WHICH LEAVE CREDITS MAY NOT BE TRANSFERRED CONSTITUTES A "BREAK IN SERVICE" WITHIN THE MEANING OF THE REGULATIONS AND THAT THERE IS NO AUTHORITY TO RECREDIT THE EMPLOYEE UPON RETRANSFER WITH THE LEAVE EARNED PRIOR TO THE ORIGINAL TRANSFER. IN DECISION OF JULY 7, 1939, 19 COMP. GEN. 14, INVOLVING AN EMPLOYEE WHO WAS TRANSFERRED OR REASSIGNED FROM AN ADMINISTRATIVE POSITION IN THE WORKS PROGRESS ADMINISTRATION SUBJECT TO THE LEAVE LAWS AND REGULATIONS TO EMPLOYMENT AS A PROJECT WORKER NOT SUBJECT TO SAID LEAVE LAWS AND REGULATIONS AND RETRANSFERRED TO AN ADMINISTRATIVE POSITION, IT WAS STATED:

* * * A PERIOD OF SERVICE IN ANY CAPACITY OTHER THAN AS A CIVILIAN OFFICER OR EMPLOYEE OF THE UNITED STATES DURING WHICH NO LEAVE IS EARNED, OR A PERIOD OF SERVICE IN A TEMPORARY POSITION, INTERVENING BETWEEN TWO PERIODS OF SERVICE IN A PERMANENT OR EMERGENCY POSITION, BREAKS THE SERVICE WITHIN THE MEANING OF SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, AS AMENDED, AND THE LEAVE EARNED PRIOR TO THE INTERVENING PERIOD MAY NOT BE TRANSFERRED TO THE CREDIT OF AN EMPLOYEE AFTER THE INTERVENING PERIOD. SEE 16 COMP. GEN. 212; ID. 403; 17 ID. 830. COMPARE 18 ID. 317.

THAT RULE WOULD BE EQUALLY APPLICABLE TO PRECLUDE RECREDITING MR. LLOYD G. CARWILE UPON HIS RETRANSFER, EFFECTIVE JULY 6, 1938, TO A POSITION IN THE WAR DEPARTMENT, WITH THE 18 DAYS' UNUSED ANNUAL LEAVE EARNED PRIOR TO MAY 6, 1938, IN A POSITION IN THE WAR DEPARTMENT AFTER THE "BREAK IN SERVICE" FROM MAY 7, 1938 TO JULY 5, 1938, INCLUSIVE, WHEN HE SERVED IN A POSITION WITH THE PANAMA CANAL, DURING WHICH PERIOD HE WAS NOT SUBJECT TO THE LEAVE ACTS OF MARCH 14, 1936, AND THE UNIFORM ANNUAL LEAVE REGULATIONS ISSUED THEREUNDER. WHILE IT APPEARS THAT THIS IS A MATTER WHICH COULD BE REMEDIED BY THE ISSUANCE OF AN APPROPRIATE EXECUTIVE ORDER--- THE PERSONNEL OF THE PANAMA CANAL BEING SUBJECT TO EXECUTIVE REGULATIONS--- MY ATTENTION HAS NOT BEEN CALLED TO ANY EXECUTIVE ORDER COVERING SAID SUBJECT MATTER.