B-60554, SEPTEMBER 23, 1946, 26 COMP. GEN. 209

B-60554, SEPTEMBER 23, 1946, 26 COMP. GEN. 209

LEAVES OF ABSENCE - RECREDIT AFTER MILITARY SERVICE A PERMANENT EMPLOYEE WHO ENTERED THE MILITARY, NAVAL, OR MERCHANT MARINE SERVICE IS ENTITLED, UNDER SECTION 4.11 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, TO HAVE HIS UNUSED LEAVE RESTORED UPON BEING REEMPLOYED, WITHIN 120 DAYS AFTER RELEASE FROM THE SERVICE, AS A "PERMANENT" EMPLOYEE WITHIN THE DEFINITION OF THAT TERM IN SECTION 1.1 (B) OF SAID REGULATIONS, IRRESPECTIVE OF WHETHER HE MET THE STATUTORY REQUIREMENTS FOR MANDATORY RESTORATION UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR WHETHER SUCH APPOINTMENT WAS A NEW APPOINTMENT, OR A REAPPOINTMENT OR REINSTATEMENT IN AN AGENCY OTHER THAN THE ONE TO WHICH HIS MANDATORY RESTORATION RIGHTS APPLY. COMP. GEN. 852 AND 26 ID. 30, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 23, 1946:

I HAVE YOUR LETTER OF SEPTEMBER 9, 1946, AS FOLLOWS:

THE COMMISSION HAS RECEIVED A NUMBER OF INQUIRIES AS TO THE APPLICATION OF SECTION 4.11 (A) OF THE CURRENT LEAVE REGULATIONS, AS AMENDED BY THE COMMISSION EFFECTIVE JULY 1, 1946, UNDER AUTHORITY OF SECTION 7.1 OF EXECUTIVE ORDER 9414.

SECTION 4.11 (A) READS:

"ANY PERMANENT EMPLOYEE WHO LEAVES OR HAS LEFT A POSITION TO ENTER MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, AND IS OR HAS BEEN REEMPLOYED AS A PERMANENT EMPLOYEE WITHIN 120 DAYS AFTER HIS RELEASE FROM MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, SHALL BE ENTITLED TO SUCH LEAVE AS REMAINED TO HIS CREDIT.'

SECTION 1.1 (B) OF THE LEAVE REGULATIONS DEFINES "PERMANENT EMPLOYEES" AS FOLLOWS:

" "PERMANENT EMPLOYEES" ARE THOSE APPOINTED WITHOUT LIMITATION AS TO LENGTH OF SERVICE, OR FOR DEFINITE PERIODS IN EXCESS OF ONE YEAR, OR FOR THE "DURATION OF THE JOB," OR FOR THE DURATION OF THE PRESENT WAR AND FOR SIX MONTHS THEREAFTER; AND THOSE WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.'

THE WORD "REEMPLOYED" IN SECTION 4.11 (A) WAS NOT INTENDED IN ANY TECHNICAL SENSE. NO REGULATION WAS NEEDED TO PROVIDE FOR RECREDIT OF LEAVE WHEN AN EMPLOYEE ENTITLED TO RESTORATION UNDER SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OR COMPARABLE STATUTORY PROVISION RETURNED TO DUTY IN THE SAME AGENCY HE HAD LEFT, SINCE A PERSON SO RESTORED HAD NO BREAK IN SERVICE AND CONSEQUENTLY DID NOT LOSE HIS LEAVE. THE PURPOSE OF SECTION 4.11 (A) WAS TO PROVIDE FOR RECREDIT OF UNUSED LEAVE, IN ANY CASE WHERE AN EMPLOYEE WHO FELL WITHIN THE DEFINITION OF ,PERMANENT EMPLOYEE" IN THE LEAVE REGULATIONS LEFT HIS POSITION TO ENTER MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, AND WITHIN 120 DAYS AFTER HIS RELEASE FROM SUCH SERVICE WAS AGAIN EMPLOYED IN THE FEDERAL GOVERNMENT IN A POSITION WHICH WOULD AGAIN BRING HIM WITHIN THE DEFINITION OF "PERMANENT EMPLOYEE.' THE TWO TYPES OF CASES WHICH INDICATED NEED FOR SUCH A PROVISION WERE (1) EMPLOYEES WITH RESTORATION RIGHTS WHO DID NOT EXERCISE THOSE RIGHTS BUT ACCEPTED EMPLOYMENT IN A DIFFERENT AGENCY AFTER RELEASE FROM MILITARY SERVICE, AND (2) THE WAR SERVICE APPOINTEES (WHO DO NOT HAVE STATUTORY RESTORATION RIGHTS) WHO RETURNED TO FEDERAL SERVICE, EITHER IN THE SAME OR A DIFFERENT AGENCY.

THOSE AGENCIES WHICH HAVE EXPRESSED DOUBT AS TO THE MEANING OF THE REGULATION APPARENTLY BASE THEIR DOUBT ON A PORTION OF YOUR DECISION B 57081 OF JULY 13, 1946, WHICH REAFFIRMED DECISION B-57646 OF JUNE 12, 1946. IT APPEARS TO THE COMMISSION THAT THE DECISION OF JULY 13, 1946 DID NOT MAKE ANY RULING ON THE INTERPRETATION OR APPLICATION OF SECTION 4.11 (A) OF THE PRESENT LEAVE REGULATIONS, WHICH REGULATIONS HAD NOT YET BEEN GENERALLY DISTRIBUTED ON THAT DATE, AND WHICH, IN FACT, HAD PROBABLY NOT BEEN PUBLISHED AT ALL AT THE TIME ACTIVE CONSIDERATION WAS BEING GIVEN TO THE QUESTIONS ANSWERED IN THE DECISION OF 13. THE DECISION EVIDENTLY MERELY CONFIRMED THE DECISION OF JUNE 12, 1946 TO THE EFFECT THAT, SINCE A VETERAN WHO RETURNED TO THE FEDERAL SERVICE IN A DIFFERENT AGENCY COULD NOT BE REGARDED AS RESTORED UNDER THE SELECTIVE TRAINING AND SERVICE ACT, HE WOULD NOT BE ENTITLED TO THE BENEFITS OF THAT ACT, INCLUDING LEAVE RECREDIT.

IN THE CASES OF PERSONS WHO HAVE BEEN EMPLOYED IN THE COMMISSION AFTER MILITARY SERVICE, THE COMMISSION HAS ASSUMED THAT, TO BE ENTITLED TO RECREDIT OF LEAVE UNDER SECTION 4.11 (A) OF THE CURRENT LEAVE REGULATIONS:

"/1) THE EMPLOYEE NEED NOT BE ONE WHO MEETS THE REQUIREMENTS FOR STATUTORY RESTORATION UNDER THE SELECTIVE TRAINING AND SERVICE ACT, BUT MAY HAVE HAD ANY KIND OF APPOINTMENT THAT MEETS THE DEFINITION OF SECTION 1.1 (B) OF THE LEAVE REGULATIONS.

"/2) HIS REEMPLOYMENT ON RETURN FROM MILITARY, NAVAL, OR MERCHANT MARINE SERVICE NEED NOT BE AN EXERCISE OF MANDATORY RESTORATION RIGHTS, BUT MAY BE A NEW APPOINTMENT UNDER SECTION 2 OF TEMPORARY CIVIL SERVICE REGULATION VIII, OR REAPPOINTMENT OR REINSTATEMENT IN ANOTHER FEDERAL AGENCY THAN THE ONE, IF ANY, TO WHICH HIS RESTORATION RIGHTS APPLY.'

IT WILL BE APPRECIATED IF THE COMMISSION MAY BE ADVISED WHETHER ITS UNDERSTANDING OF THE EFFECT OF SECTION 4.11 (A) IS CORRECT; AND, IF NOT, WHAT IS ITS CORRECT INTERPRETATION.

AS IS INDICATED IN YOUR LETTER, THE DECISIONS OF JUNE 12, 1946, B 57646, 25 COMP. GEN. 852, AND JULY 13, 1946, B-57081, 26 COMP. GEN. 30, SO FAR AS HERE MATERIAL, WERE TO THE EFFECT THAT TO BE ENTITLED TO THE MANDATORY RIGHTS CONFERRED BY SECTION 8 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT, AS AMENDED (50 U.S.C., APPENDIX, 308), INCLUDING RESTORATION OF LEAVE CREDITS, THE FORMER EMPLOYEE MUST HAVE BEEN RESTORED TO HIS FORMER POSITION OR TO A POSITION OF "LIKE SENIORITY, STATUS, AND PAY.' THERE WAS NOT CONSIDERED IN SAID DECISIONS THE REVISION OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JULY 1, 1946.

YOU ARE ADVISED FURTHER THAT THE COMMISSION'S INTERPRETATION OF SECTION 4.11 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JULY 1, 1946, AS QUOTED IN YOUR SUBMISSION, APPEARS TO BE CORRECT.