B-64821, APRIL 14, 1947, 26 COMP. GEN. 782

B-64821: Apr 14, 1947

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VOLUNTARILY RENDERED CIVILIAN SERVICE DURING SUCH TERMINAL LEAVE OF SUCH A CHARACTER AS WOULD HAVE ENTITLED THEM. AS FOLLOWS: REFERENCE IS MADE TO PUBLIC LAW 226. BEFORE EXPIRATION OF THEIR TERMINAL LEAVE HAVE PERFORMED. THERE NOW ARISES THE QUESTION AS TO WHETHER SICK AND ANNUAL LEAVE MAY ACCRUE IN THE CIVILIAN POSITION TO MEMBERS OF THE MILITARY OR NAVAL SERVICES DURING THE PERIOD THEY ARE ON TERMINAL LEAVE FROM THE ARMED FORCES AND PRIOR TO THE ENACTMENT OF PUBLIC LAW 226. HE WAS PAID BY DIRECT SETTLEMENT OF THE GENERAL ACCOUNTING OFFICE. PROMOTION AND REASSIGNMENT" WAS TAKEN NOVEMBER 20. LEAVE WAS CREDITED AS ACCRUING EFFECTIVE THE DATE OF HIS REASSIGNMENT TO HIS CIVILIAN POSITION.

B-64821, APRIL 14, 1947, 26 COMP. GEN. 782

LEAVES OF ABSENCE - ACCRUAL - DURING PERIODS OF VOLUNTARY CIVILIAN SERVICE WHILE ON MILITARY TERMINAL LEAVE PERSONS WHO, PRIOR TO THE EFFECTIVE DATE OF THE ACT OF NOVEMBER 21, 1945, PERMITTING THE CONCURRENT RECEIPT OF CIVILIAN COMPENSATION AND MILITARY PAY AND ALLOWANCES DURING PERIOD OF MILITARY TERMINAL LEAVE, VOLUNTARILY RENDERED CIVILIAN SERVICE DURING SUCH TERMINAL LEAVE OF SUCH A CHARACTER AS WOULD HAVE ENTITLED THEM, IF REGULARLY ASSIGNED TO CIVILIAN POSITIONS, TO THE LEAVE BENEFITS GRANTED FEDERAL EMPLOYEES GENERALLY BY THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, MAY BE CONSIDERED AS HAVING EARNED OR ACCRUED LEAVE IN ACCORDANCE WITH THE PROVISIONS OF THE LEAVE ACTS DURING SUCH CIVILIAN SERVICE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' APRIL 14, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MARCH 20, 1947, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 226, 79TH CONGRESS ENTITLED " AN ACT TO PROVIDE FOR ADJUSTMENT OF COMPENSATION OF CERTAIN MEMBERS OR FORMER MEMBERS OF THE ARMED FORCES OF THE UNITED STATES WHO, BEFORE EXPIRATION OF THEIR TERMINAL LEAVE HAVE PERFORMED, OR SHALL HEREAFTER PERFORM CIVILIAN SERVICES FOR THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS OR THE DISTRICT OF COLUMBIA, AND FOR OTHER PURPOSES.'

THERE NOW ARISES THE QUESTION AS TO WHETHER SICK AND ANNUAL LEAVE MAY ACCRUE IN THE CIVILIAN POSITION TO MEMBERS OF THE MILITARY OR NAVAL SERVICES DURING THE PERIOD THEY ARE ON TERMINAL LEAVE FROM THE ARMED FORCES AND PRIOR TO THE ENACTMENT OF PUBLIC LAW 226, 79TH CONGRESS.

MR. HENRY W. LONGFELLOW, WHILE A MEMBER OF THE MILITARY SERVICE ON TERMINAL LEAVE FROM OCTOBER 15 THOUGH DECEMBER 21, 1945, PERFORMED SERVICE IN THE VETERANS ADMINISTRATION ON A GRATUITOUS BASIS FROM OCTOBER 15 TO NOVEMBER 21, 1945. UNDER PUBLIC LAW 226, 79TH CONGRESS, HERETOFORE MENTIONED, HE WAS PAID BY DIRECT SETTLEMENT OF THE GENERAL ACCOUNTING OFFICE, FOR THE SERVICE IN THE VETERANS ADMINISTRATION FROM OCTOBER 15 TO NOVEMBER 21, 1945, THE DATE OF ENACTMENT OF THE LAW. PERSONNEL ACTION EFFECTING MR. LONGFELLOW'S " RETURN FROM MILITARY FURLOUGH, PROMOTION AND REASSIGNMENT" WAS TAKEN NOVEMBER 20, 1945 EFFECTIVE ON THAT DATE, AND LEAVE WAS CREDITED AS ACCRUING EFFECTIVE THE DATE OF HIS REASSIGNMENT TO HIS CIVILIAN POSITION.

THERE IS ENCLOSED COPY OF MEMORANDUM OPINION OF THE SOLICITOR OF THE VETERANS ADMINISTRATION TO WHOM THE QUESTION WAS PRESENTED REGARDING THE EFFECTIVE DATE ON WHICH LEAVE MAY BE CONSIDERED TO ACCRUE TO THE EMPLOYEE.

I SHOULD APPRECIATE YOUR DECISION AS TO WHETHER ANNUAL AND SICK LEAVE IS EARNED BY A MEMBER OF THE MILITARY OR NAVAL SERVICES WHILE ON TERMINAL LEAVE FROM THE ARMED FORCES (A) PRIOR TO THE EFFECTIVE DATE OF ASSIGNMENT OR REASSIGNMENT TO A CIVILIAN POSITION; (B) PRIOR TO NOVEMBER 21, 1945, THE DATE OF ENACTMENT OF PUBLIC LAW 226, 79TH CONGRESS.

SECTION 2 (C) OF THE ACT OF AUGUST 1, 1941, AS ADDED THERETO BY PUBLIC LAW 226, APPROVED NOVEMBER 21, 1945, 59 STAT. 585, 5 U.S.C. 61A 1C, 1940 ED., SUPP. V, PROVIDES:

ANY SUCH PERSON WHO, WHILE ON TERMINAL LEAVE FROM THE ARMED FORCES, PREMED OR SHALL ON OR AFTER NOVEMBER 21, 1945 PERFORM SERVICES FOR THE GOVERNMENT OF THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE GOVERNMENT OF THE UNITED STATES, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), FOR WHICH HE WOULD HAVE BEEN ENTITLED TO BE PAID HAD HE REGULARLY BECOME EMPLOYED OR REEMPLOYED IN A CIVILIAN POSITION PRIOR TO PERFORMING SUCH SERVICES, AND HAD HE NOT BEEN RECEIVING PAY AND ALLOWANCES FROM THE ARMED FORCES FOR THE PERIOD DURING WHICH SUCH SERVICES WERE PERFORMED, SHALL, IF HE HAS NOT OTHERWISE BEEN COMPENSATED FOR SUCH SERVICES, BE ENTITLED, UPON APPLICATION THEREFOR FILED WITH THE GENERAL ACCOUNTING OFFICE, OR, IN THE CASE OF A PERSON PERFORMING SUCH SERVICES FOR A TERRITORY OR POSSESSION, FILED WITH THE APPROPRIATE AGENCY OR OFFICER OF THE GOVERNMENT OF SUCH TERRITORY OR POSSESSION TO BE PAID A LUMP SUM EQUAL IN AMOUNT TO THE COMPENSATION HE WOULD HAVE RECEIVED FOR SUCH SERVICES HAD HE BEEN REGULARLY EMPLOYED OR REEMPLOYED AND HAD HE NOT BEEN RECEIVING PAY AND ALLOWANCES FROM THE ARMED FORCES.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF THE SAID AMENDATORY ACT OF NOVEMBER 21, 1945, DISCLOSES THAT IT WAS THE PURPOSE THEREOF TO CONFER UPON PERSONS WITHIN THE PURVIEW OF THAT ACT WHO THERETOFORE OR THEREAFTER PERFORMED CIVILIAN SERVICE UNDER THE GOVERNMENT WHILE ON TERMINAL LEAVE FROM THE ARMED FORCES ALL THE RIGHTS, BENEFITS, AND PRIVILEGES TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THERE BEEN NO LEGAL IMPEDIMENT TO SUCH SERVICE AT THE TIME IT WAS RENDERED. HENCE, IT REASONABLY APPEARS THAT WHERE THE CHARACTER OF THE CIVILIAN SERVICE RENDERED WHILE ON TERMINAL LEAVE WAS SUCH AS WOULD HAVE ENTITLED THE PERSON TO THE LEAVE BENEFITS GRANTED TO FEDERAL EMPLOYEES GENERALLY UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, SUCH INDIVIDUALS, ON AND AFTER THE DATE OF ENACTMENT OF THE SAID 1945 STATUTE, PROPERLY MAY BE CONSIDERED AS HAVING EARNED OR ACCRUED LEAVE IN ACCORDANCE WITH THE PROVISIONS OF THE 1936 LEAVE STATUTES DURING THE PERIOD OF CIVILIAN SERVICE DURING TERMINAL LEAVE FROM THE ARMED FORCES. I AM PLEASED TO NOTE THAT THE CONCLUSION HEREIN REACHED ACCORDS WITH THE VIEW EXPRESSED IN THE MEMORANDUM OPINION OF THE SOLICITOR OF THE VETERANS' ADMINISTRATION, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER.

THE QUESTIONS PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR SUBMISSION ARE ANSWERED IN THE AFFIRMATIVE--- ASSUMING, OF COURSE, THAT SAID QUESTIONS RELATE ONLY TO PERIODS OF SERVICE ACTUALLY RENDERED IN THE CIVILIAN POSITION.