B-67863, AUGUST 22, 1947, 27 COMP. GEN. 115

B-67863: Aug 22, 1947

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IT IS WITHIN ADMINISTRATIVE DISCRETION. REGARDLESS OF WHICH ACTION IS TAKEN. RIGHTS THE EMPLOYEE MAY HAVE WILL BE FOR DETERMINATION IN ACCORDANCE WITH SUCH LAWS AND APPLICABLE REGULATIONS AS MAY BE IN EFFECT AT THE TIME THE EMPLOYEE IS RELEASED FROM ACTIVE MILITARY SERVICE. 1947: REFERENCE IS MADE TO YOUR LETTER OF JULY 8. AS FOLLOWS: AN EMPLOYEE OF THE WEATHER BUREAU OF THE DEPARTMENT OF COMMERCE IS BEING COMMISSIONED IN THE ARMY. HIS LAST DAY OF ACTIVE SERVICE IN THE WEATHER BUREAU WAS JUNE 20. PROVISION IS MADE IN THE ACT OF DECEMBER 21. WHICH ACTS ARE INCORPORATED IN 5 U.S.C. 61A READING AS FOLLOWS: "61A. OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT.

B-67863, AUGUST 22, 1947, 27 COMP. GEN. 115

EMPLOYEES ENTERING MILITARY SERVICE - PAYMENTS FOR LEAVE; REEMPLOYMENT RIGHTS, ETC. THE ACT OF AUGUST 1, 1941, AS AMENDED, RESPECTING PAYMENT FOR THE ANNUAL LEAVE OF EMPLOYEES ENTERING UPON MILITARY DUTY, HAS NOT BEEN AFFECTED BY THE EXPIRATION OF MOST OF THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR OTHER FACTORS, SO THAT AN EMPLOYEE ENTERING UPON MILITARY DUTY AT THE PRESENT TIME MAY BE PAID A LUMP SUM FOR HIS ANNUAL LEAVE PURSUANT TO SAID 1941 ACT, AS AMENDED, AND IN ACCORDANCE WITH SECTION 1 OF THE ACT OF DECEMBER 21, 1944. IT IS WITHIN ADMINISTRATIVE DISCRETION, IN THE CASE OF EMPLOYEES ENTERING UPON MILITARY DUTY AT THE PRESENT TIME, EITHER TO PLACE THE EMPLOYEE ON FURLOUGH OR LEAVE WITHOUT PAY WHILE IN THE MILITARY SERVICE OR TO SEPARATE HIM FROM THE ROLLS; AND REGARDLESS OF WHICH ACTION IS TAKEN, ANY REEMPLOYMENT, ETC., RIGHTS THE EMPLOYEE MAY HAVE WILL BE FOR DETERMINATION IN ACCORDANCE WITH SUCH LAWS AND APPLICABLE REGULATIONS AS MAY BE IN EFFECT AT THE TIME THE EMPLOYEE IS RELEASED FROM ACTIVE MILITARY SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, AUGUST 22, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1947, AS FOLLOWS:

AN EMPLOYEE OF THE WEATHER BUREAU OF THE DEPARTMENT OF COMMERCE IS BEING COMMISSIONED IN THE ARMY. HIS LAST DAY OF ACTIVE SERVICE IN THE WEATHER BUREAU WAS JUNE 20, 1947. HE HAS REQUESTED THAT HE BE GRANTED MILITARY FURLOUGH EFFECTIVE WITH JUNE 23, 1947, THE FIRST DAY OF THE WORKWEEK FOLLOWING TERMINATION OF DUTY IN THE WEATHER BUREAU, AND THAT HE BE PAID A LUMP SUM FOR THE ACCUMULATED AND ACCRUED ANNUAL LEAVE REMAINING TO HIS CREDIT.

PROVISION IS MADE IN THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, FOR ELECTION BY AN EMPLOYEE TO BE PAID IN A LUMP SUM FOR HIS LEAVE UNDER THE ACTS OF AUGUST 1, 1941, 55 STAT. 616, AND APRIL 7, 1942, 56 STAT. 200, WHICH ACTS ARE INCORPORATED IN 5 U.S.C. 61A READING AS FOLLOWS:

"61A. PAY OR CREDIT FOR ACCUMULATED LEAVE OF EMPLOYEES ORDERED TO ACTIVE MILITARY OR NAVAL DUTY.

"EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. ( AUG. 1, 1941, CH. 348, SEC. 1, 55 STAT. 616, AS AMENDED APR. 7, 1942, CH. 220, 56 STAT. 200.)"

EMPLOYEES OF THE DEPARTMENT WERE PLACED ON MILITARY FURLOUGH WHEN CALLED TO ACTIVE SERVICE UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 885, AND PAID FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE IN ACCORDANCE WITH THE PROVISIONS OF THE ACTS OF AUGUST 1, 1941, APRIL 7, 1942, AND DECEMBER 21, 1944. THE ACTS OF AUGUST 1, 1941, AND APRIL 7, 1942, WHILE APPARENTLY NOT AMENDMENTS TO THE ACT OF SEPTEMBER 16, 1940, WERE ENACTED PRINCIPALLY FOR THE BENEFIT OF EMPLOYEES AFFECTED BY THAT ACT. HOWEVER, SINCE THE ACT OF SEPTEMBER 16, 1940, HAS LAPSED, YOUR DECISION IS REQUESTED AS TO THE AUTHORITY OF A GOVERNMENT DEPARTMENT TO PLACE ON MILITARY FURLOUGH AN EMPLOYEE WHO NOW VOLUNTEERS FOR MILITARY SERVICE AND TO PAY HIM A LUMP SUM FOR HIS ACCUMULATED AND ACCRUED ANNUAL LEAVE WHEN SO PLACED ON MILITARY FURLOUGH.

AS OTHER CASES ARE EXPECTED TO OCCUR IN THE NEAR FUTURE, YOUR EARLY DECISION WOULD BE HELPFUL TO THE DEPARTMENT IN EFFECTING PROMPT SETTLEMENT WITH THE PERSONNEL INVOLVED.

WHILE THE LARGEST GROUP OF EMPLOYEES BENEFITED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AND THE ACT OF APRIL 7, 1942, 56 STAT. 200, 5 U.S.C. 61A, QUOTED IN YOUR LETTER, SUPRA, CONSISTS OF EMPLOYEES INDUCTED INTO SERVICE IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 885, AS AMENDED, THE SAID ACTS ARE BROAD ENOUGH TO COVER ALL EMPLOYEES ENTERING ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND AND NAVAL FORCES WHETHER THROUGH OPERATION OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR THROUGH OTHER PROVISIONS OF LAW. EXAMINATION OF THE STATUTES CITED, AS WELL AS RELATED LAWS, FAILS TO DISCLOSE ANY REASON FOR CONCLUDING THAT THE PROVISIONS OF 5 U.S.C. 61A NO LONGER ARE FOR APPLICATION MERELY BECAUSE OF THE EXPIRATION OF MOST OF THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, OR FOR ANY OTHER REASON. AS TO THOSE PORTIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, WHICH HAVE NOT EXPIRED AND WHICH STILL ARE IN EFFECT, SEE SECTION 7 OF PUBLIC LAW 473, APPROVED JUNE 29, 1946, 60 STAT. 342. ACCORDINGLY, AND SINCE THE EMPLOYEE HERE INVOLVED HAS REQUESTED PAYMENT OF A LUMP SUM FOR ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE, PAYMENT MAY BE MADE TO HIM PURSUANT TO THE ACT OF AUGUST 1, 1941, AS AMENDED, SUPRA, AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 1 OF THE SO-CALLED,"LUMP SUM LEAVE LAW," PUBLIC LAW 525, APPROVED DECEMBER 21, 1944, 58 STAT. 845.

WHETHER A PERSON ENTERING ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES SHALL BE PLACED ON FURLOUGH OR LEAVE WITHOUT PAY OR SEPARATED FROM THE ROLLS HAS BEEN HELD TO BE PRIMARILY A MATTER FOR ADMINISTRATIVE DETERMINATION. SEE 20 COMP. GEN. 158, 167, 847; 21 ID. 403. THEREFORE, IT IS CONCLUDED THAT IT IS WITHIN YOUR DISCRETION TO PLACE THE EMPLOYEE ON FURLOUGH WHILE IN THE MILITARY SERVICE, PROVIDED, OF COURSE, THAT PERSONNEL ACTION INCONSISTENT WITH SUCH A PROCEDURE ALREADY HAS NOT BEEN TAKEN. SEE IN THAT CONNECTION 21 COMP. GEN. 403, AT PAGE 406. REGARDLESS OF WHETHER THE EMPLOYEE IS PLACED ON FURLOUGH OR LEAVE WITHOUT PAY OR SEPARATED FROM THE ROLLS, ANY RIGHTS HE MAY HAVE AS TO REEMPLOYMENT, ETC., WILL BE FOR DETERMINING IN ACCORDANCE WITH SUCH LAWS AND APPLICABLE REGULATIONS AS MAY BE IN EFFECT AT THE TIME THE EMPLOYEE IS RELEASED FROM ACTIVE MILITARY SERVICE.