B-7166, DECEMBER 5, 1939, 19 COMP. GEN. 552

B-7166, DECEMBER 5, 1939, 19 COMP. GEN. 552

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - CIVILIAN EMPLOYEE'S FURLOUGH WITHOUT PAY FOR DUTY WITH NAVAL RESERVE - ACCRUED LEAVE FORFEITURE A CIVILIAN EMPLOYEE OF THE GOVERNMENT WHO WAS ORDERED TO ACTIVE DUTY AS A MEMBER OF THE NAVAL RESERVE WITH HIS CONSENT IN FURTHERANCE OF THE NATIONAL DEFENSE PROGRAM PROVIDED FOR BY EXECUTIVE ORDER NO. 8245 OF SEPTEMBER 18, 1939, AND WHO NECESSARILY APPLIED FOR AND WAS GRANTED LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION IN ORDER TO ACCEPT THE ASSIGNMENT TO ACTIVE DUTY, FORFEITED HIS UNUSED ACCUMULATED AND ACCRUED ANNUAL LEAVE BY REASON OF THE LEAVE WITHOUT PAY SINCE SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES THAT LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE IS EXHAUSTED. COMP. GEN. 445, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, DECEMBER 5, 1939:

I HAVE YOUR LETTER OF NOVEMBER 15, 1939, AS FOLLOWS:

AN EMPLOYEE OF THE PATENT OFFICE OF THIS DEPARTMENT WHO HOLDS A COMMISSION AS ENSIGN IN THE ORGANIZED NAVAL RESERVE HAS BEEN SUMMONED BY THE SECRETARY OF THE NAVY TO PERFORMANCE OF ACTIVE DUTY WITH THE NAVY COMMENCING ON OR ABOUT NOVEMBER 1, 1939. THE POSITION OCCUPIED BY THIS EMPLOYEE IN THE PATENT OFFICE CARRIES COMPENSATION OF $2,100 PER ANNUM. WHILE ON ACTIVE DUTY WITH THE NAVY HE WILL BE PAID APPROXIMATELY $137.50 A MONTH AS BASE PAY, EXCLUSIVE OF POSSIBLE ALLOWANCES FOR DEPENDENTS, AND DURING THAT PERIOD THE EMPLOYEE WILL BE RETAINED ON THE ROLLS OF THE PATENT OFFICE IN A WITHOUT-PAY STATUS.

ON NOVEMBER 1, 1939, THERE WAS CREDITED TO THE LEAVE ACCOUNT OF THE EMPLOYEE A TOTAL OF 16 DAYS AND 45 MINUTES OF ACCRUED UNUSED ANNUAL LEAVE AND 27 1/2 DAYS OF ACCRUED UNUSED SICK LEAVE. SINCE NOVEMBER 1 THE EMPLOYEE HAS BEEN ON LEAVE WITHOUT PAY.

SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES THAT LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE IS EXHAUSTED, EXCEPT IN THE CASE OF AN EMPLOYEE INJURED IN LINE OF DUTY. BECAUSE OF THIS PROVISION IT HAS BEEN HELD IN AT LEAST TWO DECISIONS OF YOUR OFFICE (A-96323, JULY 26, 1938, 18 COMP. GEN. 94; AND B- 1113, FEBRUARY 11, 1939, 18 COMP. GEN. 653), THAT AN EMPLOYEE PLACED ON FURLOUGH WHILE PERFORMING ACTIVE SERVICE WITH THE MILITARY OR NAVAL FORCES MUST FORFEIT ANNUAL LEAVE UNUSED PRIOR TO THE COMMENCEMENT OF FURLOUGH. IT DOES NOT APPEAR PROBABLE THAT SUCH A CONSEQUENCE WAS CONTEMPLATED BY THE PRESIDENT IN FRAMING THE LEAVE REGULATIONS. SUPPORT IS LENT TO THIS BELIEF BY THE CIRCUMSTANCE THAT ACCRUED UNUSED SICK LEAVE IS NOT AFFECTED BY THE FURLOUGH, AND REMAINS TO THE CREDIT OF THE EMPLOYEE UPON TERMINATION OF FURLOUGH. NO REASONABLE BASIS IS APPARENT FOR A DISTINCTION BETWEEN ANNUAL AND SICK LEAVE IN SITUATIONS SIMILAR TO THAT INVOLVED IN THE PRESENT CASE OTHER THAN THE OMISSION FROM THE SICK LEAVE REGULATIONS OF A PROVISION SIMILAR TO SECTION 9 OF THE ANNUAL LEAVE REGULATIONS.

THE SUMMONS TO DUTY OF THIS EMPLOYEE WAS IN FURTHERANCE OF THE NATIONAL DEFENSE PROGRAM PROVIDED FOR BY EXECUTIVE ORDER NO. 8245 OF SEPTEMBER 8, 1939. SECTION 4 OF THE ORDER IS QUOTED FOLLOWING:

"THE SECRETARY OF THE NAVY IS ALSO AUTHORIZED TO ORDER TO ACTIVE DUTY SUCH OFFICERS AND MEN OF THE NAVAL RESERVE AND MARINE CORPS RESERVE OTHER THAN TRANSFERRED MEMBERS OF THE FLEET RESERVE AND THE FLEET MARINE CORPS RESERVE, INCLUDING AVIATION CADETS, AS HE MAY DEEM NECESSARY AND AS AGREE VOLUNTARILY TO SERVE.'

IN THE OPINION OF THIS DEPARTMENT, TO REFUSE TO RESTORE CREDIT TO THE EMPLOYEE OF UNUSED ACCRUED ANNUAL LEAVE UPON TERMINATION OF FURLOUGH, WOULD BE TO READ INTO SECTION 9 OF THE ANNUAL LEAVE REGULATIONS A CONSTRUCTION WHOLLY INCONSISTENT WITH THE INTENTION AND POLICY OF THE PRESIDENT AS EXPRESSED BOTH IN THOSE REGULATIONS AND IN THE EXECUTIVE ORDER NO. 8245 OF SEPTEMBER 8, 1939, REFERRED TO, SUPRA.

THE DECISION OF YOUR OFFICE IS RESPECTFULLY REQUESTED AS TO WHETHER THIS DEPARTMENT MAY, UPON THE RETURN TO DUTY OF THE EMPLOYEE CONCERNED AFTER TERMINATION OF WITHOUT PAY STATUS, GRANT TO HIM SUCH ACCUMULATED AND ACCRUED UNUSED ANNUAL LEAVE AS REMAINED TO HIS CREDIT ON NOVEMBER 1, 1939.

SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, ISSUED BY THE PRESIDENT UNDER AUTHORITY OF SECTION 7 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, PROVIDES AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT EMPLOYEES INJURED IN LINE OF DUTY MAY TAKE LEAVE WITHOUT PAY, IF DESIRED, COVERING THEIR ABSENCE DUE TO SUCH INJURY INSTEAD OF COVERING SUCH TIME BY ANNUAL LEAVE; AND DURING ABSENCE BECAUSE OF SUCH INJURY AND WHILE BEING PAID BY THE EMPLOYEES' COMPENSATION COMMISSION, EMPLOYEES SHALL CONTINUE TO EARN LEAVE, WHICH SHALL, HOWEVER, BE GRANTED ONLY IN THE EVENT OF THEIR RETURN TO ACTUAL DUTY.

IN DECISION OF FEBRUARY 11, 1939, 18 COMP. GEN. 653, 654, CITED IN YOUR LETTER, INVOLVING THE CASE OF A CIVILIAN EMPLOYEE OF THE GOVERNMENT ORDERED WITH HIS CONSENT TO ACTIVE DUTY AS AN ARMY RESERVE OFFICER FOR THE PURPOSE OF RECEIVING INSTRUCTION AT AN OFFICERS' TRAINING SCHOOL, IT WAS STATED AS FOLLOWS:

UNDER THE PROVISIONS OF SECTION 37A OF THE NATIONAL DEFENSE ACT, AS AMENDED BY THE ACT OF JUNE 4, 1920, 41 STAT. 776, THE ORDERING OF RESERVE OFFICERS TO ACTIVE MILITARY DUTY TO RECEIVE INSTRUCTION IN OFFICERS' TRAINING SCHOOLS IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR MAY NOT BE MADE WITHOUT HIS CONSENT, EXCEPT IN TIME OF NATIONAL EMERGENCY EXPRESSLY DECLARED BY CONGRESS. SUCH ASSIGNMENT TO ACTIVE MILITARY DUTY FOR TRAINING IS ENTIRELY VOLUNTARY ON THE PART OF THE RESERVE OFFICER,WHO IS PAID THE ACTIVE SERVICE PAY AND ALLOWANCES OF HIS RATING DURING THE PERIOD OF THE ASSIGNMENT. AS TO THIS, THERE IS NO DIFFERENCE BETWEEN A RESERVE OFFICER ASSIGNED (EXCEPT IN TIME OF NATIONAL EMERGENCY) TO ACTIVE DUTY TO RECEIVE INSTRUCTION AT AN OFFICERS' TRAINING SCHOOL IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR AND A RESERVE OFFICER ASSIGNED TO ACTIVE DUTY WITH THE CIVILIAN CONSERVATION CORPS. BOTH ASSIGNMENTS ARE AUTHORIZED UNDER SECTION 37A OF THE NATIONAL DEFENSE ACT. IN EITHER CASE, IF THE RESERVE OFFICER IS A CIVILIAN EMPLOYEE OF THE GOVERNMENT HE MUST APPLY FOR LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION PURSUANT TO THE REGULATIONS PROMULGATED BY THE PRESIDENT, IN ORDER TO ACCEPT THE ASSIGNMENT TO ACTIVE MILITARY DUTY WITH HIS CONSENT. SECTION 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS SPECIFICALLY PROHIBITS THE GRANTING OF LEAVE WITHOUT PAY UNTIL ALL ACCUMULATED AND CURRENT ANNUAL LEAVE HAVE BEEN EXHAUSTED, WITH THE EXCEPTION STATED IN THE REGULATIONS NOT HERE APPLICABLE. IF THE ADMINISTRATIVE OFFICE ALLOWS THE LEAVE WITHOUT PAY TO PERMIT THE EMPLOYEE TO ACCEPT ASSIGNMENT AS A RESERVE OFFICER TO ACTIVE MILITARY DUTY IN EXCESS OF 15 DAYS IN ANY CALENDAR YEAR, IT FOLLOWS THAT THE UNUSED ANNUAL LEAVE MUST BE FORFEITED UNLESS USED PRIOR TO REPORTING FOR MILITARY DUTY. THESE ARE THE CONDITIONS FIXED BY THE LEAVE REGULATIONS OF THE PRESIDENT, TO WHICH NO EXCEPTION IS AUTHORIZED.

SECTION 4 OF EXECUTIVE ORDER NO. 8245, DATED SEPTEMBER 8, 1939, QUOTED IN YOUR LETTER, SPECIFICALLY LIMITS THE MEMBERS OF THE NAVAL AND MARINE CORPS RESERVE WHOM THE SECRETARY OF THE NAVY MAY ORDER TO ACTIVE DUTY DURING THE PERIOD OF THE PRESENT NATIONAL EMERGENCY DECLARED BY THE PRESIDENT TO THOSE WHO "AGREE VOLUNTARILY TO SERVE.' HENCE, IT WAS ONLY WITH HIS CONSENT THAT THE EMPLOYEE MENTIONED IN YOUR LETTER WAS ORDERED BY THE SECRETARY OF THE NAVY TO ACTIVE DUTY AS A MEMBER OF THE NAVAL RESERVE. THE EMPLOYEE WAS REQUIRED TO APPLY FOR LEAVE WITHOUT PAY FROM HIS CIVILIAN POSITION IN ORDER TO ACCEPT THE ASSIGNMENT TO ACTIVE DUTY WITH THE NAVY. SECTION 9 OF THE ANNUAL LEAVE REGULATIONS PROVIDES THAT LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED LEAVE AND CURRENT ACCRUED ANNUAL LEAVE IS EXHAUSTED AND THE ONLY EXCEPTION MADE IN THE REGULATION TO THAT REQUIREMENT IS IN THE CASE OF AN EMPLOYEE "INJURED IN LINE OF DUTY.' SUCH EXCEPTION WAS NOT APPLICABLE TO THE EMPLOYEE IN THIS CASE, AND, UNDER THE PLAIN TERMS OF THE CITED REGULATIONS, IT IS NOT PERCEIVED WHY THE EMPLOYEE'S APPLICATION FOR LEAVE WITHOUT PAY WAS GRANTED BEFORE HE HAD EXHAUSTED "ALL ACCUMULATED LEAVE AND CURRENT ACCRUED ANNUAL LEAVE"--- UNLESS, OF COURSE, IN ORDER TO PLACE HIMSELF IN A STATUS TO ACCEPT ASSIGNMENT TO ACTIVE DUTY WITH THE NAVY AT AN EARLIER DATE, THE EMPLOYEE DID NOT DESIRE TO TAKE HIS ANNUAL LEAVE, IN WHICH EVENT IT MUST BE ASSUMED HE ELECTED TO FORFEIT SAME.

I HAVE GIVEN CAREFUL CONSIDERATION TO THE ARGUMENTS ADVANCED RELATIVE TO YOUR BELIEF THAT NO FORFEITURE OF ACCRUED ANNUAL LEAVE IN A SITUATION SUCH AS HERE PRESENTED WAS CONTEMPLATED BY THE PRESIDENT IN FRAMING THE LEAVE REGULATIONS, BUT I AM UNABLE TO CONCUR THEREIN. THE PROVISIONS OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS HEREINBEFORE QUOTED ARE CLEAR AND UNAMBIGUOUS AND ADMIT OF NO CONSTRUCTION. WHETHER THERE EXISTS OR DOES NOT EXIST A REASONABLE BASIS FOR A DISTINCTION BETWEEN ANNUAL AND SICK LEAVE IN SITUATIONS SIMILAR TO THAT INVOLVED HERE IS NOT FOR THE CONSIDERATION OF THIS OFFICE. THE FACT REMAINS THAT THE SEPARATE ANNUAL LEAVE AND SICK LEAVE REGULATIONS DO MAKE SUCH A DISTINCTION, AND THE REGULATIONS--- WHICH ARE CLEAR AND UNAMBIGUOUS, ADMITTING OF NO CONSTRUCTION--- MUST BE APPLIED AS THEY ARE WRITTEN. THEY MAY NOT BE ENLARGED OR ABRIDGED BY CONSTRUCTION. IF THE CITED ANNUAL LEAVE REGULATION WAS NOT INTENDED TO APPLY IN A SITUATION SUCH AS HERE PRESENTED, THE MATTER IS ONE FOR ADJUSTMENT THROUGH THE ISSUANCE OF AN AMENDATORY REGULATION BY THE PRESIDENT. THERE IS CITED FOR COMPARISON DECISION OF OCTOBER 18, 1939, B-6406, 19 COMP. GEN. 445, IN WHICH THE POSTMASTER GENERAL WAS ADVISED THAT, UNDER THE TERMS OF THE LEAVE REGULATIONS APPLICABLE TO THE POSTAL EMPLOYEES--- WHICH REGULATIONS DO NOT PRECLUDE THE GRANTING OF LEAVE WITHOUT PAY BEFORE ANNUAL LEAVE HAS BEEN EXHAUSTED--- "THE UNUSED LEAVE EARNED BY EMPLOYEES IN THE CUSTODIAL SERVICE PRIOR TO ENTERING THE NAVAL SERVICE AS RESERVISTS MAY REMAIN TO THEIR CREDIT DURING THEIR INDEFINITE ABSENCE OR FURLOUGH WITHOUT PAY.'

ACCORDINGLY, I HAVE NO ALTERNATIVE UNDER THE PLAIN TERMS OF SECTION 9 OF THE ANNUAL LEAVE REGULATIONS PRESCRIBED BY THE PRESIDENT BUT TO ANSWER IN THE NEGATIVE THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.