B-72382, JANUARY 12, 1948, 27 COMP. GEN. 373

B-72382: Jan 12, 1948

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IS HIS ACCUMULATED LEAVE AS OF DECEMBER 31. IS FOR CHARGING TO THE BALANCE OF THE LEAVE EARNED IN 1947 SUBSEQUENT TO JULY 24 BEFORE REDUCTION IS REQUIRED OF THE LEAVE ACCUMULATION OF DECEMBER 31. REFERENCE IS MADE IN YOUR LETTER PARTICULARLY TO CERTAIN INEQUITIES SAID TO EXIST UNDER THE APPLICATION OF THE REFERRED-TO DECISION IN THOSE CASES WHERE EMPLOYEES TOOK ANNUAL LEAVE PRIOR TO JULY 25. IT IS SUGGESTED THAT CERTAIN STATEMENTS CONTAINED IN THAT DECISION GIVE RISE TO CONFLICTING INTERPRETATIONS AS TO ITS APPLICATION SO THAT IT IS NOT CLEAR WHETHER SUCH SEEMING INEQUITIES WERE INTENDED OR WHETHER THE EFFECT OF THE DECISION IS SUCH THAT. REGARDLESS OF THE TIME WHEN ANNUAL LEAVE WAS TAKEN DURING THE CALENDAR YEAR 1947.

B-72382, JANUARY 12, 1948, 27 COMP. GEN. 373

LEAVES OF ABSENCE - ANNUAL - MAXIMUM ACCUMULATION LIMITATION THE ACCUMULATED ANNUAL LEAVE CREDIT OF AN EMPLOYEE AS OF JULY 24, 1947, THE LAST DAY UPON WHICH ANNUAL LEAVE COULD BE ACCUMULATED IN EXCESS OF THE 60-DAY MAXIMUM REESTABLISHED BY THE REPEALING PROVISIONS OF THE ACT OF JULY 25, 1947, IS HIS ACCUMULATED LEAVE AS OF DECEMBER 31, 1946, PLUS LEAVE EARNED AND UNUSED THROUGH JULY 24, 1947; AND ANY LEAVE TAKEN IN EXCESS OF THE AMOUNT EARNED AS OF JULY 24, 1947, IS FOR CHARGING TO THE BALANCE OF THE LEAVE EARNED IN 1947 SUBSEQUENT TO JULY 24 BEFORE REDUCTION IS REQUIRED OF THE LEAVE ACCUMULATION OF DECEMBER 31, 1946. 27 COMP. GEN. 120, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE ACTING ADMINISTRATOR, WAR ASSETS ADMINISTRATION, JANUARY 12, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 9, 1947, FILE REFERENCE, AG, RECEIVED IN THIS OFFICE DECEMBER 30, 1947, REQUESTING, IN EFFECT, A CLARIFICATION OF OFFICE DECISION OF AUGUST 25, 1947, B 68709, 27 COMP. GEN. 120, RESPECTING THE MAXIMUM LEAVE ACCUMULATION LIMITATION NOW IN EFFECT BY VIRTUE OF THE REPEAL OF THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052--- WHICH INCREASED THE ANNUAL LEAVE ACCUMULATION FROM SIXTY TO NINETY DAYS "DURING THE NATIONAL EMERGENCY"- - BY SECTION 3 OF THE ACT OF JULY 25, 1947, 61 STAT. 451.

REFERENCE IS MADE IN YOUR LETTER PARTICULARLY TO CERTAIN INEQUITIES SAID TO EXIST UNDER THE APPLICATION OF THE REFERRED-TO DECISION IN THOSE CASES WHERE EMPLOYEES TOOK ANNUAL LEAVE PRIOR TO JULY 25, 1947, AS CONTRASTED WITH THOSE IN WHICH EMPLOYEES TOOK NO ANNUAL LEAVE PRIOR TO THAT DATE. ALSO, IT IS SUGGESTED THAT CERTAIN STATEMENTS CONTAINED IN THAT DECISION GIVE RISE TO CONFLICTING INTERPRETATIONS AS TO ITS APPLICATION SO THAT IT IS NOT CLEAR WHETHER SUCH SEEMING INEQUITIES WERE INTENDED OR WHETHER THE EFFECT OF THE DECISION IS SUCH THAT, REGARDLESS OF THE TIME WHEN ANNUAL LEAVE WAS TAKEN DURING THE CALENDAR YEAR 1947--- WHETHER PRIOR OR SUBSEQUENT TO JULY 25--- THE MAXIMUM ANNUAL LEAVE CARRY-OVER AT THE END OF THAT CALENDAR YEAR IS TO BE THE SAME.

AS POINTED OUT IN THE DECISION OF AUGUST 25, 1947, SUPRA, THE EFFECT OF THE REPEAL OF THE 90-DAY MAXIMUM ANNUAL LEAVE ACCUMULATION PROVISION IN THE ACT OF DECEMBER 17, 1942, WAS TO CONSTITUTE JULY 24, 1947, AS THE LAST DAY UPON WHICH ANNUAL LEAVE COULD BE ACCUMULATED IN EXCESS OF SIXTY DAYS. WHILE THE TERM,"ACCUMULATED" LEAVE, LONG HAS BEEN VIEWED AS THAT AMOUNT OF UNUSED LEAVE TO WHICH AN EMPLOYEE IS ENTITLED AT THE END OF A CALENDAR YEAR, YET IN DECISION OF OCTOBER 10, 1945, 25 COMP. GEN. 341--- QUOTED IN PART IN THE SAID DECISION OF AUGUST 25, 1947--- IT WAS STATED THAT, FOR THE PURPOSES OF COMPUTING THE LEAVE ACCUMULATION DURING THE EMERGENCY, ANNUAL LEAVE WHICH HAD ACCRUED UP TO THE DATE OF THE TERMINATION OF THE EMERGENCY AND WHICH HAD REMAINED UNUSED TO THE END OF THE YEAR IN WHICH THE EMERGENCY IS DECLARED TERMINATED, WOULD BE CONSIDERED AS "ACCUMULATED" LEAVE. HENCE, IN DETERMINING THE "ACCUMULATED" LEAVE AS OF JULY 24, 1947, THERE ARE FOR CONSIDERATION (1), THE ACCUMULATED LEAVE AS OF DECEMBER 31, 1946, AND (2) THE ACCRUED LEAVE FOR THE PERIOD JANUARY 1, 1947, THROUGH JULY 24, 1947.

THE MAJOR DIFFICULTY WHICH YOU APPEAR TO ENCOUNTER IN DETERMINING EITHER OR BOTH OF THE ABOVE-MENTIONED ELEMENTS APPARENTLY ARISES BECAUSE OF THE DIFFERENT METHODS ADMINISTRATIVELY ADOPTED FOR THE CREDITING OF ANNUAL LEAVE. SECTION 30.201 OF THE CURRENT LEAVE REGULATIONS AUTHORIZES THE CREDITING OF 26 DAYS' ANNUAL LEAVE AS OF JANUARY 1, OR THE CREDITING OF LEAVE UPON THE BASIS OF 1 DAY PER BIWEEKLY PAY PERIOD. SO FAR AS CONCERNS THE DETERMINATION AS OF JULY 24, 1947, OF THE ACCUMULATED LEAVE CREDIT ON DECEMBER 31, 1946, IT WILL BE SEEN THAT THE TWO METHODS RESULT IN DIFFERENT LEAVE ACCUMULATION TOTALS. THAT IS TO SAY, UNDER THE FIRST METHOD OF CREDITING LEAVE, NO REDUCTION IN THE ESTABLISHED LEAVE CREDIT AS OF DECEMBER 31, 1946, IS REQUIRED FOR LEAVE TAKEN DURING 1947 (NOT IN EXCESS OF 26 DAYS/--- REGARDLESS OF THE TIME DURING WHICH IT WAS TAKEN IN THAT YEAR. HOWEVER, UNDER THE SECOND METHOD, AN EMPLOYEE WHO AT ANY TIME DURING 1947 TOOK LEAVE IN EXCESS OF HIS THEN EXISTING LEAVE CREDIT FOR THAT YEAR UPON A BIWEEKLY PAY PERIOD BASIS--- ALTHOUGH NOT IN EXCESS OF THE 26 DAYS' ANNUAL LEAVE AUTHORIZED BY STATUTE FOR EACH CALENDAR YEAR--- IMMEDIATELY WOULD HAVE HIS ACCUMULATED LEAVE CREDIT AS OF DECEMBER 31, 1946, REDUCED TO THE EXTENT OF SUCH EXCESS LEAVE. IN THE EVENT LEAVE WAS TAKEN PRIOR TO JULY 25, 1947, THE EMPLOYEE WOULD SUFFER A REDUCTION IN HIS LEAVE CREDIT OF DECEMBER 31, 1946, AND, CONSEQUENTLY, A REDUCTION OF HIS ,ACCUMULATED" LEAVE TOTAL AS OF JULY 25, 1947.

OBVIOUSLY, IN THE LIGHT OF SUCH CIRCUMSTANCES, THE METHOD ADMINISTRATIVELY ADOPTED FOR THE CREDITING OF LEAVE--- WHICH, AT MOST, IS A MERE ACCOUNTING EXPEDIENT, AND IS IN NOWISE DETERMINATIVE OF THE AMOUNT OF LEAVE EARNED UNDER THE 1936 STATUTE--- MAY NOT BE CONSIDERED AS CONTROLLING UPON THE RIGHT OF AN EMPLOYEE TO THE ACCUMULATION OR ACCRUAL OF LEAVE. AND, IT WAS FOR THE PURPOSE OF ELIMINATING SUCH APPARENT INEQUITIES THAT IT WAS HELD IN THE DECISION OF AUGUST 25, 1947, THAT:

* * * ACCORDINGLY, EACH OFFICER AND EMPLOYEE, SUBJECT TO THE ANNUAL LEAVE ACT OF 1936 FOR THE FULL YEAR, SHOULD BE PERMITTED TO CHARGE ALL ANNUAL LEAVE (NOT EXCEEDING 26 DAYS) TAKEN DURING THE CALENDAR YEAR 1947 AGAINST THE 26 DAYS' ANNUAL LEAVE GRANTED BY THE ACT FOR THAT CALENDAR YEAR, IRRESPECTIVE OF WHETHER TAKEN BEFORE OR AFTER AN EQUIVALENT AMOUNT OF LEAVE HAD ACCRUED TO HIS INDIVIDUAL ACCOUNT, ONLY THE EXCESS LEAVE TAKEN OVER THE 26 DAYS TO BE CHARGED AGAINST ACCUMULATED LEAVE, IF ANY, TO HIS CREDIT AS OF DECEMBER 31, 1946.

THUS, FOR THE PURPOSE OF COMPUTING THE MAXIMUM LEAVE ACCUMULATION AS OF JULY 24, 1947, THERE WAS SAVED TO EACH EMPLOYEE, BY THAT HOLDING, HIS ACCUMULATED LEAVE CREDIT AS OF DECEMBER 31, 1946--- WITHOUT DEDUCTION FOR LEAVE TAKEN DURING 1947, UP TO 26 DAYS--- WHICH OTHERWISE WOULD NOT HAVE BEEN THE SITUATION IN ALL INSTANCES OF EMPLOYEES UNDER THE BIWEEKLY LEAVE CREDIT SYSTEM.

A UNIFORM RULE HAVING BEEN ESTABLISHED FOR DETERMINING, IN ALL CASES, THE ACCUMULATED ANNUAL LEAVE AS OF DECEMBER 31, 1946, THERE REMAINED FOR DETERMINATION IN THE DECISION OF AUGUST 25, 1947, THE ANNUAL LEAVE WHICH AN EMPLOYEE PROPERLY MAY BE CONSIDERED AS HAVING ACCRUED DURING THE PERIOD JANUARY 1, 1947, THROUGH JULY 24, 1947, AND WHICH, UNDER THE LAW AND CONTROLLING DECISIONS, IS TO BE ADDED TO SUCH PRIOR ACCUMULATION TO ASCERTAIN THE MAXIMUM LEAVE "ACCUMULATION" AS OF JULY 24, 1947. HERE AGAIN, SOME CONFUSION APPARENTLY HAS ARISEN BECAUSE OF THE DIFFERENT METHODS ADMINISTRATIVELY EMPLOYED IN THE CREDITING OF LEAVE AS HEREINBEFORE STATED. IT HARDLY SEEMS NECESSARY TO SAY THAT THE METHOD ADMINISTRATIVELY ADOPTED FOR THE CREDITING OF LEAVE TO AN EMPLOYEE'S ACCOUNT--- WHETHER IT BE THE 26-DAY CREDIT AS OF JANUARY 1, OR THE BIWEEKLY PAY PERIOD BASIS ALSO AUTHORIZED BY THE CURRENT LEAVE REGULATIONS --- HAS NO BEARING UPON THE LEAVE WHICH AN EMPLOYEE HAS EARNED OR ACCRUED AT ANY GIVEN TIME DURING THE CALENDAR YEAR. OTHERWISE, IF THE CREDITING OF LEAVE BE DEEMED TO BE SYNONYMOUS WITH THE ACCRUAL OF LEAVE, IT READILY WILL BE SEEN THAT EMPLOYEES IN THOSE DEPARTMENTS AND ESTABLISHMENTS USING THE METHOD OF CREDITING 26 DAYS AS OF JANUARY 1, WOULD HAVE 26 DAYS' ACCRUED LEAVE AS OF JULY 24, 1947; WHEREAS EMPLOYEES IN THOSE AGENCIES FOLLOWING THE BIWEEKLY PAY PERIOD BASIS WOULD HAVE APPROXIMATELY 14 1/2 DAYS' ACCRUED LEAVE AS OF THAT DATE.

THE TERM,"ACCRUED LEAVE," LONG HAS BEEN CONSIDERED AS COVERING ONLY THAT LEAVE WHICH HAS BEEN EARNED AND WHICH HAS NOT BEEN TAKEN AT ANY GIVEN TIME DURING A CALENDAR YEAR. THUS, WHILE AN EMPLOYEE EARNED OR ACCRUED APPROXIMATELY 14 1/2 DAYS' ANNUAL LEAVE AS OF JULY 24, 1947, THAT AMOUNT DOES NOT NECESSARILY REPRESENT HIS "ACCRUED LEAVE" AS OF THAT DATE. RATHER, IF LEAVE WAS TAKEN ON OR PRIOR TO JULY 24, 1947, HIS "ACCRUED LEAVE" IS REPRESENTED BY THE DIFFERENCE BETWEEN THE AMOUNT EARNED AND AMOUNT USED. SIMILARLY, IF, PRIOR TO JULY 25, 1947, AN EMPLOYEE HAD TAKEN ALL EARNED LEAVE OR HAD TAKEN LEAVE IN EXCESS OF THE AMOUNT EARNED, HE HAD NO ACCRUED LEAVE AS OF JULY 24, 1947. AND THIS IS TRUE EVEN IF THE EMPLOYEE ADMINISTRATIVELY HAD BEEN CREDITED WITH 26 DAYS' LEAVE ON JANUARY 1, 1947.

HAVING IN MIND THE ABOVE CONCEPT OF THE TERM,"ACCRUED LEAVE," IT SEEMS CLEAR THAT IN DETERMINING THE LEAVE TO BE ADDED TO THE DECEMBER 31, 1946, LEAVE ACCUMULATION, THERE IS FOR CONSIDERATION ONLY THAT LEAVE WHICH WAS EARNED BUT NOT TAKEN PRIOR TO JULY 25, 1947. IN THAT CONNECTION, IT WAS STATED IN THE SAID DECISION OF AUGUST 25, 1947, AS FOLLOWS:

* * * SINCE ANNUAL LEAVE IN EXCESS OF 60 DAYS MAY NOT BE ACCUMULATED AFTER JULY 24, 1947, THE MAXIMUM ANNUAL LEAVE WHICH OFFICERS AND EMPLOYEES WHO HAD TO THEIR CREDIT ACCUMULATED LEAVE OF 60 DAYS OR MORE AT THE END OF THE CALENDAR YEAR 1946, MAY HAVE TO THEIR CREDIT AT THE BEGINNING OF THE CALENDAR YEAR 1948 (SUBJECT TO THE 90 DAY LIMITATION), IS THE TOTAL OF THEIR ACCUMULATED LEAVE AS OF JANUARY 1, 1947, PLUS THE PORTION OF THE LEAVE WHICH HAD ACCRUED TO THEM DURING THE PERIOD JANUARY 1, 1947, THROUGH JULY 24, 1947, AND WHICH HAD NOT BEEN USED DURING SAID PERIOD. * * *

UNDER THE PLAIN TERMS OF THE STATUTES HERE INVOLVED, AND IN LINE WITH THE RULES STATED IN THE DECISION OF AUGUST 25, 1947, FOR THE COMPUTATION OF "ACCUMULATED LEAVE" AND "ACCRUED LEAVE," RESPECTIVELY, IT SEEMS CLEAR THAT ANNUAL LEAVE EARNED AFTER JULY 24, 1947, CANNOT ENTER INTO THE COMPUTATION OF AN EMPLOYEE'S ACCUMULATED LEAVE AS OF THAT DATE. HENCE, THERE ARE NOT UNDERSTOOD THE STATEMENTS CONTAINED IN YOUR LETTER THAT--- BECAUSE OF THE HOLDING TO THAT EFFECT IN THE SAID DECISION OF AUGUST 25, 1947--- EMPLOYEES WHO WERE UNABLE TO USE THE LEAVE EARNED FROM JULY 25 THROUGH DECEMBER 31, 1947,"LOST" SUCH LEAVE WHICH THEY OTHERWISE WOULD HAVE BEEN ENTITLED TO ADD TO THEIR MAXIMUM LEAVE CARRY-OVER AS OF DECEMBER 31, 1946. RATHER, IT APPEARS THAT UNDER SUCH CIRCUMSTANCES, ANY SO-CALLED "LOSS" IS REQUIRED UNDER THE GOVERNING STATUTES. AND, IN SUCH CASES, THE EMPLOYEES ARE IN NO WORSE POSITION THAN THAT OCCUPIED BY THOSE EMPLOYEES WHO, IN PRIOR YEARS, BECAUSE OF THE ADMINISTRATIVE NEED FOR THEIR SERVICES WERE REQUIRED TO FORFEIT LEAVE ACCRUALS UNDER THEN EXISTING LEAVE ACCUMULATION MAXIMUMS.

WITH RESPECT TO THE ALLEGED DISPARITY IN LEAVE ACCUMULATION TOTALS APPEARING BETWEEN THOSE EMPLOYEES WHO TOOK LEAVE PRIOR TO JULY 25 AND THOSE WHO WAITED UNTIL THAT DATE OR LATER TO TAKE LEAVE, IT MAY BE STATED THAT WHILE IT IS RECOGNIZED THAT CERTAIN EMPLOYEES BENEFIT BY REASON OF THE FORTUITOUS CIRCUMSTANCE OF NOT HAVING TAKEN ANY LEAVE, OR ONLY A PORTION OF THEIR EARNED LEAVE PRIOR TO JULY 25, 1947 (WHETHER THROUGH CHOICE OR OTHERWISE), IT APPEARS THAT SUCH RESULT IS REQUIRED BY THE STATUTE. BUT THAT IS NOT TO SAY THAT THE STATUTORY LEAVE RIGHTS OF EITHER CLASS OF EMPLOYEES WERE ENLARGED OR DIMINISHED BY DECISION OF THIS OFFICE. PATENTLY, THE EXACT DATE OF THE TERMINATION OF THE NATIONAL EMERGENCY WAS NOT KNOWN IN ADVANCE. HENCE, SO FAR AS CONCERNS THAT PORTION OF THE YEAR 1947, UP TO JULY 24, EVERY CHARGE AGAINST ANNUAL LEAVE, EXCEPT IN CASES OF ACCUMULATED LEAVE OF 90 DAYS AS OF DECEMBER 31, 1946, CONSTITUTED A REDUCTION OF THE POTENTIAL MAXIMUM EARNED LEAVE CREDIT AS OF THE TERMINATION DATE OF THE EMERGENCY. IN EFFECT, EMPLOYEES WHO (THROUGH CHOICE OR OTHERWISE) TOOK LEAVE DURING THE EARLY PART OF 1947, ASSUMED THE RISK THAT THE EMERGENCY MIGHT BE TERMINATED PRIOR TO THE END OF THE CALENDAR YEAR. AND, THE EMERGENCY HAVING BEEN TERMINATED AS OF JULY 25, 1947, THE LEAVE TAKEN MUST BE REFLECTED IN THE MAXIMUM LEAVE ACCUMULATION TOTALS. ON THE OTHER HAND, THOSE EMPLOYEES WHO (THROUGH CHOICE OR OTHERWISE) DID NOT TAKE ANY LEAVE PRIOR TO JULY 25 ARE ENTITLED TO HAVE THE LEAVE THUS ACCRUED REFLECTED IN THEIR TOTALS. CONSEQUENTLY, IT APPEARS THAT, UNDER THE DECISION, THE LEAVE RIGHTS OF BOTH CLASSES PROPERLY WERE DETERMINED. CERTAINLY, IT CANNOT BE CONTENDED SERIOUSLY THAT THOSE EMPLOYEES WHO TOOK LEAVE PRIOR TO JULY 25, 1947, SHOULD BE PERMITTED TO SUBSTITUTE, AS IT WERE, LEAVE ACCRUING AFTER THAT DATE TO BUILD UP THEIR LEAVE ACCOUNT AS OF JULY 25, 1947, TO THE POINT IT WOULD HAVE REACHED HAD NO LEAVE BEEN TAKEN PRIOR TO THAT DATE. TO SO HOLD WOULD PERMIT CIRCUMVENTION OF THE STATUTORY PROHIBITION AGAINST THE ACCUMULATION OF LEAVE IN EXCESS OF 60 DAYS AFTER JULY 24, 1947.