B-83125, SEPTEMBER 7, 1949, 29 COMP. GEN. 112

B-83125: Sep 7, 1949

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SUCH EMPLOYEES ARE SUBJECT TO THE GENERAL LEAVE ACT OF MARCH 14. SUCH EMPLOYEES ARE SUBJECT TO THE PROVISIONS OF THE LUMP -SUM LEAVE PAYMENT ACT OF DECEMBER 21. A CIVILIAN EMPLOYEE OF THE NAVY WHO IS TRANSFERRED FROM A POSITION IN THE UNITED STATES TO A POSITION IN A NAVAL STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY START HIS OVERSEAS SERVICE WITH THE SAME ANNUAL LEAVE TO HIS CREDIT AS HE HAD IN THE UNITED STATES AND MIGHT THUS LAWFULLY ACCUMULATE IN EXCESS OF 60 DAYS' ANNUAL LEAVE BEFORE EXPIRATION OF TWO YEARS OF OVERSEAS SERVICE AND UP TO THE 120 DAYS' MAXIMUM BEFORE EXPIRATION OF FOUR YEARS OF SERVICE. 1 COMP. 1949: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3. WHO WAS TRANSFERRED IN MARCH 1947 FROM THE NAVAL SUPPLY ANNEX.

B-83125, SEPTEMBER 7, 1949, 29 COMP. GEN. 112

LEAVES OF ABSENCE - ANNUAL - TRANSFERS - NAVAL STATION EMPLOYEES TRANSFERRING TO STATIONS OUTSIDE CONTINENTAL U.S. WHILE EMPLOYEES OF NAVAL STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY CONTINUE TO BE CREDITED WITH ANNUAL LEAVE AT THE RATE OF 30 DAYS A YEAR AND MAY ACCUMULATE UP TO 120 DAYS, SUCH EMPLOYEES ARE SUBJECT TO THE GENERAL LEAVE ACT OF MARCH 14, 1936, AND MAY NOT BE REGARDED AS UNDER A LEAVE SYSTEM DIFFERENT FROM THAT APPLICABLE TO FEDERAL EMPLOYEES GENERALLY, SO THAT, UPON TRANSFER OR SEPARATION, OR REEMPLOYMENT AFTER SEPARATION, SUCH EMPLOYEES ARE SUBJECT TO THE PROVISIONS OF THE LUMP -SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944. UNDER THE GENERAL LEAVE ACT OF MARCH 14, 1936, AND REGULATIONS OF THE CIVIL SERVICE COMMISSION AUTHORIZING THE TRANSFER OF ACCUMULATED LEAVE IN CASES OF TRANSFERS OF EMPLOYEES UNDER THE SAME LEAVE SYSTEM, A CIVILIAN EMPLOYEE OF THE NAVY WHO IS TRANSFERRED FROM A POSITION IN THE UNITED STATES TO A POSITION IN A NAVAL STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY START HIS OVERSEAS SERVICE WITH THE SAME ANNUAL LEAVE TO HIS CREDIT AS HE HAD IN THE UNITED STATES AND MIGHT THUS LAWFULLY ACCUMULATE IN EXCESS OF 60 DAYS' ANNUAL LEAVE BEFORE EXPIRATION OF TWO YEARS OF OVERSEAS SERVICE AND UP TO THE 120 DAYS' MAXIMUM BEFORE EXPIRATION OF FOUR YEARS OF SERVICE. 1 COMP. GEN. 297, MODIFIED IN PART.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, SEPTEMBER 7, 1949:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1949, REQUESTING DECISION WITH RESPECT TO THE EFFECT OF THE GENERAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED UPON THE OPERATION OF THE ACT OF AUGUST 29, 1916, 34 U.S.C. 513, WITH PARTICULAR REFERENCE TO THE CASE OF EUGENE J. WALLACE, CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE NAVY, WHO WAS TRANSFERRED IN MARCH 1947 FROM THE NAVAL SUPPLY ANNEX, STOCKTON, CALIFORNIA, WITH 92 DAYS' ANNUAL LEAVE, TO A POSITION IN GUAM IN WHICH HE WAS GIVEN CREDIT FOR SUCH LEAVE.

THE INDIVIDUAL INVOLVED WAS SEPARATED FROM EMPLOYMENT IN GUAM IN MAY 1948 AND RECEIVED LUMP-SUM PAYMENT FOR 118 DAYS, 2 HOURS' ANNUAL LEAVE. HE WAS REEMPLOYED ON JUNE 2, 1948, AT PEARL HARBOR NAVAL SHIPYARD, AND REFUNDED TO THE GOVERNMENT AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE UNUSED PORTION OF HIS LEAVE AMOUNTING TO 112 DAYS AND 2 HOURS. YOU STATE THAT, AT THE TIME OF HIS TRANSFER FROM STOCKTON TO GUAM, IT WAS CONSIDERED THAT NAVAL STATIONS WITHIN AND WITHOUT THE UNITED STATES WERE UNDER THE SAME LEAVE SYSTEM, BUT SINCE THAT DATE IT HAS BEEN RECOGNIZED THAT THEY ARE UNDER DIFFERENT LEAVE SYSTEMS AND, ACCORDINGLY, THERE WAS ISSUED AL. NAV. STA. NO. 50, DECEMBER 24, 1947, AS FOLLOWS:

EFFECTIVE 1 JANUARY 1948 ALL AMERICAN CITIZEN EMPLOYEES TRANSFERRING TO AND FROM ACTIVITIES WITHOUT CONTINENTAL LIMITS OF THE UNITED STATES SHALL BE GIVEN LUMP SUM PAYMENT FOR ANNUAL LEAVE AND WILL NOT BE REQUIRED TO REFUND TO EMPLOYING ACTIVITY SINCE THEY WILL BE REGARDED AS GOING TO POSITION UNDER " DIFFERENT LEAVE SYSTEM" WITHIN MEANING OF PUBLIC LAW 525 OF 21 DECEMBER 1944.

EMPLOYEES CURRENTLY ON ROLLS OF ACTIVITIES OUTSIDE CONTINENTAL LIMITS OF U.S. WHOSE HOMES ARE IN THE U.S., SHALL NOT BE REQUIRED TO FORFEIT LEAVE DUE TO PROVISION THAT THEY MUST SERVE FOR CONTINUOUS PERIOD OF TWO YEARS BEFORE THEY MAY ACCUMULATE LEAVE TO EXTENT OF 120 DAYS. ANY EMPLOYEE WHO FORFEITED LEAVE DUE TO SUCH RESTRICTION SHALL BE RECREDITED WITH LEAVE FORFEITED PROVIDED THAT NOT MORE THAN 120 DAYS LEAVE MAY BE CARRIED FORWARD ON JANUARY 1948. NCPI 105.10-1 AND NCPI 105.12-1 WILL BE AMENDED ACCORDINGLY.

SPECIFICALLY, YOU REQUEST DECISION AS FOLLOWS:

THE QUESTION WHICH ARISES IS WHETHER, IN APPLYING THE DIFFERENTIAL PROVIDED IN THE ACT OF AUGUST 29, 1916, FOR EMPLOYEES OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, WHICH PERMITS THEM TO ACCUMULATE LEAVE UP TO 120 DAYS IN LIEU OF THE SIXTY DAYS PROVIDED FOR EMPLOYEES GENERALLY, THERE IS ANY REQUIREMENT OF TENURE BEFORE LEAVE IN EXCESS OF SIXTY DAYS MAY BE ACCUMULATED, AND, IF SO, WOULD THE TENURE BE TWO YEARS REGARDLESS OF THE LEAVE ACCUMULATED IN EXCESS OF SIXTY DAYS, OR WOULD THE EMPLOYEE HAVE TO SERVE THREE YEARS BEFORE HE COULD BE CREDITED WITH 90 DAYS' LEAVE (SUBJECT TO THE EXCEPTION PREVIOUSLY NOTED) AND FOUR YEARS BEFORE HE COULD BE CREDITED WITH 120 DAYS' LEAVE?

YOUR DECISION IS REQUESTED ON THE SPECIFIC QUESTION OF THE AMOUNT OF LEAVE WHICH SHOULD BE CREDITED TO MR. EUGENE J. WALLACE ON THE FACTS STATED ABOVE. YOUR DECISION IS ALSO REQUESTED ON THE GENERAL QUESTION OF WHETHER THERE ARE NOW ANY TENURE OF SERVICE REQUIREMENTS BEFORE CIVILIAN EMPLOYEES OF THE NAVY DEPARTMENT AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY BE GRANTED THE PRIVILEGE OF ACCUMULATING LEAVE IN EXCESS OF SIXTY DAYS UNDER THE PROVISIONS OF THE ACT OF AUGUST 29, 1916, AND IF SO, WHAT THESE REQUIREMENTS ARE AND HOW THEY SHOULD BE APPLIED.

IN 28 COMP. GEN. 176, IT WAS HELD BY THIS OFFICE (QUOTING FROM THE SYLLABUS):

THE TRANSFER OF A PERMANENT EMPLOYEE STATIONED OVERSEAS IN RECEIPT OF A FOREIGN-LEAVE DIFFERENTIAL TO A PERMANENT POSITION IN THE UNITED STATES--- BOTH POSITIONS COMING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936--- IS NOT A TRANSFER BETWEEN "DIFFERENT LEAVE SYSTEMS" ON ACCOUNT OF WHICH A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE IS REQUIRED UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, WHERE THE ONLY DISTINCTION BETWEEN THE LEAVE RIGHTS OF EMPLOYEES ENTITLED TO THE DIFFERENTIAL AND THOSE EMPLOYED IN THE UNITED STATES IS THE NUMBER OF DAYS' ANNUAL LEAVE AUTHORIZED FOR A CALENDAR YEAR, THAT IS, 30 DAYS AS COMPARED WITH 26 DAYS. 26 COMP. GEN. 259, DISTINGUISHED.

IN 28 COMP. GEN. 418, IT WAS HELD THAT EMPLOYEES OF THE PHILIPPINE WAR DAMAGE COMMISSION--- WHOSE LEAVE IS IN ALL RESPECTS SUBJECT TO THE ACT OF MARCH 14, 1936, EXCEPT THAT THE RIGHT HAD BEEN GIVEN THEM BY SPECIAL STATUTE TO ACCUMULATE UP TO 90 DAYS' ANNUAL LEAVE--- WERE NOT UNDER A DIFFERENT LEAVE SYSTEM FROM FEDERAL EMPLOYEES GENERALLY. IN B 83162, FEBRUARY 10, 1949, TO THE FEDERAL SECURITY ADMINISTRATOR, IT WAS HELD THAT EMPLOYEES OF THE PUBLIC HEALTH SERVICE HOLDING POSITIONS OVERSEAS OR IN ALASKA WHO ARE ENTITLED TO 30 DAYS' ANNUAL LEAVE EACH YEAR AND MIGHT ACCUMULATE UP TO 90 DAYS, ALSO WERE NOT UNDER A DIFFERENT LEAVE SYSTEM.

SECTIONS 1 AND 5 OF THE GENERAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDE---

THAT WITH THE EXCEPTION OF TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AND OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA, AND EXCEPT AS PROVIDED IN SECTION 4 HEREOF, ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS. THIS ACT SHALL NOT AFFECT ANY SICK LEAVE TO WHICH EMPLOYEES ARE NOW OR MAY HEREAFTER BE ENTITLED. TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. THE ANNUAL LEAVE HEREIN AUTHORIZED SHALL BE GRANTED AT SUCH TIMES AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE. THIS ACT BECOMES EFFECTIVE JANUARY 1, 1936.

SEC. 5. NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

SAID ACT, BY ITS TERMS, IS APPLICABLE TO ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES NOT SPECIFICALLY EXCEPTED THEREFROM IN SECTION 1 AND, EXCEPT TO THE EXTENT NECESSARY TO PRESERVE THE LEAVE DIFFERENTIALS AT THAT TIME PERTAINING TO EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, ALSO IS APPLICABLE TO SUCH EMPLOYEES.

ACCORDINGLY, WHILE EMPLOYEES OF NAVAL STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY CONTINUE TO BE CREDITED WITH ANNUAL LEAVE AT THE RATE OF 30 DAYS A YEAR AND MAY ACCUMULATE UP TO 120 DAYS, THEY ARE OTHERWISE SUBJECT TO THE GENERAL LEAVE ACT OF 1936 AND CANNOT BE SAID TO BE UNDER A DIFFERENT LEAVE SYSTEM FROM THAT APPLICABLE TO FEDERAL EMPLOYEES GENERALLY. THEREFORE, IN THE CASE OF MR. WALLACE, THE ADMINISTRATIVE ACTION IN TRANSFERRING HIS ANNUAL LEAVE TO HIS POSITION AT GUAM AND MAKING LUMP-SUM PAYMENT UPON HIS SEPARATION FROM THE SERVICE AT THAT PLACE FOR ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE AND REQUIRING REFUND FOR THE UNEXPIRED PORTION UPON REEMPLOYMENT AT THE PEARL HARBOR NAVAL STATION APPEARS TO HAVE BEEN PROPER.

YOUR QUESTION REGARDING THE TENURE NECESSARY TO THE ACCUMULATION OF LEAVE RELATES TO THAT PORTION OF THE ACT OF AUGUST 29, 1916, TITLE 34, SECTION 513, U.S. CODE, WHICH PROVIDES---

ANY CIVILIAN EMPLOYEE OF THE NAVY DEPARTMENT WHO IS A CITIZEN OF THE UNITED STATES AND EMPLOYED AT ANY STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY, IN THE DISCRETION OF THE SECRETARY OF THE NAVY, AFTER AT LEAST TWO YEARS' CONTINUOUS, FAITHFUL, AND SATISFACTORY SERVICE ABROAD, AND SUBJECT TO THE INTERESTS OF THE PUBLIC SERVICE, BE GRANTED ACCRUED LEAVE OF ABSENCE, WITH PAY, FOR EACH YEAR OF SERVICE, AND IF AN EMPLOYEE SHOULD ELECT TO POSTPONE THE TAKING OF ANY OR ALL OF THE LEAVE TO WHICH HE MAY BE ENTITLED IN PURSUANCE HEREOF SUCH LEAVE MAY BE ALLOWED TO ACCUMULATE FOR A PERIOD OF NOT EXCEEDING FOUR YEARS, THE RATE OF PAY FOR ACCRUED LEAVE TO BE THE RATE OBTAINING AT THE TIME THE LEAVE IS GRANTED.

IN 1 COMP. GEN. 297, DECEMBER 5, 1921, IT WAS HELD BY THIS OFFICE (QUOTING FROM THE SYLLABUS):

LEAVE OF A NAVAL STATION EMPLOYEE ACCUMULATED PRIOR TO TRANSFER BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES MAY NOT BE COUNTED IN DETERMINING HIS RIGHT TO ACCUMULATIVE LEAVE THROUGH A FOUR-YEAR PERIOD, UNDER ACT OF AUGUST 29, 1916, 39 STAT. 557, WHICH CONFINES ITS BENEFITS TO EMPLOYEES AT STATIONS OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

THAT DECISION WAS RENDERED PRIOR TO THE GENERAL LEAVE ACT OF 1936 AND IS NOT NECESSARILY CONTROLLING IN CASES ARISING UNDER THE 1936 ACT. UNDER THE 1936 ACT AND REGULATIONS ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION THE TRANSFER OF ACCUMULATED LEAVE IS AUTHORIZED IN ALL CASES OF TRANSFERS TO POSITIONS UNDER THE SAME LEAVE SYSTEM. ACCORDINGLY, AN EMPLOYEE WHO IS TRANSFERRED FROM A POSITION IN THE UNITED STATES TO A POSITION IN A NAVAL STATION OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES MAY START HIS OVERSEAS SERVICE WITH THE SAME ANNUAL LEAVE TO HIS CREDIT AS HE HAD IN THE UNITED STATES AND MIGHT THUS LAWFULLY ACCUMULATE IN EXCESS OF 60 DAYS' ANNUAL LEAVE BEFORE THE EXPIRATION OF TWO YEARS OF OVERSEAS SERVICE AND UP TO 120 DAYS BEFORE THE EXPIRATION OF FOUR YEARS OF SUCH SERVICE. COMPARE 28 COMP. GEN. 555.