B-99676, JANUARY 11, 1951, 30 COMP. GEN. 290

B-99676: Jan 11, 1951

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EXCEPTING OFFICERS AND EMPLOYEES WHOSE POSTS OF DUTY ARE OUTSIDE THE CONTINENTAL UNITED STATES FROM THE RESTRICTION CONTAINED IN SAID SECTION UPON PAYMENT FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30. IS LIMITED IN ITS APPLICATION TO THE EXTERIOR BOUNDARIES OF THE 48 STATES AND THE DISTRICT OF COLUMBIA. THE EXCEPTION FROM SUCH RESTRICTION PROVISION OF EMPLOYEES WHO ARE STATIONED OUTSIDE THE CONTINENTAL UNITED STATES LIKEWISE DOES NOT BECOME OPERATIVE UNTIL THAT TIME. THE APPLICATION THEREOF TO AN INDIVIDUAL EMPLOYEE IS DEPENDENT UPON THE EMPLOYEE'S STATUS IN THAT RESPECT AT THE CLOSE OF BUSINESS ON JUNE 30. EXCEPTING OFFICERS AND EMPLOYEES WHOSE POSTS OF DUTY ARE OUTSIDE THE CONTINENTAL UNITED STATES FROM THE RESTRICTION CONTAINED IN SAID SECTION UPON PAYMENT FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30.

B-99676, JANUARY 11, 1951, 30 COMP. GEN. 290

LEAVES OF ABSENCE - ANNUAL - ACCUMULATION RESTRICTIONS - GENERAL APPROPRIATION ACT, 1951 THE TERM " CONTINENTAL UNITED STATES" AS USED IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, EXCEPTING OFFICERS AND EMPLOYEES WHOSE POSTS OF DUTY ARE OUTSIDE THE CONTINENTAL UNITED STATES FROM THE RESTRICTION CONTAINED IN SAID SECTION UPON PAYMENT FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, IS LIMITED IN ITS APPLICATION TO THE EXTERIOR BOUNDARIES OF THE 48 STATES AND THE DISTRICT OF COLUMBIA. THE RESTRICTION IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, UPON PAYMENT FOR ANNUAL LEAVE EARNED BY CIVILIAN OFFICERS OR EMPLOYEES DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, DOES NOT BECOME OPERATIVE UNTIL AFTER THAT DATE AND, THEREFORE, THE EXCEPTION FROM SUCH RESTRICTION PROVISION OF EMPLOYEES WHO ARE STATIONED OUTSIDE THE CONTINENTAL UNITED STATES LIKEWISE DOES NOT BECOME OPERATIVE UNTIL THAT TIME, AND THE APPLICATION THEREOF TO AN INDIVIDUAL EMPLOYEE IS DEPENDENT UPON THE EMPLOYEE'S STATUS IN THAT RESPECT AT THE CLOSE OF BUSINESS ON JUNE 30, 1951. THE TERM "POST OF DUTY" AS USED IN SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, EXCEPTING OFFICERS AND EMPLOYEES WHOSE POSTS OF DUTY ARE OUTSIDE THE CONTINENTAL UNITED STATES FROM THE RESTRICTION CONTAINED IN SAID SECTION UPON PAYMENT FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, IS SYNONYMOUS WITH PERMANENT DUTY STATION AND IS NOT TO BE APPLIED TO EMPLOYEES TEMPORARILY DETAILED OR ASSIGNED OUTSIDE THE CONTINENTAL UNITED STATES. THE SECOND PROVISO OF SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, EXEMPTING EMPLOYEES ENTERING UPON ACTIVE SERVICE IN THE ARMED FORCES FROM THE PROHIBITION UPON THE EXPENDITURE OF FUNDS FOR THE PAYMENT FOR 1950 ANNUAL LEAVE ACCRUALS UNUSED BY JULY 1, 1951, IS APPLICABLE TO EMPLOYEE ENTERING THE ARMED FORCES AT ANY TIME DURING THE PERIOD JANUARY 1, 1950, THROUGH JUNE 30, 1951, PROVIDED THEY ARE IN THE ARMED FORCES AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, OR ARE OTHERWISE PRECLUDED BY REASON OF SUCH SERVICE FROM USING THEIR 1950 LEAVE PRIOR TO THAT DATE. EMPLOYEES INCLUDING RESERVISTS, WHO ENTER ACTIVE MILITARY SERVICE ARE NOT PERMANENTLY EXCEPTED FROM THE OPERATION OF SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, PROHIBITING THE PAYMENT FOR ANNUAL LEAVE EARNED BY CIVILIAN OFFICERS OR EMPLOYEES DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, SO THAT EMPLOYEES WHO RETURN TO THEIR CIVILIAN POSITIONS FOR ANY REASON PRIOR TO JUNE 30, 1951, ARE SUBJECT TO SAID RESTRICTIONS ON THE PAYMENT FOR UNUSED 1950 LEAVE EXCEPT TO THE EXTENT THAT SUCH MILITARY SERVICE HAS PREVENTED THE USE OF SAID ANNUAL LEAVE. IN APPLYING THE PROVISIONS OF SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, PROHIBITING THE PAYMENT FOR ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, EMPLOYEES WHO WERE SEPARATED AND REEMPLOYED DURING THE CALENDAR YEAR 1950 MAY HAVE ALL ANNUAL LEAVE TAKEN DURING 1950 PRIOR TO SEPARATION, IN ADDITION TO THAT WHICH MAY HAVE BEEN LIQUIDATED BY A LUMP-SUM PAYMENT AND NOT RECREDITED UPON SUBSEQUENT REEMPLOYMENT, CHARGED AGAINST ANNUAL LEAVE EARNED DURING THAT CALENDAR YEAR EITHER PRIOR TO SEPARATION OR AFTER REEMPLOYMENT. AN EMPLOYEE SEPARATED PRIOR TO JUNE 30, 1951, AND GIVEN A LUMP-SUM PAYMENT FOR ALL HIS UNUSED ANNUAL LEAVE INCLUDING 1950 ACCRUALS, AND REEMPLOYED AFTER THAT DATE, BUT PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT, IS NOT REQUIRED TO REFUND ANY PART OF THE PAYMENT COVERING UNEXPIRED LEAVE FOR WHICH A CORRESPONDING LEAVE CREDIT WOULD BE PROHIBITED BY SECTION 1212 OF THE GENERAL APPROPRIATION ACT, 1951, REQUIRING FORFEITURE OF ANY ANNUAL LEAVE EARNED DURING 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 11, 1591:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1950, PRESENTING DECISION SEVERAL QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE APPLICATION OF SECTION 1212 OF THE GENERAL APPLICATION ACT, 1951, PUBLIC LAW 759, APPROVED SEPTEMBER 6, 1950, 64 STAT. 768, WHICH SECTION PROVIDES AS FOLLOWS:

NO PART OF THE FUNDS OF, OR AVAILABLE FOR EXPENDITURE BY ANY CORPORATION OR AGENCY INCLUDED IN THIS ACT, INCLUDING THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, SHALL BE AVAILABLE TO PAY FOR ANNUAL LEAVE ACCUMULATED BY ANY CIVILIAN OFFICER OR EMPLOYEE DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO OFFICERS AND EMPLOYEES WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES:AND PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY WITH RESPECT TO THE PAYMENT OF COMPENSATION FOR ACCUMULATED ANNUAL LEAVE IN THE CASE OF OFFICERS OR EMPLOYEES WHO LEAVE THEIR CIVILIAN POSITIONS FOR THE PURPOSE OF ENTERING UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE ARMED FORCES OF THE UNITED STATES.

SINCE THE QUESTIONS RELATE GENERALLY TO THREE SEPARATE TYPES OF CASES THEY WILL BE STATED IN GROUPS AND ANSWERED IN THAT ORDER. THE QUESTIONS IN THE FIRST GROUP ARISE UNDER THE FIRST PROVISO--- "THAT THIS SECTION SHALL NOT APPLY TO OFFICERS AND EMPLOYEES WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES"--- AND ARE STATED AS FOLLOWS:

1. IS THE TERM "CONTINENTAL UNITED STATES" TO BE CONSTRUED AS LIMITED TO THE FORTY-EIGHT STATES AND THE DISTRICT OF COLUMBIA IN THE APPLICATION OF THE RESTRICTION CONTAINED IN SECTION 1212?

2. (A) DOES THE ABOVE EXCEPTION APPLY SOLELY TO THOSE EMPLOYEES WHOSE POSTS OF DUTY WERE LOCATED OUTSIDE THE CONTINENTAL UNITED STATES ON THE DATE OF ENACTMENT OF SECTION 1212?

(B) IF ANSWERED IN THE AFFIRMATIVE, WOULD THE EXCEPTION BE PERMANENT WITH RESPECT TO THESE INDIVIDUALS, OR WOULD IT BE NECESSARY TO MAKE ADJUSTMENTS IN ORDER TO PREVENT FORFEITURE OF 1950 ANNUAL LEAVE SHOULD THE EMPLOYEE BE TRANSFERRED TO THE CONTINENTAL UNITED STATES ANY TIME PRIOR TO JULY 1, 1951? IN OTHER WORDS, WOULD THE TRANSFER OF THE EMPLOYEE TO THE UNITED STATES PRIOR TO JULY 1, 1951, MAKE HIM SUBJECT TO THE RESTRICTION CONTAINED IN SECTION 1212 EITHER IN WHOLE OR IN PART?

3 (A) IS THE OVERSEAS EXCEPTION APPLICABLE TO ALL EMPLOYEES WHO AT ANY TIME DURING THE PERIOD JANUARY 1, 1950 THROUGH JUNE 30, 1951 WERE ASSIGNED TO POSTS OF DUTY OUTSIDE THE CONTINENTAL UNITED STATES?

(B) IF ANSWERED IN THE AFFIRMATIVE, WOULD THE EXCEPTION BECOME PERMANENT WITH ACTUAL ASSIGNMENT OUTSIDE THE CONTINENTAL UNITED STATES, OR MUST AN ADJUSTMENT BE MADE IN WHOLE OR IN PART, FOR PERIODS OF CONTINENTAL SERVICE PRIOR TO AND/OR AFTER OVERSEAS ASSIGNMENT DURING THE PERIOD JANUARY 1, 1950 THROUGH JUNE 30, 1951?

(C) DOES "EMPLOYEES WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES" INCLUDE EMPLOYEES WHO ARE TEMPORARILY DETAILED OR ASSIGNED OUTSIDE THE UNITED STATES?

IN THE ABSENCE OF ANY SPECIFIC DEFINITION OR CLEAR INDICATION THAT A BROADER MEANING IS INTENDED BY THE STATUTE IN WHICH IT APPEARS, THE TERM," CONTINENTAL UNITED STATES," CONSISTENTLY HAS BEEN LIMITED IN ITS APPLICATION TO THE EXTERIOR BOUNDARIES OF THE 48 STATES AND THE DISTRICT OF COLUMBIA. ACCORDINGLY, QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE.

IN OFFICE DECISION OF OCTOBER 13, 1950, B-98570, 30 COMP. GEN. 157, IT WAS HELD THAT SINCE THE RESTRICTION PROVIDED BY SECTION 1212, SUPRA, WAS "UPON THE PAYMENT FOR 1950 ANNUAL LEAVE UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30, 1951, IT ACTUALLY DOES NOT BECOME OPERATIVE UNTIL AFTER THAT E.' IT FOLLOWS, THEREFORE, THAT THE EXCEPTION FROM SUCH RESTRICTIVE PROVISION OF EMPLOYEES WHO ARE STATIONED OUTSIDE CONTINENTAL UNITED STATES, AS CONTAINED IN THE FIRST PROVISO, LIKEWISE DOES NOT BECOME OPERATIVE UNTIL THAT TIME AND THE APPLICATION THEREOF TO AN INDIVIDUAL EMPLOYEE IS DEPENDENT UPON THE EMPLOYEE'S STATUS IN THAT RESPECT AT THE CLOSE OF BUSINESS ON JUNE 30, 1951. QUESTIONS 2 (A), (B), ARE ANSWERED ACCORDINGLY.

IN ANSWER TO QUESTION 4 (C), IT APPEARS THAT ALTHOUGH EMPLOYEES CALLED INTO ACTIVE MILITARY SERVICE UNDER THE CIRCUMSTANCES THEREIN RELATED ARE WITHIN THE PURVIEW OF THE SAID PROVISO, YET IF THEY RETURN TO THEIR CIVILIAN POSITIONS FOR ANY REASON PRIOR TO JUNE 30, 1951, ANY 1950 ACCRUED LEAVE ACCRUAL REMAINING TO THEIR CREDIT IS SUBJECT TO THE RESTRICTIONS OF SECTION 1212 TO THE SAME EXTENT AS THAT SET FORTH IN ANSWER TO QUESTIONS 4 (A) AND 4 (B) ABOVE.

THE THIRD GROUP OF QUESTIONS RELATES TO EMPLOYEES WHO HAVE BEEN SEPARATED AND EMPLOYED DURING THE CALENDAR YEAR 1950, WHICH QUESTIONS ARE STATED IN YOUR LETTER AS FOLLOWS:

5 (A) WOULD AN EMPLOYEE WHO HAS BEEN SEPARATED AND IS REEMPLOYED DURING THE CALENDAR YEAR 1950 BE CONSIDERED AS A NEW EMPLOYEE WHEN APPLYING THE PROVISIONS OF SECTION 1212? IN OTHER WORDS, REGARDLESS OF HOW MUCH LEAVE AN EMPLOYEE USED PRIOR TO SEPARATION AND/OR THROUGH THE LUMP-SUM PAYMENT, WILL HE BE REQUIRED TO USE ALL LEAVE ACCUMULATIONS EARNED AFTER REEMPLOYMENT DURING 1950 PRIOR TO JUNE 30, 1951; OR

(B) CAN THE EMPLOYEE RECEIVING A LUMP-SUM PAYMENT FOR ANNUAL LEAVE BE CONSIDERED WHEN REEMPLOYED AS HAVING BEEN ON CONSTRUCTIVE ANNUAL LEAVE (WITHIN THE LIMITS OF THE ANNUAL LEAVE REPRESENTED BY THE LUMP SUM PAYMENT DURING SEPARATION FROM THE SERVICE AND BE HANDLED AS IF HE HAD BEEN CONTINUOUSLY EMPLOYED DURING 1950 WHEN APPLYING THE PROVISIONS OF SECTION 1212?

(C) WOULD ANY DIFFERENT RESULT BE REQUIRED IN (B) IF (1) ALL ANNUAL LEAVE INVOLVED IN THE LUMP-SUM PAYMENT HAD BEEN EXHAUSTED PRIOR TO REEMPLOYMENT, OR (2) ONLY A PORTION OF SUCH ANNUAL LEAVE HAD BEEN USED AND A REFUND AND RECREDIT FOR THE UNUSED PORTION WAS MADE UPON REEMPLOYMENT?

(D) IN THE CASE OF AN EMPLOYEE WHO RECEIVES A LUMP-SUM PAYMENT AND IS REEMPLOYED AFTER JUNE 30, 1951, HOW WOULD SECTION 1212 AFFECT 1950 ANNUAL LEAVE ACCUMULATIONS? IS THE REEMPLOYING AGENCY REQUIRED TO EFFECT A REFUND FROM THE EMPLOYEE FOR THE UNEXPIRED PORTION OF THE PERIOD REPRESENTING LEAVE ACCRUED IN 1950? IF SO, MAY SUCH LEAVE BE RECREDITED TO THE EMPLOYEE FOR USE OR PAYMENT AFTER JUNE 30, 1951?

FOLLOWING THE RATIONALE EMPLOYED IN OFFICE DECISION OF AUGUST 25, 1947, 27 COMP. GEN. 120, AN EMPLOYEE MAY CHARGE ALL ANNUAL LEAVE (NOT EXCEEDING 26 DAYS) TAKEN DURING THE CALENDAR YEAR 1950 AGAINST THE 26 DAYS' ANNUAL LEAVE GRANTED FOR THAT CALENDAR YEAR REGARDLESS OF WHETHER THE LEAVE IS TAKEN AT THE BEGINNING OR THE END OF THE YEAR. THUS, THE PRIMARY PURPOSE OF SECTION 1212 BEING TO PREVENT THE INCREASE OF ACCUMULATED BALANCES EXISTING ON JANUARY 1, 1950, BY ANY ANNUAL LEAVE EARNED DURING 1950 (B- 98189, SEPTEMBER 29, 1950, 30 COMP. GEN. 128) IT APPEARS THAT EMPLOYEES SEPARATED AND REEMPLOYED DURING THE CALENDAR YEAR 1950 WOULD BE ENTITLED TO THE SAME PRIVILEGE. ACCORDINGLY, ALL ANNUAL LEAVE TAKEN BY SUCH EMPLOYEES DURING 1950 PRIOR TO SEPARATION, IN ADDITION TO THAT WHICH MAY HAVE BEEN LIQUIDATED BY A LUMP-SUM PAYMENT AS AN INCIDENT TO SEPARATION--- NOT INCLUDING LEAVE RECREDITED UPON SUBSEQUENT REEMPLOYMENT--- MAY BE CHARGED AGAINST ANNUAL LEAVE EARNED BY SUCH EMPLOYEES DURING THAT CALENDAR YEAR, EITHER PRIOR TO THEIR SEPARATION OR AFTER REEMPLOYMENT. QUESTIONS 5 (A) AND 5 (C) ARE ANSWERED IN THE NEGATIVE, AND QUESTION 5 (B) IS ANSWERED IN THE AFFIRMATIVE.

AN EMPLOYEE SEPARATED PRIOR TO JUNE 30, 1951, AND GIVEN A LUMP-SUM PAYMENT FOR ALL HIS ANNUAL LEAVE, INCLUDING 1950 ACCRUALS, AND REEMPLOYED AFTER THAT DATE, BUT PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LUMP -SUM PAYMENT, IS NOT REQUIRED TO REFUND ANY PART OF THE UNEXPIRED LEAVE FOR WHICH A CORRESPONDING LEAVE CREDIT WOULD BE PROHIBITED. SEE 27 COMP. GEN. 301, QUESTION AND ANSWER 1. QUESTION 5 (D) PRESENTED IN YOUR LETTER IS ANSWERED ACCORDINGLY.