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A-84247, MARCH 2, 1938, 17 COMP. GEN. 697

A-84247 Mar 02, 1938
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THE MAXIMUM AMOUNT OF ANNUAL LEAVE AN OFFICER MAY HAVE IN THE CURRENT YEAR IS THE UNUSED LEAVE FOR THE PERIODS AS SO LIMITED. 1938: I HAVE YOUR LETTER OF JANUARY 12. IS JULY 1. IT IS PROVIDED THAT ANY PORTION OF SIXTY DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE NOT TO EXCEED. ATTENTION IS INVITED TO THE FACT THAT DURING THE YEAR JULY 1. THERE WAS AVAILABLE THIRTY DAYS LEAVE OF ABSENCE. DUE TO THE FACT THAT THE LEGISLATIVE FURLOUGH WAS IN FORCE FROM JULY 1. THERE WAS AVAILABLE IN 1932 AND 1933. IT HAS ALSO BEEN RULED THAT AS ANNUAL LEAVE WITH PAY WAS SUSPENDED DURING THE PERIOD FROM JULY 1. ANNUAL LEAVE WAS OBVIOUSLY NOT ALLOWED TO ACCRUE DURING THAT PERIOD.

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A-84247, MARCH 2, 1938, 17 COMP. GEN. 697

LEAVES OF ABSENCE - ANNUAL - FOREIGN SERVICE - ACCUMULATION LIMITATIONS SECTION 22, ACT, FEBRUARY 23, 1931, 46 STAT. 1210, LIMITING THE AMOUNT OF ANNUAL LEAVE WHICH MAY BE ACCUMULATED BY FOREIGN SERVICE OFFICERS AND EMPLOYEES OF THE STATE DEPARTMENT, TO 120 DAYS IN THREE YEARS OR 180 DAYS IN FOUR YEARS, ALSO OPERATES AS A LIMITATION ON THE PERIOD OVER WHICH THE ACCUMULATION MAY OCCUR, AND THE MAXIMUM AMOUNT OF ANNUAL LEAVE AN OFFICER MAY HAVE IN THE CURRENT YEAR IS THE UNUSED LEAVE FOR THE PERIODS AS SO LIMITED, PLUS CURRENT LEAVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, MARCH 2, 1938:

I HAVE YOUR LETTER OF JANUARY 12, 1938, AS FOLLOWS:

SINCE JULY 1, 1931, A CERTAIN FOREIGN SERVICE OFFICER HAS TAKEN ANNUAL LEAVE OF ABSENCE AS INDICATED BELOW:

CHART

ANNUAL LEAVE ANNUAL LEAVE

TAKEN ACCUMULATED

DAYS DAYS

1931 ------------------------------ 27 1/2 2 1/2

1932 ------------------------------ NONE 30

1933 ------------------------------ 27 18

1934 ------------------------------9 51

1935 ------------------------------ 49 11

1936 ------------------------------ 29 31

1937 ------------------------------ 31 29

------- 172 1/2

THE EFFECTIVE DATE OF THE ACT OF FEBRUARY 23, 1921, WHICH PROVIDES SIXTY DAYS ANNUAL LEAVE OF ABSENCE TO FOREIGN SERVICE OFFICERS AND AMERICAN EMPLOYEES, IS JULY 1, 1931. IT IS PROVIDED THAT ANY PORTION OF SIXTY DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE NOT TO EXCEED, EXCLUSIVE OF TIME IN TRANSIT AND AWAITING SAILING, 120 DAYS IN THREE YEARS AND 180 DAYS IN FOUR YEARS.

ATTENTION IS INVITED TO THE FACT THAT DURING THE YEAR JULY 1, 1931, TO DECEMBER 31, 1931, THERE WAS AVAILABLE THIRTY DAYS LEAVE OF ABSENCE. DUE TO THE FACT THAT THE LEGISLATIVE FURLOUGH WAS IN FORCE FROM JULY 1, 1932, TO MARCH 31, 1933, THERE WAS AVAILABLE IN 1932 AND 1933, THIRTY DAYS ANNUAL LEAVE IN THE FIRST HALF OF THE 1932 CALENDAR YEAR AND FORTY-FIVE DAYS DURING THE LAST THREE QUARTERS OF THE 1933 CALENDAR YEAR. IT HAS ALSO BEEN RULED THAT AS ANNUAL LEAVE WITH PAY WAS SUSPENDED DURING THE PERIOD FROM JULY 1, 1932, TO MARCH 31, 1933, ANNUAL LEAVE WAS OBVIOUSLY NOT ALLOWED TO ACCRUE DURING THAT PERIOD.

THE FOREGOING CASE INVOLVES A POINT ON WHICH YOUR DECISION IS REQUESTED; NAMELY, THE INTERPRETATION TO BE PLACED ON THE FOLLOWING LANGUAGE AS FOUND IN SECTION 22 OF THE ACT OF FEBRUARY 23, 1931:

"ANY PORTION OF SIXTY DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE, NOT TO EXCEED * * * ONE HUNDRED AND TWENTY DAYS IN THREE YEARS OR ONE HUNDRED AND EIGHTY DAYS IN FOUR YEARS * * *.'

IT IS THE DEPARTMENT'S INTERPRETATION THAT THE LANGUAGE ITALICIZED OPERATES MERELY TO RESTRICT THE AMOUNT OF CUMULATIVE LEAVE THAT MAY BE AVAILED OF AT A GIVEN TIME BUT DOES NOT CANCEL ANY CUMULATIVE LEAVE ACCRUED TO AN OFFICER'S CREDIT SIMPLY BECAUSE HE MAY NOT HAVE AVAILED HIMSELF OF IT DURING A THREE-YEAR OR A FOUR-YEAR PERIOD. IN OTHER WORDS, IN THE EXAMPLE CITED ABOVE, IT IS THE DEPARTMENT'S UNDERSTANDING THAT THE OFFICER IN QUESTION HAS TO HIS CREDIT 172 1/2 DAYS WHICH HAVE ACCUMULATED OVER A SEVEN-YEAR PERIOD. HE COULD, THEREFORE, BE GRANTED THE WHOLE AMOUNT IN 1938 PLUS 60 DAYS TO WHICH HE IS ENTITLED FOR THAT YEAR. ON THE OTHER HAND, AN OFFICER WHO HAS TAKEN NO LEAVE AT ALL FOR FOUR YEARS WOULD HAVE ACCUMULATED TO HIS CREDIT 240 DAYS BUT COULD NOT BE GRANTED MORE THAN 180 DAYS THEREOF DURING THE FIFTH YEAR PLUS THE 60 DAYS ALLOWABLE FOR THAT YEAR.

YOUR LETTER OF MARCH 18, FILE NO. A-84247 INDICATES THAT YOU HAD A SIMILAR INTERPRETATION IN MIND AT THAT TIME, ALTHOUGH YOUR LETTER DID NOT COVER THE PARTICULAR POINT ON WHICH YOUR ADVICE IS NOW SOUGHT.

I AM UNABLE TO CONCUR IN THE DEPARTMENT'S VIEWS RESPECTING THE AMOUNT OF ACCUMULATED LEAVE WHICH MAY BE TAKEN BY THE EMPLOYEE DURING 1938 UNDER THE EXAMPLE CITED IN THE OPENING PARAGRAPH OF YOUR LETTER. WHILE THAT PART OF THE STATUTE QUOTED IN YOUR LETTER PROVIDES THAT ANY PORTION OF 60 DAYS' ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY 1 YEAR MAY BE CUMULATIVE, THE STATUTE GOES FURTHER BY PROVIDING THAT SUCH CUMULATED LEAVE MAY NOT EXCEED 120 DAYS "IN 3 YEARS" AND 180 DAYS ,IN 4 YEARS.' IN OTHER WORDS, THE LIMITATIONS OF 120 DAYS "IN 3 YEARS" AND 180 DAYS "IN 4 YEARS" PRESCRIBED IN THE STATUTE APPLY TO THE AMOUNT OF LEAVE WHICH MAY BE ACCUMULATED DURING THE RESPECTIVE PERIODS IMMEDIATELY PRECEDING THE TAKING OF ANY ACCUMULATED LEAVE. THEREFORE, IN THE EXAMPLE CITED THE MAXIMUM AMOUNT OF ANNUAL LEAVE WHICH THE EMPLOYEE MAY HAVE IN THE CALENDAR YEAR 1938 CONSISTS OF THE UNUSED LEAVE FOR THE YEARS 1934, 1935, 1936, AND 1937, OR 122 DAYS, PLUS CURRENT LEAVE OF 60 DAYS, OR A TOTAL OF 182 DAYS.

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