B-145180, NOV. 2, 1961

B-145180, NOV. 2, 1961

TO HONORABLE JOHN W. MACY, JR., CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

THIS REFERS TO YOUR LETTERS OF JUNE 29 AND AUGUST 22, 1961, REQUESTING OUR REVIEW OF, AND COMMENTS UPON, THE REGULATIONS PROPOSED BY YOUR COMMISSION TO GOVERN THE ENTITLEMENT OF EMPLOYEES STATIONED OUTSIDE THE UNITED STATES TO A LEAVE CEILING OF 45 DAYS UNDER SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062 (D).

THAT SECTION PROVIDES IN PERTINENT PART:

"NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (C), A MAXIMUM ACCUMULATION NOT TO EXCEED FORTY-FIVE DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PAY PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, IN ANY YEAR IS AUTHORIZED FOR THE FOLLOWING CATEGORIES OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE UNITED STATES:

"/1) PERSONS DIRECTLY RECRUITED OR TRANSFERRED BY THE FEDERAL GOVERNMENT (A) FROM THE UNITED STATES, OR (B) FROM THE COMMONWEALTH OF PUERTO RICO OR THE POSSESSIONS OF THE UNITED STATES FOR EMPLOYMENT OUTSIDE THE AREA OF RECRUITMENT OR FROM WHICH TRANSFERRED.'

THE FIRST QUESTION PRESENTED IN YOUR LETTER OF JUNE 29, 1961, AND REFERRED TO, ALSO, IN YOUR LETTER OF AUGUST 22, IS AS FOLLOWS:

"MAY AN EMPLOYEE WHO LEAVES FOR A POST OF ASSIGNMENT OUTSIDE THE UNITED STATES ADD ACCRUED LEAVE EARNED PRIOR TO HIS DEPARTURE, PERMITTING HIM TO INCREASE HIS LEAVE ACCUMULATION CEILING UP TO A MAXIMUM OF 45 DAYS?

IT IS EVIDENT FROM THE LEGISLATIVE HISTORY OF THE 45-DAY LEAVE CEILING PROVISION AND THE "HOME LEAVE" PROVISION OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (D) AND (F), RESPECTIVELY, THAT BOTH SECTIONS HAVE AS A BASIC PURPOSE THE ALLOWING OF AN ADDITIONAL ACCUMULATION OF LEAVE TO EMPLOYEES STATIONED OVERSEAS SO THAT THEY WILL HAVE AMPLE LEAVE FOR EXTENDED STAYS IN THE UNITED STATES INCIDENT TO THE PERIOD OF THE OVERSEAS ASSIGNMENT. THOSE PROVISIONS ARE TO BE CONSTRUED WITH THIS COMPLEMENTARY RELATIONSHIP IN MIND. OTHER FACTORS, SUCH AS LONG STANDING ADMINISTRATIVE PRACTICES UNDER THOSE SECTIONS, OR SIMILAR SECTIONS IN EARLIER LAW, HOWEVER, ARE TO BE GIVEN APPROPRIATE WEIGHT. WE FIND THAT WHILE SECTION 203 (F) CLEARLY LIMITS ACCUMULATION OF "HOME LEAVE" TO PERIODS OF SERVICE OUTSIDE THE UNITED STATES, SECTION 203 (D) DOES NOT SO SPECIFY. MOREOVER, YOU SAY THAT AT LEAST SINCE 1936 THE ADMINISTRATIVE PRACTICE HAS BEEN TO CREDIT ACCRUED LEAVE TOWARD THE ACCUMULATION CEILING PERMITTED FOR OVERSEAS EMPLOYEES REGARDLESS OF THE LOCATION OF THE EMPLOYEE AT THE TIME THE LEAVE WAS EARNED. CF. 29 COMP. GEN. 112. THEREFORE, ON THE BASIS OF THE ADDITIONAL INFORMATION FURNISHED US, WE NOW ANSWER THE FIRST QUESTION IN THE AFFIRMATIVE--- INSTEAD OF IN THE NEGATIVE AS ANSWERED IN OUR LETTER OF JULY 24, 1961. IN LIGHT OF OUR CHANGED ANSWER HEREIN TO THE FIRST QUESTION WE DEEM IT NECESSARY TO GIVE FURTHER CONSIDERATION HERE TO THE OTHER QUESTIONS PRESENTED IN YOUR LETTER OF JUNE 29, 1961.

IN THAT LETTER YOU PRESENTED THREE FACTUAL SITUATIONS, ASSUMING IN ALL THREE:

"/* * * THAT THE EMPLOYEE HAS THE MAXIMUM 30-DAY ANNUAL LEAVE CEILING PRESCRIBED BY SECTION 203 (C) OF THE ACT; THAT THE BEGINNING DATE FOR THE LEAVE YEAR IN EACH CASE IS JANUARY 10; AND THAT HE LEAVES A POSITION IN THE UNITED STATES FOR AN OVERSEAS ASSIGNMENT, THEREBY COMING WITHIN THE SCOPE OF SECTION 203 (D) OF THE ACT WHICH LIFTS THE ANNUAL LEAVE ACCUMULATION LIMIT TO 45 DAYS).'

THE SITUATIONS ARE AS FOLLOWS:

"1. AN EMPLOYEE LEAVES IN JANUARY FOR HIS POST OF ASSIGNMENT AND IS TRANSFERRED TO THE UNITED STATES IN DECEMBER OF THE SAME LEAVE YEAR.

"Q. IS HIS LEAVE CEILING 30 DAYS PLUS LEAVE ACCRUED TO THE EFFECTIVE DATE OF TRANSFER BACK TO THE UNITED STATES NOT TO EXCEED A TOTAL OF 45 DAYS ACCUMULATED AND ACCRUED LEAVE; OR DOES HIS CEILING REMAIN FIXED AT 30 DAYS?

OUR VIEW IS THAT THE EMPLOYEE'S LEAVE CEILING WOULD BE 30 DAYS PLUS LEAVE ACCRUED TO THE EFFECTIVE DATE OF TRANSFER BACK TO THE UNITED STATES NOT TO EXCEED A TOTAL OF 45 DAYS ACCUMULATED AND ACCRUED LEAVE. CF. ANSWER TO THE FIRST QUESTION ABOVE, 29 COMP. GEN. 112, AND 26 ID. 555.

"2. AN EMPLOYEE LEAVES IN DECEMBER FOR HIS POST OF ASSIGNMENT WITH 12 DAYS CURRENT ACCRUED LEAVE WHICH HE HAS NO OPPORTUNITY TO USE BEFORE JANUARY 10 OF THE FOLLOWING YEAR.

"Q. IS HIS CEILING 30 DAYS, PLUS 12 DAYS, PLUS ANY ADDITIONAL LEAVE ACCRUED DURING THE BALANCE OF THE LEAVE YEAR; OR IS IT 30 DAYS PLUS THE ADDITIONAL LEAVE EARNED FOR THE BALANCE OF THE LEAVE YEAR?

THE ANNUAL LEAVE CEILING OF SUCH AN EMPLOYEE WOULD BE 30 DAYS, PLUS 12 DAYS PLUS ANY ADDITIONAL LEAVE ACCRUED DURING THE BALANCE OF THAT LEAVE YEAR.

"3. AN EMPLOYEE LEAVES IN DECEMBER OF ONE LEAVE YEAR; AND RETURNS TO THE UNITED STATES IN OCTOBER OF THE NEXT LEAVE YEAR. ON THE DATE OF HIS TRANSFER HOME, HIS ACCRUED LEAVE TOTALS 22 DAYS AND HIS ACCUMULATED CEILING IS 30 DAYS.

"Q. IS HIS LEAVE CEILING 45 DAYS OF ACCUMULATED LEAVE WITH 7 DAYS ACCRUED LEAVE TO HIS CREDIT TO BE USED BEFORE THE END OF THAT LEAVE YEAR?

THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

ON CONSIDERATION OF THE ADDITIONAL INFORMATION IN YOUR LETTER OF AUGUST 22, THE VIEWS EXPRESSED IN OUR LETTER OF JULY 24, 1961, B 145180, ON THE PROPOSED REGULATIONS, ARE MODIFIED AS INDICATED HEREIN.