B-108478, APRIL 3, 1952, 31 COMP. GEN. 494

B-108478, APRIL 3, 1952, 31 COMP. GEN. 494

LEAVES OF ABSENCE - HOME LEAVE - PERSONS EMPLOYED OUTSIDE CONTINENTAL UNITED STATES UNDER ACT FOR INTERNATIONAL DEVELOPMENT HOME LEAVE PROVIDED BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IS TO BE CONSIDERED A BENEFIT ESTABLISHED UNDER THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, WITHIN THE MEANING OF SECTION 413 (C) OF THE ACT FOR INTERNATIONAL DEVELOPMENT WHICH AUTHORIZES SUCH BENEFITS TO EMPLOYEES SERVING OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES UNDER THE ACT FOR INTERNATIONAL DEVELOPMENT, SO THAT SUCH EMPLOYEES MAY BE GRANTED HOME LEAVE PURSUANT TO THE AUTHORITY OF SAID SECTION 413 (C).

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF STATE, APRIL 3, 1952:

REFERENCE IS MADE TO THE DEPUTY UNDER SECRETARY'S LETTER OF MARCH 7, 1952, REQUESTING DECISION WHETHER SECTION 413 (C) OF THE ACT FOR INTERNATIONAL DEVELOPMENT, PUBLIC LAW 535, AUTHORIZES THE DEPARTMENT OF STATE AND THE PARTICIPATING AGENCIES TO GRANT EMPLOYEES, PERFORMING DUTIES UNDER THAT ACT OUTSIDE CONTINENTAL UNITED STATES, THE HOME LEAVE BENEFITS PROVIDED BY SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680.

SECTION 413 (C) OF THE ACT FOR INTERNATIONAL DEVELOPMENT, APPROVED JUNE 5, 1950, 64 STAT. 207, 22 U.S.C. 1557K (C) PROVIDES:

PERSONS EMPLOYED FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT ASSIGNED FOR SUCH DUTY, MAY RECEIVE COMPENSATION AT ANY OF THE RATES PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946 (60 STAT. 999), AS AMENDED, MAY RECEIVE ALLOWANCES AND BENEFITS NOT IN EXCESS OF THOSE ESTABLISHED THEREUNDER, AND MAY BE APPOINTED TO ANY CLASS IN THE FOREIGN SERVICE RESERVE OR STAFF IN ACCORDANCE WITH THE PROVISIONS OF SUCH ACT.

TITLE IX OF THE FOREIGN SERVICE ACT OF 1946, IS HEADED, " ALLOWANCES AND BENEFITS," AND SECTION 931 (A) AND (B) OF THAT TITLE, 60 STAT. 1028, PROVIDES:

THE SECRETARY MAY, IN HIS DISCRETION AND IN ACCORDANCE WITH SUCH REGULATIONS AS HE MAY PRESCRIBE, GRANT AN OFFICER OR EMPLOYEE OF THE SERVICE WHO IS A CITIZEN OF THE UNITED STATES NOT TO EXCEED SIXTY CALENDAR DAYS' ANNUAL LEAVE OF ABSENCE WITH PAY.

WHERE AN OFFICER OR EMPLOYEE ON LEAVE RETURNS TO THE CONTINENTAL UNITED STATES, THE LEAVE OF ABSENCE GRANTED PURSUANT TO THE PROVISIONS OF PARAGRAPH (A) OF THIS SECTION SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE CONTINENTAL UNITED STATES, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING OR FLIGHT.

HOWEVER, SAID SECTION 931 OF THE FOREIGN SERVICE ACT, SUPRA, WAS EXPRESSLY REPEALED BY SECTION 207 (A) (6) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 682, WHICH ACT SUBSTITUTED THEREFOR OTHER LEAVE PROVISIONS.

SECTION 203 (E) AND (F) OF THE LATTER ACT, 64 STAT. 680, PROVIDES:

(E) WHERE AN OFFICER OR EMPLOYEE TO WHOM THE PROVISIONS OF SUBSECTION (D) ARE APPLICABLE, OR WHO IS IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE, AND WHOSE POST OF DUTY IS OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA RETURNS TO ANY SUCH STATE OR THE DISTRICT OF COLUMBIA ON LEAVE, THE LEAVE GRANTED PURSUANT TO THIS ACT SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM HIS POST OF DUTY AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING OR FLIGHT. THE PROVISIONS OF THIS SUBSECTION SHALL NOT APPLY WITH RESPECT TO MORE THAN ONE PERIOD OF LEAVE IN ANY TWENTY-FOUR MONTH PERIOD.

(F) OFFICERS AND EMPLOYEES IN THE FOREIGN SERVICE OF THE UNITED STATES UNDER THE DEPARTMENT OF STATE MAY BE GRANTED LEAVE OF ABSENCE, WITHOUT REGARD TO ANY OTHER LEAVE PROVIDED BY THIS TITLE, FOR USE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS, AT A RATE EQUIVALENT TO ONE WEEK FOR EACH FOUR MONTHS OF SERVICE OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA. SUCH LEAVE MAY BE ACCUMULATED FOR FUTURE USE WITHOUT REGARD TO THE LIMITATION IN SUBSECTION (C) BUT NO SUCH LEAVE WHICH IS NOT USED SHALL BE MADE THE BASIS FOR ANY TERMINAL LEAVE OR LUMP-SUM PAYMENT.

YOUR SUBMISSION THUS PRESENTS THE QUESTION WHETHER, IN VIEW OF THE REPEAL OF THAT PORTION OF THE FOREIGN SERVICE ACT OF 1946, PERTAINING TO LEAVE, THE PRESENT LEAVE RIGHTS OF FOREIGN SERVICE EMPLOYEES AND THOSE EMPLOYEES OF OTHER AGENCIES STATIONED OUTSIDE CONTINENTAL UNITED STATES ARE ALLOWANCES AND BENEFITS ESTABLISHED UNDER THE FOREIGN SERVICE ACT OF 1946, WITHIN THE PURVIEW OF SECTION 413 (C) OF THE ACT FOR INTERNATIONAL DEVELOPMENT, SUPRA.

IT APPEARS THAT PRIOR TO THE PASSAGE OF THE ANNUAL AND SICK LEAVE ACT OF OCTOBER 30, 1951, SECTION 413 (C) HAD BEEN CONSTRUED AS AUTHORIZING THE GRANTING OF HOME LEAVE TO THOSE PERSONS EMPLOYED UNDER THE ACT FOR INTERNATIONAL DEVELOPMENT AND STATIONED OUTSIDE THE UNITED STATES BUT SUCH HOME LEAVE WAS INCLUDED IN, AND WAS NOT IN ADDITION TO, THE 60 DAYS LEAVE GRANTED BY SEC. 931 OF THE FOREIGN SERVICE ACT. WHILE THE ACT OF OCTOBER 30, 1951, REPEALED THE FORMER STATUTE UNDER WHICH HOME LEAVE HAD BEEN AUTHORIZED IT SUBSTITUTED THEREFOR A NEW STATUTORY PROVISION FOR HOME LEAVE IN SEC. 203 (F) SUPRA.

IF THE ANNUAL AND SICK LEAVE ACT OF 1951, INSTEAD OF EXPRESSLY REPEALING SECTION 931 OF THE FOREIGN SERVICE ACT HAD EXPRESSLY AMENDED SECTION 931 TO READ AS IN SECTIONS 203 (E) AND (F) THERE WOULD HAVE BEEN NO DOUBT BUT THAT THE PRESENT LEAVE RIGHTS OF FOREIGN SERVICE EMPLOYEES WOULD HAVE BEEN CONSIDERED AS GRANTED UNDER THE FOREIGN SERVICE ACT. ACCORDINGLY, IRRESPECTIVE OF THE LEGISLATIVE PROCEDURE FOLLOWED IN ACCOMPLISHING THE SAME RESULT, SAID SECTIONS 203 (E) AND (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, WILL BE CONSIDERED, IN EFFECT, A SUBSTITUTION FOR, OR AN AMENDMENT OF, SAID SECTION 931 OF THE FOREIGN SERVICE ACT OF 1946, AND AS GRANTING RIGHTS THEREUNDER WITHIN THE PURVIEW OF SECTION 413 (C) OF THE ACT FOR INTERNATIONAL DEVELOPMENT.

IN LIGHT OF THE FOREGOING THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.