B-116681, SEPTEMBER 1, 1953, 33 COMP. GEN. 105

B-116681, SEPTEMBER 1, 1953, 33 COMP. GEN. 105

LEAVES OF ABSENCE - HOME LEAVE - PERSONS EMPLOYED OUTSIDE CONTINENTAL UNITED STATES UNDER ACT FOR INTERNATIONAL DEVELOPMENT, AND CHINA AID ACT OF 1948 PERSONS EMPLOYED OUTSIDE CONTINENTAL UNITED STATES UNDER THE ACT FOR INTERNATIONAL DEVELOPMENT AND THE CHINA AID ACT OF 1948, WHO ARE EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS AMENDED BY SUBSECTION 202 (C) (1) (C), ARE NOT ENTITLED TO HOME LEAVE AUTHORIZED BY SECTION 203 OF THE ACT AND ARE EXCLUDED FROM THE OPERATION OF THE FOREIGN SERVICE ACT OF 1946, WHICH PROVIDES FOR THE PAYMENT OF TRAVELING EXPENSES TO THE UNITED STATES FOR LEAVE PURPOSES.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, FOREIGN OPERATIONS ADMINISTRATION, SEPTEMBER 1, 953:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 14, 1953, REQUESTING DECISION UPON THE FOLLOWING QUESTION:

WOULD THE DESIGNATION BY THE PRESIDENT, PURSUANT TO SUBSECTION 202 (C) (1) (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (5 U.S.C. 2061), OF THE FOLLOWING OFFICERS PREVENT THE PAYMENT OF TRAVEL EXPENSES RELATED TO THEIR ABSENCES FROM DUTY WHEN THE ABSENCES WOULD NORMALLY BE CLASSIFIED AS HOME LEAVE:

1. COUNTRY DIRECTORS OF TECHNICAL COOPERATION APPOINTED UNDER SUBSECTION 413 (C) OF THE ACT OF INTERNATIONAL DEVELOPMENT (22 U.S.C. 1557K) AND CIVIL SERVICE SCHEDULE A-1-7.

2. THE TWO UNITED STATES MEMBERS OF THE JOINT COMMISSION ON RURAL RECONSTRUCTION IN CHINA APPOINTED UNDER SECTION 407 OF THE CHINA AID ACT OF 1948 (22 U.S.C. 1546/?

SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, WAS AMENDED BY PUBLIC LAW 102, APPROVED JULY 2, 1953, 67 STAT. 136, BY THE ADDITION OF SUBSECTION (C), WHICH EXEMPTS FROM THE ACT CERTAIN OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT INCLUDING "SUCH OTHER OFFICERS (EXCEPT POSTMASTERS, UNITED STATES ATTORNEYS, AND UNITED STATES MARSHALS) AS MAY BE DESIGNATED BY THE PRESIDENT.'

IT IS STATED IN YOUR LETTER THAT THE PROVISIONS OF LAW UNDER WHICH THE COUNTRY DIRECTORS OF TECHNICAL COOPERATION ARE APPOINTED, AUTHORIZE THE PAYMENT OF COMPENSATION TO THEM AT ANY OF THE RATES PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF UNDER THE FOREIGN SERVICE ACT OF 1946, TOGETHER WITH ALLOWANCES AND BENEFITS ESTABLISHED THEREUNDER. AMONG THE BENEFITS ESTABLISHED UNDER THE FOREIGN SERVICE ACT OF 1946 ARE THOSE CONTAINED IN SECTIONS 911 AND 933 OF SAID ACT, 60 STAT. 1026 AND 1028 (22 U.S.C. 1136 AND 1148), WHICH SECTIONS ARE, IN PERTINENT PART, AS FOLLOWS:

SECTION 911. * * *

THE SECRETARY MAY, UNDER SUCH REGULATIONS AS HE SHALL PRESCRIBE, PAY --

(1) THE TRAVEL EXPENSES OF OFFICERS AND EMPLOYEES OF THE SERVICE, INCLUDING EXPENSES INCURRED WHILE TRAVELING PURSUANT TO ORDERS ISSUED BY THE SECRETARY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 933 WITH REGARD TO THE GRANTING OF HOME LEAVE;

(2) THE TRAVEL EXPENSES OF THE MEMBERS OF THE FAMILY OF AN OFFICER OR EMPLOYEE OF THE SERVICE WHEN PROCEEDING TO OR RETURNING FROM HIS POST OF DUTY; ACCOMPANYING HIM ON AUTHORIZED HOME LEAVE; OR OTHERWISE TRAVELING IN ACCORDANCE WITH THE AUTHORITY GRANTED PURSUANT TO THE TERMS OF THIS OR ANY OTHER ACT;

SECTION 933. * * *

(A) THE SECRETARY SHALL ORDER TO THE CONTINENTAL UNITED STATES ON STATUTORY LEAVE OF ABSENCE EVERY OFFICER AND EMPLOYEE OF THE SERVICE WHO IS A CITIZEN OF THE UNITED STATES UPON COMPLETION OF TWO YEARS' CONTINUOUS SERVICE ABROAD OR AS SOON AS POSSIBLE THEREAFTER.

IN OFFICE DECISION OF APRIL 3, 1952, 31 COMP. GEN. 494, IT WAS HELD THAT OFFICERS, SUCH AS THOSE HERE INVOLVED, WHO WERE AUTHORIZED TO RECEIVE COMPENSATION AND BENEFITS UNDER THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, WERE ENTITLED TO THE "HOME LEAVE" AUTHORIZED FOR FOREIGN SERVICE OFFICERS UNDER SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, SUCH LEAVE HAVING BEEN PROVIDED IN LIEU OF THAT PREVIOUSLY GRANTED UNDER THE FOREIGN SERVICE ACT OF 1946. SUCH OFFICERS APPARENTLY HAVE CONTINUED TO RECEIVE PAYMENT OF TRAVELING EXPENSES TO THE UNITED STATES WHEN ORDERED HERE ON "HOME LEAVE.'

IN MY OPINION THE USE OF THE LANGUAGE "STATUTORY LEAVE OF ABSENCE" IN THE ABOVE PROVISION OF LAW (SECTION 933) INCLUDES ONLY SUCH LEAVE AS NOW IS AUTHORIZED BY LAW, THAT IS, BY SECTION 203 (F) OF THE 1951 LEAVE ACT, AND HAS NO APPLICATION TO ANY OTHER FORM OF LEAVE OF ABSENCE. APPARENTLY, THE CONGRESS WAS OF THE SAME VIEW BECAUSE IT INCLUDED A SPECIFIC PROVISION IN PUBLIC LAW 102 OF JULY 2, 1952, THAT THE PRESIDENT COULD AUTHORIZE LEAVES OF ABSENCE FOR USE IN THE UNITED STATES, ITS TERRITORIES OR POSSESSIONS TO THOSE PERSONS EXEMPTED FROM THE ACT UNDER SUBSECTION 202 (C) (1) (B), THAT IS, PERSONS COMPENSATED IN ACCORDANCE WITH SECTION 411 OF THE FOREIGN SERVICE ACT OF 1946. I CANNOT AGREE WITH THE VIEW PRESENTED IN YOUR LETTER THAT SUCH A PROVISION WAS UNNECESSARY. ACCORDINGLY, AND SINCE A SIMILAR PROVISION WAS NOT MADE FOR THOSE OFFICERS EXEMPTED FROM THE ACT UNDER A DESIGNATION BY THE PRESIDENT PURSUANT TO SUBSECTION 202 (C) (1) (C), IT MUST BE CONCLUDED THAT ANY OFFICER DESIGNATED BY THE PRESIDENT AS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT PURSUANT TO SAID SUBSECTION 202 (C) (1) (C), AND WHO, BY REASON THEREOF, IS NOT ENTITLED TO THE ,STATUTORY LEAVE OF ABSENCE" PROVIDED FOR IN SECTION 203 (F) OF THE 1951 LEAVE ACT, WOULD BE EXCLUDED FROM THE OPERATION OF THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1946, SUPRA, PROVIDING FOR THE AUTHORIZATION OF PAYMENT OF TRAVELING EXPENSES BACK TO THE UNITED STATES FOR LEAVE PURPOSES.

THE SAME CONCLUSION IS APPLICABLE TO THE TWO UNITED STATES MEMBERS OF THE JOINT COMMISSION ON RURAL RECONSTRUCTION IN CHINA, WHOM, YOUR LETTER STATES, WERE APPOINTED AS FOREIGN SERVICE RESERVE OFFICERS.

ACCORDINGLY, BOTH PARTS OF THE QUESTION PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.