B-144357, JANUARY 10, 1961, 40 COMP. GEN. 410

B-144357, JANUARY 10, 1961, 40 COMP. GEN. 410

CIVILIAN PERSONNEL - MILITARY LEAVE - RETROACTIVE ADJUSTMENTS A CIVILIAN OFFICER OR EMPLOYEE WHO WAS SEPARATED FOR MILITARY DUTY PRIOR TO JANUARY 1, 1953--- EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952--- IS NOT REGARDED AS HAVING THE STATUS OF AN OFFICER OR EMPLOYEE (FURLOUGH OR LEAVE OF ABSENCE WHILE ON MILITARY DUTY) UNDER 50 U.S.C. APP. 459 (C) TO BE ENTITLED TO MILITARY LEAVE, BUT WHEN SUCH OFFICERS AND EMPLOYEES ARE DETERMINED TO BE DUE 15 DAYS OF MILITARY LEAVE AFTER JANUARY 1, 1953, UPON RESTORATION TO DUTY PURSUANT TO 50 U.S.C. APP. 459 (G) (2), SUCH RIGHT DOES NOT MATERIALIZE UNTIL THE EMPLOYEE IS RESTORED TO DUTY SO THAT ANNUAL LEAVE ACCRUING DURING THE MILITARY LEAVE PERIOD IS NOT SUBJECT TO THE ACT OF AUGUST 1, 1941, 5 U.S.C. 61A, WHICH PERMITS EMPLOYEES TO ELECT TO BE PAID FOR LUMP-SUM LEAVE UPON ENTRY INTO THE MILITARY SERVICE, BUT RATHER IS CREDITABLE ONLY UPON THE EMPLOYEE'S RESTORATION TO DUTY SUBJECT TO THE MAXIMUM ACCUMULATION PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062. CIVILIAN OFFICERS OR EMPLOYEES WHO ENTERED UPON ACTIVE MILITARY DUTY AFTER JANUARY 1, 1953--- THE EFFECTIVE DATE OF THE ARMED FORCES RESERVE ACT OF 1952--- SO THAT THEIR ENTITLEMENT TO MILITARY LEAVE UNDER 5 U.S.C. 30R DOES NOT DEPEND UPON A RETURN TO A CIVILIAN DUTY STATUS MAY BE PAID ADDITIONAL LUMP-SUM LEAVE UNDER THE ACT OF AUGUST 1, 1941, 5 U.S.C. 61A, FOR LEAVE WHICH WOULD HAVE ACCRUED DURING THE 15-DAY PERIOD OF MILITARY LEAVE, SUBJECT TO APPLICABLE LEAVE CEILINGS, PROVIDED THAT, UPON ENTRANCE INTO MILITARY SERVICE, THEY ELECTED TO HAVE THEIR LEAVE REMAIN TO THEIR CREDIT, THEY SHOULD BE CREDITED WITH THE ANNUAL LEAVE WHICH ACCRUED DURING THE PERIOD OF RETROACTIVELY GRANTED MILITARY LEAVE AS OF THE TIME IT ACCRUED, AND THEIR LEAVE ACCOUNTS RECONSTRUCTED ACCORDINGLY, DUE REGARD BEING MADE TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE 1951 LEAVE ACT.

TO THE SECRETARY OF THE TREASURY, JANUARY 10, 1961:

ON OCTOBER 27, 1960, THE ACTING SECRETARY OF THE TREASURY REQUESTED OUR ADVICE REGARDING THE DISPOSITION OF ANNUAL LEAVE WHICH ACCRUED TO EMPLOYEES DURING PERIODS OF MILITARY LEAVE THAT HAS BEEN RETROACTIVELY GRANTED.

IN 37 COMP. GEN. 608, WE HELD THAT AN EMPLOYEE WHO IS RETROACTIVELY GRANTED MILITARY LEAVE IS ENTITLED TO PAYMENT OR CREDIT, IF OTHERWISE PROPER, OF THE ANNUAL AND SICK LEAVE WHICH WOULD HAVE ACCRUED DURING THE 15-DAY PERIOD OF MILITARY LEAVE. THE ACTING SECRETARY HAS PRESENTED FOR OUR CONSIDERATION FOUR QUESTIONS CONCERNING THE PAYMENT FOR, OR CREDIT OF, ANNUAL LEAVE, VIZ:

1. MAY AN EMPLOYEE BE PAID FOR ANNUAL LEAVE ACCRUED DURING A PERIOD OF MILITARY LEAVE RETROACTIVELY GRANTED, IF AT THE TIME OF SEPARATION FOR MILITARY SERVICE HE WAS PAID FOR HIS ACCUMULATED LEAVE?

2. IF YOUR ANSWER TO QUESTION 1 IS IN THE NEGATIVE WHAT DISPOSITION SHOULD BE MADE OF SUCH ANNUAL LEAVE PROVIDING THE EMPLOYEE MAY NOT BE CREDITED WITH THE LEAVE DUE TO THE CEILING RESTRICTIONS?

3. MAY ANNUAL LEAVE WHICH WAS NOT CREDITED TO AN EMPLOYEE AT THE TIME OF PAYMENT OF HIS MILITARY LEAVE CLAIM, BE CREDITED TO HIS LEAVE ACCOUNT IN THE FOLLOWING LEAVE YEAR?

4. IF A CLAIM WAS PAID SO LATE IN THE 1959 LEAVE YEAR THAT THE EMPLOYEE WAS UNABLE TO USE THE ADDITIONAL LEAVE ACCRUED DURING THE PERIOD OF MILITARY SERVICE AND, DUE TO CEILING RESTRICTIONS, HE COULD NOT BE CREDITED WITH THE LEAVE MAY SUCH LEAVE BE CREDITED TO HIS LEAVE ACCOUNT IN THE FOLLOWING LEAVE YEAR?

THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED, 5 U.S.C. 61A, PROVIDES THAT:

EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

EMPLOYEES WHO ELECT TO RECEIVE COMPENSATION FOR THEIR ANNUAL LEAVE ARE PAID UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, 5 U.S.C. 61B, WHICH SPECIFIES IN PART THAT:

WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH SECTION 61A OF THIS TITLE OR SECTION 1474 OF APPENDIX TO TITLE 50, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP- SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL AFTER AUGUST 31, 1953, NO SUCH LUMP-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. * * *

WE DIRECT YOUR ATTENTION TO THE FACT THAT THE DECISION IN 37 COMP. GEN. 608 SPECIFICALLY EXCEPTED THEREFROM THOSE CASES WHEN THE EMPLOYEES HAD BEEN ORDERED TO ACTIVE DUTY PRIOR TO JANUARY 1, 1953, AND WERE SEPARATED FROM THE SERVICE, AND (1) WHO WERE NOT RELIEVED FROM ACTIVE DUTY WITHIN FOUR YEARS FROM THE DATE OF THEIR ENTERING UPON ACTIVE MILITARY DUTY, OR (2) WHO HAVE NOT BEEN RESTORED TO DUTY. THAT DECISION ALSO REQUIRED THAT CLAIMS OF THAT TYPE BE SUBMITTED TO OUR OFFICE FOR DIRECT SETTLEMENT. THE SETTLEMENT OF THESE CLAIMS WE HAVE ALLOWED MILITARY LEAVE ONLY WHEN IT APPEARED THAT THE EMPLOYEE HAD BEEN RESTORED TO DUTY PURSUANT TO 50 U.S.C. APP. 459 (G) (2) NOT LATER THAN FOUR YEARS AFTER THE DATE OF HIS ENTERING UPON ACTIVE DUTY OR AS SOON AFTER THE EXPIRATION OF SUCH FOUR YEARS AS HE WAS ABLE TO OBTAIN ORDERS RELEASING HIM FROM ACTIVE DUTY. UNLESS RESTORED TO DUTY UNDER 50 U.S.C. APP. 459 (G) (2) AN EMPLOYEE (SEPARATED FOR MILITARY DUTY PRIOR TO JANUARY 1, 1953) IS NOT REGARDED AS HAVING THE STATUS OF A CIVILIAN OFFICER OR EMPLOYEE (FURLOUGH OR LEAVE OF ABSENCE WHILE ON MILITARY DUTY) SUCH AS GRANTED BY 50 U.S.C. APP. 459 (C), SO AS TO PERMIT THE GRANTING OF MILITARY LEAVE. WHEN MILITARY LEAVE IS DETERMINED AS BEING DUE FOR A PERIOD OF 15 DAYS AFTER JANUARY 1, 1953, IT IS APPARENT THAT THE RIGHT TO SUCH MILITARY LEAVE DID NOT MATERIALIZE UNTIL THE EMPLOYEE WAS RESTORED TO DUTY IN THE MANNER INDICATED ABOVE. LIKEWISE, THE RIGHT TO ACCRUE ANNUAL AND SICK LEAVE DID NOT MATERIALIZE UNTIL THE EMPLOYEE WAS RESTORED TO DUTY. CONSEQUENTLY, WE DO NOT VIEW THE ANNUAL LEAVE ACCRUING DURING SUCH PERIOD OF MILITARY LEAVE AS SUBJECT TO THE ACT OF AUGUST 1, 1941, AS AMENDED, SO AS TO PERMIT AN ELECTION TO BE PAID FOR SAME AS OF THE TIME OF AN EMPLOYEE'S ENTRY INTO THE MILITARY SERVICE. RATHER, WE VIEW SUCH ANNUAL LEAVE AS BEING CREDITABLE ONLY, AND IT IS FOR CREDITING AS OF THE DATE OF AN EMPLOYEE'S RESTORATION TO DUTY SUBJECT TO THE MAXIMUM ACCUMULATION PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.

TURNING NOW TO EMPLOYEES WHO ENTER UPON ACTIVE MILITARY DUTY AFTER JANUARY 1, 1953, WE HAVE TREATED THOSE EMPLOYEES AS ENTITLED TO MILITARY LEAVE BY REASON OF THEIR CIVILIAN DUTY STATUS PRIOR TO THEIR ENTRY UPON ACTIVE MILITARY DUTY. SINCE THEIR ENTITLEMENT TO SUCH LEAVE DOES NOT DEPEND UPON A RETURN TO A CIVILIAN DUTY STATUS, THEIR ANNUAL LEAVE AT TIME OF ENTRY INTO THE MILITARY SERVICE, AND THE ANNUAL LEAVE ACCRUED DURING THE PERIOD OF MILITARY LEAVE--- IN THOSE CASES WHEN THEY HAVE ELECTED TO BE PAID FOR THEIR ANNUAL LEAVE UPON ENTRY INTO THE MILITARY SERVICE--- MAY BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENTS MADE TO EMPLOYEES AT THE TIME THEY ENTERED UPON ACTIVE MILITARY DUTY AFTER JANUARY 1, 1953, SUBJECT TO APPLICABLE LEAVE CEILINGS. SEE 5 U.S.C. 61B ABOVE.

THOSE EMPLOYEES ENTERING THE MILITARY SERVICE AFTER JANUARY 1, 1953, WHO ELECTED TO HAVE THEIR LEAVE REMAIN TO THEIR CREDIT SHOULD BE CREDITED WITH THE ANNUAL LEAVE ACCRUED DURING THE PERIOD OF RETROACTIVELY GRANTED MILITARY LEAVE AS OF THE TIME IT ACCRUED AND THEIR LEAVE ACCOUNTS RECONSTRUCTED. HOWEVER, IN RECONSTRUCTING SUCH LEAVE ACCOUNTS AND CARRYING THEM FORWARD TO THE CURRENT YEAR THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, WOULD BE APPLICABLE SO AS TO REQUIRE A FORFEITURE OF SUCH LEAVE IF IN EXCESS OF PERMITTED CEILINGS. SEE B-138640, FEBRUARY 26, 1959, AND 36 COMP. GEN. 596.

WE BELIEVE THE FOREGOING COMMENTS ADEQUATELY ANSWER THE QUESTIONS PRESENTED.