B-147975, FEBRUARY 27, 1962, 41 COMP. GEN. 563

B-147975, FEBRUARY 27, 1962, 41 COMP. GEN. 563

LEAVES OF ABSENCE - CIVILIANS AND MILITARY DUTY - EXCESS LEAVE EMPLOYEES WHOSE EFFECTIVE DATE OF SEPARATION FOR ACTIVE MILITARY DUTY AS A RESERVIST OR NATIONAL GUARDSMAN WAS EXTENDED TO PERMIT THE GRANTING OF ANNUAL LEAVE WHICH OTHERWISE WOULD HAVE BEEN SUBJECT TO FORFEITURE PRIOR TO 41 COMP. GEN. 320, IN WHICH IT WAS HELD THAT ONLY EMPLOYEES WHO WERE MEMBERS OF A RESERVE COMPONENT OR THE NATIONAL GUARD COULD BE CARRIED ON ANNUAL LEAVE DURING MILITARY SERVICE, SUBJECT TO THE LEAVE CEILING RESTRICTION ON ACCUMULATION OF LEAVE AT THE END OF THE LEAVE YEAR, MAY HAVE THEIR LEAVE ACCOUNTS ADJUSTED ON THE BASIS THAT THEY WOULD HAVE REQUESTED A LUMP-SUM PAYMENT FOR THE BALANCE OF THEIR ANNUAL LEAVE AND THAT THE EXCESS LEAVE FOR FORFEITURE REMAINS TO THEIR CREDIT UNTIL THEIR RETURN FROM MILITARY SERVICE PROVIDED THAT REFUNDS ARE MADE FOR ANY PAYMENTS IN EXCESS THEREOF. EMPLOYEES WHOSE EFFECTIVE DATE OF SEPARATION FOR ACTIVE MILITARY DUTY OTHER THAN AS A RESERVIST OR NATIONAL GUARDSMAN WAS EXTENDED TO PERMIT THE GRANTING OF ANNUAL LEAVE WHICH OTHERWISE WOULD HAVE BEEN FORFEITED PRIOR TO 41 COMP. GEN. 320, IN WHICH IT WAS HELD THAT SUCH EMPLOYEES WERE PROHIBITED FROM RECEIVING PAYMENT FOR ANNUAL LEAVE IN KIND WHILE RECEIVING MILITARY PAY, MAY HAVE THEIR LEAVE ACCOUNTS ADJUSTED ON THE BASIS THAT THEY WOULD HAVE ELECTED TO RECEIVE A LUMP SUM PAYMENT FOR SUCH LEAVE AT THE TIME OF ENTRY ON ACTIVE MILITARY DUTY TO THE EXTENT PERMITTED BY LAW PROVIDED THAT REFUNDS ARE MADE FOR PAYMENTS IN EXCESS OF THOSE WHICH COULD HAVE PROPERLY BEEN MADE.

TO THE SECRETARY OF THE ARMY, FEBRUARY 27, 1962:

ON JANUARY 16, 1962, THE DEPUTY UNDER SECRETARY ( MANPOWER) REQUESTED OUR DECISION REGARDING THE GRANTING OF ANNUAL LEAVE TO EMPLOYEES ENTERING MILITARY SERVICE. HIS LETTER SAYS:

IN EFFECTING SEPARATIONS FROM EMPLOYMENT IT IS THE POLICY OF THE DEPARTMENT OF THE ARMY TO EXTEND THE EFFECTIVE DATE WHEREVER POSSIBLE TO THE EXTENT NECESSARY TO AVOID FORFEITURE OF ACCRUED ANNUAL LEAVE. CONSISTENT WITH THIS POLICY, INSTRUCTIONS WERE ISSUED ON 10 OCTOBER 1961 TO ALL CIVILIAN PERSONNEL OFFICES AS FOLLOWS: " IN SEPARATING EMPLOYEES FOR MILITARY SERVICE, EFFECTIVE DATE OF SEPARATION WILL BE EXTENDED TO PERMIT GRANT OF * * * ANY ANNUAL LEAVE WHICH WOULD OTHERWISE BE SUBJECT TO FORFEITURE.'

FOLLOWING RECEIPT OF YOUR DECISION B-144198, DATED 21 NOVEMBER 1961 (41 COMP. GEN. 320), ACTION WAS TAKEN TO RESCIND THE ABOVE QUOTED PROVISION AND TO FURNISH INSTRUCTIONS CONSISTENT WITH THE FINDINGS IN YOUR DECISION. IN THE MEANWHILE INSTANCES HAVE OCCURRED WHERE THE EFFECTIVE DATES OF SEPARATION FOR EMPLOYEES ENTERING ON MILITARY DUTY HAVE BEEN EXTENDED TO AVOID FORFEITURE OF ANNUAL LEAVE. IT IS BELIEVED THAT IN MOST INSTANCES THE EMPLOYEES CONCERNED ARE MEMBERS OF RESERVE COMPONENTS OR OF THE NATIONAL GUARD, BUT IT IS POSSIBLE THAT SOME FEW CASES MAY HAVE OCCURRED WHERE THE EMPLOYEES ARE NOT RESERVISTS OR NATIONAL GUARDSMEN.

YOUR DECISION IS REQUESTED AS TO WHETHER ACTIONS WHICH INVOLVED EXTENSION OF EFFECTIVE DATES OF SEPARATION FOR MILITARY SERVICE IN ORDER TO AVOID LEAVE FORFEITURE AND WHICH OCCURRED PRIOR TO ISSUANCE OF INSTRUCTIONS REFLECTING THE PROVISIONS OF DECISION B-144198 MAY BE PERMITTED TO STAND. IF NOT, WOULD CORRECTIVE ACTION BE REQUIRED ONLY IN THOSE CASES WHERE THE EMPLOYEES CONCERNED ARE NOT MEMBERS OF RESERVE COMPONENTS OR THE NATIONAL GUARD?

OUR DECISION OF NOVEMBER 21, 1961, B-144198, 41 COMP. GEN. 320, HELD, AMONG OTHER THINGS, THAT A CIVILIAN EMPLOYEE WHO IS A MEMBER OF A RESERVE COMPONENT OR THE NATIONAL GUARD MAY BE CARRIED IN AN ANNUAL LEAVE STATUS DURING ACTIVE MILITARY SERVICE, BUT IF SO CARRIED HE IS SUBJECT TO THE CEILING RESTRICTION ON ACCUMULATION OF LEAVE AT THE END OF THE LEAVE YEAR. ALSO, THAT DECISION HELD THAT AN EMPLOYEE WHO IS NOT A NATIONAL GUARDSMAN OR RESERVIST COULD NOT BE CARRIED ON ANNUAL LEAVE AFTER ENTRY INTO THE MILITARY SERVICE.

WE ASSUME THAT IF INSTRUCTIONS HAD BEEN AVAILABLE AS TO THE APPLICATION OF OUR DECISION OF NOVEMBER 21, 1961, THOSE EMPLOYEES WHO WERE MEMBERS OF RESERVE COMPONENTS OR THE NATIONAL GUARD--- BEING CARRIED ON ANNUAL LEAVE AND TO WHOM THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2061, ET SEQ., AS AMENDED, WERE APPLICABLE--- WOULD HAVE REQUESTED THAT PAYMENT BE MADE IN A LUMP SUM FOR THE BALANCE OF THEIR ANNUAL LEAVE AND THAT ANY ANNUAL LEAVE OTHERWISE FOR FORFEITURE REMAIN TO THEIR CREDIT UNTIL RETURN FROM THE MILITARY SERVICE. THEREFORE, THE LEAVE ACCOUNTS OF SUCH EMPLOYEES (RESERVISTS OR NATIONAL GUARDSMEN) SHOULD BE ADJUSTED ON THAT BASIS AND REFUNDS REQUIRED FOR ANY PAYMENTS IN EXCESS THEREOF.

CONCERNING THOSE EMPLOYEES WHO ARE NOT MEMBERS OF RESERVE COMPONENTS OR THE NATIONAL GUARD WHO ARE PROHIBITED FROM THEIR BEING PAID FOR ANNUAL LEAVE IN KIND WHILE RECEIVING MILITARY PAY, AS INDICATED IN THE DECISION OF NOVEMBER 21, 1961, WE FURTHER ASSUME THAT SUCH EMPLOYEES WOULD HAVE ELECTED TO RECEIVE A LUMP-SUM PAYMENT FOR SUCH LEAVE AT THE TIME OF THEIR ENTRY INTO THE MILITARY SERVICE TO THE EXTENT PERMITTED BY APPLICABLE STATUTES AND TO HAVE ANY BALANCE OF ANNUAL LEAVE REMAIN TO THEIR CREDIT. THEREFORE, THE LEAVE ACCOUNTS OF THIS GROUP OF EMPLOYEES SHOULD LIKEWISE BE ADJUSTED AND REFUNDS REQUIRED FOR ANY PAYMENTS IN EXCESS OF THOSE WHICH COULD HAVE PROPERLY BEEN MADE AT THE TIME OF ENTRY INTO THE MILITARY SERVICE.