B-21297, NOVEMBER 5, 1941, 21 COMP. GEN. 423

B-21297, NOVEMBER 5, 1941, 21 COMP. GEN. 423

OFFICERS AND EMPLOYEES - LEAVE PAYMENTS AFTER MILITARY DUTY - RETURN TO CIVILIAN POSITION PRIOR TO ACT OF AUGUST 1, 1941 IF AN EMPLOYEE RETURNED TO HIS CIVILIAN POSITION FROM ACTIVE MILITARY SERVICE PRIOR TO AUGUST 1, 1941, THE DATE OF APPROVAL OF PUBLIC LAW 202, GRANTING TO EMPLOYEES ORDERED TO MILITARY DUTY THE RIGHT TO RECEIVE PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE IN ADDITION TO THEIR MILITARY PAY, HE WAS NOT IN A STATUS UPON WHICH THE STATUTE COULD OPERATE AND IS ENTITLED MERELY TO BE RECREDITED WITH SUCH LEAVE.

COMPTROLLER GENERAL WARREN TO A. E. MARTIN, DISBURSING CLERK, POST OFFICE DEPARTMENT, NOVEMBER 5, 1941:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1941, AS FOLLOWS:

THERE ARE TRANSMITTED HEREWITH TWO SHORT-FORM PAY-ROLL SALARY VOUCHERS WHICH HAVE BEEN CERTIFIED TO ME FOR PAYMENT. THEY COVER PAYMENT OF SALARY TO CLARENCE L. WILLIAMS AS SUPERINTENDENT IN THE OFFICE OF THE CHIEF INSPECTOR, POST OFFICE DEPARTMENT, FOR THE PERIOD FROM MAY 5 TO MAY 18, INCLUSIVE.

ONE VOUCHER COVERS THAT PART OF THE PERIOD FALLING WITHIN THE FIRST REGULAR PAY-ROLL PERIOD OF MAY; AND THE OTHER VOUCHER COVERS THAT PART OF THE PERIOD FALLING WITHIN THE SECOND REGULAR PAY-ROLL PERIOD OF MAY.

APPLICATION WAS MADE FOR THIS PAYMENT BY MR. WILLIAMS UNDER PROVISIONS OF PUBLIC LAW NO. 202, 77TH CONGRESS, APPROVED AUGUST 1, 1941. I AM IN DOUBT AS TO WHETHER I MAY PROPERLY PAY THESE VOUCHERS BECAUSE OF THE LAST STATEMENT OF A DECISION OF THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES ADDRESSED TO THE SECRETARY OF WAR UNDER DATE OF SEPTEMBER 13, 1941, B-20149, AS MR. WILLIAMS BOTH ENTERED UPON AND COMPLETED HIS TOUR OF MILITARY DUTY PRIOR TO THE ENACTMENT OF THE LAW REFERRED TO.

IT WILL BE APPRECIATED IF YOU WILL ADVISE ME, AT YOUR EARLIEST CONVENIENCE, WHETHER I MAY PROPERLY PAY THESE VOUCHERS; AND IF YOUR ANSWER IS IN THE AFFIRMATIVE, IT WILL BE APPRECIATED IF YOU WILL RETURN THE CERTIFIED VOUCHERS TO ME FOR SUCH PAYMENT.

THE VOUCHERS IN QUESTION PROPOSE PAYMENT TO MR. WILLIAMS OF COMPENSATION AT THE RATE OF $4,200 PER ANNUM FOR THE PERIOD MAY 5 TO 18, 1941, DURING WHICH PERIOD THE REGULAR PAY-ROLL VOUCHERS SHOW HIM TO HAVE BEEN ON LEAVE OF ABSENCE WITHOUT PAY. THE REGULAR PAY-ROLL VOUCHER FOR THE PERIOD MAY 16 TO 31, 1941, SHOWS THAT THE EMPLOYEE WAS RESTORED TO A PAY STATUS MAY 26, 1941 (PRESUMABLY THE DATE HE WAS RESTORED TO HIS CIVILIAN POSITION AFTER RETURN FROM ACTIVE MILITARY DUTY), AND RESIGNED MAY 28, 1941. THIS OFFICE HAS BEEN ADVISED INFORMALLY THAT MR. WILLIAMS WAS REAPPOINTED AS A POST OFFICE INSPECTOR IN THE FIELD SERVICE WITHOUT BREAK IN SERVICE.

THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, PROVIDES AS FOLLOWS:

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 HAVE HERETOFORE OR WHO MAY HEREAFTER BE ORDERED TO ACTIVE DUTY WITH THE MILITARY OR NAVAL FORCES OF THE UNITED STATES 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.

SECTIONS 6 AND 9 OF THE ANNUAL-LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940) PROVIDE, RESPECTIVELY, IN PERTINENT PART, AS FOLLOWS:

SEC. 6. * * * AN EMPLOYEE TRANSFERRED OR APPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936, TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT, SHALL BE CREDITED WITH ALL LEAVE ACCUMULATED AND ACCRUED ON THE DATE OF SUCH TRANSFER OR APPOINTMENT AT SUCH TIME AS HE MAY BE SUBSEQUENTLY RETRANSFERRED OR REAPPOINTED TO A POSITION WITHIN THE PURVIEW OF THAT ACT, PROVIDED SUCH SUBSEQUENT RETRANSFER OR REAPPOINTMENT IS ALSO WITHOUT BREAK IN SERVICE. "BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.

SEC. 9. LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT

AN EMPLOYEE WHO IS ORDERED TO ACTIVE MILITARY, NAVAL, OR COAST GUARD DUTY MAY, PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE, BE GRANTED LEAVE OR FURLOUGH WITHOUT PAY DURING ALL OR ANY PORTION OF THE PERIOD NECESSARY TO PERFORM SUCH DUTY.

THE LAST TWO SENTENCES OF THE DECISION OF SEPTEMBER 13, 1941, B 20149, 21 COMP. GEN. 210, TO WHICH YOU REFER, READ AS FOLLOWS:

* * * ON THE OTHER HAND, A PERSON WHO IS ORDERED TO ACTIVE DUTY PRIOR TO MAY 1, 1940, WOULD NOT APPEAR TO BE ENTITLED TO THE BENEFITS OF SECTION 7 OF PUBLIC 213, ALTHOUGH SUCH PERSON WOULD APPEAR TO BE ENTITLED TO THE BENEFITS OF PUBLIC LAW 202, IF OTHERWISE ENTITLED THERETO. IT IS NOT NECESSARILY TO BE UNDERSTOOD FROM THIS LAST STATEMENT, HOWEVER, THAT A PERSON "ORDERED TO ACTIVE DUTY" PRIOR TO ENACTMENT OF PUBLIC LAW 202, BUT WHO HAD COMPLETED SAID PERIOD OF ACTIVE DUTY PRIOR TO THE DATE OF SUCH ENACTMENT, WOULD BE ENTITLED TO THE BENEFITS THEREOF.

IF, PRIOR TO AUGUST 1, 1941, DATE OF THE APPROVAL OF PUBLIC LAW 202, AN EMPLOYEE ALREADY HAD RETURNED TO HIS CIVILIAN POSITION FROM ACTIVE MILITARY OR NAVAL SERVICE, AS IN THE INSTANT CASE, OBVIOUSLY, WHEN THE STATUTE BECAME EFFECTIVE, THE EMPLOYEE WAS NOT IN A STATUS UPON WHICH THE STATUTE COULD OPERATE FOR THE REASON THAT IMMEDIATELY UPON RESTORATION TO HIS CIVILIAN POSITION PRIOR TO THE DATE OF THE ACT THERE BECAME OPERATIVE AND APPLICABLE AS TO HIM THE PROVISIONS OF THE ANNUAL LEAVE REGULATIONS THEN IN EFFECT, SECTION 9 OF WHICH, ABOVE QUOTED, AUTHORIZES ONLY THE RECREDITING TO HIM OF THE ANNUAL LEAVE STANDING TO HIS CREDIT WHEN HE WAS ORDERED TO ACTIVE MILITARY OR NAVAL DUTY. THE FACT THAT AFTER ONLY TWO DAYS FROM THE TIME THIS EMPLOYEE WAS RESTORED TO HIS CIVILIAN POSITION HE WAS REAPPOINTED WITHOUT BREAK IN SERVICE TO THE POSITION OF POST OFFICE INSPECTOR IN THE FIELD--- A POSITION NOT WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THE REGULATIONS THEREUNDER --- IS IMMATERIAL IN THE CONSIDERATION OF THE QUESTION HERE PRESENTED. THE EMPLOYEE'S ONLY RIGHT TO RECEIVE THE LEAVE IN QUESTION IS A CONTINGENT ONE UNDER THE PROVISIONS OF SECTION 6 OF THE REGULATIONS, ABOVE QUOTED, THE CONTINGENCY BEING THAT HE BE REAPPOINTED WITHOUT BREAK IN SERVICE TO A POSITION COMING WITHIN THE PURVIEW OF THE LEAVE ACT OF 1936 AND THE REGULATIONS THEREUNDER. SEE 20 COMP. GEN. 35.

ACCORDINGLY, PAYMENT ON THE VOUCHERS, WHICH WILL BE RETAINED IN THIS OFFICE, IS NOT AUTHORIZED.