B-28464, SEPTEMBER 15, 1942, 22 COMP. GEN. 229

B-28464, SEPTEMBER 15, 1942, 22 COMP. GEN. 229

OFFICERS AND EMPLOYEES - PAYMENT FOR CIVILIAN LEAVE DURING MILITARY SERVICE REGARDLESS OF WHEN AN APPLICATION FOR PAYMENT FOR ACCRUED ANNUAL LEAVE, CONCURRENTLY WITH MILITARY SERVICE, IS FILED BY OR ADMINISTRATIVELY APPROVED FOR AN EMPLOYEE UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, THE PERIOD OVER WHICH THE LEAVE MUST BE COMPUTED BEGINS WITH THE DAY FOLLOWING THE LAST DAY OF ACTIVE CIVILIAN SERVICE. WHERE A POSTAL EMPLOYEE, AFTER ENTERING THE MILITARY SERVICE BUT PRIOR TO THE TIME HE APPLIED FOR PAYMENT FOR HIS ACCRUED ANNUAL LEAVE PURSUANT TO THE ACT OF AUGUST 1, 1941, AS AMENDED, HAD BEEN PROMOTED ON THE DEPARTMENTAL ROLLS TO A HIGHER RATE OF COMPENSATION TO WHICH HE BECAME ENTITLED BY OPERATION OF LAW, AND THE LEAVE PERIOD--- WHICH MUST BE COUNTED AS BEGINNING WITH THE DAY FOLLOWING THE LAST DAY OF ACTIVE CIVILIAN SERVICE--- HAD EXPIRED BEFORE THE COMPENSATION INCREASE BECAME EFFECTIVE, COMPENSATION FOR THE LEAVE IS PAYABLE AT THE SAME RATE THE EMPLOYEE WAS RECEIVING WHEN HE ENTERED THE MILITARY SERVICE. A CIVILIAN EMPLOYEE ON ACTIVE MILITARY DUTY WHO ELECTED TO BE PAID, AND WAS PAID, PURSUANT TO THE ACT OF AUGUST 1, 1941, AS AMENDED, FOR HIS ACCRUED ANNUAL LEAVE CONCURRENTLY WITH MILITARY SERVICE HAS EXHAUSTED HIS RIGHT OF ELECTION UNDER THE STATUTE EITHER TO RECEIVE PAYMENT FOR THE LEAVE OR TO HAVE IT REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM MILITARY SERVICE, AND, THEREFORE, HE MAY NOT REFUND THE AMOUNT PAID IN ORDER TO HAVE THE LEAVE REMAIN TO HIS CREDIT AT A HIGHER RATE OF COMPENSATION TO WHICH PROMOTED ON THE DEPARTMENTAL ROLLS BY OPERATION OF LAW AFTER ENTRANCE ON MILITARY DUTY.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, SEPTEMBER 15, 1942:

THERE WAS RECEIVED A LETTER DATED AUGUST 4, 1942 (FILE RY P C-T), FROM THE SECOND ASSISTANT POSTMASTER GENERAL, AS FOLLOWS:

IT IS DESIRED THAT YOU CONSIDER FURTHER YOUR DECISION OF JUNE 3, FILE P- RMS, ABOUT THE PAYMENT FOR ANNUAL LEAVE TO ALAN BRYEN, A RAILWAY POSTAL CLERK.

MR. BRYEN ENTERED THE SERVICE AS A SUBSTITUTE CLERK MAY 6, 1939, AND ON FEBRUARY 1, 1941, HE WAS APPOINTED REGULAR AT $2,000 PER ANNUM. FEBRUARY 10, 1941, HE WAS INDUCTED INTO MILITARY SERVICE. HIS STATUTORY RIGHT TO PROMOTION TO $2,150 ACCRUED APRIL 1, 1941, AND AN ORDER WAS ISSUED PROMOTING HIM WITH THAT DATE.

THE LAW AUTHORIZING PAYMENT FOR ACCRUED ANNUAL LEAVE, PUBLIC LAW 202, 55 STAT. 616, WAS NOT ENACTED UNTIL AUGUST 1, 1941. THEREFORE, MR. BRYEN COULD NOT CLAIM PAYMENT FOR HIS ACCUMULATED ANNUAL LEAVE UNTIL AUGUST 1, 1941, AND BEFORE THAT DATE HIS STATUTORY PROMOTION TO $2,150 HAD BECOME EFFECTIVE.

IT HAS BEEN HELD THAT AN EMPLOYEE ENTERING MILITARY SERVICE IS ENTITLED TO THE BENEFIT OF A STATUTORY PROMOTION EFFECTIVE WITHIN A PERIOD OF ANNUAL LEAVE GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941. HERE MR. BRYEN'S STATUTORY PROMOTION WAS MADE BEFORE HIS RIGHT TO THE LEAVE ACCRUED, AND IT IS RESPECTFULLY URGED THAT HE IS ENTITLED TO THE BENEFIT OF THE PROMOTION.

ON APRIL 1, 1942, HE WAS ADVANCED AUTOMATICALLY TO GRADE 4, $2,300, AND SHOULD HE ELECT TO REFUND THE PAY ALLOWED FOR HIS LEAVE AT $2,150 HE, ON HIS RETURN TO DUTY, COULD CLAIM THE PAY AT THE RATE OF $2,300. IF IT IS DECIDED TO ALLOW THE LEAVE AT $2,000, MR. BRYEN SHOULD BE INFORMED SO THAT HE MAY ELECT WHETHER TO REFUND THE WHOLE AMOUNT RECEIVED BY HIM IN ORDER TO PRESERVE THE LEAVE CREDIT FOR USE AFTER HIS RETURN TO DUTY, AT THE HIGHER RATE OF $2,300.

IN CONNECTION WITH THE POSTMASTER'S ACCOUNTS THE POSTMASTER GENERAL CERTIFIED TO THIS OFFICE THAT ALAN BRYEN WAS APPOINTED A REGULAR RAILWAY POSTAL CLERK AT $2,000 PER ANNUM, EFFECTIVE FEBRUARY 1, 1941 WAS PROMOTED TO $2,150 PER ANNUM, EFFECTIVE APRIL 1, 1941, AND TO $2,300 PER ANNUM, EFFECTIVE APRIL 1, 1942. IN HIS ACCOUNT FOR THE QUARTER ENDED DECEMBER 31, 1941, THE POSTMASTER AT CLEVELAND, OHIO, CLAIMED CREDIT FOR $41.50, FOR PAYMENT TO MR. BRYEN FOR 6 1/8 DAYS COMPENSATION AT THE RATE OF $2,150 PER ANNUM COMPUTED OVER A PERIOD FROM OCTOBER 16 TO 31, 1941, AND INDICATED THAT THE PAYMENT WAS UNDER THE ACT OF AUGUST 1, 1941, PUBLIC LAW 202, 55 STAT. 616, FOR ACCRUED ANNUAL LEAVE OF ABSENCE STANDING TO THE CREDIT OF THE CLERK AT THE TIME OF HIS INDUCTION INTO THE MILITARY SERVICE ON FEBRUARY 10, 1941. IN THE AUDIT OF THE POSTMASTER'S ACCOUNTS HE WAS ALLOWED CREDIT FOR $38.63 WHICH WAS THE PROPER AMOUNT FOR 6 1/8 DAYS LEAVE IN A 28-DAY MONTH AT THE RATE OF $2,000 PER ANNUM THAT BEING THE SALARY RATE RECEIVED BY THE EMPLOYEE ON FEBRUARY 10, 1941, WHEN HE ENTERED THE MILITARY SERVICE, AND SAID RATE CONTINUING DURING THE ENTIRE PERIOD OF THE LEAVE--- THERE HAVING BEEN NO CHANGE IN RATE UNTIL APRIL 1, 1941, A DATE OCCURRING AFTER THE LEAVE HAD EXPIRED. ACCORDINGLY, THERE WAS CHARGED AGAINST THE POSTMASTER THE AMOUNT OF $2.90.

IN LETTER DATED MARCH 19, 1942, THE SUPERINTENDENT OF THE RAILWAY MAIL SERVICE AT CLEVELAND, OHIO, STATED---

REFERRING TO YOUR ITEM RELATIVE TO ALAN BRYEN, YOU ARE INFORMED THAT THIS CLERK WAS TRANSFERRED FROM THE 6TH DIVISION TO THE 9TH DIVISION EFFECTIVE JULY 1, 1941 AND HIS SALARY AT THAT TIME WAS AT GRADE 3, $2,150 PER ANNUM. HIS APPLICATION FOR ANNUAL LEAVE WAS RECEIVED AND PAYMENT MADE ON THE PAYROLL FOR THE SECOND HALF OF OCTOBER AND OUR CHIEF CLERK AT DETROIT EVIDENTLY ASSUMED THAT THE ANNUAL LEAVE WAS TO BE GRANTED AT GRADE 3. DEPARTMENT CIRCULAR LETTER NO. 4607 DATED 9-25 41 RELATIVE TO MILITARY SERVICE, PARAGRAPH 4 READS AS FOLLOWS:

"THE LEAVE MAY BE TAKEN WHEN DESIRED ON OR AFTER AUGUST 1, 1941 AND WILL COVER DUTY TIME OR WORK DAYS THE SAME AS WOULD BE THE CASE IF THE EMPLOYEE WERE ACTUALLY ABSENT TAKING ANNUAL LEAVE DURING THE PERIOD.' IN VIEW OF THE PARAGRAPH REFERRED TO, PLEASE ADVISE IF THIS OFFICE SHOULD COMMUNICATE WITH THIS CLERK WHO ENTERED MILITARY SERVICE ON FEB. 10, 1941 AND ENDEAVOR TO MAKE A COLLECTION OF THE DEBIT, NAMELY $2.90.

IN DECISION OF SEPTEMBER 25, 1941, 21 COMP. GEN. 258, IT WAS HELD AS FOLLOWS (QUOTING FROM SYLLABUS):

THE PERIOD IMMEDIATELY FOLLOWING THE LAST DAY OF ACTIVE SERVICE IN A CIVILIAN POSITION IS THE PERIOD FOR WHICH PAYMENT MAY BE MADE TO EMPLOYEES FOR ANNUAL LEAVE, CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE, PURSUANT TO THE ACT OF AUGUST 1, 1941, AND THE FISCAL YEAR SALARY APPROPRIATION CHARGEABLE WITH THE PAYMENT IS THE ONE WHICH WOULD HAVE BEEN AVAILABLE HAD THE LEAVE BEEN GRANTED IN ADVANCE FOR SUCH PERIOD, THE CHARGE TO BE APPORTIONED IF THE LEAVE FALLS IN TWO FISCAL YEARS.

REGARDLESS OF THE TIME WHEN AN APPLICATION FOR ANNUAL LEAVE IS FILED BY, OR ADMINISTRATIVELY APPROVED FOR, AN EMPLOYEE IN THE MILITARY SERVICE PURSUANT TO THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, AND AS NOW AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, THE PERIOD OVER WHICH THE LEAVE MUST BE COMPUTED BEGINS WITH THE DAY FOLLOWING THE LAST DAY OF ACTIVE SERVICE IN HIS CIVILIAN POSITION, EVEN THOUGH--- AS IN THIS CASE--- THE EMPLOYEE HAS BEEN PROMOTED ON THE ROLLS OF THE DEPARTMENT BY OPERATION OF LAW AFTER EXPIRATION OF THE LEAVE PERIOD AND PRIOR TO THE TIME HE APPLIED FOR AND WAS GRANTED HIS LEAVE. SEE 20 COMP. GEN. 789. ACCORDINGLY, IF SUCH ACTION HAS NOT ALREADY BEEN TAKEN, DEPARTMENTAL CIRCULAR LETTER 4607, DATED SEPTEMBER 25, 1941, QUOTED BY THE SUPERINTENDENT OF THE RAILWAY MAIL SERVICE AT CLEVELAND IN HIS LETTER OF MARCH 19, 1942, SUPRA, SHOULD BE CLARIFIED TO ACCORD WITH THE ABOVE-STATED RULE.

YOU ARE ADVISED, THEREFORE, THAT AS THE EMPLOYEE'S RATE OF COMPENSATION REMAINED AT $2,000 PER ANNUM DURING THE ENTIRE PERIOD OVER WHICH THE LEAVE SHOULD HAVE BEEN COMPUTED (COMPARE 21 COMP. GEN. 310; ID. 742; ID. 1007), THE AUDIT ACTION IN THIS CASE WAS CORRECT AND IS HEREBY SUSTAINED.

REFERRING TO THE CONCLUDING PARAGRAPH OF THE LETTER OF THE SECOND ASSISTANT POSTMASTER GENERAL, THE EMPLOYEE HAVING ELECTED TO BE PAID FOR HIS ACCRUED ANNUAL LEAVE AND HAVING BEEN PAID, HIS RIGHTS UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, HAVE BEEN EXHAUSTED, AND THERE WOULD BE NO RIGHT OF ELECTION TO REFUND THE AMOUNT PAID TO HIM IN ORDER TO HAVE THE LEAVE REMAIN TO HIS CREDIT AT A HIGHER RATE OF COMPENSATION UNTIL HE RETURNS FROM MILITARY SERVICES.