B-30601, DECEMBER 18, 1942, 22 COMP. GEN. 546

B-30601, DECEMBER 18, 1942, 22 COMP. GEN. 546

CIVILIAN EMPLOYEES IN MILITARY SERVICE - PAYMENT FOR CIVILIAN LEAVE AFTER EMPLOYEE'S ELECTION TO HAVE IT REMAIN TO HIS CREDIT UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING CIVILIAN EMPLOYEES IN THE ACTIVE MILITARY OR NAVAL SERVICE TO BE PAID FOR ACCRUED ANNUAL LEAVE CONCURRENTLY WITH MILITARY OR NAVAL SERVICE, OR, AT THEIR ELECTION, TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEY RETURN FROM SUCH SERVICE, AN EMPLOYEE IN THE ACTIVE MILITARY SERVICE MAY BE PAID FOR HIS ACCRUED LEAVE AT ANY TIME, UPON THE FILING OF AN APPLICATION THEREFORE, WHILE STILL IN THE ACTIVE MILITARY SERVICE, EVEN THOUGH HE MAY HAVE PREVIOUSLY REQUESTED THAT SUCH LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM MILITARY SERVICE. 22 COMP. GEN. 229, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO J. J. MADIGAN, PUBLIC WORKS ADMINISTRATION, DECEMBER 18, 1942:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1942 (FILE ADMINISTRATION. C-1), AS FOLLOWS:

THERE IS ATTACHED A PAY-ROLL VOUCHER, BUREAU NO. W840-75-41, PRESENTED TO ME FOR CERTIFICATION AS AN AUTHORIZED CERTIFYING OFFICER, IN CONNECTION WITH THE APPROVAL OF WHICH I AM REQUESTING AN ADVANCE DECISION UNDER THE PROVISIONS OF PUBLIC LAW NO. 389, 77TH CONGRESS, APPROVED DECEMBER 29, 1941.

THIS VOUCHER PROPOSES TO PAY TO PHILIP J. BREMAN, CAPTAIN, CORPS OF ENGINEERS, AN EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION ABSENT ON LEAVE WITHOUT PAY WHILE ON ACTIVE DUTY WITH THE ARMY, THE SUM OF $65.07 FOR THE PERIOD COVERED BY THE ANNUAL LEAVE ACCRUED AND UNUSED AS OF THE DATE OF ENTRANCE ON SUCH ACTIVE DUTY, NAMELY, SEPTEMBER 9, 1940.

ON AUGUST 19, 1941, THE EMPLOYEE EXERCISED THE RIGHT GRANTED HIM UNDER THE PROVISIONS OF PUBLIC LAW NO. 202, 77TH CONGRESS, APPROVED AUGUST 1, 1941, BY ELECTING TO HAVE THE ANNUAL LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE MILITARY SERVICE.

ON NOVEMBER 14, 1942, THE EMPLOYEE INDICATED HIS DESIRE TO CHANGE HIS ELECTION BY MAKING APPLICATION FOR PAYMENT TO COVER THE PERIOD OF ANNUAL LEAVE IN QUESTION.

AS IT DOES NOT APPEAR THAT ANY DECISIONS HAVE BEEN RENDERED ON THE PARTICULAR QUESTION HERE INVOLVED; THAT IS, IF AN EMPLOYEE ONCE HAVING ELECTED TO HAVE ANNUAL LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM MILITARY SERVICE CAN, WHILE CONTINUING IN SUCH SERVICE AND PRIOR TO HIS RETURN TO A CIVILIAN POSITION, CHANGE HIS ELECTION AND BE PAID FOR THE LEAVE, YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT I AM AUTHORIZED TO CERTIFY THE VOUCHER FOR PAYMENT.

THE LETTERS FROM THE EMPLOYEE EXPRESSING HIS DESIRES TOGETHER WITH ALL OF THE OTHER PAPERS PERTAINING TO THE MATTER ARE ATTACHED TO THE VOUCHER AND IT IS REQUESTED THAT THE SAME BE RETURNED TO THIS OFFICE WITH YOUR DECISION.

THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, 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.

IN DECISION OF SEPTEMBER 15, 1942, 22 COMP. GEN. 229, IT WAS HELD (QUOTING FROM THE SYLLABUS):

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.

THERE IS FOR NOTING IN CONNECTION WITH THAT DECISION THAT LEAVE RIGHTS FOR WHICH PAYMENT OF COMPENSATION IS AUTHORIZED UNDER THE AMENDED 1941 STATUTE, SUPRA, BECOME FUNCTUS OFFICIO WHEN PAYMENT THEREFORE IS MADE. THAT IS TO SAY, THE RIGHT TO LEAVE CREDIT BECAME EXTINGUISHED, AND WAS OF NO VIRTUE WHATEVER, UPON PAYMENT OF THE MONEY EQUIVALENT THEREFOR.

HERE, HOWEVER, THERE WAS MERELY A REQUEST BY THE EMPLOYEE TO HAVE HIS LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, AND THE FILING OF SUCH A REQUEST BY HIM DID NOT REQUIRE OR RESULT IN ANY ACTION AND, THEREFORE, DID NOT MATURE INTO AN IRREVOCABLE SITUATION OR STATUS. SUCH A REQUEST MERELY HAD THE EFFECT OF POSTPONING PAYMENT FOR LEAVE. THUS, NOTWITHSTANDING THE REQUEST, THE RIGHT TO PAYMENT STILL EXISTED; IT WAS STILL A LIVING THING OR RIGHT AS CONTRADISTINGUISHED FROM ONE EXTINGUISHED UPON PAYMENT, AS WAS THE SITUATION IN 22 COMP. GEN. 229, SUPRA.

AN APPLICATION FOR PAYMENT OF LEAVE UNDER THE 1941 STATUTE, AS AMENDED, MAY BE MADE AT ANY TIME WHILE THE EMPLOYEE IS IN THE ACTIVE MILITARY OR NAVAL SERVICE. 21 COMP. GEN. 660. THE LEAVE FOR WHICH PAYMENT IS AUTHORIZED UNDER SAID STATUTE NEED NOT BE APPLIED FOR IN ADVANCE. COMP. GEN. 258. THE EMPLOYEE IN THE INSTANT CASE SHOULD BE REGARDED AS IN NO DIFFERENT POSITION FROM ONE WHO SIMPLY DELAYS MAKING APPLICATION FOR HIS LEAVE WITHOUT HAVING PREVIOUSLY MADE AN AFFIRMATIVE STATEMENT THAT HE DESIRED TO HAVE THE LEAVE REMAIN TO HIS CREDIT.

ACCORDINGLY, THIS OFFICE IS NOT REQUIRED TO OBJECT TO YOUR CERTIFICATION OF THE VOUCHER FOR PAYMENT, IF OTHERWISE CORRECT. THE VOUCHER IS RETURNED HEREWITH.