B-33216, MARCH 30, 1943, 22 COMP. GEN. 932

B-33216, MARCH 30, 1943, 22 COMP. GEN. 932

PREVIOUSLY FORFEITED ANNUAL LEAVE RECREDITED UNDER ACT OF DECEMBER 17, 1942 UNDER THE ACT OF DECEMBER 17, 1942, INCREASING FROM 60 DAYS TO 90 DAYS THE AMOUNT OF UNUSED ANNUAL LEAVE THAT AN EMPLOYEE MAY ACCUMULATE DURING THE PRESENT NATIONAL EMERGENCY, ACCUMULATED ANNUAL LEAVE FORFEITED BY AN EMPLOYEE AT THE END OF THE CALENDAR YEAR 1939--- NOT EXCEEDING 8 DAYS, 30 MINUTES--- WHICH IS PROPERLY CREDITABLE RETROACTIVELY AS OF JANUARY 1, 1940, NOW MAY BE SUBSTITUTED FOR A CORRESPONDING PERIOD OF FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY GRANTED DURING THE CALENDAR YEAR 1940, AND THE SUBSTITUTION SHOULD BE MADE BEGINNING WITH THE FIRST DAY OF THE ABSENCE WITHOUT PAY. WHERE PREVIOUSLY FORFEITED ANNUAL LEAVE RESTORED TO THE CREDIT OF AN EMPLOYEE BY REASON OF THE INCREASED ACCUMULATION AUTHORIZED BY THE ACT OF DECEMBER 17, 1942, IS TO BE SUBSTITUTED RETROACTIVELY FOR A PRIOR PERIOD OF FURLOUGH OR LEAVE WITHOUT PAY, PAYMENT FOR THE SUBSTITUTED LEAVE SHOULD BE MADE AT THE COMPENSATION RATE THE EMPLOYEE WAS RECEIVING AT THE TIME OF THE ABSENCE WITHOUT PAY, AND SUCH AMOUNT SHOULD BE CHARGED TO THE APPROPRIATION THEN AVAILABLE FOR PAYMENT OF HIS COMPENSATION. UNDER EXECUTIVE ORDER NO. 9307 ISSUED PURSUANT TO THE ACT OF MARCH 14, 1936, AS AMENDED BY THE ACT OF DECEMBER 17, 1942, EXTENDING RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939, THE AMOUNT OF UNUSED ANNUAL LEAVE THAT MAY BE ACCUMULATED DURING THE PRESENT NATIONAL EMERGENCY, THE AMOUNT OF ACCUMULATED ANNUAL LEAVE FORFEITED BY AN EMPLOYEE AT THE END OF THE CALENDAR YEAR 1939 WHICH NOW MAY BE RECREDITED IS LIMITED TO THE ANNUAL LEAVE THAT ACCRUED AFTER SEPTEMBER 8, 1939, THAT IS, 8 DAYS, 42 MINUTES; AND WHERE SUCH RECREDITED LEAVE NOW IS TO BE SUBSTITUTED FOR A PRIOR PERIOD OF FURLOUGH OR LEAVE WITHOUT PAY, IT MAY BE GRANTED AND PAID FOR ONLY IN MULTIPLES OF 15 MINUTES. 22 COMP. GEN. 704, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, MARCH 30, 1943:

I HAVE YOUR LETTER OF MARCH 17, 1943, AS FOLLOWS:

IN YOUR DECISION OF JANUARY 26, 1943, B-31772, ADDRESSED TO THE FEDERAL SECURITY ADMINISTRATOR, IT WAS HELD THAT PUBLIC LAW 806--- 77TH CONGRESS APPROVED DECEMBER 17, 1942, AUTHORIZING THE ACCUMULATION OF ANNUAL LEAVE FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING 90 DAYS IS RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939 AND THAT UNDER THE INTERPRETATION THUS MADE THERE IS AUTHORIZED THE RECREDITING TO AN EMPLOYEE OF ACCUMULATED ANNUAL LEAVE IN EXCESS OF 60 DAYS WHICH HE OTHERWISE WOULD HAVE LOST ON JANUARY 1, 1940, JANUARY 1, 1941, JANUARY 1, 1942 AND JANUARY 1, 1943, SUBJECT TO THE LIMITATION OF 15 DAYS UNUSED LEAVE IN EXCESS OF 60 DAYS FOR ANY ONE CALENDAR YEAR.

IN YOUR DECISION OF FEBRUARY 16, 1943, B-32225, TO THE DIRECTOR, OFFICE OF STRATEGIC SERVICES, IT IS HELD AS FOLLOWS:

"REFERRING TO QUESTION 2, WHERE AN EMPLOYEE HAS BEEN FINALLY SEPARATED FROM THE FEDERAL SERVICE--- AS DISTINGUISHED FROM ONE WHO HAS ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE OR ONE WHO HAS BEEN FURLOUGHED WITHOUT PAY FOR SOME OTHER REASON--- THERE IS NO AUTHORITY TO RESTORE THE EMPLOYEE TO THE ROLL SOLELY FOR THE PURPOSE OF GRANTING ADDITIONAL ANNUAL LEAVE TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED UNDER THE ACT OF DECEMBER 17, 1942, HAD HE REMAINED IN THE SERVICE. 16 COMP. GEN. 28, 899; 17 ID. 48, 369, 481.' ( ITALICS SUPPLIED.)

IT APPEARS TO BE CLEAR THAT EMPLOYEES RETAINING THE STATUS OF "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" ON ACTIVE DUTY OR ON FURLOUGH WITHOUT PAY MAY BE RECREDITED WITH ADDITIONAL ANNUAL LEAVE TO THE EXTENT THAT THE SAME WAS LOST SINCE SEPTEMBER 8, 1939, WITHIN THE LIMITATION OF 15 DAYS IN ANY ONE CALENDAR YEAR NOT EXCEEDING A TOTAL OF 90 DAYS; THAT EMPLOYEES IN A FURLOUGH WITHOUT PAY STATUS, FOLLOWING PAYMENT FOR ANNUAL LEAVE, MAY BE RESTORED TO A PAY STATUS AND PAID FOR SUCH ADDITIONAL LEAVE; AND THAT WHERE EMPLOYEES HAVE BEEN TRANSFERRED BETWEEN DEPARTMENTS AND AGENCIES UNDER CONDITIONS PERMITTING A TRANSFER OF LEAVE CREDITS, THE ADDITIONAL LEAVE MAY BE TRANSFERRED AND RECREDITED TO THE EMPLOYEE IN HIS NEW POSITION.

EXECUTIVE ORDER NO. 9307, DATED MARCH 3, 1943, AMENDS EXECUTIVE ORDER NO. 8384 PRESCRIBING REGULATIONS RELATING TO THE ANNUAL LEAVE OF GOVERNMENT EMPLOYEES TO PROVIDE IN PART THAT:

"DEPARTMENTS AND AGENCIES HAVING EMPLOYEES SUBJECT TO THE ANNUAL LEAVE REGULATIONS PRESCRIBED BY THE SAID EXECUTIVE ORDER NO. 8384, AS HEREIN AMENDED, SHALL TAKE SUCH STEPS AS MAY BE NECESSARY TO ADJUST THE LEAVE RECORDS OF SUCH EMPLOYEES RETROACTIVELY SO AS TO MAKE THIS SUB-SECTION EFFECTIVE AS OF SEPTEMBER 8, 1939.'

IN EXAMINING THE LEAVE RECORDS OF EMPLOYEES IN THE FEDERAL WORKS AGENCY, ATTENTION HAS COME TO CERTAIN CASES NOT APPEARING TO BE SPECIFICALLY COVERED BY ANY OF THE DECISIONS OF YOUR OFFICE AND IN CONNECTION WITH WHICH SOME DOUBT ARISES AS TO WHAT ACTION MAY BE TAKEN. THE FOLLOWING SPECIFIC CASE IS CITED AS TYPICAL OF OTHERS IN QUESTION;

MR. ELMER D. FOGLE ENTERED ON DUTY WITH THE PUBLIC WORKS ADMINISTRATION AS A RESIDENT ENGINEER INSPECTOR, $3200 PER ANNUM, ON NOVEMBER 25, 1933. ON JANUARY 1, 1939 HE HAD ACCUMULATED 60 DAYS ANNUAL LEAVE. NO LEAVE WHATEVER WAS USED DURING THE CALENDAR YEAR 1939, AND THE 26 DAYS ACCRUING DURING THAT YEAR WERE LOST UNDER THEN EXISTING LAW, AND THE 60 DAYS ACCUMULATED LEAVE CARRIED FORWARD AS OF JANUARY 1, 1940. THE EMPLOYEE WAS FURLOUGHED EFFECTIVE JUNE 29, 1940 PLUS ANNUAL LEAVE WHICH CARRIED HIM IN A PAY STATUS THROUGH OCTOBER 7, 1940. HE WAS RECALLED TO DUTY FROM FURLOUGH BY THE PUBLIC WORKS ADMINISTRATION ON JUNE 20, 1941, PROMOTED TO CONSTRUCTION ENGINEER AT $3800 PER ANNUM AND ASSIGNED TO THE DEFENSE PUBLIC WORKS DIVISION. ON JULY 16, 1941, THE DEFENSE PUBLIC WORKS DIVISION WAS CONSOLIDATED INTO THE OFFICE OF THE ADMINISTRATOR AND CERTAIN PERSONNEL, INCLUDING MR. FOGLE TRANSFERRED FROM THE PUBLIC WORKS ADMINISTRATION. HE HAS SINCE CONTINUED ON DUTY AND IS NOW AN EMPLOYEE OF THE OFFICE OF THE ADMINISTRATOR. AT NO TIME HAS THIS EMPLOYEE BEEN FINALLY SEPARATED FROM THE FEDERAL SERVICE. HE HAS HAD A CONTINUOUS STATUS AS A CIVILIAN EMPLOYEE OF THE UNITED STATES. IT WOULD APPEAR THAT HE IS NOW ENTITLED TO BE PAID FOR 15 OF THE 26 DAYS ANNUAL LEAVE LOST ON JANUARY 1, 1940. HOWEVER, IF SUCH IS THE CASE THE 15 DAYS LEAVE WOULD START TO RUN AS OF OCTOBER 8, 1940, AND THE AMOUNT DUE WOULD BE PAYABLE FROM THE PUBLIC WORKS ADMINISTRATION APPROPRIATION FOR THE FISCAL YEAR 1941.

IN VIEW OF THE FACT THAT AT THIS TIME MR. FOGLE HAS NO STATUS WITH THE PUBLIC WORKS ADMINISTRATION HAVING BEEN TRANSFERRED TO THE OFFICE OF THE ADMINISTRATOR, IT IS REQUESTED THAT YOU ADVISE ME IF, UNDER THE CIRCUMSTANCES, THE PUBLIC WORKS ADMINISTRATION IS AUTHORIZED TO RESTORE THE EMPLOYEE TO THE PAY ROLL FOR THE PURPOSE OF PAYING HIM FOR THE 15 DAYS ANNUAL LEAVE IN QUESTION.

THE CONCLUSIONS STATED IN THE THIRD PARAGRAPH OF YOUR LETTER ARE CORRECT WITH THE EXCEPTION HEREINAFTER NOTED RELATING TO THE CALENDAR YEAR 1939. HENCE, UNDER THE RULE STATED IN THE DECISION OF FEBRUARY 16, 1943, B- 32225, 22 COMP. GEN. 810, TO THE DIRECTOR, OFFICE OF STRATEGIC SERVICES, TO WHICH YOU REFER, THE AMOUNT OF ADDITIONAL ACCUMULATED ANNUAL LEAVE IN EXCESS OF 60 DAYS FOR THE CALENDAR YEAR 1939, WHICH IS PROPERLY CREDITABLE TO THE EMPLOYEE RETROACTIVELY AS OF JANUARY 1, 1940, UNDER THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, PUBLIC LAW 806, NOW MAY BE SUBSTITUTED RETROACTIVELY FOR A CORRESPONDING PERIOD OF FURLOUGH, OR LEAVE OF ABSENCE WITHOUT PAY, BEGINNING WITH OCTOBER 8, 1940, THE FIRST DAY THE INVOLVED EMPLOYEE WENT ON FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY, AND PAYMENT OF COMPENSATION FOR THAT PERIOD MAY BE MADE ACCORDINGLY. 16 COMP. GEN. 818; 17 ID. 199; 18 ID. 136; 19 ID. 716, 959. THE PAYMENT SHOULD BE MADE AT THE RATE OF COMPENSATION RECEIVED BY THE EMPLOYEE DURING SUCH PERIOD AND SUCH PAYMENT SHOULD BE CHARGED TO THE APPROPRIATION THEN AVAILABLE FOR PAYMENT OF HIS COMPENSATION.

IN CONNECTION WITH THIS CASE, YOUR ATTENTION IS INVITED TO THE FOLLOWING PORTION OF EXECUTIVE ORDER 9307, DATED MARCH 3, 1943, WHICH AMENDS THE ANNUAL LEAVE REGULATIONS TO PUT INTO EFFECT THE ACT OF DECEMBER 17, 1942, PUBLIC LAW 806:

* * * SUCH ADDITIONAL ACCUMULATION SHALL NOT EXCEED FIFTEEN DAYS IN ANY CALENDAR YEAR AND SHALL APPLY ONLY TO ANNUAL LEAVE WHICH HAS ACCRUED AFTER SEPTEMBER 8, 1939 AND HAS NOT BEEN USED. * * * ( ITALICS SUPPLIED.)

THE DECISION OF THIS OFFICE DATED JANUARY 26, 1943, B-31772, 22 COMP. GEN. 704, TO THE FEDERAL SECURITY ADMINISTRATOR, ALLOWED 15 DAYS' ADDITIONAL ACCUMULATED LEAVE (IN EXCESS OF 60 DAYS) TO BE CREDITED AS OF JANUARY 1, 1940, FOR THE CALENDAR YEAR 1939, BUT IS FOR NOTING THAT SAID DECISION WAS RENDERED PRIOR TO THE EXECUTIVE ORDER, SUPRA, THAT IS, AT A TIME WHEN THERE WERE NO REGULATIONS UPON THE SUBJECT. ACCORDINGLY, IN VIEW OF THE ABOVE QUOTED REGULATION PRESCRIBED BY THE PRESIDENT PURSUANT TO SECTION 7 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, 1162, THE ADDITIONAL ACCUMULATED LEAVE IN EXCESS OF 60 DAYS CREDITABLE AS OF JANUARY 1, 1940, SHOULD BE LIMITED TO THE ANNUAL LEAVE "WHICH HAS ACCRUED AFTER SEPTEMBER 8, 1939, AND HAS NOT BEEN USED.' FOR THE PERIOD SEPTEMBER 9 TO DECEMBER 31, 1939, INCLUSIVE (A PERIOD OF 3 MONTHS, 22 DAYS) AN EMPLOYEE WOULD HAVE EARNED 8 DAYS, 42 MINUTES. HOWEVER, LEAVE MAY BE GRANTED AND PAID FOR ONLY IN MULTIPLES OF 15 MINUTES. 21 COMP. GEN. 596. HENCE, PAYMENT IN THE INSTANT CASE SHOULD BE LIMITED TO COMPENSATION FOR 8 DAYS, 30 MINUTES.