B-33660, APRIL 24, 1943, 22 COMP. GEN. 990

B-33660, APRIL 24, 1943, 22 COMP. GEN. 990

OVERDRAWN ANNUAL AND SICK LEAVE INDEBTEDNESS OF EMPLOYEES ENTERING INTO MILITARY OR NAVAL SERVICE THE ENTRY OF AN EMPLOYEE INTO THE ACTIVE MILITARY OR NAVAL SERVICE IS TO BE REGARDED AS A ,SEPARATION" UNDER SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT AN EMPLOYEE WHO IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE AT THE TIME OF HIS SEPARATION FROM THE SERVICE SHALL BE CHARGED WITH SUCH INDEBTEDNESS. UNDER SECTION 11 OF THE SICK LEAVE REGULATIONS, PROVIDING THAT EMPLOYEES BE CHARGED WITH OVERDRAWN SICK LEAVE UPON THEIR VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE, THE ENTRY OF AN EMPLOYEE INTO THE ACTIVE MILITARY OR NAVAL SERVICE--- WHETHER BY ENLISTMENT OR BY INDUCTION--- WITHOUT BREAK IN SERVICE IS NOT TO BE REGARDED AS A "VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE" SO AS TO REQUIRE COLLECTION FROM HIM FOR OVERDRAWN SICK LEAVE.

COMPTROLLER GENERAL WARREN TO T. BARDEN SEXTON, APRIL 24, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 24, 1943, AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 8, 1943, IN CONNECTION WITH MY CLAIM NO. 1112071, IN WHICH YOU STATE THAT NO PART THEREOF MAY BE ALLOWED FOR THE REASON THAT IT WAS NECESSARY TO APPLY ALL SALARY EARNED DURING THE PERIOD SEPTEMBER 1 TO 8, 1942, TO COVER OVERDRAWN ANNUAL AND SICK LEAVE.

I HEREBY APPEAL FROM THE ABOVE FINDING AND REQUEST RECONSIDERATION OF THE CLAIM FOR THE FOLLOWING REASONS:

PRIOR TO ENLISTMENT IN THE COAST GUARD, I CHECKED MY OWN AND THE OFFICE RECORDS WITH REGARD TO BOTH SICK AND ANNUAL LEAVE AND FOUND THAT AS OF THE CLOSE OF BUSINESS ON SEPTEMBER 8, 1942, I HAD UNUSED, ACCRUED ANNUAL LEAVE STANDING TO MY CREDIT; BUT THAT I HAD BEEN FORCED TO OVERDRAW SICK LEAVE BY REASON OF AN EXTENDED ABSENCE DURING MAY 1942.

IT IS NOT UNDERSTOOD HOW THE DISCREPANCY IN LEAVE NOW ARISES AND IT IS THEREFORE REQUESTED THAT ADVICE BE FURNISHED AS TO THE AMOUNT OF SICK AND ANNUAL LEAVE WAS CARRIED FORWARD AS AT DECEMBER 31, 1941, THE AMOUNT OF BOTH TYPES OF LEAVE ACCRUED DURING THE 1942 PERIOD WORKED AND THE AMOUNT OF BOTH TYPES OF LEAVE USED DURING SUCH PERIOD.

WITH REGARD TO THE REGULATION GOVERNING DEDUCTION FROM SALARY PAYMENTS BY REASON OF OVERDRAWN SICK LEAVE, IT APPEARS THAT SUCH REGULATION WAS (1) DESIGNED TO PROTECT THE EMPLOYING AGENCY WHERE AN EMPLOYEE LEFT, INTENDING NOT TO RETURN TO HIS FORMER EMPLOYMENT, SO AS TO PERMIT REPAYMENT IN KIND OF OVERDRAWN SICK LEAVE AND (2) SUCH REGULATION FURTHER APPEARS TO HAVE BEEN INTENDED TO APPLY ONLY WHERE SOME VOLUNTARY ACT ON HIS PART BROUGHT ABOUT A SEPARATION IN SERVICE.

WITH REGARD TO (1), ABOVE, YOUR RECORDS WILL SHOW THAT I WAS EMPLOYED FOR NEARLY 6 1/2 YEARS THERE AT VARIOUS UPWARD GRADATIONS OF SALARY. AS MIGHT BE EXPECTED UNDER SUCH CIRCUMSTANCES, I AM DISPOSED TO RETURN TO SUCH JOB WHEN, AS OR IF MY PRESENT MILITARY ASSIGNMENT SHALL BE TERMINATED; AND IN SO DOING, WILL NECESSARILY ACCRUE SUFFICIENT SICK LEAVE TO REPAY THAT WHICH HAS BEEN OVERDRAWN. IT WOULD THEREFORE APPEAR THAT THE REASON FOR WITHHOLDING SALARY PAYMENT, I.E., TO EFFECT REPAYMENT OF OVERDRAWN LEAVE WHERE THE EMPLOYEE WILL NOT BE IN A POSITION TO REPAY IT ANY OTHER WAY, IS WITHDRAWN SINCE I WILL BE IN A POSITION TO MAKE REPAYMENT IN KIND UPON RESUMPTION OF MY DUTIES.

CONSIDERATION OF (2), AS TO "SEPARATION" FROM SERVICE BY A "VOLUNTARY" ACT ON THE PART OF THE EMPLOYEE, NECESSARILY INVOLVES EXAMINATION OF THE PROPOSITION AS TO WHETHER OR NOT THE ACT OF ENLISTMENT, IN AND BY ITSELF, CONSTITUTES A "VOLUNTARY" SEPARATION FROM SERVICE; OR WHETHER THE ACTUAL ACT OF SEPARATION IS PERFORMED BY ANOTHER (HIS OFFICE FOR EXAMPLE) THUS REMOVING THE ,VOLUNTARY" REQUISITE ESSENTIAL TO PERMIT APPLICATION OF THE RULE WITH REGARD TO SALARY DEDUCTION.

IN THE EVENT I AM "SEPARATED" FROM THE SERVICE IT WOULD BE APPRECIATED IF ADVICE BE FURNISHED AS TO THE DATE OF SUCH "SEPARATION" AND WHETHER SUCH IS CONSIDERED AS OF MY VOLITION. IF I AM NOT "SEPARATED" FROM SERVICE, KINDLY ADVISE ME AS TO WHAT STATUS I HOLD WITH REGARD TO THE GENERAL ACCOUNTING OFFICE; AND WHETHER OR NOT THE PRIVILEGES OF RECLAIMING MY JOB IS OR WILL BE OPEN TO ME AT THE CONCLUSION OF HOSTILITIES, IF IT NOW BE MAINTAINED THAT I VOLUNTARILY LEFT MY WORK THERE.

TO FURTHER NEGATIVE THE VOLITION NECESSARY TO MAKE APPLICABLE THE RULE AS REGARDS DEDUCTIONS FOR OVERDRAWN SICK LEAVE, THE RECORDS OF LOCAL SELECTIVE SERVICE BOARD NO. 21, WESTWOOD AVENUE AND ROSEDALE STREET, BALTIMORE, MARYLAND, WILL SHOW THAT ON SEPTEMBER 1, 1942, I WAS NOTIFIED THAT I WAS SELECTED FOR INDUCTION ON SEPTEMBER 13, 1942. UNDER THE CIRCUMSTANCES FEW REASONS APPEAR MORE OBVIOUS THAN THAT I ENLISTED WHEN AND WHERE I DID IN ORDER TO AVAIL MYSELF OF A CHOICE OF SERVICE TO WHICH I WOULD NOT OTHERWISE FIND POSSIBLE. IT THEREFORE DOES NOT APPEAR THAT ENLISTMENT, IF THAT CONSTITUTE THE ACT OF SEPARATION, IS ENTIRELY "VOLUNTARY" UNDER THE CIRCUMSTANCES, REGARDLESS OF PATRIOTIC OR OTHER MOTIVES COMPELLING SAME.

IN VIEW OF MY ANNOUNCED INTENTION TO RETURN TO MY FORMER JOB IF AVAILABLE, IT IS THOUGHT THAT WITHHOLDING OF SALARY PAYMENT IS UNJUSTIFIED; AND THAT THE CIRCUMSTANCES INDICATE THAT THE RULE ANNOUNCED IN THE SECOND PARAGRAPH OF YOUR CITED LETTER DO NOT APPLY TO THE INSTANT CASE.

OFFICE LETTER OF FEBRUARY 8, 1943, TO YOU, DISALLOWING YOUR CLAIM NO. 1112071, STATED IN PERTINENT PART, AS FOLLOWS:

IT APPEARS FROM THE RECORDS ON FILE IN THIS OFFICE THAT UPON YOUR ENLISTMENT IN THE COAST GUARD AT THE CLOSE OF BUSINESS ON SEPTEMBER 8, 1942, IT WAS NECESSARY TO APPLY ALL SALARY EARNED BY YOU DURING THE PERIOD SEPTEMBER 1 TO 8, 1942, INCLUSIVE, TO COVER YOUR OVERDRAWN ANNUAL AND SICK LEAVE, WHICH PRECLUDED THE PAYMENT OF ANY SALARY FOR THE PERIOD IN QUESTION. IN THIS CONNECTION YOU ARE ADVISED THAT IN MAKING DEDUCTIONS FOR OVERDRAWN ANNUAL AND SICK LEAVE THE SAME RULE APPLIES TO EMPLOYEES ENTERING MILITARY SERVICE AS APPLIES IN OTHER SEPARATIONS.

THE DIRECTOR OF PERSONNEL OF THE GENERAL ACCOUNTING OFFICE--- IN WHICH OFFICE YOU WERE EMPLOYED PRIOR TO YOUR ENTRY INTO THE COAST GUARD - HAS CERTIFIED YOUR LEAVE RECORD TO BE AS FOLLOWS:

THE RECORDS OF THIS OFFICE DISCLOSE THE FOLLOWING INFORMATION:

CHART

DAYS HOURS MINUTES ANNUAL LEAVE:

ACCUMULATED ON 1-1-42 ----------------------- 1 5 15

ACCRUED FROM 1-1-42 TO 9-7-42 --------------- 17 6 30

USED FROM 1-1-42 TO 9-7-42 ------------------ 21 7 10

ADVANCED LEAVE ------------------------------ 2 3 15 SICK LEAVE:

ACCUMULATED ON 1-1-42 ----------------------- 7 6 30

ACCRUED FROM 1-1-42 TO 9-7-42 --------------- 10 2 15

USED FROM 1-1-42 TO 9-7-42 ------------------ 33 10 10

ADVANCED LEAVE ------------------------------ 14 7 15

TOTAL OVERDRAWN ANNUAL AND SICK LEAVE ------- 17 2 30

MR. SEXTON WAS ON DUTY FROM SEPTEMBER 1 TO 8 (11:30 A.M.), BUT SALARY FOR THIS PERIOD WAS APPLIED TO REDUCE THE OVERDRAWN LEAVE, THEREBY LEAVING A BALANCE OF 9 DAYS, 7 HOURS AND 15 MINUTES OVERDRAWN LEAVE.

SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384 DATED MARCH 29, 1940), PROVIDES:

IN CASES OF SEPARATION WHERE AN EMPLOYEE IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE, SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH SUCH EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY. THIS SUBSECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

SEE ALSO, SECTION 11 OF THE SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385 DATED MARCH 29, 1940), PROVIDING:

IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY AMOUNT IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER. ( ITALICS SUPPLIED.)

IN DECISION OF JULY 16, 1942, 22 COMP. GEN. 42, THE FOLLOWING RULE, AMONG OTHERS, WAS STATED (QUOTING FROM THE SYLLABUS):

A FURLOUGH WITHOUT PAY TO ENTER THE MILITARY SERVICE IS TO BE REGARDED AS A "SEPARATION" UNDER SECTION 7 OF THE ANNUAL LEAVE REGULATIONS PROVIDING THAT AN EMPLOYEE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE DURING ANY CALENDAR YEAR SHALL BE ENTITLED TO ALL OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE "TO AND INCLUDING THE DATE OF SEPARATION.'

OBVIOUSLY, THE SAME MEANING MUST PREVAIL AS TO THE USE OF THE WORD,"SEPARATION," APPEARING IN SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS. IN SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS NO DISTINCTION IS MADE BETWEEN VOLUNTARY AND INVOLUNTARY SEPARATIONS, EXCEPT AS TO THE SEVERAL FACTORS INCLUDED IN THE LAST SENTENCE OF SAID SECTION. THUS, AS TO ANNUAL LEAVE, NO CONCLUSION IS WARRANTED OTHER THAN THAT SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS REQUIRED COLLECTION FROM YOU TO COVER THE AMOUNT OF ANNUAL LEAVE OVERDRAWN AT THE TIME OF YOUR ENTRY INTO ACTIVE MILITARY SERVICE, FOR THE REASON THAT YOUR STATUS AT THAT TIME DID NOT BRING YOU WITHIN ANY OF THE EXCEPTIONS TO THAT REGULATION.

HOWEVER, THE SITUATION AS TO COLLECTION ON ACCOUNT OF OVERDRAWN SICK LEAVE UNDER SECTION 11 OF THE SICK LEAVE REGULATIONS ABOVE QUOTED, IS DIFFERENT IN YOUR CASE FOR THE REASON THAT SAID SECTION OF THE REGULATION IN RESPECT OF THE REQUIREMENT FOR REFUND ON ACCOUNT OF EXCESS SICK LEAVE IS SPECIFICALLY LIMITED TO "THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE.' YOUR ENTRY INTO THE ACTIVE MILITARY SERVICE, WHETHER BY ENLISTMENT OR BY INDUCTION, IS NOT FOR REGARDING AS A ,VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE" WITHIN THE MEANING OF SECTION 11 OF THE SICK LEAVE REGULATIONS, SO AS TO REQUIRE COLLECTION FROM YOU FOR OVERDRAWN SICK LEAVE. WHILE THE EARLIER LAWS AND DECISIONS MADE A DISTINCTION BETWEEN EMPLOYEES WHO WERE "ORDERED" INTO THE ACTIVE MILITARY OR NAVAL SERVICE AND THOSE WHO VOLUNTARILY ENLISTED, WITH RESPECT TO LEAVE BENEFITS AND REEMPLOYMENT RIGHTS (SEE 21 COMP. GEN. 210, 403, AND THE STATUTES THEREIN CONSIDERED), LATER STATUTES NOW IN FORCE AND THE DECISION THEREUNDER SHOW A DEFINITE INTENTION TO TREAT ALL EMPLOYEES ALIKE WITH REGARD TO SUCH BENEFITS, REGARDLESS OF THE CIRCUMSTANCES UNDER WHICH THEY ENTER THE ACTIVE MILITARY OR NAVAL SERVICE (I.E., WHETHER BY INDUCTION OR BY ENLISTMENT). SEE SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, AMENDING THE ACT OF AUGUST 1, 1941, AND 22 COMP. GEN. 47. IT IS CONCLUDED THEREFORE, THAT UNDER THE TERMS OF SECTION 11 OF THE SICK LEAVE REGULATIONS, OVERDRAWN SICK LEAVE IS NOT REQUIRED TO BE CHARGED TO AN EMPLOYEE WHOSE "SEPARATION" IS DUE TO HIS ENTERING INTO THE ACTIVE MILITARY OR NAVAL SERVICE WITHOUT A BREAK IN SERVICE.

ACCORDINGLY, THE SETTLEMENT OF YOUR CLAIM NO. 1112071 OF FEBRUARY 8, 1943, WILL BE REVISED SO AS TO APPLY THE ABOVE-STATED RULES ON THE BASIS OF YOUR LEAVE RECORD, AND YOU WILL BE PROMPTLY ADVISED WHEN SUCH ACTION SHALL HAVE BEEN TAKEN.

YOUR RIGHT TO REINSTATEMENT MAY BE GIVEN CONSIDERATION BY THIS OFFICE ONLY IF AND WHEN YOU ARE DISCHARGED FROM THE ACTIVE MILITARY SERVICE, AT WHICH TIME PROPER CONSIDERATION WILL BE GIVEN THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AND SECTION 7 OF THE ACT OF AUGUST 18, 1941, 55 STAT. 627, EXTENDING REEMPLOYMENT RIGHTS TO EMPLOYEES WHO VOLUNTARILY ENLIST IN THE ARMED FORCES, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED UNDER SUCH STATUTES.