B-48039, MARCH 7, 1945, 24 COMP. GEN. 651

B-48039, MARCH 7, 1945, 24 COMP. GEN. 651

LUMP-SUM LEAVE PAYMENTS - FOREIGN SERVICE PERSONNEL THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, AUTHORIZING LUMP-SUM PAYMENTS FOR ANNUAL OR VACATION LEAVE TO "ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT," UNDER THE CONDITIONS SPECIFIED THEREIN, ARE APPLICABLE TO PERSONNEL OF THE FOREIGN SERVICE, AND THE LEAVE LAWS AND REGULATIONS PREVIOUSLY APPLICABLE TO SUCH PERSONNEL MUST BE REGARDED AS MODIFIED BY SAID ACT TO THE EXTENT NECESSARY TO PERMIT APPLICATION OF ITS PROVISIONS IN CONFORMANCE, INSOFAR AS POSSIBLE, WITH THE RULES APPLICABLE TO FEDERAL PERSONNEL UNDER OTHER LEAVE SYSTEMS. WHILE THE DISCRETIONARY AUTHORITY OF THE SECRETARY OF STATE UNDER SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, TO GRANT OR DENY ANNUAL LEAVE TO FOREIGN SERVICE PERSONNEL WHILE STILL IN THE SERVICE REMAINS UNAFFECTED BY THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, NO DISCRETION REMAINS RESPECTING THE AMOUNT OF ANNUAL LEAVE FOR WHICH A LUMP-SUM PAYMENT MAY BE MADE UNDER THE 1944 STATUTE; INSTEAD, THE LUMP SUM PAYMENT MUST BE COMPUTED ON THE BASIS OF THE MAXIMUM AMOUNT OF ANNUAL LEAVE WHICH COULD BE GRANTED AT THE TIME RIGHT TO THE PAYMENT ACCRUES, LESS THE AMOUNT OF LEAVE GRANTED WHILE IN SERVICE. AS SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, AND THE REGULATIONS THEREUNDER APPLICABLE TO FOREIGN SERVICE PERSONNEL AUTHORIZE PAY WITHOUT A CHARGE TO LEAVE FOR THE TRANSIT TIME NECESSARY FOR RETURN TO THE UNITED STATES UPON TERMINATION OF SERVICE, THE DATE OF SEPARATION OF A FOREIGN SERVICE OFFICER OR EMPLOYEE, FROM WHICH THE LUMP-SUM PAYMENT FOR HIS LEAVE UNDER THE ACT OF DECEMBER 21, 1944, SHOULD BE COMPUTED, IS TO BE REGARDED AS THE DATE SUCH OFFICER OR EMPLOYEE ORDINARILY WOULD ARRIVE AT HIS HOME IN THE UNITED STATES BY THE USUALLY TRAVELED ROUTE AFTER DATE OF RELINQUISHMENT OF DUTIES AT HIS FOREIGN POST. THE REINSTATEMENT RIGHTS PROVIDED BY THE ACT OF FEBRUARY 23, 1931, FOR FOREIGN SERVICE OFFICERS AFTER SEPARATION FROM THE CLASSIFIED SERVICE BY REASON OF APPOINTMENT TO SOME OTHER POSITION IN THE GOVERNMENT SERVICE ARE NOT AFFECTED BY A BREAK IN SERVICE WHICH MAY BE OCCASIONED BY APPLICATION OF THE LUMP-SUM LEAVE PAYMENT REQUIREMENTS OF THE ACT OF DECEMBER 21, 1944, IN THE ABSENCE OF A PROVISION TO THE CONTRARY IN APPLICABLE REGULATIONS. WHERE A FOREIGN SERVICE OFFICER IS TO BE APPOINTED AMBASSADOR OR MINISTER --- ALSO IN THE FOREIGN SERVICE UNDER THE SAME LEAVE SYSTEM--- THERE NEED NOT BE REGARDED AS HAVING BEEN A SEPARATION FROM THE FOREIGN SERVICE OR A TRANSFER TO ANOTHER LEAVE SYSTEM SO AS TO REQUIRE A LUMP SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, BUT, RATHER, LEAVE MAY BE GRANTED BETWEEN THE TERMINATION OF ACTIVE DUTY AS A FOREIGN SERVICE OFFICER AND ACCEPTANCE OF APPOINTMENT AS AMBASSADOR OR MINISTER. FOREIGN SERVICE OFFICERS AND EMPLOYEES RETIRING FOR AGE, DISABILITY, OR AT THE INSTANCE OF THE SECRETARY OF STATE ARE SUBJECT TO THE LUMP SUM LEAVE PAYMENT PROVISIONS OF THE ACT OF DECEMBER 21, 1944. WHILE SERVICE OF A FOREIGN SERVICE OFFICER AT AN UNHEALTHFUL POST, INCLUDING PERIODS OF AUTHORIZED LEAVE, MAY BE COUNTED AS TIME AND ONE HALF FOR RETIREMENT PURPOSES UNDER THE PROVISIONS IN 22 U.S.C. 21 (K), SUCH AN OFFICER IS ENTITLED TO COMPENSATION AT ONLY THE STRAIGHT-TIME SALARY RATE, AND, THEREFORE, THE COMPENSATION EQUIVALENT PAYABLE IN A LUMP-SUM PURSUANT TO THE ACT OF DECEMBER 21, 1944, FOR THE LEAVE OF A RETIRING FOREIGN SERVICE OFFICER WHOSE LAST POST OF DUTY IS UNHEALTHFUL MAY NOT BE COMPUTED AT THE RATE OF TIME AND ONE-HALF.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, MARCH 7, 1945:

I HAVE YOUR LETTER OF FEBRUARY 22, 1945, REFERENCE FA, SUBMITTING FOR DECISION SEVERAL QUESTIONS RELATIVE TO THE APPLICATION OF THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525--- PROVIDING FOR LUMP-SUM PAYMENTS FOR ANNUAL OR VACATION LEAVE--- TO OFFICERS AND EMPLOYEES SEPARATED FROM THE FOREIGN SERVICE OF THE UNITED STATES.

THE SAID ACT OF DECEMBER 21, 1944, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE * * *.

SEC. 2. UPON THE DEATH OF ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT, OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, COMPENSATION FOR ALL OF HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE IN A LUMP SUM EQUAL TO THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE SHALL BE PAID, UPON THE ESTABLISHMENT OF A VALID CLAIM THEREFOR, IN THE FOLLOWING ORDER OF PRECEDENCE:

FIRST, TO THE BENEFICIARY OR BENEFICIARIES, IF ANY, LAWFULLY DESIGNATED BY THE EMPLOYEE UNDER THE RETIREMENT ACT APPLICABLE TO HIS SERVICE;

SECOND, IF THERE BE NO SUCH DESIGNATED BENEFICIARY, TO THE ESTATE OF SUCH DECEASED EMPLOYEE.

SEC. 3. THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP-SUM PAYMENT TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. SUCH LUMP- SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE * * *.

SEC. 4. THE PROVISIONS OF SECTIONS 1 AND 2 OF THIS ACT SHALL NOT APPLY TO OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA.

THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER SET FORTH IN YOUR LETTER.

1.DO THE PROVISIONS OF THIS ACT APPLY TO THE FOREIGN SERVICE?

LEAVE IN THE FOREIGN SERVICE IS GRANTED UNDER THE FOLLOWING PROVISION OF SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, WHICH READS:

"THE SECRETARY OF STATE IS AUTHORIZED, IN HIS DISCRETION AND SUBJECT TO SUCH REGULATIONS AS MAY BE ISSUED BY THE PRESIDENT, TO GRANT TO ANY OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE NOT TO EXCEED SIXTY DAYS ANNUAL LEAVE OF ABSENCE WITH PAY. IF SUCH OFFICER OR EMPLOYEE RETURNS TO THE UNITED STATES THE LEAVE OF ABSENCE GRANTED * * * SHALL BE EXCLUSIVE OF THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES, AND SUCH TIME AS MAY BE NECESSARILY OCCUPIED IN AWAITING SAILING. ANY PORTION OF SIXTY DAYS ANNUAL LEAVE NOT GRANTED OR AVAILED OF IN ANY ONE YEAR MAY BE CUMULATIVE, NOT TO EXCEED, EXCLUSIVE OF TIME IN TRANSIT AND AWAITING SAILING, 120 DAYS IN THREE YEARS OR 180 DAYS IN FOUR YEARS: PROVIDED FURTHER, THAT EMPLOYEES, NOT AMERICAN CITIZENS, MAY BE GRANTED NOT TO EXCEED THIRTY DAYS LEAVE OF ABSENCE WITH PAY IN ANY ONE YEAR.'

UNLIKE LEAVE GRANTED UNDER THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, FROM WHICH OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE ARE EXEMPTED BY SECTION 5 THEREOF, FOREIGN SERVICE LEAVE, BOTH CURRENT AND CUMULATIVE, IS GRANTED AT THE DISCRETION OF THE SECRETARY OF STATE. SINCE THE ACT OF DECEMBER 21, 1944, PROVIDES FOR A LUMP SUM PAYMENT FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH AN OFFICER OR EMPLOYEE IS ENTITLED UNDER EXISTING LAW AND SINCE, ACCORDING TO COMPTROLLER GENERAL'S DECISION A 84247 OF NOVEMBER 23, 1938, FOREIGN SERVICE OFFICERS AND EMPLOYEES HAVE NO EARNED RIGHTS TO LEAVE, IT WOULD SEEM THAT THE ACT OF DECEMBER 21, 1944, WOULD NOT APPLY TO LEAVE GRANTED UNDER THE ACT OF FEBRUARY 23, 1931.

IF, NOTWITHSTANDING THE WORDING OF THE ACT OF FEBRUARY 23, 1931 AND PREVIOUS DECISIONS UPHOLDING THE DISCRETIONARY GRANTING OF LEAVE THEREUNDER, IT IS DECIDED THAT THE ACT OF DECEMBER 21, 1944 DOES NOT APPLY TO THE FOREIGN SERVICE OF THE UNITED STATES, THE FOLLOWING QUESTIONS ARE PERTINENT.

2. ARE THE PROVISIONS OF THIS GENERAL LAW CONSTRUED TO MAKE MANDATORY THE GRANTING OF ALL ACCUMULATED AND CURRENT LEAVE THAT MAY HAVE ACCRUED TO AN OFFICER OR EMPLOYEE SEPARATING FROM THE FOREIGN SERVICE OR MAY THE GRANTING OF LEAVE IN SUCH CIRCUMSTANCES CONTINUE ON A DISCRETIONARY BASIS WITH THE LUMP SUM PAYMENT ONLY BEING MANDATORY?

IT MAY BE STATED THAT ONLY RARELY IS AN OFFICER OR EMPLOYEE SEPARATED FROM THE SERVICE WITHOUT LEAVE BEING GRANTED, THE USUAL AMOUNT GRANTED BEING FROM SIXTY TO NINETY DAYS.'

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDES THAT ITS PROVISIONS ARE APPLICABLE TO "ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT," WHICH, OF COURSE, WOULD INCLUDE OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE OF THE UNITED STATES. THE SAME EXPRESSION IS USED IN SECTION 2 OF THE STATUTE, INDICATING THAT PAYMENT IN DEATH CASES WAS NOT INTENDED TO BE LIMITED TO CASES OF DEATH OF OFFICERS OR EMPLOYEES SUBJECT TO ANY ONE LEAVE SYSTEM. NOTE, IN THAT CONNECTION, THAT THE STATUTE RECOGNIZES THERE MAY BE MORE THAN ONE RETIREMENT SYSTEM INVOLVED IN DETERMINING THE DESIGNATION OF BENEFICIARIES FIRST ENTITLED TO RECEIVE THE LUMP-SUM PAYMENT. THE DESIGNATION OF BENEFICIARIES IS AUTHORIZED UNDER THE FOREIGN SERVICE RETIREMENT ACT. 22 U.S.C. 21 (I). SECTION 3 OF THE STATUTE, 58 STAT. 846, PROVIDES FOR LUMP-SUM PAYMENTS FOR LEAVE UPON TRANSFER OF EMPLOYEES FROM ONE LEAVE SYSTEM TO ANOTHER. THERE IS NOTHING IN THAT SECTION TO INDICATE ANY INTENTION TO ALLOW A LUMP-SUM PAYMENT FOR LEAVE TO OFFICERS AND EMPLOYEES OF OTHER AGENCIES OF THE GOVERNMENT UPON TRANSFER TO THE FOREIGN SERVICE OF THE UNITED STATES AND TO DENY THE SAME BENEFIT TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE OF THE UNITED STATES UPON TRANSFER FROM THAT SERVICE TO ANOTHER OFFICE OR POSITION UNDER ANOTHER LEAVE SYSTEM. SEE DECISION OF OCTOBER 18, 1944, 24 COMP. GEN. 304, WHEREIN THE GOVERNMENT LEAVE SYSTEMS ARE MENTIONED AND WHEREIN IT WAS HELD THAT THE SECRETARY OF STATE WAS WITHOUT AUTHORITY TO PROVIDE BY REGULATION FOR TRANSFER OF LEAVE CREDITS UPON TRANSFER OF PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES TO THE DEPARTMENTAL SERVICE AND VICE VERSA--- THE SECOND PARAGRAPH OF THE SYLLABUS OF SAID DECISION READING:

THE TRANSFER OF LEAVE CREDITS BETWEEN SERVICE OR EMPLOYMENT UNDER DIFFERENT LEAVE SYSTEMS IS NOT NOW AUTHORIZED BY LAW AND MAY NOT BE AUTHORIZED BY REGULATION.

EVIDENTLY, SECTION 3 OF THE LUMP-SUM LAW WAS INTENDED TO PROTECT THE LEAVE RIGHTS OF EMPLOYEES PREVIOUSLY EFFECTED ADVERSELY BY APPLICATION OF THE RULE STATED IN THAT DECISION AND, ACCORDINGLY, NO SOUND REASON IS APPARENT FOR LIMITING APPLICATION OF THE LUMP-SUM LAW TO OFFICERS AND EMPLOYEES OF OTHER FEDERAL AGENCIES UPON TRANSFER TO THE FOREIGN SERVICE OF THE UNITED STATES. COMPARE ANSWER TO QUESTION 2, DECISION OF JANUARY 30, 1945, B-47256, 24 COMP. GEN. 578. ALSO, APPLYING THE WELL-KNOWN RULE OF STATUTORY CONSTRUCTION EXPRESSED BY THE LEGAL MAXIM, EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS, THE EXCLUSION EXPRESSLY MADE IN SECTION 4 OF THE STATUTE OF OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA FROM THE PROVISIONS OF SECTIONS 1 AND 2 OF THE STATUTE, REQUIRES THE CONCLUSION THAT THE PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES, WHICH IS NOT EXPRESSLY EXCLUDED, ARE INCLUDED WITHIN THE PURVIEW OF THE STATUTE AND THAT THE LEAVE LAWS AND REGULATIONS PREVIOUSLY APPLICABLE TO THE FOREIGN SERVICE OF THE UNITED STATES MUST BE REGARDED AS HAVING BEEN MODIFIED BY THE ACT OF DECEMBER 21, 1944, TO THE EXTENT NECESSARY TO PERMIT APPLICATION OF THE PROVISIONS OF THE LUMP-SUM- LEAVE-PAYMENT LAW TO THE PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES UPON AS UNIFORM A BASIS AS POSSIBLE WITH THE GENERAL RULE STATED IN DECISIONS OF THIS OFFICE APPLICABLE TO FEDERAL PERSONNEL UNDER OTHER LEAVE SYSTEMS.

IN THE LIGHT OF THE FOREGOING QUESTION I AND THE FIRST ALTERNATE QUESTION UNDER QUESTION 2 ARE ANSWERED IN THE AFFIRMATIVE.

REFERRING TO THE SECOND ALTERNATE QUESTION UNDER QUESTION 2, WHILE IT REMAINS DISCRETIONARY WITH THE SECRETARY OF STATE, AS PROVIDED BY LAW, TO GRANT OR DENY ANNUAL LEAVE TO THE PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES WHILE THEY REMAIN IN THAT SERVICE, NO DISCRETION REMAINS IN THE SECRETARY OF STATE TO DETERMINE THE AMOUNT OF TERMINAL ANNUAL LEAVE STANDING TO THE CREDIT OF AN OFFICER OR EMPLOYEE IN THE FOREIGN SERVICE OF THE UNITED STATES THAT WILL BE GRANTED AT THE TIME OF SEPARATION FROM THAT SERVICE BY RESIGNATION, RETIREMENT, DEATH, OR TRANSFER TO A POSITION UNDER ANOTHER LEAVE SYSTEM. HENCE, THE SECRETARY OF STATE HAS NO DISCRETION IN THE MATTER OF DETERMINING THE AMOUNT OF THE LUMP-SUM PAYMENT AUTHORIZED TO BE MADE UNDER THE ACT OF DECEMBER 21, 1944. NOTWITHSTANDING THE DISCRETIONARY FEATURE OF THE FOREIGN SERVICE LEAVE LAW, TO WHICH YOU REFER, SECTION 22, ACT OF FEBRUARY 23, 1931, 46 STAT. 1210, I AM UNABLE TO CONCLUDE THAT THE CONGRESS INTENDED APPLICATION OF THE LUMP-SUM LAW TO THE PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES IN THAT RESPECT TO BE ANY LESS BENEFICIAL, OR UPON ANY DIFFERENT BASIS, THAN HAS BEEN PROVIDED FOR THE PERSONNEL OF THE FEDERAL GOVERNMENT UNDER OTHER LEAVE SYSTEMS. IN ALL CASES, THE LUMP-SUM PAYMENT WILL BE THE ENTIRE AMOUNT OF COMPENSATION TO WHICH THE OFFICER OR EMPLOYEE OF THE FOREIGN SERVICE OF THE UNITED STATES WOULD HAVE BEEN ENTITLED HAD HE REMAINED IN SUCH SERVICE DURING THE MAXIMUM PERIOD OF ANNUAL LEAVE WHICH HE COULD HAVE RECEIVED UNDER THE APPLICABLE LAWS AND REGULATIONS AT THE TIME OF SEPARATION OR TRANSFER TO ANOTHER LEAVE SYSTEM, LESS THE AMOUNT OF LEAVE HE WAS GRANTED WHILE IN THE SERVICE WITHIN THE DISCRETION OF THE SECRETARY OF STATE. THE CONGRESS COULD NOT HAVE INTENDED TO CREATE A SITUATION AUTHORIZING ANY DISPARITY IN THE APPLICATION OF THE LAW. THIS OFFICE HAS EXPRESSED THE VIEW, BASED UPON THE LEGISLATIVE HISTORY OF THE ENACTMENT, THAT A UNIFORM APPLICATION OF THE LAW WAS INTENDED. SEE ANSWER TO QUESTION 2, DECISION OF JANUARY 11, 1945, B-46683, 24 COMP. GEN. 511.

3. WILL THE DATE OF SEPARATION FROM THE SERVICE BE THE DATE OF RELINQUISHMENT OF DUTIES AT THE POST OR THE DATE OF ARRIVAL AT THE OFFICER'S OR EMPLOYEE'S HOME?

IN AS MUCH AS THE FOREIGN SERVICE LEAVE LAW PROVIDES THAT WHEN A PERSON RETURNS TO THE UNITED STATES ON LEAVE THE TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES IS NOT CHARGEABLE AGAINST HIS LEAVE, IT HAS BEEN THE POLICY OF THE DEPARTMENT TO GRANT OFFICER OR EMPLOYEE SEPARATING FROM THE SERVICE HOME LEAVE OF ABSENCE, UPON THE EXPIRATION OF WHICH HIS SEPARATION WOULD BECOME EFFECTIVE. THE ACTUAL AND NECESSARY TRANSIT TIME WOULD NOT BE CHARGED AGAINST THE LEAVE GRANTED AND SUCH LEAVE, WITH ANY AMOUNT TAKEN EN ROUTE DEDUCTED THEREFROM, WOULD BEGIN UPON HIS ARRIVAL AT HIS HOME. USUALLY A PERSON LEAVING THE SERVICE RELINQUISHES HIS DUTIES AND IMMEDIATELY PROCEEDS TO HIS HOME. ONLY IN RARE INSTANCES IS LEAVE TAKEN EN ROUTE.

4. IF IT IS HELD THAT THE DATE OF SEPARATION FROM THE SERVICE IS THE DATE OF RELINQUISHMENT OF DUTIES, MAY AN OFFICER OR EMPLOYEE MAKE A( CLAIM FOR TRANSIT SALARY TO WHICH HE WOULD OTHERWISE BE ENTITLED?

IT IS POINTED OUT THAT UNDER THE PROVISIONS OF THE FOREIGN SERVICE REGULATIONS ANY PERSON WHO HAS SERVED CONTINUOUSLY FOR A PERIOD OF AT LEAST TWO YEARS IS ENTITLED, IN ADDITION TO TRANSIT SALARY, TO TRANSPORTATION TO HIS HOME IN THE UNITED STATES AT GOVERNMENT EXPENSE.

AS THE CONTROLLING STATUTE AND REGULATIONS APPLICABLE TO THE PERSONNEL OF THE FOREIGN SERVICE OF THE UNITED STATES AUTHORIZE TRANSIT TIME PAY WITHOUT CHARGE TO LEAVE FOR THE "TIME ACTUALLY AND NECESSARILY OCCUPIED IN GOING TO AND FROM THE UNITED STATES" UPON TERMINATION OF SERVICE, THE DATE OF SEPARATION WILL BE THE DATE THE OFFICER OR EMPLOYEE ORDINARILY WOULD ARRIVE AT HIS HOME IN THE UNITED STATES BY THE USUALLY-TRAVELED ROUTE AFTER DATE OF RELINQUISHMENT OF DUTIES AT HIS POST--- THAT IS, THE LAST DAY THROUGH WHICH TRANSIT-TIME PAY WOULD BE PAYABLE UNDER THE LAW AND REGULATIONS. CF. 24 COMP. GEN. 391. THE LUMP-SUM PAYMENT SHOULD BE COMPUTED IMMEDIATELY FOLLOWINGS SUCH DATE OF SEPARATION, THERE NO LONGER BEING ANY AUTHORITY TO GRANT "HOME" LEAVE IMMEDIATELY PRIOR TO TERMINATION OF SERVICE. THE ANSWER, SUPRA, TO QUESTION 3 RENDERS IT UNNECESSARY TO ANSWER QUESTION 4.

5. SECTION 5 OF TITLE 22 OF THE U.S.C. PROVIDES IN PART THAT REINSTATEMENT OF FOREIGN SERVICE OFFICERS SEPARATED FROM THE CLASSIFIED SERVICE BY REASON OF APPOINTMENT TO SOME OTHER POSITION IN THE GOVERNMENT SERVICE MAY BE MADE BY EXECUTIVE ORDER OF THE PRESIDENT UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE. WE HAVE HAD INSTANCES WHEREIN THIS HAS OCCURRED AND THE TRANSFER FROM THE FOREIGN SERVICE AND REINSTATEMENT THEREIN HAVE ALWAYS BEEN EFFECTED WITHOUT A BREAK IN SERVICE, ANY INTERIM BETWEEN RELINQUISHMENT OF DUTIES IN ONE SERVICE AND ENTRANCE ON DUTY IN THE OTHER BEING COVERED BY LEAVE. WOULD THE REINSTATEMENT RIGHTS OF AN OFFICER BE AFFECTED IF THERE WERE A BREAK IN SERVICE OCCASIONED BY THE APPLICATION OF PUBLIC LAW 525?

SECTION 5, TITLE 22, U.S. CODE, PROVIDES:

APPOINTMENT OF FOREIGN SERVICE OFFICERS; EXAMINATION AND PROBATION; TRANSFERS FROM STATE DEPARTMENT; CITIZENSHIP REQUIREMENT; REINSTATEMENT.

APPOINTMENTS TO THE POSITION OF FOREIGN SERVICE OFFICER SHALL BE MADE AFTER EXAMINATION, AND OFFICERS SO APPOINTED SHALL SERVE A SUITABLE PERIOD OF PROBATION IN AN UNCLASSIFIED GRADE OR, UNDER SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, AFTER FIVE YEARS OF CONTINUOUS SERVICE IN AN EXECUTIVE OR QUASI-EXECUTIVE POSITION IN THE DEPARTMENT OF STATE, BY TRANSFER THEREFROM: PROVIDED, THAT NO CANDIDATE SHALL BE ELIGIBLE FOR EXAMINATION FOR FOREIGN SERVICE OFFICER WHO IS NOT AN AMERICAN CITIZEN AND WHO SHALL NOT HAVE BEEN SUCH AT LEAST FIFTEEN YEARS: PROVIDED FURTHER, THAT REINSTATEMENT OF FOREIGN SERVICE OFFICERS SEPARATED FROM THE CLASSIFIED SERVICE BY REASON OF APPOINTMENT TO SOME OTHER POSITION IN THE GOVERNMENT SERVICE MAY BE MADE BE EXECUTIVE ORDER OF THE PRESIDENT UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE. EXCEPT THAT THE NUMBER OF SUCH OFFICERS REINSTATED SHALL NOT AFFECT THE NUMBER OF THE PERCENTAGE OF THE CLASS PROVIDED IN SECTION 3 OF THIS TITLE ( MAY 24, 1924, CH. 182, SEC. 5, 43 STAT. 141 AS RENUMBERED SEC. 12 AND AMENDED FEB. 23, 1931, CH. 276, SEC. 7, 46 STAT. 1208).

IT IS UNDERSTOOD THAT QUESTION 5 RELATES TO REINSTATEMENTS AUTHORIZED BY THE SECOND PROVISO OF THE ABOVE-QUOTED STATUTE. IF THAT BE CORRECT, THERE APPEARS NO PROHIBITION... ON THE STATUTE AGAINST REINSTATEMENTS UNDER THE TERMS AND CONDITIONS OTHERWISE PRESCRIBED AFTER A BREAK IN SERVICE, AND NO PROVISION OF THE REGULATIONS HAS BEEN CALLED TO ATTENTION, OR FOUND, WHICH WOULD PROHIBIT REINSTATEMENT AFTER A BREAK IN SERVICE. IF NO SUCH PROHIBITION IS CONTAINED IN APPLICABLE REGULATIONS, QUESTION 5 IS ANSWERED IN THE NEGATIVE.

6. THERE ARE OCCASIONS UPON WHICH FOREIGN SERVICE OFFICERS ARE APPOINTED AMBASSADORS AND MINISTERS. IN ORDER THAT AN OFFICER MIGHT ACCEPT THE HIGHER POSITION, HIS RESIGNATION AS A FOREIGN SERVICE OFFICER HAS BEEN ACCEPTED AND IF HE HAS BEEN UNABLE TO TAKE OATH OF OFFICE AS AMBASSADOR OR MINISTER DIRECTLY FOLLOWING HIS RELINQUISHMENT OF DUTIES AS A FOREIGN SERVICE OFFICER, LEAVE NECESSARY TO PRESERVE CONTINUITY OF SERVICE HAS BEEN GRANTED. INASMUCH AS LEABE FOR FOREIGN SERVICE OFFICERS AND FOR AMBASSADORS AND MINISTERS IS GRANTED UNDER THE SAME LEAVE SYSTEM, WOULD IT BE NECESSARY TO MAKE A LUMP SUM PAYMENT FOR THE LEAVE ACCRUED AS A FOREIGN SERVICE OFFICER?

SO FAR AS HERE MATERIAL A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, IS REQUIRED ONLY WHEN AN OFFICER OR EMPLOYEE "IS SEPARATED FROM THE SERVICE; " AND SECTION 3 OF THE STATUTE PROVIDES FOR A LUMP-SUM PAYMENT FOR LEAVE ONLY UPON TRANSFER TO ANOTHER LEAVE SYSTEM. IF A FOREIGN SERVICE OFFICER IS TO BE APPOINTED AMBASSADOR OR MINISTER--- ALSO IN THE FOREIGN SERVICE OF THE UNITED STATES OR A TRANSFER TO ANOTHER LEAVE SYSTEM WITHIN THE MEANING OF THE LUMP-SUM PAYMENT LAW, BUT, ON THE CONTRARY, LEAVE MAY BE GRANTED BETWEEN THE TERMINATION OF ACTIVE DUTY AS A FOREIGN SERVICE OFFICER AND ACCEPTANCE OF APPOINTMENT AS AMBASSADOR OR MINISTER. CF. ANSWER TO QUESTION (4), LAST SUBQUESTION, DECISION OF JANUARY 18, 1945, B-46946, 24 COMP. GEN. 540.

7. WILL ALL RETIREMENTS UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM BE SUBJECT TO THIS ACT?

UNDER THE PROVISIONS OF SECTION 26 OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED, FOREIGN SERVICE OFFICERS MAY RETIRED (A) FOR AGE; (B) VOLUNTARILY ON THE BASIS OF THE COMPLETION OF THIRTY YEARS OF SERVICE; (C) ON DISABILITY; AND (D) AT THE INSTANCE OF THE SECRETARY OF STATE. THE ACT ALSO PROVIDES THAT ALL LEAVE OF ABSENCE OTHER THAN MORE THAN SIX MONTHS LEAVE WITHOUT PAY SHALL BE INCLUDED IN COMPUTING SERVICE CREDIT.

FOR AN OFFICER TO BE RETIRED ON DISABILITY OR AT THE INSTANCE OF THE SECRETARY OF STATE, IT IS NECESSARY THAT HE SHALL HAVE COMPLETED FIFTEEN YEARS OF SERVICE. IN SOME INSTANCES, THE FINAL DUTY DATE MAY BE PRIOR TO THE COMPLETION OF FIFTEEN YEARS OF ACTUAL SERVICE, BUT THE LEAVE GRANTED WOULD ENABLE HIM TO RECEIVE SUFFICIENT CREDIT TO RETIRE. ATTENTION IS CALLED TO THE FACT THAT AN OFFICER MUST SERVE THREE TIMES THE YEARS REQUIRED UNDER THE CIVIL SERVICE LAW BEFORE HE MAY RETIRE ON DISABILITY AND THE REQUIRED FORFEITURE OF TERMINAL LEAVE CREDIT MAY WORK A REAL HARDSHIP IN SOME CASES.

EXCEPT AS TO THE PERIOD OF SERVICE REQUIRED, AND CERTAIN OTHER CONDITIONS NOT HERE MATERIAL, THERE IS NO DIFFERENCE BETWEEN THE SITUATION HERE PRESENTED AND THAT PRESENTED IN RETIREMENT CASES UNDER THE CIVIL SERVICE RETIREMENT ACT HERETOFORE CONSIDERED UNDER THE LUMP SUM PAYMENT LAW. SEE ANSWER TO QUESTION 2, DECISION OF JANUARY 11, 1945, B-46683, SUPRA; ANSWER TO QUESTION (2), DECISION OF JANUARY 13, 1945, B-46790, 24 COMP. GEN. 526; AND ANSWER TO QUESTION (4), FIRST SUBDIVISION, DECISION OF JANUARY 18, 1945, B-46946, SUPRA. ALSO, SEE DECISION OF FEBRUARY 16, 1945, B-47646, 24 COMP. GEN. 617. FOR THE REASONS STATED IN THOSE DECISIONS, THIS QUESTION MUST BE AND IS ANSWERED IN THE AFFIRMATIVE. OF COURSE, IN DISABILITY RETIREMENT CASES THE LUMP SUM LAW DOES NOT PRECLUDE THE GRANTING OF SICK LEAVE (22 U.S.C. 17A), OR LEAVE WITHOUT PAY, PRIOR TO SEPARATION OF A FOREIGN SERVICE OFFICER OR EMPLOYEE BY RETIREMENT. OF. DECISION OF FEBRUARY 14, 1945, B-47583, 24 COMP. GEN. 616.

8. THE RETIREMENT LAW ALSO PROVIDES THAT SERVICE AT AN UNHEALTHFUL POST SHALL COUNT AS TIME AND ONE HALF. IF AN OFFICER WHOSE LAST POST OF SERVICE PRIOR TO RETIREMENT IS UNHEALTHFUL IS REQUIRED TO SERVE UNTIL THE ACTUAL DATE OF RETIREMENT AND RECEIVE A LUMP SUM PAYMENT FOR THE SIX MONTHS OF LEAVE USUALLY GRANTED, HE IS LOSING CREDIT FOR NINE MONTHS OF SERVICE. SHOULD HIS LUMP SUM PAYMENT THEN BE FOR SIX MONTHS OR FOR NINE MONTHS?

SINCE THE ACT OF FEBRUARY 23, 1931, IS A SPECIAL STATUTE, THE PROVISIONS OF WHICH ARE NOT SPECIFICALLY REPEALED OR MODIFIED BY THE GENERAL STATUTE OF DECEMBER 21, 1944, IT WOULD SEEM THAT THIS LATER GENERAL LAW SHOULD NOT BE CONSTRUED TO DEPRIVE FOREIGN SERVICE PERSONNEL OF THE PRIVILEGES GRANTED THEM UNDER THE EARLIER SPECIAL ACT.

SECTION 21 (K), TITLE 22, U.S. CODE, PROVIDES:

(K) UNHEALTHFUL POSTS; COMPUTATION OF LENGTH OF SERVICE.

THE PRESIDENT IS AUTHORIZED FROM TIME TO TIME TO ESTABLISH, BY EXECUTIVE ORDER, A LIST OF PLACES WHICH BY REASON OF CLIMATIC OR OTHER EXTREME CONDITIONS ARE TO BE CLASSED AS UNHEALTHFUL POSTS, AND EACH YEAR OF DUTY SUBSEQUENT TO JANUARY 1, 1900, AT SUCH POSTS INCLUSIVE OF REGULAR LEAVES OF ABSENCE, OF OFFICERS ALREADY RETIRED OR HEREAFTER RETIRED, SHALL BE COUNTED AS ONE YEAR AND A HALF, AND SO ON IN LIKE PROPORTION IN RECKONING THE LENGTH OF SERVICE FOR THE PURPOSE OF RETIREMENT, FRACTIONAL MONTHS BEING CONSIDERED AS FULL MONTHS IN COMPUTING SUCH SERVICE: PROVIDED, HOWEVER, THAT THE PRESIDENT MAY AT ANY TIME CANCEL THE DESIGNATION OF ANY PLACES AS UNHEALTHFUL WITHOUT AFFECTING ANY CREDIT WHICH HAS ACCRUED FOR SERVICE AT SUCH POSTS PRIOR TO THE DATE OF THE CANCELATION.

THAT STATUTE RELATES SOLELY TO THE CREDITING OF SERVICE AS LONGEVITY FOR RETIREMENT PURPOSES. THAT IS TO SAY, ALL SERVICE PERFORMED AT UNHEALTHFUL POSTS, INCLUDING PERIODS OF AUTHORIZED LEAVE, COUNTS AS TIME AND ONE-HALF FOR RETIREMENT PURPOSES. HOWEVER, IT IS NOT UNDERSTOOD THAT AN OFFICER WHOSE LAST POST OF DUTY WAS AT AN UNHEALTHFUL POST HAS BEEN PAID, OR IS ENTITLED TO BE PAID, NINE MONTHS' SALARY FOR SIX MONTHS OF ACTIVE SERVICE, OR FOR SIX MONTHS OF TERMINAL ANNUAL LEAVE. CONSONANT WITH THE ANSWER TO QUESTION 7, TERMINAL ANNUAL LEAVE IMMEDIATELY PRIOR TO RETIREMENT MAY NOT BE GRANTED. SECTION 1 OF THE ACT OF DECEMBER 21, 1944, PROVIDES THAT:

* * * SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE * * *.

APPLYING THAT PROVISION OF THE STATUTE TO THE CASE PRESENTED IT WOULD FOLLOW THAT THE LUMP SUM PAYMENT WOULD BE FOR SIX MONTHS' SALARY, RATHER THAN FOR NINE MONTHS' SALARY.