B-62279, JANUARY 16, 1947, 26 COMP. GEN. 499

B-62279, JANUARY 16, 1947, 26 COMP. GEN. 499

LEAVES OF ABSENCE - ANNUAL - RECREDIT OF PRIOR ACCRUED LEAVE - FOREIGN SERVICE OFFICERS RETURNING FROM MILITARY DUTY IN VIEW OF THE ACT OF AUGUST 1, 1941, AS AMENDED, CONFERRING UPON EMPLOYEES ENTERING MILITARY SERVICE THE RIGHT TO HAVE THEIR ANNUAL LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN, A FOREIGN SERVICE OFFICER REINSTATED IN 1945 AFTER MILITARY SERVICE MAY BE RECREDITED WITH CUMULATIVE ANNUAL LEAVE EARNED UNDER SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, IN 1940 WHICH HE HAD TO HIS CREDIT WHEN HE ENTERED MILITARY SERVICE, NOTWITHSTANDING DECISIONS (17 COMP. GEN. 697; 18 ID. 467) TO THE EFFECT THAT, UNDER THE PROVISIONS OF SAID SECTION 22, THE ONLY ACCUMULATED ANNUAL LEAVE AVAILABLE TO A FOREIGN SERVICE OFFICER IN A GIVEN YEAR IS THAT FROM THE FOUR PRIOR CALENDAR YEARS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, JANUARY 16, 1947:

I HAVE YOUR LETTER OF DECEMBER 4, 1946, REFERENCE FP, AS FOLLOWS:

YOUR ADVICE IS REQUESTED IN THE SOLUTION OF THE FOLLOWING CASE.

ON MAY 1, 1942, A FOREIGN SERVICE OFFICER WAS PLACED ON LEAVE WITHOUT PAY IN CONNECTION WITH HIS ENTRANCE INTO THE MARINE CORPS. AT THE BEGINNING OF 1942 THERE WERE AVAILABLE TO HIM 133 DAYS CUMULATIVE ANNUAL LEAVE; 60 DAYS HAVING BEEN EARNED IN 1941, 60 DAYS IN 1940, AND 13 DAYS IN 1939. 1942, BEFORE ENTERING MILITARY SERVICE, HE AVAILED HIMSELF OF 37 DAYS CUMULATIVE ANNUAL LEAVE. IN ACCORDANCE WITH THE DEPARTMENT'S REGULATIONS THE LEAVE TAKEN IN 1942 WAS CHARGED AGAINST THE LEAVE REMAINING FROM 1939 AND 1940. THERE WERE, THEREFORE, AVAILABLE TO THE OFFICER ON MAY 1, 1942, 96 DAYS CUMULATIVE ANNUAL LEAVE AND 20 DAYS ACCRUED ANNUAL LEAVE WHICH HE HAD EARNED IN 1942 COVERING THE PERIOD JANUARY 1 TO MAY 1, 1942. NO PART OF THIS LEAVE WAS GRANTED IN CONNECTION WITH THE OFFICER'S ENTRANCE INTO MILITARY SERVICE.

IN JULY 1945, THE OFFICER WAS RELEASED FROM MILITARY SERVICE AND WAS REINSTATED, AND WE ARE ANXIOUS TO DETERMINE THE AMOUNT OF LEAVE THAT SHOULD BE RESTORED TO HIS CREDIT.

1. SHOULD WE RESTORE TO HIS CREDIT THE 116 DAYS OF LEAVE WHICH WERE AVAILABLE TO HIM ON MAY 1, 1942;

2. OR WOULD HE LOSE, THROUGH NONAPPLICATION THEREFOR, THE UNUSED LEAVE FROM 1940, SINCE, ACCORDING TO THE COMPTROLLER GENERAL'S DECISIONS OF NOVEMBER 23, 1938 AND MARCH 2, 1938 THE ONLY ACCUMULATED ANNUAL LEAVE AVAILABLE TO AN OFFICER OR EMPLOYEE IN A GIVEN YEAR IS THE UNUSED LEAVE FROM THE FOUR PRIOR CALENDAR YEARS?

PARAGRAPH 2 OF SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210- -- IN EFFECT AT THE TIME THE EMPLOYEE HERE INVOLVED RETURNED TO CIVILIAN DUTY AFTER MILITARY SERVICE--- PROVIDED AS FOLLOWS:

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 UNDER THE PROVISIONS OF THIS SECTION 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, ONE HUNDRED AND TWENTY DAYS IN THREE YEARS OR ONE HUNDRED AND EIGHTY 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.

IN THE DECISION OF MARCH 2, 1938, 17 COMP. GEN. 697, REFERRED TO IN YOUR LETTER, SUPRA, IT WAS HELD AS FOLLOWS (QUOTING THE SYLLABUS):

SECTION 22, ACT, FEBRUARY 23, 1931, 46 STAT. 1210, LIMITING THE AMOUNT OF ANNUAL LEAVE WHICH MAY BE ACCUMULATED BY FOREIGN SERVICE OFFICERS AND EMPLOYEES OF THE STATE DEPARTMENT, TO 120 DAYS IN THREE YEARS OR 180 DAYS IN FOUR YEARS, ALSO OPERATES AS A LIMITATION ON THE PERIOD OVER WHICH THE ACCUMULATION MAY OCCUR, AND THE MAXIMUM AMOUNT OF ANNUAL LEAVE AN OFFICER MAY HAVE IN THE CURRENT YEAR IS THE UNUSED LEAVE FOR THE PERIODS AS SO LIMITED, PLUS CURRENT LEAVE.

THAT HOLDING WAS AFFIRMED IN THE DECISION OF NOVEMBER 23, 1938, 18 COMP. GEN. 467, ALSO REFERRED TO IN YOUR LETTER.

THE COMPUTATION OF THE CUMULATIVE ANNUAL LEAVE (96 DAYS), AND THE CURRENT ACCRUED LEAVE (20 DAYS), TO THE CREDIT OF THE EMPLOYEE ON MAY 1, 1942, AS SET FORTH IN THE FIRST PARAGRAPH OF YOUR LETTER, APPEARS TO BE NONCONFORMITY WITH THE PROVISIONS OF THE 1931 STATUTE QUOTED ABOVE AND THE HOLDING IN THE REFERRED-TO DECISIONS OF THIS OFFICE. THE QUESTION AS TO THE PROPER AMOUNT OF LEAVE TO BE RECREDITED THE EMPLOYEE UPON HIS RETURN TO CIVILIAN DUTY AFTER MILITARY SERVICE ARISES BY REASON OF THE FACT THAT A LITERAL APPLICATION OF THE HOLDING IN THE SAID DECISION OF MARCH 2, 1938, WOULD REQUIRE THE ELIMINATION OF ANNUAL LEAVE WHICH ACCUMULATED IN 1940 IN COMPUTING THE LEAVE TO BE CREDITED. HOWEVER, IN THAT CONNECTION, IT WILL BE NOTED THAT THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200--- SUBSEQUENT TO THE RENDITION OF SAID DECISION--- 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 VIEW OF THE EXPRESS STATUTORY PROVISION CONTAINED IN THE SAID ACT OF AUGUST 1, 1941, AS AMENDED, TO THE EFFECT THAT EMPLOYEES OF THE FEDERAL GOVERNMENT WHO ENTERED THE MILITARY OR NAVAL SERVICES SUBSEQUENT TO MAY 1, 1940, SHALL BE ENTITLED TO COMPENSATION COVERING THEIR ACCUMULATED OR ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE "REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE," THE HOLDING IN THE SAID DECISIONS OF THIS OFFICE RESPECTING THE OPERATION OF THE 1931 FOREIGN SERVICE LEAVE STATUTE WOULD NOT BE CONTROLLING SO FAR AS CONCERNS THE COMPUTATION OF THE LEAVE TO BE CREDITED TO EMPLOYEES WITHIN THE PURVIEW OF THE SAID ACT OF AUGUST 1, 1941, AS AMENDED, UPON THEIR RETURN TO CIVILIAN DUTY AFTER MILITARY SERVICE. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION 2 IN THE NEGATIVE.