B-118308, MARCH 1, 1954, 33 COMP. GEN. 378

B-118308, MARCH 1, 1954, 33 COMP. GEN. 378

LEAVES OF ABSENCE - ANNUAL - MAXIMUM ACCUMULATION LIMITATION - OVERSEAS EMPLOYEES SECTION 203 (D) OF ANNUAL AND SICK LEAVE ACT OF 1951, AUTHORIZES 45 DAYS MAXIMUM ANNUAL LEAVE ACCUMULATION FOR EMPLOYEES STATIONED OUTSIDE UNITED STATES, PROVIDED (1) THEY WERE DIRECTLY RECRUITED OR TRANSFERRED FROM UNITED STATES BY FEDERAL GOVERNMENT, (2) WERE EMPLOYED LOCALLY BUT WERE ORIGINALLY RECRUITED FROM UNITED STATES BY DESIGNATED EMPLOYERS UNDER AGREEMENT PROVIDING FOR RETURN TRANSPORTATION TO THE UNITED STATES, AND THEREFORE A PERSON RECRUITED IN THE UNITED STATES FOR SERVICE IN ALASKA WITH TERRITORIAL INSTITUTION, UNDER CONDITIONS OF EMPLOYMENT NOT PROVIDING FOR RETURN TRANSPORTATION TO UNITED STATES, WHO UPON TERMINATION OF SUCH EMPLOYMENT IS GIVEN APPOINTMENT WITH FEDERAL AGENCY IN ALASKA IS NOT ENTITLED TO LEAVE BENEFITS OF THE SECTION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, MARCH 1, 1954:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 13, 1954, REQUESTING A DECISION WHETHER AN EMPLOYEE OF THE COAST AND GEODETIC SURVEY OF YOUR DEPARTMENT, EMPLOYED IN ALASKA IN AN OBSERVATORY OF THAT BUREAU, MAY BE INCLUDED UNDER THE PROVISIONS OF PARAGRAPH (1) OR (2) OF SECTION 203 (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, BASED UPON THE FACTS AND CIRCUMSTANCES FURNISHED BY YOU, WHICH ARE SET OUT BELOW.

SECTION 203 (D) PROVIDES FOR A MAXIMUM ACCUMULATION OF 45 DAYS' LEAVE TO CERTAIN EMPLOYEES STATIONED OUTSIDE THE SEVERAL STATES AND THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE FOLLOWING:

(1) PERSONS DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES STATES BY THE FEDERAL GOVERNMENT.

(2) PERSONS EMPLOYED LOCALLY BUT (A) WHO WERE ORIGINALLY RECRUITED FROM THE UNITED STATES AND HAVE BEEN IN SUBSTANTIALLY CONTINUOUS EMPLOYMENT BY OTHER FEDERAL AGENCIES, UNITED STATES FIRMS, INTERESTS, OR ORGANIZATIONS, INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES GOVERNMENT PARTICIPATES, OR FOREIGN GOVERNMENTS, AND WHOSE CONDITIONS OF EMPLOYMENT PROVIDE FOR THEIR RETURN TRANSPORTATION TO THE UNITED STATES, OR (B) WHO WERE AT THE TIME OF EMPLOYMENT TEMPORARILY ABSENT FROM THE UNITED STATES FOR PURPOSES OF TRAVEL OR FORMAL STUDY AND MAINTAINED RESIDENCE IN THE UNITED STATES DURING SUCH TEMPORARY ABSENCE.

THE RECORD SHOWS THAT THE EMPLOYEE HERE INVOLVED WAS, IN 1946, RECRUITED IN IOWA FOR TERRITORIAL SERVICE AT FAIRBANKS, ALASKA, WITH THE UNIVERSITY OF ALASKA, AND THAT, AT THE TIME, TRANSPORTATION TO THE PLACE OF EMPLOYMENT UNDER UNIVERSITY RULES WAS NOT PAID. IT IS STATED IN YOUR LETTER THAT IT APPEARS THAT SAID EMPLOYMENT WAS SUBJECT TO ALL LAWS, RULES AND REGULATIONS OF THE TERRITORY, AND THAT, ACCORDINGLY, THE EMPLOYMENT WAS NOT CONSIDERED FEDERAL EMPLOYMENT. WHILE THE RECORD ALSO SHOWS THAT DURING THE FISCAL YEARS 1948 AND 1949 A JOINT FEDERAL 1TERRITORIAL PROGRAM WAS CARRIED ON BY THE UNIVERSITY OF ALASKA AND THE DEPARTMENT OF AGRICULTURE, AND THAT SOME OF THE EMPLOYEES WORKING THEREON WERE GIVEN FEDERAL APPOINTMENTS AND PORTIONS OF THEIR SALARIES PAID EITHER FROM FEDERAL, FEDERAL-1GRANT OR TERRITORIAL FUNDS, THERE IS NO SHOWING THAT THE EMPLOYEE HAD HIS ORIGINAL APPOINTMENT CHANGED, ALTHOUGH SALARY CARDS REFLECT PAYMENTS TO HIM FROM FEDERAL FUNDS DURING A PORTION OF EACH OF THE CALENDAR YEARS 1947, 1948, AND 1949. THE RECORD FURTHER SHOWS THAT ON JUNE 1, 1949, THE EMPLOYEE WAS GIVEN AN EXCEPTED APPOINTMENT IN ALASKA BY THE COAST AND GEODETIC SURVEY AS A SCIENTIFIC AID, SP-8, WHICH APPOINTMENT IT APPEARS AUTHORIZED THE EMPLOYEE TO THE COVERAGE OF THE ANNUAL AND SICK LEAVE ACTS IN FORCE AND EFFECT AT THAT TIME. THE RECORD ALSO SHOWS THAT THE EMPLOYEE CLAIMED ALASKA, AT THE TIME OF APPOINTMENT WITH THE COAST AND GEODETIC SURVEY, AS HIS LEGAL RESIDENCE, OWNED HIS HOME AND VOTED THERE.

SINCE THE EMPLOYEE HERE CONCERNED WAS RECRUITED LOCALLY FOR ALASKAN DUTY ONLY, AND THERE IS NO SHOWING THAT THE CONDITIONS OF EMPLOYMENT WITH THE UNIVERSITY OF ALASKA PROVIDED FOR RETURN TRANSPORTATION TO THE UNITED STATES, AND SINCE HIS RIGHT TO RETURN TRANSPORTATION TO THE UNITED STATES AS A FEDERAL EMPLOYEE IS PRECLUDED IN ABSENCE OF A SHOWING OF ACTUAL RESIDENCE IN THE UNITED STATES AT TIME OF APPOINTMENT, IT MUST BE CONCLUDED THAT HE DOES NOT MEET THE REQUIREMENTS OF EITHER PARAGRAPH (1) OR (2), QUOTED ABOVE. SEE, GENERALLY, 30 COMP. GEN. 231. YOUR QUESTION IS ANSWERED ACCORDINGLY.