B-32225, FEBRUARY 16, 1943, 22 COMP. GEN. 810

B-32225, FEBRUARY 16, 1943, 22 COMP. GEN. 810

FORFEITED ACCUMULATED ANNUAL LEAVE RESTORED UNDER ACT OF DECEMBER 17, 1942; OVERTIME COMPENSATION UNDER ACT OF DECEMBER 22, 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, AN EMPLOYEE WHO 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--- MAY NOT BE RESTORED TO THE ROLL SOLELY FOR THE PURPOSE OF GRANTING ADDITIONAL UNUSED ANNUAL LEAVE TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE SAID ACT HAD HE REMAINED IN THE SERVICE. IN VIEW OF THE ACT OF DECEMBER 17, 1942--- WHICH IS RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939--- INCREASING FROM 60 DAYS TO 90 DAYS THE AMOUNT OF ANNUAL LEAVE THAT AN EMPLOYEE MAY ACCUMULATE DURING THE PRESENT NATIONAL EMERGENCY, AN EMPLOYEE WHO ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940--- THE DATE FROM WHICH PAYMENT FOR ACCUMULATED ANNUAL LEAVE CONCURRENTLY WITH MILITARY OR NAVAL DUTY IS AUTHORIZED UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED--- MAY BE PAID FOR ANY ADDITIONAL AMOUNT OF ACCUMULATED LEAVE TO WHICH HE HAS BECOME ENTITLED BY REASON OF SAID ACT OF DECEMBER 17, 1942. THE OVERTIME COMPENSATION PAYABLE UNDER THE ACT OF DECEMBER 22, 1942, IS A STATUTORY INCREASE IN COMPENSATION AND IS AUTHORIZED DURING A PERIOD OF AUTHORIZED ANNUAL LEAVE, THE SAME AS THOUGH THE EMPLOYEE WERE ON ACTIVE DUTY, AND, THEREFORE, MAY BE INCLUDED IN THE COMPENSATION PAID AN EMPLOYEE FOR A PERIOD OF ACCUMULATED ANNUAL LEAVE GRANTED UPON SEPARATION FROM THE SERVICE. WHERE EMPLOYEES HAVE TRANSFERRED TO OTHER GOVERNMENT AGENCIES OR HAVE BEEN SEPARATED FROM THE SERVICE PRIOR TO ACTUAL PAYMENT OF THE INCREASED COMPENSATION AUTHORIZED BY THE OVERTIME AND ADDITIONAL COMPENSATION ACT OF DECEMBER 22, 1942, PAYMENT THEREFOR MAY BE MADE IN ACCORDANCE WITH THE RULE PRESCRIBED IN 21 COMP. GEN. 871, RESPECTING PAYMENTS OF WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, TO THE EFFECT THAT THE AMOUNTS DUE SHOULD BE CERTIFIED FOR PAYMENT BY THE ADMINISTRATIVE OFFICE IN WHICH THE EMPLOYEES WERE EMPLOYED PRIOR TO TRANSFER OR SEPARATION, AND THAT SUCH AMOUNTS MAY BE PAID BY THE DISBURSING OFFICER EXCEPT IN CASES WHERE PAYMENT CANNOT BE ACCOMPLISHED WITHIN 3 MONTHS AFTER THE CLOSE OF THE FISCAL YEAR, IN WHICH EVENT THE MATTER SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT. AS TO EMPLOYEES WHO NOW ARE IN THE FEDERAL SERVICE AND WHO HAVE BECOME ENTITLED TO PREVIOUSLY FORFEITED ACCUMULATED ANNUAL LEAVE BY REASON OF THE ACT OF DECEMBER 17, 1942, INCREASING, RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939, THE AMOUNT OF ANNUAL LEAVE THAT MAY BE ACCUMULATED, THE EFFECTIVE DATE OF A PROPOSED TERMINATION OR THE BEGINNING OF LEAVE OF ABSENCE WITHOUT PAY MAY BE CHANGED IN ORDER TO GRANT THE ADDITIONAL LEAVE, PROVIDED THE PROPOSED TERMINATION OR LEAVE OF ABSENCE WITHOUT PAY IS NOT FOR CAUSE--- IN WHICH CASE THE GRANTING OF LEAVE IS A MATTER OF ADMINISTRATIVE DISCRETION.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, OFFICE OF STRATEGIC SERVICES, FEBRUARY 16, 1943:

I HAVE YOUR LETTER DATED JANUARY 30, 1943, RECEIVED HERE FEBRUARY 3, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 806--- 77TH CONGRESS APPROVED DECEMBER 17, 1942, AN ACT TO AMEND THE ACT APPROVED MARCH 14, 1936, ENTITLED "AN ACT TO PROVIDE FOR VACATIONS FOR GOVERNMENT EMPLOYEES, AND FOR OTHER PURPOSES.' THE PERTINENT PORTION OF PUBLIC LAW 806 READS AS FOLLOWS:

"* * * THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939, THE LEAVE UNUSED BY THE EMPLOYEES OF THE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES, NOT IN OTHER FORM COMPUTED OR COMPENSATED, SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING NINETY DAYS: AND PROVIDED FURTHER, THAT WHEN THE UNUSED LEAVE ACCUMULATED EQUALS OR EXCEEDS SIXTY DAYS IN THE AGGREGATE, NOT MORE THAN FIFTEEN DAYS OF UNUSED LEAVE MAY BE FURTHER ACCUMULATED IN ANY ONE CALENDAR YEAR.'

IN ATTEMPTING TO APPLY THE PROVISIONS OF PUBLIC LAW 806 WITH RESPECT TO THE ACCRUED ANNUAL LEAVE TO WHICH A NUMBER OF EMPLOYEES OF THIS OFFICE ARE ENTITLED THERE HAVE ARISEN QUESTIONS WHICH REQUIRE AN INTERPRETATION ON THE PART OF YOUR OFFICE BEFORE APPROPRIATE ACTION CAN BE TAKEN. SOME OF THE PROBLEMS INVOLVED ARE RELATED TO THE OVERTIME COMPENSATION ACT OF DECEMBER 22, 1942. THE MATTERS ON WHICH A DECISION IS DESIRED ARE AS FOLLOWS:

1. IS PUBLIC LAW 806, AS QUOTED ABOVE, RETROACTIVE IN EFFECT TO SEPTEMBER 8, 1939, SO AS TO PERMIT A POSSIBLE MAXIMUM ANNUAL LEAVE ACCUMULATION OF NINETY DAYS AS OF DECEMBER 31, 1942, OR IS THE STATUTE EFFECTIVE ONLY FROM THE DATE OF ENACTMENT, IN WHICH CASE ONLY A POSSIBLE MAXIMUM OF SEVENTY- FIVE DAYS OF ANNUAL LEAVE CAN REMAIN TO THE CREDIT OF AN EMPLOYEE OF JANUARY 1, 1943?

2. SHOULD THE EFFECTIVE DATE OF TERMINATION OF EMPLOYMENT OF THOSE WHO LEFT GOVERNMENT SERVICE DURING THE PAST YEAR BE EXTENDED TO ALLOW PAYMENT FOR LEAVE PREVIOUSLY CONSIDERED AS "LOST" BECAUSE OF THE SIXTY DAY LIMITATION IN PRIOR REGULATIONS?

3. DO THE PROVISIONS OF PUBLIC LAW 806, 77TH CONGRESS, APPLY TO THOSE CASES WHERE GOVERNMENT PERSONNEL HAVE BEEN PAID FOR ACCUMULATED LEAVE WHILE IN MILITARY SERVICE? FOR EXAMPLE, ONE EMPLOYEE ENTERING THE ARMED SERVICES DURING 1942 HAD TO HIS CREDIT ON DECEMBER 31, 1941, A TOTAL OF SEVENTY-TWO DAYS, NONE OF WHICH HE HAD BEEN ABLE TO TAKE DURING CALENDAR YEAR 1941. HOWEVER, UNDER THE SIXTY-DAY LIMITATION ON ACCUMULATION OF ANNUAL LEAVE, HE FORFEITED TWELVE DAYS, SO THAT ON JANUARY 1, 1942, THERE REMAINED ONLY SIXTY DAYS' ANNUAL LEAVE TO HIS CREDIT. MAY WE NOW PAY THIS EMPLOYEE FOR THOSE TWELVE DAYS?

4. ARE PERSONS WHOSE SERVICES HAVE BEEN TERMINATED, OR WHO ARE BEING PAID FOR ACCUMULATED LEAVE PENDING TERMINATION, ENTITLED TO OVERTIME PAY ON SUCH ACCUMULATED LEAVE?

5. ARE WE REQUIRED TO CHANGE THE EFFECTIVE DATE OF TERMINATION AND/OR BEGINNING OF LWOP WHICH WAS ACCEPTED OR GRANTED AT EXPIRATION OF ANNUAL LEAVE AND COMPUTED ON THE FORMER 44-HOUR WORK WEEK BASIS?

YOUR HELPFUL GUIDANCE ON THE ABOVE POINTS WILL BE APPRECIATED.

QUESTION 1 IS IDENTICAL WITH THE ONE ANSWERED IN THE DECISION OF JANUARY 26, 1943, B-31772, 22 COMP. GEN. 704, TO THE FEDERAL SECURITY ADMINISTRATOR (COPY ENCLOSED), WHEREIN IT WAS HELD THAT THE ACT OF DECEMBER 17, 1942, PUBLIC LAW 806 " MAY BE REGARDED AS RETROACTIVELY EFFECTIVE TO SEPTEMBER 8, 1939.'

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.

THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, PUBLIC LAW 517, 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. ( ITALICS SUPPLIED.)

THAT STATUTE (PARTICULARLY THE ITALICIZED PORTION THEREOF) GRANTS A RIGHT WHICH MAY NOT BE DENIED. AS THE ACT OF DECEMBER 17, 1942, INCREASING THE AMOUNT OF ACCUMULATED LEAVE IS RETROACTIVELY EFFECTIVE, IT FOLLOWS THAT AN EMPLOYEE WHO ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE SUBSEQUENT TO MAY 1, 1940, NOW HAS A RIGHT TO BE PAID FOR THE ADDITIONAL AMOUNT OF ACCUMULATED LEAVE TO WHICH HE HAS BECOME ENTITLED BY REASON OF THE ACT OF DECEMBER 17, 1942. QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE.

IT HAS BEEN HELD THAT THE INCREASED COMPENSATION ON AN "OVERTIME" BASIS AUTHORIZED BY JOINT RESOLUTION OF DECEMBER 22, 1942, IS A STATUTORY INCREASE IN COMPENSATION. SEE DECISION OF JANUARY 21, 1943, B-31789, 22 COMP. GEN. 683, TO THE SECRETARY OF LABOR. THAT INCREASE IS AUTHORIZED DURING PERIODS OF AUTHORIZED ANNUAL LEAVE THE SAME AS THOUGH THE WERE ON ACTIVE DUTY. SEE SECTION 4 OF THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 9289, DATED DECEMBER 26, 1942; ALSO 20 COMP. GEN. 555; 21 ID. 853, 855 AND DECISIONS THEREIN CITED. ACCORDINGLY, QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE. WITH REGARD TO THE PAYMENT OF CLAIMS FOR INCREASED COMPENSATION UNDER THE JOINT RESOLUTION OF DECEMBER 22, 1942, TO EMPLOYEES WHO HAVE TRANSFERRED TO OTHER AGENCIES OR WHOSE SERVICES HAVE BEEN TERMINATED, THERE MAY BE APPLIED THE SAME RULE AS WAS AUTHORIZED UNDER THE AUTOMATIC PROMOTION LAW OF AUGUST 1, 1941, 55 STAT. 613, STATED IN DECISION OF MARCH 14, 1942, 21 COMP. GEN. 871, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AMOUNTS REPRESENTING WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, DUE EMPLOYEES WHO TRANSFERRED TO OTHER GOVERNMENT AGENCIES, OR WHO WERE SEPARATED FROM THE SERVICE, BEFORE ACTUAL PAYMENT OF THE INCREASES TO WHICH THEY BECAME ELIGIBLE ON OCTOBER 1, 1941, SHOULD BE CERTIFIED FOR PAYMENT BY THE ADMINISTRATIVE OFFICE IN WHICH THE EMPLOYEE WAS EMPLOYED PRIOR TO HIS TRANSFER OR SEPARATION, AND SUCH AMOUNTS MAY BE PAID BY THE DISBURSING OFFICER EXCEPT IN CASES WHERE PAYMENT CANNOT BE ACCOMPLISHED WITHIN 3 MONTHS AFTER THE CLOSE OF THE FISCAL YEAR, IN WHICH EVENT THE MATTER SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT.

IF QUESTION 5 IS DIRECTED TO EMPLOYEES WHO NOW ARE IN THE SERVICE, THE EFFECTIVE DATE OF A PROPOSED TERMINATION OR THE BEGINNING OF LEAVE OF ABSENCE WITHOUT PAY SHOULD BE CHANGED IN ORDER TO GRANT THE EMPLOYEES THE ADDITIONAL ACCUMULATED ANNUAL LEAVE TO WHICH THEY ARE ENTITLED BY REASON OF THE ACT OF DECEMBER 17, 1942, PROVIDED THE PROPOSED TERMINATION OR LEAVE OF ABSENCE WITHOUT PAY IS NOT FOR CAUSE-- THE GRANTING OF LEAVE IN SUCH CASES BEING A MATTER OF ADMINISTRATIVE DISCRETION. SEE SECTION 8 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940. IF THE EMPLOYEES ARE NO LONGER IN THE SERVICE (EXCEPT THOSE WHO HAVE ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE) NO CHANGE IN THE TERMINATION DATE IS AUTHORIZED. SEE ANSWER TO QUESTION 2.