B-41511, MAY 4, 1944, 23 COMP. GEN. 841

B-41511, MAY 4, 1944, 23 COMP. GEN. 841

LEAVES OF ABSENCE THE PROVISION OF SECTION 4.3 OF THE ANNUAL AND SICK LEAVE REGULATIONS, REQUIRING A REDUCTION IN ANNUAL LEAVE CREDITS FOR EACH PERIOD OF LEAVE OF ABSENCE WITHOUT PAY OF 15 OR MORE DAYS DURING A CALENDAR YEAR PLUS A FURTHER REDUCTION OF ONE-HALF DAY WHENEVER SUCH ABSENCE TOTALS 90 DAYS, DOES NOT AFFECT THE GRANTING OF ONE-HALF DAY QUARTERLY CREDIT AUTHORIZED UNDER SECTION 2.1 (A) OF THE REGULATIONS UNTIL AN EMPLOYEE HAS BEEN ON LEAVE OF ABSENCE WITHOUT PAY A TOTAL OF 90 DAYS IN THE AGGREGATE. WHILE IT IS WITHIN ADMINISTRATIVE DISCRETION TO DENY PERMANENT EMPLOYEES THE MONTHLY CREDIT OF ANNUAL LEAVE UNTIL THE EXPIRATION OF THE MONTH IN WHICH IT ACCRUES, UNDER SECTION 2.3 OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT EMPLOYEES DURING THEIR FIRST YEAR OF SERVICE SHALL NOT BE GRANTED LEAVE IN EXCESS OF THE AMOUNT ACCRUED TO THEIR CREDIT, THE MONTHLY CREDIT OF 2 DAYS' ANNUAL LEAVE MAY BE ALLOWED TO SUCH EMPLOYEES DURING THEIR FIRST YEAR OF SERVICE AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. UNDER SECTION 2.1 (B) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT TEMPORARY EMPLOYEES MAY BE CREDITED 2 1/2 DAYS' LEAVE FOR EACH MONTH OF SERVICE, TEMPORARY EMPLOYEES, AFTER THE FIRST MONTH OF SERVICE, MAY BE CREDITED WITH 2 1/2 DAYS' ANNUAL LEAVE AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES, BUT, OF COURSE, IT IS WITHIN ADMINISTRATIVE DISCRETION TO DENY SUCH EMPLOYEES THE MONTHLY CREDIT OF ANNUAL LEAVE UNTIL THE EXPIRATION OF THE MONTH IN WHICH IT ACCRUES. SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROHIBITING THE GRANTING OF LEAVE ON LEAVE DURING TERMINAL LEAVE, APPLIES TO EMPLOYEES WHOSE TENURE OF SERVICE IS INDEFINITE AND WHOSE TERMINATION OF SERVICE MUST BE FIXED AFTER SERVICE HAS BEEN RENDERED AND IS NOT APPLICABLE IN THE CASE OF TEMPORARY EMPLOYEES WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR, AND, THEREFORE, A TEMPORARY EMPLOYEE WHO IS APPOINTED FOR A 30 DAY PERIOD MAY BE GRANTED 2 1/2 DAYS' ANNUAL LEAVE IMMEDIATE PRIOR TO THE EXPIRATION OF HIS APPOINTMENT. UNDER THE PROVISO OF SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS "THAT SHOULD AN EMPLOYEE SEPARATE FROM THE SERVICE BEFORE THE EXPIRATION OF THE CALENDAR YEAR, SUCH CREDIT WILL BE REDUCED PROPORTIONATELY"--- WHICH PROVISO SUBSTANTIALLY CORRESPONDS TO SECTION 4 (A) OF THE OLD REGULATIONS--- IF AN EMPLOYEE IS GRANTED ANNUAL LEAVE WHICH IS NOT SUBSEQUENTLY EARNED DURING THAT CALENDAR YEAR, AN ADJUSTMENT IS REQUIRED AT THE END OF THE CALENDAR YEAR--- THERE BEING NO AUTHORITY TO CARRY OVER THE UNACCRUED ANNUAL LEAVE FROM ONE CALENDAR YEAR AS A CHARGE AGAINST ANNUAL LEAVE ACCRUING IN THE NEXT CALENDAR YEAR. SECTION 4.6 OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT UNAVOIDABLE OR NECESSARY ABSENCES FROM DUTY NOT IN EXCESS OF 30 MINUTES MAY BE ADMINISTRATIVELY EXCUSED, WAS INTENDED TO RELATE ONLY TO AN ABSENCE "NOT IN EXCESS OF THIRTY MINUTES," OR TO AN ABSENCE CAUSED BY "TARDINESS," AND WAS NOT INTENDED TO RELATE TO A FRACTIONAL HOUR'S ABSENCE WHEN THE TOTAL ABSENCE EXCEEDS ONE HOUR--- EXCEPT IN CASES OF TARDINESS WHICH MAY BE EXCUSED ADMINISTRATIVELY REGARDLESS OF THE TIME INVOLVED--- AND, THEREFORE, AN EMPLOYEE WHO IS GRANTED ONE HOUR'S ANNUAL LEAVE AND RETURNS AFTER AN ABSENCE OF MORE THAN ONE HOUR, BUT LESS THAN TWO HOURS, SHOULD BE CHARGED TWO HOURS' ANNUAL LEAVE. THE WORD "CONTAGIOUS" AS USED IN SECTION 3.3 OF THE SICK LEAVE REGULATIONS, RESPECTING THE GRANTING OF ACCRUED SICK LEAVE TO AN EMPLOYEE WHEN A MEMBER OF HIS IMMEDIATE FAMILY IS AFFLICTED WITH A CONTAGIOUS DISEASE AND REQUIRES HIS CARE AND ATTENDANCE, INCLUDES ONLY DISEASES RULES AS SUBJECT TO QUARANTINE--- THAT IS, REQUIRING SEGREGATION OF THE PATIENT- -- BY THE HEALTH AUTHORITIES HAVING JURISDICTION IN THE PLACE OF EMPLOYMENT. IN VIEW OF THE FACT THAT CERTAIN REGULATIONS GRANT REEMPLOYMENT BENEFITS TO EMPLOYEES ENTERING PUBLIC OR PRIVATE ENTERPRISE CONNECTED WITH THE CONDUCT OF THE WAR UPON SUBSTANTIALLY THE SAME BASIS AS GRANTED BY LAW TO EMPLOYEES ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE, AND AS LEAVE OF ABSENCE WITHOUT PAY MAY BE GRANTED UNDER SECTION 4.8 (A) OF THE LEAVE REGULATIONS FOR SUCH PURPOSE FOR A PERIOD NOT TO EXCEED 12 MONTHS EVEN THOUGH AN EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT, AN EMPLOYEE TRANSFERRED WITH SUCH REEMPLOYMENT BENEFITS NEED NOT BE REGARDED AS SEPARATED FROM HIS CIVILIAN POSITION SO AS TO REQUIRE A REFUND FOR OVERDRAWN LEAVE AT THE TIME OF SUCH TRANSFER.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MAY 4, 944:

I HAVE YOUR LETTER OF APRIL 15, 1944, PRESENTING FOR MY CONSIDERATION A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF THE NEW LEAVE REGULATIONS PROMULGATED IN EXECUTIVE ORDER NO. 9414, DATED JANUARY 13, 1944. THE QUESTIONS WILL BE STATED AND ANSWERED IN THE NUMERICAL ORDER RESENTED:

QUESTION 1

SECTION 2.1 (A) OF THE REGULATIONS PROVIDES THAT "PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF TWO DAYS PER CALENDAR MONTH PLUS AN ADDITIONAL ONE-HALF DAY IN MARCH, JUNE, SEPTEMBER, AND DECEMBER TO EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS; * * *.' SECTION 4.3 PROVIDES THAT "WHENEVER A PERMANENT EMPLOYEE IS ABSENT ON LEAVE WITHOUT PAY FIFTEEN OR MORE DAYS DURING A CALENDAR YEAR, THE CREDITS FOR ANNUAL LEAVE SHALL BE REDUCED ONE DAY AND FOR SICK LEAVE ONE-HALF DAY FOR EACH SUCH PERIOD AGGREGATING FIFTEEN DAYS. WHENEVER SUCH ABSENCES TOTAL NINETY DAYS THERE SHALL BE A FURTHER REDUCTION OF ONE HALF DAY IN ANNUAL LEAVE CREDITS FOR EACH SUCH PERIOD: * * *.' READING THE TWO SECTIONS TOGETHER IT APPEARS THAT NO REDUCTION IN THE QUARTERLY CREDIT OF LEAVE IS REQUIRED UNTIL ABSENCES ON LEAVE WITHOUT PAY TOTAL NINETY DAYS IN THE AGGREGATE. HOWEVER, SINCE THE QUESTION IS NOT ENTIRELY CLEAR, YOUR DECISION IS REQUESTED AS TO WHETHER LEAVE WITHOUT PAY IN EXCESS OF FIFTEEN DAYS AFFECTS THE GRANTING OF THE QUARTERLY CREDIT?

THIS QUESTION IS ANSWERED IN THE NEGATIVE. SEE QUESTION AND ANSWER 4, DECISION OF APRIL 15, 1944, B-41136, 23 COMP. GEN. 789, TO YOU.

QUESTION 2 (A) (B)

(A) IN VIEW OF THE FACT THAT SECTION 2.3 STATES THAT "EMPLOYEES DURING THEIR FIRST YEAR OF SERVICE SHALL NOT BE GRANTED LEAVE IN EXCESS OF THE AMOUNT ACCRUED TO THEIR CREDIT," IS THE MONTHLY CREDIT OF ANNUAL LEAVE AVAILABLE TO FIRST-YEAR EMPLOYEES AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES, OR MAY IT BE GRANTED ONLY AS EARNED? FOR EXAMPLE, A FIRST- YEAR EMPLOYEE ENTERS ON DUTY MARCH 1, TAKES NO LEAVE DURING MARCH, BUT BEGINNING APRIL 8 WISHES TO TAKE ALL OF THE LEAVE TO HIS CREDIT. MAY THIS EMPLOYEE TAKE THE TWO DAYS WHICH ACCRUED IN MARCH AND TWO DAYS ACCRUAL FOR APRIL, OR MAY HE TAKE ONLY THE TWO DAYS FOR MARCH AND FOUR HOURS FOR SEVEN DAYS' SERVICE IN APRIL?

(B) UNDER SECTION 2.1 (B) OF THE REGULATIONS AFTER THE FIRST MONTH OF SERVICE TEMPORARY EMPLOYEES MAY BE CREDITED WITH 2 1/2 DAYS ANNUAL LEAVE AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. MAY SUCH LEAVE BE GRANTED AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES, OR MAY IT BE GRANTED ONLY AS EARNED?

(A) IN THE ABSENCE OF ANY PROVISION TO THE CONTRARY IN THE LEAVE ACT, OR REGULATION, OR OTHERWISE, THE MONTHLY CREDIT OF 2 DAYS ANNUAL LEAVE MAY BE ALLOWED TO PERMANENT EMPLOYEES DURING THEIR FIRST YEAR OF SERVICE AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. HENCE, IN THE EXAMPLE STATED, THE EMPLOYEE MAY BE GRANTED 2 DAYS LEAVE WHICH ACCRUED IN MARCH AND, ALSO, THE 2 DAYS LEAVE ACCRUAL FOR APRIL.

(B) LIKEWISE, AFTER THE FIRST MONTH OF SERVICE, TEMPORARY EMPLOYEES MAY BE CREDITED WITH 2 1/2 DAYS ANNUAL LEAVE AT THE BEGINNING OF THE MONTH IN WHICH IT ACCRUES. COMPARE QUESTION AND ANSWER 2, DECISION OF FEBRUARY 29, 1944, 23 COMP. GEN. 638, 642.

OF COURSE, AS TO BOTH QUESTIONS (A) AND (B), IT IS WITHIN ADMINISTRATIVE DISCRETION TO DENY EMPLOYEES THE MONTHLY CREDIT OF ANNUAL LEAVE UNTIL THE EXPIRATION OF THE MONTH IN WHICH IT ACCRUES. SEE THE PENULTIMATE SENTENCE OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161.

QUESTION 3

MAY A TEMPORARY EMPLOYEE WHO IS APPOINTED FOR THIRTY DAYS BE GRANTED 2 1/2 DAYS LEAVE IMMEDIATELY PRIOR TO THE EXPIRATION OF HIS APPOINTMENT?

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF MARCH 29, 1944, B-40831, 23 COMP. GEN. 732, TO MR. O. A. ZIMMERLI, AUTHORIZED CERTIFYING OFFICER, FOREST SERVICE, WHEREIN WAS CONSIDERED AN IDENTICAL QUESTION IN RESPECT TO A 2 MONTHS TEMPORARY APPOINTMENT. THE RULE THERE STATED APPLIED WITH LIKE FORCE TO A 1 MONTH'S TEMPORARY APPOINTMENT.

QUESTION 4

UNDER THE OLD ANNUAL LEAVE REGULATIONS (SECTION 4 (A) ( ( EXECUTIVE ORDER NO. 8384) UNACCRUED LEAVE WAS GRANTED WITH THE "EXPRESS UNDERSTANDING THAT IF SUCH LEAVE IS NOT LATER EARNED DURING THE CALENDAR YEAR, DEDUCTIONS WILL BE MADE FOR THE UNEARNED PORTION FROM ANY SALARY DUE TO EMPLOYEE, OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO THE CREDIT OF THE EMPLOYEE.' THUS UNDER THE OLD REGULATIONS ADJUSTMENTS WERE MADE AT THE END OF THE CALENDAR YEAR FOR ANY EXCESS LEAVE GRANTED BUT NOT SUBSEQUENTLY EARNED. THERE IS NO SIMILAR PROVISION IN THE NEW LEAVE REGULATIONS. UNDER THE NEW LEAVE REGULATIONS IF AN EMPLOYEE IS GRANTED LEAVE WHICH IS NOT SUBSEQUENTLY EARNED DURING THE CALENDAR YEAR SHOULD AN ADJUSTMENT BE MADE AT THE END OF THE CALENDAR YEAR, OR, SHOULD A CHARGE FOR SUCH UNACCRUED LEAVE BE CARRIED OVER AGAINST LEAVE ACCRUING IN THE NEXT CALENDAR YEAR?

CONTRARY TO YOUR APPARENT UNDERSTANDING, THE PROVISION IN THE NEW LEAVE REGULATIONS, SUBSTANTIALLY CORRESPONDING TO THE PROVISION IN THE OLD ANNUAL LEAVE REGULATIONS QUOTED IN THIS QUESTION, IS FOUND IN SECTION 2.1 (A) OF THE NEW LEAVE REGULATIONS AND READS: "PROVIDED, THAT SHOULD AN EMPLOYEE SEPARATE FROM THE SERVICE BEFORE THE EXPIRATION OF THE CALENDAR YEAR, SUCH CREDIT WILL BE REDUCED PROPORTIONATELY.' ANNUAL LEAVE OF ABSENCE IS GRANTED ON AN ANNUAL YEAR BASIS, ONLY. WHILE EXPRESS PROVISION IS MADE BY LAW FOR THE ACCUMULATION OF LEAVE CREDITS FROM YEAR TO YEAR, NO PROVISION IS MADE BY LAW OR REGULATION FOR THE ACCUMULATION OF LEAVE CHARGES FROM YEAR TO YEAR. SEE DECISION OF FEBRUARY 5, 1940, 19 COMP. GEN. 705, 708, WHEREIN IT WAS STATED:

* * * FURTHERMORE, THE ANNUAL LEAVE ACT DOES NOT AUTHORIZE AN ADVANCE OF ANNUAL LEAVE BEYOND THE AMOUNT THAT MAY BE EARNED DURING THE CALENDAR OR LEAVE YEAR CURRENT WHEN THE ADVANCE IS MADE, WHEREAS THE SICK LEAVE ACT AUTHORIZED ADVANCE SICK LEAVE IN THE TOTAL AMOUNT OF 30 DAYS, WHICH IS AN ADVANCE OF ACCRUALS FOR 24 MONTHS, OR 2 YEARS. * * * ACCORDINGLY, UNDER THE NEW LEAVE REGULATIONS, IF AN EMPLOYEE IS GRANTED ANNUAL LEAVE WHICH IS NOT SUBSEQUENTLY EARNED DURING THAT CALENDAR YEAR, AN ADJUSTMENT IS REQUIRED AT THE END OF THAT CALENDAR YEAR--- THERE BEING NO AUTHORITY TO CARRY OVER THE UNACCRUED ANNUAL LEAVE FROM ONE CALENDAR YEAR AS A CHARGE AGAINST ANNUAL LEAVE ACCRUING IN THE NEXT CALENDAR YEAR.

QUESTION 5

SECTION 4.6 OF THE REGULATIONS PROVIDES THAT "UNAVOIDABLE OR NECESSARY ABSENCES FROM DUTY NOT IN EXCESS OF THIRTY MINUTES" MAY BE ADMINISTRATIVELY EXCUSED. MAY THIS SECTION BE USED IN CONJUNCTION WITH THE GRANTING OF SHORT PERIODS OF LEAVE? FOR EXAMPLE, AN EMPLOYEE IS GRANTED ONE HOUR'S LEAVE, IS DETAINED FOR SOME REASON, AND RETURNS TO DUTY AFTER AN ABSENCE OF ONE HOUR AND TWENTY MINUTES. MAY THE TWENTY MINUTES BE ADMINISTRATIVELY EXCUSED?

IT IS BELIEVED THAT SECTION 4.6 OF THE NEW LEAVE REGULATIONS WAS INTENDED TO RELATE ONLY TO AN ABSENCE "NOT IN EXCESS OF THIRTY MINUTES," OR TO AN ABSENCE CAUSED BY "TARDINESS," AND WAS NOT INTENDED TO RELATE TO A FRACTIONAL HOUR'S ABSENCE WHEN THE TOTAL ABSENCE EXCEEDS ONE HOUR--- EXCEPT IN CASES OF TARDINESS WHICH MAY BE EXCUSED ADMINISTRATIVELY REGARDLESS OF THE TIME INVOLVED. IN THE EXAMPLE GIVEN, THE EMPLOYEES SHOULD BE CHARGED TWO HOURS ANNUAL LEAVE; OTHERWISE, THE PROVISIONS IN THE REGULATIONS FIXING THE MINIMUM CREDIT AND CHARGE FOR ANNUAL AND SICK LEAVE AS ONE HOUR PRACTICALLY WOULD BE NULLIFIED.

QUESTION 6

SECTION 3.3 PROVIDES THAT SICK LEAVE SHALL BE GRANTED "WHEN A MEMBER OF THE IMMEDIATE FAMILY OF THE EMPLOYEE IS AFFLICTED WITH A CONTAGIOUS DISEASE, OR WHEN, THROUGH EXPOSURE TO CONTAGIOUS DISEASE, THE PRESENCE OF THE EMPLOYEE AT HIS POST OF DUTY WOULD JEOPARDIZE THE HEALTH OF OTHERS.' THE COMMISSION HAS RECENTLY HAD REQUESTS FOR SICK LEAVE FROM EMPLOYEES IN ITS OWN ORGANIZATION INVOLVING AN INTERPRETATION OF THE WORD "CONTAGIOUS," AND INQUIRIES FROM PERSONNEL OFFICERS OF OTHER AGENCIES INDICATE THAT THERE IS NO GENERAL UNDERSTANDING AS TO DISEASES INTENDED TO BE COVERED BY THE WORD "CONTAGIOUS.'

THE COMMITTEE ON DEPARTMENTAL METHODS, DESIGNATED BY PRESIDENT THEODORE ROOSEVELT IN 1906, IN ITS REPORT OF DECEMBER 24TH OF THAT YEAR, MADE THE FOLLOWING RECOMMENDATION:

"WHEN LEAVE IS ASKED BECAUSE SOME MEMBER OF THE IMMEDIATE FAMILY OF THE APPLICANT HAS BEEN AFFLICTED WITH A CONTAGIOUS DISEASE REQUIRING THE CARE AND ATTENTION OF SUCH EMPLOYEE, OR WHERE HIS OR HER PRESENCE IN THE DEPARTMENT WOULD HAVE JEOPARDIZED THE HEALTH OF FELLOW EMPLOYEES, A PHYSICIAN'S OR HEALTH OFFICER'S CERTIFICATE SO STATING, AND GIVING IN ADDITION THE NAME AND RELATIONSHIP OF THE PERSON AFFLICTED, MUST BE FURNISHED. BEFORE THE RETURN TO DUTY OF THE APPLICANT HE MUST OBTAIN A PHYSICIAN'S CERTIFICATE THAT HIS RETURN WILL NOT JEOPARDIZE THE HEALTH OF FELLOW-EMPLOYEES. ONLY THOSE DISEASES AGAINST WHICH THE AUTHORITIES OF THE DISTRICT OF COLUMBIA QUARANTINE WILL BE RECOGNIZED AS CONTAGIOUS UNDER THE PROVISIONS OF THESE REGULATIONS.'

THIS RECOMMENDATION APPLIED TO EMPLOYEES IN THE DISTRICT OF COLUMBIA ONLY, BUT SEEMS TO HAVE BEEN GENERALLY ADOPTED ADMINISTRATIVELY, BECAUSE THE LEAVE REGULATIONS OF THE DEPARTMENT OF COMMERCE OF APRIL 13, 1918 CONTAINED THE FOLLOWING PROVISION:

"ABSENCES BY REASON OF EXPOSURE TO CONTAGIOUS DISEASE AGAINST WHICH THE LOCAL AUTHORITY QUARANTINED WILL BE CHARGED TO SICK LEAVE WHEN SUPPORTED BY A CERTIFICATE FURNISHED BY THE PROPER HEALTH OFFICER.'

THE COMMISSION HAS BEEN FOLLOWING THIS INTERPRETATION, BUT REQUESTS TO BE ADVISED WHETHER THE WORD "CONTAGIOUS" AS USED IN SECTION 3.3 OF THE REGULATIONS SHOULD BE CONSTRUED AS INCLUDING ONLY DISEASES RULES AS SUBJECT TO QUARANTINE BY THE HEALTH AUTHORITIES HAVING JURISDICTION IN THE PLACE OF EMPLOYMENT.

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE WITH THE UNDERSTANDING THAT BY "QUARANTINE" IS MEANT THE SEGREGATION OF THE PATIENT.

QUESTION 7

UNDER WAR MANPOWER COMMISSION DIRECTIVE NUMBER X AND SECTION 4 OF WAR SERVICE REGULATION IX, A FEDERAL EMPLOYEE MAY BE TRANSFERRED WITH REEMPLOYMENT RIGHTS, TO PRIVATE OR PUBLIC ENTERPRISE WHENEVER THE COMMISSION FINDS THAT HE IS QUALIFIED TO PERFORM WORK IN A CRITICAL WAR OCCUPATION AND CAN MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR EFFORT IN AN ESSENTIAL ACTIVITY CARRIED ON BY SUCH PRIVATE OR PUBLIC ENTERPRISE. WHEN SO TRANSFERRED, THE EMPLOYEE IS ENTITLED TO BE CARRIED ON LEAVE WITHOUT PAY FOR THE PERIOD OF HIS EMPLOYMENT WITH THE PRIVATE OR PUBLIC ENTERPRISE, BUT NOT TO EXTEND BEYOND SIX MONTHS AFTER THE END OF THE WAR. IN DECISION OF YOUR OFFICE B-40518, MARCH 16, 1944 (ANSWER TO QUESTION 15) IT WAS HELD THAT "AN ENTRANCE INTO THE ACTIVE MILITARY SERVICE NEED NO LONGER BE REGARDED AS A "SEPARATION" FROM CIVILIAN SERVICE WITHIN THE MEANING OF SECTION 4.7 OF THE LEAVE REGULATIONS" IN VIEW OF THE REEMPLOYMENT BENEFITS GRANTED TO EMPLOYEES ENTERING THE MILITARY SERVICE. YOUR DECISION IS REQUESTED AS TO WHETHER AN EMPLOYEE TRANSFERRED WITH REEMPLOYMENT BENEFITS UNDER SECTION 4 OF REGULATION IX WILL BE REQUIRED TO REFUND OVERDRAWN LEAVE AT THE TIME OF HIS TRANSFER TO PUBLIC OR PRIVATE ENTERPRISE.

THE ANSWER TO QUESTION 15, STATED, IN DECISION OF MARCH 16, 1944, B 40518, 23 COMP. GEN. 677, TO WHICH YOU REFER, READS AS FOLLOWS:

IN VIEW OF THE EXISTING PROVISIONS OF LAW AND CIVIL SERVICE REGULATIONS GRANTING REEMPLOYMENT BENEFITS TO EMPLOYEES--- THAT IS, GRANTING A RIGHT TO RESTORATION TO DUTY IN THE SAME OR SIMILAR STATUS HELD BY THE EMPLOYEE WHEN ENTERING ACTIVE MILITARY SERVICE REGARDLESS OF THE FORM OF THE SEPARATION FROM CIVILIAN SERVICE OR WHETHER CARRIED AS ON MILITARY FURLOUGH WITHOUT PAY--- IT SEEMS REASONABLE TO CONCLUDE THAT AN ENTRANCE INTO THE ACTIVE MILITARY SERVICE NEED NO LONGER BE REGARDED AS A "SEPARATION" FROM CIVILIAN SERVICE WITHIN THE MEANING OF SECTION 4.7 OF THE NEW LEAVE REGULATIONS. HENCE, IN THAT VIEW, EMPLOYEES NEED NOT BE REQUIRED TO REFUND OVERDRAWN ANNUAL OR SICK LEAVE WHEN THEY ENTER THE ACTIVE MILITARY SERVICE WITHOUT BREAK IN SERVICE. QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE. AS REEMPLOYMENT BENEFITS ARE GRANTED BY THE WAR MANPOWER DIRECTIVE NO. X AND SECTION 4 OF WAR SERVICE REGULATION NO. IX TO EMPLOYEES ENTERING PUBLIC OR PRIVATE ENTERPRISE CONNECTED WITH THE CONDUCT OF THE WAR UPON SUBSTANTIALLY THE SAME BASIS AS GRANTED BY LAW TO CIVILIAN EMPLOYEES ENTERING THE ACTIVE MILITARY OR NAVAL SERVICE, AND AS LEAVE OF ABSENCE WITHOUT PAY NOW MAY BE GRANTED FOR SUCH PURPOSE FOR A PERIOD NOT TO EXCEED 12 MONTHS, EVEN IN CASES WHERE AN EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT (SEE SECTION 4.8 (A) OF THE NEW LEAVE REGULATIONS AND QUESTION AND ANSWER 1, DECISION OF APRIL 15, 1944, B-41136, 23 COMP. GEN. 789, TO YOU), IT IS REASONABLE TO CONCLUDE THAT AN EMPLOYEE TRANSFERRED WITH REEMPLOYMENT BENEFITS UNDER SAID WAR MANPOWER DIRECTIVE AND WAR SERVICE REGULATION NEED NOT BE REGARDED AS SEPARATED FROM HIS CIVILIAN POSITION, BUT MAY BE REGARDED AS IN A LEAVE WITHOUT PAY STATUS AND, AS SUCH, IS NOT REQUIRED TO REFUND OVERDRAWN LEAVE AT THE TIME OF HIS TRANSFER TO PUBLIC OR PRIVATE ENTERPRISE.