B-162148, OCT. 5, 1967

B-162148, OCT. 5, 1967

LEAVES OF ABSENCE - CIVILIANS ON MILITARY DUTY - RECREDIT DECISION TO CERTIFYING OFFICER OF G.S.A. CONCERNING LEAVE AND SERVICE CREDIT FOR EMPLOYEE DURING MILITARY SERVICE. EMPLOYEE WHO DID NOT APPLY FOR REINSTATEMENT AFTER MILITARY SERVICE OF MORE THAN NINE YEARS AND WHO IS CURRENTLY EMPLOYED IN A TEMPORARY POSITION WHICH HAS NO RELATION TO HIS PRIOR MILITARY OR CIVILIAN SERVICE IS NOT REGARDED AS HAVING BEEN RETURNED TO DUTY FROM ACTIVE MILITARY SERVICE FOR ENTITLEMENT TO ANNUAL LEAVE RECREDIT. THE PERIOD OF MILITARY DUTY IS REGARDED AS A BREAK IN SERVICE AND THE ANNUAL LEAVE TO HIS CREDIT SHOULD BE PROCESSED FOR PAYMENT AT THE SALARY RATE HE WAS RECEIVING UPON ENTRY ON ACTIVE DUTY. THE SICK LEAVE MAY NOT BE RECREDITED. WHETHER MILITARY SERVICE IS CREDITABLE FOR LEAVE--- EARNING PURPOSES WOULD DEPEND ON THE EMPLOYEE MEETING THE CONDITIONS OF 5 U.S.C. 6303.

TO MRS. ESTELLE K. SOKOLOSKI:

YOUR LETTER OF JULY 25, 1967, REFERENCE 3BCPA, REQUESTS OUR DECISION CONCERNING THE LEAVE ACCOUNTS AND YEARS OF CREDITABLE SERVICE OF MR. CHARLES G. EDWARDS, BASED UPON THE FACTS AND CIRCUMSTANCES SET OUT BELOW. A VOUCHER WAS NOT SUBMITTED BUT IT IS EVIDENT THAT YOU DESIRE THE INFORMATION SO THAT A VOUCHER CAN BE PREPARED.

STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, DATED JULY 5, 1951, SHOWS THAT MR. EDWARDS WAS "ORDERED TO ACTIVE DUTY IN THE U.S. NAVY EFFECTIVE JUNE 25, 1951," AND PLACED ON MILITARY FURLOUGH CLOSE OF BUSINESS JUNE 24, 1951, FROM HIS GRADE GS-9 POSITION, $4,600 PER ANNUM, STEP A" (1ST). MR. EDWARDS REQUESTED THAT HIS ANNUAL LEAVE BE RETAINED TO HIS CREDIT UNTIL HE RETURNED FROM ACTIVE DUTY. THE RECORD SHOWS THAT ADMINISTRATIVE ACTION WAS TAKEN OCTOBER 11, 1951, PROMOTING MR. EDWARDS, IN ABSENTIA, EFFECTIVE OCTOBER 14, 1951, TO GRADE GS-11. YOU INDICATE IN YOUR SUBMISSION THAT SUCH PROMOTION RESULTED FROM A RECLASSIFICATION OF HIS POSITION.

THE RECORD FURTHER SHOWS THAT ON JUNE 9, 1961, A PERSONNEL ACTION WAS ISSUED CANCELING PREVIOUS ADMINISTRATIVE ACTIONS TAKEN AFTER MR. EDWARDS WAS PLACED ON MILITARY FURLOUGH. THIS TRANSACTION ALSO SEPARATED HIM RETROACTIVELY TO JUNE 23, 1951, FROM THE GRADE GS-9 POSITION, $4,600 PER ANNUM BECAUSE HE HAD NOT RETURNED FROM MILITARY FURLOUGH. HOWEVER, NO PAYMENT WAS MADE FOR HIS 443 HOURS OF ANNUAL LEAVE AT THAT TIME. THERE IS NOTHING IN THE RECORD NOR HAVE WE BEEN ABLE TO ASCERTAIN INFORMALLY THE BASIS FOR THE ISSUANCE OF THE JUNE 9, 1961 PERSONNEL ACTION. WE PRESUME, HOWEVER, THAT SUCH ACTION WAS TAKEN BECAUSE OF MR. EDWARDS' FAILURE TO RETURN FROM MILITARY SERVICE WITHIN THE LIMITS PRESCRIBED BY SECTION 9 (G) (2) OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT, AS AMENDED, CODIFIED IN 50 U.S.C. APP. 459G (2) (1958 ED.) IN PERTINENT PART, AS FOLLOWS:

"ANY PERSON WHO, SUBSEQUENT TO JUNE 24, 1948, ENTERS UPON ACTIVE DUTY * * * WHETHER OR NOT VOLUNTARILY, IN THE ARMED FORCES OF THE UNITED STATES * * * IN RESPONSE TO AN ORDER OR CALL TO ACTIVE DUTY SHALL, UPON RELIEF FROM ACTIVE DUTY UNDER HONORABLE CONDITIONS, BE ENTITLED TO ALL OF THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THIS SECTION * * * IF HE IS RELIEVED FROM ACTIVE DUTY NOT LATER THAN FOUR YEARS AFTER THE DATE OF ENTERING UPON ACTIVE DUTY OR AS SOON AFTER THE EXPIRATION OF SUCH FOUR YEARS AS HE IS ABLE TO OBTAIN ORDERS RELIEVING HIM FROM ACTIVE DUTY.' SECTION 9 (C) OF SUCH ACT ALSO PROVIDES IN EFFECT THAT IF AN EMPLOYEE IS RESTORED (IN ACCORDANCE WITH THE ABOVE) TO THE POSITION HE HELD PRIOR TO ENTRY INTO THE ARMED FORCES (OR ONE OF LIKE SENIORITY, STATUS AND PAY) HE SHALL BE REGARDED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF SERVICE IN THE ARMED FORCES.

WE NOTE THAT MR. EDWARDS REMAINED IN THE ACTIVE MILITARY SERVICE UNTIL HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON JUNE 4, 1960 (TRANSFERRED TO PERMANENT LIST ON NOVEMBER 1, 1965). THERE IS NO INDICATION THAT HE WAS UNABLE TO OBTAIN ORDERS RELIEVING HIM FROM ACTIVE DUTY AT AN EARLIER DATE. FURTHERMORE, THERE APPEARS TO BE NO RELATION BETWEEN MR. EDWARDS' PRIOR MILITARY SERVICE OR CIVILIAN EMPLOYMENT WITH THE GENERAL SERVICES ADMINISTRATION AND HIS CURRENT EMPLOYMENT IN SUCH AGENCY UNDER A TEMPORARY APPOINTMENT DATED MAY 8, 1967, NOT TO EXCEED NOVEMBER 7, 1967, AS A "SUP MECHANICAL ENGR UTIL" GRADE GS-12, STEP 1, $11,306 PER ANNUM.

THE QUESTIONS FOR ANSWERING ARE:

(1) WHETHER THE LEAVE (PRESUMABLY BOTH ANNUAL AND SICK LEAVE) STANDING TO HIS CREDIT AT THE TIME OF HIS ENTRY INTO THE MILITARY SERVICE MAY BE RECREDITED?

(2) IF ANNUAL LEAVE MAY NOT BE RECREDITED, WHAT IS THE PROPER SALARY RATE TO USE IN EFFECTING A LUMP-SUM PAYMENT FOR THE 443 HOURS OF ANNUAL LEAVE STANDING TO MR. EDWARDS' CREDIT?

(3) WHAT PERIODS MAY BE INCLUDED AS CREDITABLE SERVICE, APPARENTLY FOR LEAVE EARNING PURPOSES?

IN GENERAL SECTION 459 (G) (2), QUOTED ABOVE, PROVIDES THAT ANY PERSON WHO SUBSEQUENT TO JUNE 24, 1948, ENTERS UPON ACTIVE DUTY SHALL UPON HIS RELIEF THEREFROM WITHIN THE TIME LIMIT PRESCRIBED THEREIN "BE ENTITLED TO ALL THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THIS SECTION.' COMP. GEN. 237. THE ESTABLISHED AND LONG-STANDING RULE IS THAT RESTORATION TO THE GOVERNMENT'S CIVILIAN SERVICE IS A CONDITION PRECEDENT TO THE ATTACHMENT OF THE INCREMENTS WHICH ONLY CONSTRUCTIVELY WERE ACCRUED TO AN EMPLOYEE'S CREDIT DURING A PERIOD OF MILITARY SERVICE. 21 COMP. GEN. 1007.

IT IS EVIDENT FROM THE FOREGOING THAT MR. EDWARDS, NOT HAVING BEEN RESTORED AS REQUIRED AFTER MILITARY SERVICE, IS NOT ENTITLED TO THE REEMPLOYMENT RIGHTS AND BENEFITS PROVIDED BY THE ABOVE-CITED PROVISIONS. NOR DOES HE APPEAR TO BE ENTITLED TO BE RESTORED TO DUTY UNDER THE PROVISIONS OF 5 U.S.C. 3551 (FORMERLY 5 U.S.C. 30R (B) ( SINCE HE PRESUMABLY DID NOT MAKE APPLICATION FOR SUCH RESTORATION WITHIN A REASONABLE TIME AFTER TERMINATION OF ACTIVE MILITARY SERVICE. IT FOLLOWS THAT THERE HAS BEEN NO "RETURN FROM ACTIVE MILITARY SERVICE" SO AS TO ENTITLE SUCH EMPLOYEE TO HAVE HIS ANNUAL LEAVE CONTINUE TO REMAIN TO HIS CREDIT WITHIN THE MEANING OF 5 U.S.C. 5552. UNDER SUCH CIRCUMSTANCES WE AGREE WITH THE ADMINISTRATIVE ACTION IN RECORDING HIS SEPARATION AS HAVING OCCURRED WHEN HE ENTERED THE MILITARY SERVICE ON JUNE 25, 1951. 28 COMP. GEN. 565.

THE PERIOD FROM JUNE 25, 1951, DATE OF ENTRY INTO THE MILITARY SERVICE UNTIL JUNE 4, 1960, WHEN HE WAS PLACED ON THE RETIRED LIST BY REASON OF PHYSICAL DISABILITY, REPRESENTS A BREAK IN HIS CIVILIAN SERVICE. THUS THE 443 HOURS OF ANNUAL LEAVE TO HIS CREDIT WHEN HE ENTERED THE MILITARY SERVICE SHOULD BE PROCESSED FOR PAYMENT UNDER THE LUMP SUM LEAVE ACT OF 1944, AS IT EXISTED ON JUNE 23, 1951, (5 U.S.C. 61B-1952 ED.) AND AT THE RATE HE WAS RECEIVING AT THAT TIME, $4,600 PER ANNUM.

WE POINT OUT THAT THE PROVISIONS OF 5 U.S.C. 5552 (FORMERLY 5 U.S.C. 61A, 1964 ED.) ARE NOT APPLICABLE TO SICK LEAVE (21 COMP. GEN. 210) THE RECREDITING THEREOF BEING A MATTER USUALLY PROVIDED FOR UNDER REGULATIONS OF THE CIVIL SERVICE COMMISSION. HOWEVER, WE FIND NO REGULATION OF THAT AGENCY WHICH PERMITS A REESTABLISHMENT OF SICK LEAVE UNLESS AN INDIVIDUAL BE REEMPLOYED WITHIN 3 YEARS AFTER HIS SEPARATION FROM ACTIVE MILITARY DUTY.

AS TO CREDITABLE SERVICE FOR LEAVE-EARNING PURPOSES, IT IS EVIDENT THAT THE EMPLOYEE'S MILITARY SERVICE IS NOT CREDITABLE AS CIVILIAN SERVICE SINCE HE IS NOT REGARDED AS HAVING BEEN IN A FURLOUGH STATUS DURING THAT PERIOD. WHETHER OR NOT ANY PART OF HIS MILITARY SERVICE AS SUCH IS CREDITABLE WOULD DEPEND ON THE EMPLOYEE MEETING THE CONDITIONS OF 5 U.S.C. 6303.