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or outside the limits of the United States" (meaning continental United States). In the decision it was held as follows:

Annual leave with pay was authorized for these employees at the rate of 30 days per annum, including Sundays and holidays, and accrual of annual leave was authorized up to 120 days for 4 years, including 30 days for the year current when the leave is taken. War Department circular A of January 12, 1912. There is nothing in the new Annual Leave Act or the uniform leave regulations, or in the decisions of this office, authorizing the granting to these employees of 30 days' annual leave per annum exclusive of Sundays and holidays. Hence, the statement in War Department circular 1-15, paragraph 110b is erroneous. These benefits authorized by the War Department circular of January 12, 1912, in this respect are more advantageous to the employees than the corresponding benefits granted by the Annual Leave Act of March 14, 1936, viz, 26 days per annum exclusive of Sundays and holidays, with accrual of 60 days plus 26 days for the current leave year, or a total of 86 days, exclusive of Sundays and holidays. Annual leave at the rate of 30 days per annum, inclusive of Sundays and holidays, is approximately the same as leave at the rate of 26 days per annum, exclusive of Sundays and holidays. It would be proper therefore to grant these employees annual leave at the rate of 26 days per annum, exclusive of Sundays and holidays, but the accrual on that basis would have to be limited to 104 days for 4 years, including the year current when the leave is taken.

Sections 2, 3, and 4 of Public Law 100, approved June 3, 1941, 55 Stat. 241, provide as follows:

SEC. 2. Employees of the field service of the War Department and the Panama Canal Zone may, during the period of the national emergency declared by the President on September 8, 1939, to exist, be employed during the time they would otherwise be on vacation without deprivation of their vacation pay for the time so worked. Employees who forego their vacations in accordance with the provisions of this section may be paid, in addition to their regular pay, the equivalent of the pay they would have drawn during the period of such vacation. The provisions of this section shall be applicable only to employees whose service at the time cannot, in the judgment of the Secretary of War or the Governor of the Panama Canal, as the case may be, be spared without detriment to the national defense.

SEC. 3. The provisions of section 2 of this act and of section 7 of the act of June 28, 1940 (Public, numbered 671), shall be administered in accordance with such rules and regulations as the President may prescribe.

SEC. 4. The provisions of this act shall be effective during the national emergency declared by the President on September 8, 1939, to exist, and shall terminate June 30, 1942, unless the Congress shall otherwise provide.

Pursuant to the provisions of section 3 of the statute, supra, the President, by Executive Order No. 8817 dated July 5, 1941, issued regulations as follows:

SECTION 1. Except as provided in section 2 of these regulations, the Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, and the Governor of the Panama Canal may authorize payment of compensation in lieu of annual leave to those employees of the field services of the War Department, the Navy Department, the Coast Guard, and the Panama Canal whose services cannot be spared without detriment to the national defense and who, through being required to forego their vacations, would permanently forfeit because of excess accumulation, or because of lack of accumulation privileges, any leave due them under existing law and regulations. Such compensation shall be only for the portion of the requested leave which otherwise would be forfeited and shall be, in addition to their regular pay, the equivalent of the pay they would have drawn for such leave: Provided, That any compensation in lieu of annual leave shall not be subject to deductions for retirement purposes.

SECTION 2. Employees to which section 1 hereof is applicable who are engaged in construction, manufacturing, processing, and similar pursuits, and whose services are of a character in demand by private industry and cannot be spared without detriment to the national defense, may be allowed compensation in lieu of current annual leave due them under existing law and regulations, regardless of

the amount of accumulated leave to their credit: Provided, That the maximum leave in lieu of which such compensation may be paid shall not exceed the amount of accrued leave to the credit of the employee at the time of the payment and in any calendar year shall not exceed the current annual leave to which he is entitled during that calendar year and which he has not taken.

SECTION 3. The number of days for which an employee is granted compensation in lieu of annual leave shall be deducted from the leave to which he is entitled by law or regulation.

SECTION 4. The Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, and the Governor of the Panama Canal may delegate to such subordinate officers as they deem necessary the authority to require employees to forego annual leave when their services cannot be spared without detriment to the national defense and to authorize payment of compensation in lieu of annual leave to such employees in accordance with the provisions of these regulations. Such officers shall be required to authorize specifically in advance all payments of compensation in lieu of annual leave, and specifically to certify that each employee for whom such compensation is authorized was required to forego his vacation because his services could not in the judgment of the certifying officer be spared without detriment to the national defense at that time or at any time during the then current calendar year and that it had been determined that additional qualified employees could not be secured to meet the requirements of the situation. If the employee is deemed to be entitled to compensation under the terms of section 2 above, it must be further certified that he is engaged in construction, manufacturing, processing, or a similar pursuit and that his services are of a character in demand by private industry.

SECTION 5. No employee shall be required to forego his vacation who, because of his physical condition or the character or location of his employment or for any other exceptionally urgent reason, is determined by a responsible officer designated by the head of the proper department or agency to require, in the interest of health or efficiency, all or any portion of the annual leave to which he is entitled under existing law or regulation.

SECTION 6. The Secretary of War, the Secretary of the Navy, the Secretary of the Treasury, and the Governor of the Panama Canal may issue for their respective services necessary instructions not inconsistent herewith to carry out the provisions of section 7 of the act of June 28, 1940, supra, and section 2 of the act of June 3, 1941, supra.

SECTION 7. This order shall become effective immediately and shall be published in the Federal Register.

Paragraph 3d of memorandum or letter of the Under Secretary of War dated July 15, 1941, referred to in the letter of October 28, 1941, supra, reads as follows:

Field service employees who are entitled to compensation under section 2 of Executive Order No. 8817 shall be classed as "industrial" and so designated in the certificate or on the list accompanying the certificate referred to in the succeeding subparagraph hereof. The word "industrial" as used herein, shall apply only to employees occupying positions not classified under the Classification Act of March 4, 1923 (42 Stat. 1488; 5 U. S. C. ch. 13), as amended.

But it is understood that the submitted questions are directed only to "nonindustrial" employees coming within the provisions of section 1 of the Executive order, supra.

The conclusion in the statement quoted in your undated letter, supra, concurrence in which is indicated in your letter, is not entirely correct. In the decision of August 26, 1940, supra, it was stated:

It would be proper, therefore, to grant these employees annual leave at the rate of 26 days per annum, exclusive of Sundays and holidays, but the accrual on that basis would have to be limited to 104 days for 4 years, including the year current when the leave is taken.

Hence, if the War Department has concluded, or should conclude, to grant these employees annual leave at the rate of 26 days per annum,

exclusive of Sundays and holidays, the rate of accrual should be upon the same basis, not to exceed 104 days, exclusive of Sundays and holidays, for 4 consecutive years, including the year current when the leave is taken. In other words, it would not be proper to exclude Sundays and holidays in computing current leave and include Sundays and holidays in computing accumulated leave.

There is nothing in the act of June 3, 1941, Public Law 100, or Executive Order No. 8817, dated July 5, 1941, implementing the statute, which excludes from the benefits thereof civilian employees stationed outside the limits of the continental United States. On the contrary, the inclusion of the Panama Canal shows a definite intention to include such employees within the benefits of the statute.

Civilian employees of the War Department stationed outside the limits of the continental United States accrue leave at the rate of 30 days each year inclusive of Sundays and holidays or 26 days each year exclusive of Sundays and holidays, and such leave accumulates through 4 consecutive years of service. The 30 or 26 days' leave is properly classed as current leave only during the year in which it accrues. After that year it is properly classed as accumulated leave during the remaining three years of consecutive service. Section 1 of Executive Order No. 8817, dated July 5, 1941, here involved, authorizes payment for the current leave-not accumulated leave-that an employee would permanently forfeit if he is required to forego his vacation. Accordingly, if an employee applies for and is denied during his fourth consecutive year of service the amount of annual leave he would forfeit at the end of that year, not to exceed 26 days exclusive of Sundays and holidays, he may be paid for such leave, subject to the terms and conditions of section 1 of Executive Order No. 8817subject to the condition that the amount payable at any time in the current year may not exceed the value of that portion of the current. year's leave which has accrued at the time of the payment.

Referring to paragraph 2 of the letter of October 9, 1941, from the commanding officer of the Hawaiian Ordnance Depot, section 3 of the act of June 3, 1941, Public Law 100, provides that "section 2 of this act * * shall be administered in accordance with such rules and regulations as the President may prescribe." Section 7 of Executive Order No. 8817, dated July 5, 1941, provides that the regulations shall become effective "immediately," which may be accepted as meaning the date of the Executive order, to wit, July 5, 1941.

In decision of January 5, 1942, B-21911, 21 Comp. Gen. 629, it was stated in answer to questions a and s as follows:

Question a: In the penultimate sentence of the answer, it is indicated that at the close of the calendar year the employee may be paid automatically for any remaining current annual leave which would otherwise be forfeited because the accumulated leave has already reached the maximum total of sixty days permitted by statute. But it is manifest that no employee may be paid for a vacation which he has not requested permission to take and which permission has authoritatively

been denied him. Section 1 of the Executive order limits compensation to the "requested" leave which otherwise would be forfeited, while section 4 requires the proper officer to certify that the employee was "required to forego" his vacation. Such regulations are appropriate, if not essential, to carry out the purpose of the act, which is to provide a payment which is "limited to only those employees who forego their vacations * (House Report No. 593, 77th Congress, and see Senate Report No. 335). As to the requirement in the final sentence of the answer to question a, see my comments regarding question s, infra.

Questions: If an eligible employee has compiled with the statute by actually requesting leave in advance (whether such application be made formally, orally, or otherwise), and if such application has been authoritatively denied, and if, also, during such period, he remains at work, his right to the payment must be regarded as complete and vested, subject only to the certification required by section 4 of the Executive order. That certification, and the actual disbursement upon the pay roll, may follow at any proper date, whether in the same or a subsequent calendar year or years.

Accordingly, alternative answer c in paragraph 2 of the commander's letter of October 9, 1941, is correct, provided the request for, and denial of, leave was made on or after July 5, 1941, date of the Executive order. A request for leave prior to July 5, 1941, may not now be given consideration under the terms of the statute and Executive order.

With reference to the example stated in paragraph 3 of the commander's letter, annual leave accumulates on the basis of the year, not on the basis of the month. If it is meant by subsection b that this employee had, on January 1, 1941, accumulated 104 days of annual leave, exclusive of Sundays and holidays-counting the calendar year 1940 as the fourth year—he had already forfeited as of that date 26 days' leave none of which could be compensated for under the terms of section 1 of the Executive order, supra. However, if it is meant that 1941 was the fourth year, there would be for forfeiting 26 days' current annual leave which accrued during the calendar year 1941, in which event the employee, as he applied for and was denied 26 days' annual leave exclusive of Sundays and holidays after July 5, 1941, date of the Executive order, could now (after January 1, 1942) be paid for that amount of leave if he otherwise qualified under the terms of the statute and section 1 of the Executive order. That is, subsection e (1), subject to the foregoing qualifications, appears to be the correct answer.

(B-22939)

LEAVES OF ABSENCE-RETIREMENT AND REAPPOINTMENT WITHOUT BREAK IN SERVICE-LEAVE ADJUSTMENTS

Where a Navy Department employee was retired for age and reappointed to his former position the next day under authority of the act of June 28, 1940, the provisions of the annual and sick leave acts and regulations are applicable the same as in any other case of separation and reappointment without break in service, and, therefore, the employee should be credited under his reappointment with the annual and sick leave accrued and unused under his service prior to retirement.

Where a Navy Department employee was retired for age and reappointed to his former position the next day under authority of the act of June 28, 1940, the provisions of the annual and sick leave acts and regulations are applicable

the same as in any other case of separation and reappointment without break in service so as to require, upon his subsequent separation from the service by voluntary resignation, the collection of the amount of compensation received for any annual or sick leave used but unaccrued during the entire period of service either before or after retirement.

Assistant Comptroller General Elliott to the Secretary of the Navy, January 20, 1942:

I have a letter dated January 2, 1942 (file P. S. & M.-6a-pg), from the director of personnel, Navy Department, as follows:

The enclosed copy of a letter received from the Commandant, Navy Yard, Washington, D. C., in the case of Larry W. Hunt, retired and reemployed, is respectfully referred to the General Accounting Office for decision on the third paragraph thereof, as the U. S. Civil Service Commission has advised that the matter appears to be one for a decision of the Comptroller General of the United States rather than the Civil Service Commission.

The referred-to letter is dated November 28, 1941, and reads as follows:

From: Commandant.

To: Assistant Secretary of the Navy (Division of Personnel Supervision and Management).

Subject: Unaccrued leave used and paid for in the case of Larry W. Hunt, retired and reemployed.

References: (a) Section 4(b) of the annual leave regulations as amended by the Act of 2 March 1940.

(b) Section 11 of the sick leave regulations as amended by the Act of 2 March 1940.

(c) The Act approved 28 June 1940 (Public-No. 671-76th Con

gress).

1. Larry W. Hunt, born 12 January 1879, formerly a boilermaker in this Navy Yard, retired for age on 31 May 1941 after having acquired fifteen years of annuitable service, and, as authorized by reference (c), was reemployed 1 June 1941 in his former position. He resigned on 17 September 1941 in order that his name may be restored to the roll of annuitants.

2. At the time of his reemployment on 1 June 1941 he had to his credit 12% days of annual leave and 4% days of sick leave which he had not taken, and at the time of his resignation on 17 September 1941 he had used unaccrued leave as permitted under the regulations.

3. Since the nature of the second separation was a voluntary one, information is requested as to whether or not a refund of the amount involved in the advanced leave shall be required.

Section 6 of the act of June 28, 1940, 54 Stat. 679, provides, in pertinent part, as follows:

Notwithstanding the provisions of section 2 of the Act of May 29, 1930 (46 Stat. 468), and section 204 of the Act of June 30, 1932 (47 Stat. 404), any person heretofore or hereafter retired under the Civil Service Retirement Act of May 29, 1930, as amended, may be reemployed in the service of the War and Navy Departments: Provided, That there shall be deducted and withheld from the basic salary, pay, or compensation of such person and credited to his account as provided in section 12 (a) of the Act of May 29, 1930, as amended, the regular deductions prescribed by the said Act: Provided further, That upon separation from the service for any cause such person may elect to receive a refund of the total deductions so withheld together with interest at 4 per centum per annum compounded on June 30 of each year, or receive credit for the additional service in the computation of any annuity awarded thereafter: Provided further, That payment of the annuity of such person shall be suspended during the period of such employment:

470350m-42-46

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