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ident of the National Federation of Federal Employees, in which Mr. Steward recommends that Executive Order No. 7845 of March 21, 1938, prescribing regulations relating to annual leave of Federal employees, be amended so that a nonwork day established by administrative order shall not be charged as leave when occurring in a period of annual leave. Your letter states in part:

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"In the event you conclude that the proposed change is authorized by law, I should very much appreciate it if you would have a suitable draft of Executive order prepared to accomplish the desired purpose Executive Order No. 7845 was issued under authority of the act of March 14, 1936, 49 Stat. 1161, the pertinent provisions of which read:

"That with the exception of teachers and librarians of the public schools of the District of Columbia and officers and employees of the Panama Canal and Panama Railroad on the Isthmus of Panama, and except as provided in section 4 hereof, all civilian officers and employees of the United States wherever stationed and of the Government of the District of Columbia, regardless of their tenure, in addition to any accrued leave, shall be entitled to twentysix days' annual leave with pay each calendar year, exclusive of Sundays and holidays: Provided, That the part unused in any year shall be accumulated for succeeding years until it totals not exceeding 60 days. This act shall not affect any sick leave to which employees are now or may hereafter be entitled. Temporary employees, except temporary employees engaged on construction work at hourly rates, shall be entitled to two and one-half days leave for each month of service. The annual leave herein authorized shall be granted at such times as the heads of the various Departments and independent establishments may prescribe. This act becomes effective January 1, 1936."

"SEC. 7. The leave of absence herein provided for shall be administered under such regulations as the President may prescribe, so as to obtain, so far as practicable, uniformity in the application of this act."

Construing prior statutes relating to annual leave of employees of the Federal Government the Attorneys General have consistently held that in calculating the period of annual leave taken no days may be excluded except such as the statute expressly authorizes to be excluded. 20 Op. 716, 718; 22 Op. 77. See also 36 Op. 407, and idem. 444, 446. There is nothing in the act of March 14, 1936, to require a different construction in this respect. It expressly authorizes Sundays and holidays to be excluded in computing annual leave taken, but does not authorize the exclusion of any other day. I am of the opinion, therefore, that the President is without authority by Executive order to provide for the exclusion of days other than Sundays and holidays.

Respectfully,

ROBERT H. JACKSON,
Acting Attorney General.

CIVIL SERVICE RETIREMENT ACT

In cases involving applications for pensions under the pension laws and for annuities under the Civil Service Retirement Act the Administrator of Veterans' Affairs, who administers the pension laws, should certify to the Civil Service Commission, which administers the Civil Service Retirement Act, the period of military or naval service upon which the pension is actually based, as that period is determined by the former officer.

The ADMINISTRATOR OF VETERANS' AFFAIRS.

JULY 14, 1938.

MY DEAR GENERAL HINES: Under date of February 16 you requested my opinion "as to the nature of the information or report which should be furnished to the Civil Service Commission" in cases involving applications for pensions under the pension laws and for annuities under the Civil Service Retirement Act (May 22, 1920, c. 195, 41 Stat. 614, 615; May 29, 1930, c. 349, 46 Stat. 468, 472; U. S. C., title 5, sec. 707). The latter act provides as follows:

"SEC. 5. Subject to the provisions of section 9 hereof, the aggregate period of service which forms the basis for calcu

lating the amount of any benefit provided in this act shall be computed from the date of original employment, whether as a classified or an unclassified employee in the civil service of the United States, or in the service of the District of Columbia, including periods of service at different times and in one or more departments, branches, or independent offices, or the legislative branch of the Government, and also periods of service performed overseas under authority of the United States, and periods of honorable service in the Army, Navy, Marine Corps, or Coast Guard of the United States; in the case of an employee, however, who is eligible for and elects to receive a pension under any law, or retired pay on account of military or naval service, or compensation under the War Risk Insurance Act, the period of his military or naval service upon which such pension, retired pay, or compensation is based shall not be included, but nothing in this act shall be so construed as to affect in any manber his or her right to a pension, or to retired pay, or to compensation under the War Risk Insurance Act in addition to the annuity herein provided." [Italics supplied.]

Your further letter of June 8, setting forth the facts in several cases, indicates that the question concerns pensions granted under the act of March 20, 1933, c. 3, 48 Stat. 8, and Executive orders issued pursuant thereto. That act provided, in part, as follows:

"SECTION 1. That subject to such requirements and limitations as shall be contained in regulations to be issued by the President, and within the limits of appropriations made by Congress, the following classes of persons may be paid a pension: *

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"SEC. 4. The President shall prescribe by regulation (subject to the provisions of section 1 (e) of this title) the date of the beginning and of the termination of the period in each war subsequent to the Civil War, including the Boxer Rebellion and the Philippine Insurrection, service within which shall for the purposes of this act be deemed war-time service. *

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A number of Executive orders were issued under this act but it is sufficient to refer to that of June 6, 1933 (No. 6156), portions of which are copied below:

[PART III] "I. (a) Any person who served in the active military or naval service, for a period of 90 days or more, during either the Spanish-American War, the Boxer Rebellion, the Philippine Insurrection, or the World War, who is shown to have been in active service therein before the cessation of hostilities and to have been honorably discharged from such service shall be entitled to receive a pension for permanent total disability not the result of his misconduct and which is not shown to have been incurred in any period of military or naval service:

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"(d) In determining the period of active service for the purpose of part III, it is not requisite that the 90 days' period of service shall have been completed before the cessation of hostilities. It is necessary, however, that a claimant hereunder shall have entered service prior to the cessation of hostilities and shall have served continuously thereafter for 90 days. A period of continuous active service for 90 days which commenced prior to, and extended into a period of hostilities as defined by part I, shall be considered as meeting the service requirements of part III." [Italics supplied.]

Prior to March 20, 1933, several statutes authorized pensions on account of military and naval service rendered during various wars, insurrections, relief expeditions, etc. For example, the act of June 2, 1930, c. 375, 46 Stat. 492, provided pensions for certain "persons who served 90 days or more in the military or naval service of the United States. during the war with Spain, the Philippine Insurrection, or the China relief expedition." You state that it had become settled practice under such prior statutes to consider all military or naval service rendered between the recognized opening and closing dates of a war, etc., as the period of military or naval service upon which the pension was based, and no other. In connection with Spanish War pensions, for example, all service rendered between April 21, 1898

(the effective date of the declaration of war), and April 11, 1899 (the effective date of the treaty of peace), was considered.

This practice was interrupted by the act of March 20, 1933, and the administrative action taken thereunder. Subsequently the act of August 13, 1935, c. 521, 49 Stat. 614, provided "that all laws in effect on March 19, 1933, granting pensions to veterans of the Spanish-American War

* are hereby reenacted into law and such laws shall be effective from and after the date of the approval of this act." It was determined, however, that the act of March 20, 1933, also remained in effect (Administrator's Decision No. 332, September 10, 1935), permitting applicants to claim under either law.

The 1933 act and regulations required the adoption of a different pension basis (governing deductions under the Retirement Act) for reasons which may be illustrated by reference to the case of Spanish War pensions. The regulations changed the closing date of pensionable Spanish War service from April 11, 1899, to August 12, 1898, but also authorized the granting of pensions to persons who had served continuously for a period of 90 days not wholly within the war period but including a part of the war period. Your letters and the documents submitted therewith indicate that in the administration of this act you grant pensions, not merely for war service as under the old laws, but for periods of service beginning with a valid enlistment and ending with an honorable discharge which include a war period in whole or in part.

You state that at a conference on December 15, 1937, participated in by representatives of various veterans' organizations, the Civil Service Commission, and the Veterans' Administration, the following conclusions were reached:

"The Veterans' Administration to advise the Civil Service Commission when a veteran is in receipt of or entitled to pension because of war service, specifying the war in which service was rendered, but not specifying the beginning or end of the period or periods of the veteran's service.

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