B-116314, B-117272, OCTOBER 18, 1968, 48 COMP. GEN. 212

B-116314, B-117272, OCTOBER 18, 1968, 48 COMP. GEN. 212

LEAVES OF ABSENCE - ANNUAL - TRANSFERS - DIFFERENT LEAVE SYSTEM WHEN A CIVILIAN EMPLOYEE TRANSFERS BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS WITHOUT A BREAK IN SERVICE, THE EMPLOYEE MAY TRANSFER ALL THE ACCUMULATED AND CURRENTLY ACCRUED ANNUAL LEAVE TO HIS CREDIT AS OF THE DATE OF TRANSFER UNDER THE AUTHORITY OF 5 U.S.C. 6308. THE AGGREGATE LEAVE TRANSFERRED THAT IS NOT IN EXCESS OF THE MAXIMUM LIMITATION ALLOWABLE UNDER THE LEAVE SYSTEM FROM WHICH THE EMPLOYEE TRANSFERRED SHALL CONSTITUTE HIS LEAVE CEILING, A CEILING THAT WILL REMAIN TO THE EMPLOYEE'S CREDIT UNTIL REDUCED UNDER THE CONDITIONS PRESCRIBED IN SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. THEREFORE, NURSES OF THE VETERANS ADMINISTRATION UNDER TITLE 38 LEAVE SYSTEM WILL NOT BE REQUIRED TO FORFEIT ANNUAL LEAVE WHEN REASSIGNED TO GENERAL SCHEDULE POSITIONS, 33 COMP. GEN. 85; ID. 209, MODIFIED.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 18, 1968:

THIS REFERS TO YOUR LETTER OF AUGUST 8, 1968, WITH ENCLOSURE, REQUESTING OUR DECISION ON SEVERAL QUESTIONS INVOLVING THE DISPOSITION OF ANNUAL LEAVE WHICH CANNOT BE TRANSFERRED TO THE EMPLOYEE'S CREDIT UPON HIS TRANSFER TO A DIFFERENT LEAVE SYSTEM. THE QUESTIONS PRESENTED FOR OUR CONSIDERATION WERE FIRST RAISED BY THE VETERANS ADMINISTRATION IN LETTER OF APRIL 30, 1968, ADDRESSED TO YOUR OFFICE. THAT LETTER READS IN PART AS FOLLOWS:

OUR MAJOR PROBLEM STEMS FROM THE RELOCATION OF CENTRAL SERVICE ACTIVITIES FROM THE NURSING SERVICE TO THE SUPPLY DIVISION. NURSES IN THESE UNITS WITH AS MUCH AS 120 DAYS OF ACCUMULATED ANNUAL LEAVE UNDER TITLE 38 LEAVE SYSTEM HAVE BEEN REASSIGNED TO GENERAL SCHEDULE POSITIONS IN THE SUPPLY DIVISION. AS WE INTERPRET THE COMMISSION'S INSTRUCTIONS AND COMPTROLLER GENERAL DECISIONS, A NURSE IN THIS SITUATION CAN TRANSFER 30 DAYS OF ANNUAL LEAVE PLUS THE CURRENT ANNUAL LEAVE WHICH AN EMPLOYEE SUBJECT TO THE TITLE 5 SYSTEM COULD HAVE ACCRUED TO THE DATE OF TRANSFER. HOWEVER, THERE IS A QUESTION CONCERNING THE EMPLOYEE'S ENTITLEMENT TO UNTRANSFERRED LEAVE.

THE REGULATION (630.501) WHICH WOULD PERMIT RECREDIT OF UNTRANSFERRED LEAVE, IF THEY SHOULD RETURN TO THE TITLE 38 LEAVE SYSTEM, PROBABLY WOULD BE OF NO HELP TO THESE NURSES BECAUSE MANY OF THEM ARE NEAR RETIREMENT AGE OR HAVE PHYSICAL HANDICAPS WHICH WOULD PREVENT THEM FROM FUNCTIONING AS WARD NURSES. THEREFORE, IT WOULD SEEM THAT THEY SHOULD BE ENTITLED TO A LUMP-SUM PAYMENT FOR THE UNTRANSFERRED LEAVE, EITHER AT THE TIME OF TRANSFER OR UPON LATER SEPARATION FROM THE SERVICE. IF THE COMMISSION DETERMINES THAT A LUMP-SUM PAYMENT FOR THE UNTRANSFERRED LEAVE WOULD BE APPROPRIATE AT THE TIME OF A LATER SEPARATION, SOME ADDITIONAL INSTRUCTIONS ON MAINTENANCE OF RECORDS ON THE UNTRANSFERRED LEAVE WOULD APPEAR TO BE APPROPRIATE.

SECTION 6308 OF TITLE 5, U.S.C. PROVIDES IN PERTINENT PART AS FOLLOWS:

THE ANNUAL AND SICK LEAVE TO THE CREDIT OF AN EMPLOYEE WHO TRANSFERS BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS WITHOUT A BREAK IN SERVICE SHALL BE TRANSFERRED TO HIS CREDIT IN THE EMPLOYING AGENCY ON AN ADJUSTED BASIS UNDER REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION, UNLESS THE INDIVIDUAL IS EXCEPTED FROM THIS SUBCHAPTER BY SECTION 6301 (2) (II), (III), (VI), OR (VII) OF THIS TITLE. * * *

THE ABOVE-QUOTED PROVISION WAS ADDED TO SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 BY SECTION 4 (B) OF PUBLIC LAW 83-102, APPROVED JULY 2, 1953. PRIOR TO THAT AMENDMENT EMPLOYEES WHO TRANSFERRED TO DIFFERENT LEAVE SYSTEMS WERE PAID A LUMP SUM OF ALL OF THE ACCUMULATED AND CURRENTLY ACCRUED ANNUAL LEAVE TO THEIR CREDIT AT THE TIME OF TRANSFER (5 U.S.C. 61D (1952 ED.) ). FOLLOWING THE ENACTMENT OF PUBLIC LAW 83-102, THE CIVIL SERVICE COMMISSION, ON TWO OCCASIONS, REQUESTED OUR DECISION AS TO THE AMOUNT OF ANNUAL LEAVE THAT COULD BE TRANSFERRED UNDER THE ABOVE- QUOTED PROVISION. IN DECISION OF NOVEMBER 9, 1953, 33 COMP. GEN. 209, WE RULED AS FOLLOWS:

IN ANSWER TO QUESTION 1, THE AMOUNT OF LEAVE PERMITTED TO BE TRANSFERRED MAY EQUAL THE LEAVE WHICH EMPLOYEES IN THE AGENCY TO WHICH TRANSFERRED COULD HAVE ACCUMULATED AND CURRENTLY ACCRUED AT THE DATE OF TRANSFER * * * THUS, IN THE EXAMPLE CITED IN YOUR QUESTION, IF THE EMPLOYEE TRANSFERRED PRIOR TO THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD IN 1954 (JANUARY 3, 1954), HE COULD TRANSFER 60 DAYS PLUS THE CURRENT LEAVE WHICH AN EMPLOYEE IN THE AGENCY TO WHICH THE EMPLOYEE TRANSFERRED COULD HAVE ACCRUED AS OF THE DATE OF TRANSFER. ANY LEAVE IN EXCESS OF 60 DAYS NOT USED BY JANUARY 3, 1954, WOULD BE FORFEITED. * * *

WE HAD REACHED A SIMILAR CONCLUSION IN 33 COMP. GEN. 85, ANSWER TO QUESTION 4 (B).

IN YOUR LETTER OF AUGUST 8, YOU POINT OUT THAT 5 U.S.C. 6308, QUOTED ABOVE, CONTAINS NO LIMITATION ON THE AMOUNT OF ANNUAL LEAVE THAT CAN BE TRANSFERRED THEREUNDER. FURTHER, YOU EXPRESS THE VIEW THAT THE CONGRESS DID NOT INTEND TO CAUSE ANY FORFEITURE OF LEAVE WHEN IT SUBSTITUTED THE TRANSFER OF LEAVE PROVISION FOR THE FORMER LUMP-SUM PAYMENT PROVISION (5 U.S.C. 61D (1952 ED.)

WE HAVE REEXAMINED THE LEGISLATIVE HISTORY OF PUBLIC LAW 83-102 AND HAVE ANALYZED THE NUMEROUS CASES THAT HAVE ARISEN THEREUNDER. WE NOW BELIEVE THAT OUR ORIGINAL CONSTRUCTION OF SECTION 4 (B) OF PUBLIC LAW 83-102 (5 U.S.C. 6308) MAY HAVE BEEN UNNECESSARILY RESTRICTIVE.

AS YOU HAVE CORRECTLY POINTED OUT, A FORFEITURE OF ANNUAL LEAVE UNDER 5 U.S.C. 6308, AS CONSTRUED IN OUR DECISIONS CITED ABOVE, MAY CURRENTLY BE AVOIDED IN MOST CASES BY THE EMPLOYEE'S SUBSEQUENT RETRANSFER TO THE FORMER LEAVE SYSTEM OR BY A ONE-DAY BREAK IN SERVICE FOLLOWING THE EMPLOYEE'S SEPARATION (WITH LUMP-SUM LEAVE PAYMENT) FROM HIS POSITION UNDER THE FORMER LEAVE SYSTEM. THUS, A FORFEITURE OF LEAVE IN OTHER CASES WHERE NEITHER A RETRANSFER TO THE FORMER LEAVE SYSTEM OR A BREAK IN SERVICE OCCURS APPEARS TO BE A RESULT WHICH SHOULD BE AVOIDED IF A FORFEITUTE IS NOT SPECIFICALLY REQUIRED BY LAW.

SINCE AS PREVIOUSLY INDICATED THE LANGUAGE OF THE LAW AS WELL AS THE LEGISLATIVE HISTORY THEREOF IS SILENT IN THE MATTER, WE NOW HOLD THAT UNDER THE PROVISIONS OF 5 U.S.C. 6308 AN EMPLOYEE MAY TRANSFER ALL OF THE ACCUMULATED AND CURRENTLY ACCRUED ANNUAL LEAVE TO HIS CREDIT AS OF THE DATE OF TRANSFER. THE AGGREGATE AMOUNT OF SUCH LEAVE, BUT NOT IN EXCESS OF THE MAXIMUM LIMITATION ALLOWABLE UNDER THE LEAVE SYSTEM FROM WHICH TRANSFERRED, SHALL CONSTITUTE THE EMPLOYEE'S ANNUAL LEAVE CEILING AND SHALL REMAIN TO HIS CREDIT UNTIL REDUCED UNDER THE CONDITION PRESCRIBED IN SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 682 (5 U.S.C. 6304 (C) ).

TO THE EXTENT THAT OUR PRIOR DECISIONS AT 33 COMP. GEN. 85, ID. 209, ARE INCONSISTENT WITH THE VIEWS EXPRESSED HEREIN, SUCH PRIOR DECISIONS ARE HEREBY MODIFIED. WE ASSUME THE COMMISSION'S REGULATIONS WILL BE AMENDED ACCORDINGLY.