B-138913, JUN. 19, 1963

B-138913, JUN. 19, 1963

TO MR. FLORENTINO PASCO:

WE REFER TO YOUR LETTER OF MARCH 1, 1963, RECEIVED HERE APRIL 4, CONCERNING ANNUAL LEAVE WHICH COULD NOT BE INCLUDED IN A LUMP-SUM PAYMENT WHEN YOU WERE SEPARATED FROM SERVICE WITH THE AMERICAN BATTLE MONUMENTS COMMISSION. ALSO, WE HAVE YOUR LETTER OF MAY 27, 1963, AS TO WHICH PLEASE SEE THE LAST PARAGRAPH HEREOF.

THERE IS NO AUTHORITY TO PAY THE COMPENSATION EQUIVALENT OF ACCRUED ANNUAL LEAVE WHICH IS NOT USED PRIOR TO SEPARATION FROM SERVICE, EXCEPT AS PROVIDED BY LAW. THE STATUTORY AUTHORITY FOR PAYMENT FOR ACCRUED ANNUAL LEAVE UPON SEPARATION IS CONTAINED IN SECTION 1 OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, WHICH PROVIDES IN PERTINENT PART AS FOLLOWS (QUOTING FROM THE CODIFICATION AT SECTION 61B OF TITLE 5, UNITED STATES CODE, 1958 EDITION):

"WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE * * * HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, NO SUCH LUMP- SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. * * *"

THUS, 30 DAYS (THE HOURLY EQUIVALENT OF WHICH IS 240 HOURS IN THE CASE OF EMPLOYEES WITH THE STANDARD 8-HOUR WORKDAY) OR SUCH GREATER AMOUNT AS MAY HAVE BEEN CARRIED OVER AT THE BEGINNING OF THE LEAVE YEAR IS ESTABLISHED BY LAW AS THE MAXIMUM AMOUNT OF ANNUAL LEAVE FOR WHICH A LUMP-SUM PAYMENT MAY BE MADE, AND NO PROVISION IS MADE FOR PAYMENT FOR ANNUAL LEAVE WHICH ACCRUES DURING THE YEAR OF SEPARATION BUT WHICH IS NOT USED PRIOR TO SEPARATION, EXCEPT TO THE EXTENT OF THAT AMOUNT WHICH, WHEN ADDED TO THE LEAVE CARRIED OVER AT THE BEGINNING OF THE LEAVE YEAR, DOES NOT CAUSE THE 30-DAY MAXIMUM TO BE EXCEEDED. IN THE ABSENCE OF SUCH AUTHORITY, MONEYS APPROPRIATED BY THE CONGRESS OF THE UNITED STATES MAY NOT BE USED TO PAY FOR THE UNUSED LEAVE; AND THAT IS SO REGARDLESS OF THE REASON FOR THE EMPLOYEE'S NOT HAVING BEEN GRANTED THE LEAVE OR HIS NOT TAKING IT.

CONCERNING THE EFFECT OF SERVICE WITH THE UNITED STATES ARMED SERVICES, SUCH SERVICE IS PERTINENT ONLY TO THE RATE OF ACCRUAL OF ANNUAL LEAVE (ONE -HALF, THREE-FOURTHS OR ONE DAY PER BIWEEKLY PAY PERIOD, DEPENDING UPON THE NUMBER OF YEARS OF CREDITABLE SERVICE), AS PROVIDED BY SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED (SECTION 2062 OF TITLE 5 OF THE U.S.C. 1958 EDITION), AND IT HAS NO EFFECT UPON THE MAXIMUM AMOUNT OF LEAVE WHICH MAY BE CARRIED OVER FROM ONE LEAVE YEAR TO THE NEXT OR WHICH MAY BE PAID FOR IN A LUMP SUM UPON SEPARATION FROM SERVICE. PROVISION IS MADE FOR INCREASING THE 30-DAY MAXIMUM IN ACCORDANCE WITH LENGTH OF SERVICE.

WE TRUST THAT THE FOREGOING DISCUSSION OF APPLICABLE LAW WILL ASSIST YOU IN UNDERSTANDING WHY PAYMENT CANNOT NOW BE MADE FOR THE LEAVE IN QUESTION.

REFERRING TO YOUR LETTER OF MAY 27, THE REASON WE HAVE NOT HERETOFORE GIVEN FURTHER CONSIDERATION TO YOUR CLAIM FOR ADDITIONAL COMPENSATION BASED UPON UNITED STATES CITIZENS' RATES IS THAT WE DID NOT HAVE A REQUEST OVER YOUR OWN SIGNATURE FOR A RECONSIDERATION OF THE CLAIM--- SUCH AS WE HAD IN THE CASE OF MR. MANUEL ARNEDO TO WHICH YOU REFER. NOW THAT WE HAVE A REQUEST FROM YOU IN PROPER FORM, OUR CLAIMS DIVISION WILL TAKE APPROPRIATE ACTION THEREON AND ADVISE YOU LATER OF THE FINAL DISPOSITION OF THE MATTER.