A-88178, AUGUST 6, 1938, 18 COMP. GEN. 136

A-88178, AUGUST 6, 1938, 18 COMP. GEN. 136

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - SUBSTITUTION FOR PERIOD OF UNJUSTIFIED SUSPENSION WITHOUT PAY A PERIOD OF UNJUSTIFIED SUSPENSION FROM SERVICE IS TO BE REGARDED AS A PERIOD OF LEAVE WITHOUT PAY FOR LEAVE PURPOSES UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AND SECTION 10 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AND IF THE PERIOD OF UNJUSTIFIED SUSPENSION IS LESS THAN 30 DAYS, ANNUAL LEAVE IS EARNED DURING THE PERIOD OF SUSPENSION. IF A SUSPENDED EMPLOYEE IS SEPARATED FROM THE SERVICE AT OR SUBSEQUENT TO A PERIOD OF UNJUSTIFIED SUSPENSION FOR A REASON OTHER THAN THE CAUSE OF THE SUSPENSION, ANNUAL LEAVE ACCRUED UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AND THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, UP TO DATE OF SEPARATION MAY BE SUBSTITUTED FOR THE PERIOD OF SUSPENSION WITHOUT PAY AND THE EMPLOYEE PAID ACCORDINGLY. 17 COMP. GEN. 199, AMPLIFIED. IF A SUSPENDED EMPLOYEE IS RETAINED IN THE SERVICE AFTER A PERIOD OF UNJUSTIFIED SUSPENSION, LEAVE WITH PAY ACCRUED UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AND THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, PRIOR AND SUBSEQUENT TO THE PERIOD OF SUSPENSION, AND LEAVE ACCRUED DURING THE PERIOD OF SUSPENSION, IF LESS THAN 30 DAYS, AS WELL AS LEAVE WITH PAY AUTHORIZED TO BE ADVANCED WITHIN THE LIMITATIONS OF THE LAW AND REGULATIONS, MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE AND UPON ELECTION BY THE EMPLOYEE, BE SUBSTITUTED FOR THE PERIOD OF UNJUSTIFIED SUSPENSION WITHOUT PAY, AND THE EMPLOYEE PAID ACCORDINGLY. COMP. GEN. 199, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, AUGUST 6, 1938:

YOUR LETTER OF JULY 27, 1938, IS AS FOLLOWS:

IN YOUR DECISION A-88178 OF AUGUST 30, 1937, TO THE SECRETARY OF THE TREASURY (17 COMP. GEN. 199), IT WAS STATED, QUOTING FROM THE SYLLABUS:

"THE STATUTORY RIGHT TO ANNUAL LEAVE OF ABSENCE WITH PAY MAY NOT BE DENIED BECAUSE AN EMPLOYEE HAS BEEN SUSPENDED WITHOUT PAY WHERE IT IS ADMINISTRATIVELY DETERMINED THE SUSPENSION WAS UNJUSTIFIED; AND WHERE THE EMPLOYEE HAS TO HIS CREDIT ACCRUED ANNUAL LEAVE EQUAL TO OR IN EXCESS OF THE PERIOD OF SUSPENSION, LEAVE WITH PAY MAY BE SUBSTITUTED FOR SUCH PERIOD IF THE EMPLOYEE REMAINS IN THE SERVICE, OR HE MAY BE PAID AFTER SEPARATION FOR A REASON OTHER THAN THAT CAUSING THE SUSPENSION THE AMOUNT OF COMPENSATION HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION.'

IN THE CONSIDERATION OF THE CASE THEN BEFORE YOU THE DECISION WAS RESTRICTED TO THE QUESTION AT HAND, VIZ: WHETHER THE EMPLOYEE COULD BE PAID FOR THE ENTIRE PERIOD OF SUSPENSION. IN THE EXTENSION OF THIS PRINCIPLE, AN EMPLOYEE WOULD BE ENTITLED TO BE PAID, IF IT IS ADMINISTRATIVELY DETERMINED THAT A SUSPENSION WAS UNJUSTIFIED AND HE IS RETAINED IN THE SERVICE OR IF HIS SEPARATION IS FOR A REASON OTHER THAN THAT CAUSING THE SUSPENSION, THE AMOUNT OF COMPENSATION HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION, LIMITED HOWEVER, BY THE AMOUNT OF LEAVE TO HIS CREDIT. FOR EXAMPLE, AN EMPLOYEE HAVING 10 DAYS' LEAVE ACCRUED AT THE TIME OF HIS SUSPENSION, WOULD BE PERMITTED TO APPLY SAID LEAVE ON A 30 DAY SUSPENSION AND HE COULD BE PAID FOR SUCH PART OF THE PERIOD OF SUSPENSION AS WOULD BE COVERED BY THE LEAVE.

WILL YOU PLEASE ADVISE AS EARLY AS POSSIBLE IF THIS CONSTRUCTION IS CORRECT.

A PERIOD OF UNJUSTIFIED SUSPENSION IS TO BE REGARDED THE SAME AS A PERIOD OF LEAVE WITHOUT PAY FOR LEAVE PURPOSES. IF THE PERIOD OF UNJUSTIFIED SUSPENSION IS LESS THAN 30 DAYS, ANNUAL LEAVE IS EARNED DURING THE PERIOD OF SUSPENSION. SEE SECTION 10 OF THE ANNUAL LEAVE REGULATIONS.

IF THE SUSPENDED EMPLOYEE IS RETAINED IN THE SERVICE AFTER TERMINATION OF THE PERIOD OF UNJUSTIFIED SUSPENSION, LEAVE WITH PAY ACCRUED PRIOR AND SUBSEQUENT TO THE PERIOD OF SUSPENSION AND LEAVE ACCRUED DURING THE PERIOD OF SUSPENSION, IF LESS THAN 30 DAYS, AS WELL AS LEAVE WITH PAY AUTHORIZED TO BE ADVANCED WITHIN THE LIMITATION OF THE LAW AND REGULATIONS, MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE AND UPON ELECTION BY THE EMPLOYEE, BE SUBSTITUTED FOR THE PERIOD OF UNJUSTIFIED SUSPENSION WITHOUT PAY AND THE EMPLOYEE PAID THE SALARY OF HIS POSITION FOR THE PERIOD OF UNJUSTIFIED SUSPENSION TO THE EXTENT OF ANY SUCH ANNUAL LEAVE WHICH MAY THUS BE SUBSTITUTED. IN OTHER WORDS, ANNUAL LEAVE MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE AND UPON ELECTION BY THE EMPLOYEE BE SUBSTITUTED TO THE FULLEST EXTENT AUTHORIZED BY THE LAW AND REGULATIONS TO RESTORE THE EMPLOYEE TO A PAY STATUS FOR THE PERIOD OF UNJUSTIFIED SUSPENSION WITHOUT PAY.

IF THE EMPLOYEE IS SEPARATED FROM THE SERVICE AT OR SUBSEQUENT TO THE TERMINATION OF THE PERIOD OF UNJUSTIFIED SUSPENSION FOR A REASON OTHER THAN THAT CAUSED BY THE SUSPENSION, ANNUAL LEAVE ACCRUED UP TO DATE OF SEPARATION MAY BE SUBSTITUTED FOR THE PERIOD OF SUSPENSION WITHOUT PAY IN ACCORDANCE WITH THE ABOVE STATED RULES.

IN THE EXAMPLE GIVEN THE EMPLOYEE WOULD NOT EARN LEAVE DURING THE PERIOD OF SUSPENSION OF 30 DAYS. HOWEVER, THERE COULD BE SUBSTITUTED THE 10 DAYS' ACCRUED ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT AT DATE OF UNJUSTIFIED SUSPENSION AS WELL AS ANY LEAVE HEREAFTER EARNED OR AUTHORIZED TO BE ADVANCED TO THE EMPLOYEE UP TO DATE OF SEPARATION TO RESTORE THE EMPLOYEE'S PAY STATUS FOR THE PERIOD OF UNJUSTIFIED SUSPENSION.