B-120074, AUGUST 10, 1954, 34 COMP. GEN. 61

B-120074: Aug 10, 1954

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WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED. IS LIMITED TO CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION. AN AGENCY ORDINARILY DOES NOT HAVE UNLIMITED DISCRETION TO GRANT TERMINAL LEAVE CONTRARY TO THE RULE STATED IN 24 COMP. * REFERENCE IS MADE TO YOUR LETTER OF MAY 13. THAT THERE SEEMS TO HAVE BEEN NO ESTABLISHED DATE OF SEPARATION EXCEPT ONE FIXED TO INCLUDE ALL ACCUMULATED AND ACCRUED LEAVE. IT IS STATED THAT THERE SEEMS TO HAVE BEEN NO ADMINISTRATIVE ADVANTAGE DERIVED FROM CARRYING THE EMPLOYEE ON THE ROLLS INSTEAD OF SEPARATING HER ON JANUARY 18. THE WAR CLAIMS COMMISSION SEEMS TO HAVE INTERPRETED 31 COMP. WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED.

B-120074, AUGUST 10, 1954, 34 COMP. GEN. 61

LEAVES OF ABSENCE - ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL LEAVE ADMINISTRATIVE AUTHORITY TO GRANT AN EMPLOYEE TERMINAL, ANNUAL OR VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED, IS LIMITED TO CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION; HOWEVER, AN AGENCY ORDINARILY DOES NOT HAVE UNLIMITED DISCRETION TO GRANT TERMINAL LEAVE CONTRARY TO THE RULE STATED IN 24 COMP. GEN. 511, TO THE EFFECT THAT AN EMPLOYEE MUST BE SEPARATED AND PAID A LUMP SUM FOR THE ANNUAL LEAVE TO HIS CREDIT AS OF THE LAST DATE OF ACTIVE SERVICE. 31 COMP. GEN. 581, AMPLIFIED.

ACTING COMPTROLLER GENERAL WEITZEL TO LOUIS F. THOMPSON, DEPARTMENT OF STATE, AUGUST 10, 1954,*

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1954, ENCLOSING A VOUCHER OF THE WAR CLAIMS COMMISSION FOR $238.74, IN FAVOR OF LUCY S. HOWORTH, REPRESENTING THE VALUE OF 46 HOURS TERMINAL LEAVE FOR THE PERIOD FEBRUARY 28 THROUGH 3:30 P.M., MARCH 8, 1954, INCLUDING 24 HOURS LEAVE ACCRUED WHILE ON TERMINAL LEAVE, AND REQUESTING TO BE ADVISED WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

YOUR LETTER STATES THAT A PERSONNEL ACTION DATED JANUARY 18, 1954, SHOWS THE RESIGNATION OF MRS. HOWORTH TO BE EFFECTIVE AT 3:30 P.M., MARCH 8, 1954, AT THE EXPIRATION OF TERMINAL LEAVE, AND THAT THERE SEEMS TO HAVE BEEN NO ESTABLISHED DATE OF SEPARATION EXCEPT ONE FIXED TO INCLUDE ALL ACCUMULATED AND ACCRUED LEAVE, INCLUDING LEAVE ACCRUING WHILE ON TERMINAL LEAVE. FURTHER, IT IS STATED THAT THERE SEEMS TO HAVE BEEN NO ADMINISTRATIVE ADVANTAGE DERIVED FROM CARRYING THE EMPLOYEE ON THE ROLLS INSTEAD OF SEPARATING HER ON JANUARY 18, 1954, AND MAKING THE USUAL LUMP- SUM PAYMENT FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HER CREDIT ON THAT DATE.

THE DOUBT IN THE CASE APPARENTLY ARISES FROM YOUR CONCLUSION THAT, IN THE FOREGOING FACTUAL SITUATION, THE WAR CLAIMS COMMISSION SEEMS TO HAVE INTERPRETED 31 COMP. GEN. 581 AS PERMITTING AN UNLIMITED EXERCISE OF ADMINISTRATIVE DISCRETION IN DETERMINING WHETHER AN EMPLOYEE SHOULD BE CARRIED ON THE ROLLS IN A TERMINAL LEAVE STATUS AND GRANTED LEAVE ON LEAVE AS DISTINGUISHED FROM THE PROCEDURE ESTABLISHED BY THE RULING IN 24 COMP. GEN. 511 TO THE EFFECT THAT AN EMPLOYEE MUST BE SEPARATED AND PAID A LUMP SUM FOR LEAVE EFFECTIVE AS OF THE LAST DATE OF ACTIVE SERVICE.

THE GENERAL RULE RESPECTING ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL, ANNUAL OR VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED, IS AS STATED IN 24 COMP. GEN. 511, PERTINENT PARTS OF WHICH ARE QUOTED IN YOUR LETTER. CERTAIN EXCEPTIONS TO THAT RULE--- BASED UPON OVERRIDING STATUTORY PROVISIONS AND STATUTORY REGULATIONS--- HAVE BEEN RECOGNIZED IN SUBSEQUENT OFFICE DECISIONS. SEE 25 COMP. GEN. 82, 26 ID. 331, AND 33 COMP. GEN. 85, THE LAST TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION. ALSO, IN DECISION OF MAY 8, 1952, B 108880, 31 COMP. GEN. 581, REFERRED TO IN YOUR LETTER, THERE WAS CONSIDERED THE QUESTION AS TO THE ADMINISTRATIVE AUTHORITY TO PLACE AN EMPLOYEE IN AN ANNUAL LEAVE STATUS EVEN THOUGH SUCH ACTION RESULTS IN TERMINAL ANNUAL LEAVE, WHERE IT IS DETERMINED TO BE DESIRABLE FROM AN ADMINISTRATIVE STANDPOINT. WHILE THE AFFIRMATIVE ANSWER GIVEN TO THAT QUESTION WAS COUCHED IN RELATIVELY BROAD TERMS--- GROUNDED PRIMARILY ON THE ADMINISTRATIVE DISCRETION TO GRANT ANNUAL LEAVE--- IT IS NOT TO BE UNDERSTOOD AS RECOGNIZING AN UNLIMITED DISCRETION IN AN AGENCY WITH RESPECT TO THE GRANTING OF TERMINAL ANNUAL LEAVE CONTRARY TO THE GENERAL RULE STATED IN 24 COMP. GEN. 511. RATHER, SUCH ANSWER IS TO BE VIEWED IN THE LIGHT OF THE QUESTION THERE PRESENTED FOR DECISION, WHICH QUESTION WAS DIRECTED TO THE MATTER OF ADMINISTRATIVE AUTHORITY TO PLACE AN EMPLOYEE ON TERMINAL LEAVE WHERE THE EXIGENCIES OF THE SERVICE SO REQUIRE, AS EVIDENCED BY THE OFFICE DECISIONS CITED IN CONNECTION THEREWITH.

ACCORDINGLY, IF IN THE INSTANT CASE THE ADMINISTRATIVE APPROVAL OF TERMINAL ANNUAL LEAVE WAS NOT BASED UPON THE NEEDS AND INTEREST OF THE GOVERNMENT, THE VOUCHER WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED ONLY IN THE AMOUNT WHICH, TOGETHER WITH TERMINAL LEAVE PAYMENTS APPARENTLY ALREADY MADE, WOULD EQUAL THE AMOUNT LEGALLY DUE MRS. HOWORTH AS A LUMP- SUM PAYMENT FOR THE ANNUAL LEAVE TO HER CREDIT ON JANUARY 18, 1954. SEE 32 COMP. GEN. 273.

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