A-10392, MAY 25, 1926, 5 COMP. GEN. 935

A-10392: May 25, 1926

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COMPENSATION - FEBRUARY - FRACTIONAL MONTH A PER ANNUM EMPLOYEE OF THE GOVERNMENT WHO IS IN A PAY STATUS UP TO AND INCLUDING THE FIRST HALF OF THE DAY ON FEBRUARY 28. IN A NONPAY STATUS DURING THE REMAINDER OF THE MONTH IS ENTITLED TO BE PAID TWENTY SEVEN AND ONE-HALF THIRTIETHS OF A MONTH'S PAY. REQUESTING DECISION AS TO THE PROPORTIONATE PART OF THE MONTHLY RATE OF COMPENSATION THAT IS PAYABLE FOR THE MONTH OF FEBRUARY. TO A REGULAR PER ANNUM EMPLOYEE OF YOUR DEPARTMENT WHO WAS IN A PAY STATUS UP TO AND INCLUDING THE FIRST HALF OF FEBRUARY 28. WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED STATES IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE HEREBY ESTABLISHED: ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS.

A-10392, MAY 25, 1926, 5 COMP. GEN. 935

COMPENSATION - FEBRUARY - FRACTIONAL MONTH A PER ANNUM EMPLOYEE OF THE GOVERNMENT WHO IS IN A PAY STATUS UP TO AND INCLUDING THE FIRST HALF OF THE DAY ON FEBRUARY 28, AND IN A NONPAY STATUS DURING THE REMAINDER OF THE MONTH IS ENTITLED TO BE PAID TWENTY SEVEN AND ONE-HALF THIRTIETHS OF A MONTH'S PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MAY 25, 1926:

CONSIDERATION HAS BEEN GIVEN YOUR LETTERS OF JULY 3, 1925, AND MAY 6, 1926, REQUESTING DECISION AS TO THE PROPORTIONATE PART OF THE MONTHLY RATE OF COMPENSATION THAT IS PAYABLE FOR THE MONTH OF FEBRUARY, A 28-DAY MONTH, TO A REGULAR PER ANNUM EMPLOYEE OF YOUR DEPARTMENT WHO WAS IN A PAY STATUS UP TO AND INCLUDING THE FIRST HALF OF FEBRUARY 28, AND ABSENT IN A NONPAY STATUS DURING THE REMAINDER OF THE MONTH.

SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, CONTAINS THE FOLLOWING PROVISIONS:

HEREAFTER, WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED STATES IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE HEREBY ESTABLISHED: ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE THIRTIETH OF ONE OF SUCH INSTALLMENTS, OR OF A MONTHLY COMPENSATION, SHALL BE THE DAILY RATE OF PAY. FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION, EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF THIRTY DAYS, WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE THIRTY-FIRST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD THIRTY DAYS. * * *; AND ANY PERSON ENTERING SAID SERVICE DURING THE MONTH OF FEBRUARY AND SERVING UNTIL THE END THEREOF SHALL BE ENTITLED TO ONE MONTH'S PAY, LESS AS MANY THIRTIETHS THEREOF AS THERE WERE DAYS ELAPSED PRIOR TO DATE OF ENTRY: * * *.

WITH REFERENCE TO THIS STATUTE AND ITS APPLICATION TO THE MONTH OF FEBRUARY, A FORMER COMPTROLLER OF THE TREASURY IN A DECISION OF APRIL 30, 1914, 20 COMP. DEC. 772, 774, 775, HELD:

THE ACT THEORETICALLY, AND FOR ITS PURPOSES, ADDS TWO DAYS TO THE MONTH OF FEBRUARY THREE YEARS OUT OF FOUR; ONE DAY THE OTHER YEAR. THE DAY ELIMINATED FROM A 31-DAY MONTH IS THE LAST, NOT THE FIRST OR AN INTERVENING DAY. THE DAYS THEORETICALLY ADDED TO THE MONTH OF FEBRUARY MUST BE REGARDED NOT AS PREFIXING OR INTERVENING BETWEEN OTHER DAYS, OR AS OF SOME INDEFINITE LOCATION, BUT AS ADDED THERETO--- A THEORETICAL TWENTY- NINTH AND THIRTIETH DAY.

IF ONE BEGINS HIS SERVICE WITH THE TWENTY-EIGHTH DAY OF FEBRUARY, NOT A LEAP YEAR, HE MUST RECEIVE FOR WHAT IS IN FACT ONE DAY'S SERVICE, THREE- THIRTIETHS OF A MONTHLY INSTALLMENT. THIS IS NOT THEORETICAL OR A MATTER OF CONSTRUCTION, BUT IS PLAINLY THE LAW; A MONTHLY INSTALLMENT LESS TWENTY -SEVEN THIRTIETHS FOR 27 PRIOR DAYS. THE EMPLOYEE HAS THE BEST OF THIS. IF WE REVERSE THE SITUATION MUST WE NOT BALANCE THE ACCOUNT? IF THE EMPLOYEE HAS SERVED 27 DAYS AND RETIRES FROM THE SERVICE HE SHOULD BE PAID TWENTY-SEVEN THIRTIETHS OF A MONTHLY INSTALLMENT, AND THE GOVERNMENT WILL RETAIN THE THREE THIRTIETHS FOR THE ONE ACTUAL DAY HE DID NOT SERVE.

THIS CONCLUSION BEING TRUE--- AND ITS CORRECTNESS CAN HARDLY BE QUESTIONED--- IT IS APPARENT THAT THE THEORETICAL TWENTY-NINTH AND THIRTIETH DAYS DO NOT IN ANY WAY ATTACH THEMSELVES TO OR CONFER ANY BENEFIT ON SERVICE PERFORMED ON ANY DAYS PREVIOUS TO THE TWENTY-EIGHTH, BUT THAT THEY CONFER ALL THEIR BENEFIT ON A SERVICE PERFORMED ON THAT DAY. WE CAN NOT CONVERT THEM INTO ACTUAL DAYS. THERE CAN BE NO ACTUAL SERVICE TO CORRESPOND TO THEM. THEY ARE THEORETICAL AND USED AS A BASIS OF COMPUTATION ONLY, AND AS SUCH, AND BY VIRTUE OF THE EXPRESS PROVISION OF THE STATUTE, THEY MUST ATTACH THEMSELVES TO AND BECOME PRACTICALLY A PART OF THE TWENTY-EIGHTH DAY.

THE UNIFORM RULE AND PRACTICE IN THE ACCOUNTING OFFICES SINCE THE DATE OF THAT DECISION HAVE BEEN IN ACCORDANCE THEREWITH. IN THIS CONNECTION SEE 4 COMP. GEN. 757, IN WHICH IT WAS HELD THAT AN EMPLOYEE WORKING THE FIRST TWENTY-SEVEN DAYS IN FEBRUARY BUT BEING ABSENT WITHOUT PAY ON FEBRUARY 28 WAS ENTITLED TO ONLY TWENTY-SEVEN THIRTIETHS OF ONE MONTH'S PAY.

UNDER THE STATUTORY PROVISIONS ABOVE QUOTED AND IN ACCORDANCE WITH THE PRINCIPLES OF THE DECISIONS CITED THE RULE APPLICABLE TO THE COMPUTATION OF COMPENSATION OF AN EMPLOYEE ON A PER ANNUM OR MONTHLY BASIS SERVING A FRACTIONAL PART OF THE MONTH OF FEBRUARY MAY BE STATED AS OLLOWS:

AN EMPLOYEE WHO PERFORMS SERVICE FOR ONLY A FRACTIONAL PART OF THE MONTH OF FEBRUARY IS ENTITLED TO ONLY AS MANY THIRTIETHS OF THE MONTHLY RATE OF COMPENSATION AS THE NUMBER OF DAYS' SERVICE PERFORMED, EXCEPT WHEN THE EMPLOYEE IS IN A PAY STATUS AT THE END OF THE LAST DAY OF SAID MONTH, IN WHICH CASE HE SHALL RECEIVE THE BENEFIT OF THE THEORETICAL DAYS NECESSARY TO GIVE TO FEBRUARY THE 30 DAYS WHICH THE STATUTE PROVIDES IT "SHALL BE HELD TO CONSIST OF" IN COMPUTING TIME FOR SERVICE RENDERED DURING A FRACTIONAL PART OF THE MONTH.

APPLYING THIS RULE TO THE CASE PRESENTED, THE EMPLOYEE NOT BEING IN A PAY STATUS AT THE END OF THE LAST DAY OF THE MONTH, THERE WOULD BE DUE AND PAYABLE ONLY TWENTY-SEVEN AND ONE-HALF THIRTIETHS OF A MONTH'S PAY.