A-31995, JULY 3, 1930, 10 COMP. GEN. 11

A-31995: Jul 3, 1930

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HE IS NOT ENTITLED TO A FULL MONTH'S SALARY. WHEN THE DATE OF RESIGNATION OF AN EMPLOYEE IS ONCE FIXED. DORON WAS ASSISTANT CASHIER IN THE OFFICE OF THE CLERK OF THE COURT FOR THE NORTHERN DISTRICT OF ILLINOIS. HE WAS PAID A FULL MONTH'S SALARY FOR THE MONTH OF FEBRUARY. THE DISALLOWANCE OF CREDIT FOR THE $14 WAS ON THE GROUND THAT HE WAS NOT ENTITLED TO FULL PAY FOR THE MONTH. MADE THIS STATEMENT BECAUSE OF THE FACT THAT FEBRUARY 28 WAS A SUNDAY AND I DID NOT WANT TO MAKE IT APPEAR AS THOUGH THE MAN WORKED ON SUNDAY WHEN AS A MATTER OF FACT HE DID NOT DO SO. I NOTE THE COMPTROLLER GENERAL STATES DORON WAS ONLY ENTITLED TO TWENTY- SEVEN-THIRTIETHS OF A MONTH. IF IT IS NOT INCONSISTENT.

A-31995, JULY 3, 1930, 10 COMP. GEN. 11

COMPENSATION - FRACTIONAL PARTS OF A MONTH - RESIGNATIONS WHERE AN EMPLOYEE RESIGNS EFFECTIVE AT THE CLOSE OF BUSINESS FEBRUARY 27, HE IS NOT ENTITLED TO A FULL MONTH'S SALARY, BUT ONLY TO TWENTY SEVEN- THIRTIETHS THEREOF. WHEN THE DATE OF RESIGNATION OF AN EMPLOYEE IS ONCE FIXED, NO SUBSEQUENT ACTION, WHETHER ON THE PART OF THE EMPLOYEE OR THE EMPLOYER OR BOTH, CAN CHANGE THE DATE.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 3, 1930:

REVIEW HAS BEEN REQUESTED OF A DISALLOWANCE OF CREDIT FOR $14 ON VOUCHER 1062 IN THE ACCOUNT OF PALMER E. ANDERSON, DECEASED, FORMER UNITED STATES MARSHAL FOR THE NORTHERN DISTRICT OF ILLINOIS, FOR THE MARCH QUARTER, 1926.

IT APPEARS THAT ONE EUGENE V. DORON WAS ASSISTANT CASHIER IN THE OFFICE OF THE CLERK OF THE COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, AT A SALARY OF $1,680 A YEAR, OR $140 A MONTH. THIS EMPLOYEE RESIGNED, EFFECTIVE AT THE CLOSE OF BUSINESS ON FEBRUARY 27, 1926. HE WAS PAID A FULL MONTH'S SALARY FOR THE MONTH OF FEBRUARY, 1926. THE DISALLOWANCE OF CREDIT FOR THE $14 WAS ON THE GROUND THAT HE WAS NOT ENTITLED TO FULL PAY FOR THE MONTH, BUT ONLY TO TWENTY SEVEN-THIRTIETHS THEREOF, OR $126.

THE CLERK OF COURT, IN HIS LETTER OF APRIL 19, 1930, PROTESTING AGAINST THIS DISALLOWANCE, AMONG OTHER THINGS, SAYS:

MR. DORON RECEIVED $140 PER MONTH WHILE IN MY EMPLOY. HE RESIGNED FROM THE SERVICE THE LAST WORKING DAY OF FEBRUARY, 1926.

IN MY LETTER TO THE DEPARTMENT REPORTING THE SAID RESIGNATION I STATED THAT MR. DORON RESIGNED AT THE CLOSE OF BUSINESS ON FEBRUARY 27, 1926. MADE THIS STATEMENT BECAUSE OF THE FACT THAT FEBRUARY 28 WAS A SUNDAY AND I DID NOT WANT TO MAKE IT APPEAR AS THOUGH THE MAN WORKED ON SUNDAY WHEN AS A MATTER OF FACT HE DID NOT DO SO.

I NOTE THE COMPTROLLER GENERAL STATES DORON WAS ONLY ENTITLED TO TWENTY- SEVEN-THIRTIETHS OF A MONTH--- OR $126 INSTEAD OF $140.

IF IT IS NOT INCONSISTENT, THEREFORE, WITH ANY RULINGS OF THE COMPTROLLER GENERAL OR THE DEPARTMENT I WOULD LIKE TO FILE THIS AMENDED LETTER, STATING THAT THE SAID EUGENE DORON RESIGNED AT THE CLOSE OF BUSINESS FEBRUARY 28, THE LAST OF THE MONTH. THE MAN RENDERED FAITHFUL SERVICE FOR THE ENTIRE MONTH, AND INASMUCH AS I UNDERSTAND THE GOVERNMENT MONTHS EACH CONTAIN 30 DAYS, IT WOULD SEEM TO ME HE IS, THEREFORE, JUSTLY ENTITLED TO THE AMOUNT HE RECEIVED, ,140.

IT WILL BE NOTED THAT THE CLERK STATES THAT THIS EMPLOYEE RESIGNED FROM THE SERVICE THE LAST WORKING DAY OF FEBRUARY, 1926. THE LAST WORKING DAY OF THAT MONTH WAS FEBRUARY 27. HE WAS, THEREFORE, NOT IN THE SERVICE ON FEBRUARY 28. THE CLERK NOW ATTEMPTS TO CHANGE THE DATE OF THIS EMPLOYEE'S RESIGNATION TO FEBRUARY 28. THAT CAN NOT BE DONE. WHEN A DATE OF RESIGNATION IS ONCE FIXED, NO SUBSEQUENT ACTION, WHETHER ON THE PART OF THE EMPLOYEE OR THE EMPLOYER, OR BOTH, CAN CHANGE THAT DATE. (26 COMP. DEC. 448.)

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 12 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 30 DAYS, WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD 30 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: * * *.

THE APPLICATION OF THIS STATUTE TO THE MONTH OF FEBRUARY WAS CONSTRUED BY A FORMER COMPTROLLER OF THE TREASURY IN A DECISION DATED APRIL 30, 1914 (20 COMP. DEC. 772). IN THAT DECISION, AT PAGES 774 AND 775, IT WAS SAID:

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 28TH 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 28, 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 RULE LAID DOWN IN THE ABOVE DECISION HAS BEEN UNIFORMLY FOLLOWED IN THE DECISIONS OF THIS OFFICE. SEE 5 COMP. GEN. 935. APPLYING THAT RULE TO THE FACTS IN THE INSTANT CASE, THIS EMPLOYEE WAS ENTITLED TO ONLY TWENTY-SEVEN THIRTIETHS OF A MONTH'S SALARY, OR $126. THEREFORE THE DISALLOWANCE OF CREDIT IN THE AMOUNT OF $14 MUST BE AND IS SUSTAINED.