A-3420, JULY 18, 1924, 4 COMP. GEN. 69

A-3420: Jul 18, 1924

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MODIFICATION OF LEAVE WITHOUT PAY TO SICK LEAVE - INTERIOR DEPARTMENT AN EMPLOYEE OF THE INTERIOR DEPARTMENT WHO IS ABSENT AT THE END OF THE CALENDAR YEAR WITHOUT PAY AND CONTINUES ABSENT AT THE BEGINNING OF NEXT YEAR IS NOT. THEREAFTER THE LEAVE WITHOUT PAY PREVIOUSLY TAKEN IN THAT YEAR MAY BE MODIFIED TO SICK OR ANNUAL LEAVE TO THE EXTENT THAT CREDIT FOR SUCH SICK OR ANNUAL LEAVE IS EARNED IN THAT YEAR AND WHEN SO MODIFIED THE EMPLOYEE IS ENTITLED TO PAY THEREFOR. IF HIS APPOINTMENT IS MADE PERMANENT IN THE SAME CALENDAR YEAR. PAYMENT THEREFOR IS THEN AUTHORIZED. 1924: I HAVE YOUR LETTER OF MAY 23. IN WHICH WAS DISALLOWED THE CLAIM OF FRED N. IT APPEARS THAT THE CLAIMANT ON ACCOUNT OF ILLNESS HAD EXHAUSTED ALL HIS LEAVE FOR THE YEAR 1922 AND WAS IN A NONPAY STATUS FROM JANUARY 1 TO FEBRUARY 4.

A-3420, JULY 18, 1924, 4 COMP. GEN. 69

MODIFICATION OF LEAVE WITHOUT PAY TO SICK LEAVE - INTERIOR DEPARTMENT AN EMPLOYEE OF THE INTERIOR DEPARTMENT WHO IS ABSENT AT THE END OF THE CALENDAR YEAR WITHOUT PAY AND CONTINUES ABSENT AT THE BEGINNING OF NEXT YEAR IS NOT, UNDER THE REGULATIONS OF THAT DEPARTMENT, ENTITLED TO ANNUAL OR SICK LEAVE ON THE NEW YEAR'S ALLOWANCE UNTIL RETURN TO DUTY FOR AN AGGREGATE OF 30 DAYS; THEREAFTER THE LEAVE WITHOUT PAY PREVIOUSLY TAKEN IN THAT YEAR MAY BE MODIFIED TO SICK OR ANNUAL LEAVE TO THE EXTENT THAT CREDIT FOR SUCH SICK OR ANNUAL LEAVE IS EARNED IN THAT YEAR AND WHEN SO MODIFIED THE EMPLOYEE IS ENTITLED TO PAY THEREFOR. LEAVE WITHOUT PAY GRANTED A TEMPORARY EMPLOYEE OF THE INTERIOR DEPARTMENT MAY, UNDER THE REGULATIONS OF THAT DEPARTMENT, BE CHANGED TO ANNUAL LEAVE, IF HIS APPOINTMENT IS MADE PERMANENT IN THE SAME CALENDAR YEAR, AND PAYMENT THEREFOR IS THEN AUTHORIZED.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE INTERIOR, JULY 18, 1924:

I HAVE YOUR LETTER OF MAY 23, 1924, REQUESTING REVIEW OF SETTLEMENT 016332, DATED APRIL 4, 1924, IN WHICH WAS DISALLOWED THE CLAIM OF FRED N. STONE, AN EXAMINER IN THE PATENT OFFICE, FOR $25.18, BEING PAY FOR THREE DAYS' SICK LEAVE.

IT APPEARS THAT THE CLAIMANT ON ACCOUNT OF ILLNESS HAD EXHAUSTED ALL HIS LEAVE FOR THE YEAR 1922 AND WAS IN A NONPAY STATUS FROM JANUARY 1 TO FEBRUARY 4, AND FROM FEBRUARY 7 TO JUNE 30, 1923. ON JULY 1, 1923, HE RETURNED TO DUTY AND WAS ABSENT ON SICK LEAVE FROM AUGUST 13 TO 15, 1923, AND AGAIN ABSENT SICK FROM AUGUST 20 TO 28, 1923, NINE DAYS, WHICH LATTER PERIOD WAS CHARGED TO LEAVE WITHOUT PAY.

THE ACT OF MARCH 15, 1898, 30 STAT. 316, AUTHORIZED THE HEADS OF DEPARTMENTS UNDER SUCH REGULATIONS AS THEY MAY PRESCRIBE TO GRANT NOT TO EXCEED 30 DAYS' LEAVE WITH PAY IN ANY YEAR, KNOWN AS ANNUAL LEAVE, AND ALSO NOT MORE THAN 30 DAYS' SICK LEAVE IN ANY YEAR.

RULE 54 OF THE REGULATIONS OF THE INTERIOR DEPARTMENT GOVERNING LEAVE OF ABSENCE PROVIDES:

AN EMPLOYEE WHO IS ABSENT AT THE END OF THE YEAR WITHOUT PAY AND CONTINUES ABSENT AT THE BEGINNING OF THE NEXT YEAR IS NOT ENTITLED TO ANNUAL OR SICK LEAVE ON THE NEW YEAR'S ALLOWANCE UNTIL RETURN TO DUTY FOR AN AGGREGATE OF THIRTY DAYS; THEREAFTER LEAVE OF ABSENCE WITH PAY FROM JANUARY 1 IS PERMISSIBLE.

AT THE END OF THE CALENDAR YEAR 1923 THE NINE DAYS' LEAVE WITHOUT PAY, TAKEN BY CLAIMANT FROM AUGUST 20 TO 28, WAS MODIFIED TO SICK LEAVE AND HE WAS PAID THEREFOR. THAT PERIOD, TOGETHER WITH THE THREE DAYS' SICKLEAVE GRANTED CLAIMANT FROM AUGUST 13 TO 15 MADE A TOTAL OF 12 DAYS' SICK LEAVE GRANTED CLAIMANT ON ACCOUNT OF HIS SERVICES FROM JULY 1 TO DECEMBER 31, 1923. DURING THE LATTER PERIOD CLAIMANT EARNED 15 DAYS' SICK LEAVE AND MIGHT HAVE BEEN GRANTED 3 DAYS' SICK LEAVE IN ADDITION TO WHAT WAS ACTUALLY GRANTED AND THE PRESENT CLAIM IS FOR PAY FOR 3 DAYS' SICK LEAVE THAT MIGHT HAVE BEEN GRANTED UNDER RULE 54, SUPRA, IN PLACE OF 3 DAYS TAKEN WITHOUT PAY PRIOR TO JULY 1, 1923. IN OTHER WORDS, THE EMPLOYEE CLAIMS THE BENEFIT OF RULE 54 FOR THE BALANCE OF SICK LEAVE EARNED BY HIM IN ADDITION TO THE NINE DAYS PREVIOUSLY MODIFIED FROM LEAVE WITHOUT PAY TO SICK LEAVE.

THIS CASE DIFFERS FROM THE CASES IN WHICH PAY IS DENIED FOR LEAVE NOT GRANTED OR TAKEN DURING THE YEAR IN WHICH IT WAS EARNED. IN THE INSTANT CASE LEAVE WITHOUT PAY WAS GRANTED AND IN ACCORDANCE WITH REGULATIONS SUBSEQUENTLY WAS MODIFIED TO SICK LEAVE.

UPON REVIEW $25.18 IS CERTIFIED DUE CLAIMANT. SEE 4 MS. COMP. GEN. 744; 12 COMP. DEC. 398; 13 ID. 347.

IN YOUR LETTER YOU ALSO REQUEST DECISION WHETHER A CLERK WHO WAS ABSENT ON LEAVE WITHOUT PAY FROM JANUARY 1 TO 5, 1924, RETURNED TO DUTY ON JANUARY 7, 1924, AND HAS PROVED HER ILLNESS FROM JANUARY 1 TO 5, 1924, MAY HAVE THE LEAVE WITHOUT PAY MODIFIED TO SICK LEAVE AND BE PAID THEREFOR UNDER RULE 54, THE EMPLOYEE HAVING SERVED MORE THAN 30 DAYS AFTER RETURN TO DUTY. YOU ARE ADVISED THAT I SEE NO LEGAL OBJECTION TO SUCH ACTION IF GIVEN PROPER ADMINISTRATIVE APPROVAL.

UNDER RULE 13 OF LEAVE REGULATIONS OF THE INTERIOR DEPARTMENT TEMPORARY EMPLOYEES ARE NOT ALLOWED LEAVE WITH PAY FOR THE FIRST TWO MONTHS OF SERVICE. IT HAS BEEN THE PRACTICE TO ALLOW AN EMPLOYEE WHO IS MADE PERMANENT WITHIN THE SAME CALENDAR YEAR LEAVE FROM DAY OF ENTERING THE SERVICE AS TEMPORARY EMPLOYEE AND REIMBURSEMENT FOR LEAVE CHARGED WITHOUT PAY DURING THE TEMPORARY SERVICE. YOU REQUEST TO BE ADVISED WHETHER THERE IS ANY DISTINCTION TO BE MADE BETWEEN THIS AND THE OTHER CASES HEREIN DECIDED. THE PRACTICE FOLLOWED REPRESENTS THE DEPARTMENT'S CONSTRUCTION OF THE LEAVE REGULATIONS, AND SUCH CONSTRUCTION HAS BEEN ACQUIESCED IN BY THE ACCOUNTING OFFICERS. YOU ARE ADVISED THAT THE PRACTICE IN QUESTION DOES NOT CONTRAVENE ANY PROVISION OF THE LEAVE LAWS AND I SEE NO GOOD REASON FOR CHANGING IT. ..END :