A-79827, SEPTEMBER 2, 1936, 16 COMP. GEN. 212

A-79827: Sep 2, 1936

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1936 - SEPARATION FROM SERVICE AN EMPLOYEE SEPARATED FROM THE SERVICE WITHOUT PREJUDICE WHO IS REINSTATED OR REAPPOINTED AFTER A BREAK IN SERVICE IS NOT ENTITLED UNDER THE ACT OF MARCH 14. A SEPARATION FROM SERVICE FOLLOWING A SUSPENSION WITHOUT PAY MAY NOT BE MADE EFFECTIVE AT THE EXPIRATION OF LEAVE OF ABSENCE GRANTED WHILE THE EMPLOYEE IS IN THE SUSPENSION WITHOUT PAY STATUS. IS NOT A "BREAK IN SERVICE" WITHIN THE MEANING OF SECTION 5 OF THE UNIFORM ANNUAL LEAVE REGULATIONS AUTHORIZING TRANSFER OF LEAVE CREDITS. AS FOLLOWS: VARIOUS QUESTIONS HAVE ARISEN IN THIS DEPARTMENT AS TO THE PROPER PROCEDURE IN ADMINISTRATION OF THE TWO ACTS DATED MARCH 14. THESE QUESTIONS ARE PRESENTED BELOW AND IT IS REQUESTED THAT RULING BE GIVEN AS TO THE PROPER ACTION IN EACH CASE. (1) THE LANGUAGE OF THE ACTS INDICATES THAT THE ALLOWANCE OF LEAVE AS PRESCRIBED THEREIN IS MANDATORY.

A-79827, SEPTEMBER 2, 1936, 16 COMP. GEN. 212

LEAVES OF ABSENCE - ANNUAL - ACT MARCH 14, 1936 - SEPARATION FROM SERVICE AN EMPLOYEE SEPARATED FROM THE SERVICE WITHOUT PREJUDICE WHO IS REINSTATED OR REAPPOINTED AFTER A BREAK IN SERVICE IS NOT ENTITLED UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, TO LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SEPARATION. AN EMPLOYEE MAY BE GRANTED LEAVE WITH PAY UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, TO BE TAKEN PRIOR TO THE EFFECTIVE DATE OF A DISMISSAL FOR CAUSE, BUT A SEPARATION FROM SERVICE FOLLOWING A SUSPENSION WITHOUT PAY MAY NOT BE MADE EFFECTIVE AT THE EXPIRATION OF LEAVE OF ABSENCE GRANTED WHILE THE EMPLOYEE IS IN THE SUSPENSION WITHOUT PAY STATUS. ACCRUED LEAVE MAY BE GRANTED, HOWEVER, BEFORE THE SUSPENSION. AN EMPLOYEE TRANSFERRED PRIOR TO JULY 1, 1936, DURING HIS FIRST SERVICE YEAR FROM A POSITION SUBJECT TO THE ARSENAL LEAVE ACT AND APPOINTED TO ANOTHER POSITION UNDER THE WAR DEPARTMENT NOT SUBJECT TO THE ARSENAL LEAVE ACT WITHOUT BREAK IN SERVICE MAY BE CREDITED AFTER TRANSFER WITH LEAVE EARNED UNDER THE ARSENAL LEAVE ACT DURING THE FIRST SERVICE YEAR IF THE REGULATIONS OF THE WAR DEPARTMENT IN FORCE AT THE TIME AUTHORIZED SUCH TRANSFER OF LEAVE CREDITS. SEPARATION FROM SERVICE AND APPOINTMENT TO ANOTHER POSITION AFTER THE LAPSE OF SUNDAY, A NONWORK DAY, IS NOT A "BREAK IN SERVICE" WITHIN THE MEANING OF SECTION 5 OF THE UNIFORM ANNUAL LEAVE REGULATIONS AUTHORIZING TRANSFER OF LEAVE CREDITS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, SEPTEMBER 2, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 7, 1936, AS FOLLOWS:

VARIOUS QUESTIONS HAVE ARISEN IN THIS DEPARTMENT AS TO THE PROPER PROCEDURE IN ADMINISTRATION OF THE TWO ACTS DATED MARCH 14, 1936, GOVERNING LEAVES OF ABSENCE OF CIVILIAN EMPLOYEES, AND OF THE UNIFORM LEAVE REGULATIONS PRESCRIBED BY EXECUTIVE ORDERS DATED JULY 9, 1936, FOR THE ADMINISTRATION OF THE ACTS. THESE QUESTIONS ARE PRESENTED BELOW AND IT IS REQUESTED THAT RULING BE GIVEN AS TO THE PROPER ACTION IN EACH CASE.

(1) THE LANGUAGE OF THE ACTS INDICATES THAT THE ALLOWANCE OF LEAVE AS PRESCRIBED THEREIN IS MANDATORY, AND THAT EMPLOYEES SHOULD BE ALLOWED ANNUAL LEAVE WHICH HAS ACCUMULATED TO THEIR CREDIT PRIOR TO SEPARATION FROM THE SERVICE. DEFINITE PROVISION IS MADE, IN SECTIONS 6 AND 7 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, FOR THE ALLOWANCE OF SUCH LEAVE TO EMPLOYEES VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE, AND TO THOSE INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE. DECISION A-75809, DATED JULY 15, 1936, THE COMPTROLLER GENERAL HELD, IN INTERPRETING THE LEAVE LEGISLATION, THAT AN EMPLOYEE SEPARATED FROM THE SERVICE WITHOUT HAVING RECEIVED THE LEAVE ACCUMULATED TO HIS CREDIT COULD NOT THEREAFTER RECEIVE COMPENSATION IN LIEU OF SUCH LEAVE. A RULING NOW IS REQUESTED AS TO WHETHER, UNDER THE NEW LEGISLATION, AN EMPLOYEE WHO BECOMES SEPARATED FROM THE SERVICE WITHOUT PREJUDICE BEFORE RECEIVING ALL OF THE ANNUAL LEAVE WHICH HAS ACCRUED TO HIS CREDIT, MAY BE GRANTED SUCH LEAVE IF REINSTATED AFTER A PERIOD OF ABSOLUTE SEPARATION OF SOME MONTHS. WOULD THE SAME RULE APPLY IF THE EMPLOYEE REENTERED THE SERVICE BY PROBATIONAL APPOINTMENT RATHER THAN BY REINSTATEMENT? WOULD THE RULE APPLY IN CASE THE LEAVE WAS EARNED AS A TEMPORARY EMPLOYEE? IF THE REAPPOINTMENT OR REEMPLOYMENT SHOULD BE IN A TEMPORARY POSITION AT AN HOURLY RATE, WOULD IT BE PERMISSIBLE TO ALLOW THE LEAVE EARNED UNDER THE FORMER EMPLOYMENT?

(2) AN EMPLOYEE IS ABOUT TO BE DISMISSED FOR CAUSE BY THE APPOINTING OFFICER. IS IT WITHIN THE DISCRETION OF THE DEPARTMENT TO ALLOW HIM THE LEAVE WITH PAY ACCRUED TO HIS CREDIT PRIOR TO DATE OF SEPARATION, OR IS THE EMPLOYEE CONSIDERED AS HAVING FORFEITED RIGHT TO LEAVE? IF HE MAY BE ALLOWED SUCH LEAVE, MAY THE LEAVE BE ALLOWED EVEN THOUGH HE MAY HAVE BEEN UNDER SUSPENSION WITHOUT PAY PENDING INVESTIGATION OF THE CHARGES AGAINST HIM?

(3) AN EMPLOYEE WAS PROBATIONALLY APPOINTED TO A POSITION IN THE ENGINEER DEPARTMENT ON MARCH 2, 1936, FOLLOWING ABSOLUTE SEPARATION, MADE WITHOUT PREJUDICE BECAUSE OF REDUCTION IN FORCE, FROM A POSITION UNDER THE ROCK ISLAND ARSENAL, ORDNANCE DEPARTMENT, EFFECTIVE FEBRUARY 29, 1936. HE WAS THUS REAPPOINTED IN THE ENGINEER DEPARTMENT WITHOUT ACTUAL BREAK IN SERVICE. HE HAD BEEN EMPLOYED IN THE ORDNANCE DEPARTMENT FROM APRIL 15, 1935, TO FEBRUARY 29, 1936, AND WAS SUBJECT TO THE PROVISIONS OF THE ARSENAL LEAVE ACT DATED AUGUST 29, 1916, AS AMENDED BY SEC. 215 OF THE ACT OF JUNE 30, 1932. HOWEVER, IT WAS THE PRACTICE OF THE ORDNANCE DEPARTMENT IN ADMINISTERING THE ARSENAL LEAVE ACT NOT TO ALLOW LEAVE UNDER THIS ACT UNTIL THE COMPLETION OF TWELVE MONTHS' CONTINUOUS SERVICE, AFTER WHICH THE EMPLOYEE WAS CONSIDERED ELIGIBLE TO RECEIVE THE LEAVE EARNED DURING THE TWELVE-MONTH PERIOD REFERRED TO. HAD HE BEEN ALLOWED TO ACCRUE LEAVE HE WOULD HAVE HAD 10 2/3 DAYS TO HIS CREDIT ON DECEMBER 31, 1935. HE DID NOT RECEIVE THIS LEAVE PRIOR TO HIS SEPARATION FROM THE ORDNANCE DEPARTMENT. A RULING IS REQUESTED AS TO WHETHER HE IS NOW ENTITLED TO RECEIVE SUCH LEAVE OR MAY BE ALLOWED IT UNDER HIS PRESENT EMPLOYMENT IN THE ENGINEER DEPARTMENT.

IN DECISION OF JULY 15, 1936, A-75809, 16 COMP. GEN. 28, IT WAS HELD AS FOLLOWS:

THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM THE SERVICE, FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. 5 COMP. GEN. 752; 7 ID. 83; 8 ID. 471; 12 ID. 602; 13 ID. 79; AND 14 ID. 443. THE ACT OF MARCH 14, 1936, 49 STAT. 1161, EFFECTIVE JANUARY 1, 1936, MAY GRANT LEAVE OF ABSENCE AS A RIGHT BUT IT DOES NOT PROVIDE FOR PAYING EMPLOYEES FOR ACCRUED UNUSED LEAVE AFTER SEPARATION FROM THE SERVICE. ON THE BASIS OF THE FACTS STATED IN YOUR LETTER, THE FORMER EMPLOYEE IS NOT ENTITLED TO PAYMENT FOR ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM THE SERVICE.

SECTION 5 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES:

EMPLOYEES TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH ACCUMULATED LEAVE AND CHARGED WITH UNACCRUED LEAVE ADVANCED.

BUT A REINSTATEMENT OR REAPPOINTMENT AFTER A BREAK IN SERVICE--- A PERIOD OF ABSOLUTE SEPARATION OF MONTHS OR EVEN WEEKS--- CARRIES NO RIGHT TO THE LEAVE ACCRUED BUT NOT TAKEN PRIOR TO THE SEPARATION FROM THE SERVICE. THE QUESTIONS UNDER PARAGRAPH NO. (1), SUPRA, ARE ANSWERED ACCORDINGLY.

IN DECISION OF AUGUST 1, 1936, A-72714, 16 COMP. GEN. 105, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE DATE OF DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY BE FIXED EFFECTIVE IMMEDIATELY, OR AT THE EXPIRATION OF ACCRUED LEAVE, IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT CONCERNED.

AN EMPLOYEE MAY BE GRANTED ACCRUED LEAVE WITH PAY TO BE TAKEN PRIOR TO THE EFFECTIVE DATE OF A DISMISSAL FOR CAUSE BUT, SINCE A SUSPENSION WITHOUT PAY IS EQUIVALENT TO A TEMPORARY SEPARATION FROM THE SERVICE, A PERMANENT SEPARATION FOLLOWING SUCH A TEMPORARY SEPARATION MAY NOT BE MADE EFFECTIVE AT THE EXPIRATION OF A LEAVE OF ABSENCE GRANTED WHILE THE EMPLOYEE IS IN A STATUS OF SUSPENSION WITHOUT PAY. IF LEAVE IS TO BE GRANTED IN SUCH A CASE, IT MUST BE GRANTED BEFORE THE SUSPENSION RATHER THAN AFTER. THE QUESTIONS STATED IN PARAGRAPH NO. (2) ARE ANSWERED ACCORDINGLY.

REFERRING TO PARAGRAPH NO. (3), AS MARCH 1, 1936, WAS SUNDAY, A NONWORK DAY, THERE WOULD NOT BE REGARDED AS HAVING BEEN A BREAK IN SERVICE OF THE EMPLOYEE. WHILE IT IS TRUE HE COULD NOT HAVE USED THE LEAVE ACCRUED UNDER THE ARSENAL LEAVE ACT PRIOR TO SEPARATION FROM THE ORDNANCE DEPARTMENT DURING HIS FIRST SERVICE YEAR, NEVERTHELESS HE EARNED THE LEAVE DURING THAT YEAR AT THE RATE OF 1 1/4 DAYS FOR EACH MONTH OF SERVICE PRIOR TO JANUARY 1, 1936. SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, EFFECTIVE JANUARY 1, 1936, PROVIDES IN PART AS FOLLOWS:

* * * CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS. * * *

REFERENCE IS MADE TO SECTION 5 OF THE UNIFORM ANNUAL LEAVE REGULATIONS QUOTED ABOVE. IN DECISION OF AUGUST 1, 1936, A-72714, 16 COMP. GEN. 105, IT WAS HELD AS FOLLOWS (QUOTING FROM SYLLABUS):

EMPLOYEES TRANSFERRED TO THE GOVERNMENT PRINTING OFFICE PRIOR TO JULY 1, 1936, WITH ACCUMULATED ANNUAL AND SICK LEAVE TO THEIR CREDIT IN THE DEPARTMENT FROM WHICH TRANSFERRED MAY NOT BE CREDITED WITH SUCH ACCUMULATED LEAVE, THERE HAVING BEEN NO PROVISION IN THE TEMPORARY LEAVE REGULATIONS OF THAT OFFICE UNDER THE ACT OF MARCH 14, 1936, OR OTHERWISE, FOR SUCH CREDIT.

AS THE TRANSFER OR SEPARATION AND REEMPLOYMENT OF THE EMPLOYEE MENTIONED IN PARAGRAPH NO. (3) WAS PRIOR TO JULY 1, 1936, HIS RIGHT TO BE CREDITED WITH THE LEAVE EARNED UNDER THE ARSENAL LEAVE ACT DEPENDS ON WHETHER THE REGULATIONS OF THE WAR DEPARTMENT IN FORCE PRIOR TO JULY 1, 1936, AUTHORIZED AN EMPLOYEE TRANSFERRED FROM THE ORDNANCE TO THE ENGINEER DEPARTMENT TO BE CREDITED WITH LEAVE ACCRUED WHILE EMPLOYED UNDER THE ORDNANCE DEPARTMENT. YOUR LETTER WOULD INDICATE THAT SUCH IS NOT THE FACT. IF NOT, THE QUESTION IN PARAGRAPH NO. (3) IS ANSWERED IN THE NEGATIVE.