A-80007, MARCH 6, 1937, 16 COMP. GEN. 818

A-80007: Mar 6, 1937

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1936 - SUBSTITUTION FOR LEAVE WITHOUT PAY AFTER APPOINTMENT IN ANOTHER DEPARTMENT WHILE ON FURLOUGH AN EMPLOYEE MAY BE PAID AFTER SEPARATION FROM THE SERVICE OF ONE DEPARTMENT BY APPOINTMENT IN ANOTHER FOR A PERIOD DURING WHICH HE WAS ADMINISTRATIVELY FURLOUGHED WITHOUT PAY EQUAL TO THE PERIOD OF ANNUAL LEAVE ACCRUED AND UNUSED PRIOR TO SUCH SEPARATION. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. GILBERT WAS EMPLOYED IN THE ENGINEER DEPARTMENT. WHEN HE WAS FURLOUGHED WITHOUT PAY. WHICH WAS NOT USED. IN YOUR LETTER OF SEPTEMBER 26 YOU ADVISED THIS OFFICE THAT THERE WAS NO PROVISION IN THE LEAVE ACTS OR IN ANY OTHER LAW OR REGULATION AUTHORIZING A DEPARTMENT TO MAKE REIMBURSEMENT TO AN EMPLOYEE FOR LEAVE ACCRUED AND UNUSED IN THAT DEPARTMENT.

A-80007, MARCH 6, 1937, 16 COMP. GEN. 818

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - SUBSTITUTION FOR LEAVE WITHOUT PAY AFTER APPOINTMENT IN ANOTHER DEPARTMENT WHILE ON FURLOUGH AN EMPLOYEE MAY BE PAID AFTER SEPARATION FROM THE SERVICE OF ONE DEPARTMENT BY APPOINTMENT IN ANOTHER FOR A PERIOD DURING WHICH HE WAS ADMINISTRATIVELY FURLOUGHED WITHOUT PAY EQUAL TO THE PERIOD OF ANNUAL LEAVE ACCRUED AND UNUSED PRIOR TO SUCH SEPARATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, MARCH 6, 1937:

YOUR LETTER OF FEBRUARY 17, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1936, A-80007, IN WHICH YOU REFERRED TO CORRESPONDENCE SUBMITTED BY THE CHIEF OF ENGINEERS, REQUESTING ADVANCE DECISION AS TO WHETHER THE LEAVE STATUS OF MR. FRANK P. GILBERT FOR THE PERIOD APRIL 11 TO MAY 7, 1936, MIGHT BE CORRECTED TO ALLOW ANNUAL LEAVE WITH PAY INSTEAD OF FURLOUGH WITHOUT PAY. THE CORRESPONDENCE SUBMITTED BY THE CHIEF OF ENGINEERS HAD EXPLAINED THAT MR. GILBERT WAS EMPLOYED IN THE ENGINEER DEPARTMENT, KANSAS CITY, MISSOURI, AND HUNTINGTON, WEST VIRGINIA, FROM FEBRUARY 26, 1934, TO APRIL 10, 1936, WHEN HE WAS FURLOUGHED WITHOUT PAY. AT THE TIME OF HIS FURLOUGH WITHOUT PAY HE HAD 21 1/4 DAYS OF LEAVE STANDING TO HIS CREDIT, WHICH WAS NOT USED. ON MAY 8, 1936, HE ACCEPTED APPOINTMENT TO A POSITION WITH THE BUREAU OF INTERNAL REVENUE, AND HIS CONNECTION WITH THE ENGINEER DEPARTMENT THEREFORE CEASED ON MAY 7, 1936.

IN YOUR LETTER OF SEPTEMBER 26 YOU ADVISED THIS OFFICE THAT THERE WAS NO PROVISION IN THE LEAVE ACTS OR IN ANY OTHER LAW OR REGULATION AUTHORIZING A DEPARTMENT TO MAKE REIMBURSEMENT TO AN EMPLOYEE FOR LEAVE ACCRUED AND UNUSED IN THAT DEPARTMENT, AFTER HIS TRANSFER OR REAPPOINTMENT TO ANOTHER. THE DEPARTMENT WAS ADVISED THAT THE VOUCHER PRESENTED WITH THE CORRESPONDENCE SUBMITTED BY THE CHIEF OF ENGINEERS THEREFORE COULD NOT BE PAID. THE RULING GIVEN IN THIS CASE HAS BEEN PUBLISHED TO THE DEPARTMENT FOR THE GUIDANCE OF EMPLOYING OFFICERS.

I AM ADVISED, HOWEVER, THAT THE CLAIM OF MR. GILBERT FOR PAY FOR ANNUAL LEAVE FOR THE PERIOD ABOVE REFERRED TO HAS SINCE BEEN ALLOWED BY CERTIFICATE OF SETTLEMENT NO. 0434536 (CLAIM NO. 0179351). INFORMATION IS REQUESTED AS TO WHETHER A NEW RULING HAS BEEN ISSUED IN THIS CASE. SUCH A DECISION HAS BEEN GIVEN, IT WOULD BE APPRECIATED IF A COPY COULD BE FURNISHED THIS DEPARTMENT IN ORDER THAT APPROPRIATE INSTRUCTIONS MAY BE ISSUED EMPLOYING OFFICERS.

THE FACTS IN THE CASE OF FRANK P. GILBERT WERE STATED IN THE DECISION OF SEPTEMBER 26, 1936, TO WHICH YOU REFER, AS FOLLOWS:

THE CHIEF OF ENGINEERS, WAR DEPARTMENT, BY FOURTH INDORSEMENT DATED AUGUST 13, 1936, SUBMITTED TO THIS OFFICE A MATTER THEREIN STATED AS FOLLOWS:

"1. FORWARDED FOR AN ADVANCE DECISION ON THE INCLOSED VOUCHER AS TO WHETHER THE LEAVE STATUS OF MR. GILBERT FOR THE PERIOD APRIL 11 TO MAY 7, 1936, MAY NOW BE CORRECTED TO ALLOW ANNUAL LEAVE WITH PAY INSTEAD OF FURLOUGH WITHOUT PAY, AS PRESENTED BY THE DISBURSING OFFICER IN THE FOREGOING 2ND INDORSEMENT. THE CONDITIONS ARE AS STATED BELOW:

"2. MR. FRANK GILBERT WAS EMPLOYED IN THE ENGINEER DEPARTMENT, KANSAS CITY, MISSOURI, AND HUNTINGTON, WEST VIRGINIA, FROM FEBRUARY 26, 1934, TO APRIL 10, 1936, WHEN HE WAS FURLOUGHED WITHOUT PAY. AT THE TIME OF HIS FURLOUGH WITHOUT PAY HE HAD 21 1/4 DAYS OF LEAVE STANDING TO HIS CREDIT, WHICH WAS NOT USED. A FURLOUGH WITHOUT PAY IS NOT AN ABSOLUTE SEPARATION FROM THE SERVICE, BUT IS A FORM OF NONPAY STATUS FROM WHICH THE EMPLOYEE MAY BE REEMPLOYED AT ANY TIME WITHIN ONE YEAR, PROVIDED HIS SERVICES ARE REQUIRED. ACCORDINGLY, IF MR. GILBERT HAD BEEN REEMPLOYED IN THE ENGINEER DEPARTMENT HE MIGHT HAVE BEEN ALLOWED HIS ACCRUED LEAVE AT ANY TIME AFTER THE REEMPLOYMENT. HOWEVER, DURING THE PERIOD OF FURLOUGH WITHOUT PAY HE ACCEPTED APPOINTMENT TO A POSITION IN THE BUREAU OF INTERNAL REVENUE, EFFECTIVE MAY 8, 1936. HIS CONNECTION WITH THE ENGINEER DEPARTMENT, THEREFORE, CEASED ON MAY 7, 1936.

"3. MR. GILBERT MIGHT PROPERLY HAVE BEEN ALLOWED THE ANNUAL LEAVE STANDING TO HIS CREDIT PRIOR TO HIS FURLOUGH WITHOUT PAY FROM THE HUNTINGTON DISTRICT. IN FUTURE SIMILAR CASES LEAVE WILL BE SO ALLOWED IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 7 AND 10 OF THE UNIFORM LEAVE REGULATIONS.'

THE VOUCHER REFERRED TO IS FOR COMPENSATION AS AN ASSISTANT ENGINEER FOR THE PERIOD FROM APRIL 11 TO MAY 7, 1936, AND IT HAS BEEN ADMINISTRATIVELY CERTIFIED AND APPROVED FOR PAYMENT.

THE EMPLOYEE OFFERED THE FOLLOWING EXPLANATION DATED JUNE 15, 1936, OF HIS FAILURE TO APPLY FOR ANNUAL LEAVE AT THE TIME THE FURLOUGH WAS GRANTED.

"IT WILL BE NOTED THAT UP TO JANUARY 1, 1936, I HAD ACCRUED ANNUAL LEAVE OF 27 1/4 DAYS, AND THIS WAS INCREASED BY 6 DAYS UP TO MARCH 27TH, WHEN I WENT ON LEAVE PRIOR TO BEING FURLOUGHED. IN ALL THEN, I HAD A TOTAL OF 33 1/4 DAYS' LEAVE.

"ON FEBRUARY 29TH, 1936, I WAS ADVISED BY THE DISTRICT ENGINEER OF THE HUNTINGTON DISTRICT THAT AFTER MARCH 31, 1936, I WOULD BE ON FURLOUGH.

"HAD I SO DESIRED, I COULD HAVE GONE ON ANNUAL LEAVE ON MARCH 1, 1936, BUT IT WAS THE DESIRE OF THE DISTRICT ENGINEER THAT I REMAIN UNTIL THE LATTER PART OF THE MONTH IN ORDER THAT I MIGHT ASSIST MY SUCCESSOR IN BECOMING FAMILIAR WITH MY WORK.

"I DID NOT KNOW HOW MUCH LEAVE I HAD ACCRUED WHEN I MADE APPLICATION FOR 12 DAYS. THE OFFICE THEN EXTENDED THE DATE OF FURLOUGH AND PAY TO APRIL 10, 1936. MY IMPRESSION WAS THAT IF I HAD ANY MORE ANNUAL LEAVE IT WOULD BE TRANSFERRED WITH ME. HAD I KNOWN THAT THIS WAS NOT THE CASE, I SURELY WOULD HAVE APPLIED FOR THE FULL AMOUNT OF LEAVE WITH PAY.

"AS FAR AS ELECTING NOT TO ACCEPT LEAVE WITH PAY IS CONCERNED, I DO NOT BELIEVE THAT MY ACTION COULD BE SO CONSTRUED. I AM SURE THAT THIS WAS NOT MY INTENTION. THE LEAVE WOULD HAVE TO BE OFFERED TO ME BEFORE I COULD ELECT TO ACCEPT OR NOT TO ACCEPT, AND THIS WAS SURELY NOT DONE.

"IF MY REQUEST FOR 12 DAYS' ANNUAL LEAVE WHEN I HAD 33 1/4 DAYS ACCRUED CONSTITUTES AN EXPRESSION OF DESIRE, THEN THE STATEMENT THAT THIS WAS ALL I DESIRED AT THAT TIME WOULD BE TRUE, BUT I DO NOT RECALL MAKING THIS STATEMENT.

"SINCE IT HAS BEEN RULED THAT MY ACCRUED LEAVE CANNOT BE TRANSFERRED TO THE BUREAU OF INTERNAL REVENUE, I WILL APPRECIATE IT IF YOU WILL DO WHAT YOU CAN TO SECURE COMPENSATION FOR ME FOR THE 21 1/4 DAYS ACCRUED LEAVE WHICH WAS DUE WHILE EMPLOYED BY THE WAR DEPARTMENT.'

IN THAT DECISION IT WAS ERRONEOUSLY CONSIDERED THAT THE CASE WAS CONTROLLED BY THE RULE STATED IN THE DECISION OF JULY 15, 1936, 16 COMP. GEN. 28, 29, RELATIVE TO PAYMENT AFTER SEPARATION FROM THE SERVICE FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION.

UPON A FURTHER EXAMINATION OF THE FACTS ABOVE STATED IN CONNECTION WITH THE CLAIM FILED IN THIS OFFICE BY FRANK GILBERT IT WAS CONCLUDED THAT THERE WAS NOT INVOLVED PAYMENT TO AN EMPLOYEE AFTER SEPARATION FROM THE SERVICE FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION, BUT RATHER A SUBSTITUTION OF ANNUAL LEAVE ACCRUED AND UNUSED PRIOR TO SEPARATION FOR LEAVE OR FURLOUGH WITHOUT PAY GRANTED OR ADMINISTRATIVELY IMPOSED PRIOR TO SEPARATION. THE RULE CONTROLLING DISPOSITION OF THIS CLASS OF CASE HAS BEEN SETTLED FOR MANY YEARS. IN DECISION OF FEBRUARY 19, 1913, 19 COMP. DEC. 536, 537, INVOLVING AN ADMINISTRATIVE ACTION TAKEN AFTER THE RESIGNATION OF AN EMPLOYEE TO SUBSTITUTE SICK LEAVE WITH PAY FOR LEAVE WITHOUT PAY FOR A PERIOD PRIOR TO RESIGNATION, IT WAS STATED:

YOUR ACTION WILL GO SIMPLY TO DETERMINING THE STATUS OF THE EMPLOYEE DURING A PERIOD OF ABSENCE HE WAS IN SERVICE AND PRIOR TO THE TAKING EFFECT OF HIS RESIGNATION. THERE IS NO LIMITATION IN THE STATUTE WHICH WOULD REQUIRE YOU TO EXERCISE YOUR DISCRETION BEFORE THE EMPLOYEE'S RESIGNATION TOOK EFFECT, NOR DOES IT REQUIRE HIS RESIGNATION TO BE VIEWED AS SO HAVING FIXED HIS STATUS THAT YOU ARE PRECLUDED FROM EXERCISING YOUR DISCRETION WITH RESPECT TO THE ABSENCE PRIOR TO THE RESIGNATION.

THE STATUTE AUTHORIZES YOU TO GRANT AN EXTENSION OF LEAVE WITH PAY AND YOU ARE AUTHORIZED TO DO SO, NOTWITHSTANDING THE RESIGNATION OF THE EMPLOYEE, FOR A PERIOD OF ABSENCE PRIOR TO THE RESIGNATION WITHIN THE STATUTORY ALLOWANCE.

THE RULE WAS APPLIED EVEN EARLIER IN A DECISION OF FEBRUARY 10, 1909, 15 COMP. DEC. 493. SEE ALSO 7 COMP. GEN. 732.

THE CLAIM OF FRANK GILBERT WAS ALLOWED BY THIS OFFICE IN ACCORDANCE WITH THE ABOVE PRECEDENTS, AND NO FORMAL DECISION BEING RENDERED IN CONNECTION WITH THE SETTLEMENT. ACCORDINGLY, YOU ARE ADVISED THAT THE DECISION OF SEPTEMBER 26, 1936, A-80007, IN THIS CASE HAS BEEN REVERSED.