A-80859, OCTOBER 21, 1936, 16 COMP. GEN. 403

A-80859: Oct 21, 1936

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IS NOT ENTITLED TO LEAVE ACCUMULATED BUT NOT TAKEN PRIOR TO SEPARATION FROM THE FIRST PERMANENT POSITION. AS TO WHETHER THIS SECTION IS APPLICABLE IN THE FOLLOWING CASE AND THUS WHETHER THE ACCUMULATIVE LEAVE MIGHT NOT BE GRANTED. IS REQUESTED. NATIONAL MUSEUM WAS EMPLOYED AS A GUARD IN THE NATIONAL PARK SERVICE FROM AUGUST 17. HE WAS GIVEN AN APPOINTMENT IN THE U.S. THERE WAS EARNED LEAVE DUE HIM WHICH HE WAS UNABLE TO TAKE AT THAT TIME AND FOR WHICH HE WOULD NOW LIKE CREDIT.

A-80859, OCTOBER 21, 1936, 16 COMP. GEN. 403

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - CREDIT FOR ACCUMULATED LEAVE ON REAPPOINTMENT AN EMPLOYEE SEPARATED FROM ONE PERMANENT POSITION, AND LATER APPOINTED TO ANOTHER SUCH POSITION, IS NOT ENTITLED TO LEAVE ACCUMULATED BUT NOT TAKEN PRIOR TO SEPARATION FROM THE FIRST PERMANENT POSITION, NOTWITHSTANDING HE PERFORMED SERVICE AS A TEMPORARY EMPLOYEE DURING THE ENTIRE INTERVAL BETWEEN THE TWO PERMANENT POSITIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY, SMITHSONIAN INSTITUTION, OCTOBER 21, 1936:

THERE HAS BEEN RECEIVED YOU LETTER OF SEPTEMBER 29, 1936, AS FOLLOWS:

EXECUTIVE ORDER NO. 7409, PART 2, SECTION 5, STATES "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 ACCUMULATIVE LEAVE AND CHARGED WITH UNACCRUED LEAVE ADVANCED.' YOUR DECISION, AS TO WHETHER THIS SECTION IS APPLICABLE IN THE FOLLOWING CASE AND THUS WHETHER THE ACCUMULATIVE LEAVE MIGHT NOT BE GRANTED, IS REQUESTED.

A PAINTER RECENTLY GIVEN AN APPOINTMENT IN THE U.S. NATIONAL MUSEUM WAS EMPLOYED AS A GUARD IN THE NATIONAL PARK SERVICE FROM AUGUST 17, 1935, TO APRIL 20, 1936, WHEN HE RESIGNED TO ACCEPT TEMPORARY APPOINTMENT IN HIS PROFESSION AS PAINTER AT THE NAVAL AIR STATION WHERE HE SERVED FROM APRIL 21, 1936, TO JUNE 30, 1936. HE THEN SERVED UNDER TEMPORARY APPOINTMENT AS PAINTER IN THE NATIONAL PARK SERVICE FROM JULY 1, 1936, TO JULY 31, 1936. ON AUGUST 1, 1936, HE WAS GIVEN AN APPOINTMENT IN THE U.S. NATIONAL MUSEUM AS SENIOR MECHANIC (PAINTER) THROUGH REINSTATEMENT IN HIS LAST PERMANENT POSITION--- THAT OF GUARD IN THE PARK SERVICE. WHEN HE LEFT THE GUARD POSITION IN THE PARK SERVICE, THERE WAS EARNED LEAVE DUE HIM WHICH HE WAS UNABLE TO TAKE AT THAT TIME AND FOR WHICH HE WOULD NOW LIKE CREDIT. HAS HAD CONTINUOUS SERVICE, ALTHOUGH PART OF IT HAS BEEN TEMPORARY.

SECTION 5 AND 15 OF THE UNIFORM ANNUAL LEAVE REGULATIONS ISSUED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 7409, EFFECTIVE JULY 1, 1936, PROVIDE AS FOLLOWS:

SEC. 5. 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.

SEC. 15. TEMPORARY EMPLOYEES WHO SUBSEQUENTLY RECEIVE PERMANENT OR PROBATIONAL APPOINTMENTS IN THE SAME DEPARTMENT WITHOUT BREAK IN SERVICE SHALL BE ENTITLED TO ANNUAL LEAVE AT THE RATE OF 2 1/2 DAYS PER MONTH TO THE DATE OF PERMANENT APPOINTMENT AND THEREAFTER AT THE RATE OF 2 1/2 DAYS PER MONTH. OF TEMPORARY EMPLOYEES, ONLY THOSE WHO SUBSEQUENTLY ACCEPT PERMANENT APPOINTMENTS WITHOUT BREAK IN SERVICE MAY BE CREDITED WITH ACCUMULATED LEAVE EARNED PRIOR TO JANUARY 1, 1936.

THE PHRASE "BREAK IN SERVICE" USED IN THE FIRST QUOTED REGULATION MEANS BREAK IN PERMANENT SERVICE. ACCORDINGLY, UNDER THESE REGULATIONS, THERE WOULD BE NO AUTHORITY, UPON TRANSFER OF THIS EMPLOYEE TO THE PERMANENT POSITION UNDER THE UNITED STATES NATIONAL MUSEUM, TO CREDIT HIM WITH ANY LEAVE EARNED WHILE SERVING IN THE PERMANENT POSITION UNDER THE NATIONAL PARK SERVICE, THE INTERIM SERVICE IN THE TWO TEMPORARY POSITIONS CONSTITUTING A "BREAK IN SERVICE" WITHIN THE MEANING OF THE REGULATIONS.