A-83276, FEBRUARY 17, 1937, 16 COMP. GEN. 769

A-83276: Feb 17, 1937

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IS FOR COMPUTING UPON THE SAME BASIS AS THAT USED IN CONNECTION WITH LEAVE WITHOUT PAY WHICH HAS BEEN AUTHORIZED IN ADVANCE. UNACCRUED LEAVE SHALL BE GRANTED ONLY WITH THE EXPRESS UNDERSTANDING THAT IF SUCH LEAVE IS NOT LATER EARNED DURING THE CALENDAR YEAR. DEDUCTIONS WILL BE MADE FOR THE UNEARNED PORTION FROM ANY SALARY DUE THE EMPLOYEE. OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY. THERE WAS TO HIS CREDIT IN THE RETIREMENT FUND THE SUM OF $149.89. OUT OF WHICH THE SUM OF $89.89 WAS PAID TO HIM BY CHECK NO. 46003. - THE BALANCE OF $60 HAVING BEEN RETAINED PENDING DETERMINATION OF THE AMOUNT OF THE INDEBTEDNESS ON ACCOUNT OF EXCESS LEAVE TAKEN BY HIM DURING HIS LAST EMPLOYMENT WHICH WAS IN THE WAR DEPARTMENT.

A-83276, FEBRUARY 17, 1937, 16 COMP. GEN. 769

LEAVES OF ABSENCE - ANNUAL AND SICK - PAY AND RETIREMENT FUND DEDUCTIONS FOR ADVANCES UNEARNED ON SEPARATION FROM SERVICE - SATURDAYS, SUNDAYS, AND HOLIDAYS THE AMOUNT TO BE DEDUCTED FROM A FORMER EMPLOYEE'S CREDIT IN THE RETIREMENT FUND, BECAUSE OF UNEARNED OR EXCESS ANNUAL OR SICK LEAVE, IS FOR COMPUTING UPON THE SAME BASIS AS THAT USED IN CONNECTION WITH LEAVE WITHOUT PAY WHICH HAS BEEN AUTHORIZED IN ADVANCE. SATURDAY SHOULD BE COMPUTED AS A FULL DAY'S ABSENCE, NOT FOUR HOURS AND DEDUCTIONS SHOULD BE MADE FOR SUNDAYS AND HOLIDAYS FALLING WITHIN A PERIOD OF LEAVE, BUT NOT FOR SUNDAYS AND HOLIDAYS OCCURRING BETWEEN THE EXPIRATION OF THE LEAVE GRANTED AND THE DAY OF REPORTING FOR DUTY IF THE EMPLOYEE RETURNS TO DUTY ON THE FIRST SUCCEEDING WORK DAY. 16 COMP. GEN. 487, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 17, 1937:

IN CONNECTION WITH THE AUDIT (BEFORE PAYMENT) OF THE PROPOSED REFUND OF RETIREMENT DEDUCTIONS TO WALTER BUSH, R-400,439, UNDER THE PROVISIONS OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 468, THE QUESTION HAS ARISEN AS TO THE CORRECTNESS OF THE AMOUNT PROPOSED TO BE DEDUCTED FROM THE AMOUNT TO THE APPLICANT'S CREDIT IN RETIREMENT FUND ON ACCOUNT OF OVERDRAWN SICK AND ANNUAL LEAVE.

SECTIONS 3 AND 10 OF THE UNIFORM AND SICK LEAVE REGULATIONS, RESPECTIVELY, PROVIDE AS FOLLOWS:

SEC. 3. UNACCRUED LEAVE SHALL BE GRANTED ONLY WITH THE EXPRESS UNDERSTANDING THAT IF SUCH LEAVE IS NOT LATER EARNED DURING THE CALENDAR YEAR, DEDUCTIONS WILL BE MADE FOR THE UNEARNED PORTION FROM ANY SALARY DUE THE EMPLOYEE, OR ANY DEDUCTIONS IN THE RETIREMENT FUND TO THE CREDIT OF THE EMPLOYEE.

SEC. 10. IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF A EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO HIS CREDIT. THIS PROVISION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, REDUCTION OF FORCE, OR WHEN AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

AT THE TIME OF THE CLAIMANT'S RESIGNATION FROM THE SERVICE, NAMELY, C.O.B., SEPTEMBER 1, 1936, THERE WAS TO HIS CREDIT IN THE RETIREMENT FUND THE SUM OF $149.89, OUT OF WHICH THE SUM OF $89.89 WAS PAID TO HIM BY CHECK NO. 46003, DATED SEPTEMBER 25, 1936--- THE BALANCE OF $60 HAVING BEEN RETAINED PENDING DETERMINATION OF THE AMOUNT OF THE INDEBTEDNESS ON ACCOUNT OF EXCESS LEAVE TAKEN BY HIM DURING HIS LAST EMPLOYMENT WHICH WAS IN THE WAR DEPARTMENT.

THE WAR DEPARTMENT, UNDER DATE OF DECEMBER 23, 1936, REPORTED, ON CIVIL SERVICE COMMISSION FORM 3037, THAT THE APPLICANT WAS INDEBTED TO THE UNITED STATES ON ACCOUNT OF OVERDRAWN LEAVE IN THE GROSS AMOUNT OF $42.28, REPRESENTING 8 DAYS, 3 HOURS AND 15 MINUTES EXCESS ANNUAL LEAVE AT THE RATE OF $1,140 PER ANNUM, AND 5 DAYS (2 DAYS AT $1,080 PER ANNUM AND 3 DAYS AT $1,140 PER ANNUM) EXCESS SICK LEAVE. THE DATES ON WHICH THE EXCESS LEAVE WAS TAKEN ARE REPORTED AS FOLLOWS:

CHART ANNUAL LEAVE:

DAYS

JUNE 15, 1936 (2:30 TO 4:15) ---------------------------- 7/8

17 ----------------------------------------------------- 1

23-26 -------------------------------------------------- 4

27 (8:45 TO 12:45) ----------------------------------- 4/7

JULY:

2 (2:15 TO 4:15) ------------------------------------ 2/7

16 ----------------------------------------------------- 1

22 (3:45 TO 4:15) ------------------------------------ 1/14

27 ----------------------------------------------------- 1

AUG. 20 (2:45 TO 4:15) ---------------------------------- 3/14

31 (3:45 TO 4:15) ------------------------------------ 1/14

TOTAL ------------------------------------------- (1) 8 13/28 SICK LEAVE:

FEB. 26, 1936 --------------------------------------------- 1

APR. 3 ---------------------------------------------------- 1

JUNE 6 ---------------------------------------------------- 1

JULY 13 --------------------------------------------------- 1

AUG. 3 ---------------------------------------------------- 1

TOTAL ---------------------------------------------- 5

(1) 8 DAYS 3 HOURS AND 15 MINUTES.

THIS AND OTHER CASES BEFORE THE OFFICE INDICATE THAT, WITH RESPECT TO SICK OR EXCESS ANNUAL LEAVE TAKEN ON A SATURDAY (SO-CALLED HALF HOLIDAY), THERE IS A MISUNDERSTANDING OF THE RULE STATED IN DECISION TO YOU DATED NOVEMBER 13, 1936, 16 COMP. GEN. 487, 489, AS FOLLOWS:

* * * ALL TIME ABSENT AFTER THE LEAVE EARNED WAS EXHAUSTED, INCLUDING ALL SUNDAYS AND HOLIDAYS FALLING WITHIN A PERIOD NOT COVERED BY EARNED LEAVE, IS TO BE CONSIDERED IN COMPUTING THE INDEBTEDNESS. IN OTHER WORDS, THERE IS FOR REIMBURSEMENT FROM THE RETIREMENT FUND THE SAME AMOUNT OF MONEY AS WAS ORIGINALLY CHARGED TO THE APPROPRIATION AS SALARY FOR THE PERIOD WHILE THE FORMER EMPLOYEE WAS ON UNACCRUED LEAVE.

THAT IS TO SAY, THE AMOUNT TO BE DEDUCTED FROM A FORMER EMPLOYEE'S CREDIT IN THE RETIREMENT FUND, BECAUSE OF UNEARNED OR EXCESS ANNUAL OR SICK LEAVE OR BOTH, IS FOR COMPUTING UPON THE SAME BASIS AS THAT USED IN CONNECTION WITH AUTHORIZED LEAVE WITHOUT PAY--- THE LATTER SITUATION NOT BEING ONE WHICH IS COVERED IN EITHER THE UNIFORM ANNUAL, OR SICK LEAVE, REGULATIONS.

IN DECISION OF SEPTEMBER 29, 1931, 11 COMP. GEN. 119, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

TIME ON SATURDAY IN EXCESS OF FOUR HOURS HAS A HOLIDAY STATUS AND SHOULD BE EXCLUDED FROM ANNUAL LEAVE WITH PAY AND INCLUDED IN SICK LEAVE AND LEAVE WITHOUT PAY.

ACCORDINGLY, IN THE INSTANT CASE, THE FORMER EMPLOYEE SHOULD BE CHARGED 1 DAY'S PAY INSTEAD OF 4 HOURS' PAY FOR SATURDAY, JUNE 27, 1936, ON WHICH EXCESS ANNUAL LEAVE WAS GRANTED, AND THE DEDUCTION OF 1 DAY'S PAY FOR SATURDAY, JUNE 6, 1936, ON WHICH EXCESS SICK LEAVE WAS GRANTED IS CORRECT.

IN CONNECTION WITH THE FOREGOING, THE QUESTION HAS BEEN SUGGESTED WHETHER 1 DAY'S PAY SHOULD BE DEDUCTED FOR SUNDAY, JUNE 28, 1936, AND, ALSO, FOR SUNDAY, JUNE 7, 1936, FOLLOWING THE SATURDAY ON WHICH EXCESS ANNUAL AND SICK LEAVE, RESPECTIVELY, WERE GRANTED, BY INVOKING THE PRINCIPLE WHICH IS APPLIED IN THE CASE OF UNAUTHORIZED LEAVE WITHOUT PAY AND LEAVE WITHOUT PAY FOR AN INDEFINITE PERIOD.

IN DECISION OF FEBRUARY 10, 1930, 9 COMP. GEN. 350, 351, IT WAS HELD:

AN EMPLOYEE WHO HAS BEEN GRANTED LEAVE WITHOUT PAY FOR A DEFINITE PERIOD MAY BE PRESUMED TO HOLD HIMSELF IN READINESS TO PERFORM SERVICE, IF REQUIRED, AFTER THE TERMINATION OF THE AUTHORIZED LEAVE WITHOUT PAY. * *

IN DECISION OF JANUARY 24, 1934, 13 COMP. GEN. 206, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

EMPLOYEES ABSENT ON LEAVE WITHOUT PAY FOR A DEFINITE PERIOD, WHICH HAS BEEN APPLIED FOR IN WRITING AND APPROVED BY THE PROPER ADMINISTRATIVE AUTHORITY, AND WHO REPORT FOR DUTY AT THE BEGINNING OF THE DUTY DAY NEXT FOLLOWING THE EXPIRATION OF SUCH DEFINITE PERIOD, ARE ENTITLED TO COMPENSATION FOR THE SUNDAYS AND HOLIDAYS OCCURRING BETWEEN THE EXPIRATION OF THE LEAVE GRANTED AND THE DAY OF ACTUAL REPORTING FOR DUTY.

EMPLOYEES ARE NOT ENTITLED TO COMPENSATION FOR SUNDAYS AND HOLIDAYS OCCURRING WITHIN A DEFINITE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY ADMINISTRATIVELY AUTHORIZED IN ADVANCE EVEN THOUGH THE SUNDAY OR HOLIDAY OCCURS ON THE LAST DAY OF THE AUTHORIZED DEFINITE PERIOD OF LEAVE OF ABSENCE WITHOUT PAY AND THE EMPLOYEE REPORTS FOR DUTY AT THE BEGINNING OF THE DUTY DAY NEXT FOLLOWING THE EXPIRATION OF SUCH DEFINITE PERIOD.

SEE, ALSO, 13 COMP. GEN. 207.

IN MAKING DEDUCTIONS FROM AMOUNTS IN THE RETIREMENT FUND TO THE CREDIT OF FORMER EMPLOYEES BECAUSE OF EXCESS ANNUAL LEAVE (W.O.P.) TAKEN ON A SATURDAY, OR A DAY PRECEDING A HOLIDAY, OR FOR PERIODS ENDING ON A SATURDAY OR A DAY PRECEDING A HOLIDAY, IT WILL BE PRESUMED, IN THE ABSENCE OF EVIDENCE INDICATING OTHERWISE, THAT THE LEAVE WAS PROPERLY APPLIED FOR AND GRANTED IN ADVANCE AND NO DEDUCTION OF PAY FOR THE SUCCEEDING SUNDAY OR HOLIDAY WILL BE REQUIRED IF THE EMPLOYEE IS SHOWN TO HAVE BEEN ON DUTY THE FIRST SUCCEEDING WORK DAY. WHILE SICK LEAVE, STRICTLY, IS NOT SUCH LEAVE AS IS APPLIED FOR AND AUTHORIZED IN ADVANCE, THE PRINCIPLE JUST STATED IN REGARD TO EXCESS ANNUAL LEAVE (W.O.P.) MAY BE APPLIED, ALSO, TO EXCESS SICK LEAVE. IN THE INSTANT CASE, THEREFORE, NO DEDUCTION IS REQUIRED FOR SUNDAY, JUNE 28, 1936, IN RESPECT OF EXCESS ANNUAL LEAVE (W.O.P.), AND SUNDAY, JUNE 7, 1936, IN RESPECT OF EXCESS SICK LEAVE.

ACCORDINGLY, IN THE INSTANT CASE THE PROPER DEDUCTION IS FOR 8 DAYS, 6 HOURS AND 15 MINUTES EXCESS ANNUAL LEAVE AND 5 DAYS EXCESS SICK LEAVE AND THE AUDIT WILL BE MADE ON THAT BASIS.