A-88782, SEPTEMBER 20, 1937, 17 COMP. GEN. 271

A-88782: Sep 20, 1937

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

DURING WHICH THE EMPLOYEE IS IN NEITHER A DUTY NOR LEAVE STATUS. IS A BREAK IN SERVICE WITHIN THE PROVISIONS OF THE LEAVE REGULATIONS AUTHORIZING TRANSFERS OF LEAVE CREDITS ONLY UPON TRANSFERS OR REAPPOINTMENTS "WITHOUT BREAK IN SERVICE. - OF SUCH INTERVAL MAY HAVE BEEN SPENT IN TRAVELING FROM THE OLD PLACE OF EMPLOYMENT TO THE NEW PLACE OF EMPLOYMENT. 16 COMP. IS AS FOLLOWS: MISS FRIEDA H. ONE OF WHICH WAS A SUNDAY. WHEN MISS HESPE RESIGNED HER POSITION WITH THE RESETTLEMENT ADMINISTRATION SHE HAD ACCRUED LEAVE TO HER CREDIT AND THE QUESTION PRESENTED IS WHETHER SHE MAY BE CREDITED WITH THIS LEAVE IN HER PRESENT POSITION. ATTENTION IS INVITED TO 16 COMP. WHICH APPEARS TO INDICATE THAT IN A SITUATION SUCH AS THE PRESENT THERE IS NO "BREAK IN SERVICE" WITHIN THE MEANING OF THE LEAVE REGULATIONS.

A-88782, SEPTEMBER 20, 1937, 17 COMP. GEN. 271

LEAVES OF ABSENCE - ACT, MARCH 14, 1936 - TRANSFERS - "BREAK IN SERVICE" A THREE-DAY INTERVAL--- FRIDAY, SATURDAY, AND SUNDAY--- BETWEEN RESIGNATION FROM A PERMANENT POSITION IN ONE GOVERNMENT AGENCY AND APPOINTMENT TO A PERMANENT POSITION IN ANOTHER GOVERNMENT AGENCY, DURING WHICH THE EMPLOYEE IS IN NEITHER A DUTY NOR LEAVE STATUS, IS A BREAK IN SERVICE WITHIN THE PROVISIONS OF THE LEAVE REGULATIONS AUTHORIZING TRANSFERS OF LEAVE CREDITS ONLY UPON TRANSFERS OR REAPPOINTMENTS "WITHOUT BREAK IN SERVICE," NOTWITHSTANDING MOST--- OR ALL--- OF SUCH INTERVAL MAY HAVE BEEN SPENT IN TRAVELING FROM THE OLD PLACE OF EMPLOYMENT TO THE NEW PLACE OF EMPLOYMENT. 16 COMP. GEN. 212 DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, SEPTEMBER 20, 1937:

YOUR LETTER OF AUGUST 31, 1937, IS AS FOLLOWS:

MISS FRIEDA H. HESPE RESIGNED HER POSITION AS A PERMANENT EMPLOYEE OF THE RESETTLEMENT ADMINISTRATION IN NEBRASKA EFFECTIVE DECEMBER 10, 1936, AND ENTERED UPON DUTY IN A POSITION WITH THIS BOARD EFFECTIVE DECEMBER 14, 1936. SHE RESIGNED HER FORMER POSITION EXPRESSLY FOR THE PURPOSE OF ACCEPTING THE APPOINTMENT WITH THIS BOARD AND SPENT THE INTERVENING THREE DAYS, ONE OF WHICH WAS A SUNDAY, IN TRAVELING FROM HER FORMER PLACE OF EMPLOYMENT TO BALTIMORE, MARYLAND, HER PLACE OF EMPLOYMENT WITH THE BOARD. WHEN MISS HESPE RESIGNED HER POSITION WITH THE RESETTLEMENT ADMINISTRATION SHE HAD ACCRUED LEAVE TO HER CREDIT AND THE QUESTION PRESENTED IS WHETHER SHE MAY BE CREDITED WITH THIS LEAVE IN HER PRESENT POSITION.

SECTION 5 OF THE ANNUAL LEAVE REGULATIONS (EXECUTIVE ORDER 7409) 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.'

SECTION 8 OF THE SICK LEAVE REGULATIONS (EXECUTIVE ORDER 7410) MAKES LIKE PROVISION IN THE CASE OF SICK LEAVE.

IN CONNECTION WITH THE QUESTION PRESENTED, ATTENTION IS INVITED TO 16 COMP. GEN. 212, WHICH APPEARS TO INDICATE THAT IN A SITUATION SUCH AS THE PRESENT THERE IS NO "BREAK IN SERVICE" WITHIN THE MEANING OF THE LEAVE REGULATIONS.

IN THE DECISION YOU CITE, DATED SEPTEMBER 2, 1936 (16 COMP. GEN. 212), THERE WAS INVOLVED ONLY AN INTERVAL OF SUNDAY, A NONWORK DAY, BETWEEN TERMINATION OF THE SERVICE IN ONE PERMANENT POSITION AND THE BEGINNING OF SERVICE IN ANOTHER, AND IT WAS HELD THERE WAS NO BREAK IN SERVICE WITHIN THE MEANING OF THE QUOTED LEAVE REGULATION. IT IS TO BE NOTED IN THIS CONNECTION THAT ANNUAL LEAVE IS EXCLUSIVE OF SUNDAYS. HENCE, THE ONLY INTERVENING DAY IN THAT CASE COULD NOT HAVE BEEN COVERED BY ANNUAL LEAVE.

IN THE INSTANT CASE THERE WAS AN INTERVAL OF 3 DAYS--- FRIDAY, SATURDAY, AND SUNDAY. THE EMPLOYEE HAD THE RIGHT TO APPLY FOR ANNUAL LEAVE BEFORE THE TERMINATION OF SERVICE IN HER PRIOR POSITION AND TO TENDER HER RESIGNATION EFFECTIVE AT THE EXPIRATION OF HER ACCRUED LEAVE, OR OF SO MUCH THEREOF AS WOULD ENABLE HER TO REPORT FOR DUTY UNDER THE NEW POSITION BUT, APPARENTLY, SHE FAILED TO EXERCISE THAT RIGHT. THE FACT THAT MOST--- OR EVEN ALL--- OF THE INTERVAL BETWEEN THE EFFECTIVE DATE OF THE RESIGNATION FROM THE OLD POSITION AND THE EFFECTIVE DATE OF THE APPOINTMENT IN THE NEW POSITION MAY HAVE BEEN SPENT IN TRAVELING FROM THE OLD PLACE OF EMPLOYMENT TO THE NEW PLACE OF EMPLOYMENT, CANNOT AUTHORIZE HOLDING THAT THE REAPPOINTMENT EFFECTIVE DECEMBER 14, 1936, WAS "WITHOUT BREAK IN SERVICE.'

FROM THE FACTS SET FORTH IN YOUR LETTER IT APPEARS THAT DURING THE PERIOD BETWEEN DECEMBER 10 AND 14, 1936, MISS HESPE WAS NOT IN THE SERVICE OF THE GOVERNMENT EITHER ON A DUTY OR LEAVE STATUS.

ACCORDINGLY, IT MUST BE CONCLUDED THERE WAS A "BREAK IN SERVICE" WITHIN THE MEANING OF THE LEAVE REGULATIONS IN THIS CASE, AND THAT THE LEAVE EARNED BY HER IN THE POSITION UNDER THE RESETTLEMENT ADMINISTRATION MAY NOT BE CREDITED TO HER IN THE POSITION UNDER THE SOCIAL SECURITY BOARD.