A-96859, AUGUST 15, 1938, 18 COMP. GEN. 162

A-96859: Aug 15, 1938

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1936 - ADVANCES DURING YEAR OF RETIREMENT FOR AGE AND SUBSTITUTION OF ADVANCE LEAVE FOR LEAVE WITHOUT PAY PRIOR TO RETIREMENT AN EMPLOYEE WHO IS TO BE RETIRED FOR AGE DURING A CALENDAR YEAR IS NOT ENTITLED. IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO GRANT. PROVIDED THAT NO LEAVE WITH PAY IS GRANTED FOR A PERIOD AFTER THE EFFECTIVE DATE OF RETIREMENT. THERE IS NO AUTHORITY TO SUBSTITUTE. UNEARNED ANNUAL LEAVE TO WHICH THE EMPLOYEE WAS NOT ENTITLED. COULD HAVE ADVANCED TO THE EMPLOYEE PRIOR TO HIS RETIREMENT ANNUAL LEAVE SUFFICIENT TO COVER THE PERIOD OF LEAVE WITHOUT PAY. 16 COMP. IS AS FOLLOWS: ROBERT SNELLING. WHO WAS EMPLOYED AT THE SUPPLY DEPOT. WHO WAS ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29.

A-96859, AUGUST 15, 1938, 18 COMP. GEN. 162

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - ADVANCES DURING YEAR OF RETIREMENT FOR AGE AND SUBSTITUTION OF ADVANCE LEAVE FOR LEAVE WITHOUT PAY PRIOR TO RETIREMENT AN EMPLOYEE WHO IS TO BE RETIRED FOR AGE DURING A CALENDAR YEAR IS NOT ENTITLED, AS A MATTER OF RIGHT, UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND SECTION 2 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, TO 26 DAYS' ANNUAL LEAVE FOR THE YEAR IN WHICH RETIREMENT OCCURS, BUT ONLY TO LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH FROM THE FIRST MONTH OF THE ANNUAL LEAVE YEAR TO THE EFFECTIVE DATE OF RETIREMENT, PLUS A MAXIMUM OF 60 DAYS' UNUSED ANNUAL LEAVE ACCUMULATED IN PRIOR YEARS, BUT, IN VIEW OF SECTION 4 (B) OF THE SAID REGULATIONS, IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO GRANT, IN ADDITION, ALL OR ANY PART OF THE 26 DAYS' ANNUAL LEAVE WHICH WOULD ACCRUE DURING THE ENTIRE CALENDAR YEAR IN WHICH RETIREMENT FOR AGE OCCURS; PROVIDED THAT NO LEAVE WITH PAY IS GRANTED FOR A PERIOD AFTER THE EFFECTIVE DATE OF RETIREMENT. THERE IS NO AUTHORITY TO SUBSTITUTE, AFTER AN EMPLOYEE HAS RETIRED FOR AGE AND LEFT THE SERVICE, UNEARNED ANNUAL LEAVE TO WHICH THE EMPLOYEE WAS NOT ENTITLED, AS A MATTER OF RIGHT, UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, FOR A PERIOD OF LEAVE WITHOUT PAY PRIOR TO RETIREMENT, NOTWITHSTANDING UNDER SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, THE ADMINISTRATIVE OFFICE, IN ITS DISCRETION, COULD HAVE ADVANCED TO THE EMPLOYEE PRIOR TO HIS RETIREMENT ANNUAL LEAVE SUFFICIENT TO COVER THE PERIOD OF LEAVE WITHOUT PAY. 16 COMP. GEN. 818, RELATIVE TO THE SUBSTITUTION OF ANNUAL LEAVE ACCRUED AND UNUSED PRIOR TO SEPARATION, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 15, 1938:

YOUR LETTER OF JULY 27, 1938, IS AS FOLLOWS:

ROBERT SNELLING, LABORER, WHO WAS EMPLOYED AT THE SUPPLY DEPOT, VETERANS' ADMINISTRATION FACILITY, PERRY POINT, MARYLAND, AT A SALARY OF $1,260 PER ANNUM, AND WHO WAS ELIGIBLE FOR RETIREMENT UNDER THE PROVISIONS OF SECTION 1 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, HAVING REACHED THE RETIREMENT AGE OF 65 YEARS ON MARCH 4, 1938, WAS PLACED ON A LEAVE WITHOUT PAY STATUS ON MARCH 10, 1938, AS HE HAD BEEN GRANTED THE MAXIMUM ANNUAL LEAVE PERMISSIBLE UNDER EXECUTIVE ORDER OF JULY 9, 1936.

EXECUTIVE ORDER DATED MARCH 21, 1938, EFFECTIVE JANUARY 1, 1938, SECTION 4 (B), CONTAINS A PROVISION THAT A REFUND IS NOT REQUIRED FOR ANNUAL LEAVE GRANTED IN EXCESS OF THE AMOUNT EARNED IN THE CASE OF AN EMPLOYEE WHO IS RETIRED FOR AGE OR DISABILITY. ACCORDINGLY, UNDER DATE OF APRIL 8, 1938, THE MANAGER OF THE SUPPLY DEPOT, PERRY POINT, WAS ADVISED THAT IT WAS PERMISSIBLE TO CONVERT LEAVE WITHOUT PAY TO ANNUAL LEAVE FOR MR. SNELLING FOR THE PERIOD WHILE CARRIED IN A LEAVE WITHOUT PAY STATUS PRIOR TO THE DATE OF HIS SEPARATION, MARCH 31, 1938, NOT TO EXCEED 26 DAYS FOR THE CURRENT CALENDAR YEAR. THIS ACTION WAS PREDICATED ON 16 COMP. GEN. 818.

UPON RECEIPT OF LETTER DATED APRIL 8, 1938, THE MANAGER, PERRY POINT, MARYLAND, CONVERTED THE LEAVE WITHOUT PAY FOR THE PERIOD MARCH 10 TO MARCH 31, 1938, TO ANNUAL LEAVE. A PAYMENT OF $70.92 WAS THEN MADE TO MR. SNELLING ON VOUCHER NO. 1,612,723 DATED APRIL 27, 1938, ACCOUNT OF G. F. ALLEN, SYMBOL 11-559, FOR 21 DAYS' SALARY, $2.58 HAVING BEEN CREDITED TO THE RETIREMENT AND DISABILITY FUND.

IN VIEW OF SECTION 2 OF THE EXECUTIVE ORDER DATED MARCH 21, 1938, WHICH DEALS WITH THE GRANTING OF ANNUAL LEAVE AS DISTINGUISHED FROM SECTION 4 (B), WHICH REFERS TO REFUNDS NOT BEING REQUIRED FOR INDEBTEDNESS FOR ADVANCED ANNUAL LEAVE AT THE TIME OF SEPARATION IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, ETC., YOUR DECISION IS REQUESTED ON THE PROPRIETY OF THE PAYMENT MADE.

SECTIONS 2 AND 4 OF THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, PROVIDE AS FOLLOWS:

SEC. 2. PERMANENT EMPLOYEES WHO HAVE BEEN EMPLOYED CONTINUOUSLY FOR ONE YEAR OR MORE AND WHO DO NOT CONTEMPLATE LEAVING THE SERVICE DURING THE CURRENT CALENDAR YEAR SHALL BE ENTITLED TO CURRENT ANNUAL LEAVE WITH PAY AT ANY TIME DURING SUCH CALENDAR YEAR NOT IN EXCESS OF 26 DAYS. ADDITION TO CURRENT ANNUAL LEAVE SUCH EMPLOYEES MAY BE GRANTED ACCUMULATED LEAVE NOT TO EXCEED 60 DAYS.

SEC. 4. (A) 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 FROM ANY DEDUCTIONS IN THE RETIREMENT FUND TO THE CREDIT OF THE EMPLOYEE.

(B) IN CASES OF SEPARATIONS WHERE EMPLOYEES ARE INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. ABSENCES FOR FRACTIONAL PARTS OF A DAY WILL BE CHARGED PROPORTIONATELY. 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.

AN EMPLOYEE WHO IS TO LEAVE THE SERVICE ON ACCOUNT OF RETIREMENT FOR AGE DURING A CALENDAR YEAR IS NOT ENTITLED AS A MATTER OF RIGHT UNDER THE PROVISIONS OF SECTION 2 OF THE REGULATIONS TO 26 DAYS' ANNUAL LEAVE FOR THE YEAR IN WHICH RETIREMENT OCCURS, BUT ONLY TO ANNUAL LEAVE AT THE RATE OF 2 1/6 DAYS PER MONTH FROM JANUARY 1 OF THAT YEAR TO THE EFFECTIVE DATE OF RETIREMENT, PLUS A MAXIMUM OF 60 DAYS' UNUSED ANNUAL LEAVE ACCUMULATED IN PRIOR YEARS. SEE SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161.

HOWEVER, SECTION 4 (B) OF THE REGULATIONS APPEARS TO RECOGNIZE THAT AN EMPLOYEE WHO IS TO RETIRE FOR AGE DURING A CALENDAR YEAR MAY HAVE HAD ANNUAL LEAVE ADVANCED TO HIM IN EXCESS OF THE AMOUNT OF ACCUMULATED AND CURRENT ACCRUED LEAVE TO HIS CREDIT AT THE EFFECTIVE DATE OF RETIREMENT. THE CONCLUSION MUST BE, THEREFORE, THAT IT IS WITHIN THE DISCRETION OF AN ADMINISTRATIVE OFFICE TO GRANT AN EMPLOYEE WHO IS TO RETIRE FOR AGE DURING A CALENDAR YEAR NOT ONLY HIS ACCUMULATED AND CURRENT ACCRUED LEAVE BUT, ALSO, ALL OR ANY PART OF THE 26 DAYS' ANNUAL LEAVE WHICH WOULD ACCRUE DURING THE CALENDAR YEAR IN WHICH RETIREMENT FOR AGE OCCURS, PROVIDED, OF COURSE, THAT NO LEAVE WITH PAY IS GRANTED FOR A PERIOD AFTER THE EFFECTIVE DATE OF RETIREMENT.

IN THE CASE PRESENTED, IT IS UNDERSTOOD THE EMPLOYEE HAD EXHAUSTED HIS ACCUMULATED AND CURRENT ACCRUED LEAVE ON MARCH 9, 1938, AND THAT ANNUAL LEAVE WAS NOT ADVANCED TO HIM FOR THE REMAINDER OF THE MONTH OF MARCH WHILE HE WAS STILL IN THE SERVICE. WHILE LEAVE COULD HAVE BEEN ADVANCED TO THE EMPLOYEE FOR THE REMAINDER OF THE MONTH OF MARCH PRIOR TO HIS RETIREMENT IT WAS NOT SO ADVANCED, AND THERE IS NO AUTHORITY TO SUBSTITUTE, AFTER THE EMPLOYEE HAD RETIRED AND LEFT THE SERVICE, UNEARNED ANNUAL LEAVE TO WHICH THE EMPLOYEE WAS NOT ENTITLED AS A MATTER OF RIGHT FOR LEAVE WITHOUT PAY. THE RULE STATED IN DECISION OF MARCH 6, 1937, 16 COMP. GEN. 818, CITED BY YOU, IS LIMITED TO THE SUBSTITUTION OF ANNUAL LEAVE ACCRUED AND UNUSED PRIOR TO SEPARATION. ACCORDINGLY, THE PAYMENT IN THIS CASE OF 21 DAYS' SALARY AS FOR THE PERIOD MARCH 10 TO 31, 1938, WAS IMPROPER AND SHOULD BE RECOVERED.