A-98663, OCTOBER 27, 1938, 18 COMP. GEN. 383

A-98663: Oct 27, 1938

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SHOULD BE COMPUTED IN ACCORDANCE WITH THE LEAVE REGULATIONS IN FORCE WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN. IN DETERMINING WHETHER EMPLOYEES ARE SEPARATED UNDER CONDITIONS WHICH DO OR DO NOT REQUIRE CHARGING THEM FOR SUCH LEAVE. REGARDLESS OF THE TIME WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN. WHERE THE SEPARATIONS ARE ON OR AFTER JANUARY 1. IT IS IMMATERIAL WHETHER SUCH LEAVE WAS TAKEN PRIOR OR SUBSEQUENT TO JANUARY 1. IS AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF MAY 2. READS AS FOLLOWS: "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.

A-98663, OCTOBER 27, 1938, 18 COMP. GEN. 383

LEAVES OF ABSENCE - ACT, MARCH 14, 1936 - ADVANCES AND OVERDRAWN LEAVE CHARGE COMPUTATIONS AND DETERMINATIONS THE AMOUNT TO BE CHARGED EMPLOYEES, SEPARATED FROM THE SERVICE UNDER CONDITIONS WHICH REQUIRE CHARGING THEM WITH EXCESS OR OVERDRAWN LEAVE, SHOULD BE COMPUTED IN ACCORDANCE WITH THE LEAVE REGULATIONS IN FORCE WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN, BUT, IN DETERMINING WHETHER EMPLOYEES ARE SEPARATED UNDER CONDITIONS WHICH DO OR DO NOT REQUIRE CHARGING THEM FOR SUCH LEAVE, THE REGULATIONS IN FORCE AT THE DATE OF SEPARATION FROM SERVICE MUST GOVERN, REGARDLESS OF THE TIME WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN, AND WHERE THE SEPARATIONS ARE ON OR AFTER JANUARY 1, 1938, AND OF SUCH TYPE AS TO RELIEVE THE EMPLOYEES FROM MAKING REFUND FOR OVERDRAWN OR EXCESS ANNUAL LEAVE UNDER THE PROVISIONS OF THE UNIFORM ANNUAL LEAVE REGULATIONS EFFECTIVE ON THAT DATE, IT IS IMMATERIAL WHETHER SUCH LEAVE WAS TAKEN PRIOR OR SUBSEQUENT TO JANUARY 1, 1938.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 27, 1938:

YOUR LETTER OF OCTOBER 8, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF MAY 2, 1938, (A-93516), INVOLVING THE CASE OF A FORMER EMPLOYEE SEPARATED FROM THE SERVICE, OCTOBER 14, 1937, WHICH HELD THAT THE REGULATIONS IN EFFECT AT TIME OF TAKING ADVANCED ANNUAL LEAVE GOVERN THE METHOD OF COMPUTING THE OVERPAYMENT TO BE COLLECTED.

SECTION 4 (B) OF EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, READS AS FOLLOWS:

"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.'

THIS ORDER WAS EFFECTIVE JANUARY 1, 1938 AND, UNDER THE ORDINARY RULES OF CONSTRUCTION, SHOULD HAVE THE EFFECT OF RELIEVING AN EMPLOYEE SEPARATED AFTER THAT DATE BY DEATH, REDUCTION OF FORCE, RETIREMENT FOR AGE OR DISABILITY, OR WHO PRESENTS TO THE DEPARTMENT INVOLVED A SATISFACTORY MEDICAL CERTIFICATE SHOWING HIS INABILITY TO RETURN TO DUTY BECAUSE OF DISABILITY, FROM ANY CHARGE FOR ADVANCED ANNUAL LEAVE WHETHER SUCH LEAVE WAS TAKEN IN 1938 OR PRIOR THERETO. THE COMMISSION HAS, HOWEVER, RECEIVED SEVERAL CLAIMS FOR REIMBURSEMENT FROM THE RETIRMENT FUND, COVERING ANNUAL LEAVE TAKEN IN 1937, AGAINST EMPLOYEES SEPARATED IN 1938 UNDER ONE OF THE CONDITIONS SPECIFIED IN THE ABOVE SECTION. CONDITIONS SPECIFIED IN THE ABOVE SECTION.

YOUR DECISION AS TO WHETHER SUCH CLAIMS ARE PROPER IS RESPECTFULLY REQUESTED.

THE DECISION OF MAY 2, 1938, 17 COMP. GEN. 895, CITED BY YOU, RELATES ONLY TO CASES OF EMPLOYEES SEPARATED UNDER CONDITIONS WHICH REQUIRE CHARGING THEM WITH EXCESS OR OVERDRAWN LEAVE. THAT IS, IN SUCH CASES THE AMOUNT TO BE CHARGED IS TO BE COMPUTED IN ACCORDANCE WITH THE LEAVE REGULATIONS IN FORCE WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN.

HOWEVER, IN DETERMINING WHETHER EMPLOYEES ARE SEPARATED UNDER CONDITIONS WHICH DO OR DO NOT REQUIRE CHARGING THEM WITH EXCESS OR OVERDRAWN LEAVE, THE REGULATIONS IN FORCE AT THE DATE OF SEPARATION FROM THE SERVICE MUST GOVERN, REGARDLESS OF THE TIME WHEN THE EXCESS OR OVERDRAWN LEAVE WAS TAKEN. SEE 18 COMP. GEN. 13, 16, WHEREIN IT WAS STATED AS FOLLOWS:

THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS ARE FOR APPLICATION ONLY UPON THE FINAL SEPARATION OF AN EMPLOYEE FROM THE SERVICE. AT THAT TIME THERE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED TO THE EMPLOYEE WHETHER ADVANCED IN ONE OR MORE PERIODS.

ACCORDINGLY, IF IT IS PROPERLY DETERMINED THAT AN EMPLOYEE IS SEPARATED ON AND AFTER JANUARY 1, 1938, UNDER THOSE CONDITIONS SPECIFIED IN SECTION 4 (B) OF EXECUTIVE ORDER NO. 7845, DATED MARCH 21, 1938, EFFECTIVE JANUARY 1, 1938, QUOTED IN YOUR LETTER, WHICH RELIEVE AN EMPLOYEE FROM MAKING REFUND FOR OVERDRAWN OR EXCESS ANNUAL LEAVE, IT IS IMMATERIAL WHETHER SUCH LEAVE WAS TAKEN PRIOR OR SUBSEQUENT TO JANUARY 1, 1938.