B-10346, MAY 28, 1940, 19 COMP. GEN. 959

B-10346: May 28, 1940

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REFERENCE IS MADE TO LETTER OF THIS OFFICE DATED FEB. 16. THE QUESTION WHETHER IT IS PERMISSIBLE TO ALLOW RETROACTIVELY THE 30 1/3 DAYS' ANNUAL LEAVE DUE MR. AT THE TIME HE WAS PLACED ON LAY-OFF AT OWN REQUEST ON NOV. 13. IT WAS STATED BY THIS OFFICE THAT. IF SUCH ACTION WAS PERMISSIBLE. IT WAS PROPOSED TO REPORT A CORRECTION OF THE DATE OF THE LAY-OFF OF THIS EMPLOYEE TO THE DATE ON WHICH THE LEAVE ALLOWED RETROACTIVELY WILL EXPIRE. APPROVAL OF THE PROPOSED ACTION WAS GRANTED BY 2D IND. A COPY OF THE AUTHORITY GRANTED IS ENCLOSED. 2. ALL 4 LETTERS OF APPLICATIONS FOR PAYMENT ARE ENCLOSED HEREWITH. 3. THERE ARE FORWARDED HEREWITH TWO PAY-ROLL VOUCHERS. ON WHICH ADJUSTMENTS ARE PROVIDED FOR TO COVER THE ALLOWANCE OF LEAVE RETROACTIVELY IN THESE 4 CASES.

B-10346, MAY 28, 1940, 19 COMP. GEN. 959

LEAVES OF ABSENCE - ANNUAL - SUBSTITUTION FOR LEAVE WITHOUT PAY WHERE AN EMPLOYEE REQUESTED LEAVE WITHOUT PAY "BEGINNING UPON THE EXPIRATION OF ALL ANNUAL LEAVE TO HIS CREDIT" AND THE ADMINISTRATIVE OFFICE ERRED IN COMPUTING HIS ACCRUED ANNUAL LEAVE AT THE TIME OF GRANTING THE LEAVE WITHOUT PAY, THERE MAY BE A RETROACTIVE SUBSTITUTION OF THE ACCRUED UNUSED ANNUAL LEAVE REMAINING DUE FOR AN EQUAL AMOUNT OF LEAVE WITHOUT PAY IN ORDER TO CORRECT THE ADMINISTRATIVE ERROR.

ACTING COMPTROLLER GENERAL ELLIOTT TO LIEUTENANT FERDINAND J. TATE, UNITED STATES ARMY, MAY 28, 1940:

BY 2ND ENDORSEMENT DATED MAY 15, 1940, THE CHIEF OF ENGINEERS FORWARDED HERE FOR CONSIDERATION YOUR LETTER OF APRIL 24, 1940, WITH ENCLOSURES, AS FOLLOWS:

1. REFERENCE IS MADE TO LETTER OF THIS OFFICE DATED FEB. 16, 1940, SUBMITTING, FOR DECISION, THE QUESTION WHETHER IT IS PERMISSIBLE TO ALLOW RETROACTIVELY THE 30 1/3 DAYS' ANNUAL LEAVE DUE MR. ERNEST L. GARNER, TRUCK DRIVER, AT THE TIME HE WAS PLACED ON LAY-OFF AT OWN REQUEST ON NOV. 13, 1939 (1/8 DAY), AND THE 2 1/4 DAYS' LEAVE EARNED ON LEAVE, THIS LEAVE, THROUGH ERROR ON THE PART OF THIS OFFICE, NOT HAVING BEEN ALLOWED HIM PRIOR TO THE EFFECTIVE DATE OF HIS LAY-OFF. IT WAS STATED BY THIS OFFICE THAT, IF SUCH ACTION WAS PERMISSIBLE, IT WAS PROPOSED TO REPORT A CORRECTION OF THE DATE OF THE LAY-OFF OF THIS EMPLOYEE TO THE DATE ON WHICH THE LEAVE ALLOWED RETROACTIVELY WILL EXPIRE. APPROVAL OF THE PROPOSED ACTION WAS GRANTED BY 2D IND., O.C. OF E., DATED FEB. 26, 1940, E.D. 4201 ( GARNER, ERNEST L.) 6, REF. 4 B. A COPY OF THE AUTHORITY GRANTED IS ENCLOSED.

2. IN ADDITION TO THE CASE OF MR. GARNER, THIS OFFICE HAS RECEIVED APPLICATIONS FOR PAYMENT OF LEAVE RETROACTIVELY FROM 3 OTHER EMPLOYEES. ALL 4 LETTERS OF APPLICATIONS FOR PAYMENT ARE ENCLOSED HEREWITH.

3. THERE ARE FORWARDED HEREWITH TWO PAY-ROLL VOUCHERS, ON WHICH ADJUSTMENTS ARE PROVIDED FOR TO COVER THE ALLOWANCE OF LEAVE RETROACTIVELY IN THESE 4 CASES. IT IS REQUESTED THAT THESE PAY-ROLL VOUCHERS BE FORWARDED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT, OR THAT AN ADVANCE DECISION OF THE COMPTROLLER GENERAL BE OBTAINED AS TO WHETHER I AM AUTHORIZED TO MAKE PAYMENT OF THESE VOUCHERS. I AM A DISBURSING OFFICER AND THESE PAY-ROLL VOUCHERS HAVE BEEN PRESENTED TO ME FOR PAYMENT.

THE REFERRED-TO LETTER OF FEBRUARY 16, 1940, IS AS FOLLOWS:

1. MR. ERNEST L. GARNER, TRUCK DRIVER, WAS EMPLOYED IN THIS DISTRICT AT A RATE OF 40 CENTS PER HOUR FROM MAR. 1, 1938, TO APR. 30, 1939. HE WAS PROMOTED TO $1,080 PER ANNUM ON MAY 1, 1939. ON OCT. 24, 1939, HE REQUESTED LAY-OFF AT OWN REQUEST FOR A PERIOD OF ONE YEAR, BEGINNING UPON THE EXPIRATION OF ALL ANNUAL LEAVE TO HIS CREDIT. HE WAS GRANTED 13 1/8 DAYS' ANNUAL LEAVE BEGINNING OCT. 26, 1939, IN ADDITION TO 4/8 DAY PREVIOUSLY ALLOWED, AND LAID OFF AT OWN REQUEST ON NOV. 13, 1939 (1/8 DAY).

2. IN COMPUTING MR. GARNER'S ANNUAL LEAVE, THIS OFFICE THROUGH ERROR CONSIDERED ONLY HIS SERVICE AT A PER ANNUM RATE, BEGINNING MAY 1, 1939, AND DID NOT TAKE INTO ACCOUNT THE 30 1/3 DAYS' ANNUAL LEAVE EARNED BY HIM AT A PER HOUR RATE FROM MAR. 1, 1938, TO APR. 30, 1939, INCLUSIVE.

3. 16 COMP. GEN. 818, CONTINUED IN EFFECT BY 18 COMP. GEN. 162, APPEARS TO PERMIT OF THE RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE FOR A PERIOD OF FURLOUGH WITHOUT PAY. THE LAST PARAGRAPH OF THE COMPTROLLER GENERAL'S DECISION QUOTED IN CIRCULAR LETTER ( FINANCE NO. 106), O.C. OF E., DATED NOV. 17, 1938, ALSO PERMITTED OF RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE TO COVER A PERIOD OF ABSENCE ON FURLOUGH WITHOUT PAY.

4. WHILE 18 COMP. GEN. 94, REFERRED TO IN O. AND R. 1080.4, STATES THAT ANNUAL LEAVE ACCRUED AND UNUSED AT THE TIME A FURLOUGH IS GRANTED MUST BE REGARDED AS FORFEITED, THIS DECISION REFERRED TO A CASE WHERE THE FURLOUGH WAS NECESSARY IN ORDER TO AVOID VIOLATION OF THE DUAL COMPENSATION LAWS.

5. INFORMATION IS REQUESTED AS TO WHETHER IT IS PERMISSIBLE TO ALLOW RETROACTIVELY THE 30 1/3 DAYS' ANNUAL LEAVE DUE MR. GARNER AT THE TIME HE WAS PLACED ON LAY-OFF AT OWN REQUEST AND THE 2 1/4 DAYS' LEAVE EARNED ON LEAVE AND TO REPORT A CORRECTION OF THE DATE OF HIS LAY-OFF AT OWN REQUEST ON FORM 28 ACCORDINGLY.

SECTION 9 OF THE ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

LEAVE WITHOUT PAY SHALL NOT BE GRANTED UNTIL ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE ALLOWABLE UNDER THESE REGULATIONS IS EXHAUSTED, EXCEPT THAT EMPLOYEES INJURED IN LINE OF DUTY MAY TAKE LEAVE WITHOUT PAY, IF DESIRED, COVERING THEIR ABSENCE DUE TO SUCH INJURY INSTEAD OF COVERING SUCH TIME BY ANNUAL LEAVE; AND DURING ABSENCE BECAUSE OF SUCH INJURY AND WHILE BEING PAID BY THE EMPLOYEES' COMPENSATION COMMISSION, EMPLOYEES SHALL CONTINUE TO EARN LEAVE, WHICH SHALL, HOWEVER, BE GRANTED ONLY IN THE EVENT OF THEIR RETURN TO ACTUAL DUTY.

THE LEAVE, OR FURLOUGH, WITHOUT PAY IS REPORTED TO HAVE BEEN REQUESTED BY THE NAMED EMPLOYEE ,FOR A PERIOD OF 1 YEAR, BEGINNING UPON THE EXPIRATION OF ALL ANNUAL LEAVE TO HIS CREDIT.' IT IS UNDERSTOOD THE ADJUSTMENT PROPOSED BY PAYMENT ON THE PAY-ROLL VOUCHER IN FAVOR OF THE NAMED EMPLOYEE AND THE OTHERS IN A SIMILAR STATUS REFERRED TO IN THE SECOND PARAGRAPH OF YOUR LETTER OF APRIL 24, 1940, SUPRA, IS SOLELY FOR THE PURPOSE OF CORRECTING AN ADMINISTRATIVE ERROR IN COMPUTING THE AMOUNT OF THE ACCRUED ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEES AT DATE OF FURLOUGH WITHOUT PAY AND THAT THE ADDITIONAL COMPENSATION PROPOSED TO BE PAID REPRESENTS THE AMOUNT THAT WOULD HAVE BEEN PAID THEM PRIOR TO FURLOUGH WITHOUT PAY HAD THERE NOT BEEN AN ADMINISTRATIVE ERROR IN THE COMPUTATION OF THE LEAVE DUE. IF THESE BE THE FACTS THERE MAY BE A RETROACTIVE SUBSTITUTION OF THE ACCRUED UNUSED ANNUAL LEAVE REMAINING DUE THE EMPLOYEES FOR AN EQUAL AMOUNT OF FURLOUGH WITHOUT PAY IN ORDER TO CORRECT THE ADMINISTRATIVE ERROR--- SUCH ADJUSTMENT RETROACTIVELY EFFECTIVE NOT CONSTITUTING THE GRANTING, AFTER A PERIOD OF FURLOUGH OR LEAVE WITHOUT PAY, OF ANNUAL LEAVE EARNED PRIOR TO SUCH FURLOUGH OR LEAVE WITHOUT PAY WHICH WOULD BE PROHIBITED BY SECTION 9 OF THE ANNUAL LEAVE REGULATIONS, SUPRA, 16 COMP. GEN. 818.

ACCORDINGLY, IF THE FACTS BE AS ABOVE INDICATED, PAYMENT ON THE VOUCHERS, WHICH ARE RETURNED HEREWITH, IS AUTHORIZED IF THE VOUCHERS ARE OTHERWISE CORRECT. HOWEVER, IF THE EMPLOYEES INVOLVED (OTHER THAN GARNER, WHO IS REPORTED TO HAVE REQUESTED FURLOUGH WITHOUT PAY EFFECTIVE UPON EXPIRATION OF ALL ANNUAL LEAVE TO HIS CREDIT) DID NOT REQUEST FURLOUGH OR LEAVE WITHOUT PAY TO BEGIN AT THE TERMINATION OF ALL ANNUAL LEAVE THEN TO THEIR CREDIT, AND THE FURLOUGH WITHOUT PAY WAS NOT TAKEN TO PERFORM MILITARY DUTY OR WHILE RECEIVING DISABILITY COMPENSATION, THE GRANTING OF THE FURLOUGH OR LEAVE WITHOUT PAY HAD THE EFFECT OF FORFEITING ALL ANNUAL LEAVE ACCRUED AT DATE OF THE FURLOUGH, IN WHICH EVENT NO PAYMENT COULD BE AUTHORIZED IN RESPECT OF ANY SUCH CASE. SECTION 9 OF THE ANNUAL LEAVE REGULATIONS. COMPARE THE LAST PARAGRAPH OF DECISION OF APRIL 18, 1940, B- 9236, 19 COMP. GEN. 880.