B-108880, MAY 8, 1952, 31 COMP. GEN. 581

B-108880: May 8, 1952

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LEAVES OF ABSENCE - ANNUAL AND SICK LEAVE ACT OF 1951 WHILE THE TERM "LEAVE YEAR" IS NOT MENTIONED IN THE ANNUAL AND SICK LEAVE ACT OF 1951. FOR THE PURPOSE OF DETERMINING MAXIMUM ACCUMULATIONS AND EFFECTING ADJUSTMENTS AS PREVIOUSLY WERE REQUIRED TO BE MADE AT THE END OF A CALENDAR YEAR AND ALSO FOR THE ADVANCEMENT OF LEAVE AGAINST SUBSEQUENT ACCRUALS. ANNUAL LEAVE WHICH WILL ACCRUE TO AN EMPLOYEE DURING THE 26 DAY PERIODS OF A LEAVE YEAR MAY BE CREDITED TO HIM ON THE FIRST DAY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD OF THE CALENDAR YEAR AND ALL LEAVE WITHOUT PAY OR ALL OVERDRAWN ANNUAL LEAVE IS TO BE ADJUSTED AT THE END OF THE LEAVE YEAR RATHER THAN AT THE END OF THE CALENDAR YEAR.

B-108880, MAY 8, 1952, 31 COMP. GEN. 581

LEAVES OF ABSENCE - ANNUAL AND SICK LEAVE ACT OF 1951 WHILE THE TERM "LEAVE YEAR" IS NOT MENTIONED IN THE ANNUAL AND SICK LEAVE ACT OF 1951, SECTION 203 OF THE ACT LIMITS ANNUAL LEAVE ACCUMULATIONS AS OF THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD, AND THEREFORE, THE ACT IN EFFECT ESTABLISHES A "LEAVE YEAR," BEGINNING ON THE FIRST DAY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN ANY CALENDAR YEAR AND ENDING ON THE LAST DAY OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE FOLLOWING CALENDAR YEAR, FOR THE PURPOSE OF DETERMINING MAXIMUM ACCUMULATIONS AND EFFECTING ADJUSTMENTS AS PREVIOUSLY WERE REQUIRED TO BE MADE AT THE END OF A CALENDAR YEAR AND ALSO FOR THE ADVANCEMENT OF LEAVE AGAINST SUBSEQUENT ACCRUALS. UNDER SECTION 203 (H) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, WHICH AUTHORIZES THE GRANTING AT ANY TIME DURING A YEAR OF LEAVE ACCRUING DURING THAT YEAR, ANNUAL LEAVE WHICH WILL ACCRUE TO AN EMPLOYEE DURING THE 26 DAY PERIODS OF A LEAVE YEAR MAY BE CREDITED TO HIM ON THE FIRST DAY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD OF THE CALENDAR YEAR AND ALL LEAVE WITHOUT PAY OR ALL OVERDRAWN ANNUAL LEAVE IS TO BE ADJUSTED AT THE END OF THE LEAVE YEAR RATHER THAN AT THE END OF THE CALENDAR YEAR. IN VIEW OF THE PROVISIONS IN SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, THAT AN EMPLOYEE SHALL NOT BE ENTITLED TO ANNUAL LEAVE UNTIL AFTER HE HAS COMPLETED 90 DAYS OF CONTINUOUS EMPLOYMENT, ANNUAL LEAVE WHICH IS CREDITED TO AN EMPLOYEE AT THE END OF A 90-DAY QUALIFYING PERIOD MAY NOT BE SUBSTITUTED FOR LEAVE WITHOUT PAY GRANTED DURING SAID PERIOD. THE TERM "REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK" AS USED IN SECTION 202 (B) (1) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, CONTEMPLATES A DEFINITE AND CERTAIN TIME, DAY OR HOUR OF ANY DAY, DURING THE WORKWEEK WHEN THE EMPLOYEE REGULARLY WILL BE REQUIRED TO PERFORM DUTY, SO THAT A PART-TIME EMPLOYEE MAY NOT EARN LEAVE UNLESS THERE IS ESTABLISHED IN ADVANCE A SPECIFIC TIME DURING AN ADMINISTRATIVE WORKWEEK WHEN HE REGULARLY IS REQUIRED TO PERFORM DUTY. THE 90-DAY QUALIFYING PERIOD REQUIRED FOR EMPLOYEES TO EARN ANNUAL LEAVE UNDER SECTION 202 (B) (1) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 RELATES TO EMPLOYMENT RATHER THAN TO SERVICES, SO THAT THE DAYS OUTSIDE THE ESTABLISHED REGULAR TOUR OF DUTY ON WHICH "WHEN ACTUALLY EMPLOYED" OR ,PART TIME" EMPLOYEES PERFORM NO DUTY ARE TO BE REGARDED AS NONWORKDAYS, AND THEREFORE, BOTH CLASSES OF EMPLOYEES MEET THE CONDITIONS UPON THE COMPLETION OF 90 DAYS CONTINUOUS EMPLOYMENT ON A REGULAR TOUR OF DUTY PROVIDED THERE HAS NOT BEEN A BREAK IN SERVICE OF ONE OR MORE WORKDAYS DURING THE QUALIFYING PERIOD. AN EMPLOYEE WHO IS ON THE ROLLS OF AN AGENCY ON JANUARY 6, 1952, THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE ACT OF 1951, MAY ACCRUE LEAVE ON LEAVE DURING A TERMINAL LEAVE PERIOD, EVEN THOUGH THERE IS NO RETURN TO DUTY. 24 COMP. GEN. 511, MODIFIED. WHILE SECTION 30.204 OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDES THAT WHENEVER A FULL-TIME EMPLOYEE'S ABSENCE IN A NONPAY STATUS TOTALS THE EQUIVALENT OF THE BASE PAY HOURS IN ANY ONE PAY PERIOD THE CREDITS FOR LEAVE SHALL BE REDUCED IN THE AMOUNT AS EARNED IN A PAY PERIOD, AN EMPLOYEE CANNOT EARN LEAVE FOR FRACTIONAL PAY PERIODS AT THE BEGINNING OR ENDING OF EMPLOYMENT, AND THEREFORE, LEAVE WITHOUT PAY TAKEN DURING SUCH FRACTIONAL PERIODS IS TO BE DISREGARDED FOR THE PURPOSES OF SAID SECTION. UNDER SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDING THAT AN EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF 90 DAYS WITHOUT A BREAK IN SERVICE, AN EMPLOYEE WHO LEAVES THE FEDERAL SERVICE TO ENTER THE ARMED SERVICES AND WHO DOES NOT HAVE STATUTORY OR REGULATORY RESTORATION RIGHTS, IS TO BE REGARDED AS HAVING HAD A BREAK IN SERVICE, AND THEREFORE, UPON RESTORATION TO HIS CIVILIAN POSITION, WILL BE REQUIRED TO SERVE A NEW QUALIFYING PERIOD OF 90 DAYS TO BE ENTITLED TO ANNUAL LEAVE. ANNUAL LEAVE RECREDITED TO AN EMPLOYEE UNDER SECTION 30.703 OF THE ANNUAL AND SICK LEAVE REGULATIONS DOES NOT FALL WITHIN ANY OF THE SAVING PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AND THEREFORE, ANY PART OF SUCH LEAVE WHICH CAUSES THE TOTAL ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE TO EXCEED 60 DAYS AT THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN ANY YEAR WILL BE FORFEITED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MAY 8, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 31, 1952, REQUESTING A DECISION UPON SEVERAL QUESTIONS WHICH HAVE ARISEN WITH RESPECT TO THE INTERPRETATION TO BE PLACED UPON CERTAIN PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT/OF 1951 ( PUBLIC LAW 233) AND THE REGULATIONS ISSUED BY YOUR COMMISSION PURSUANT THERETO.

THE QUESTIONS WILL BE QUOTED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION 1

"1. (A) IN QUESTION 9 OF YOUR DECISION, B-106704, DECEMBER 14, 1951, IN ANSWER TO A QUESTION CONCERNING THE ACCRUALS OF LEAVE FOR A YEAR UNDER SECTION 203 (H) OF PUBLIC LAW 233, REFERENCE WAS MADE PARENTHETICALLY TO A "LEAVE YEAR.' THE PRESENT QUESTION IS DIRECTED TO THAT REFERENCE. IS IT YOUR OPINION THAT THE 1951 LEAVE ACT ESTABLISHED A LEAVE YEAR? IF SO, INASMUCH AS LEAVE FORFEITURES IN THE PAST HAVE OCCURRED AT THE END OF THE LEAVE YEAR AND SUBSECTION 203 (C) OF THE NEW ACT PROVIDES FOR LIMITATION ON ANNUAL LEAVE ACCUMULATIONS AS OF THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD OCCURRING IN ANY YEAR, WOULD IT BE CORRECT TO STATE SUCH LEAVE YEAR COMMENCES ON THE FIRST DAY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN ANY CALENDAR YEAR AND ENDS ON THE LAST DAY OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE FOLLOWING CALENDAR YEAR?

"/B). SHOULD ALL LEAVE WITHOUT PAY WHICH DOES NOT TOTAL THE EQUIVALENT OF THE BASE HOURS IN ANY PERIOD REMAINING AT THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR YEAR BE DROPPED AT THAT POINT? UNDER THE 1936 LEAVE ACTS THE PRACTICE WAS TO DROP SUCH LEAVE WITHOUT PAY AT THE END OF THE CALENDAR YEAR SINCE EACH CALENDAR YEAR WAS CONSIDERED A SEPARATE UNIT FOR LEAVE PURPOSES AS REFLECTED IN YOUR DECISIONS CITED BELOW.

"/C) SHOULD OVERDRAWN ANNUAL LEAVE AT THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR YEAR BE LIQUIDATED AS HERETOFORE OR SHOULD IT BE LIQUIDATED AGAINST FUTURE ANNUAL LEAVE EARNINGS?

THE TERM,"LEAVE YEAR," WAS USED IN THE DECISION OF DECEMBER 14, 1951 (B- 106704), 31 COMP. GEN. 215, PRIMARILY TO EMPHASIZE THE CONCLUSION REACHED THEREIN IN ANSWER TO QUESTION 9, I.E., THE DS,"SUCH LEAVE AS WILL * * * ACCRUE DURING THE YEAR," AS USED IN SECTION 203 (H) OF THE 1951 LEAVE ACT, 65 STAT. 681, CONTEMPLATES LEAVE THAT WOULD ACCRUE DURING 26 PAY PERIODS. HOWEVER, SINCE SECTION 203 OF THE NEW LEAVE ACT LIMITS ANNUAL LEAVE ACCUMULATIONS AS OF THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD OCCURRING IN ANY YEAR, IT APPEARS THAT THE SAID ACT, IN EFFECT, HAS ESTABLISHED A "LEAVE YEAR" FOR CERTAIN PURPOSES, NAMELY, THE DETERMINATION OF MAXIMUM ACCUMULATIONS AND THE EFFECTING OF SUCH ADJUSTMENTS AS PREVIOUSLY WERE REQUIRED TO BE MADE AT THE END OF THE CALENDAR YEAR, AS WELL AS THE ADVANCEMENT OF LEAVE AGAINST SUBSEQUENT ACCRUALS. FOR SUCH PURPOSES, THE LEAVE YEAR, AS SUGGESTED IN YOUR LETTER, SHALL BE CONSIDERED AS BEGINNING ON THE FIRST DAY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN ANY CALENDAR YEAR AND ENDING ON THE LAST DAY OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE FOLLOWING CALENDAR YEAR.

FROM THE FOREGOING, IT FOLLOWS THAT UNDER THE PROVISIONS OF SECTION 203 (H) OF THE NEW ACT, ANNUAL LEAVE WHICH WILL ACCRUE TO AN EMPLOYEE DURING 26 PAY PERIODS MAY BE CREDITED TO HIM AT THE BEGINNING OF THE LEAVE YEAR AS DEFINED ABOVE. THE RULE STATED IN ANSWER TO QUESTION 9 IN THE SAID DECISION OF DECEMBER 14, 1951, IS AMPLIFIED ACCORDINGLY.

UNDER THE RULE STATED HEREIN, EACH LEAVE YEAR RATHER THAN CALENDAR YEAR NOW IS TO BE CONSIDERED A SEPARATE UNIT FOR THE PURPOSE OF EFFECTING THE ADJUSTMENTS REFERRED TO IN QUESTION 1 (B) AND 1 (C). THUS, ALL LEAVE WITHOUT PAY WHICH AT THE END OF THE LEAVE YEAR DOES NOT TOTAL A SUFFICIENT NUMBER OF HOURS TO REQUIRE REDUCTIONS OF LEAVE CREDITS SHOULD BE DROPPED AT THAT TIME. SIMILARLY, ALL OVERDRAWN ANNUAL LEAVE SHOULD BE LIQUIDATED AT THE END OF THE LEAVE YEAR RATHER THAN AT THE END OF THE CALENDAR YEAR AS WAS THE CASE UNDER THE REGULATIONS HERETOFORE IN EFFECT.

QUESTION 2

"2. AS YOU KNOW, SUBSECTION 203 (I) OF THE ACT PROVIDES "/A) AN OFFICER OR EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE UNDER THIS TITLE ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT BREAK IN SERVICE. IN ANY CASE IN WHICH AN OFFICER OR EMPLOYEE COMPLETES A PERIOD OF CONTINUOUS EMPLOYMENT OF NINETY DAYS THERE SHALL BE CREDITED TO HIM AN AMOUNT OF ANNUAL LEAVE EQUAL TO THE AMOUNT WHICH, BUT FOR THIS SUBSECTION, WOULD HAVE ACCRUED TO HIM UNDER SUBSECTION (A) DURING SUCH PERIOD.'

"MAY AN AGENCY SUBSTITUTE ANNUAL LEAVE SO EARNED FOR LEAVE WITHOUT PAY WHICH OCCURRED DURING THE NINETY DAY QUALIFYING PERIOD, UPON CREDITING OF SUCH ANNUAL LEAVE AT THE END OF THE NINETY DAY PERIOD?

SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, PROVIDES THAT AN EMPLOYEE SHALL NOT BE ENTITLED TO ANNUAL LEAVE UNTIL AFTER HE SHALL HAVE COMPLETED 90 DAYS OF CONTINUOUS EMPLOYMENT. THUS, THE SAID SECTION REASONABLY MUST BE REGARDED NOT ONLY AS SUSPENDING THE RIGHT TO ACCRUE ANNUAL LEAVE DURING THE 90-DAY PERIOD BUT ALSO AS PROHIBITING THE GRANTING OR USE OF ANNUAL LEAVE DURING SUCH PERIOD AS AND ADVANCE AGAINST SUBSEQUENT ACCRUALS. OTHERWISE, THE PROVISION WOULD BE RENDERED INEFFECTIVE AND THE PURPOSE SOUGHT TO BE ACCOMPLISHED THEREBY WOULD BE DEFEATED. ACCORDINGLY, AND SINCE THE SUBSTITUTION OF ANNUAL LEAVE FOR LEAVE WITHOUT PAY GRANTED DURING THE 90-DAY PERIOD WOULD HAVE THE SAME EFFECT AS AN ADVANCEMENT OF LEAVE, A NEGATIVE ANSWER IS REQUIRED TO QUESTION NO. 2.

QUESTION 3

"3. PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT) EARN LEAVE ON A PRO RATA BASIS PROVIDED THEY HAVE A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK SCHEDULED IN ADVANCE. IT HAS BEEN ASSUMED BY THIS OFFICE THE REGULAR TOUR REQUIRED CONTEMPLATED THAT AN OFFICER OR EMPLOYEE WOULD PERFORM DUTY OF AT LEAST ONE HOUR DURING A STATED HOUR ON A GIVEN DAY DURING EACH ADMINISTRATIVE WORKWEEK IN ORDER TO QUALIFY FOR LEAVE AS A PART-TIME EMPLOYEE. THE QUESTION NOW HAS BEEN RAISED WHETHER AN EMPLOYEE WHO IS SCHEDULED IN ADVANCE TO WORK A FIXED NUMBER OF HOURS DURING EACH ADMINISTRATIVE WORKWEEK WITHOUT REGARD TO THE HOUR OR DAY MAY BE CONSIDERED AS HAVING A REGULAR TOUR OF DUTY SCHEDULED IN ADVANCE FOR LEAVE PURPOSES. IT HAS BEEN POINTED OUT AS AN EXAMPLE THAT ONE EMPLOYEE WHO IS SCHEDULED IN ADVANCE TO WORK EIGHT HOURS EACH MONDAY WOULD EARN LEAVE. THE OTHER HAND, UNDER PRESENT INTERPRETATION AN EMPLOYEE, WHO ALTHOUGH HE KNEW IN ADVANCE THAT HE WOULD WORK EIGHT HOURS EACH ADMINISTRATIVE WORKWEEK, WOULD NOT BE ABLE TO EARN LEAVE SINCE HE HAD NO FIXED HOUR OR DAY ON WHICH TO PERFORM SUCH DUTY.'

UNLESS THERE BE ESTABLISHED IN ADVANCE A SPECIFIC TIME DURING AN ADMINISTRATIVE WORKWEEK WHEN AN EMPLOYEE IS REGULARLY REQUIRED TO PERFORM DUTY, THERE WOULD BE NO REASONABLE BASIS UPON WHICH LEAVE COULD BE GRANTED ADMINISTRATIVELY FOR ANY PARTICULAR DAY OR HOUR DURING SUCH WORKWEEK. THEREFORE, FOR THE PURPOSE OF DETERMINING THE RIGHT OF A PART-TIME EMPLOYEE TO EARN LEAVE, IT IS CONCLUDED THAT THE TERM,"REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK," AS USED IN SECTION 202 (B) (1) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, CONTEMPLATES A DEFINITE AND CERTAIN TIME, DAY AND/OR HOUR OF ANY DAY, DURING THE WORKWEEK WHEN THE EMPLOYEE REGULARLY WILL BE REQUIRED TO PERFORM DUTY. QUESTION 3 IS ANSWERED ACCORDINGLY.

QUESTION 4

"4. CONCERNING THE NINETY DAY QUALIFYING PERIOD FOR ANNUAL LEAVE WITH RESPECT TO W.A.E. EMPLOYEES, A QUESTION HAS ARISEN AS TO WHEN SUCH AN EMPLOYEE MEETS THAT CONDITION.

"FOR EXAMPLE: ARE THE NONDUTY PERIODS OF A W.A.E. EMPLOYEE TO BE CONSIDERED IN THE SAME LIGHT AS LEAVE WITHOUT PAY OF OTHER EMPLOYEES? CONSIDERED AS LEAVE WITHOUT PAY, IN VIEW OF YOUR DECISION OF DECEMBER 14, 1951 "THAT LEAVE WITHOUT PAY WOULD NOT BE A "BREAK IN SERVICE" EITHER DURING THE QUALIFYING 90-DAY PERIOD OR AT ANY OTHER TIME IS CORRECT," SUCH NONDUTY PERIODS WOULD COUNT TOWARD THE 90-DAY QUALIFYING PERIOD. HOWEVER, IF SUCH NONDUTY PERIODS ARE TO BE CONSIDERED OTHERWISE, THE QUESTION THEN ARISES AS TO JUST WHEN A W.A.E. EMPLOYEE COMPLETES THE 90-DAY PERIOD. MUST HE HAVE A REGULAR TOUR OF DUTY SCHEDULED IN ADVANCE COVERING 90 CALENDAR DAYS OR MORE, OR MAY ALL DUTY PERIODS BE ADDED TOGETHER UNTIL THEY TOTAL 90 DAYS? IT IS UNDERSTOOD, OF COURSE, IN THE LATTER CASE EMPLOYEES WOULD BE ENTITLED TO RETROACTIVE LEAVE EARNINGS FOR ALL PERIODS OF DUTY WHICH HAD BEEN SCHEDULED IN ADVANCE WITHIN EACH ADMINISTRATIVE WORKWEEK AND WHICH LASTED AT LEAST ONE PAY PERIOD.'

IN THE REFERRED-TO DECISION OF DECEMBER 14, 1951, COVERING QUESTION AND ANSWER 1, IT WAS HELD THAT THE PROVISIONS OF SECTION 202 (B) (1) (B) OF THE NEW LEAVE ACT ( PUBLIC LAW 233) WITH RESPECT TO PART-TIME EMPLOYEES APPLIES WITH EQUAL FORCE TO "WHEN ACTUALLY EMPLOYED" EMPLOYEES FOR WHOM THERE HAS BEEN ESTABLISHED IN ADVANCE A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK. SEE QUESTION AND ANSWER 3, SUPRA. HENCE, THERE APPEARS TO BE NO BASIS FOR DISTINCTION BETWEEN THESE TWO CLASSES OF EMPLOYEES WITH RESPECT TO THE APPLICATION OF OTHER PROVISIONS OF THE LEAVE LAW AND REGULATIONS. ACCORDINGLY, THE DAYS OUTSIDE THE ESTABLISHED REGULAR TOUR OF DUTY ON WHICH A ,WHEN ACTUALLY EMPLOYED" OR A PART-TIME EMPLOYEE PERFORMS NO DUTY PROPERLY ARE TO BE REGARDED AS REGULAR NONWORKDAYS. THEREFORE, SINCE THE 90-DAY QUALIFYING PERIOD RELATES TO EMPLOYMENT RATHER THAN TO SERVICES BOTH CLASSES OF EMPLOYEES WILL HAVE MET THE CONDITION AT THE END OF 90 DAYS' CONTINUOUS EMPLOYMENT ON SUCH REGULAR TOUR OF DUTY; PROVIDED, OF COURSE, THERE HAS NOT BEEN A BREAK IN SERVICE OF ONE OR MORE WORKDAYS DURING THE SAID QUALIFYING PERIOD (SEE QUESTION AND ANSWER 6 (C) OF B 106704, SUPRA). IN OTHER WORDS, IF SUCH AN EMPLOYEE FAILS TO PERFORM SERVICES ON ANY SCHEDULED WORKDAY, SUCH ABSENCE WOULD NOT BE REGARDED AS A "BREAK IN SERVICE" OF THE 90-DAY PERIOD. QUESTION 4 IS ANSWERED ACCORDINGLY.

QUESTION 5

"5. (A). THIS QUESTION INVOLVES SECTION 30.203 OF THE LEAVE REGULATIONS CONCERNING LEAVE ON LEAVE. THE INTENT OF THIS REGULATION AS IS REFLECTED IN THE LANGUAGE THEREOF WAS TO ENTITLED AN EMPLOYEE TO LEAVE ON LEAVE WHILE IN A PAY STATUS.

"THIS OFFICE HAS ASSUMED ANY EMPLOYEE ON THE ROLLS IN A PAY STATUS ON JANUARY 6, 1952, WAS ENTITLED TO LEAVE ON LEAVE WHILE IN A PAY STATUS WITHOUT RETURN TO DUTY (WHERE IT WAS NOT KNOWN IN ADVANCE THAT AN EMPLOYEE WOULD RESIGN, 24 COMP. GEN. 511), INASMUCH AS THE REGULATIONS NO LONGER REQUIRE A RETURN TO DUTY FOR THIS PURPOSE. A QUESTION ARISES, HOWEVER, WITH RESPECT TO AN INDIVIDUAL WHO WAS NOT IN A PAY STATUS ON JANUARY 6, 1952, WHO, HOWEVER, HAD BEEN CARRIED ON EXTENDED LEAVE UNTIL HIS LEAVE WAS EXHAUSTED AND WAS THEN CARRIED IN A LEAVE WITHOUT PAY STATUS, AND WAS CONTINUED IN A LEAVE WITHOUT PAY STATUS THROUGH JANUARY 6, 1952, AT WHICH TIME THE NEW LEAVE ACT AND REGULATIONS THEREUNDER WENT INTO EFFECT. HAS BEEN ASSUMED LEAVE ON LEAVE WOULD BE PROPER IN THIS CASE AS WELL AS WHERE HE WAS IN PAY STATUS ON JANUARY 6, 1952, UNDER THE NEW LEAVE REGULATIONS. HOWEVER, SINCE THE LATTER QUESTION HAS BEEN PUT TO THIS OFFICE SEVERAL TIMES YOUR DECISION THEREON IS REQUESTED.

"/B) THIS QUESTION INVOLVES TERMINAL ANNUAL LEAVE RELATED TO THE LEAVE ON LEAVE QUESTION. SINCE AN INDIVIDUAL CANNOT BE SEPARATED IN ADVANCE OF THE EFFECTIVE DATE OF A RESIGNATION, OR IN ADVANCE OF A RETIREMENT DATE, OR SOME OTHER SIMILAR REASON, EXCEPT THROUGH REMOVAL PROCEDURES, WOULD IT NOT BE PROPER FOR AN AGENCY IN THE EXERCISE OF ADMINISTRATIVE DISCRETION AND UNDER ITS AUTHORITY TO PLACE AN EMPLOYEE IN ANNUAL LEAVE STATUS AT SUCH TIMES AS IT DETERMINES IT TO BE DESIRABLE FROM AN ADMINISTRATIVE STANDPOINT, TO PLACE AN EMPLOYEE IN AN ANNUAL LEAVE STATUS EVEN THOUGH SUCH ACTION RESULTS IN TERMINAL ANNUAL LEAVE? ( SEE 16 COMP. GEN. 74, 19 ID. 955, 28 I.D. 526).'

UNDER THE GENERAL RULE THAT A LAW OR REGULATION MAY NOT BE GIVEN RETROACTIVE EFFECT UNLESS SPECIFICALLY AUTHORIZED, THERE APPEARS REQUIRED THE CONCLUSION THAT LEAVE ON LEAVE MAY NOT BE GRANTED IN ANY CASE PRIOR TO JANUARY 6, 1952, THE EFFECTIVE DATE OF THE NEW LEAVE REGULATIONS. HOWEVER, IN VIEW OF THE DOUBTFUL LEGALITY OF THE PREVIOUS REGULATIONS WHICH DENIED THE ACCRUAL OF LEAVE ON LEAVE UNTIL THERE IS A RETURN TO DUTY, NO OBJECTION WILL BE INTERPOSED BY THIS OFFICE TO THE TENTATIVE CONSTRUCTION WHICH YOUR COMMISSION HAS PLACED UPON SECTION 30.203 OF THE NEW REGULATIONS, EITHER AS APPLIED TO EMPLOYEES WHO WERE IN A PAY STATUS ON JANUARY 6 OR THOSE WHO WERE IN A LEAVE WITHOUT PAY STATUS ON THAT DATE- -- IT BEING NECESSARY ONLY THAT THE EMPLOYEE BY ON THE ROLLS ON JANUARY 6, 1952. QUESTION 5 (A) IS ANSWERED ACCORDINGLY. IN ANSWER TO QUESTION 5 (B), THERE APPEARS NO REASONABLE BASIS FOR ANY OTHER CONCLUSION BUT THAT THE PLACING OF AN EMPLOYEE IN AN ANNUAL LEAVE STATUS AT ANY TIME IS A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY. THEREFORE, SINCE IT IS NOT REQUIRED UNDER THE NEW REGULATIONS THAT THERE BE A RETURN TO DUTY BEFORE LEAVE ON LEAVE WILL ACCRUE, NO REASON IS PERCEIVED WHY THAT AUTHORITY MAY NOT BE EXERCISED IN THE DISCRETION OF THE AGENCY EVEN THOUGH IT MAY BE KNOWN IN ADVANCE THAT THE EMPLOYEE WILL BE SEPARATED AT THE TERMINATION OF THE LEAVE SO GRANTED. SO FAR AS THE CONCLUSION HEREIN EXPRESSED IS CONTRARY TO THAT REACHED IN THE DECISION OF JANUARY 11, 1945, 25 COMP. GEN. 511, SAID FORMER DECISION NO LONGER WILL BE FOLLOWED. QUESTION 5 (B) IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 6

"6. SINCE AN EMPLOYEE CANNOT EARN LEAVE FOR FRACTIONAL PAY PERIODS AT THE END OR BEGINNING OF EMPLOYMENT, SHOULD LEAVE WITHOUT PAY TAKEN DURING SUCH INCOMPLETE PAY PERIODS BE DISREGARDED FOR PURPOSES OF SECTION 30.204 OF THE LEAVE REGULATIONS WHICH PROVIDES:

" "NONPAY STATUS. WHENEVER A FULL-TIME EMPLOYEE'S ABSENCE IN A NONPAY STATUS TOTALS THE EQUIVALENT OF THE BASE PAY HOURS IN ONE PAY PERIOD, THE CREDITS FOR LEAVE SHALL BE REDUCED IN THE AMOUNT AS EARNED IN A PAY PERIOD.'"

THE PRIMARY OBJECTIVE INTENDED TO BE ACCOMPLISHED BY SECTION 30.204 OF THE NEW REGULATIONS APPEARS TO BE TO INSURE THAT NO EMPLOYEE WILL EARN LEAVE DURING ANY PERIOD OR PERIODS OF LEAVE WITHOUT PAY WHICH TOTAL THE EQUIVALENT OF THE BASE PAY HOURS IN ONE PAY PERIOD. CLEARLY, THEREFORE, SUCH REGULATION WAS NOT INTENDED TO APPLY WITH RESPECT TO ANY PERIOD DURING WHICH AN EMPLOYEE IS NOT ELIGIBLE TO EARN LEAVE. ACCORDINGLY, THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 7

"7. WITH RESPECT THOSE EMPLOYEES WHO LEAVE THE FEDERAL SERVICE TO GO INTO THE ARMED FORCES OF THE UNITED STATES, IN THE ABSENCE OF A RIGHT TO RESTORATION, EITHER STATUTORY OR REGULATORY, WOULD SUCH EMPLOYEE BE REQUIRED TO SERVE A NEW QUALIFYING PERIOD OF 90 CALENDAR DAYS IN ORDER TO EARN ANNUAL LEAVE, WHERE NO BREAK OCCURRED BETWEEN MILITARY AND CIVILIAN SERVICE UPON REEMPLOYMENT IN THE CIVILIAN SERVICE, THERE BEING IN FACT A BREAK IN SERVICE WITH RESPECT TO CIVILIAN EMPLOYMENT?

ALTHOUGH SERVICE IN THE ARMED FORCES MAY BE COUNTED AS CREDITABLE SERVICE FOR THE PURPOSE OF DETERMINING THE AMOUNT OF LEAVE THE EMPLOYEE WILL EARN UNDER THE PROVISIONS OF THE 1951 LEAVE ACT (B-106704, SUPRA, QUESTION AND ANSWER 2), THERE IS NO INDICATION EITHER IN THE LANGUAGE OF THE ACTOR IN ITS LEGISLATIVE HISTORY THAT THE TERM "EMPLOYMENT" AS USED IN SECTION 203 (I) OF THE ACT WAS INTENDED TO INCLUDE SUCH SERVICE. ACCORDINGLY, EXCEPT IN THOSE CASES WHERE AN EMPLOYEE HAS A STATUTORY OR REGULATORY RIGHT TO BE RESTORED TO HIS CIVILIAN POSITION AFTER MILITARY SERVICE AND IS RESTORED PURSUANT TO SUCH LAW OR REGULATION, ABSENCE IN THE ARMED FORCES MUST BE REGARDED AS A BREAK IN SERVICE. THEREFORE, SINCE AN INDIVIDUAL REEMPLOYED AFTER A BREAK IN SERVICE IS REQUIRED TO SERVE A NEW QUALIFYING PERIOD OF 90 DAYS IN ORDER TO EARN ANNUAL LEAVE, QUESTION 7 MUST BE ANSWERED IN THE AFFIRMATIVE.

QUESTION 8

"8. UNDER SECTION 30.703 OF THE CURRENT REGULATIONS " ALL LEAVE WHICH WAS EARNED UNDER THE LEAVE ACTS OF 1936 OR UNDER ANY OTHER OF THE LEAVE SYSTEMS MERGED UNDER THIS ACT, AND TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED UPON REENTERING OR REMAINING IN THE SAME LEAVE SYSTEM, SHALL BE RECREDITED UNDER THIS ACT: PROVIDED, THAT LEAVE FORFEITED SHALL NOT BE REVIVED BY THIS ULATION.'

"IN SOME CASES THE CREDIT AUTHORIZED UNDER THIS SECTION CAUSES THE LEAVE TO THE CREDIT OF AN INDIVIDUAL TO EXCEED THE 60-DAY MAXIMUM ALLOWABLE UNDER SUBSECTION 203 (C) OF THE ACT.

"WILL THE INDIVIDUAL BE REQUIRED TO USE SUCH EXCESS LEAVE BY THE END OF THE CUT-OFF DATE (CLOSE OF LAST COMPLETE BIWEEKLY PAY PERIOD), OR WOULD THE RECREDIT RAISE THE MAXIMUM ACCUMULATION RULING IN SUCH CASES?

THE PROBLEM ARISES PARTICULARLY WITH RESPECT TO THE FORMER LEAVE SYSTEM UNDER THE POSTAL SERVICE. UNDER THE POSTAL LEAVE SYSTEM THERE WAS NO LIMIT ON ANNUAL LEAVE ACCUMULATIONS. MANY EMPLOYEES WERE TRANSFERRED OUT OF THE POSTAL SERVICE WITHOUT A BREAK IN SERVICE AND HAVE NOT HAD ONE SINCE. ACCORDINGLY, IF THEY WERE RETURNED TO THE POSTAL SERVICE AT THIS TIME, THEY WOULD RECEIVE A RECREDIT FOR SUCH LEAVE. THEY WOULD, OF COURSE, UNDER TERMS OF SECTION 30.703 BE ENTITLED TO THE RECREDIT WITHOUT ACTUAL RETURN TO THE POSTAL SERVICE.'

IT CANNOT BE PRESUMED THAT THE CONGRESS INTENDED TO AUTHORIZE ANNUAL LEAVE ACCUMULATIONS IN EXCESS OF THE 60-DAY MAXIMUM PRESCRIBED BY SECTION 203 EXCEPT IN THOSE CASES SPECIFICALLY PROVIDED FOR IN THE SAVING PROVISION OF SECTION 208 OF THE ACT, 65 STAT. 682. ACCORDINGLY, SINCE ANNUAL LEAVE RECREDITED UNDER THE PROVISIONS OF SECTION 30.703 OF THE NEW REGULATIONS DOES NOT FALL WITHIN ANY OF THE SAVING PROVISIONS OF THE SAID ACT, ANY PART OF SUCH LEAVE WHICH CAUSES THE TOTAL ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE TO EXCEED 60 DAYS AT THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN ANY YEAR WILL BE FORFEITED. QUESTION 8 IS ANSWERED ACCORDINGLY.

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