B-112674, JANUARY 5, 1953, 32 COMP. GEN. 310

B-112674: Jan 5, 1953

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LEAVES OF ABSENCE - EMPLOYMENT IN TEMPORARY POSITION DURING INVOLUNTARY FURLOUGH THE ANNUAL AND SICK LEAVE REGULATIONS WHICH AUTHORIZE THE TRANSFER OF ANNUAL AND SICK LEAVE BETWEEN PERMANENT AND TEMPORARY POSITIONS DOES NOT REQUIRE THAT THE LEAVE TO THE CREDIT OF AN EMPLOYEE BE TRANSFERRED WHEN HE IS APPOINTED TO A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION. RATHER SUCH LEAVE IS FOR RETENTION TO AN EMPLOYEE'S CREDIT IN HIS PERMANENT POSITION TO BE USED IN EVENT OF RECALL TO DUTY OR TRANSFER TO ANOTHER PERMANENT POSITION OR IN THE CASE OF ANNUAL LEAVE TO BE PAID FOR UPON FINAL SEPARATION FROM THE PERMANENT POSITION FROM WHICH HE IS ON FURLOUGH. AN EMPLOYEE WHO IS APPOINTED TO A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH FROM ANOTHER AGENCY IS NOT REGARDED AS HAVING HAD A BREAK IN SERVICE SO AS TO REQUIRE THE EMPLOYEE TO SERVE THE 90-DAY QUALIFYING PERIOD REQUIRED BY SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IN ORDER TO EARN ANNUAL LEAVE IN THE TEMPORARY POSITION.

B-112674, JANUARY 5, 1953, 32 COMP. GEN. 310

LEAVES OF ABSENCE - EMPLOYMENT IN TEMPORARY POSITION DURING INVOLUNTARY FURLOUGH THE ANNUAL AND SICK LEAVE REGULATIONS WHICH AUTHORIZE THE TRANSFER OF ANNUAL AND SICK LEAVE BETWEEN PERMANENT AND TEMPORARY POSITIONS DOES NOT REQUIRE THAT THE LEAVE TO THE CREDIT OF AN EMPLOYEE BE TRANSFERRED WHEN HE IS APPOINTED TO A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION, BUT RATHER SUCH LEAVE IS FOR RETENTION TO AN EMPLOYEE'S CREDIT IN HIS PERMANENT POSITION TO BE USED IN EVENT OF RECALL TO DUTY OR TRANSFER TO ANOTHER PERMANENT POSITION OR IN THE CASE OF ANNUAL LEAVE TO BE PAID FOR UPON FINAL SEPARATION FROM THE PERMANENT POSITION FROM WHICH HE IS ON FURLOUGH. AN EMPLOYEE WHO IS APPOINTED TO A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH FROM ANOTHER AGENCY IS NOT REGARDED AS HAVING HAD A BREAK IN SERVICE SO AS TO REQUIRE THE EMPLOYEE TO SERVE THE 90-DAY QUALIFYING PERIOD REQUIRED BY SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IN ORDER TO EARN ANNUAL LEAVE IN THE TEMPORARY POSITION. SEPARATION OF AN EMPLOYEE FROM A TEMPORARY POSITION TO WHICH HE WAS APPOINTED WHILE ON INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION IN ANOTHER AGENCY IS A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, SO AS TO REQUIRE A LUMP-SUM PAYMENT FOR ANY ANNUAL LEAVE EARNED AND UNUSED IN THE TEMPORARY POSITION; SICK LEAVE IS NOT TRANSFERABLE TO OR FROM THE TEMPORARY POSITION. WHILE THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951 PROHIBIT CREDIT FOR LEAVE FOR ANY FRACTION OF A PAY PERIOD, AN EMPLOYEE WHO GOES ON LEAVE WITHOUT PAY IN ORDER TO RECEIVE COMPENSATION UNDER THE EMPLOYEE'S COMPENSATION ACT IS TO BE REGARDED AS HAVING COMPLETED A FULL PAY PERIOD AND ENTITLED TO RECEIVE A PRO-RATA CREDIT FOR THAT PART OF THE PAY PERIOD WHEN HE WAS NOT IN RECEIPT OF SUCH COMPENSATION. THE DETERMINATION AS TO WHETHER AN EMPLOYEE SHOULD BE CREDITED WITH LEAVE PURPORTEDLY STANDING TO HIS CREDIT AT THE TIME OF TRANSFER TO AN AGENCY UNDER A LEAVE SYSTEM DIFFERENT FROM THAT UNDER THE 1936 LEAVE ACTS IS THE PRIMARY RESPONSIBILITY OF THE AGENCY WHERE THE EMPLOYEE IS PRESENTLY EMPLOYED. EMPLOYEES WHO LOST LEAVE BY REASON OF TRANSFERRING TO POSITIONS HAVING DIFFERENT LEAVE SYSTEMS MAY NOT BE RECREDITED THEREWITH UNDER AUTHORITY OF THE ANNUAL AND SICK LEAVE ACT OF 1951 BASED UPON OTHER THAN OFFICIAL RECORD, HOWEVER, WHERE THE OFFICIAL RECORDS OF THE AGENCY IN WHICH THE EMPLOYEE WAS FORMERLY EMPLOYED HAVE BEEN LOST OR DESTROYED THERE MAY BE FURNISHED THE REQUESTING AGENCY A STATEMENT OF ANY OTHER EVIDENCE WHICH MAY BE AVAILABLE REGARDING THE EMPLOYEE'S LEAVE CREDIT, INCLUDING AN ESTIMATE OF THE AMOUNT OF LEAVE CREDIT, UPON THE BASIS OF WHICH STATEMENT, THE AGENCY IN WHICH EMPLOYEE IS CURRENTLY EMPLOYED MAY DETERMINE WHETHER A CREDIT FOR LEAVE MAY BE MADE. THE TRANSFER OF AN OVERSEAS EMPLOYEE TO THE CONTINENTAL UNITED STATES PRIOR TO JUNE 30 CAUSES THE EMPLOYEE'S LEAVE EARNED IN THE PRECEDING YEAR TO BECOME SUBJECT TO SECTION 401 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1953, WHICH PRESCRIBES THAT NO FUNDS SHALL BE AVAILABLE TO PAY FOR ANNUAL LEAVE ACCUMULATED IN ANY YEAR AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30 OF THE SUCCEEDING YEAR. THE AUTHORIZATION CONTAINED IN CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 671, SUPPLEMENT NO. 10, TO CONVERT CERTAIN TEMPORARY APPOINTMENTS RETROACTIVELY TO PERMANENT REINSTATEMENTS OR TRANSFERS NEITHER AUTHORIZES NOR REQUIRES ANY RETROACTIVE ADJUSTMENTS IN PAY MATTERS.

ACTING COMPTROLLER GENERAL YATES TO THE ACTING CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 5, 1953:

REFERENCE IS MADE TO THE COMMISSION'S LETTER OF NOVEMBER 3, 1952, CL:MT:MK, REQUESTING A DECISION UPON SEVERAL QUESTIONS HEREINAFTER SET FORTH ARISING UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, EFFECTIVE JANUARY 6, 1952, PUBLIC LAW 233, 82D CONGRESS, 65 STAT. 679, AND THE REGULATIONS OF THE CIVIL SERVICE COMMISSION ISSUED PURSUANT THERETO.

QUESTION 1, AND ITS SEVERAL SUB QUESTIONS, INVOLVE SITUATIONS IN WHICH EMPLOYEES RECEIVE TEMPORARY APPOINTMENTS WHILE ON INVOLUNTARY FURLOUGH FROM PERMANENT POSITIONS, AND THE QUESTIONS INVOLVE, GENERALLY, THE DISPOSITION TO BE MADE OF THE LEAVE ACQUIRED IN THE PERMANENT EMPLOYMENT AND THE TEMPORARY EMPLOYMENT.

PRIOR TO THE ANNUAL AND SICK LEAVE ACT OF 1951, EFFECTIVE JANUARY 6, 1952, THE DECISIONS OF THIS OFFICE HAD HELD THAT A TEMPORARY APPOINTMENT DID NOT TERMINATE AN INVOLUNTARY FURLOUGH STATUS FROM PERMANENT POSITION SO AS TO REQUIRE A LUMP-SUM LEAVE PAYMENT FOR THE LEAVE ACCRUED IN THE PERMANENT POSITION. RATHER, THE TEMPORARY EMPLOYMENT WAS REGARDED AS AN INTERRUPTION OF THE FURLOUGH PERIOD WHICH COULD BE RESUMED AFTER THE EXPIRATION OF THE TEMPORARY APPOINTMENT AND THE ANNUAL LEAVE REMAINING TO THE CREDIT OF THE EMPLOYEE IN THE PERMANENT POSITION COULD EITHER BE GRANTED AT THAT TIME OR BE PAID FOR IN A LUMP SUM AT THE TERMINATION OF THE FURLOUGH PERIOD. 27 COMP. GEN. 638; B-74654, MAY 11, 1948.

AS POINTED OUT IN THE LETTER OF NOVEMBER 3, 1952, THE ANNUAL AND SICK LEAVE ACT OF 1951, MAKES NO DISTINCTION IN LEAVE BENEFITS UPON THE BASIS OF THE PERMANENT OR TEMPORARY STATUS OF AN EMPLOYEE SUCH AS EXISTED UNDER THE FORMER LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, SUCH LEAVE NOW BEING TRANSFERABLE BETWEEN A PERMANENT AND TEMPORARY POSITION TO THE SAME EXTENT AS BETWEEN TWO PERMANENT POSITIONS. THEREFORE, YOU DESIRE TO KNOW WHETHER SUCH CIRCUMSTANCES NOW WOULD REQUIRE A DIFFERENT CONCLUSION IN RESPECT OF EMPLOYEES' RECEIVING TEMPORARY APPOINTMENTS WHILE STILL ON INVOLUNTARY FURLOUGH.

SECTIONS 30.701 AND 30.702 OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS ARE AS FOLLOWS:

WHEN AN EMPLOYEE IS SEPARATED FROM A POSITION UNDER THIS ACT AND REEMPLOYED IN ANOTHER POSITION UNDER THE ACT, WITHOUT A BREAK IN SERVICE, HIS ANNUAL LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE.

UPON REEMPLOYMENT OF AN EMPLOYEE SUBJECT TO THIS ACT WHO WAS SEPARATED ON OR AFTER JANUARY 6, 1952, WITHOUT A BREAK IN SERVICE, OR A BREAK OF NOT MORE THAN 52 CONTINUOUS CALENDAR WEEKS, THE EMPLOYEE'S SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO HIS ACCOUNT.

IF THE ABOVE-QUOTED REGULATIONS BE APPLIED LITERALLY TO AN EMPLOYEE WHO RECEIVES A TEMPORARY APPOINTMENT WHILE IN AN INVOLUNTARY FURLOUGH STATUS FROM A PERMANENT POSITION, HIS ACCRUED ANNUAL LEAVE WOULD BE TRANSFERRED TO THE TEMPORARY POSITION, AND IF SUCH TEMPORARY APPOINTMENT BE VIEWED AS TERMINATING THE FURLOUGH STATUS, THE AGENCY IN WHICH THE TEMPORARY APPOINTMENT IS EFFECTED, WOULD HAVE TO ASSUME THE BURDEN OF PAYING FOR SUCH LEAVE UPON THE EMPLOYEE'S SEPARATION FROM THE TEMPORARY POSITION, WHICH IN SOME CASES MIGHT COVER A PERIOD IN EXCESS OF THE PERIOD OF HIS TEMPORARY APPOINTMENT. MOREOVER, IF THE TEMPORARY APPOINTMENT BE REGARDED AS NOT TERMINATING THE INVOLUNTARY FURLOUGH STATUS FROM A PERMANENT POSITION, THEN THE ANNUAL LEAVE TRANSFERRED TO THE TEMPORARY POSITION AND NOT USED DURING THAT PERIOD, INCLUDING LEAVE EARNED UNDER THE TEMPORARY APPOINTMENT, WOULD BE TRANSFERRED BACK TO THE PERMANENT POSITION FROM WHICH THE EMPLOYEE IS ON FURLOUGH, THUS SADDLING THE AGENCY GRANTING THE FURLOUGH WITH THE OBLIGATION OF PAYING FOR ADDITIONAL ANNUAL LEAVE, THE LEGALITY OF WHICH ADDITIONAL OBLIGATION WOULD BE EXTREMELY DOUBTFUL. THE LIGHT OF SUCH CIRCUMSTANCES IT IS NOT BELIEVED THAT THE ABOVE REGULATION OR THE ANNUAL AND SICK LEAVE ACT OF 1951, CONTEMPLATES A TRANSFER OF LEAVE BETWEEN TEMPORARY AND PERMANENT POSITIONS WHEN AN EMPLOYEE RECEIVES A TEMPORARY APPOINTMENT WHILE IN AN INVOLUNTARY FURLOUGH STATUS FROM A PERMANENT POSITION. ACCORDINGLY, YOU ARE ADVISED THAT THE DECISIONS IN THAT RESPECT ARE, GENERALLY, STILL CONTROLLING. IN OTHER WORDS, A TEMPORARY APPOINTMENT OF AN EMPLOYEE DURING THE PERIOD OF HIS INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION IS NOT TO BE REGARDED AS TERMINATING SUCH FURLOUGH BUT MERELY CONSTITUTES AN INTERRUPTION OF THE FURLOUGH PERIOD WHICH INTERRUPTION WOULD NEITHER REQUIRE A LUMP-SUM LEAVE PAYMENT AT THE TIME OF SUCH TEMPORARY APPOINTMENT NOR A TRANSFER OF SICK AND ANNUAL LEAVE--- SUCH LEAVE BEING FOR RETENTION TO THE EMPLOYEE'S CREDIT IN HIS PERMANENT POSITION FOR USE IN THE EVENT OF RECALL TO DUTY OR TRANSFER TO ANOTHER PERMANENT POSITION, OR IN THE CASE OF ANNUAL LEAVE, PAID FOR UPON FINAL SEPARATION FROM THE PERMANENT POSITION FROM WHICH HE IS ON FURLOUGH. SINCE THE EMPLOYMENT IN THE TEMPORARY POSITION DOES NOT INVOLVE A BREAK IN SERVICE THE EMPLOYEE WOULD NOT BE REQUIRED TO SERVE A NEW 90-DAY QUALIFYING PERIOD TO EARN ANNUAL LEAVE AS PROVIDED BY SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681. HOWEVER, THE TERMINATION OF THE EMPLOYEE'S TEMPORARY APPOINTMENT OR SEPARATION THEREFROM, AT WHICH TIME HE REVERTS TO A FURLOUGH STATUS FROM THE PERMANENT POSITION, IS TO BE REGARDED AS A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, SO AS TO REQUIRE A LUMP-SUM PAYMENT FOR ANY ANNUAL LEAVE EARNED IN THE TEMPORARY POSITION. CONSISTENT WITH THE FOREGOING SICK LEAVE WOULD NOT BE TRANSFERABLE TO OR FROM SUCH TEMPORARY POSITION. I BELIEVE THE FOREGOING ANSWERS FULLY QUESTION NO. 1 AND ITS SUBSECTIONS.

QUESTION NO. 2:

THE DECISION WAS MADE IN 29 COMP. GEN. 73 THAT "UNDER THE PROVISIONS OF THE EMPLOYEES' COMPENSATION STATUTE, THE ACCRUING OF ANNUAL LEAVE TO AN EMPLOYEE DURING THE PERIOD THAT HE IS IN RECEIPT OF DISABILITY COMPENSATION IS IN CONTRAVENTION OF THE SPIRIT AND INTENT OF THAT STATUTE.' THE LEAVE REGULATIONS WERE THEN AMENDED BY REVOKING A PROVISION WHICH HAD APPEARED UP TO THAT TIME ENTITLING EMPLOYEES WHO RETURNED TO DUTY AFTER A PERIOD ON EMPLOYEES' COMPENSATION ROLLS TO FULL LEAVE ACCRUALS FOR THE PERIOD.

UNDER THE 1951 LEAVE ACT NO LEAVE CREDIT IS GIVEN FOR ANY FRACTION OF A PAY PERIOD. A FULL-TIME LEAVE-EARNING EMPLOYEE RECEIVES A CERTAIN NUMBER OF HOURS CREDIT FOR EACH FULL PAY PERIOD HE IS ON THE ROLLS. IF HE HAS ANY LEAVE WITHOUT PAY, A DEDUCTION OF ONE PAY PERIOD'S ACCRUAL IS MADE FOR EACH FULL 80 HOURS OF LEAVE WITHOUT PAY WITHIN THE LEAVE YEAR. LEAVE WITHOUT PAY OF LESS THAN 80 HOURS IN THE LEAVE YEAR CAUSES NO DEDUCTION.

(A) WHEN AN EMPLOYEE GOES ON LEAVE WITHOUT PAY BECAUSE HE IS TO RECEIVE EMPLOYEES' COMPENSATION, MAY THAT LEAVE WITHOUT PAY BE TREATED IN THE SAME WAY AS ANY OTHER LEAVE WITHOUT PAY FOR LEAVE ACCRUAL PURPOSES? (B) IF NOT, WILL IT BE NECESSARY FOR THE EMPLOYEE TO LOSE THE FULL PAY PERIOD'S ACCRUAL FOR ANY PAY PERIOD IN WHICH HE RECEIVES ANY EMPLOYEES' COMPENSATION, EVEN FOR ONE DAY; OR (C) MAY BE RECEIVE PRO-RATED CREDIT FOR THE FRACTION OF THE PAY PERIOD IN WHICH HE IS NOT ON COMPENSATION?

SINCE AN EMPLOYEE UNDER THE RELATED CIRCUMSTANCES (THE LEAVE WITHOUT PAY COVERING LESS THAN 80 HOURS) WOULD BE REGARDED AS HAVING COMPLETED A FULL PAY PERIOD AND, EXCEPT FOR THE PROVISIONS OF THE EMPLOYEES' COMPENSATION ACT--- SEE 29 COMP. GEN. 73--- WOULD BE ENTITLED TO A FULL CREDIT OF LEAVE, IT APPEARS REASONABLE TO CONCLUDE THAT HE SHOULD RECEIVE A PRO-RATA CREDIT OF LEAVE FOR THAT PART OF THE PAY PERIOD WHEN HE WAS NOT IN RECEIPT OF COMPENSATION UNDER THE EMPLOYEES' COMPENSATION ACT, 39 STAT. 742. COMPARE 31 COMP. GEN. 215 AT PAGE 223.

QUESTION NO. 3:

UNDER SECTION 30.703 OF THE LEAVE REGULATIONS ISSUED EFFECTIVE JANUARY 6, 1952, WHEN SEVERAL LEAVE SYSTEMS WERE MERGED, SOME EMPLOYEES WHO HAD TRANSFERRED TO DIFFERENT LEAVE SYSTEMS BEFORE THAT DATE BECAME ENTITLED TO RECREDIT OF LEAVE WHICH THEY HAD LEFT AT THE TIME OF THE TRANSFER. IN ANY CASE WHERE THE TRANSFER OCCURRED ON OR AFTER DECEMBER 21, 1944, ONLY SICK LEAVE WOULD BE INVOLVED. SINCE ANY EMPLOYEE WHO TRANSFERRED FROM A POSITION UNDER THE 1936 LEAVE ADTS ON OR AFTER JULY 1, 1936, WAS ENTITLED BY REGULATION TO RECREDIT OF HIS LEAVE IF HE RETURNED TO THE 1936 LEAVE SYSTEM, IT WOULD SEEM THAT THE LEAVE RECORDS SHOULD HAVE BEEN KEPT. HOWEVER, IN A NUMBER OF INSTANCES IT HAS DEVELOPED THAT THE AGENCY WHICH HAD THE RECORD HAS DESTROYED IT OR IT HAS BEEN LOST. IN SOME OF THESE CASES THE EMPLOYEES STATE THAT THEY KNOW THE AMOUNT, OR APPROXIMATE AMOUNT, OF THE LEAVE.

MAY THE LEAVE RECORD BE RECONSTRUCTED IN SUCH CASES, AS BY THE EMPLOYING AGENCY'S ACCEPTING AN AFFIDAVIT OF THE EMPLOYEE; OR HAS THE LEAVE BEEN FORFEITED THROUGH DESTRUCTION OF THE RECORDS?

THE REFERRED-TO REGULATION PROVIDES AS FOLLOWS:

LEAVE FROM FORMER LEAVE SYSTEMS. 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 ALREADY FORFEITED SHALL NOT BE REVIVED BY THIS REGULATION.

THE DETERMINATION AS TO WHETHER AN EMPLOYEE SHOULD BE CREDITED WITH LEAVE PURPORTEDLY STANDING TO HIS CREDIT AT THE TIME OF TRANSFER TO AN AGENCY UNDER A LEAVE SYSTEM DIFFERENT FROM THAT UNDER THE 1936 LEAVE ACTS IS THE PRIMARY RESPONSIBILITY OF THE AGENCY WHERE THE EMPLOYEE IS PRESENTLY EMPLOYED. IT IS UNDERSTOOD THAT SOME OF THE AGENCIES WHERE EMPLOYEES SUPPOSEDLY HAVE LEAVE CREDITS HAVE BEEN FURNISHING CERTIFICATIONS OF LEAVE CREDITS TO AGENCIES WHERE THE EMPLOYEES ARE CURRENTLY EMPLOYED, WHICH CERTIFICATIONS ARE PREDICATED ENTIRELY UPON AFFIDAVITS FROM THE EMPLOYEES, THERE BEING NOTHING IN THE CERTIFICATIONS THEMSELVES TO SHOW THAT NO LEAVE RECORDS WERE AVAILABLE. IT IS THE VIEW OF THIS OFFICE THAT THE FURNISHING OF CERTIFICATIONS OF LEAVE CREDITS BASED UPON OTHER OFFICIAL RECORDS IS NOT TO BE SANCTIONED. HOWEVER, IN LIEU OF A CERTIFICATION, WHERE NO OFFICIAL RECORDS ARE AVAILABLE, THERE SHOULD BE FURNISHED STATEMENTS TO REQUESTING AGENCIES OF ANY OTHER EVIDENCE WHICH MAY BE AVAILABLE IN RESPECT OF EMPLOYEES' LEAVE CREDITS, INCLUDING AN ESTIMATE OF HIS LEAVE CREDIT, IF POSSIBLE. ANY SUCH STATEMENTS SHOULD CLEARLY REFLECT THE FACTORS FORMING THE BASIS OF THE ESTIMATE. THE AGENCY WHERE THE EMPLOYEE CURRENTLY IS EMPLOYED MAY THEN DETERMINE WHETHER UPON THE BASIS OF SUCH SHOWING A CREDIT OF LEAVE MAY BE MADE.

QUESTION NO. 4:

SECTION 401 OF PUBLIC LAW 455, 82ND CONGRESS, WHICH PRESCRIBES THAT NO FUNDS SHALL BE AVAILABLE TO PAY FOR ANNUAL LEAVE ACCUMULATED IN ANY YEAR AND UNUSED AT THE CLOSE OF BUSINESS ON JUNE 30 OF THE SUCCEEDING YEAR, PROVIDES THAT IT SHALL NOT APPLY TO OFFICERS OR EMPLOYEES WHOSE POST OF DUTY IS OUTSIDE THE CONTINENTAL UNITED STATES. IN APPLYING A SIMILAR PROVISION IN SECTION 1212 OF PUBLIC LAW 759, 81ST CONGRESS,WHICH AFFECTED ONLY LEAVE EARNED IN 1950, YOU DECIDED THAT THE EXCEPTION APPLIED ONLY TO AN OFFICER OR EMPLOYEE WHOSE POST OF DUTY AT THE CLOSE OF BUSINESS JUNE 30 WAS OUTSIDE THE CONTINENTAL UNITED STATES (30 COMP. GEN. 514). IT HAS BEEN SUGGESTED THAT SECTION 401 OF PUBLIC LAW 455 MAY BE INTERPRETED DIFFERENTLY, IN VIEW OF SECTION 208 (A) (2) OF THE ANNUAL AND SICK LEAVE ACT OF 1951.

WHEN AN OVERSEAS EMPLOYEE TRANSFERS TO THE CONTINENTAL UNITED STATES, MAY ALL ANNUAL LEAVE WHICH WAS EARNED OVERSEAS BE CONSIDERED AS EXCEPTED FROM SECTION 401 OF PUBLIC LAW 455, OR WILL A TRANSFER PRIOR TO JUNE 30 CAUSE THE LEAVE EARNED IN THE PRECEDING YEAR TO BECOME SUBJECT TO SECTION 401?

SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 682, IS AS FOLLOWS:

SEC. 208 (A) IN ANY CASE IN WHICH---

(1) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE CARRIED OVER INTO THE CALENDAR YEAR 1952 BY AN OFFICER OR EMPLOYEE UNDER PROVISIONS OF LAW APPLICABLE TO SUCH OFFICER OR EMPLOYEE ON DECEMBER 31, 1951, IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THE APPLICABLE PROVISIONS OF SECTION 203, OR

(2) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE WHO IS SUBJECT TO THE PROVISIONS OF SECTION 203 (D) AND WHO BECOMES SUBJECT TO THE PROVISIONS OF SECTION 203 (C) IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER SECTION 203 (C), SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED, BUT THE USE DURING ANY YEAR OF AN AMOUNT OF LEAVE IN EXCESS OF THE AGGREGATE AMOUNT WHICH SHALL HAVE ACCRUED DURING SUCH YEAR SHALL AUTOMATICALLY REDUCE THE MAXIMUM ALLOWABLE ACCUMULATION AT THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN ANY YEAR UNTIL THE ACCUMULATION OF SUCH OFFICER OR EMPLOYEE NO LONGER EXCEEDS THE AMOUNT PRESCRIBED IN THE APPLICABLE PROVISIONS OF SECTION 203. THE PURPOSE OF THE ENTIRE SECTION JUST QUOTED SEEMS PRIMARILY CONCERNED WITH THE ESTABLISHMENT OF MAXIMUM LEAVE ACCUMULATION CEILINGS FOR (1) EMPLOYEES WHO HAVE ACCUMULATED ANNUAL LEAVE IN EXCESS OF THE MAXIMUM LIMITATIONS OF SECTION 203 WHEN THEY BECAME SUBJECT TO SUCH ACT, AND (2) EMPLOYEES WITH A MAXIMUM ACCUMULATION CEILING OF 90 DAYS AS PROVIDED IN SECTION 203 (D) OF THE ACT, 65 STAT. 680, WHO HAVE BEEN STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES BUT ARE TRANSFERRED BACK TO THE UNITED STATES WITH LEAVE ACCUMULATIONS IN EXCESS OF THE DAYS PERMITTED IN THE UNITED STATES. IN ANY EVENT, SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, MAY BE REGARDED AS HAVING BEEN MODIFIED TO THE EXTENT OF THE LIMITATION UPON ACCUMULATION OF ANNUAL LEAVE PRESCRIBED BY SECTION 401 OF PUBLIC LAW 455, 82D CONGRESS, APPROVED JULY 5, 1952, 66 STAT. 418, THE LATER STATUTE. SEE GENERALLY, 27 COMP. GEN. 280, 439; 29 ID. 374, AND COURT CASES CITED THEREIN. ALSO, 30 COMP. GEN. 128. ACCORDINGLY, THE FIRST PART OF THIS QUESTION IS ANSWERED IN THE NEGATIVE, AND THE LAST PART IN THE AFFIRMATIVE.

QUESTION NO. 5:

IN DEPARTMENTAL CIRCULAR NO. 671, SUPPLEMENT NO. 10, THE COMMISSION AUTHORIZED CERTAIN TEMPORARY APPOINTMENTS MADE PRIOR TO SEPTEMBER 1, 1950, TO BE CONVERTED RETROACTIVELY TO PERMANENT REINSTATEMENT OR TRANSFERS. SUCH AUTHORITY WAS INTENDED TO AFFECT ONLY THE EMPLOYEE'S TENURE. IT WAS NOT CONTEMPLATED THAT ANY RETROACTIVE CHANGE IN PAY MATTERS WOULD BE EITHER REQUIRED OR AUTHORIZED. SEVERAL INQUIRIES HAVE BEEN RECEIVED, HOWEVER, WITH RESPECT TO EMPLOYEES WHO HAD RECEIVED LUMP SUM PAYMENTS FOR ANNUAL LEAVE BEFORE ACCEPTING THE TEMPORARY APPOINTMENT, AND WHO WOULD HAVE BEEN REQUIRED TO MAKE REFUNDS IF THE APPOINTMENT HAD BEEN PERMANENT AT THE TIME. IN OTHER INSTANCES THE EMPLOYEE WOULD HAVE BECOME ENTITLED TO A WITHIN-GRADE SALARY INCREASE DURING THE PERIOD OF THE TEMPORARY APPOINTMENT IF IT HAD BEEN PERMANENT AT THAT TIME. ARE WE CORRECT IN ASSUMING THAT NO RETROACTIVE PAY ADJUSTMENTS SHOULD BE MADE BECAUSE OF ACTION UNDER DEPARTMENTAL CIRCULAR NO. 671, SUPPLEMENT NO. 10?

THE ASSUMPTION IN RESPECT OF THIS QUESTION IS CORRECT. SEE B 91326. JANUARY 23, 1950.