B-114063, MAY 25, 1953

B-114063: May 25, 1953

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: I WISH TO DIRECT YOUR ATTENTION TO A SITUATION THAT WAS FOUND IN THE AUDIT OF CIVILIAN PAY ROLLS AT MCCLELLAN AIR FORCE BASE. ARE LISTED. RAYMOND 2.18 P.H. 19 THE AUTHORITIES RELIED UPON BY THE ADMINISTRATIVE OFFICIALS CONCERNED IN RESPECT OF THE SUBSTITUTIONS AS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION IN THE MATTER ARE SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14. WHICH SUBSTITUTION WAS FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A CALENDAR YEAR. IT WAS CONCLUDED THAT IN THE ABSENCE OF ANY PROVISION OF LAW OR REGULATION AUTHORIZING SAID PRACTICE. IT IS ALSO MY VIEW THAT WHEN AN EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS.

B-114063, MAY 25, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

I WISH TO DIRECT YOUR ATTENTION TO A SITUATION THAT WAS FOUND IN THE AUDIT OF CIVILIAN PAY ROLLS AT MCCLELLAN AIR FORCE BASE, MCCLELLAN, CALIFORNIA - A SITUATION WHICH COULD BE INDICATIVE OF A GENERAL TREND - INVOLVING THE RETROACTIVE SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF THE CALENDAR YEAR 1951, OR JUNE 30, 1951, AS THE CASE MAY BE. THE EMPLOYEES, THE SALARY RATE, AND THE NUMBER OF HOURS INVOLVED IN SAID ADMINISTRATIVE ACTIONS, ARE LISTED, AS FOLLOWS:

NO. OF

NAME SALARY RATE HOURS

CASTER, LELA B. $3,655 P.A.8

MCNAIR, NANCY A. 3,495 P.A. 20

SCHUTZ, PETER J. 4,420 P.A. 40

URIAS, RAYMOND 2.18 P.H. 19

THE AUTHORITIES RELIED UPON BY THE ADMINISTRATIVE OFFICIALS CONCERNED IN RESPECT OF THE SUBSTITUTIONS AS A PROPER EXERCISE OF ADMINISTRATIVE DISCRETION IN THE MATTER ARE SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IN PERTINENT PART, AS FOLLOWS:

"*** THE ANNUAL LEAVE HEREIN AUTHORIZED SHALL BE GRANTED AT SUCH TIMES AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE. ***" AND CIVIL SERVICE REGULATION Z1 355, SECTION 30.203, IN PERTINENT PART, AS FOLLOWS:

"GRANT OF ANNUAL LEAVE. ANNUAL LEAVE SHALL BE GRANTED TO AN EMPLOYEE AT SUCH TIMES AS THE HEADS OF THE DEPARTMENTS AND AGENCIES MAY PRESCRIBE:

IN OFFICE DECISION, B-108632, DATED APRIL 18, 1952 (31 COMP. GEN. 524), TO THE ACTING ATTORNEY GENERAL, RELATIVE TO THE PROPRIETY OF FOLLOWING A PRACTICE IN THE DEPARTMENT OF JUSTICE OF SUBSTITUTING ANNUAL LEAVE FOR SICK LEAVE PREVIOUSLY GRANTED, WHICH SUBSTITUTION WAS FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A CALENDAR YEAR, IT WAS CONCLUDED THAT IN THE ABSENCE OF ANY PROVISION OF LAW OR REGULATION AUTHORIZING SAID PRACTICE, SUCH PRACTICE COULD NOT BE APPROVED BY THIS OFFICE. IT IS ALSO MY VIEW THAT WHEN AN EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS, UPON THE BASIS OF HIS APPROVED PROPER APPLICATION FOR SICK LEAVE WITH A CONSEQUENT CHARGE AGAINST SICK LEAVE ACCRUED, THE EMPLOYEE MUST BE REGARDED AS HAVING ELECTED TO RECEIVE A VALUABLE STATUTORY RIGHT. THE RIGHT OF THE EMPLOYEE HAVING BECOME VESTED AND THE OBLIGATION OF THE UNITED STATES HAVING BEEN DISCHARGED UNDER THE ELECTION, SUCH RIGHT AND OBLIGATION ARE NOT SUBJECT TO CHANGE IN THE ABSENCE OF A LAW OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, PROVIDING THEREFOR. ALSO, TO PERMIT THE SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE AS HERE INVOLVED WOULD LEAD TO A POLICY OF RETROACTIVELY CHANGING THE TYPE OF LEAVE ORIGINALLY RECORDED FOR A PARTICULAR ABSENCE IN ANY CASE WHERE THE EMPLOYEE MIGHT LATER DECIDE THAT IT WOULD BE MORE ADVANTAGEOUS TO HAVE THE ABSENCE CHARGED UPON A DIFFERENT BASIS. OBVIOUSLY A POLICY WHICH WOULD ENCOURAGE NUMEROUS REVISIONS OF THE RECORDS OF COMPLETED TRANSACTIONS WOULD NOT BE IN KEEPING WITH SOUND ADMINISTRATION. SUCH PRACTICE WOULD GIVE RISE TO EVASION OF THE POLICY ESTABLISHED BY THE CONGRESS UNDER WHICH EMPLOYEES ARE REQUIRED TO USE ANNUAL LEAVE WITHIN PRESCRIBED PERIODS OR FORFEIT THEIR RIGHT TO IT. NOR WOULD SUCH SUBSTITUTION BE IN CONSONANCE WITH THE PRIMARY INTENT OF THE LAW TO PROVIDE ANNUAL LEAVE FOR VACATION PURPOSES.

IN VIEW OF THE FOREGOING, AND SINCE THE AUTHORITIES RELIED UPON BY THE ADMINISTRATIVE OFFICIALS CONCERNED DO NOT SUPPORT THE ACTION TAKEN IN THE CASES IN QUESTION, IT WOULD BE APPRECIATED IF YOU WOULD FURNISH THIS OFFICE WITH A REPORT RELATIVE TO THIS MATTER TOGETHER WITH A STATEMENT RESPECTING YOUR POLICY THEREON, AND SUCH COMMENTS AS YOU DESIRE TO MAKE RELATIVE THERETO.