B-114228, MAY 11, 1953, 32 COMP. GEN. 516

B-114228, MAY 11, 1953, 32 COMP. GEN. 516

LEAVES OF ABSENCE - SICK - RECREDIT OF PRIOR ACCRUED LEAVE INASMUCH AS SECTION 30.48 OF THE ANNUAL AND SICK LEAVE REGULATIONS, WHICH ALLOWS AN EMPLOYEE A BREAK IN SERVICE OF ONLY 90 DAYS BEFORE THE FORFEITURE OF PRIOR ACCRUED SICK LEAVE, WAS NOT REVOKED BY SECTION 30.702 OF THE CURRENT REGULATIONS PROMULGATED UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 ALLOWING EMPLOYEES SEPARATED ON OR AFTER JANUARY 6, 1952, A BREAK IN SERVICE OF NOT MORE THAN 52 CALENDAR WEEKS BEFORE THE FORFEITURE OF SICK LEAVE, AN EMPLOYEE WHO RESIGNED PRIOR TO JANUARY 6, 1952, AND WHO, AFTER A BREAK IN SERVICE IN EXCESS OF 90 DAYS, WAS REEMPLOYED SUBSEQUENT TO SUCH DATE MAY NOT BE RECREDITED WITH PRIOR ACCRUED SICK LEAVE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 11, 1953:

REFERENCE IS MADE TO LETTER OF MARCH 13, 1953, FROM THE UNDER SECRETARY OF THE NAVY, CONCERNING THE RIGHT OF MRS. JEAN A. SWAILS LETZKUS TO BE RECREDITED WITH CERTAIN SICK LEAVE ACCUMULATED DURING PRIOR GOVERNMENT SERVICE, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

THE SUBMITTED FACTS SHOW THAT MRS. LETZKUS WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY IN THE CHEMICAL WARFARE PROCUREMENT DISTRICT, NEW YORK, FROM JANUARY 11, 1943 TO OCTOBER 3, 1945, WHEN SHE WAS SEPARATED BY REASON OF REDUCTION IN FORCE; THAT SHE RECEIVED A WAR SERVICE APPOINTMENT IN THE NAVY DEPARTMENT, BUREAU OF SHIPS, JANUARY 2, 1946; THAT SHE RESIGNED FROM THE BUREAU OF SHIPS, DECEMBER 21, 1951, AT WHICH TIME HER LEAVE RIGHTS WERE GOVERNED BY THE 1936 LEAVE ACTS AND REGULATIONS ISSUED THEREUNDER; AND THAT SHE WAS REEMPLOYED JULY 18, 1952, SUBSEQUENT TO THE EFFECTIVE DATE ( JANUARY 6, 1952) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AND OF THE NEW LEAVE REGULATIONS ISSUED THEREUNDER.

SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS, AS AMENDED IN DECEMBER 1948, IN FORCE AT THE TIME OF THE RESIGNATION ON DECEMBER 21, 1951, PROVIDED AS FOLLOWS:

DISPOSITION OF SICK LEAVE ACCOUNT ON TRANSFER. WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED TO ANOTHER POSITION WITH NO BREAK IN SERVICE, OR A BREAK OF LESS THAN 90 DAYS, OR WITHIN ONE YEAR AFTER NOTICE OF PROPOSED SEPARATION BY REDUCTION IN FORCE OR DISPLACEMENT ORDER OF THE CIVIL SERVICE COMMISSION, HIS SICK LEAVE ACCOUNT SHALL BE DISPOSED OF AS FOLLOWS:

(A) IF THE POSITION IS WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO THE EMPLOYEE.

THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 6, 1952, PROVIDE IN THE SECTIONS HERE MATERIAL AS FOLLOWS:

SEC. 30.702 SICK LEAVE RECREDIT. 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 NOR 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.

SEC. 30.703 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.

SINCE A BREAK IN SERVICE IN EXCESS OF THE 90 DAYS ALLOWABLE UNDER THE REGULATIONS IN EFFECT AT THE TIME OF RESIGNATION OCCURRED PRIOR TO REEMPLOYMENT, AT WHICH TIME THE NEW REGULATIONS WERE IN EFFECT, DECISION IS REQUESTED UNDER THE QUESTIONS STATED, AS FOLLOWS:

QUESTION I

WAS THE 90-DAY "BREAK" UNDER THE OLD REGULATIONS AUTOMATICALLY INVALIDATED WHEN NEW REGULATIONS BECAME EFFECTIVE ON JANUARY 6, 1952?

QUESTION II

WHEN MRS. LETZKUS WAS REEMPLOYED ON JULY 18, 1952, HAD THE SICK LEAVE REMAINING TO HER CREDIT ON DECEMBER 21, 1951, BEEN "FORFEITED?

QUESTION III

IF THE SICK LEAVE REFERRED TO IN QUESTION II WAS NOT "FORFEITED" CAN IT NOW BE RECREDITED TO THE EMPLOYEE'S ACCOUNT?

SECTION 30.702 OF THE CURRENT LEAVE REGULATIONS, WHICH ALLOWS A BREAK IN SERVICE OF NOT MORE THAN 52 CALENDAR WEEKS BEFORE THE FORFEITURE OF SICK LEAVE, APPLIES ONLY TO EMPLOYEES SEPARATED "ON OR AFTER JANUARY 6, 1952.' IN VIEW OF ITS LIMITED APPLICATION TO SUCH EMPLOYEES THERE IS NO INCONSISTENCY BETWEEN IT AND THE CONTINUED OPERATION OF SECTION 30.408 OF THE EARLIER REGULATIONS WITH RESPECT TO SEPARATIONS OCCURRING PRIOR TO JANUARY 6, 1952. ACCORDINGLY, UNDER THE RULE THAT A LATER REGULATION DOES NOT REVOKE AN EARLIER ONE BY IMPLICATION IF THERE IS NOTHING IN THE SECOND ONE INCONSISTENT WITH THE CONTINUANCE OF THE FIRST, IT IS CONCLUDED THAT THE EARLIER REGULATION IS CONTROLLING, AND THAT MRS. LETZKUS' SICK LEAVE WAS FORFEITED BY THE BREAK IN SERVICE IN EXCESS OF 90 DAYS BETWEEN THE DATE OF RESIGNATION, DECEMBER 21, 1941, AND DATE OF REEMPLOYMENT ON JULY 17, 1952. IN VIEW THEREOF, AND SINCE SECTION 30.703 OF THE CURRENT REGULATIONS DOES NOT APPLY TO OR REVIVE FORFEITED LEAVE, QUESTION I IS ANSWERED IN THE NEGATIVE, QUESTION II IN THE AFFIRMATIVE, AND NO ANSWER IS REQUIRED TO QUESTION III IN VIEW OF THE AFFIRMATIVE ANSWER TO QUESTION II.

IN THE LAST PARAGRAPH OF THE LETTER OF THE UNDER SECRETARY OF THE NAVY IT IS STATED, WITH RESPECT TO SICK LEAVE EARNED BUT NOT USED BY MRS. LETZKUS WHILE EMPLOYED BY THE NEW YORK CHEMICAL WARFARE PROCUREMENT DISTRICT OF THE WAR DEPARTMENT, THAT A BREAK IN SERVICE DID IN FACT OCCUR PRIOR TO HER LATER EMPLOYMENT BY THE BUREAU OF SHIPS ON JANUARY 2, 1946. SINCE THE VIEW EXPRESSED IN OFFICE LETTER OF SEPTEMBER 2, 1952, REFERRED TO IN THE UNDER SECRETARY'S LETTER, THAT MRS. LETZKUS WAS ENTITLED TO RECREDIT OF LEAVE UPON SUCH EMPLOYMENT WAS BASED UPON THE STATEMENT IN HER LETTER THAT SHE HAD "BEEN A GOVERNMENT EMPLOYEE SINCE 11 JANUARY 1943 WITH NO BREAK IN SERVICE EXCEPT FOR THE PERIOD OF 21 DECEMBER 1951 TO 17 JULY 1952"--- CONTRARY TO THE FACTS OF RECORD--- THAT VIEW IS TO BE DISREGARDED.