B-119324, FEB. 1, 1960

B-119324: Feb 1, 1960

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YOUR CLAIM FOR THE RECREDIT OF THE ANNUAL LEAVE WAS DISALLOWED FOR THE FOLLOWING REASONS: "THE RECORD SHOWS THAT ON DECEMBER 31. YOUR ACTIVE SERVICE TERMINATED AND YOU WERE PLACED ON ANNUAL LEAVE STATUS UNTIL THE EXPIRATION OF YOUR ANNUAL LEAVE AND SEPARATED FROM THE SERVICE OF THE VETERANS ADMINISTRATION MAY 19. 62 STAT. 355 RELATED SOLELY TO THE PERIOD OF SUSPENSION OR REMOVAL YOU ARE NOT ENTITLED TO AN ADJUSTMENT IN LEAVE ACCRUALS PRIOR TO THE DATE OF SEPARATION. THE FACT THAT THE LEAVE TAKEN IMMEDIATELY PRIOR TO SEPARATION MAY HAVE BEEN DUE TO THE NOTICE OF REDUCTION IN FORCE IS NOT MATERIAL. 5 U.S.C. 652 (B) FOR RECREDITING AN EMPLOYEE WITH THE AMOUNT OF ANNUAL LEAVE HE WAS REQUIRED TO TAKE INCIDENT TO HIS SEPARATION OR SUSPENSION FROM THE SERVICE UNDER CONDITIONS SIMILAR TO YOUR CASE.

B-119324, FEB. 1, 1960

TO MR. R. JOHN CUMMINGS:

ON DECEMBER 29, 1959, YOU REQUESTED REVIEW OF THAT PART OF OUR SETTLEMENT CERTIFICATE Z-2242185, DATED AUGUST 17, 1954, WHICH DISALLOWED YOUR CLAIM FOR A RECREDIT OF ANNUAL LEAVE INCIDENT TO YOUR SEPARATION FROM THE SERVICE ON MAY 19, 1951, AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION AND YOUR RESTORATION TO SERVICE UNDER THE PROVISIONS OF AN ORDER BY THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA HOLDING THAT YOU HAD BEEN ILLEGALLY REMOVED FROM YOUR POSITION ON DECEMBER 31, 1950.

YOUR CLAIM FOR THE RECREDIT OF THE ANNUAL LEAVE WAS DISALLOWED FOR THE FOLLOWING REASONS:

"THE RECORD SHOWS THAT ON DECEMBER 31, 1950, YOUR ACTIVE SERVICE TERMINATED AND YOU WERE PLACED ON ANNUAL LEAVE STATUS UNTIL THE EXPIRATION OF YOUR ANNUAL LEAVE AND SEPARATED FROM THE SERVICE OF THE VETERANS ADMINISTRATION MAY 19, 1951. AS THE RELIEF GRANTED BY PUBLIC LAW 623, 62 STAT. 355 RELATED SOLELY TO THE PERIOD OF SUSPENSION OR REMOVAL YOU ARE NOT ENTITLED TO AN ADJUSTMENT IN LEAVE ACCRUALS PRIOR TO THE DATE OF SEPARATION. THE FACT THAT THE LEAVE TAKEN IMMEDIATELY PRIOR TO SEPARATION MAY HAVE BEEN DUE TO THE NOTICE OF REDUCTION IN FORCE IS NOT MATERIAL. COMP. GEN. 334.'

ON MAY 23, 1957, 36 COMP. GEN. 779, WE HELD THAT A PROPER BASIS EXISTS UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10,1948, 5 U.S.C. 652 (B) FOR RECREDITING AN EMPLOYEE WITH THE AMOUNT OF ANNUAL LEAVE HE WAS REQUIRED TO TAKE INCIDENT TO HIS SEPARATION OR SUSPENSION FROM THE SERVICE UNDER CONDITIONS SIMILAR TO YOUR CASE, SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. WE FURTHER SAID IN THAT DECISION THAT ALL OTHER DECISIONS INCONSISTENT WITH THE FOREGOING ARE NO LONGER TO BE FOLLOWED. IN REACHING THAT CONCLUSION WE CITED AS AUTHORITY THEREFOR 32 COMP. GEN. 284; TAYLOR V. UNITED STATES 131 C.CLS. 387; AND MCTIERNAN V. UNITED STATES, C.CLS. NO. 184-52, DECIDED MAY 1, 1956.

WHILE YOU ARE ENTITLED UNDER OUR DECISION 36 COMP. GEN. 779 TO A RECREDIT OF YOUR UNUSED ANNUAL LEAVE ON DECEMBER 31, 1950, BASED UPON YOUR RESTORATION TO YOUR POSITION IN THE VETERANS ADMINISTRATION ON JUNE 3, 1953 (RETROACTIVELY TO DECEMBER 31, 1950), SUCH RECREDIT IS SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. SEE OUR DECISION 32 COMP. GEN. 162; 36 ID. 596; ID. 779; 37 ID. 160; 38 ID. 249. A COPY OF THIS DECISION SHOULD BE FURNISHED YOUR PERSONNEL OFFICER SO THAT A RECREDIT OF YOUR UNUSED ANNUAL LEAVE ON DECEMBER 31, 1950, MAY BE RECREDITED TO YOU AS INDICATED ABOVE.