B-124797, OCT. 7, 1955

B-124797: Oct 7, 1955

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LEMKER WAS GRANTED 745 HOURS OF SICK LEAVE FOR THE PERIOD OCTOBER 29. SHE WAS GRANTED 30 HOURS TERMINAL ANNUAL LEAVE TO BEGIN AT THE EXPIRATION OF HER SICK LEAVE AND TO END ON MARCH 21. IT IS RELATED THAT THE DATE OF MARCH 21. ADMITTEDLY WAS SET TO AVOID FORFEITURE AND ANNUAL LEAVE ACCRUED DURING THE LEAVE YEAR 1955. LEMKER WAS PAID. GEN. 511 THE GENERAL RULE WAS STATED THAT "TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE.'. SOME EXCEPTIONS TO THAT RULE WHICH WERE BASED UPON OVERRIDING STATUTORY PROVISIONS AND REGULATIONS HAVE BEEN MADE IN OUR SUBSEQUENT DECISIONS.

B-124797, OCT. 7, 1955

TO MR. CRAIG MOORE, AUTHORIZED CERTIFYING OFFICER, VETERANS ADMINISTRATION HOSPITAL:

YOUR LETTER OF MAY 16, 1955, RECEIVED HERE JULY 22, REQUESTS OUR DECISION WHETHER THE VOUCHER ENCLOSED THEREWITH IN FAVOR OF SHIRLEY K. LEMKER FOR $58.20, REPRESENTING THE VALUE OF 30 HOURS TERMINAL LEAVE FOR THE PERIOD 1:30 P.M., MARCH 15, 1955, THROUGH 11:00 A.M., MARCH 21, 1955, PROPERLY MAY BE CERTIFIED FOR PAYMENT.

YOU STATE IN YOUR LETTER THAT ON OCTOBER 22, 1954, MRS. LEMKER WAS GRANTED 745 HOURS OF SICK LEAVE FOR THE PERIOD OCTOBER 29, 1954, THROUGH 1:30 P.M., MARCH 15, 1955. ON MARCH 9, 1955, SHE WAS GRANTED 30 HOURS TERMINAL ANNUAL LEAVE TO BEGIN AT THE EXPIRATION OF HER SICK LEAVE AND TO END ON MARCH 21, 1955. FURTHER, YOU STATE THAT ALTHOUGH THE ENCLOSED COPY OF THE PERSONNEL ACTION, DATED MARCH 22, 1955, PROVIDES FOR SEPARATION BY RESIGNATION EFFECTIVE MARCH 21, 1955, THE LEAVES GRANTED INDICATE NO ESTABLISHED DATE OF SEPARATION EXCEPT ONE FIXED TO INCLUDE ALL ACCUMULATED AND ACCRUED LEAVE, INCLUDING LEAVE ACCRUING ON TERMINAL LEAVE. IT IS RELATED THAT THE DATE OF MARCH 21, 1955, ADMITTEDLY WAS SET TO AVOID FORFEITURE AND ANNUAL LEAVE ACCRUED DURING THE LEAVE YEAR 1955. MRS. LEMKER WAS PAID, UPON SEPARATION, A LUMP SUM FOR 443 HOURS OF ANNUAL LEAVE WHICH REPRESENTED HER ACCUMULATED LEAVE AS OF DECEMBER 31, 1954. YOUR DOUBT REGARDING THE CASE APPARENTLY ARISES IN RECONCILING OUR DECISION 24 COMP. GEN. 511 WITH THE PROVISIONS OF SECTION 4/A) OF THE ACT OF JULY 2, 1953, 67 STAT. 137, 138, WHICH IN THE CIRCUMSTANCES HERE PRESENT WOULD PROHIBIT A LUMP-SUM PAYMENT FOR CURRENT ACCRUED LEAVE.

IN 24 COMP. GEN. 511 THE GENERAL RULE WAS STATED THAT "TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE.' SOME EXCEPTIONS TO THAT RULE WHICH WERE BASED UPON OVERRIDING STATUTORY PROVISIONS AND REGULATIONS HAVE BEEN MADE IN OUR SUBSEQUENT DECISIONS. SEE 25 COMP. GEN. 82, 26 ID. 331 AND 33 ID. 85. SEE ALSO 31 COMP. GEN. 581 AND 34 ID. 61, CONCERNING ADMINISTRATIVE APPROVAL OF TERMINAL ANNUAL LEAVE BASED UPON THE NEEDS AND INTEREST OF THE GOVERNMENT. SECTION 4/A) OF THE 1953 ACT AMENDS THE LUMP-SUM LEAVE PAYMENT PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, IN PERTINENT PART AS FOLLOWS:

"* * * SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH OFFICER OR EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, NO SUCH LUM-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER.

WHILE THE ABOVE-QUOTED SECTION ESTABLISHES A LIMITATION UPON THE NUMBER OF DAYS' ANNUAL LEAVE FOR WHICH LUMP-SUM PAYMENT MAY BE MADE FOR SEPARATIONS AFTER AUGUST 31, 1953, IT DOES NOT PROHIBIT THE GRANT IN KIND, IMMEDIATELY PRIOR TO SEPARATION, OF THE CURRENT YEAR'S ANNUAL LEAVE WHICH MAY NOT BE INCLUDED IN A LUMP-SUM PAYMENT. SEE 33 COMP. GEN. 85, ANSWER TO QUESTION 1/B).

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IN THE PROPER AMOUNT DUE TO COVER SUCH ANNUAL LEAVE AS ACCRUED TO MRS. LEMKER'S CREDIT DURING THE LEAVE YEAR ..END :