B-125129, SEPTEMBER 20, 1955, 35 COMP. GEN. 155

B-125129: Sep 20, 1955

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LEAVES OF ABSENCE - ANNUAL - TRANSFER - LUMP-SUM PAYMENTS AN EMPLOYEE WHO DID NOT RECEIVE A LUMP-SUM LEAVE PAYMENT WHEN HE RESIGNED TO ACCEPT A WHEN-ACTUALLY-EMPLOYED POSITION IN ANOTHER AGENCY WHICH WAS EXEMPT BY SECTION 202 (B) (1) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 FROM THE LEAVE SYSTEM MAY NOT. HAVE THE ANNUAL LEAVE TRANSFERRED. NOR IS THE THIRD AGENCY REQUIRED TO MAKE PAYMENT FOR THE PRIOR ACCUMULATED ANNUAL LEAVE. FULMER WAS EMPLOYED BY THE VETERANS ADMINISTRATION DECEMBER 13. HIS LEAVE ACCOUNT WAS TRANSFERRED. WHICH IS STATED NOT TO HAVE BEEN SUBJECT TO THE LEAVE ACT BECAUSE OF SECTION 202 (B) (1) (B) OF SAID ACT. NO LUMP-SUM LEAVE PAYMENT WAS MADE WHEN LEAVING THE DETROIT ORDNANCE DISTRICT AS THAT AGENCY CONTENDED AT THAT TIME THAT HIS LEAVE WAS TRANSFERABLE BUT THE FEDERAL HOUSING ADMINISTRATION REFUSED TO ACCEPT TRANSFER OF THE LEAVE ACCOUNT BECAUSE OF THE NATURE OF HIS APPOINTMENT WITH THAT ADMINISTRATION.

B-125129, SEPTEMBER 20, 1955, 35 COMP. GEN. 155

LEAVES OF ABSENCE - ANNUAL - TRANSFER - LUMP-SUM PAYMENTS AN EMPLOYEE WHO DID NOT RECEIVE A LUMP-SUM LEAVE PAYMENT WHEN HE RESIGNED TO ACCEPT A WHEN-ACTUALLY-EMPLOYED POSITION IN ANOTHER AGENCY WHICH WAS EXEMPT BY SECTION 202 (B) (1) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 FROM THE LEAVE SYSTEM MAY NOT, UPON TRANSFER TO A THIRD AGENCY IN A POSITION SUBJECT TO THE LEAVE ACT, HAVE THE ANNUAL LEAVE TRANSFERRED, NOR IS THE THIRD AGENCY REQUIRED TO MAKE PAYMENT FOR THE PRIOR ACCUMULATED ANNUAL LEAVE; HOWEVER, THE EMPLOYEE SHOULD FILE CLAIM FOR THE LUMP-SUM LEAVE PAYMENT WITH THE ORIGINAL EMPLOYING AGENCY OR WITH THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, SEPTEMBER 20, 1955:

ON AUGUST 4, 1955, THE ACTING ADMINISTRATOR REQUESTED OUR DECISION REGARDING THE PROPER TREATMENT OF THE LEAVE ACCOUNT OF JOHN F. FULMER UNDER THE FOLLOWING FACTS AND CIRCUMSTANCES.

MR. FULMER WAS EMPLOYED BY THE VETERANS ADMINISTRATION DECEMBER 13, 1949, UNDER A TEMPORARY APPOINTMENT SUBJECT TO THE LEAVE ACT OF 1936. OCTOBER 23, 1953, HE RESIGNED (IN LIEU OF REDUCTION IN FORCE) TO ACCEPT AN INDEFINITE APPOINTMENT WITH THE DETROIT ORDNANCE DISTRICT, WITH NO BREAK IN SERVICE, AND HIS LEAVE ACCOUNT WAS TRANSFERRED. HE RESIGNED SEPTEMBER 30, 1954, TO ACCEPT AN INDEFINITE WAE APPOINTMENT WITH THE FEDERAL HOUSING ADMINISTRATION, WHICH IS STATED NOT TO HAVE BEEN SUBJECT TO THE LEAVE ACT BECAUSE OF SECTION 202 (B) (1) (B) OF SAID ACT. NO LUMP-SUM LEAVE PAYMENT WAS MADE WHEN LEAVING THE DETROIT ORDNANCE DISTRICT AS THAT AGENCY CONTENDED AT THAT TIME THAT HIS LEAVE WAS TRANSFERABLE BUT THE FEDERAL HOUSING ADMINISTRATION REFUSED TO ACCEPT TRANSFER OF THE LEAVE ACCOUNT BECAUSE OF THE NATURE OF HIS APPOINTMENT WITH THAT ADMINISTRATION. MR. FULMER RE-ENTERED ON DUTY WITH VETERANS ADMINISTRATION FEBRUARY 1, 1955, WITHOUT A BREAK IN SERVICE, IN A POSITION OF GS-7 SUBJECT TO THE LEAVE ACT. THE FEDERAL HOUSING ADMINISTRATION WOULD NOT TRANSFER HIS LEAVE CREDIT BECAUSE IT CONTENDED HE SHOULD HAVE BEEN PAID A LUMP SUM BY THE DETROIT ORDNANCE DISTRICT. THE DETROIT ORDNANCE DISTRICT NOW HAS OFFERED TO TRANSFER HIS LEAVE ACCOUNT TO YOUR ADMINISTRATION. BASED UPON THOSE FACTS AND CIRCUMSTANCES THE ACTING ADMINISTRATOR REQUESTS OUR DECISION UPON THE FOLLOWING QUESTIONS:

(1) CAN THE VETERANS ADMINISTRATION NOW ACCEPT A TRANSFER OF MR. FULMER'S ANNUAL LEAVE FOR WHICH HE SHOULD HAVE RECEIVED A LUMP-SUM PAYMENT FROM THE DETROIT ORDNANCE DISTRICT?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE NEGATIVE, IS THE VETERANS ADMINISTRATION REQUIRED TO MAKE PAYMENT TO MR. FULMER FOR ANNUAL LEAVE DUE?

SECTION 202 (B) (1) (B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2061, PROVIDES THAT THAT TITLE SHALL NOT APPLY TO:

(B) PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH ADMINISTRATIVE WORKWEEK;

SECTION 4 (B) OF THE ACT OF JULY 2, 1953, 67 STAT. 138, 5 U.S.C. 2064, AMENDS SECTION 205 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, BY ADDING THERETO A NEW SUBSECTION (E) TO READ AS FOLLOWS:

(E) IN THE CASE OF TRANSFER OF AN OFFICER OR EMPLOYEE BETWEEN POSITIONS UNDER DIFFERENT LEAVE SYSTEMS (OTHER THAN TRANSFERS INVOLVING POSITIONS EXEMPTED UNDER SECTION 202 (B) (1) (B), (C), (H) (, WITHOUT A BREAK IN SERVICE, THE ANNUAL AND SICK LEAVE TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE SHALL BE TRANSFERRED TO HIS CREDIT IN THE EMPLOYING AGENCY ON AN ADJUSTED BASIS IN ACCORDANCE WITH REGULATIONS TO BE PRESCRIBED BY THE CIVIL SERVICE COMMISSION.

IN 33 COMP. GEN. 85, WE HELD, QUOTING FROM THE SYLLABUS:

INASMUCH AS AN EMPLOYEE WHO TRANSFERS FROM A POSITION UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, OR FROM A POSITION IN ANOTHER LEAVE SYSTEM, TO A POSITION EXEMPT FROM ANY LEAVE SYSTEM UNDER SECTION 202 (B) (1) (B), (C), OR (H) OF THE 1951 ACT, IS UNABLE TO HAVE LEAVE EARNED IN THE PRIOR POSITION CREDITED TO HIM IN THE NEW POSITION, THE TRANSFER OF SUCH EMPLOYEE CONSTITUTES A SEPARATION WITHIN THE MEANING OF THE LUMP-SUM LEAVE ACT OF 1944, AND THEREFORE SUCH EMPLOYEE WOULD BE ENTITLED TO A LUMP-SUM LEAVE PAYMENT, WHETHER OR NOT THE TRANSFER INVOLVED A BREAK IN SERVICE.

SINCE THE FEDERAL HOUSING ADMINISTRATION REGARDED MR. FULMER AS NOT BEING IN A LEAVE EARNING STATUS WE ASSUME THAT MR. FULMER WAS NOT ASSIGNED A REGULAR TOUR OF DUTY IN THAT ADMINISTRATION. UNDER THAT ASSUMPTION HE PROPERLY WAS EXEMPTED FROM THE LEAVE ACT UNDER SECTION 202 (B) (1) (B) OF THE ACT, ABOVE QUOTED. HENCE, HIS ANNUAL LEAVE WAS NOT TRANSFERABLE TO THE FEDERAL HOUSING ADMINISTRATION AND UNDER THE ABOVE-CITED DECISION HE SHOULD HAVE RECEIVED A LUMP-SUM PAYMENT THEREFOR FROM THE DETROIT ORDNANCE DISTRICT.

ACCORDINGLY, YOUR TWO QUESTIONS ARE ANSWERED IN THE NEGATIVE.

MR. FULMER SHOULD FILE HIS CLAIM FOR LUMP-SUM LEAVE PAYMENT WITH THE DETROIT ORDNANCE DISTRICT OR WITH THE CLAIMS DIVISION OF OUR OFFICE, CITING THIS DECISION AS AUTHORITY.