B-125940, DEC. 5, 1955

B-125940, DEC. 5, 1955

TO MR. LOUIS F. THOMPSON, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF STATE:

YOUR LETTER OF OCTOBER 28, 1955, ENCLOSES A VOUCHER FOR $12,788.66 IN FAVOR OF MRS. BETTY JANE PEURIFOY, THE WIDOW OF AMBASSADOR JOHN E. PEURIFOY WHO WAS KILLED IN AN AUTOMOBILE ACCIDENT IN THAILAND ON AUGUST 12, 1955. THE VOUCHER INCLUDES PAYMENT FOR ACCRUED ANNUAL LEAVE COMPUTED AT THE RATE OF $25,000 PER ANNUM, WHICH WAS MR. PEURIFOY'S SALARY AS AMBASSADOR TO GREECE AT THE TIME HIS LEAVE WAS PLACED IN A SUSPENDED STATUS PURSUANT TO SECTION 2 (A) OF THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 67 STAT. 136. YOU REQUEST A DECISION AS TO WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

ON AUGUST 20, 1953, MR. PEURIFOY, THEN AMBASSADOR (CHIEF OF MISSION) TO GREECE RECEIVING A SALARY OF $25,000 PER ANNUM, REPORTED FOR DUTY IN WASHINGTON, D.C., FROM ATHENS FOR CONSULTATION IN THE DEPARTMENT AND FOR REASSIGNMENT AS A CHIEF OF MISSION. YOU STATE THAT UNDER THE PROVISIONS OF SECTION 431 (B) OF THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, 60 STAT. 1005, 22 U.S.C. 881 (B), THE MAXIMUM PERIOD DURING WHICH A CHIEF OF MISSION MAY CONTINUE AS SUCH AFTER RELINQUISHING CHARGE OF HIS LAST MISSION IS 30 DAYS, EXCLUSIVE OF TIME SPENT IN TRANSIT; THAT SUCH 30-DAY PERIOD EXPIRED IN AMBASSADOR PEURIFOY'S CASE ON THE CLOSE OF BUSINESS SEPTEMBER 18, 1953; AND THAT INASMUCH AS THE DEPARTMENT REQUIRED FURTHER CONSULTATION WITH HIM AND IN ORDER TO CONTINUE HIM ON THE PAYROLLS, HE WAS RETURNED TO HIS PERMANENT STATUS AS CAREER MINISTER AT A SALARY OF $14,300 PER ANNUM ON SEPTEMBER 19, 1953, PENDING A DECISION REGARDING HIS NEXT POST OF ASSIGNMENT AS AMBASSADOR. ON OCTOBER 5, 1953, HE WAS GIVEN A RECESS APPOINTMENT BY THE PRESIDENT AS AMBASSADOR TO GUATEMALA.

DURING THE PERIOD SEPTEMBER 19 THROUGH OCTOBER 4, 1953, WHEN MR. PEURIFOY HAD BEEN RETURNED TO THE STATUS OF CAREER MINISTER FOR THE PREVIOUSLY INDICATED REASONS, HE WAS NOT EXEMPT FROM THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951. HOWEVER, HE DID NOT ACCRUE ANY LEAVE DURING THIS SERVICE, SINCE HE DID NOT COMPLETE A FULL PAY PERIOD IN THIS STATUS, NOR DID HE TAKE ANY LEAVE DURING THE PERIOD.

ON AND AFTER HIS APPOINTMENT AS AMBASSADOR TO GUATEMALA AND UNTIL HIS DEATH MR. PEURIFOY WAS EXEMPT FROM THE PROVISIONS OF THE LEAVE ACT. THE TIME OF HIS DEATH HE WAS SERVING AS AMBASSADOR TO THAILAND AT A SALARY OF $20,000 PER ANNUM.

YOUR DOUBT IN THE MATTER ARISES FROM THE FACT THAT, ALTHOUGH MR. PEURIFOY WAS SERVING IN AN EXEMPTED POSITION ON THE EFFECTIVE DATE OF PUBLIC LAW 102 AND ON THE DATE OF HIS DEATH, IN THE INTERIM HE HAD SERVED IN A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951.

SECTION 1 OF THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 68 STAT. 136, AMENDS SECTION 202 OF THE ANNUAL AND SICK LEAVE ACT OF 1951 BY ADDING THE FOLLOWING PERTINENT PROVISIONS:

"/C) (1) THIS TITLE SHALL NOT APPLY TO THE FOLLOWING OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT * * *:

"/B) PERSONS WHO RECEIVE COMPENSATION IN ACCORDANCE WITH SECTION 411 OF THE FOREIGN SERVICE ACT OF 1946; * * *"

SECTION 2 (A) AND (B) OF SAID ACT READS:

"THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A LUMP SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 (5 U.S.C. 61B-61E) OR THE ACT OF AUGUST 3, 1950 (5 U.S.C. 61F-61K), EXCEPT THAT PAYMENT UNDER EITHER SUCH ACT (1) SHALL BE BASED UPON THE RATE OF COMPENSATION WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE ON WHICH THIS ACT BECOMES APPLICABLE TO HIM, AND (2) SHALL BE MADE WITHOUT REGARD TO THE LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SECTIONS 4 AND 5 OF THIS ACT WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER SUCH ACTS.

"IN THE EVENT ANY SUCH EXEMPTED OFFICER, WITHOUT ANY BREAK IN THE CONTINUITY OF HIS SERVICE, AGAIN BECOMES SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951 UPON THE COMPLETION OF HIS SERVICE AS AN EXEMPTED OFFICER, THE UNUSED ANNUAL AND SICK LEAVE STANDING TO HIS CREDIT AT THE TIME HE WAS EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 SHALL BE DEEMED TO HAVE REMAINED TO HIS CREDIT.'

BY VIRTUE OF THE LANGUAGE OF THE ACT THE LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE OF AN EXEMPTED OFFICER WHOSE LEAVE WAS FROZEN ON THE EFFECTIVE DATE OF PUBLIC LAW 102 AND WHO IS SEPARATED FROM THE SERVICE OR DIES WHILE HOLDING A POSITION EXEMPT FROM THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IS FOR COMPUTATION AT THE RATE OF PAY HE WAS RECEIVING WHEN HIS LEAVE WAS FROZEN. WE UNDERSTAND THAT AT NO TIME DURING THE PERIOD BETWEEN THE ASSIGNMENTS IN GREECE AND GUATEMALA WAS IT CONTEMPLATED THAT MR. PEURIFOY'S NEW ASSIGNMENT WOULD BE AS A FOREIGN SERVICE OFFICER NOR DID HE PERFORM THE DUTIES OF SUCH AN OFFICER DURING THE INTERIM PERIOD HERE INVOLVED. IN THE CIRCUMSTANCES, WE ARE OF THE VIEW THAT FOR THE PURPOSE OF THE LUMP-SUM LEAVE PAYMENT THE DECEDENT MAY BE CONSIDERED AS COMING WITHIN THE PURVIEW OF SECTION 2 (A), ABOVE.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER.