B-134561, DEC. 26, 1957

B-134561: Dec 26, 1957

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HOLSTINE WAS APPOINTED AS A STUDENT TRAINEE ON JUNE 17. WAS GRANTED EDUCATIONAL LWOP ON AUGUST 16. HIS NINETY DAY QUALIFYING PERIOD WAS COMPLETED SEPTEMBER 14. TWENTY-FOUR HOURS ANNUAL LEAVE WAS CREDITED TO HIS LEAVE ACCOUNT ON SEPTEMBER 22. REMMEN WAS APPOINTED AS A STUDENT TRAINEE ON JULY 15. 1957 AND WAS GRANTED EDUCATIONAL LWOP ON SEPTEMBER 24. HIS NINETY DAY QUALIFYING PERIOD WAS COMPLETED OCTOBER 12. TWENTY HOURS OF ANNUAL LEAVE WAS CREDITED TO HIS LEAVE ACCOUNT ON OCTOBER 20. WHICH COULD NOT HAVE BEEN GRANTED HIM AT THE TIME THE PERIOD OF LEAVE WITHOUT PAY BEGAN BECAUSE HE HAD NOT QUALIFIED UNDER THE NINETY DAY WAITING PERIOD. VOUCHERS COVERING THE CLAIMED PAYMENTS WERE NOT ENCLOSED WITH YOUR LETTER.

B-134561, DEC. 26, 1957

TO MR. G. A. BRYANT, AUTHORIZED CERTIFYING OFFICER, U.S. DEPARTMENT OF AGRICULTURE:

ON NOVEMBER 27, 1957, AS AUTHORIZED CERTIFYING OFFICER, YOU REQUESTED OUR DECISION ON THE CLAIMS OF MR. LELAND L. HOLSTINE AND MR. PETER A. REMMEN FOR THE RESPECTIVE AMOUNTS OF ANNUAL LEAVE STANDING TO THEIR CREDIT. YOU STATE:

"MR. HOLSTINE WAS APPOINTED AS A STUDENT TRAINEE ON JUNE 17, 1957, AND WAS GRANTED EDUCATIONAL LWOP ON AUGUST 16, 1957, AFTER COMPLETING SIXTY- ONE CALENDAR DAYS OF ACTIVE DUTY. HIS NINETY DAY QUALIFYING PERIOD WAS COMPLETED SEPTEMBER 14, 1957, COB, WHILE IN LWOP STATUS. TWENTY-FOUR HOURS ANNUAL LEAVE WAS CREDITED TO HIS LEAVE ACCOUNT ON SEPTEMBER 22, 1957.

"MR. REMMEN WAS APPOINTED AS A STUDENT TRAINEE ON JULY 15, 1957 AND WAS GRANTED EDUCATIONAL LWOP ON SEPTEMBER 24, 1957, AFTER COMPLETING SEVENTY- TWO CALENDAR DAYS OF ACTIVE DUTY. HIS NINETY DAY QUALIFYING PERIOD WAS COMPLETED OCTOBER 12, 1957, COB, WHILE IN LWOP STATUS. TWENTY HOURS OF ANNUAL LEAVE WAS CREDITED TO HIS LEAVE ACCOUNT ON OCTOBER 20, 1957.'

YOU ASK IN EFFECT, WHETHER AN EMPLOYEE CAN BE PLACED IN ANNUAL LEAVE STATUS DURING A PERIOD OF LEAVE WITHOUT PAY FOR THE PURPOSE OF GRANTING AND PAYING FOR ANNUAL LEAVE, WHICH COULD NOT HAVE BEEN GRANTED HIM AT THE TIME THE PERIOD OF LEAVE WITHOUT PAY BEGAN BECAUSE HE HAD NOT QUALIFIED UNDER THE NINETY DAY WAITING PERIOD.

VOUCHERS COVERING THE CLAIMED PAYMENTS WERE NOT ENCLOSED WITH YOUR LETTER. ORDINARILY, THE VOUCHER PRESENTED TO A CERTIFYING OFFICER FOR CERTIFICATION MUST ACCOMPANY THE REQUEST FOR A DECISION ON ANY QUESTION OF LAW INVOLVED IN THE CERTIFICATION OF THE VOUCHER. 26 COMP. GEN. 797; 21 ID. 1128. HOWEVER, SINCE THE CLAIMS HAVE BEEN SUBMITTED TO YOU, AND WITH THE UNDERSTANDING THAT PROPERLY PREPARED VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISIONS, THE REQUIREMENT FOR A VOUCHER IN THIS PARTICULAR INSTANCE WILL BE WAIVED.

WE HELD IN B-118081, JANUARY 19, 1954, IN THE CASE OF AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE IN A SIMILAR SITUATION, THAT IT WOULD BE PROPER, UPON RESIGNATION OF THE EMPLOYEE WHILE STILL IN A LEAVE WITHOUT PAY STATUS, TO MAKE LUMP-SUM PAYMENT FOR LEAVE EARNED DURING THE 90-DAY QUALIFYING PERIOD. SEE ALSO B-126976, MARCH 12, 1956. THIS WAS BASED ON THE PRINCIPLE SET FORTH IN 31 COMP. GEN. 215 THAT "LEAVE OF ABSENCE WITHOUT PAY DOES NOT CONSTITUTE A BREAK IN SERVICE DURING THE QUALIFYING PERIOD OR AT ANY OTHER TIME.' WE HELD IN 31 COMP. GEN. 581 (QUESTION 2), HOWEVER, THAT ANNUAL LEAVE CREDITED TO AN EMPLOYEE AT THE END OF THIS 90- DAY QUALIFYING PERIOD COULD NOT BE SUBSTITUTED RETROACTIVELY FOR ANY PERIOD OF LEAVE WITHOUT PAY GRANTED AND TAKEN DURING THE 90-DAY PERIOD. (SEE ALSO ADMINISTRATIVE REGULATIONS, DEPARTMENT OF AGRICULTURE, TITLE 8, PARAGRAPH 1062B). TO DO SO WOULD RENDER INEFFECTIVE THE PROVISIONS OF SEC. 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951 (65 STAT. 681) PROHIBITING THE USE OF LEAVE BEFORE THE 90-DAY QUALIFYING PERIOD HAS EXPIRED. IN THE SAME DECISION (QUESTION 5B) AND IN 32 COMP. GEN. 204, WHICH YOU CITE, WE HELD THAT, GENERALLY, THE PLACING OF AN EMPLOYEE ON ANNUAL LEAVE IS A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY.

HENCE, CONCERNING THE SPECIFIC QUESTION ASKED IN YOUR LETTER, THE LAW DOES NOT PROHIBIT ADMINISTRATIVE ACTION TO SUBSTITUTE (AND PAY FOR) ANNUAL LEAVE EARNED DURING THE QUALIFYING PERIOD FOR A LIKE PERIOD OF LEAVE WITHOUT PAY AT ANY TIME AFTER THE 90-DAY QUALIFYING PERIOD HAS EXPIRED.

INSUFFICIENT FACTS WERE FURNISHED TO PERMIT A VERIFICATION HERE OF THE CORRECTNESS OF THE RESPECTIVE AMOUNTS OF ANNUAL LEAVE CREDITED TO THE TWO EMPLOYEES. THEREFORE, NO DECISION IS RENDERED AS TO WHETHER THE CLAIM MAY BE PAID IN THE EXACT AMOUNTS STATED THEREIN.