B-140508, SEP. 4, 1959

B-140508: Sep 4, 1959

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BURLEGIH WAS INDUCED TO FOREGO SCHEDULED USE OF HER CURRENT ACCRUED ANNUAL LEAVE JUST PRIOR TO HER SEPARATION AND WAS PAID A LUMP SUM FOR ANNUAL LEAVE IN EXCESS OF 30 DAYS CONTRARY TO PUBLIC LAW 525. IS ENCLOSED. THE REMARKS COLUMN SHOWED THE NUMBER OF DAYS SHE WAS ANTICIPATING LUMP-SUM PAYMENT. THE GENERAL RULE IS THAT THE DATE OF SEPARATION BY RESIGNATION IS THE DATE TENDERED BY THE EMPLOYEE. GEN. 517 OUR DECISIONS HAVE PERMITTED CORRECTIVE ACTION WHEN THE CIRCUMSTANCES OF A PARTICULAR CASE SHOW THAT THE RESIGNATION HAS NOT BEEN ACCEPTED IN THE TERMS SUBMITTED OR THAT THE RESIGNATION AS EXECUTED DID NOT CONFORM WITH THE INTENTION OF THE PARTIES. PARAGRAPH 11C (1) STATES: "WHERE AN EMPLOYEE IS NOT EXPECTED TO RETURN TO DUTY FOLLOWING PREGNANCY AND CONFINEMENT.

B-140508, SEP. 4, 1959

TO THE HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

ON JULY 14, 1959, MRS. LORETTA B. BURLEIGH, A FORMER EMPLOYEE OF VETERANS ADMINISTRATION HOSPITAL 5245, WILMINGTON, DELAWARE, INFORMED US THAT SHE HAD BEEN PRESENTED A BILL FOR $128.15 ON ACCOUNT OF AN OVERPAYMENT IN LUMP SUM LEAVE AT THE TIME OF HER SEPARATION IN AUGUST 1957. SHE PROTESTED THE BILL UPON THE GROUND THAT, JUST PRIOR TO HER RESIGNATION, THE AGENCY HAD ASSURED HER THAT SHE COULD BE PAID A LUMP SUM FOR ALL THE ANNUAL LEAVE SHE HAD TO HER CREDIT AND FOR THAT REASON SHE DID NOT TAKE THE CURRENT ACCRUED ANNUAL LEAVE PRIOR TO SEPARATION.

ON JULY 27, 1959, OUR CLAIMS DIVISION CALLED UPON THE VETERANS ADMINISTRATION REGIONAL OFFICE, DARVO BUILDING, WILMINGTON, DELAWARE, FOR A COMPLETE REPORT CONCERNING THE MATTER. ON JULY 30 WE RECEIVED A REPORT FROM THAT OFFICE TO THE EFFECT THAT MRS. BURLEGIH WAS INDUCED TO FOREGO SCHEDULED USE OF HER CURRENT ACCRUED ANNUAL LEAVE JUST PRIOR TO HER SEPARATION AND WAS PAID A LUMP SUM FOR ANNUAL LEAVE IN EXCESS OF 30 DAYS CONTRARY TO PUBLIC LAW 525, 78TH CONGRESS, 58 STAT. 845, 5 U.S.C. 61B, BECAUSE OF A MISTAKEN ASSUMPTION BY THE AGENCY THAT THAT STATUTE DID NOT APPLY TO DM AND S PERSONNEL. A COPY OF THE REPORT, WITH ATTACHMENT, IS ENCLOSED. WE NOTE THEREFROM THAT MRS. BURLEIGH DID NOT PROPOSE AN EFFECTIVE DATE FOR HER RESIGNATION TO TAKE PLACE ON STANDARD FORM 52, BUT THE REMARKS COLUMN SHOWED THE NUMBER OF DAYS SHE WAS ANTICIPATING LUMP-SUM PAYMENT.

THE GENERAL RULE IS THAT THE DATE OF SEPARATION BY RESIGNATION IS THE DATE TENDERED BY THE EMPLOYEE, AND SUCH DATE MAY NOT BE CHANGED ONCE IT BECOMES AN ACCOMPLISHED FACT. 32 COMP. GEN. 111. ON THE OTHER HAND, FOLLOWING 21 COMP. GEN. 517 OUR DECISIONS HAVE PERMITTED CORRECTIVE ACTION WHEN THE CIRCUMSTANCES OF A PARTICULAR CASE SHOW THAT THE RESIGNATION HAS NOT BEEN ACCEPTED IN THE TERMS SUBMITTED OR THAT THE RESIGNATION AS EXECUTED DID NOT CONFORM WITH THE INTENTION OF THE PARTIES.

VETERANS ADMINISTRATION MANUAL MP 5, CHAPTER 8, SECTION B, PARAGRAPH 11C (1) STATES:

"WHERE AN EMPLOYEE IS NOT EXPECTED TO RETURN TO DUTY FOLLOWING PREGNANCY AND CONFINEMENT, SHE WILL BE GRANTED ONLY THE ACCUMULATED AND ACCRUED SICK LEAVE AND ANNUAL LEAVE AS CANNOT BE INCLUDED IN A LUMP-SUM PAYMENT. WHERE SEPARATION IS A CONSEQUENCE, THE ACTION WILL BE TAKEN AT THE EXPIRATION OF SUCH LEAVE. * * *.'

SINCE THE RESIGNATION AS ACCEPTED WAS EXPRESSIVE NEITHER OF THE INTENT OF THE AGENCY NOR OF THE EMPLOYEE AND WAS ACCOMPLISHED CONTRARY TO THE POLICY OF THE AGENCY, AS EXPRESSED IN THE QUOTED REGULATION, WE WILL INTERPOSE NO OBJECTION TO A CHANGE IN THE DATE OF MRS. BURLEIGH'S SEPARATION TO THE DATE OF EXPIRATION OF THE ANNUAL LEAVE IN QUESTION COMPUTED OVER THE PERIOD IMMEDIATELY FOLLOWING THE ORIGINAL SEPARATION ACTION SO AS TO ALLOW THE CANCELLATION OF THE DEBT AND PAYMENT TO HER OF THE ADDITIONAL SUM DUE BECAUSE OF THE ADJUSTMENT ACTION.

WE SHOULD APPRECIATE YOUR INFORMING US OF ANY ACTION TAKEN PURSUANT TO THIS LETTER.