B-140576, OCTOBER 23, 1959, 39 COMP. GEN. 308

B-140576, OCTOBER 23, 1959, 39 COMP. GEN. 308

CIVILIAN PERSONNEL - ANNUAL LEAVE - NINETY-DAY QUALIFYING PERIOD - WHEN ACTUALLY-EMPLOYED STATUS BETWEEN REGULAR APPOINTMENTS A PERIOD BETWEEN TWO REGULAR APPOINTMENTS WHEN AN EMPLOYEE HAS HIS REGULAR APPOINTMENT TERMINATED AND IS APPOINTED AND SERVES IN A WHEN ACTUALLY-EMPLOYED POSITION WITHOUT A REGULAR TOUR OF DUTY IS REGARDED AS A BREAK IN SERVICE WITHIN THE NINETY-DAY QUALIFYING PERIOD IN SECTION 203 (I), OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2062 (I), SO THAT UPON REAPPOINTMENT TO A POSITION SUBJECT TO THE LEAVE ACT THE EMPLOYEE IS REQUIRED TO SERVE A NEW PERIOD OF NINETY DAYS OF CONTINUOUS SERVICE FOR ANNUAL LEAVE PURPOSES.

TO LIEUTENANT LOUIS E. COTTLE, UNITED STATES ARMY, OCTOBER 23, 1959:

ON AUGUST 14, 1959, YOU REQUESTED OUR DECISION WHETHER AN EMPLOYEE MUST BEGIN A NEW NINETY-DAY QUALIFYING PERIOD FOR ANNUAL LEAVE ACCRUAL PURPOSES UNDER THE FOLLOWING STATED FACTS AND CIRCUMSTANCES. WHILE YOU NORMALLY WOULD NOT BE ENTITLED TO A DECISION UNLESS YOU HAVE A VOUCHER BEFORE YOU FOR CERTIFICATION OR PAYMENT--- SEE GENERALLY 21 COMP. GEN. 1128 AND 26 ID. 797, 799--- IN THIS INSTANCE WE WILL INFORM YOU OF OUR VIEWS IN THE MATTER SINCE IT APPEARS YOU HAVE THE QUESTION IN A SPECIFIC CASE BEFORE YOU.

THE EMPLOYEE WAS GIVEN A " CAREER-CONDITIONAL APPOINTMENT" ON JUNE 20, 1957, AND HE SERVED CONTINUOUSLY IN THAT STATUS THROUGH JUNE 27, 1959. EFFECTIVE JUNE 28, 1959, A PERSONNEL ACTION SF 50) WAS RECEIVED FROM THE PERSONNEL OFFICE WITH THE FOLLOWING NOTATION:

CHANGE TO LOWER GRADE--- PAY ADJUSTMENT ( FULL-TIME TO WAE/--- NO REGULAR TOUR OF DUTY ESTABLISHED DURING EACH ADMINISTRATIVE WORKWEEK. LUMP SUM PAYMENT OF ANNUAL LEAVE BEING MADE IN ACCORDANCE WITH PROVISIONS OF CPL 1.10-2A (2) A.

THE EMPLOYEE WAS PAID A LUMP SUM FOR HIS ANNUAL LEAVE COMPUTED OVER THE PERIOD JUNE 28, 1959, THROUGH THREE HOURS JULY 23, 1959. SINCE YOU SAY THE EMPLOYEE WAS NOT IN A LEAVE EARNING STATUS AND SINCE IT APPEARS NO REGULAR TOUR OF DUTY WAS ESTABLISHED, WE ASSUME THAT WHILE HOLDING THE WAE POSITION HE WAS PROPERLY EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, UNDER SECTION 202 (B) (1) (B) OF THE ACT (5 U.S.C. 2061). DURING THE EMPLOYEE'S WAE STATUS ( JUNE 28 THROUGH AUGUST 8, 1959) HE WAS PAID FOR A TOTAL OF 206 3/4 HOURS BASE SALARY. EFFECTIVE AUGUST 9, 1959, A PERSONNEL ACTION WAS RECEIVED WITH THE NOTATION " PROMOTION--- PAY ADJUSTMENT ( WAE TO FULL-TIME).'

THE QUESTION FOR OUR DETERMINATION IS WHETHER THE PERIOD ( JUNE 28 THROUGH AUGUST 8, 1959), DURING WHICH THE EMPLOYEE WAS IN A WAE STATUS WITH NO REGULARLY ESTABLISHED TOUR OF DUTY, IS TO BE CONSIDERED A BREAK IN SERVICE WITHIN THE MEANING OF THAT TERM AS USED IN SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062 (I). THAT STATUTE READS AS FOLLOWS:

NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION, AN OFFICER OR EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE UNDER THIS CHAPTER ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT BREAK IN SERVICE. ANY CASE IN WHICH AN OFFICER OR EMPLOYEE COMPLETES A PERIOD OF CONTINUOUS EMPLOYMENT OF NINETY DAYS THERE SHALL BE CREDITED TO HIM AN AMOUNT OF ANNUAL LEAVE EQUAL TO THE AMOUNT WHICH, BUT FOR THIS SUBSECTION, WOULD HAVE ACCRUED TO HIM UNDER SUBSECTION (A) OF THIS SECTION DURING SUCH PERIOD. ( ITALICS SUPPLIED.)

HERE THE EMPLOYEE'S APPOINTMENT WAS TERMINATED FROM THE POSITION IN WHICH HE WAS ENTITLED TO EARN ANNUAL LEAVE UNDER THE 1951 ACT. HE WAS APPOINTED TO A LOWER GRADE WAE POSITION NOT SUBJECT TO THE ACT AND WAS PAID A LUMP SUM FOR THE ANNUAL LEAVE TO HIS CREDIT. WE CONSIDER THE EMPLOYMENT IN THE WAE POSITION AS CONSTITUTING A "BREAK IN SERVICE" WITHIN THE MEANING OF THAT TERM AS USED IN THE QUOTED SECTION 203 (I) ABOVE. THEREFORE, UPON THE EMPLOYEE'S REAPPOINTMENT TO THE POSITION SUBJECT TO THE 1951 LEAVE ACT, HE IS REQUIRED UNDER SECTION 203 (I) OF THE ACT TO BEGIN A NEW PERIOD OF NINETY DAYS OF CONTINUOUS CURRENT EMPLOYMENT FOR ANNUAL LEAVE PURPOSES.