B-145902, JUN. 28, 1961

B-145902: Jun 28, 1961

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AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. THE LUMP-SUM LEAVE PAYMENT IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE. HE IS ENTITLED TO THE INCREASED RATE EVEN THOUGH THE EFFECTIVE DATE OF PAYMENT THEREOF IS POSTPONED TO THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE DATE THE REQUIREMENTS WERE MET. 26 COMP.

B-145902, JUN. 28, 1961

TO THE AUTHORIZED CERTIFYING OFFICER, HOUSING AND HOME FINANCE AGENCY, OFFICE OF THE REGIONAL ADMINISTRATOR:

YOUR LETTER OF MAY 17, 1961, REQUESTS OUR DECISION CONCERNING THE PROPER RATE TO BE USED IN MAKING A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE TO AN EMPLOYEE WHO REACHES THE AGE FOR MANDATORY RETIREMENT ON THE THE SAME DAY THAT HE COMPLETES THE WAITING PERIOD FOR A LONGEVITY STEP-INCREASE.

SPECIFICALLY, YOU WISH TO BE ADVISED WHETHER IT WOULD BE PROPER IN THE COMPUTATION OF THE LUMP-SUM PAYMENT, TO USE THE HIGHER RATE FOR ANY PART OF THE UNUSED LEAVE.

SECTION 2255 (A) OF TITLE 5 OF THE U.S.C. PROVIDES AS FOLLOWS:

"/A) EXCEPT AS HEREINAFTER PROVIDED, AN EMPLOYEE WHO SHALL HAVE ATTAINED THE AGE OF SEVENTY YEARS AND COMPLETED FIFTEEN YEARS OF SERVICE SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE. SUCH SEPARATION SHALL BE EFFECTIVE ON THE LAST DAY OF THE MONTH IN WHICH SUCH EMPLOYEE ATTAINS THE AGE OF SEVENTY YEARS OR COMPLETES FIFTEEN YEARS OF SERVICE IF THEN BEYOND SUCH AGE, AND ALL SALARY SHALL CEASE FROM THAT DAY.'

THE RIGHT TO THE LUMP-SUM PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, ACCRUES TO AN EMPLOYEE AT THE TIME OF HIS SEPARATION FROM THE SERVICE. 26 COMP. GEN. 102 (4TH PARAGRAPH OF SYLLABUS). IN OTHER WORDS, THE LUMP-SUM LEAVE PAYMENT IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.

SECTION 703 OF THE ACT OF OCTOBER 28, 1949, AS AMENDED, 5 U.S.C. 1123, ESTABLISHES ELIGIBILITY FOR A LONGEVITY STEP-INCREASE UPON THE COMPLETION BY AN OFFICER OR EMPLOYEE OF THREE YEARS OF CONTINUOUS SERVICE AT THE MAXIMUM SCHEDULED RATE OF HIS GRADE OR AT A RATE IN EXCESS THEREOF.

YOU SAY THAT AT THE CLOSE OF BUSINESS ON THE DAY OF SEPARATION THE EMPLOYEE MET THE WAITING PERIOD REQUIREMENTS OF THE STATUTE AUTHORIZING A LONGEVITY STEP-INCREASE. HIS RESIGNATION TOOK EFFECT SIMULTANEOUSLY. UNDER THE RATIONALE OF OUR DECISION 32 COMP. GEN. 10, AND ASSUMING THAT THE EMPLOYEE MET ALL OTHER REQUIREMENTS FOR A LONGEVITY STEP-INCREASE, HIS RIGHTS TO SUCH INCREASE BECAME FIXED AND VESTED AT THE CLOSE OF MAY 31, 1961.

THEREFORE, HE IS ENTITLED TO THE INCREASED RATE EVEN THOUGH THE EFFECTIVE DATE OF PAYMENT THEREOF IS POSTPONED TO THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE DATE THE REQUIREMENTS WERE MET. 26 COMP. GEN. 119 (2ND PARAGRAPH OF SYLLABUS).

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