B-147272, OCT. 6, 1961

B-147272: Oct 6, 1961

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YOUR ACTING ASSISTANT DIRECTOR (ADMINISTRATION) EXPLAINED IN DETAIL WHY YOUR AGENCY DOES NOT CONSIDER THAT THE EMPLOYEE TO WHOM THOSE LETTERS REFER IS INDEBTED TO THE UNITED STATES BECAUSE OF HIS HAVING RESIGNED FROM A POSITION UNDER YOUR AGENCY WHILE ON HOME LEAVE IN THE UNITED STATES. YOUR ACTING DIRECTOR EXPRESSES THE VIEW THAT SINCE IT WAS NOT KNOWN AT THE TIME THE HOME LEAVE WAS GRANTED THAT THE EMPLOYEE WOULD RESIGN WITHOUT A RETURN TO DUTY. OUR VIEW IS THAT EXCEPT IN THE LIMITED CATEGORY OF CASES SPECIFIED IN SECTION 30.606 OF THE ANNUAL AND SICK LEAVE REGULATIONS AN EMPLOYEE'S ENTITLEMENT TO HOME LEAVE IS CONTINGENT UPON HIS REMAINING IN THE SERVICE AFTER THE EXPIRATION OF SUCH LEAVE.

B-147272, OCT. 6, 1961

TO THE DIRECTOR, UNITED STATES INFORMATION AGENCY:

ON AUGUST 21, 1961, IN REPLY TO LETTER OF JULY 20, 1961, FROM OUR ASSOCIATE DIRECTOR, CIVIL ACCOUNTING AND AUDITING DIVISION, YOUR ACTING ASSISTANT DIRECTOR (ADMINISTRATION) EXPLAINED IN DETAIL WHY YOUR AGENCY DOES NOT CONSIDER THAT THE EMPLOYEE TO WHOM THOSE LETTERS REFER IS INDEBTED TO THE UNITED STATES BECAUSE OF HIS HAVING RESIGNED FROM A POSITION UNDER YOUR AGENCY WHILE ON HOME LEAVE IN THE UNITED STATES.

YOUR ACTING DIRECTOR EXPRESSES THE VIEW THAT SINCE IT WAS NOT KNOWN AT THE TIME THE HOME LEAVE WAS GRANTED THAT THE EMPLOYEE WOULD RESIGN WITHOUT A RETURN TO DUTY, THE HOME LEAVE SO GRANTED DID NOT CONSTITUTE "TERMINAL" LEAVE WITHIN THE MEANING OF SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680. IN VIEW THEREOF YOUR AGENCY CONCLUDED THAT NO ACTION TO EFFECT RECOVERY OF THE VALUE OF THE HOME LEAVE GRANTED AND USED WOULD BE REQUIRED.

AS A MATTER OF FACT, SUCH CONCLUSION APPEARS CONTRARY TO YOUR OWN REGULATION. SEE PART V-B OF MANUAL OF OPERATIONS AND ADMINISTRATION, SECTION 648 (B), OCTOBER 10, 1958. IN ANY EVENT, OUR VIEW IS THAT EXCEPT IN THE LIMITED CATEGORY OF CASES SPECIFIED IN SECTION 30.606 OF THE ANNUAL AND SICK LEAVE REGULATIONS AN EMPLOYEE'S ENTITLEMENT TO HOME LEAVE IS CONTINGENT UPON HIS REMAINING IN THE SERVICE AFTER THE EXPIRATION OF SUCH LEAVE. SECTION 203 (F) OF THE ANNUAL AND SICK LEAVE ACT SAYS "BUT NO SUCH LEAVE (HOME LEAVE) WHICH IS NOT USED SHALL BE MADE THE BASIS FOR ANY TERMINAL LEAVE OR FOR ANY LUMP-SUM PAYMENT.' SECTION 30.606 OF THE LEAVE REGULATION SAYS THAT ,AN EMPLOYEE SHALL BE INDEBTED FOR THE HOME LEAVE USED BY HIM WHEN HE FAILS TO RETURN TO SERVICE ABROAD.' WHILE CERTAIN EXCEPTIONS TO THIS PROVISION ARE SET OUT IN THE REGULATION OF THE COMMISSION, NONE OF THE EXCEPTIONS WOULD COVER THE TYPE CASE HERE INVOLVED. HERE THE EMPLOYEE VOLUNTARILY AND FOR PERSONAL REASONS RESIGNED FROM HIS POSITION UNDER YOUR AGENCY TO ACCEPT PRIVATE EMPLOYMENT. EVEN IF WE ASSUME THAT AT THE COMMENCEMENT OF HIS HOME LEAVE HE INTENDED TO RETURN TO SERVICE ABROAD, SUCH INTENTION DOES NOT RENDER THE HOME LEAVE ANY LESS "TERMINAL" WHEN, IN FACT, THE EMPLOYEE RESIGNED BEFORE THE EXPIRATION THEREOF. A RESIGNATION DURING A PERIOD OF HOME LEAVE CONSTITUTES THE HOME LEAVE "TERMINAL LEAVE" WITHIN THE MEANING OF THE STATUTORY PROVISION AND THE IMPLEMENTING REGULATIONS OF THE CIVIL SERVICE COMMISSION. IN SUPPORT OF THAT VIEW THE FOLLOWING STATEMENT APPEARS ON PAGE 7 OF SENATE REPORT NO. 546, JULY 12, 1951:

"THE COMMITTEE INTENDS THAT A LEAVE OF ABSENCE UNDER THIS PROVISION BE GRANTED ONLY DURING ONE OR BETWEEN TWO CONSECUTIVE ASSIGNMENTS ABROAD. IS INTENDED FURTHER THAT ANY VIOLATION OF THIS CONCEPT ON THE PART OF ANY EMPLOYEE IN THE FOREIGN SERVICE SHOULD RESULT IN REQUIRING A REFUND OF THE FULL AMOUNT OF SALARY RECEIVED BY THE EMPLOYEE FOR THE ENTIRE PERIOD OF SUCH LEAVE IMPROPERLY USED.'

THEREFORE, APPROPRIATE ACTION SHOULD BE TAKEN TO EFFECT THE COLLECTION OF THE INDEBTEDNESS OF THE FORMER EMPLOYEE INVOLVED.

WE SHOULD APPRECIATE YOUR INFORMING US OF THE ACTION TAKEN IN THIS MATTER.