B-148891, JUN. 14, 1962

B-148891: Jun 14, 1962

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TWINE RESIGNED HIS POSITION WITH THE DEPARTMENT AND WAS SEPARATED ON APRIL 28. AT THE TIME OF SUCH SEPARATION HE WAS SERVING UNDER A TEMPORARY EXCEPTED APPOINTMENT IN A GS-7 POSITION EFFECTIVE NOVEMBER 30. WAS EXECUTED BY THE DEPARTMENT TO SHOW THAT MR. TWINE WOULD HAVE BEEN PROMOTED TO GS-9 AND GIVEN A REGULAR (NONTEMPORARY) APPOINTMENT ON MAY 17. HE WAS REEMPLOYED IN THE GS-9 POSITION. IT IS APPARENT FROM THE PERSONNEL FILE WHICH YOU FORWARDED WITH YOUR REQUEST FOR A DECISION THAT MR. TWINE WAS EXPECTED TO RETURN TO THE DEPARTMENT AFTER HIS MILITARY SERVICE. THAT FILE DOES NOT SHOW WHY HE WAS GIVEN A TEMPORARY RATHER THAN A REGULAR APPOINTMENT IN NOVEMBER. HAVE BEEN INFORMALLY ADVISED BY THE PERSONNEL OFFICE OF THE DEPARTMENT THAT MR.

B-148891, JUN. 14, 1962

TO AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF JUSTICE:

YOUR LETTER OF MAY 10, 1962, REFERENCE A3-1, REQUESTS OUR DECISION WHETHER YOU PROPERLY MAY CERTIFY FOR PAYMENT THE VOUCHER ENCLOSED THEREWITH TO REIMBURSE MR. EDGAR H. TUINE, AN EMPLOYEE OF THE DEPARTMENT OF JUSTICE, FOR FIFTEEN DAYS OF MILITARY LEAVE INCIDENT TO HIS ACTIVE MILITARY SERVICE FROM APRIL 29 TO OCTOBER 4, 1959.

MR. TWINE RESIGNED HIS POSITION WITH THE DEPARTMENT AND WAS SEPARATED ON APRIL 28, 1959, FOR THE PURPOSE OF ENTERING MILITARY SERVICE. AT THE TIME OF SUCH SEPARATION HE WAS SERVING UNDER A TEMPORARY EXCEPTED APPOINTMENT IN A GS-7 POSITION EFFECTIVE NOVEMBER 30, 1958, NOT TO EXCEED NOVEMBER 29, 1959. ON MAY 11, 1959, A FORM DJ 50, NOTIFICATION OF PERSONNEL ACTION, WAS EXECUTED BY THE DEPARTMENT TO SHOW THAT MR. TWINE WOULD HAVE BEEN PROMOTED TO GS-9 AND GIVEN A REGULAR (NONTEMPORARY) APPOINTMENT ON MAY 17, HAD HE NOT BEEN SEPARATED FOR MILITARY SERVICE. EFFECTIVE OCTOBER 6, 1959, HE WAS REEMPLOYED IN THE GS-9 POSITION.

SECTION 29 (A) OF THE ACT OF AUGUST 10, 1956, 70A STAT. 632, 5 U.S.C. 3OR (A), AUTHORIZES MILITARY LEAVE FOR EACH "* * * OFFICER OR EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA, PERMANENT OR TEMPORARY INDEFINITE, WITHOUT REGARD TO CLASSIFICATION OR TERMINOLOGY PECULIAR TO THE CIVIL SERVICE SYSTEM * * *.'

IT IS APPARENT FROM THE PERSONNEL FILE WHICH YOU FORWARDED WITH YOUR REQUEST FOR A DECISION THAT MR. TWINE WAS EXPECTED TO RETURN TO THE DEPARTMENT AFTER HIS MILITARY SERVICE. THAT FILE DOES NOT SHOW WHY HE WAS GIVEN A TEMPORARY RATHER THAN A REGULAR APPOINTMENT IN NOVEMBER, 1958. HAVE BEEN INFORMALLY ADVISED BY THE PERSONNEL OFFICE OF THE DEPARTMENT THAT MR. TWINE WAS CONSIDERED AS A PERMANENT EMPLOYEE AT THE TIME OF THAT APPOINTMENT BUT THAT BECAUSE OF A RAISE IN ENTRANCE SALARY RATE FOR SIMILAR POSITIONS WHICH WAS TO BE EFFECTIVE DURING THE NEXT YEAR HE AND OTHERS IN A LIKE SITUATION WERE GIVEN TEMPORARY APPOINTMENTS WITH THE INTENT OF PROMOTING THEM PRIOR TO THE EXPIRATION OF ONE YEAR UNDER AN EXCEPTION TO THE "WHITTEN AMENDMENT" SECTION 1310, OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, 65 STAT. 757, 5 U.S.C. 43 NOTE.

THE LEGISLATIVE HISTORY OF THE ACT OF JULY 1, 1947, 61 STAT. 238, WHICH ACT FIRST AUTHORIZED MILITARY LEAVE FOR TEMPORARY INDEFINITE EMPLOYEES SHOWS THAT THE CONGRESS INTENDED TO EXCLUDE FROM MILITARY LEAVE ONLY EMPLOYEES WHOSE POSITIONS WERE ACTUALLY OF A TEMPORARY OR INTERMITTENT NATURE. SEE DECISION OF NOVEMBER 22, 1961, B-147560, COPY ENCLOSED. SINCE MR. TWINE WAS CONSIDERED A PERMANENT EMPLOYEE AND SINCE HE WOULD HAVE BEEN GIVEN A PERMANENT APPOINTMENT BUT FOR THE PECULIAR SITUATION WHICH EXISTED AT THE TIME OF SUCH APPOINTMENT IT IS OUR VIEW THAT THE PROVISIONS OF 5 U.S.C. 30R WERE APPLICABLE IN HIS CASE AND THAT HE WAS ENTITLED TO MILITARY LEAVE AT THE TIME OF HIS SEPARATION IN APRIL, 1959, TO ENTER THE MILITARY SERVICE.

THEREFORE, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.