B-155988, FEB. 8, 1965

B-155988: Feb 8, 1965

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SORLIE REQUESTED AND WAS GRANTED ANNUAL LEAVE FOR THE PERIOD OCTOBER 6 THROUGH DECEMBER 31. SUCH RESIGNATION WAS RECEIVED BY THE DIVISION IN WHICH MRS. SORLIE WAS EMPLOYED ON DECEMBER 17. SORLIE'S ANNUAL LEAVE WOULD NOT HAVE BEEN EXHAUSTED UNTIL SOMETIME IN JANUARY 1965 HER SEPARATION WAS PROCESSED TO BE EFFECTIVE ON THE DATE IT WAS TENDERED. THAT SEPARATION ACTION WAS "CORRECTED" TO CHANGE THE EFFECTIVE DATE TO JANUARY 5. THE QUESTION IS WHETHER THE EMPLOYEE MUST BE SEPARATED IN ACCORDANCE WITH HER REQUEST AT THE EXPIRATION OF HER ANNUAL LEAVE OR WHETHER HER SEPARATION SHOULD HAVE BEEN PROCESSED ON THE DAY THE ADMINISTRATIVE OFFICE WAS INFORMED THAT SHE WOULD NOT RETURN TO DUTY. GEN. 511 WE HELD THAT THE GENERAL RULE REGARDING ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL LEAVE IMMEDIATELY PRIOR TO SEPARATION WAS THAT AN EMPLOYEE COULD NOT BE ALLOWED SUCH LEAVE BUT WAS TO BE SEPARATED AND PAID FOR ACCRUED ANNUAL LEAVE IN A LUMP SUM IN ANY CASE WHERE IT WAS KNOWN IN ADVANCE THAT HE WAS TO BE SEPARATED FROM SERVICE.

B-155988, FEB. 8, 1965

TO MISS ETHELREDA C. FESMIRE:

ON JANUARY 22, 1965, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER ENCLOSED REPRESENTING FINAL SALARY AND LUMP-SUM LEAVE PAYMENT DUE MRS. FRANCES H. SORLIE, A FORMER EMPLOYEE OF THE NATIONAL LABOR RELATIONS BOARD.

MRS. SORLIE REQUESTED AND WAS GRANTED ANNUAL LEAVE FOR THE PERIOD OCTOBER 6 THROUGH DECEMBER 31, 1964, HOWEVER, ON DECEMBER 14 WHILE ON ANNUAL LEAVE SHE SIGNED HER RESIGNATION STIPULATING THAT IT SHOULD BECOME EFFECTIVE "AT THE EXPIRATION OF MY ANNUAL LEAVE.' APPARENTLY, SUCH RESIGNATION WAS RECEIVED BY THE DIVISION IN WHICH MRS. SORLIE WAS EMPLOYED ON DECEMBER 17, 1964. ALTHOUGH MRS. SORLIE'S ANNUAL LEAVE WOULD NOT HAVE BEEN EXHAUSTED UNTIL SOMETIME IN JANUARY 1965 HER SEPARATION WAS PROCESSED TO BE EFFECTIVE ON THE DATE IT WAS TENDERED, DECEMBER 14. ON JANUARY 13, 1965, THAT SEPARATION ACTION WAS "CORRECTED" TO CHANGE THE EFFECTIVE DATE TO JANUARY 5, ALLOWING THE EMPLOYEE THE BENEFIT OF THE ANNUAL LEAVE CREDITED FOR THE TWO ADDITIONAL PAY PERIODS WHICH ENDED IN THE INTERVAL BETWEEN THE TWO SEPARATION DATES.

THE QUESTION IS WHETHER THE EMPLOYEE MUST BE SEPARATED IN ACCORDANCE WITH HER REQUEST AT THE EXPIRATION OF HER ANNUAL LEAVE OR WHETHER HER SEPARATION SHOULD HAVE BEEN PROCESSED ON THE DAY THE ADMINISTRATIVE OFFICE WAS INFORMED THAT SHE WOULD NOT RETURN TO DUTY.

IN 24 COMP. GEN. 511 WE HELD THAT THE GENERAL RULE REGARDING ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL LEAVE IMMEDIATELY PRIOR TO SEPARATION WAS THAT AN EMPLOYEE COULD NOT BE ALLOWED SUCH LEAVE BUT WAS TO BE SEPARATED AND PAID FOR ACCRUED ANNUAL LEAVE IN A LUMP SUM IN ANY CASE WHERE IT WAS KNOWN IN ADVANCE THAT HE WAS TO BE SEPARATED FROM SERVICE. THAT RULE WAS FOLLOWED IN 34 COMP. GEN. 61 ALTHOUGH IT WAS RECOGNIZED THAT EXCEPTIONS EXISTED IN VIEW OF CERTAIN OVERRIDING STATUTORY AND REGULATORY PROVISIONS AND THAT TERMINAL LEAVE COULD BE GRANTED IF IT WAS ADMINISTRATIVELY DETERMINED THAT THE EXIGENCIES OF THE SERVICE REQUIRED. IN A CASE SIMILAR TO THAT HERE INVOLVED WE HELD THAT AN EMPLOYEE WHO SUBMITTED HIS RESIGNATION WHILE ON ANNUAL LEAVE WAS TO BE SEPARATED ON THE DAY SUCH RESIGNATION WAS SUBMITTED AND NOT AT THE EXPIRATION OF HIS ANNUAL LEAVE. B-134914, FEBRUARY 28, 1958, COPY ENCLOSED. IN VIEW OF THE EXPLICIT PROVISION OF THE "LUMP SUM LEAVE ACT," THE ACT OF DECEMBER 21, 1944, CH. 632, 58 STAT. 845, AS AMENDED, 5 U.S.C. 61B, THERE IS NO AUTHORITY TO ALLOW A GRANT OF TERMINAL LEAVE (OTHER THAN CURRENT ACCRUED LEAVE) TO AN EMPLOYEE REGARDLESS OF WHETHER SUCH LEAVE BE REQUESTED BY AN EMPLOYEE ON HIS RESIGNATION OR WHETHER A DATE IN THE FUTURE BE SPECIFIED AS THE EFFECTIVE DATE OF THE RESIGNATION.

SINCE NO EVIDENCE WAS PRESENTED TO SHOW THAT THE EXIGENCIES OF THE SERVICE REQUIRED THE GRANT OF TERMINAL LEAVE TO MRS. SORLIE, SHE MAY BE ALLOWED COMPENSATION FOR ANNUAL LEAVE ONLY TO THE DATE SHE NOTIFIED THE NATIONAL LABOR RELATIONS BOARD THAT SHE INTENDED TO RESIGN WITHOUT RETURNING TO DUTY AND THE LUMP-SUM PAYMENT ALLOWED HER FOR ANNUAL LEAVE MUST BE BASED UPON HER SEPARATION AS OF THAT DATE (PRESUMABLY CLOSE OF BUSINESS DECEMBER 17, 1964). THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT ONLY IN ACCORDANCE WITH THE ABOVE.