B-163199, JANUARY 22, 1968, 47 COMP. GEN. 386

B-163199: Jan 22, 1968

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IN VIEW OF THE VARIOUS SITUATIONS IN WHICH NONWORKDAYS FALLING BETWEEN CONTINUOUS PERIODS OF SERVICE ARE NOT REGARDED AS INTERRUPTING THE SERVICE. AN INDIVIDUAL MUST HAVE BEEN ON THE ROLLS OF AN AGENCY ON DECEMBER 16. THE EMPLOYEE IS ENTITLED TO PAYMENT IN THE AMOUNT OF THE RETROACTIVE INCREASE AUTHORIZED BY THE ACT FOR THE PERIOD OCTOBER 8 THROUGH DECEMBER 15. THE FOLLOWING FACTS WERE SET FORTH IN LETTER OF DECEMBER 29. MISS SUTPHIN WAS NOT ON THE ROLLS OF EITHER THE FBI OR ST. IT IS FELT THAT IT WAS NOT THE INTENT OF CONGRESS TO DENY RETROACTIVE PAY TO AN EMPLOYEE WHO RESIGNED FROM A POSITION IN ONE AGENCY AND ENTERED ON DUTY WITH ANOTHER FEDERAL AGENCY ON THE FOLLOWING WORKDAY EVEN THOUGH THE PUBLIC LAW WAS ENACTED ON AN INTERVENING NONWORKDAY.

B-163199, JANUARY 22, 1968, 47 COMP. GEN. 386

COMPENSATION - INCREASES - RETROACTIVE - NONWORKDAYS BETWEEN SEPARATION AND REEMPLOYMENT AN EMPLOYEE SEPARATED BY RESIGNATION, AS REQUIRED BY THE EMPLOYING GOVERNMENT AGENCY, ON FRIDAY, DECEMBER 15, 1967, IN ORDER TO ACCEPT EMPLOYMENT ON MONDAY, DECEMBER 18, 1967, IN ANOTHER GOVERNMENT AGENCY MAY BE CONSIDERED, IN VIEW OF THE VARIOUS SITUATIONS IN WHICH NONWORKDAYS FALLING BETWEEN CONTINUOUS PERIODS OF SERVICE ARE NOT REGARDED AS INTERRUPTING THE SERVICE, AS BEING "IN THE SERVICE OF THE UNITED STATES" WITHIN THE PURVIEW OF SECTION 218 (A) OF THE FEDERAL SALARY ACT OF 1967, WHICH PROVIDES THAT TO BE ENTITLED TO THE RETROACTIVE COMPENSATION PRESCRIBED BY THE ACT, AN INDIVIDUAL MUST HAVE BEEN ON THE ROLLS OF AN AGENCY ON DECEMBER 16, 1967, THE DATE OF ENACTMENT OF THE ACT AND, THEREFORE, THE EMPLOYEE IS ENTITLED TO PAYMENT IN THE AMOUNT OF THE RETROACTIVE INCREASE AUTHORIZED BY THE ACT FOR THE PERIOD OCTOBER 8 THROUGH DECEMBER 15, 1967.

TO MAURICE F. ROW, DEPARTMENT OF JUSTICE, JANUARY 22, 1968:

THIS REFERS TO YOUR LETTER OF DECEMBER 29, 1967, REQUESTING A DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MISS LENA SUTPHIN IN THE AMOUNT OF $51.12 REPRESENTING RETROACTIVE COMPENSATION FOR THE PERIOD OCTOBER 8 THROUGH DECEMBER 15, 1967, UNDER THE PROVISIONS OF THE FEDERAL SALARY ACT OF 1967, PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, 81 STAT. 624, U.S.C. 5332 NOTE.

THE FOLLOWING FACTS WERE SET FORTH IN LETTER OF DECEMBER 29, 1967:

* * * MISS SUTPHIN RESIGNED FROM THIS BUREAU EFFECTIVE DECEMBER 15, 1967; HOWEVER, SHE ENTERED ON DUTY WITH THE ST. ELIZABETH'S HOSPITAL, WASHINGTON, D.C., ON DECEMBER 18, 1967, THE NEXT WORKDAY FOLLOWING HER SEPARATION FROM THIS BUREAU.

THE "POSTAL REVENUE AND FEDERAL SALARY ACT OF 1967," PUBLIC LAW 90 206, APPROVED DECEMBER 16, 1967, PROVIDES IN PART IN SECTION 218 (A) THAT "RETROACTIVE PAY, COMPENSATION, OR SALARY SHALL BE PAID BY REASON OF THIS TITLE ONLY IN THE CASE OF AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES (INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES) OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ON THE DATE OF ENACTMENT OF THIS TITLE * * *.' TECHNICALLY, MISS SUTPHIN WAS NOT ON THE ROLLS OF EITHER THE FBI OR ST. ELIZABETH'S HOSPITAL ON DECEMBER 16, 1967, THE DATE OF THE ENACTMENT OF PUBLIC LAW 90-206. HOWEVER, IT IS FELT THAT IT WAS NOT THE INTENT OF CONGRESS TO DENY RETROACTIVE PAY TO AN EMPLOYEE WHO RESIGNED FROM A POSITION IN ONE AGENCY AND ENTERED ON DUTY WITH ANOTHER FEDERAL AGENCY ON THE FOLLOWING WORKDAY EVEN THOUGH THE PUBLIC LAW WAS ENACTED ON AN INTERVENING NONWORKDAY.

IN VARIOUS SITUATIONS THE NONWORKDAYS FALLING BETWEEN OTHERWISE CONTINUOUS PERIODS OF SERVICE ARE NOT REGARDED AS INTERRUPTING SUCH SERVICE. FOR EXAMPLE, THE PRIOR REGULATIONS OF THE CIVIL SERVICE COMMISSION PERTAINING TO LONGEVITY INCREASES PROVIDED THAT THE CONTINUOUS PERIOD OF SERVICE REQUIRED BY LAW AS ONE OF THE CONDITIONS FOR ENTITLEMENT TO SUCH INCREASES WAS NOT BROKEN BY A BREAK IN SERVICE OF LESS THAN 4 WORKWEEKS. THE CURRENT REGULATIONS OF THE COMMISSION PERTAINING TO PAY UNDER THE CLASSIFICATION ACT, 5 CFR 531.202, REFER TO A BREAK IN SERVICE AS 1 WORKDAY IN DEFINING THE TERMS "REEMPLOYMENT" AND "TRANSFER.' ADDITION, WE HAVE HELD THAT NONWORKDAYS INTERVENING BETWEEN SEPARATION FROM ONE AGENCY AND APPOINTMENT IN ANOTHER DO NOT CONSTITUTE A BREAK IN SERVICE WITHIN THE MEANING OF THE UNIFORM LEAVE REGULATIONS THEN IN EFFECT. SEE 17 COMP. GEN. 414; 16 ID. 212.

WE HAVE BEEN INFORMALLY ADVISED THAT EMPLOYEES ARE NOT TRANSFERRED INTO NOR OUT OF THE FEDERAL BUREAU OF INVESTIGATION. WHEN AN EMPLOYEE LEAVES THE BUREAU HE IS SEPARATED BY RESIGNATION AND NEW EMPLOYEES ARE APPOINTED WITHOUT REGARD TO CIVIL SERVICES REGISTER. MISS SUTPHIN TENDERED HER RESIGNATION TO THE BUREAU ON FRIDAY IN ORDER TO ACCEPT EMPLOYMENT ON MONDAY IN ANOTHER GOVERNMENT AGENCY.

IN VIEW OF THE ABOVE WE BELIEVE THAT THERE IS REASONABLE BASIS FOR THE VIEW THAT FOR THE INTERVENING PERIOD OF NONWORKDAYS BETWEEN SEPARATION IN ONE AGENCY BY RESIGNATION AND APPOINTMENT IN ANOTHER THE EMPLOYEE MAY BE CONSIDERED "IN THE SERVICE OF THE UNITED STATES" WITHIN THE PURVIEW OF SECTION 218 (A) OF THE FEDERAL SALARY ACT OF 1967.

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