B-21070, DECEMBER 4, 1941, 21 COMP. GEN. 517

B-21070, DECEMBER 4, 1941, 21 COMP. GEN. 517

LEAVES OF ABSENCE - ANNUAL - SEPARATION FROM SERVICE WHERE AN EMPLOYEE'S RESIGNATION WAS ERRONEOUSLY ACCEPTED TO BE EFFECTIVE PRIOR TO A PERIOD OF ACCRUED ANNUAL LEAVE EVEN THOUGH THE RESIGNATION EXPRESSLY STATED THAT IT SHOULD BE EFFECTIVE AT THE END OF SUCH PERIOD OF LEAVE AND THE ACCEPTANCE WAS NOT COMMUNICATED TO THE EMPLOYEE PRIOR TO THE EXPIRATION OF THE LEAVE, HE WAS NOT EFFECTIVELY SEPARATED FROM THE SERVICE THEREBY AND IS ENTITLED UNDER SECTION 7 OF THE ANNUAL LEAVE REGULATIONS TO COMPENSATION FOR THE ENTIRE PERIOD OF SUCH LEAVE. 16 COMP. GEN. 899, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, DECEMBER 4, 1941:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 15, 1941, RET:GB:JH, CSR --- 475206, AS FOLLOWS:

THIS OFFICE IS IN RECEIPT OF A RETIREMENT RECORD ACCOUNT ( FORM 2806) SHOWING RETIREMENT DEDUCTIONS UNDER THE ACT OF MAY 29, 1930, IN THE CASE OF DONOVAN A. LAWLESS, FORMER ASSISTANT MATERIAL ENGINEER, BUREAU OF AERONAUTICS, NAVY DEPARTMENT, WASHINGTON, D.C., ON WHICH THE TOTAL AMOUNT DUE WAS $1,002.15.

A LETTER HAS BEEN RECEIVED FROM THE NAVY DEPARTMENT IN REGARD TO A CLAIM AGAINST MR. LAWLESS IN THE AMOUNT OF $28.88 REPRESENTING OVERPAYMENT OF SALARY FOR THE PERIOD FEBRUARY 12, 1941, TO FEBRUARY 15, 1941, WHICH AMOUNT THAT OFFICE WOULD LIKE TO HAVE DEDUCTED FROM THE AMOUNT DUE MR. LAWLESS AS REFUND. THE BALANCE OF $973.27 WAS PAID TO MR. LAWLESS ON SEPTEMBER 30, 1941.

MR. LAWLESS HAS BEEN FULLY ADVISED OF THE CLAIM FILED AGAINST HIM AND UNDER DATE OF OCTOBER 8, 1941, OBJECTED TO THE PROPOSED SET-OFF.

ALL CORRESPONDENCE PERTAINING TO THIS CLAIM IS FORWARDED HEREWITH FOR VERIFICATION AND ISSUANCE OF APPROPRIATE INSTRUCTIONS. IT WILL BE APPRECIATED IF YOU WILL RETURN THE ENCLOSED CORRESPONDENCE WITH YOUR REPLY, WHICH THIS OFFICE WOULD LIKE TO HAVE IN DUPLICATE.

IT APPEARS FROM THE RECORDS OF THIS OFFICE THAT ON JANUARY 28, 1941, DONOVAN A. LAWLESS FILED HIS RESIGNATION WORDED AS FOLLOWS:

1. I HEREBY TENDER MY RESIGNATION AS ASSISTANT MATERIALS ENGINEER IN THE OFFICE OF THE PERMANENT WORKING COMMITTEE OF THE AERONAUTICAL BOARD, TO TAKE EFFECT AT THE EXPIRATION OF MY ANNUAL LEAVE TIME ACCRUED ON FEBRUARY 11, 1941.

2. I AM RESIGNING TO ACCEPT A POSITION WITH THE REYNOLDS METALS COMPANY AT LOUISVILLE, KENTUCKY.

THE RESIGNATION THUS TENDERED WAS ACCEPTED BY LETTER DATED FEBRUARY 7, 1941, IN THE FOLLOWING LANGUAGE:

1. YOUR RESIGNATION AS ASSISTANT MATERIALS ENGINEER, P-2, WITH PAY AT THE RATE OF $2,600 PER ANNUM, CHARGEABLE TO THE APPROPRIATION " AVIATION, NAVY," IS HEREBY ACCEPTED, WITHOUT PREJUDICE, EFFECTIVE AT THE CLOSE OF BUSINESS FEBRUARY 11, 1941.

FIRST INDORSEMENT DATED MARCH 6, 1941, ON THE ABOVE-QUOTED ACCEPTANCE LETTER, READS AS FOLLOWS: FROM: CHIEF OF THE BUREAU OF AERONAUTICS. TO: DONALD A. LAWLESS, THIRD AND EASTERN PARKWAY, LOUISVILLE,

KENTUCKY. 1. DELIVERED.

( JOHN B. MAY),

JOHN B. MAY,

CHIEF CLERK.

WITH REFERENCE TO A CLAIM FILED BY MR. LAWLESS FOR ANNUAL LEAVE ACCRUED BUT NOT GRANTED AT TIME OF SEPARATION THE CHIEF, BUREAU OF AERONAUTICS, REPORTED UNDER DATE OF JUNE 20, 1941, TO THE ASSISTANT SECRETARY OF THE NAVY, AS FOLLOWS:

1.THE BUREAU SUBMITS THE FOLLOWING INFORMATION IN COMPLIANCE WITH THE REQUEST IN THE SECOND ENDORSEMENT:

2. MR. LAWLESS CHECKED WITH THE TIME CLERK TO DETERMINE HIS ACCRUED ANNUAL LEAVE AND WAS TOLD THAT HIS EARNED ANNUAL LEAVE WOULD CARRY HIM FROM 12 FEBRUARY 1941 THROUGH CLOSE OF BUSINESS 24 FEBRUARY 1941. IT WAS UNDERSTOOD BY THE TIME AND PAY-ROLL CLERK THAT HE WOULD BE CARRIED ON THE PAY ROLL THROUGH 24 FEBRUARY, AND ON THIS BASIS MR. LAWLESS WAS PAID FOR THE PERIOD OF 1 FEBRUARY THROUGH 15 FEBRUARY.

THE PAY-ROLL CLERK UPON FINDING THAT MR. LAWLESS' RESIGNATION HAD BEEN INTERPRETED BY THE CHIEF CLERK'S OFFICE AS REQUESTING THE SECRETARY OF THE NAVY TO ACCEPT HIS RESIGNATION AS OF CLOSE OF BUSINESS 11 FEBRUARY 1941, CALLED THE SECRETARY'S OFFICE BY TELEPHONE AND EXPLAINED THAT THE RESIGNATION HAD BEEN MISINTERPRETED AND REQUESTED THAT THE DATE BE CHANGED TO 24 FEBRUARY. THE REPLY GIVEN BY THE SECRETARY'S OFFICE WAS THAT THE PAPERS HAD BEEN WRITTEN ACCEPTING MR. LAWLESS' RESIGNATION ON 11 FEBRUARY; THEREFORE, NOTHING COULD BE DONE ABOUT IT.

4. MR. LAWLESS WAS CARRIED ON PAY ROLL AND PAID THROUGH 15 FEBRUARY 1941 ON APPROPRIATION " AVIATION, NAVY," 1941, THE AMOUNT OF $108.33 LESS $3.80 RETIREMENT FUND, BY CHIEF DISBURSING OFFICER, G. F. ALLEN, ON D.O. VO NO. 1,425,372, SYMBOL 50-011. ACCORDING TO THE BUREAU'S RECORDS, MR. LAWLESS WAS ENTITLED TO $65.00 PAY LESS $2.28 RETIREMENT FUND, FOR THE NINE (9) DAYS COVERING PERIOD FROM 16 FEBRUARY THROUGH 24 FEBRUARY 1941.

5. IF MR. LAWLESS HAD WRITTEN HIS RESIGNATION TO TAKE EFFECT AT THE CLOSE OF BUSINESS 24 FEBRUARY 1941, THE POSSIBILITY OF MISINTERPRETATION WOULD HAVE BEEN ELIMINATED.

IT THUS APPEARS THAT THE RESIGNATION BY MR. LAWLESS WAS NOT ACCEPTED IN THE SAME TERMS UPON WHICH SUBMITTED AND FURTHER THAT THE ACCEPTANCE WAS NOT IN FACT COMMUNICATED TO HIM UNTIL MARCH 6, 1941.

IN THE CIRCUMSTANCES THE ACCEPTANCE OF THE RESIGNATION WAS WITHOUT FORCE AND EFFECT TO DEFEAT THE EMPLOYEE'S STATUTORY RIGHT TO ANNUAL LEAVE. SEE SECTION 7 OF THE ANNUAL LEAVE REGULATIONS. IN SUBMITTING AND FORWARDING THE CLAIM TO THIS OFFICE THE ADMINISTRATIVE OFFICE RECOMMENDED ITS DISALLOWANCE UPON THE BASIS OF THE DECISION OF THIS OFFICE, A-84582, MARCH 30, 1937, REPORTED IN 16 COMP. GEN. 899, IN WHICH IT WAS HELD:

THE RULE THAT THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM THE SERVICE FOR ANNUAL LEAVE ACCRUED BUT NOT TAKEN PRIOR THERETO AS ANNOUNCED IN DECISION IN 16 COMP. GEN. 28, AND PRIOR PUBLISHED DECISIONS, IS FOR GENERAL APPLICATION IRRESPECTIVE OF WHETHER THE SEPARATION WAS SUBSEQUENT OR PRIOR TO JANUARY 1, 1936, THE EFFECTIVE DATE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THERE MAY BE NO RESTORATION TO THE STATUS OF EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE IN SUCH CASES, NOTWITHSTANDING THE FAILURE TO GRANT SUCH LEAVE PRIOR TO SEPARATION WAS BECAUSE OF ADMINISTRATIVE MISUNDERSTANDING OR NEGLIGENCE.

HOWEVER, THAT DECISION IS NOT APPLICABLE TO THE PRESENT CASE AS THIS EMPLOYEE WAS NOT EFFECTIVELY SEPARATED FROM THE SERVICE PRIOR TO THE TIME HIS LEAVE WOULD HAVE EXPIRED FEBRUARY 24, 1941. AS THE EMPLOYEE'S RESIGNATION WAS EXPRESSLY TO BECOME EFFECTIVE AFTER THE EXPIRATION OF HIS ACCRUED LEAVE AND HE WAS NOT OTHERWISE INFORMED PRIOR TO THE EXPIRATION OF THE LEAVE THERE SEEMS REQUIRED HERE THE CONCLUSION THAT HE IS ENTITLED TO THE COMPENSATION OF HIS POSITION FOR THE ENTIRE PERIOD OF THE ACCRUED LEAVE TO HIS CREDIT.

ACCORDINGLY, THE APPROPRIATE DISBURSING OFFICE MAY BE INSTRUCTED TO DRAW A CHECK TO THE ORDER OF DONOVAN A. LAWLESS FOR THE AMOUNT HERETOFORE WITHHELD FROM THE AMOUNT OF HIS CREDIT IN THE RETIREMENT FUND TO COVER THE DEBT BELIEVED BY THE NAVY DEPARTMENT TO BE OWING BY HIM TO THE UNITED STATES.

AS REQUESTED THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED HEREWITH, AND THERE IS ENCLOSED AN EXTRA COPY OF THIS DECISION.