B-22533, DECEMBER 19, 1941, 21 COMP. GEN. 596

B-22533: Dec 19, 1941

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ANNUAL LEAVE IS EARNED FOR ALL PERIODS AN EMPLOYEE IS IN A PAY STATUS REGARDLESS OF WHETHER HE BE ON ACTUAL DUTY OR ON LEAVE WITH PAY. IN GRANTING AN EMPLOYEE THE ACCUMULATED AND CURRENT ACCRUED LEAVE TO WHICH HE IS ENTITLED UPON SEPARATION FROM THE SERVICE. 1941: I HAVE YOUR LETTER OF DECEMBER 6. AS FOLLOWS: IT IS RESPECTFULLY REQUESTED THAT YOU ADVISE THIS COMMISSION AS TO THE PROPER ADMINISTRATION OF ANNUAL LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT UNDER DATE OF MARCH 29. HE IS ENTITLED TO ALL OF HIS ACCUMULATED LEAVE PLUS HIS CURRENT ACCRUED LEAVE TO AND INCLUDING THE DATE OF SEPARATION. (A) WILL THIS EMPLOYEE EARN ANNUAL LEAVE WHILE CARRIED ON THE PAY ROLL AFTER SEPTEMBER 30.

B-22533, DECEMBER 19, 1941, 21 COMP. GEN. 596

LEAVES OF ABSENCE - ANNUAL - SEPARATION FROM SERVICE UNDER THE ACT OF MARCH 14, 1936, AND THE ANNUAL LEAVE REGULATIONS PROMULGATED PURSUANT THERETO, ANNUAL LEAVE IS EARNED FOR ALL PERIODS AN EMPLOYEE IS IN A PAY STATUS REGARDLESS OF WHETHER HE BE ON ACTUAL DUTY OR ON LEAVE WITH PAY, INCLUDING A PERIOD OF ACCUMULATED AND CURRENT ACCRUED LEAVE GRANTED UPON VOLUNTARY OR INVOLUNTARY SEPARATION FROM THE SERVICE. A LETTER ACCEPTING THE RESIGNATION OF AN EMPLOYEE SHOULD STATE THE DEFINITE DATE OF TERMINATION OF THE EMPLOYMENT, TAKING INTO CONSIDERATION LEAVE EARNED DURING A PERIOD OF PAY COVERING ACCUMULATED AND ACCRUED LEAVE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE. IN GRANTING AN EMPLOYEE THE ACCUMULATED AND CURRENT ACCRUED LEAVE TO WHICH HE IS ENTITLED UPON SEPARATION FROM THE SERVICE, A FRACTION OF A DAY SHOULD BE CONSIDERED IN MULTIPLES OF 15 MINUTES.

COMPTROLLER GENERAL WARREN TO COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, DECEMBER 19, 1941:

I HAVE YOUR LETTER OF DECEMBER 6, 1941, AS FOLLOWS:

IT IS RESPECTFULLY REQUESTED THAT YOU ADVISE THIS COMMISSION AS TO THE PROPER ADMINISTRATION OF ANNUAL LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT UNDER DATE OF MARCH 29, 1940, AS ENUNCIATED IN EXECUTIVE ORDER 8384, WITH PARTICULAR REFERENCE TO SECTIONS 7, 8, AND 10, UNDER THE FOLLOWING CIRCUMSTANCES:

1. A PERMANENT EMPLOYEE SUBMITS HIS RESIGNATION TO BE EFFECTIVE AT THE EXPIRATION OF HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, STATING IN THE RESIGNATION HIS LAST DAY OF DUTY TO BE SEPTEMBER 30, 1941. ON JANUARY 1, 1941, THE EMPLOYEE HAD ACCUMULATED 60 DAYS' ANNUAL LEAVE, STATING IN THE RESIGNATION HIS LAST DAY OF DUTY TO BE SEPTEMBER 30, 1941. ON JANUARY 1, 1941, THE EMPLOYEE HAD ACCUMULATED 60 DAYS' ANNUAL LEAVE. DURING THE CALENDAR YEAR 1941 HE HAD BEEN GRANTED 10 DAYS ANNUAL LEAVE PRIOR TO SEPTEMBER 30, 1941. ACCORDING TO SECTION 7 OF THE ANNUAL LEAVE REGULATIONS, HE IS ENTITLED TO ALL OF HIS ACCUMULATED LEAVE PLUS HIS CURRENT ACCRUED LEAVE TO AND INCLUDING THE DATE OF SEPARATION.

(A) WILL THIS EMPLOYEE EARN ANNUAL LEAVE WHILE CARRIED ON THE PAY ROLL AFTER SEPTEMBER 30, 1941, FOR THE PURPOSE OF RECEIVING COMPENSATION FOR HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE?

(B) PLEASE ADVISE WHAT DATE IS MEANT BY THAT PART OF SECTION 7 WHICH READS,"* * * TO AND INCLUDING THE DATE OF SEPARATION.' IS IT THE LAST DAY OF DUTY OR IS IT THE LAST DAY OF PAY INCLUDING THE PERIOD OF PAY FOR ANNUAL LEAVE?

(C) IN THE EVENT LEAVE IS EARNED WHILE ON LEAVE AFTER SEPTEMBER 30, 1941, SHOULD THE DEFINITE DATE OF TERMINATION OF THE EMPLOYMENT BE STATED IN THE LETTER ACCEPTING THE RESIGNATION? IF SO, WHEN THE FRACTION OF A DAY BECOMES LESS THAN 1/2 DAY, SHOULD THE FRACTION BE CONSIDERED FOR EACH 15 MINUTES?

2. A PERMANENT EMPLOYEE WHOSE SERVICES WERE NOT REQUIRED AFTER SEPTEMBER 30, 1941, DUE TO REDUCTION IN FORCE, HAD ACCUMULATED 60 DAYS' ANNUAL LEAVE ON JANUARY 1, 1941. DURING THE CALENDAR YEAR 1941 HE HAD BEEN GRANTED 15 DAYS ANNUAL LEAVE PRIOR TO SEPTEMBER 30, 1941. PURSUANT TO SECTION 8 OF THE ANNUAL LEAVE REGULATIONS, HIS DATE OF DISCHARGE SHOULD BE FIXED SO AS TO PERMIT HIM TO TAKE ALL OF HIS ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE. SECTION 10 OF THE ANNUAL LEAVE REGULATIONS PROVIDES THAT ANNUAL LEAVE SHOULD ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS.

(A) UNDER THE ABOVE CIRCUMSTANCES WOULD THE EMPLOYEE EARN LEAVE AFTER SEPTEMBER 30, 1941, WHILE HIS NAME APPEARS ON THE PAY ROLL OF THE COMMISSION FOR THE PURPOSE OF GRANTING TO HIM HIS ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE?

THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDES, IN SECTION 1, THAT WITH THE EXCEPTION OF CERTAIN CLASSES OF EMPLOYEES---

* * * ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS. * * *

SECTIONS 7, 8, AND THE FIRST SENTENCE OF SECTION 10 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940) PROVIDE, RESPECTIVELY, AS FOLLOWS:

SEC. 7. AN EMPLOYEE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE DURING ANY CALENDAR YEAR SHALL BE ENTITLED TO ALL OF HIS ACCUMULATED LEAVE PLUS HIS CURRENT ACCRUED LEAVE TO AND INCLUDING THE DATE OF SEPARATION.

SEC. 8. AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE ENTITLED TO ALL OF HIS ACCUMULATIVE LEAVE AND CURRENT ACCRUED LEAVE, AND THE DATE OF HIS DISCHARGE SHALL BE FIXED SO AS TO PERMIT HIM TO TAKE SUCH LEAVE. THE DATE OF DISCHARGE OF AN EMPLOYEE SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICER CONCERNED, BE FIXED SO AS TO PERMIT THE ALLOWANCE OF ALL OR ANY PART OF ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.

SEC. 10. ANNUAL LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS. * * *

THE TERMS "ACCUMULATED LEAVE" AND "CURRENT ACCRUED LEAVE" ARE DEFINED IN SECTION 1 OF THE SAME REGULATIONS AS FOLLOWS:

(F) "ACCUMULATED LEAVE" MEANS THE UNUSED ANNUAL LEAVE NOT EXCEEDING 60 DAYS WHICH HAS ACCRUED DURING YEARS PRIOR TO THE CURRENT YEAR.

(H) "CURRENT ACCRUED LEAVE" MEANS THAT PART OF THE CURRENT ANNUAL LEAVE WHICH BEARS THE SAME RATIO TO THE CURRENT ANNUAL LEAVE THAT THE EXPIRED PART OF THE CURRENT YEAR BEARS TO THE FULL YEAR.

UNDER THE ACT OF MARCH 14, 1936, SUPRA, ANNUAL LEAVE OF ABSENCE AT THE RATE OF 26 DAYS PER ANNUM, OR TWO AND ONE-SIXTH DAYS PER MONTH--- WHICH IS AUTHORIZED TO BE PRORATED FOR A FRACTIONAL YEAR'S SERVICE--- IS A RIGHT GRANTED BY STATUTE. THOMAS V. UNITED STATES, 87 CT.CLS. 573. ANNUAL LEAVE IS EARNED FOR ALL DAYS AN EMPLOYEE IS IN A PAY STATUS REGARDLESS OF WHETHER HE BE ON ACTUAL DUTY OR ON LEAVE OF ABSENCE WITH PAY--- IT HAVING BEEN HELD THAT THE PERIOD OF LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH A DUTY STATUS. 13 COMP. GEN. 295, 370; 14 ID. 351, 585; 17 ID. 349, 641, 906.

THERE IS NOTHING IN THE TERMS OF THE FIRST SENTENCE OF SECTION 10 OF THE REGULATIONS ABOVE QUOTED DENYING THE RIGHT TO ACCRUE ANNUAL LEAVE WHILE AN EMPLOYEE IS ON SO-CALLED "TERMINAL LEAVE," THAT IS, ON ANNUAL LEAVE TAKEN IMMEDIATELY PRIOR TO FINAL SEPARATION FROM THE SERVICE. THAT SITUATION WAS RECOGNIZED IN MY DECISION OF MAY 13, 1941, B-15309, TO THE SECRETARY OF THE INTERIOR, IN ADJUSTING THE FINAL PAY ACCOUNT OF AN EMPLOYEE WHO HAD OVERDRAWN SICK LEAVE. ACCORDINGLY, QUESTION 1 (A) IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION 1 (B), THE WORDS "TO AND INCLUDING THE DATE OF SEPARATION" AS USED IN SECTION 7 OF THE ANNUAL LEAVE REGULATIONS, MEAN THE LAST DAY THE EMPLOYEE IS IN A PAY STATUS, INCLUDING THE PERIOD OF PAY COVERING TERMINAL LEAVE.

BOTH QUESTIONS UNDER 1 (C) ARE ANSWERED IN THE AFFIRMATIVE. AS TO THE SECOND OF SUCH QUESTIONS, SEE SECTION 12 OF THE ANNUAL LEAVE REGULATIONS.