B-27224, JULY 16, 1942, 22 COMP. GEN. 42

B-27224: Jul 16, 1942

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SEPARATION FROM SERVICE WHERE AN EMPLOYEE WAS SEPARATED FROM THE SERVICE WITHOUT A RETURN TO DUTY AFTER A PERIOD OF LEAVE WITHOUT PAY FOLLOWING A PERIOD OF ADVANCED SICK LEAVE. A FURLOUGH WITHOUT PAY TO ENTER THE MILITARY SERVICE IS TO BE REGARDED AS A "SEPARATION" UNDER SECTION 7 OF THE ANNUAL LEAVE REGULATIONS. AN EMPLOYEE EARNS ANNUAL LEAVE DURING A PERIOD OF LEAVE WITHOUT PAY AGGREGATING LESS THAN 30 CALENDAR DAYS ONLY WHEN THERE IS A RETURN TO DUTY. 1942: I HAVE YOUR LETTER OF JULY 2. APPLIED FOR AND WAS GRANTED ADVANCE SICK LEAVE FOR TWO ADDITIONAL DAYS. IT IS CONTENDED BY THE EMPLOYEE THAT SICK LEAVE WAS EARNED DURING THE 28 DAY PERIOD WHILE IN NONPAY STATUS (UNDER PROVISIONS OF SECTION 10.

B-27224, JULY 16, 1942, 22 COMP. GEN. 42

LEAVES OF ABSENCE - LEAVE ON LEAVE WITHOUT PAY; SEPARATION FROM SERVICE WHERE AN EMPLOYEE WAS SEPARATED FROM THE SERVICE WITHOUT A RETURN TO DUTY AFTER A PERIOD OF LEAVE WITHOUT PAY FOLLOWING A PERIOD OF ADVANCED SICK LEAVE, SECTION 17 OF THE SICK LEAVE REGULATIONS, PROVIDING THAT SICK LEAVE MAY NOT BE GRANTED FOR A PERIOD IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS, UNLESS THERE BE A RETURN TO ACTUAL DUTY, AND THAT SUCH LEAVE WITHOUT PAY MAY NOT BE CONVERTED INTO SICK LEAVE, PRECLUDES THE CREDITING, IN PARTIAL LIQUIDATION OF THE ADVANCED LEAVE, OF SICK LEAVE ACCRUED PURSUANT TO SECTION 10 OF SAID REGULATIONS DURING THE PERIOD OF LEAVE WITHOUT PAY. A FURLOUGH WITHOUT PAY TO ENTER THE MILITARY SERVICE IS TO BE REGARDED AS A "SEPARATION" UNDER SECTION 7 OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT AN EMPLOYEE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE DURING ANY CALENDAR YEAR SHALL BE ENTITLED TO ALL OF HIS ACCUMULATED AND CURRENT ACCRUED LEAVE "TO AND INCLUDING THE DATE OF SEPARATION.' UNDER SECTION 10 OF THE ANNUAL LEAVE REGULATIONS, AN EMPLOYEE EARNS ANNUAL LEAVE DURING A PERIOD OF LEAVE WITHOUT PAY AGGREGATING LESS THAN 30 CALENDAR DAYS ONLY WHEN THERE IS A RETURN TO DUTY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JULY 16, 1942:

I HAVE YOUR LETTER OF JULY 2, 1942, AS FOLLOWS:

A QUESTION RELATING TO INTERPRETATION OF UNIFORM SICK LEAVE REGULATIONS CONTAINED IN EXECUTIVE ORDER NO. 8385 FOR WHICH NO DIRECT PRECEDENT CAN BE FOUND HAS ARISEN IN THE DEPARTMENT.

IN THE INSTANT CASE, AN EMPLOYEE, HAVING USED ALL ACCRUED SICK AND ANNUAL LEAVE, APPLIED FOR AND WAS GRANTED ADVANCE SICK LEAVE FOR TWO ADDITIONAL DAYS. AT THE END OF THAT PERIOD, THE EMPLOYEE WENT ON A LEAVE WITHOUT PAY STATUS FOR TWENTY-EIGHT DAYS AND THEN RESIGNED. IT IS CONTENDED BY THE EMPLOYEE THAT SICK LEAVE WAS EARNED DURING THE 28 DAY PERIOD WHILE IN NONPAY STATUS (UNDER PROVISIONS OF SECTION 10, SICK LEAVE REGULATIONS) AND THAT ONLY A PORTION OF THE PAYMENT FOR THE TWO DAYS ADVANCED LEAVE NEED BE REFUNDED, EVEN THOUGH THE EMPLOYEE DID NOT RETURN TO ACTIVE DUTY. THE QUESTION THEREFORE ARISES AS TO WHETHER RETURN TO DUTY IS REQUIRED TO RECEIVE CREDIT FOR LEAVE EARNED WHILE IN A NONPAY STATUS.

A SIMILAR QUESTION HAS BEEN PRESENTED IN INTERPRETING ANNUAL LEAVE REGULATIONS WHEN A NONPAY PERIOD INTERVENES BETWEEN A PERIOD OF ANNUAL LEAVE AND ACTUAL INDUCTION INTO MILITARY SERVICE. IF AN EMPLOYEE IS FURLOUGHED TO BE EFFECTIVE AT THE CLOSE OF BUSINESS ON THE DAY PRECEDING DATE OF INDUCTION, BUT TWO DAYS INTERVENE BETWEEN EXPIRATION OF ACCUMULATED AND ACCRUED ANNUAL LEAVE AND THE INDUCTION DATE, HE IS PLACED ON LEAVE WITHOUT PAY FOR THE INTERVENING PERIOD. THE QUESTION THEN ARISES AS TO WHETHER HE CAN BE PAID FOR THE ADDITIONAL ANNUAL LEAVE EARNED WHILE IN LEAVE-WITHOUT-PAY STATUS PRECEDING FURLOUGH.

YOUR DECISION ON THESE QUESTIONS IS NECESSARY TO THE SOLUTION OF THE INSTANT AND FUTURE CASES INVOLVING RELATED QUESTIONS.

SECTIONS 10 AND 17 OF THE UNIFORM SICK-LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940, PROVIDE, RESPECTIVELY, AS FOLLOWS:

SICK LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS. SICK LEAVE SHALL NOT ACCUMULATE TO AN EMPLOYEE WHILE IN A NONPAY STATUS DUE TO LEAVE WITHOUT PAY OR FURLOUGH WHEN THE DURATION OF SUCH NONPAY STATUS IN ANY CALENDAR YEAR AGGREGATES 30 CALENDAR DAYS OR MORE: * * *

SICK LEAVE MAY NOT BE GRANTED FOR A PERIOD IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS, UNLESS AND UNTIL THERE IS A RETURN TO ACTUAL DUTY, NOR MAY SUCH LEAVE WITHOUT PAY BE CONVERTED INTO SICK LEAVE.

HAD THE EMPLOYEE REFERRED TO IN THE SECOND PARAGRAPH OF YOUR LETTER RETURNED TO DUTY, HE WOULD HAVE EARNED SICK LEAVE UNDER THE QUOTED PROVISIONS OF SECTION 10 OF THE REGULATIONS DURING THE 28 DAYS (LESS THAN 30 DAYS) LEAVE OF ABSENCE WITHOUT PAY, AND THIS COULD HAVE BEEN CREDITED TO HIM IN REDUCTION OF HIS OVERDRAWN SICK LEAVE. SEE SECTION 4 OF THE SICK-LEAVE REGULATIONS. HOWEVER, SECTION 17 OF THE REGULATIONS, ABOVE QUOTED, CLEARLY PRECLUDES CREDITING THE EMPLOYEE WITH ADDITIONAL SICK LEAVE AS EARNED DURING A PERIOD OF TERMINAL LEAVE OF ABSENCE WITHOUT PAY OF ANY LENGTH AS SUCH ACTION WOULD BE TANTAMOUNT TO CONVERTING A PORTION OF THE PERIOD OF TERMINAL LEAVE OF ABSENCE WITHOUT PAY TO SICK LEAVE WHICH IS PROHIBITED BY THE REGULATIONS--- THERE HAVING BEEN NO RETURN TO DUTY. THUS, THE CONTENTION OF THE EMPLOYEE IS WITHOUT MERIT AND HE SHOULD BE CHARGED WITH THE 2 DAYS OVERDRAWN SICK LEAVE.

SECTIONS 7, 10, AND 13 OF THE UNIFORM ANNUAL-LEAVE REGULATIONS, EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940, PROVIDE RESPECTIVELY AS FOLLOWS:

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.

ANNUAL LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS. EXCEPT AS PROVIDED IN SECTION 9 HEREOF, ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE IN A NON-PAY STATUS DUE TO LEAVE WITHOUT PAY OR FURLOUGH WHEN THE DURATION OF SUCH NON-PAY STATUS IN ANY CALENDAR YEAR AGGREGATES 30 CALENDAR DAYS OR MORE: * * *

ANNUAL LEAVE SHALL NOT BE GRANTED WITH PAY AT THE BEGINNING OF A CALENDAR YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NON-PAY STATUS IN THE PRECEDING YEAR UNLESS AND UNTIL THERE IS A RETURN TO DUTY, AT WHICH TIME LEAVE MAY BE RETROACTIVELY GRANTED. LEAVE WITHOUT PAY UNDER ANY OTHER CIRCUMSTANCES MAY NOT LATER BE CONVERTED INTO ANNUAL LEAVE.

IN DECISION OF DECEMBER 19, 1941, 21 COMP. GEN. 596, 598, IT WAS STATED, IN PERTINENT PART, AS FOLLOWS:

* * * 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. ( ITALICS SUPPLIED.)

A FURLOUGH WITHOUT PAY TO ENTER THE MILITARY SERVICE IS TO BE REGARDED AS A "SEPARATION" WITHIN THE MEANING OF SECTION 7 OF THE ANNUAL LEAVE REGULATIONS FOR THE PURPOSE OF COMPUTING TERMINAL ANNUAL LEAVE OF ABSENCE.

UNDER SECTION 10 OF THE ANNUAL LEAVE REGULATIONS, AN EMPLOYEE EARNS ANNUAL LEAVE DURING A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY AGGREGATING LESS THAN 30 CALENDAR DAYS ONLY WHERE THERE IS A RETURN TO DUTY. EMPLOYEE DOES NOT EARN ADDITIONAL ANNUAL LEAVE DURING A PERIOD OF TERMINAL LEAVE OF ABSENCE WITHOUT PAY OF ANY LENGTH FOR THE REASON THAT THE CREDITING OF SUCH ADDITIONAL ANNUAL LEAVE TO THE EMPLOYEE WOULD BE TANTAMOUNT TO CONVERTING THE LEAVE WITHOUT PAY TO ANNUAL LEAVE IN CONTRAVENTION OF THE LAST SENTENCE OF SECTION 13 OF THE ANNUAL LEAVE REGULATIONS. ACCORDINGLY, THE QUESTION CONTAINED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE. COMPARE 17 COMP. GEN. 174; 19 ID. 716.