B-35133, JUNE 28, 1943, 22 COMP. GEN. 1138

B-35133, JUNE 28, 1943, 22 COMP. GEN. 1138

LEAVES OF ABSENCE - ANNUAL - TRANSFERS - PART TIME OR INTERMITTENT EMPLOYMENT INTERVENING BETWEEN PERMANENT FULL TIME EMPLOYMENT UNDER SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT EMPLOYEES WHO TRANSFER FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, TO ANOTHER POSITION NOT WITHIN THE PURVIEW OF THE ACT SHALL BE CREDITED WITH ACCRUED LEAVE UPON RETRANSFER OR REAPPOINTMENT TO A POSITION WITHIN THE ACT, AN EMPLOYEE WHO TRANSFERRED WITHOUT BREAK IN SERVICE FROM A FULL TIME PERMANENT POSITION TO A PART TIME OR INTERMITTENT POSITION--- A POSITION NOT WITHIN THE PURVIEW OF THE SAID ACT--- IS ENTITLED TO HAVE RECREDITED TO HIM, UPON REAPPOINTMENT TO A FULL TIME PERMANENT POSITION, THE UNUSED ANNUAL LEAVE EARNED IN THE FORMER FULL TIME PERMANENT POSITION.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, JUNE 28, 1943:

I HAVE YOUR LETTER OF JUNE 11, 1943, AS FOLLOWS:

WE HAVE AN EMPLOYEE WHO WAS APPOINTED ON A FULL-TIME BASIS UNDER WAR SERVICE REGULATION V FOR AN INDEFINITE PERIOD, EFFECTIVE AUGUST 13, 1942. EFFECTIVE MARCH 3, 1943, HE WAS PLACED ON A PART-TIME INDEFINITE BASIS, AND HAD TO HIS CREDIT APPROXIMATELY ELEVEN DAYS ACCRUED ANNUAL LEAVE. ACTION IS NOW BEING TAKEN TO RETURN HIM TO FULL-TIME STATUS. HIS SERVICES HAVE BEEN AND WILL BE CONTINUOUS, AND RETIREMENT DEDUCTIONS HAVE BEEN MADE DURING HIS PART-TIME AS WELL AS HIS FULL TIME STATUS.

UNDER THE CIRCUMSTANCES, MAY THE UNUSED LEAVE CREDITS WHICH WERE EARNED DURING THE FIRST PERIOD OF FULL-TIME SERVICES BE RESTORED TO THE EMPLOYEE UPON HIS BEING RETURNED TO FULL-TIME SERVICES?

SECTION 7 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, 1162, PROVIDES:

THE LEAVE OF ABSENCE HEREIN PROVIDED FOR SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE, SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE APPLICATION OF THIS ACT.

SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, EXECUTIVE ORDER 8384, DATED MARCH 29, 1940, ISSUED PURSUANT TO THE ABOVE-QUOTED STATUTE, PROVIDES IN PERTINENT PART:

* * * AN EMPLOYEE TRANSFERRED OR APPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936, TO ANOTHER POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT, SHALL BE CREDITED WITH ALL LEAVE ACCUMULATED AND ACCRUED ON THE DATE OF SUCH TRANSFER OR APPOINTMENT AT SUCH TIME AS HE MAY BE SUBSEQUENTLY RETRANSFERRED OR REAPPOINTED TO A POSITION WITHIN THE PURVIEW OF THAT ACT, PROVIDED SUCH SUBSEQUENT RETRANSFER OR REAPPOINTMENT IS ALSO WITHOUT BREAK IN SERVICE. "BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.

"PART-TIME OR INTERMITTENT EMPLOYEES" ARE EXPRESSLY EXCLUDED FROM THE PURVIEW OF THE ANNUAL LEAVE ACT AND REGULATIONS BY SECTION 19 (F) (2) OF THE REGULATIONS. SEE 15 COMP. GEN. 1058; 16 ID. 442; 18 ID. 457, 1001. THEREFORE, PART-TIME OR INTERMITTENT SERVICE MAY BE REGARDED AS A "POSITION OR EMPLOYMENT IN THE FEDERAL SERVICE WHICH IS NOT WITHIN THE PURVIEW OF THAT ACT" (QUOTING FROM SECTION 6 OF THE ANNUAL LEAVE REGULATIONS, SUPRA). HENCE, IF THE INVOLVED EMPLOYEE PROPERLY IS CLASSED AS A "PART-TIME OR INTERMITTENT EMPLOYEE," AS DISTINGUISHED FROM AN "INDEFINITE EMPLOYEE" (SEE DEFINITION OF THAT TERM, SECTION 1 (E) OF TH ANNUAL LEAVE REGULATIONS), AND IF THERE IS NO BREAK IN SERVICE, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.