B-36325, AUGUST 26, 1943, 23 COMP. GEN. 138

B-36325, AUGUST 26, 1943, 23 COMP. GEN. 138

LEAVES OF ABSENCE - ANNUAL - SEPARATION FROM SERVICE AN EMPLOYEE'S RESIGNATION TENDERED TO TAKE EFFECT AT THE TERMINATION OF ALL ACCRUED LEAVE MAY NOT BE ADMINISTRATIVELY ACCEPTED RETROACTIVELY EFFECTIVE TO A DATE PRIOR TO THE DATE THE RESIGNATION WAS TENDERED SO AS TO DEFEAT THE RIGHT TO ACCUMULATED ANNUAL LEAVE, AND, THEREFORE, WHERE AN ADMINISTRATIVE ERROR IN THE COMPUTATION OF THE AMOUNT OF ACCRUED LEAVE DUE AN EMPLOYEE RESULTS IN FIXING A SEPARATION DATE RETROACTIVELY EFFECTIVE PRIOR TO THE EXPIRATION DATE OF THE PERIOD OVER WHICH THE AMOUNT OF LEAVE CORRECTLY COMPUTED WOULD HAVE RUN, ADMINISTRATIVE ACTION MAY BE TAKEN TO CORRECT THE ERROR SO AS TO FIX THE SEPARATION DATE AT THE TERMINATION OF THE PROPER AMOUNT OF ACCRUED LEAVE, BUT NOT BEYOND THE DATE THE RESIGNATION WAS ADMINISTRATIVELY ACCEPTED.

COMPTROLLER GENERAL WARREN TO W. R. FRANCE, DEPARTMENT OF AGRICULTURE, AUGUST 26, 1943:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1943, AS FOLLOWS:

SUBJECT: PAY ROLL VOUCHER NO. 2212.

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION THE ATTACHED PAY ROLL IN THE AMOUNT OF $12.32. IN THE LIGHT OF THE FACTS HEREIN STATED, PLEASE ADVISE ME IF I MAY PROPERTY CERTIFY THE ROLL FOR PAYMENT.

MRS. PAULINE C. BAERREIS WAS GIVEN A WAR SERVICE APPOINTMENT AS JUNIOR CLERK-1STENOGRAPHER, $1440 PER ANNUM, AND ENTERED ON DUTY FEBRUARY 16, 1943 WITH THE OFFICE OF PRICE ADMINISTRATION. ON APRIL 2, 1943, SHE TRANSFERRED TO THE SOIL CONSERVATION SERVICE AND CONTINUED WITH THIS SERVICE UNTIL MAY 3, 1943 AT 11:15 A.M., AT WHICH TIME HER APPOINTMENT WAS TERMINATED BY OFFICIAL ACTION DATED MAY 15, 1943. MRS. BAERREIS WAS PAID IN ACCORDANCE WITH THE OFFICIAL NOTIFICATION ON DISBURSING OFFICER'S VOUCHER NO. 6-543594, DATED MAY 29, 1943, ACCOUNTS OF G. F. ALLEN, SYMBOL 107-106.

DUE TO A NEW INTERPRETATION OF THE LEAVE REGULATIONS CLASSIFYING WAR SERVICE APPOINTEES AS PERMANENT FOR LEAVE PURPOSES, THE EFFECTIVE DATE OF RESIGNATION HAS BEEN CHANGED BY OFFICIAL ACTION, DATED JULY 22, 1943, TO MAY 5, 1943 AT 4:30 P.M. AND THE PAY ROLL HERE ATTACHED PROPOSES TO PAY MRS. BAERREIS FOR 2 DAYS, 4 1/4 HOURS ADDITIONAL TIME. HOWEVER, IN APPLYING COMPTROLLER GENERAL DECISIONS 10:11; 13:58; 16:28; 16:899; 17:48; 17:369; AND 19:236, WE DO NOT FIND THE DISTINCTION AS DRAWN IN THE CASE HERE SUBMITTED, IN THAT THE RESIGNATION WAS DATED MAY 8, 1943, THREE DAYS AFTER THE EFFECTIVE DATE OF THE RESIGNATION AMENDED JULY 22, 1943.

THE EMPLOYEE'S RESIGNATION DATED MAY 8, 1943, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER, READS:

IT HEREBY TENDER MY RESIGNATION OF THE POSITION OF JR. CLERK 1STENOGRAPHER, CAF-2 AT A SALARY AT THE RATE OF $1440 PER ANNUM IN THE --- --------, IN THE UNITED STATES DEPARTMENT OF AGRICULTURE, TO TAKE EFFECT AT THE EXPIRATION OF ALL AVAILABLE ANNUAL AND SICK LEAVE. REASONS: I SHALL BE PHYSICALLY UNABLE TO WORK FOR SEVERAL MONTHS AND DUE TO THE UNCERTAINTY AS TO WHETHER I SHALL RETURN TO WORK I AM REQUESTING THAT MY RESIGNATION BE ACCEPTED. ( DOCTOR'S STATEMENT ATTACHED).

ON MAY 15, 1943, THE ADMINISTRATIVE OFFICE ACCEPTED THE RESIGNATION PURPORTED TO TAKE EFFECT 11:15 A.M., MAY 3, 1943 (2 HOURS 45 MINUTES AFTER COMMENCEMENT OF 8-HOUR DAY).' HOWEVER, THE RESIGNATION OF AN EMPLOYEE TENDERED TO TAKE EFFECT AT THE TERMINATION OF ALL AVAILABLE LEAVE MAY NOT BE ACCEPTED RETROACTIVELY EFFECTIVE TO A DATE PRIOR TO THE DATE THE EMPLOYEE TENDERS HIS RESIGNATION SO AS TO DEFEAT THE RIGHT TO ACCUMULATED ANNUAL LEAVE. THAT RULE CLEARLY IS DISTINGUISHABLE FROM THE RULE STATED IN THE DECISIONS CITED IN YOUR LETTER WHERE THE RESIGNATION WAS ACCEPTED TO TAKE EFFECT PROSPECTIVELY, I.E., WHERE THERE WAS NOT INVOLVED A RETROACTIVELY EFFECTIVE SEPARATION. ALSO, IN DECISION OF SEPTEMBER 30, 1942, 22 COMP. GEN. 291, THE GENERAL RULE WAS STATED THAT:

* * * WHEN AN AUTHORIZED SEPARATION OF AN EMPLOYEE, BY RESIGNATION OR OTHERWISE, BECOMES AN ACCOMPLISHED FACT, IT CANNOT THEREAFTER BE RESCINDED BY ADMINISTRATIVE ACTION EVEN THOUGH THE SEPARATING OFFICER ACTED ON MISINFORMATION OR UNDER AN ERRONEOUS ASSUMPTION, BUT THE SEPARATION DOES NOT BECOME EFFECTIVE UNLESS AND UNTIL THE EMPLOYEE RECEIVES PROPER NOTICE THEREOF.

UNDER THE RULE STATED IN THOSE DECISIONS, AFTER THE SEPARATION OF AN EMPLOYEE BY RESIGNATION OR OTHERWISE HAS BECOME AN ACCOMPLISHED FACT, HE MAY NOT THEREAFTER BE RESTORED TO THE PAY ROLL FOR THE PURPOSE OF GRANTING ADDITIONAL ANNUAL LEAVE. SEE, ALSO, DECISION OF AUGUST 17, 1943, B-36216, TO MR. N. A. OLMSTEAD, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF AGRICULTURE, WHERE THE SAME RULE WAS APPLIED.

HOWEVER, IN THE INSTANT CASE THE RESIGNATION WAS TENDERED MAY 8, 1943, TO TAKE EFFECT AT THE TERMINATION OF ALL AVAILABLE ANNUAL AND SICK LEAVE WHICH LEAVE, AT THE TIME OF TENDERING THE RESIGNATION, HAD ALREADY EXPIRED, RATHER THAN TENDERED IN FUTURO, AND THE ADMINISTRATIVE ACTION EVIDENTLY WAS INTENDED TO ACCEPT THE RESIGNATION IN THE TERMS TENDERED. UNDER SUCH CIRCUMSTANCES, AN ERROR HAVING BEEN MADE IN THE COMPUTATION OF THE LEAVE DUE THE EMPLOYEE RESULTING IN ADMINISTRATIVE ACTION FIXING A SEPARATION DATE RETROACTIVELY EFFECTIVE PRIOR TO THE EXPIRATION DATE OF THE PERIOD OVER WHICH THE AMOUNT OF LEAVE CORRECTLY COMPUTED WOULD HAVE RUN, THE ACTION OF THE ADMINISTRATIVE OFFICE IN CORRECTING THE ERROR SO AS TO FIX THE SEPARATION DATE AT THE TERMINATION OF THE PROPER AMOUNT OF ACCRUED LEAVE WAS CORRECT, THE ADDITIONAL LEAVE NOT EXTENDING BEYOND MAY 15, 1943, THE DATE THE RESIGNATION WAS ADMINISTRATIVELY ACCEPTED. THAT IS, THE ADDITIONAL ANNUAL LEAVE MAY BE ALLOWED ON THE BASIS OF SUBSTITUTION FOR A CORRESPONDING PERIOD OF LEAVE WITHOUT PAY OVER SUCH PORTION OF THE PERIOD BETWEEN THE DATE TO WHICH THE EMPLOYEE WAS LAST PAID AND MAY 15, 1943, AS MAY BE NECESSARY. COMPARE 21 COMP. GEN. 517.

THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.