B-43283, AUGUST 17, 1944, 24 COMP. GEN. 134

B-43283: Aug 17, 1944

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AN EMPLOYEE WHO WAS ON SICK LEAVE AT THE TIME HE WOULD OTHERWISE BE SUBJECT TO RETIREMENT MAY NOT BE CARRIED ON THE ROLLS BEYOND THE DATE PRESCRIBED BY SAID ACT. SO THAT WHERE AN INCUMBENT OF A POSITION IS TO BE RETIRED. IF FUNDS ARE AVAILABLE THEREFOR. THE PROVISIONS OF SECTION 4.2 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS THAT "LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS PROVIDING HE RETURNS TO DUTY" APPLY NOT ONLY WHEN THERE IS A RETURN TO DUTY IN THE AGENCY WHICH GRANTED THE LEAVE BUT. WHEN THERE IS A RETURN TO DUTY IN ANOTHER AGENCY SUBJECT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14. ACCRUAL OF LEAVE DURING THE PERIOD OF TERMINAL LEAVE WAS PRECLUDED. THAT IS.

B-43283, AUGUST 17, 1944, 24 COMP. GEN. 134

LEAVES OF ABSENCE - SEPARATION FROM SERVICE BY RETIREMENT; LEAVE ON LEAVE; ETC. SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, RELATING TO AN EMPLOYEE'S RIGHT TO BE GRANTED HIS UNUSED ANNUAL LEAVE PRIOR TO SEPARATION FROM SERVICE, DOES NOT SUPERSEDE OR RENDER INOPERATIVE THE PRIOR PROVISIONS OF SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, THAT AN EMPLOYEE MAY NOT BE PAID THE SALARY, PAY, OR COMPENSATION OF A CIVILIAN OFFICE OR POSITION FOR ANY PERIOD AFTER THE LAST DAY OF THE MONTH IN WHICH HE ATTAINS THE AUTOMATIC RETIREMENT AGE, SO AS TO AUTHORIZE AN EMPLOYEE TO BE CARRIED ON THE ROLLS, FOR THE PURPOSE OF BEING PAID FOR ACCUMULATED ANNUAL LEAVE, BEYOND THE DATE PRESCRIBED BY SAID ACT. IN VIEW OF SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, PROVIDING THAT AN EMPLOYEE MAY NOT BE PAID THE SALARY, PAY, OR COMPENSATION OF A CIVILIAN OFFICE OR POSITION FOR ANY PERIOD AFTER THE LAST DAY OF THE MONTH IN WHICH HE ATTAINS AUTOMATIC RETIREMENT AGE, AN EMPLOYEE WHO WAS ON SICK LEAVE AT THE TIME HE WOULD OTHERWISE BE SUBJECT TO RETIREMENT MAY NOT BE CARRIED ON THE ROLLS BEYOND THE DATE PRESCRIBED BY SAID ACT, FOR THE PURPOSE OF GRANTING ACCUMULATED SICK LEAVE. SECTION 2.4 OF THE ANNUAL LEAVE REGULATIONS, WHICH MAKES IT MANDATORY THAT TERMINAL ANNUAL LEAVE BE GRANTED UNLESS AFFIRMATIVELY FORFEITED, REQUIRES AN EXCEPTION TO THE GENERAL RULE THAT ONLY ONE PERSON MAY BE PAID THE SALARY OF AN OFFICE FOR THE SAME PERIOD, SO THAT WHERE AN INCUMBENT OF A POSITION IS TO BE RETIRED, OR THE INCUMBENT OF A STATUTORY OFFICE RESIGNS, EFFECTIVE AT THE END OF TERMINAL LEAVE, A SUCCESSOR MAY BE APPOINTED PRIOR TO THE EXPIRATION OF THE INCUMBENT'S TERMINAL LEAVE AND EACH PAID THE SALARY OF THE POSITION OR OFFICE, IF FUNDS ARE AVAILABLE THEREFOR. THE PROVISIONS OF SECTION 4.2 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS THAT "LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS PROVIDING HE RETURNS TO DUTY" APPLY NOT ONLY WHEN THERE IS A RETURN TO DUTY IN THE AGENCY WHICH GRANTED THE LEAVE BUT, ALSO, WHEN THERE IS A RETURN TO DUTY IN ANOTHER AGENCY SUBJECT TO THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, TO WHICH THE EMPLOYEE HAS BEEN TRANSFERRED WITHOUT A BREAK IN SERVICE AS CONTEMPLATED BY THE PROVISIONS OF SECTIONS 4.9 (A) AND 1.1 (G) OF THE REGULATIONS. WHERE AN EMPLOYEE HAS BEEN PAID FOR HIS UNUSED ANNUAL LEAVE UPON SEPARATION FROM SERVICE BY RESIGNATION AND, HENCE, UNDER THE EXPRESS PROVISIONS OF SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, ACCRUAL OF LEAVE DURING THE PERIOD OF TERMINAL LEAVE WAS PRECLUDED, A REAPPOINTMENT WITHIN 30 DAYS, THAT IS, WITHOUT A BREAK IN SERVICE WITHIN THE MEANING OF SECTION 1.1 (G) OF THE REGULATIONS, DOES NOT OPERATE RETROACTIVELY TO ENTITLE HIM TO ACCRUE LEAVE DURING SUCH PERIOD; HOWEVER, ANY SICK LEAVE TO HIS CREDIT AT THE TIME OF HIS RESIGNATION MAY BE TRANSFERRED IN ACCORDANCE WITH SECTION 4.9 OF THE REGULATIONS. UPON RESTORATION TO A CIVILIAN POSITION IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940 AFTER MILITARY SERVICE, AN EMPLOYEE DOES NOT BECOME ENTITLED TO ANNUAL LEAVE ACCRUED ON THE LEAVE FOR WHICH HE WAS PAID WHEN HE ENTERED MILITARY SERVICE, AND DURING THE PERIOD OF WHICH NO LEAVE ACCRUED AT THAT TIME IN VIEW OF THE PROVISIONS OF SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS TO THE EFFECT THAT ANNUAL LEAVE SHALL NOT ACCRUE ON TERMINAL LEAVE PRIOR TO A FURLOUGH. SECTION 4.4 OF THE ANNUAL AND SICK LEAVE REGULATIONS--- WHICH IS APPLICABLE TO TEMPORARY AND INDEFINITE EMPLOYEES AS WELL AS TO PERMANENT EMPLOYEES--- RELATING TO REDUCTION OF LEAVE CREDIT FOR PERIODS OF SUSPENSION IS "IN EXCESS OF THREE DAYS," AND, THEREFORE, A PERIOD OF SUSPENSION FROM DUTY, PROVIDES FOR A REDUCTION ONLY WHERE THE PERIOD OF SUSPENSION OF THREE DAYS OR LESS OF A TEMPORARY OR INDEFINITE EMPLOYEE WILL NOT BREAK THE CONTINUITY OF SERVICE FOR THE MONTH SO AS TO CAUSE A LOSS OF LEAVE CREDIT FOR THAT MONTH ON ACCOUNT OF A FRACTIONAL MONTH'S SERVICE. RED IN THE NEGATIVE.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AUGUST 17, 1944:

I HAVE YOUR LETTER OF JULY 11, 1944, REQUESTING DECISION ON CERTAIN QUESTIONS WHICH WILL BE HEREINAFTER STATED AND ANSWERED IN THE ORDER PRESENTED.

QUESTION 1 (A). IN VIEW OF THE PROVISIONS OF SECTION 2.4 OF THE REGULATIONS, MAY AN EMPLOYEE WHOSE AUTOMATIC SEPARATION IS REQUIRED BY SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT BE CARRIED ON THE ROLLS BEYOND THE LAST DAY OF THE MONTH IN WHICH HE ATTAINS RETIREMENT AGE FOR THE PURPOSE OF BEING PAID FOR THE ANNUAL LEAVE STANDING TO HIS CREDIT ON SUCH DATE?

(B) IS THERE ANY AUTHORITY FOR CONTINUING SUCH AN EMPLOYEE ON THE ROLLS BEYOND SUCH DATE FOR THE PURPOSE OF GRANTING ACCUMULATED SICK LEAVE WHEN HE WAS ON SICK LEAVE AT THE TIME HE WOULD OTHERWISE BE SUBJECT TO RETIREMENT?

SECTION 2.4 OF THE LEAVE REGULATIONS PROVIDES:

AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE SHALL BE ENTITLED TO THE UNUSED ANNUAL LEAVE STANDING TO HIS CREDIT, AND THE DATE OF HIS SEPARATION SHALL BE SO FIXED AS TO PERMIT HIM TO TAKE SUCH LEAVE, AND IN NO CASE, WHETHER THE SEPARATION BE VOLUNTARY OR INVOLUNTARY, SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE: PROVIDED, THAT AN EMPLOYEE WHO ELECTS TO FORFEIT THE LEAVE STANDING TO HIS CREDIT MAY DO SO BY FILING A WRITTEN NOTICE TO SUCH EFFECT.

SECTION 2 (A) OF THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED BY THE ACTS OF JANUARY 24, 1942, 56 STAT. 13, 14, AND MARCH 7, 1942, 56 STAT. 147, PROVIDES:

EXCEPT AS PROVIDED IN SECTION 204 OF THE ACT OF JUNE 30, 1932, (47 STAT. 404), AND SECTION 3 OF THE ACT OF JULY 13, 1937 (50 STAT. 512), ALL OFFICERS OR EMPLOYEES TO WHOM THIS ACT APPLIES SHALL, ON THE LAST DAY OF THE MONTH IN WHICH THEY ATTAIN RETIREMENT AGE AS DEFINED IN THE PRECEDING SECTION; AND HAVING RENDERED AT LEAST FIFTEEN YEARS OF SERVICE, BE AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE, AND IT SHALL BE THE DUTY OF THE HEAD OF EACH DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED TO NOTIFY EACH SUCH EMPLOYEE UNDER HIS DIRECTION OF THE DATE OF HIS SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF * * *. (ITALICS SUPPLIED.)

REFERRING TO THE ITALICIZED WORDS OF THE QUOTED SECTION OF THE RETIREMENT ACT, IT IS CLEAR (1) THAT AN EMPLOYEE MAY NOT BE PAID THE SALARY, PAY, OR COMPENSATION OF A CIVILIAN OFFICE OR POSITION FOR ANY PERIOD AFTER THE LAST DAY OF THE MONTH IN WHICH HE ATTAINS AUTOMATIC RETIREMENT AGE AT WHICH TIME HIS AUTOMATIC RETIREMENT BECOMES EFFECTIVE, WHETHER FOR ANNUAL OR SICK LEAVE OR FOR ACTIVE DUTY, AND (2) THAT WHILE IT IS THE DUTY OF THE ADMINISTRATIVE OFFICE CONCERNED TO NOTIFY AN EMPLOYEE IN SUFFICIENT TIME-- - "AT LEAST SIXTY DAYS IN ADVANCE THEREOF--- " PRIOR TO THE EFFECTIVE DATE OF HIS AUTOMATIC RETIREMENT FOR AGE TO ENABLE HIM TO TAKE HIS ACCRUED ANNUAL LEAVE, THE EMPLOYEE IS CHARGEABLE WITH NOTICE OF THE PROVISIONS OF THE STATUTE AND IF HE FAILS TO TAKE THE LEAVE TO WHICH ENTITLED PRIOR TO THE EFFECTIVE DATE OF HIS RETIREMENT HE MUST ASSUME THE CONSEQUENCES THEREOF. SECTION 2.4 OF THE LEAVE REGULATIONS, E.O. 9414, MAY NOT BE REGARDED AS SUPERSEDING OR RENDERING INOPERATIVE THE EXPRESS PROVISIONS OF THE RETIREMENT ACT. QUESTIONS 1 (A) AND (B) ARE ANSWERED IN THE NEGATIVE.

QUESTION 2. AS A GENERAL RULE ONLY ONE PERSON MAY BE PAID THE SALARY OF AN OFFICE OR POSITION FOR THE SAME PERIOD (4 COMP. DEC. 601; 4 COMP. GEN. 729; 14 ID. 785; 19 ID. 501). AN EXCEPTION TO THE GENERAL RULE HAS BEEN MADE IN THE CASE OF A PERSON ENTERING THE MILITARY SERVICE (22 COMP. GEN. 54), AND DECISION IS REQUESTED AS TO WHETHER OR NOT SECTION 2.4 OF EXECUTIVE ORDER NO. 9414 AUTHORIZES AN EXCEPTION TO THIS GENERAL RULE IN THE FOLLOWING TYPES OF CASES: (A) AT THE EXPIRATION OF TERMINAL LEAVE THE INCUMBENT OF A POSITION IS TO BE RETIRED. MAY A SUCCESSOR BE APPOINTED PRIOR TO THE EXPIRATION OF THE INCUMBENT'S TERMINAL LEAVE? (B) THE INCUMBENT OF A STATUTORY POSITION IS RESIGNING EFFECTIVE AT THE END OF HIS TERMINAL LEAVE?

SECTION 2.4 OF THE LEAVE REGULATIONS IS QUOTED IN THE ANSWER TO QUESTION 1, SUPRA. THE DECISION OF JULY 24, 1942, 22 COMP. GEN. 54, TO WHICH YOU REFER, HELD AS FOLLOWS (QUOTING FROM THE YLLABUS):

THE ACT OF AUGUST 1, 1941, AS AMENDED, CONFERRING ON CIVILIAN OFFICERS THE RIGHT TO BE PAID FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE CONCURRENTLY WITH RECEIPT OF MILITARY PAY, REQUIRES AN EXCEPTION TO THE GENERAL RULE THAT ONLY ONE PERSON MAY BE PAID THE SALARY OF AN OFFICE FOR THE SAME PERIOD, SO THAT A UNITED STATES ATTORNEY WHO ENTERED THE MILITARY SERVICE IMMEDIATELY UPON CEASING TO PERFORM DUTY IN HIS CIVILIAN OFFICE IS ENTITLED TO PAYMENT FOR ALL ANNUAL LEAVE TO HIS CREDIT EVEN THOUGH HIS SUCCESSOR IN OFFICE WAS APPOINTED AND ENTERED UPON DUTY PRIOR TO EXPIRATION OF THE LEAVE PERIOD.

UNLIKE THE EXPRESS PROHIBITION CONTAINED IN THE RETIREMENT ACT AGAINST PAYING THE SALARY, PAY, OR COMPENSATION AFTER THE EFFECTIVE DATE OF AUTOMATIC RETIREMENT FOR AGE, THERE EXISTS NO EXPRESS PROHIBITION OF LAW AGAINST TWO PERSONS RECEIVING THE SALARY OF THE SAME OFFICE IF OTHER LAWS, OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, REQUIRE SUCH DUAL PAYMENT. SECTION 2.4 OF THE LEAVE REGULATIONS WAS ISSUED BY THE PRESIDENT PURSUANT TO THE AUTHORITY VESTED IN HIM BY THE ANNUAL AND SICK LEAVE ACTS AND, ACCORDINGLY, IS A REGULATION HAVING THE FORCE AND EFFECT OF LAW. SINCE THAT REGULATION NOW MAKES IT MANDATORY THAT TERMINAL ANNUAL LEAVE SHALL BE GRANTED UNLESS AN EMPLOYEE AFFIRMATIVELY FORFEITS THE LEAVE--- THE REGULATION PROVIDING THAT "IN NO CASE * * * SHALL THE SEPARATION BECOME EFFECTIVE ON A DATE PRIOR TO THE DATE OF TERMINATION OF SUCH LEAVE- -- " IT FOLLOWS THAT THE REGULATION REQUIRES ANOTHER EXCEPTION TO THE GENERAL RULE THAT ONLY ONE PERSON MAY BE PAID THE SALARY OF AN OFFICE FOR THE SAME PERIOD. UNDER SUCH CONDITIONS PAYMENT FOR THE TERMINAL ANNUAL LEAVE TO AN OUTGOING OFFICER OVER A PERIOD AFTER HE HAS CEASED TO PERFORM THE DUTIES OF HIS OFFICE--- WHICH PAYMENT NOW IS A RIGHT--- MAY BE REGARDED AS A PART OF THE SALARY OF THE OFFICE EARNED WHILE HE PERFORMED THE DUTIES THEREOF AND NEED NOT BE REGARDED AS PRECLUDING PAYMENT OF THE SALARY OF THE POSITION TO HIS SUCCESSOR DURING THE PERIOD OF SUCH TERMINAL LEAVE IF FUNDS ARE AVAILABLE THEREFOR. QUESTIONS 2 (A) AND (B) ARE ANSWERED ACCORDINGLY.

QUESTION 3. SECTION 4.2 (A) OF THE REGULATIONS PROVIDES THAT "LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS PROVIDING HE RETURNS TO DUTY.' (A) DOES THE RIGHT TO ACCRUE LEAVE UNDER THIS SECTION APPLY WHEN THERE IS A RETURN TO DUTY IN ANY AGENCY SUBJECT TO THE LEAVE ACTS OF MARCH 14, 1936, OR DOES IT APPLY ONLY WHEN THERE IS A RETURN TO DUTY IN THE AGENCY WHICH GRANTED THE LEAVE-WITH-PAY?

(B) AN EMPLOYEE RESIGNS, IS PAID FOR TERMINAL LEAVE, BUT WITHIN THIRTY DAYS IS REINSTATED IN ANOTHER INSTALLATION OF THE SAME AGENCY. WOULD THIS EMPLOYEE ACCRUE LEAVE ON LEAVE UPON REINSTATEMENT?

(C) AN EMPLOYEE ENTERS THE MILITARY SERVICE, IS PAID FOR TERMINAL LEAVE, IS CARRIED ON FURLOUGH BY THE AGENCY FOR THE PERIOD OF MILITARY SERVICE, AND IS SUBSEQUENTLY RESTORED TO HIS POSITION IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT. UPON RETURN TO DUTY, UNDER SECTION 4.2 (A) IS HE ENTITLED TO BE CREDITED WITH LEAVE ACCRUING DURING THE PERIOD HE WAS IN A LEAVE-WITH-PAY STATUS?

IN ADDITION TO SECTION 4.2 (A) OF THE LEAVE REGULATIONS FROM WHICH YOU QUOTE, THERE ARE FOR CONSIDERATION IN ANSWERING THIS QUESTION THE PROVISIONS OF SECTION 4.9 (A) OF THE LEAVE REGULATIONS PROVIDING:

WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED FROM ONE PERMANENT POSITION TO ANOTHER PERMANENT POSITION, WITHOUT A BREAK IN SERVICE, HIS LEAVE ACCOUNT SHALL BE DISPOSED OF AS FOLLOWS:

(A) IF THE POSITION IS WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO THE EMPLOYEE.

ALSO, THERE IS FOR CONSIDERATION SECTION 1.1 (G) OF THE LEAVE REGULATIONS PROVIDING THAT " ,BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF THIRTY OR MORE CALENDAR DAYS.' ALL OF THE CITED REGULATIONS SHOULD BE CONSIDERED TOGETHER. HENCE, QUESTION 3 (A) IS ANSWERED IN THE AFFIRMATIVE.

HOWEVER, IN THE CASE OF THE EMPLOYEE WHO, BY HIS RESIGNATION AND EXPIRATION OF LEAVE, HAS BECOME SEPARATED FROM THE SERVICE, A NEW APPOINTMENT OR REINSTATEMENT WOULD NOT OPERATE RETROACTIVELY TO CREDIT HIM WITH THE EARNING OF LEAVE DURING A PERIOD WHICH, AT THE TIME WAS REGARDED AS TERMINAL LEAVE AND IN FACT WAS TERMINAL LEAVE WITHIN ITS DEFINITION AS "THE PERIOD BETWEEN THE LAST DAY OF DUTY AND THE EXPIRATION OF ANNUAL LEAVE," DURING WHICH PERIOD, OF COURSE, NO LEAVE ACCRUES. LEAVE REGULATIONS, SECTIONS 1.1 (J), 4.2 (B). THAT RESULT IS THE EVIDENT MEANING OF THE PRESENT REGULATIONS AND ACCORDS, ALSO, WITH THE SETTLED AND PRACTICAL RULE THAT A SEPARATION CANNOT THEREAFTER BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. 21 COMP. GEN. 403, 406; 22 ID. 291, 292. ANY SEEMING ANOMALY FROM THE VIEW THAT, WHILE LEAVE IS NOT EARNED DURING SUCH A PERIOD OF TERMINAL LEAVE AS THAT DESCRIBED, NEVERTHELESS, ANY SICK LEAVE TO THE CREDIT OF THE EMPLOYEE'S ACCOUNT AT THE TIME OF HIS RESIGNATION MIGHT BE TRANSFERRED UPON HIS REAPPOINTMENT, IS EXPLAINED BY THE VARIANCE BETWEEN THE REGULATIONS APPLICABLE--- AS TO THE FORMER, LEAVE CEASES TO ACCRUE EITHER ON SEPARATION OR RESIGNATION (REGULATIONS, SECTION 4.2 (B) (, BUT AS TO THE LATTER, THE LEAVE ACCOUNT MAY BE TRANSFERRED UPON HIS REAPPOINTMENT PROVIDED ONLY THERE BE NO BREAK IN THE SERVICE, THAT IS, A SEPARATION OF 30 OR MORE DAYS. REGULATIONS, SECTION 1.1 (G), 4.9. QUESTION 3 (B) IS ANSWERED IN THE NEGATIVE.

UNDER THE EXPRESS PROVISIONS OF SECTION 4.2 (B) OF THE LEAVE REGULATIONS LEAVE ON LEAVE MAY NOT BE EARNED DURING TERMINAL LEAVE PRIOR TO A FURLOUGH. THAT REGULATION HAS BEEN APPLIED TO DENY LEAVE ON LEAVE TO EMPLOYEES WHO ENTER THE ACTIVE MILITARY OR NAVAL SERVICE. 23 COMP. GEN. 603, 677. ACCORDINGLY, EVEN THOUGH AN EMPLOYEE BE RESTORED TO HIS FORMER POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY UNDER THE TERMS AND CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, HE HAS LOST THE BENEFIT OF ACCRUING LEAVE ON LEAVE DURING THE PERIOD OF TERMINAL LEAVE GRANTED IMMEDIATELY PRIOR TO HIS ENTRY INTO THE ACTIVE MILITARY OR NAVAL SERVICE. ACCORDINGLY, QUESTION 3 (C) IS ANSWERED IN THE NEGATIVE.

QUESTION 4. SECTION 4.4 OF THE REGULATIONS PROVIDES THAT "LEAVE SHALL NOT ACCRUE DURING ANY PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS WHICH IS IN EXCESS OF THREE DAYS.' TEMPORARY AND INDEFINITE EMPLOYEES ARE CREDITED WITH LEAVE "FOR EACH MONTH OF SERVICE" UNDER SECTION 2.1 (B) AND (C). ALTHOUGH IN DECISION OF MAY 5, 1944 (B 41585) (23 COMP. GEN. 848) THE STATEMENT WAS MADE THAT "TEMPORARY AND INDEFINITE EMPLOYEES WOULD LOSE ANNUAL AND SICK LEAVE CREDIT FOR THE SERVICE MONTH IN WHICH THEY WERE SUSPENDED FOR DISCIPLINARY REASONS FOR A PERIOD OF MORE THAN THREE YS," IN A NUMBER OF DECISIONS IT HAS BEEN HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO ANNUAL LEAVE CREDIT FOR A FRACTIONAL MONTH'S SERVICE (B-40144, FEBRUARY 29, 1944, (23 COMP. GEN. 638), CITING 20 COMP. GEN. 827). THIS LAST DECISION HELD THAT A "FULL MONTH OF SERVICE," "AS THOSE WORDS ARE USED IN THE STATUTE AND REGULATIONS, MEANS THE PERFORMANCE OF WORK OR THE CONTINUANCE OF A PAY STATUS DURING THE ENTIRE WORK MONTH OR MONTHLY TOUR OF DUTY OF TEMPORARY EMPLOYEES; AND THAT SITUATION IS NECESSARY TO ENTITLE THE EMPLOYEE TO ANNUAL OR SICK LEAVE CREDIT FOR THAT NTH.' INSOFAR AS SECTION 4.4 OF THE REGULATIONS IS CONCERNED, THERE IS NOTHING TO INDICATE THAT IT APPLIES ONLY TO PERMANENT EMPLOYEES. HOWEVER, IN VIEW OF THE DECISIONS WITH RESPECT TO EARNING LEAVE FOR A FRACTIONAL MONTH OF SERVICE, YOUR DECISION IS REQUESTED AS TO WHETHER ANY PERIOD OF SUSPENSION (THREE DAYS OR LESS) OF A TEMPORARY OR INDEFINITE EMPLOYEE WOULD BREAK THE CONTINUITY OF HIS SERVICE MONTH FOR LEAVE EARNING PURPOSES?

AS SECTION 4.4 OF THE LEAVE REGULATIONS--- THE ONLY REGULATION SPECIFICALLY COVERING THE MATTER OF REDUCING LEAVE CREDIT FOR PERIODS OF SUSPENSION--- IS APPLICABLE TO TEMPORARY AND INDEFINITE EMPLOYEES AS WELL AS TO PERMANENT EMPLOYEES, AND AS THAT REGULATION PROVIDES FOR THE REDUCTION OF LEAVE CREDIT ONLY FOR A PERIOD OF SUSPENSION "IN EXCESS OF THREE DAYS," IT REASONABLY MAY BE CONCLUDED THAT A PERIOD OF SUSPENSION OF THREE DAYS OR LESS OF A TEMPORARY OR INDEFINITE EMPLOYEE WILL NOT BREAK THE EMPLOYEE'S CONTINUITY OF SERVICE FOR THE MONTH, AND, ACCORDINGLY, WILL NOT CAUSE A LOSS OF A SERVICE MONTH'S LEAVE CREDIT. THIS QUESTION IS ANSWE ..END :