B-46563, JANUARY 10, 1945, 24 COMP. GEN. 510

B-46563: Jan 10, 1945

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THE 31ST DAY OF THE MONTH IS DISREGARDED IN COMPUTING COMPENSATION. 1945: I HAVE YOUR LETTER OF DECEMBER 28. AS FOLLOWS: AN EMPLOYEE OF THIS AGENCY WAS ON LEAVE WITHOUT PAY (NO ACCRUED ANNUAL LEAVE TO HER CREDIT) FOR A WHOLE 21-DAY MONTH. IF CERTAIN CONDITIONS OF EFFICIENCY ARE MET. SEEMS TO US THAT INASMUCH AS THE MONTH'S PAY DEDUCTION WHICH WAS MADE ACTUALLY REPRESENTED PAY FOR ONLY 30 DAYS. THAT THERE WAS IN FACT A "NONPAY STATUS" OF ONLY 30 DAYS. IF THE ABSENCE WERE FROM JULY 16 TO AUGUST 15. THERE IS FOR NOTING THAT THE REGULATION QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER INCLUDES NOT ONLY TIME ELAPSING IN A NONPAY STATUS (LEAVE OR FURLOUGH WITHOUT PAY) BUT ALSO. IF THE RULE SUGGESTED IN YOUR LETTER WERE ADOPTED.

B-46563, JANUARY 10, 1945, 24 COMP. GEN. 510

COMPENSATION - WITHIN-GRADE PROMOTIONS - SERVICE CREDITS - LEAVE WITHOUT PAY FOR 31-DAY MONTH IN COMPUTING UNDER SECTION 2 (C) OF EXECUTIVE ORDER NO. 8882 THE 18 OR 30 MONTHS' SERVICE NECESSARY TO ENTITLE AN EMPLOYEE TO A WITHIN GRADE SALARY ADVANCEMENT PURSUANT TO THE ACT OF AUGUST 1, 1941, ONLY 30 DAYS OF AN ABSENCE ON LEAVE WITHOUT PAY FOR THE WHOLE OF A 31-DAY MONTH MAY BE COUNTED, EVEN THOUGH UNDER THE ACT OF JUNE 30, 1906, THE 31ST DAY OF THE MONTH IS DISREGARDED IN COMPUTING COMPENSATION, OR DEDUCTION FROM COMPENSATION ON ACCOUNT OF LEAVE WITHOUT PAY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JANUARY 10, 1945:

I HAVE YOUR LETTER OF DECEMBER 28, 1944, AS FOLLOWS:

AN EMPLOYEE OF THIS AGENCY WAS ON LEAVE WITHOUT PAY (NO ACCRUED ANNUAL LEAVE TO HER CREDIT) FOR A WHOLE 21-DAY MONTH. THE ACT OF AUGUST 1, 1941 (55 STAT. 613), AMENDED THE CLASSIFICATION ACT OF 1923 TO PROVIDE FOR PERIODIC WITHIN-GRADE SALARY INCREASES, IF CERTAIN CONDITIONS OF EFFICIENCY ARE MET, EACH 18 OR 30 MONTHS OF SERVICE, AS THE CASE MAY BE. SECTION 2 (C) OF THE PRESIDENT'S REGULATIONS MADE IN PURSUANCE OF THAT ACT ( E.O. 8882) PRESCRIBES THAT IN CALCULATING THESE PERIODS OF SERVICE "TIME ELAPSING IN A NONPAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE," SHALL BE CREDITED TO SUCH SERVICE.

SHOULD NOT THE PERIOD OF ABSENCE IN THIS CASE BE CREDITED TO THE EMPLOYEE TOWARD THE WAITING PERIOD FOR HER NEXT WITHIN-GRADE SALARY INCREASE? SEEMS TO US THAT INASMUCH AS THE MONTH'S PAY DEDUCTION WHICH WAS MADE ACTUALLY REPRESENTED PAY FOR ONLY 30 DAYS, THE 31ST DAY OF THE MONTH STOOD ALONE AS AN UNCOMPENSABLE DAY, AND THAT THERE WAS IN FACT A "NONPAY STATUS" OF ONLY 30 DAYS. IF THE ABSENCE WERE FROM JULY 16 TO AUGUST 15, INCLUSIVE, WOULD YOUR ANSWER BE THE SAME?

THERE IS FOR NOTING THAT THE REGULATION QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER INCLUDES NOT ONLY TIME ELAPSING IN A NONPAY STATUS (LEAVE OR FURLOUGH WITHOUT PAY) BUT ALSO, A BREAK IN SERVICE, FOR WHICH PAYMENT OF COMPENSATION AND DEDUCTIONS FROM COMPENSATION FOR LEAVE OR FURLOUGH WITHOUT PAY UPON A CALENDAR MONTH BASIS PURSUANT TO THE ACT OF JUNE 30, 1906, 34 STAT. 763, WOULD NOT APPLY. ACCORDINGLY, BY INCLUDING PERIODS OF BREAKS IN SERVICE, THE REGULATION APPARENTLY INTENDED TO REFER TO AN ACTUAL NUMBER OF CALENDAR DAYS IN A NONPAY STATUS OR DURING A BREAK IN SERVICE NOT TO EXCEED 30, COUNTING THE 30TH AS ONE DAY, ONLY. IF THE RULE SUGGESTED IN YOUR LETTER WERE ADOPTED, THE 28TH DAY OF FEBRUARY NECESSARILY WOULD BE REQUIRED TO BE REGARDED AS THREE DAYS WITHIN THE MEANING OF THE REGULATION, WHICH APPARENTLY WAS NOT CONTEMPLATED.

ACCORDINGLY, IN THE CASE PRESENTED THE ABSENCE IN A NONPAY STATUS EXCEEDED 30 DAYS--- AS WOULD, ALSO, AN ABSENCE FROM JULY 16 TO AUGUST 15, INCLUSIVE--- AND ONLY 30 DAYS OF SUCH PERIOD MAY BE COUNTED TOWARD A WITHIN-GRADE PROMOTION. 23 COMP. GEN. 617.