B-46891, JANUARY 17, 1945, 24 COMP. GEN. 532

B-46891, JANUARY 17, 1945, 24 COMP. GEN. 532

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS AN EMPLOYEE WHO ENTERED A TERMINAL LEAVE STATUS PRIOR TO THE DATE OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AND WHO HAS BEEN CARRIED ON THE PAY ROLLS SINCE THAT DATE MAY NOT BE PAID A LUMP SUM FOR SUCH LEAVE AS REMAINED TO HIS CREDIT. AN EMPLOYEE WHO TRANSFERRED TO ENTER ON DUTY AS A POSTMASTER (A POSITION UNDER A DIFFERENT LEAVE SYSTEM TO WHICH HIS PREVIOUSLY ACCUMULATED AND ACCRUED LEAVE COULD NOT BE TRANSFERRED) PRIOR TO THE DATE OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, NOW HAS NO CLAIM UNDER SECTION 3 OF THE ACT, CONTROLLING LUMP-SUM PAYMENTS FOR LEAVE UNDER TRANSFER TO DIFFERENT LEAVE SYSTEMS, FOR A LUMP-SUM PAYMENT FOR SUCH PREVIOUSLY ACCUMULATED AND ACCRUED LEAVE. A TRANSFER BETWEEN POSITIONS UNDER THE SAME LEAVE SYSTEM, AS DISTINGUISHED FROM A SEPARATION AND REAPPOINTMENT AFTER ONE OR MORE DAYS, IS NOT A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, PROVIDING FOR LUMP-SUM PAYMENTS FOR LEAVE TO SEPARATED EMPLOYEES, AND, THEREFORE, A LUMP-SUM PAYMENT FOR THE ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO THE CREDIT OF AN EMPLOYEE MAKING SUCH A TRANSFER, WITH A CONSEQUENT NEED OF REFUND, IS NOT REQUIRED. THE DEFINITION OF "BREAK IN SERVICE"--- SEPARATION FROM FEDERAL SERVICE FOR 30 DAYS OR MORE CALENDAR DAYS--- APPEARING IN SECTION 1.1 (G) OF THE ANNUAL AND SICK LEAVE REGULATIONS HAS NO APPLICATION UNDER THE ACT OF DECEMBER 21, 1944, PROVIDING FOR LUMP-SUM PAYMENTS FOR LEAVE UPON SEPARATION FROM SERVICE, AND, THEREFORE, IF AN EMPLOYEE ACTUALLY IS SEPARATED FOR ONE OR MORE DAYS PRIOR TO REAPPOINTMENT IN ANOTHER POSITION UNDER THE SAME LEAVE SYSTEM, A LUMP-SUM LEAVE PAYMENT IS REQUIRED AND THE EMPLOYEE WILL BE SUBJECT TO THE REQUIREMENT OF SECTION 1 OF THE ACT REGARDING REFUND UPON REEMPLOYMENT. IN THE CASE OF AN EMPLOYEE ENTERING THE MILITARY OR NAVAL SERVICE SUBSEQUENT TO DECEMBER 21, 1944, AS WELL AS IN ANY CASE OF FINAL SEPARATION FROM SERVICE, THE EMPLOYEE IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, TO BE PAID FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE IN A LUMP SUM REPRESENTING HIS BASE SALARY FOR THE PERIOD NECESSARY TO EXHAUST HIS LEAVE, PLUS THE NORMAL INCREMENT ALLOWED UNDER THE WAR OVERTIME PAY ACT OF 1943--- THE LEAVE TO BE COMPUTED OVER THE PERIOD IMMEDIATELY FOLLOWING THE LAST DAY OF ACTIVE CIVILIAN DUTY PRIOR TO ENTRY INTO THE MILITARY OR NAVAL SERVICE.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, JANUARY 17, 1945:

I HAVE YOUR LETTER OF JANUARY 8, 1945 (RECEIVED JANUARY 11), SUBMITTING SEVERAL QUESTIONS RELATIVE TO THE APPLICATION OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525.

THE QUESTIONS WILL BE STATED AND ANSWERED IN ORDER PRESENTED.

1. IS THE DEPARTMENT OBLIGED TO PAY OFF IN A LUMP SUM ALL CLAIMS FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE, OR MAY THE DEPARTMENT ALONE, OR BY AGREEMENT WITH THE EMPLOYEE, PERMIT HIS NAME TO APPEAR ON THE PAY ROLLS UNTIL THE LEAVE IS EXHAUSTED, AS HAS BEEN THE PRACTICE IN THE PAST? CONSIDERATIONS IN FAVOR OF THE LATTER PROCEDURE ARE THE ADDED SERVICE CREDIT ALLOWABLE TO THE EMPLOYEE IF THE PERIOD IS RATHER EXTENSIVE AND THE SMALLER WITHHOLDING TAX IN PROPORTION TO THE TOTAL PAYMENT.

IN DECISION OF JANUARY 11, 1945, B-46683, 24 COMP. GEN. 511 (ANSWER TO QUESTION 2) IT WAS HELD:

* * * THAT THE STATUTE IS MANDATORY AND THAT TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE. * * *

THAT ANSWERS THIS QUESTION.

2. IF THE ANSWER TO THE FOREGOING REQUIRES THAT THE DEPARTMENT PAY OFF LEAVE IN A LUMP SUM, I.E., THAT THIS PROVISION OF THE LAW IS MANDATORY AND ALLOWS NO EXCEPTION, IS THE DEPARTMENT REQUIRED TO PAY OFF IN A LUMP SUM SUCH LEAVE CREDIT AS MAY REMAIN IN THE CASE OF AN EMPLOYEE WHO BEGAN HIS TERMINAL LEAVE PRIOR TO DECEMBER 21 AND WHO HAS BEEN CARRIED ON THE PAY ROLLS SINCE THAT TIME? ASSUMING THAT THE ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, AS OF WHAT DAY IS THE EMPLOYEE TO BE CONSIDERED SEPARATED*. IS THERE ANY NEED TO AMEND THE ORIGINAL SEPARATION ACTION ON THE RECORDS OF THE PERSONNEL OFFICE?

THE FIRST PART OF THIS QUESTION IS ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER THE OTHER PARTS OF THE QUESTION. SEE ANSWER TO QUESTION 1, DECISION OF JANUARY 11, 1945, B-46683.

3. RELATED TO THE FOREGOING QUESTIONS IS THE CASE OF AN EMPLOYEE WHO LEFT OUR SERVICE MARCH 31, 1944, WITH FIFTY DAYS LEAVE TO HIS CREDIT TO ENTER ON DUTY AS A POSTMASTER APRIL 1 (A POSITION NOT UNDER THE SAME LEAVE LAW). HE IS NOW APPLYING FOR A LUMP SUM PAYMENT FOR HIS LEAVE. ON THE THEORY THAT THE LEAVE CREDIT IS A CONTINUING OBLIGATIONAND IN EXISTENCE DECEMBER 21, THE EFFECTIVE DATE OF THE LAW, DOES THE LANGUAGE OF THE THIRD SECTION OF THE ACT "THAT ALL * * * LEAVE BE LIQUIDATED BY A LUMP-SUM PAYMENT * * *" PERMIT THE IMMEDIATE SETTLEMENT OF THIS LEAVE ACCOUNT (AS THE LAW CLEARLY REQUIRES FOR CASES ARISING IN THE FUTURE?) CONSIDERING THE PURPOSE OF THE ACT, IT WOULD SEEM HIGHLY DESIRABLE TO CONSTRUE THE LANGUAGE LIBERALLY SO AS TO PERMIT THE LIQUIDATION OF SUCH OUTSTANDING LEAVE CREDITS RATHER THAN TO HAVE THEM REMAIN FOR FUTURE SETTLEMENT. YOUR ANSWER IS THAT SUCH LEAVE CREDITS CANNOT NOW BE LIQUIDATED, THE EFFECT MAY BE TO DEPRIVE THE FORMER EMPLOYEE OF HIS LEAVE, SINCE THE RIGHT THERETO IS DEPENDENT UPON REENTRY INTO A SERVICE UNDER THE SAME LEAVE SYSTEM WHICH IN TURN MAY BE RENDERED VERY DIFFICULT IF IT IS KNOWN TO THE AGENCY THAT THE EMPLOYEE WILL BRING WITH HIM A CLAIM FOR CONSIDERABLE AMOUNT OF LEAVE. IF YOUR ANSWER IS IN THE AFFIRMATIVE, TO WHAT PERIOD, OR DATE, WILL THESE LEAVE CREDITS BE RECOGNIZED, IN VIEW OF YOUR DECISION OF SEPTEMBER 15, 1939, 19 COMP. GEN. 366?

NO PROVISION OF THE ACT OF DECEMBER 21, 1944, IS RETROACTIVELY EFFECTIVE. HENCE, SECTION 3 OF THE STATUTE, 58 STAT. 846, CONTROLLING LUMP-SUM PAYMENTS FOR LEAVE UPON TRANSFERS TO DIFFERENT LEAVE SYSTEMS HAS NO APPLICATION TO AN EMPLOYEE WHO WAS TRANSFERRED OR REAPPOINTED FROM THE DEPARTMENT OF JUSTICE TO THE OFFICE OF POSTMASTER, APRIL 1, 1944--- PRIOR TO DECEMBER 21, 1944. SUCH POSTMASTER NOW HAS NO CLAIM FOR A LUMP-SUM PAYMENT FOR LEAVE WHICH WAS NOT TRANSFERABLE PRIOR TO THE DATE OF THE ACT FROM THE DEPARTMENT OF JUSTICE TO HIS OFFICE AS POSTMASTER. REFERRING TO YOUR SUGGESTION THAT THE EFFECT OF A NEGATIVE ANSWER TO THIS QUESTION "MAY BE TO DEPRIVE THE FORMER EMPLOYEE OF HIS LEAVE," THERE HAVE BEEN NUMEROUS INSTANCES IN THE PAST IN WHICH EMPLOYEES HAVE LOST THEIR LEAVE, BUT THE STATUTE MAY NOT BE APPLIED RETROACTIVELY EFFECTIVE TO COVER SUCH CASES IN THE ABSENCE OF A PROVISION IN THE STATUTE SPECIFICALLY SO PROVIDING.

4. AN EMPLOYEE IS LEAVING THE SERVICE OF THE DEPARTMENT OF JUSTICE, HAVING THIRTY-FIVE DAYS LEAVE TO HIS CREDIT, TO ENTER ON DUTY THE FOLLOWING DAY, JANUARY 16, 1945, IN ANOTHER GOVERNMENT AGENCY OPERATING UNDER THE SAME LEAVE SYSTEM. IN VIEW OF THE LANGUAGE OF SECTION 1 OF THE ACT, IS IT NECESSARY FOR THE DEPARTMENT TO LIQUIDATE THE LEAVE WITH CONSEQUENT NEED OF REFUNDS, ETC.; OR MAY THE ACTION BE CONSTRUED AS A SIMPLE TRANSFER, NOT REQUIRING THE PROCEDURE SPECIFIED FOR SEPARATIONS?

(A) IF THE ANSWER IS THAT THE ACTION IS A TRANSFER, TO WHAT EXTENT MAY THERE BE A BREAK IN SERVICE, IF ANY? NOTE THAT "BREAK IN SERVICE" IS DEFINED IN THE LEAVE REGULATIONS AS A BREAK IN FEDERAL SERVICE OF THIRTY OR MORE CALENDAR DAYS.

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, IS APPLICABLE ONLY IN CASE AN OFFICER OR EMPLOYEE WHO (1) "IS SEPARATED FROM THE SERVICE" OR (2) "ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943.' A TRANSFER BETWEEN POSITIONS UNDER THE SAME LEAVE SYSTEM EITHER IN THE SAME OR DIFFERENT AGENCIES IS NOT A SEPARATION FROM THE SERVICE OR AN ELECTION UNDER THE CITED STATUTES WITHIN THE MEANING OF THE LAW. COMPARE SECTION 3 OF THE STATUTE. IN THE CASE OF TRANSFER THE LEAVE MAY OR MAY NOT BE TRANSFERABLE TO THE NEW POSITION UNDER THE LEAVE REGULATIONS. SEE SECTION 4.8 AND 4.9 OF THE LEAVE REGULATIONS AS REVISED BY THE CIVIL SERVICE COMMISSION EFFECTIVE JANUARY 1, 1945.

REFERRING TO QUESTION (A), THE DEFINITION OF "BREAK IN SERVICE" APPEARING IN SECTION 1.1 (G) OF THE LEAVE REGULATIONS, SUPRA, HAS NO APPLICATION UNDER THE ACT OF DECEMBER 21, 1944. IF THAT WERE NOT THE SITUATION, NO LUMP-SUM PAYMENT UNDER THE LAW COULD BE MADE UNTIL 30 DAYS AFTER SEPARATION FROM THE SERVICE, WHICH CLEARLY WAS NOT INTENDED. HENCE, IF AN EMPLOYEE ACTUALLY IS SEPARATED FROM THE DEPARTMENT OF JUSTICE, A LUMP-SUM PAYMENT FOR LEAVE IS REQUIRED AND THE EMPLOYEE WILL BE SUBJECT TO THE REQUIREMENT OF SECTION 1 OF THE LAW REGARDING REFUND UPON REEMPLOYMENT IN ANOTHER AGENCY UNDER THE SAME LEAVE SYSTEM, EVEN THOUGH SUCH REEMPLOYMENT BE WITHIN 30 DAYS--- PROVIDED THERE IS AN ACTUAL SEPARATION OF ONE OR MORE DAYS.

5. AN EMPLOYEE LEFT OUR SERVICE DECEMBER 26 TO ENTER THE MILITARY SERVICE, HAVING FORTY-SIX DAYS ANNUAL LEAVE TO HIS CREDIT FOR WHICH HE ELECTED TO RECEIVE COMPENSATION UNDER THE ACT OF AUGUST 1, 1941. UNDER THE TERMS OF THE " LANE BILL" HIS LUMP-SUM PAYMENT IS TO BE COMPUTED AS THOUGH HE HAD REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF HIS LEAVE.

(A) IN THIS CASE, AS WELL AS IN ANY FINAL SEPARATION FROM THE FEDERAL SERVICE, IT IS ASSUMED THAT THE EMPLOYEE IS ENTITLED TO HIS BASE SALARY FOR THE PERIOD NECESSARY TO EXHAUST THE LEAVE, PLUS THE NORMAL INCREMENT ALLOWABLE UNDER THE WAR OVERTIME PAY ACT. IS THIS CORRECT?

(B) THE EMPLOYEE WAS ENTITLED TO AN AUTOMATIC PROMOTION ON JANUARY 1, 1945, HAD HE REMAINED IN THE SERVICE. IS THE LUMP-SUM PAYMENT TO INCLUDE SUCH INCREASE OF COMPENSATION? THE QUESTION ARISES FROM THE FACT THAT THE ACTIVE SERVICE CEASED AT THE CLOSE OF BUSINESS DECEMBER 26 AND THE PAYMENT FOR LEAVE NOT BEING REGARDED AS COMPENSATION, IT WOULD SEEM TO FOLLOW THAT NO SERVICE CREDIT IS ALLOWABLE FOR THE FOUR DAYS IN DECEMBER NEEDED TO COMPLETE THE EIGHTEEN MONTHS WAITING PERIOD IN HIS CASE. THERE APPEARS TO BE AN OBSTACLE TO THE AUTOMATIC PROMOTION IN THE APPARENT CONFLICT BETWEEN THE LANGUAGE OF THE STATUTE THAT THE LUMP SUM SHALL BE COMPUTED AS THOUGH THE LEAVE WERE TAKEN AS SUCH AND THE CONSEQUENCES RESULTING FROM THE LAST PROVISO OF THE FIRST SECTION THAT THE LUMP SUM SHALL NOT BE REGARDED AS COMPENSATION (EXCEPT FOR TAXATION) AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS--- HENCE, THE PERIOD COVERED THEREBY IS NOT CREDITABLE TO THE EMPLOYEE'S SERVICE RECORD.

THE PROPOSITION STATED IN QUESTION (A) IS CORRECT, THE LEAVE TO BE COMPUTED OVER THE PERIOD IMMEDIATELY FOLLOWING THE LAST DAY OF ACTIVE DUTY IN THE CIVILIAN POSITION PRIOR TO ENTRY INTO THE MILITARY OR NAVAL SERVICE. SEE ANSWER TO QUESTION (3), DECISION OF JANUARY 16, 1945, B 46831, 24 COMP. GEN. 528, TO THE SECRETARY OF AGRICULTURE. QUESTION (B) IS ANSWERED IN THE NEGATIVE. SEE ANSWER TO QUESTION (1) DECISION OF JANUARY 13, 1945, B-46790, 24 COMP. GEN. 526.

6. A NUMBER OF INQUIRIES HAVE BEEN RECEIVED REGARDING SETTLEMENT FOR LEAVE STANDING TO THE CREDIT OF A DECEASED EMPLOYEE. IN NEARLY ALL CASES, THERE IS AN OUTSTANDING CLAIM FOR SALARY AS WELL.

(A) IN THIS SITUATION, WILL THE DEPARTMENT SUBMIT TO THE GENERAL ACCOUNTING OFFICE, THE CLAIM FOR SALARY DUE AT THE TIME OF DEATH AND ITSELF SETTLE THE CLAIM FOR LEAVE IN THE MANNER PROVIDED BY THE LAW, OR

(B) IS THE DEPARTMENT TO CERTIFY BOTH CLAIMS TO THE GENERAL ACCOUNTING OFFICE FOR DISPOSITION?

QUESTION (A) IS ANSWERED IN THE NEGATIVE, AND QUESTION (B) IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION (4), DECISION OF JANUARY 13, 1945, B- 46726, 24 COMP. GEN. 522.

7. WHILE THIS OFFICE DOES NOT HAVE A SPECIFIC INSTANCE AT HAND FOR PRESENTATION, THE FOLLOWING QUESTIONS REQUIRE SOLUTION AND IT WILL BE APPRECIATED IF YOUR OFFICE WILL ADVISE, IN THE CASE OF A REEMPLOYMENT UNDER SECTION 1 OF THE ACT,

(A) WHETHER THE EMPLOYEE MUST REFUND THE ENTIRE OR GROSS AMOUNT OF SALARY, INCLUDING THE TAX WITHHELD, OR WHETHER HE IS REQUIRED TO REFUND THE NET AMOUNT AFTER THE TAX HAS BEEN DEDUCTED,

(B) WHEN MUST THE REFUND BE MADE: IMMEDIATELY AFTER REEMPLOYMENT-- OR PRIOR TO THE FIRST SALARY PAYMENT THEREUNDER,

(C) WHETHER FAILURE TO MAKE PAYMENT PRECLUDES PAYMENT OF SALARY IN THE SECOND POSITION AND

(D) WHETHER IT WOULD BE PERMISSIBLE TO ALLOW INSTALLMENT PAYMENTS, THE LEAVE TO BE CREDITED IN PROPORTION TO THE PERCENTAGE OF REPAYMENT.

REFERRING TO QUESTION (A), THE GROSS AMOUNT OF SALARY, INCLUDING THE TAX WITHHELD, IS REQUIRED TO BE REFUNDED. SEE ANSWER TO QUESTION (3), DECISION OF JANUARY 13, 1945, B-46726. REFERRING TO QUESTIONS (B), (C), AND (D), SEE ANSWERS TO QUESTIONS (1) AND (2), DECISION OF JANUARY 13, 1945, B-46726, WHICH APPEAR TO ANSWER THESE THREE QUESTIONS.