B-47583, FEBRUARY 14, 1945, 24 COMP. GEN. 616

B-47583, FEBRUARY 14, 1945, 24 COMP. GEN. 616

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - COMBINING OF ANNUAL LEAVE AND SICK LEAVE IMMEDIATELY PRIOR TO SEPARATION THE GRANTING OF SICK LEAVE IMMEDIATELY PRIOR TO SEPARATION IS NOT AFFECTED BY THE ACT OF DECEMBER 21, 1944, AUTHORIZING LUMP-SUM PAYMENTS FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE UPON SEPARATION FROM SERVICE; RATHER, SUCH SICK LEAVE IS REQUIRED TO BE GRANTED AND PAID FOR AS LEAVE IN ACCORDANCE WITH THE USUAL PROCEDURE AND MAY NOT BE COMBINED WITH TERMINAL ANNUAL OR VACATION LEAVE TO DETERMINE THE AMOUNT OF THE LUMP-SUM LEAVE PAYMENT, EXCEPT TO THE EXTENT NECESSARY TO DETERMINE THE TAX WITHHOLDING DEDUCTION FOR LUMP SUM LEAVE PAYMENTS PURSUANT TO TREASURY DEPARTMENT CIRCULAR OF JANUARY 20, 1945.

COMPTROLLER GENERAL WARREN TO F. F. LOVELL, NATIONAL HOUSING AGENCY, FEBRUARY 14, 1945:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 3, 1945 (YOUR FILE GPM), AS FOLLOWS:

THE ACCOMPANYING SUPPLEMENTAL PAYROLL FOR THE PERIOD JANUARY 16 30,1945, STATED IN THE GROSS AMOUNT OF $89.64 IN FAVOR OF HELEN ROSENTHAL INCLUDES REGULAR SALARY AND OVERTIME COMPENSATION AT THE RATE OF $1,620 PER ANNUM FOR THE PERIOD JANUARY 16 THROUGH JANUARY 22, 1945, AND LUMP-SUM PAYMENT FOR THE PERIOD JANUARY 23 THROUGH 3 HOURS ON FEBRUARY 2, 1945.

THE EMPLOYEE RESIGNED BECAUSE OF PREGNANCY AND REQUESTED AND WAS GRANTED THE SICK LEAVE AT CREDIT IN HER ACCOUNT AT CLOSE OF BUSINESS JANUARY 22, 1945, HER LAST DAY OF ATTENDANCE AT ACTIVE DUTY. THE SICK LEAVE BALANCE AMOUNTED TO 36 HOURS AND HAS BEEN APPLIED TOGETHER WITH HER ANNUAL LEAVE BALANCE OF 39 HOURS, ALSO AS OF CLOSE OF BUSINESS JANUARY 22, 1945, IN DETERMINATION OF THE LUMP-SUM PAYMENT.

I HAVE REVIEWED YOUR DECISIONS RESPECTING PUBLIC LAW 525 BUT THOSE WHICH HAVE COME TO HAND DO NOT CITE A PARALLEL CASE. CONSEQUENTLY, I AM DOUBTFUL AS TO WHETHER OR NOT:

(1) JANUARY 22, 1945, SHOULD BE CONSTRUED AS THE DATE OF SEPARATION,

(2) THE TIME AND DATE OF EXPIRATION OF THE SICK LEAVE SHOULD BE CONSTRUED AS THE DATE OF SEPARATION.

IF YOU CONCLUDE THAT JANUARY 22, 1945, SHOULD BE CONSTRUED AS THE DATE OF SEPARATION, WOULD IT BE PROPER TO ALLOW AND PAY FOR THE SICK LEAVE AND, IF SO, SHOULD IT BE EXCLUDED FROM REGULAR SALARY SUBJECT TO RETIREMENT DEDUCTION.

YOUR EARLY ADVICE WILL BE GREATLY APPRECIATED INASMUCH AS SEVERAL OTHER SIMILAR CASES INVOLVING CONSIDERABLE AMOUNTS OF SICK LEAVE SHORTLY WILL BE PRESENTED TO ME FOR CERTIFICATION AND PAYMENT.

THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, AUTHORIZES PAYMENT IN A LUMP SUM FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO THE CREDIT OF AN EMPLOYEE UPON SEPARATION FROM THE SERVICE. THE STATUTE HAS NO EFFECT WHATEVER UPON THE GRANTING OF SICK LEAVE IMMEDIATELY PRIOR TO SEPARATION UNDER THE LAWS, REGULATIONS, AND DECISIONS OF THIS OFFICE CONTROLLING THE GRANTING OF SICK LEAVE. IT HAS BEEN HELD THAT SICK LEAVE BECAUSE OF PREGNANCY MAY BE GRANTED IMMEDIATELY PRIOR TO SEPARATION. 22 COMP. GEN. 533. SEE, ALSO, SECTION 3.3 OF THE CURRENT LEAVE REGULATIONS. HENCE, SICK LEAVE IMMEDIATELY PRIOR TO SEPARATION IS REQUIRED TO BE GRANTED AND PAID FOR AS LEAVE IN ACCORDANCE WITH THE USUAL PROCEDURE AND MAY NOT BE COMBINED WITH TERMINAL ANNUAL OR VACATION LEAVE TO DETERMINE THE AMOUNT OF THE LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, EXCEPT TO THE EXTENT NECESSARY TO DETERMINE THE TAX DEDUCTION PURSUANT TO THE RULE STATED BY THE TREASURY DEPARTMENT IN ITS CIRCULAR OF JANUARY 20, 1945, RELATIVE TO WITHHELD TAXES FOR LUMP-SUM PAYMENTS UNDER SAID ACT.

ACCORDINGLY, IN THE CASE PRESENTED ALTERNATE (2) IS THE CORRECT ANSWER TO THE QUESTION STATED IN THE THIRD PARAGRAPH OF YOUR LETTER, WHICH MAKES IT UNNECESSARY TO ANSWER THE QUESTION IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER.

IT IS UNDERSTOOD FROM THE FIRST PARAGRAPH OF YOUR LETTER THAT THE SUBMITTED VOUCHER IS COMPUTED UPON THE BASIS THAT THE DATE OF SEPARATION FROM THE SERVICE WAS AT CLOSE OF BUSINESS ON JANUARY 22, 1945, RATHER THAN AT EXPIRATION OF THE SICK LEAVE PERIOD FOLLOWING SAID LAST DAY OF ACTIVE SERVICE. IF SO, THE VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.