B-47946, MARCH 5, 1945, 24 COMP. GEN. 650

B-47946: Mar 5, 1945

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LUMP-SUM LEAVE PAYMENTS TO EMPLOYEES INDUCTED INTO MILITARY SERVICE - EFFECT OF ANNUAL LEAVE IMMEDIATELY PRIOR TO INDUCTION WHERE AN EMPLOYEE WAS GRANTED ANNUAL LEAVE OVER A PERIOD DURING WHICH HIS ELIGIBILITY FOR INDUCTION INTO THE ARMED FORCES WAS PENDING AND UNDETERMINED. WAS INDUCTED WITHOUT RETURNING TO HIS CIVILIAN POSITION. THE DATE PRECEDING THE DATE OF INDUCTION IS TO BE REGARDED AS THE DATE OF SEPARATION (MILITARY FURLOUGH) FROM THE CIVILIAN POSITION FOR PURPOSES OF PAYMENT OF A LUMP SUM PURSUANT TO THE ACT OF DECEMBER 21. 1945: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16. AS FOLLOWS: ATTACHED IS A PAY ROLL VOUCHER PREPARED TO COVER PAYMENT OF COMPENSATION TO AN EMPLOYEE OF THIS ADMINISTRATION FOR THE PERIOD JANUARY 16 TO FEBRUARY 13.

B-47946, MARCH 5, 1945, 24 COMP. GEN. 650

LUMP-SUM LEAVE PAYMENTS TO EMPLOYEES INDUCTED INTO MILITARY SERVICE - EFFECT OF ANNUAL LEAVE IMMEDIATELY PRIOR TO INDUCTION WHERE AN EMPLOYEE WAS GRANTED ANNUAL LEAVE OVER A PERIOD DURING WHICH HIS ELIGIBILITY FOR INDUCTION INTO THE ARMED FORCES WAS PENDING AND UNDETERMINED, AND WAS INDUCTED WITHOUT RETURNING TO HIS CIVILIAN POSITION, THE DATE PRECEDING THE DATE OF INDUCTION IS TO BE REGARDED AS THE DATE OF SEPARATION (MILITARY FURLOUGH) FROM THE CIVILIAN POSITION FOR PURPOSES OF PAYMENT OF A LUMP SUM PURSUANT TO THE ACT OF DECEMBER 21, 1944, FOR HIS ACCRUED LEAVE, RATHER THAN THE LAST DAY OF ACTIVE SERVICE. 24 COMP. GEN. 528, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO J. L. WILKINSON, DEPARTMENT OF AGRICULTURE, MARCH 5, 1945:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1945, AS FOLLOWS:

ATTACHED IS A PAY ROLL VOUCHER PREPARED TO COVER PAYMENT OF COMPENSATION TO AN EMPLOYEE OF THIS ADMINISTRATION FOR THE PERIOD JANUARY 16 TO FEBRUARY 13, 1945, INCLUSIVE. ALSO ENCLOSED IS A SECOND PAY ROLL VOUCHER PREPARED TO COVER A LUMP-SUM PAYMENT TO THIS EMPLOYEE FOR ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT OF 6 DAYS FOR THE PERIOD FEBRUARY 14 TO 20, 1945, INCLUSIVE, UNDER THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944 ( PUBLIC LAW NO. 525).

THE EMPLOYEE IN QUESTION WAS INDUCTED INTO THE ARMED FORCES OF THE UNITED STATES ON/FEBRUARY 14, 1945. HE WORKED IN HIS CIVILIAN POSITION HOWEVER, TO NOON (4 HOURS AFTER THE BEGINNING OF BUSINESS) JANUARY 26 WHEN HE ENTERED ON ANNUAL LEAVE STATUS. HE DID NOT RETURN TO DUTY PRIOR TO INDUCTION ON FEBRUARY 14. THE NECESSARY PERSONNEL ACTION WAS NOT TAKEN TO PLACE HIM ON MILITARY FURLOUGH AT NOON JANUARY 26 BECAUSE IT WAS NOT KNOWN DEFINITELY AS TO WHEN HE ACTUALLY WOULD BE INDUCTED INTO THE ARMED SERVICE AND WHETHER OR NOT HE WOULD BE RETURN TO WORK BEFORE INDUCTION IN VIEW OF THE UNCERTAIN DATE THEREOF. THIS ADMINISTRATION HAD BEEN INFORMED BY THE EMPLOYEE THAT HE WAS SCHEDULED TO BE INDUCTED FEBRUARY 14 AND THAT HE DESIRED TO TAKE ANNUAL LEAVE FROM NOON JANUARY 26 THROUGH FEBRUARY 13. IS NOT UNLIKELY THAT IF HIS ORDERS HAD BEEN MODIFIED SO THAT HE WOULD NOT HAVE BEEN INDUCTED ON FEBRUARY 14 OR AT LEAST BEFORE FEBRUARY 20, TO WHICH DATE HIS ACCRUED ANNUAL LEAVE WILL RUN, HE WOULD HAVE REQUESTED AND BEEN PERMITTED TO RETURN TO AN ACTIVE DUTY STATUS IN HIS CIVILIAN POSITION WITH THIS ADMINISTRATION.

IN SEVERAL INSTANCES IN THE PAST EMPLOYEES WHO HAVE MET THE PREINDUCTION PHYSICAL EXAMINATION REQUIREMENTS HAVE BEEN NOTIFIED BY THE SELECTIVE SERVICE SYSTEM THAT THEY WERE TO REPORT FOR INDUCTION AT SOME SPECIFIED FUTURE DATE BUT BEFORE SUCH DATE ARRIVED AN ADDITIONAL NOTICE HAD BEEN RECEIVED EITHER CHANGING THE DATE OF INDUCTION OR RESCINDING THE ORIGINAL ORDER. BECAUSE OF THIS EXPERIENCE PERSONNEL ACTION WAS NOT TAKEN TO PLACE THIS EMPLOYEE ON MILITARY FURLOUGH BEFORE NOTICE WAS RECEIVED OF HIS INDUCTION.

IT IS STATED IN YOUR DECISION OF JANUARY 11, 1945 (B-46683) THAT THE ACT OF DECEMBER 21, 1944 ( PUBLIC LAW NO. 525) "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.' (ITALICS SUPPLIED.) THIS SAME RULE HAS BEEN RESTATED IN SEVERAL OF YOUR SUBSEQUENT DECISIONS WITH RESPECT TO THE APPLICATION OF THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, BUT IT IS FELT THAT IT MAY HAVE BEEN INTENDED TO COVER ACTUAL SEPARATIONS FROM THE GOVERNMENT SERVICE BY RESIGNATION, TERMINATION, RETIREMENT ETC., AS DISTINGUISHED FROM MILITARY FURLOUGH AS IMPLIED IN ANSWER NO. 7 OF YOUR DECISION OF JANUARY 16, 1945 (B-46831).

PURSUANT TO SECTION 2 OF THE ACT OF DECEMBER 29, 1941 ( PUBLIC LAW NO. 389) I SHALL APPRECIATE YOUR ADVISING ME AS TO WHETHER I MAY PROPERLY CERTIFY THE ENCLOSED PAY ROLL VOUCHERS OR WHETHER ACTION SHOULD NOW BE TAKEN TO SEPARATE, BY MILITARY FURLOUGH, THIS EMPLOYEE EFFECTIVE AT NOON JANUARY 26 AND PAY HIM IN A LUMP-SUM FOR THE ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT AT THAT TIME.

IN DECISION OF JANUARY 16, 1945, B-46831, 24 COMP. GEN. 528, TO THE SECRETARY OF AGRICULTURE, IT WAS STATED IN ANSWER TO QUESTION 3 AS TO EMPLOYEES WHO ENTER OR HAVE ENTERED THE ARMED FORCES AND ELECT ON OR AFTER DECEMBER 21, 1944, TO BE PAID FOR THEIR LEAVE, THAT A LUMP-SUM PAYMENT FOR THE LEAVE IS REQUIRED, AND THAT "THE LAST DAY OF ACTIVE SERVICE IN A CIVILIAN POSITION IS TO BE REGARDED AS THE DATE OF SEPARATION OR MILITARY FURLOUGH FROM THE CIVILIAN POSITION.' OF COURSE, THAT RULE WAS STATED WITH RELATION TO A CASE IN WHICH IT WAS KNOWN IN ADVANCE THAT THE EMPLOYEE WAS TO ENTER THE ARMED FORCES UPON A SPECIFIC DATE (CF. DECISION OF JANUARY 11, 1945, B-46683, 24 COMP. GEN. 511, ANSWER TO QUESTION 2), AND DOES NOT PRECLUDE THE GRANTING OF LEAVE WITH PAY OVER THE PERIOD THE EMPLOYEE'S ELIGIBILITY FOR INDUCTION IS PENDING AND UNDETERMINED, EVEN THOUGH THE EMPLOYEE FINALLY IS INDUCTED INTO THE ARMED FORCES WITHOUT RETURNING TO HIS CIVILIAN POSITION. THE CONCLUSION APPEARS JUSTIFIED THAT THE LUMP-SUM PAYMENT LAW IS NOT INTENDED TO BE APPLIED SO AS TO CAUSE A BREAK IN SERVICE BETWEEN CIVILIAN AND MILITARY SERVICE, THEREBY DEFEATING THE EMPLOYEE'S RIGHT TO REEMPLOYMENT BENEFITS. HENCE, IN THE CASE PRESENTED FEBRUARY 13, 1945, C.O.B., IS THE DATE OF SEPARATION (MILITARY FURLOUGH) FROM THE CIVILIAN POSITION.

ACCORDINGLY, BOTH VOUCHERS SUBMITTED, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.