B-48611, APRIL 9, 1945, 24 COMP. GEN. 735

B-48611: Apr 9, 1945

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TO COINCIDE WITH THE TERMINATION DATE OF THE PAY- ROLL PERIOD CURRENT WHEN NOTICE IS RECEIVED IN THE ADMINISTRATIVE OFFICE. 1945: I HAVE YOUR LETTER OF MARCH 20. AS FOLLOWS: IN ORDER THAT THE DEPARTMENT MAY BE INFORMED AS TO THE NECESSARY ACTION WITH RESPECT TO VARIOUS CLASSES OF SEPARATIONS YOUR INTERPRETATION OF THE WORDS "ACTIVE DUTY" AS USED IN VARIOUS DECISIONS IS DESIRED. ILLUSTRATE THIS QUESTION THE FACTS IN A SPECIFIC CASE OF PROBABLE OR POSSIBLE RETIREMENT WITHIN THE NEXT FEW MONTHS ARE STATED. AN EMPLOYEE WHO HAD A HEART ATTACK ABOUT THE MIDDLE OF JANUARY AND IS NOT ON SICK LEAVE IS ELIGIBLE FOR OPTIONAL RETIREMENT BY REASON OF LENGTH OF SERVICE. HIS SICK LEAVE WILL EXTEND TO EARLY MAY UNLESS IN THE MEANTIME HE RECOVERS SUFFICIENTLY TO RETURN TO DUTY.

B-48611, APRIL 9, 1945, 24 COMP. GEN. 735

LUMP-SUM LEAVE PAYMENTS - EFFECTIVE DATE OF SEPARATION FROM SERVICE WHERE AN EMPLOYEE, WITHOUT GIVING ADVANCE NOTICE OR RETURNING TO DUTY, RESIGNS OR APPLIES FOR RETIREMENT WHILE ON SICK OR ANNUAL LEAVE, THE SEPARATION DATE MAY BE FIXED, IN THE LIGHT OF THE LUMP-SUM PAYMENT STATUTE OF DECEMBER 21, 1944, TO COINCIDE WITH THE TERMINATION DATE OF THE PAY- ROLL PERIOD CURRENT WHEN NOTICE IS RECEIVED IN THE ADMINISTRATIVE OFFICE, SO AS NOT TO REQUIRE PAY-ROLL ADJUSTMENTS; HOWEVER, ADJUSTMENT OF LEAVE ON LEAVE SHOULD BE MADE IN ACCORDANCE WITH SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, 24 COMP. GEN. 659, AMPLIFIED

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF AGRICULTURE, APRIL 9, 1945:

I HAVE YOUR LETTER OF MARCH 20, 1945, AS FOLLOWS:

IN ORDER THAT THE DEPARTMENT MAY BE INFORMED AS TO THE NECESSARY ACTION WITH RESPECT TO VARIOUS CLASSES OF SEPARATIONS YOUR INTERPRETATION OF THE WORDS "ACTIVE DUTY" AS USED IN VARIOUS DECISIONS IS DESIRED. ILLUSTRATE THIS QUESTION THE FACTS IN A SPECIFIC CASE OF PROBABLE OR POSSIBLE RETIREMENT WITHIN THE NEXT FEW MONTHS ARE STATED. AN EMPLOYEE WHO HAD A HEART ATTACK ABOUT THE MIDDLE OF JANUARY AND IS NOT ON SICK LEAVE IS ELIGIBLE FOR OPTIONAL RETIREMENT BY REASON OF LENGTH OF SERVICE. HIS SICK LEAVE WILL EXTEND TO EARLY MAY UNLESS IN THE MEANTIME HE RECOVERS SUFFICIENTLY TO RETURN TO DUTY. IT IS CONCEIVABLE THAT HE MAY UTILIZE ALL SICK LEAVE TO HIS CREDIT AND, STILL HOPEFUL OF SUFFICIENT RECOVERY TO RESUME ACTIVE DUTY, ENTER UPON ANNUAL LEAVE. ON THE OTHER HAND, AT THE EXPIRATION OF HIS SICK LEAVE OR SOME TIME THEREAFTER WHILE ON ANNUAL LEAVE OR LEAVE WITHOUT PAY HE MAY CHOOSE TO RETIRE OPTIONALLY, OR HIS PHYSICIAN MAY SUGGEST RETIREMENT FOR DISABILITY. QUESTION ARISES AS TO THE LAST DATE OF "ACTIVE DUTY.' DECISION B-47112 OF JANUARY 23 STATES THAT THE "LAST DAY OF ACTIVE DUTY * * * IS THE DATE OF SEPARATION FROM THE SERVICE.' OBVIOUSLY IN THE CASE USED IN THIS ILLUSTRATION, SHOULD THE EMPLOYEE APPLY FOR RETIREMENT, THE DATE OF SEPARATION WOULD BE SEVERAL MONTHS SUBSEQUENT TO HIS LAST DAY OF ACTUAL WORK. IT SEEMS TO THE DEPARTMENT THAT IN SUCH CASES THE DATE OF SEPARATION SHOULD NOT BE PRIOR TO THE DATE THAT THE EMPLOYEE SUBMITS APPLICATION FOR RETIREMENT AT WHICH TIME, WHETHER ON SICK OR ANNUAL LEAVE, HE SHOULD BE SEPARATED AND PAID IN A LUMP SUM FOR ANY ANNUAL LEAVE REMAINING TO HIS CREDIT. AS A PRACTICAL MATTER IT MAY BE ASSUMED THAT NO INCAPACITATED EMPLOYEE WOULD DESIRE OR EXPECT TO BE SEPARATED PRIOR TO THE EXHAUSTION OF HIS SICK LEAVE AND IF NECESSARY TO ACCOMPLISH THAT WOULD WITHHOLD ANY NOTICE OF INTENTION TO RETIRE UNTIL AFTER THE SICK LEAVE IS EXHAUSTED. IT IS ASSUMED THAT THERE WAS NO INTENTION TO DECIDE THAT AN EMPLOYEE MUST BE SEPARATED UNDER SUCH CIRCUMSTANCES ON THE LAST DAY OF ACTUAL WORK WHEN AS A MATTER OF FACT HE HAS BEEN CONTINUED ON THE ROLLS AND PAID FOR A SUBSTANTIAL PERIOD SUBSEQUENT TO HIS LAST ACTUAL WORK DAY.

SOMEWHAT SIMILAR CASES ALSO PROBABLY WILL ARISE WITH RESPECT BOTH TO RETIREMENT AND SEPARATION WITHOUT RETIREMENT. AN EMPLOYEE MAY BE IN ANNUAL LEAVE STATUS FROM MARCH 6 TO 21, FOR EXAMPLE; WHILE ON ANNUAL LEAVE HE MAY SEEK AND OBTAIN EMPLOYMENT OUTSIDE THE GOVERNMENT WHICH REQUIRES THAT HIS SERVICES BEGIN MARCH 19. HAVING BEEN PAID FOR ANNUAL LEAVE TO MARCH 15, SHOULD HE BE SEPARATED AS OF THAT DATE AND PAID IN A LUMP SUM FOR ALL ADDITIONAL ANNUAL LEAVE DUE HIM (A) WHEN SEPARATED UPON RESIGNATION WITHOUT RETIREMENT ELIGIBILITY, AND (B) WHEN BEING ELIGIBLE FOR RETIREMENT HE SUBMITS HIS APPLICATION FOR RETIREMENT AS OF APRIL 1?

ANOTHER CASE MAY BE THAT OF AN EMPLOYEE UNAVOIDABLY ON LEAVE WITH OR WITHOUT PAY DURING THE LAST FEW DAYS OF A MONTH WHO DECIDES TO APPLY FOR RETIREMENT EFFECTIVE THE FIRST OF THE FOLLOWING MONTH IN ORDER TO ADMINISTER AN ESTATE, MANAGE A BUSINESS, OR FOR OTHER REASON. NUMEROUS OTHER CONDITIONS MAY ALSO ARISE BUT THESE WILL SERVE FOR ILLUSTRATION. SOME DECISIONS HAVE STATED THAT AN INDIVIDUAL MUST PERFORM ACTIVE SERVICE TO THE LAST DAY OF THE MONTH PRECEDING HIS RETIREMENT (B-46790, JANUARY 13, B-46946, JANUARY 18, AND B-47256, JANUARY 30). IT SEEMS THAT CONSIDERABLE CONFUSION COULD BE AVOIDED IF THE LAST DATE OF "ACTIVE DUTY" FOR THE PURPOSE OF SEPARATION IN SUCH CASES COULD BE CONSIDERED (A) AS THE DATE THAT THE DEPARTMENT RECEIVES THE EMPLOYEE'S RESIGNATION OR APPLICATION FOR RETIREMENT IF SUBSEQUENT TO THE LAST DATE THAT THE EMPLOYEE PERFORMS ACTUAL WORK OR (B) THE LAST PRECEDING DATE TO WHICH SALARY HAS BEEN PAID IF ON ANNUAL OR SICK LEAVE IMMEDIATELY PRIOR TO RESIGNATION OR APPLYING FOR RETIREMENT. IT MAY BE MENTIONED INCIDENTALLY THAT IN MOST CASES AN EMPLOYEE COULD MEET A REQUIREMENT THAT HE BE IN ACTIVE WORK STATUS THE LAST WORK DAY OF A MONTH PRECEDING RETIREMENT BY TAKING ALL HIS ANNUAL LEAVE EARLIER AND RETURNING TO DUTY THE LAST DAY OR TWO OF THE MONTH.

IT IS UNDERSTOOD THAT ALL OF THE SITUATIONS PRESENTED IN YOUR LETTER RELATE TO EMPLOYEES WHO APPLY FOR RETIREMENT OR RESIGN WHILE ON ANNUAL OR SICK LEAVE WITHOUT RETURNING TO ACTIVE DUTY, THE ADMINISTRATIVE OFFICE HAVING NO ADVANCE KNOWLEDGE OF SUCH A CONTINGENCY.

QUESTION AND ANSWER 9, IN DECISION OF MARCH 7, 1945, B-48070, 24 COMP. GEN. 659, WERE STATED AS FOLLOWS:

9. AN EMPLOYEE TENDERS HIS RESIGNATION DURING A PERIOD OF ANNUAL LEAVE, OR AFTER HE HAS EXHAUSTED HIS ANNUAL LEAVE, AND THE ADMINISTRATIVE OFFICE HAD NO KNOWLEDGE WHEN THE LEAVE WAS GRANTED THAT THE EMPLOYEE WOULD NOT RETURN TO DUTY. WHAT IS THE EFFECTIVE DATE OF TERMINATION: (A) THE LAST DAY OF ACTUAL DUTY, (B) THE DATE OF THE RESIGNATION NOTICE, (C) THE DATE THE RESIGNATION NOTICE IS RECEIVED IN THE ADMINISTRATIVE OFFICE, OR (D) THE DATE OF ACCEPTANCE OF THE RESIGNATION BY THE PROPER ADMINISTRATIVE AUTHORITY.

IN DECISION OF JANUARY 11, 1945, B-46683, IT WAS HELD, IN ANSWER TO QUESTION 2 THEREIN, 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.) WHERE ANNUAL LEAVE IS GRANTED IN ACCORDANCE WITH THE USUAL PROCEDURE WITHOUT KNOWLEDGE BY THE ADMINISTRATIVE OFFICE THAT THE EMPLOYEE IS TO RESIGN, BUT THE EMPLOYEE DOES RESIGN DURING OR AFTER THE PERIOD OF THE ANNUAL LEAVE ALREADY PROPERLY GRANTED, THE DATE OF SEPARATION BASED UPON THE RESIGNATION MAY BE FIXED ADMINISTRATIVELY SO AS NOT TO REQUIRE ADJUSTMENTS IN PAY ROLLS. HENCE, IN SUCH CASES THE DATE OF SEPARATION FROM THE SERVICE MAY BE FIXED ADMINISTRATIVELY TO COINCIDE WITH THE TERMINATION DATE OF THE PAY ROLL PERIOD CURRENT WHEN NOTICE OF THE RESIGNATION IS RECEIVED IN THE ADMINISTRATIVE OFFICE, AND A LUMP-SUM PAYMENT MADE FOR ANY LEAVE EXTENDING BEYOND THAT DATE. HOWEVER, IN THAT CONNECTION REFERENCE IS MADE TO THE FOLLOWING RULE STATED IN DECISION OF FEBRUARY 29, 1944, 23 COMP. GEN. 638 (QUOTING FROM THE SYLLABUS):

"UNDER THE ANNUAL AND SICK LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1944, AN EMPLOYEE DOES NOT IN ANY CASE EARN LEAVE ON LEAVE GRANTED OVER A PERIOD IMMEDIATELY PRECEDING SEPARATION FROM THE SERVICE, AND IF LEAVE ON LEAVE HAS BEEN GRANTED ERRONEOUSLY BECAUSE OF THE FACT THAT THE ADMINISTRATIVE OFFICE HAD NO ADVANCE INFORMATION THAT THE EMPLOYEE INTENDED TO RESIGN AT THE TERMINATION OF HIS LEAVE, A CHARGE PROPERLY IS FOR ASSERTING AGAINST THE EMPLOYEE FOR THE OVERDRAWN LEAVE REPRESENTING THE AMOUNT OF COMPENSATION WHICH ACTUALLY WAS PAID FOR THE PERIOD OF LEAVE ON LEAVE.'

THAT RULE STILL IS IN EFFECT (SEE SECTION 4.2 (B) OF THE CURRENT LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1945), AND WOULD REQUIRE A CHARGE TO BE RAISED AGAINST ANY EMPLOYEE WHOSE SEPARATION DATE BASED UPON A RESIGNATION IS FIXED AS ABOVE AUTHORIZED AFTER ALL HIS LEAVE HAD EXPIRED. ALSO, IN MAKING A LUMP-SUM PAYMENT FOR THE REMAINDER OF THE LEAVE RUNNING AFTER THE EXPIRATION DATE AS ABOVE AUTHORIZED THERE SHOULD BE WITHHELD ANY PAYMENT FOR LEAVE WHICH WOULD HAVE ACCRUED AFTER THE LAST DAY OF ACTIVE DUTY (LEAVE ON LEAVE).

THE RATIONALE OF THAT DECISION APPLIES REGARDLESS OF WHETHER THE SEPARATION BE BY RESIGNATION, OR RETIREMENT OF WHICH THE ADMINISTRATIVE OFFICE HAS NO ADVANCE KNOWLEDGE, OR WHETHER THE EMPLOYEE BE ON SICK LEAVE OR ANNUAL LEAVE WHEN NOTICE OF THE RESIGNATION OR APPLICATION FOR RETIREMENT IS RECEIVED IN THE ADMINISTRATIVE OFFICE. I BELIEVE THIS ANSWERS THE QUESTIONS ARISING FROM THE SEVERAL SITUATIONS PRESENTED.