B-48972, APRIL 20, 1945, 24 COMP. GEN. 768

B-48972: Apr 20, 1945

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IS REQUIRED TO BE MADE AT THE RATE OF COMPENSATION PROPERLY RECEIVED BY THE EMPLOYEE AT DATE OF SEPARATION. A COMPENSATION DIFFERENTIAL RECEIVED BY AN EMPLOYEE FOR OVERSEAS SERVICE AT DATE OF SEPARATION SHOULD BE INCLUDED IN COMPUTING THE LUMP-SUM LEAVE PAYMENT FOR LEAVE WHICH ACCRUED OVER A PRIOR PERIOD DURING WHICH NO DIFFERENTIAL WAS RECEIVED. AS WELL AS THAT WHICH ACCRUED WHEN THE DIFFERENTIAL WAS RECEIVED. THE ADMINISTRATIVE OFFICE IS NOT CERTAIN THAT THE EMPLOYEE. WHO IS ON SICK LEAVE. IS TO BE RETIRED. THROUGH THE PAY ROLL PERIOD CURRENT WHEN NOTICE IS RECEIVED THAT THE EMPLOYEE IS TO BE RETIRED. WHERE THE TRANSFER OF A PER ANNUM EMPLOYEE FROM ONE AGENCY TO ANOTHER UNDER THE SAME LEAVE SYSTEM IS NOT ACCOMPLISHED WITHOUT LOSS OF PAY FOR AN INTERVENING NON-WORKDAY.

B-48972, APRIL 20, 1945, 24 COMP. GEN. 768

LUMP-SUM LEAVE PAYMENTS PAYMENT FOR ANNUAL LEAVE IN A LUMP SUM PURSUANT TO THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, IS REQUIRED TO BE MADE AT THE RATE OF COMPENSATION PROPERLY RECEIVED BY THE EMPLOYEE AT DATE OF SEPARATION, DEATH, OR TRANSFER TO A POSITION UNDER ANOTHER LEAVE SYSTEM, AND, THEREFORE, A COMPENSATION DIFFERENTIAL RECEIVED BY AN EMPLOYEE FOR OVERSEAS SERVICE AT DATE OF SEPARATION SHOULD BE INCLUDED IN COMPUTING THE LUMP-SUM LEAVE PAYMENT FOR LEAVE WHICH ACCRUED OVER A PRIOR PERIOD DURING WHICH NO DIFFERENTIAL WAS RECEIVED, AS WELL AS THAT WHICH ACCRUED WHEN THE DIFFERENTIAL WAS RECEIVED. UNDER THE ACT OF DECEMBER 21, 1944, AUTHORIZING PAYMENT IN A LUMP SUM WHEN AN EMPLOYEE "ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED * * *," AN EMPLOYEE MAY NOT ELECT TO RECEIVE A LUMP SUM FOR PART OF HIS LEAVE AND PERMIT THE BALANCE TO REMAIN TO HIS CREDIT. WHERE, PENDING ACTION ON AN EMPLOYEE'S APPLICATION FOR DISABILITY RETIREMENT, THE ADMINISTRATIVE OFFICE IS NOT CERTAIN THAT THE EMPLOYEE, WHO IS ON SICK LEAVE, IS TO BE RETIRED, THE LUMP-SUM LEAVE PAYMENT REQUIREMENTS OF THE ACT OF DECEMBER 21, 1944, DO NOT PRECLUDE THE GRANTING OF ANNUAL LEAVE, AT THE EXPIRATION OF SICK LEAVE, THROUGH THE PAY ROLL PERIOD CURRENT WHEN NOTICE IS RECEIVED THAT THE EMPLOYEE IS TO BE RETIRED; HOWEVER, ADJUSTMENT SHOULD BE MADE FOR LEAVE ON LEAVE GRANTED DURING TERMINAL ANNUAL OR SICK LEAVE, AS REQUIRED BY DECISIONS IN 24 COMP. GEN. 659; ID. 735. WHERE THE TRANSFER OF A PER ANNUM EMPLOYEE FROM ONE AGENCY TO ANOTHER UNDER THE SAME LEAVE SYSTEM IS NOT ACCOMPLISHED WITHOUT LOSS OF PAY FOR AN INTERVENING NON-WORKDAY, THE RESULTING BREAK IN SERVICE FOR SUCH NON- WORKDAY NEED NOT BE REGARDED AS REQUIRING A LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, BUT THE EMPLOYEE'S LEAVE MAY BE TRANSFERRED IN ACCORDANCE WITH THE LEAVE REGULATIONS. 24 COMP. GEN. 532, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, APRIL 20, 1945:

I HAVE YOUR LETTER OF MARCH 27, 1945 (REFERENCE A3-5), RECEIVED HERE APRIL 7, AS FOLLOWS:

THE DEPARTMENT OF JUSTICE IS CONFRONTED WITH THE NEED FOR DETERMINATIONS ON THE FOLLOWING QUESTIONS RELATING TO PUBLIC LAW 525 OF THE LAST CONGRESS:

1. EMPLOYEES OF THE DEPARTMENT HAVE BEEN TRANSFERRED FROM THE MAINLAND TO HAWAII WITH ACCUMULATED LEAVE TO THEIR CREDIT. AFTER A PERIOD OF SERVICE IN HAWAII, THEY HAVE ACCUMULATED ADDITIONAL LEAVE. UPON SEPARATION FROM THE SERVICE, THE QUESTION ARISES AS TO THE METHOD OF COMPUTING THEIR LUMP- SUM PAYMENT UNDER THE LAW, IN VIEW OF THE FACT THAT AT THE TIME OF SEPARATION, THEY ARE DRAWING THEIR BASIC COMPENSATION, PLUS A TWENTY-FIVE PERCENT DIFFERENTIAL FOR SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. IS THE LUMP-SUM PAYMENT TO BE COMPUTED ON THE BASIS OF THE REGULAR SALARY, PLUS DIFFERENTIAL RECEIVED ON THE LAST ACTIVE DUTY DAY FOR ALL LEAVE TO THEIR CREDIT OR FOR ONLY THAT PART OF THE LEAVE WHICH ACCRUED IN HAWAII?

2. DUE TO PRESSURE OF WORK DURING THE EMERGENCY, A NUMBER OF OUR EMPLOYEES HAVE BEEN ABLE TO TAKE VERY LITTLE, IF ANY, ANNUAL LEAVE AND AS A RESULT HAVE TO THEIR CREDIT AS OF JANUARY 1, 1945, THE MAXIMUM OF NINETY DAYS ACCRUED ANNUAL LEAVE. WITH THE ADDITIONS ACCRUING DURING THE CURRENT YEAR, THEY WILL SOON HAVE SUFFICIENT LEAVE IN THE EVENT THEY SEPARATE FROM THE SERVICE, TO CARRY THEN IN A LEAVE STATUS BEYOND THE END OF THE CURRENT FISCAL YEAR. IT IS RATHER GENERALLY ACKNOWLEDGED THAT THERE WILL BE A CHANGE IN THE PAY STRUCTURE BEGINNING JULY ST, NEXT, SINCE THE CURRENT OVERTIME LAW WILL EXPIRE ON JUNE 30. PLEASE ADVISE WHETHER OR NOT THE DEPARTMENT IS AUTHORIZED TO MAKE SETTLEMENT IN A LUMP-SUM PAYMENT ON THE BASIS OF EMPLOYEE'S PAY STATUS ON HIS LAST DAY OF ACTIVE DUTY, REGARDLESS OF THE FACT THAT HIS ANNUAL LEAVE MAY EXTEND INTO A PERIOD WHEN THE PAY RATES ARE ENTIRELY DIFFERENT THAN ON THE LAST ACTIVE DUTY DATE.

3. UNDER THE ACT OF AUGUST 1, 1941, AS AMENDED, A CIVILIAN EMPLOYEE MAY ALLOW HIS ANNUAL LEAVE TO STAND TO HIS CREDIT UPON ENTERING MILITARY SERVICE OR HE MAY ELECT TO BE PAID THEREFOR. PLEASE ADVISE WHETHER SUCH EMPLOYEE MAY CHOOSE TO RECEIVE A LUMP SUM FOR A PART OF HIS ANNUAL LEAVE AND PERMIT THE BALANCE TO REMAIN TO HIS CREDIT.

4. YOUR DECISIONS B-46790, 46946 AND 47256 INDICATE THAT ANNUAL LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO RETIREMENT FOR ANY REASON. THE DEPARTMENT HAS THIS SITUATION IN THE CASE OF ONE EMPLOYEE AT THE PRESENT TIME AND SIMILAR INSTANCES ARE VERY LIKELY TO ARISE. THE EMPLOYEE HAS BEEN ILL AND IS UNABLE TO RESUME WORK. HER SICK LEAVE IS NEARING EXHAUSTION AND ACTION HAS NOT BEEN TAKEN ON HER APPLICATION FOR DISABILITY RETIREMENT. HER SICK LEAVE WILL EXPIRE MARCH 29. WHILE IT IS ANTICIPATED THAT THE APPLICATION FOR DISABILITY WILL BE APPROVED, THERE IS NO ASSURANCE OF THAT FACT. IT WOULD SEEM IN THE CIRCUMSTANCES THAT SINCE THE DATE OF RETIREMENT IS INDEFINITE OR UNCERTAIN, SHE SHOULD BE PERMITTED TO UTILIZE HER ANNUAL LEAVE AT LEAST TO THE CLOSE OF THE DAY ON WHICH NOTICE IS RECEIVED FROM THE CIVIL SERVICE COMMISSION OF FAVORABLE ACTION ON THE APPLICATION. ANY LEAVE REMAINING TO HER CREDIT COULD THEN BE PAID OFF IN A LUMP SUM AS IN ANY OTHER SEPARATION, COMPUTING FROM THE DAY FOLLOWING RECEIPT OF NOTICE. WILL YOU ADVISE THE DEPARTMENT WHAT ACTION IT MAY PROPERLY TAKE AS TO THE ALLOWANCE OF ANNUAL LEAVE IN THESE RETIREMENT CASES?

5. IN YOUR DECISION OF JANUARY 17, 1945, B-46891, (24 COMP. GEN. 532) YOU DECIDED THAT BREAKS OF ONE DAY OR MORE REQUIRE LUMP-SUM PAYMENTS, BUT DID NOT SPECIFY WHETHER THIS HAS REFERENCE TO CALENDAR DAYS OR WORK DAYS. OUR PARTICULAR PROBLEM PERTAINS TO CERTIFICATION OF PAY ROLLS WHICH INCLUDE EMPLOYEES WHOSE LAST ACTIVE DUTY IS ON A SATURDAY OR A DAY FOLLOWED BY A HOLIDAY, WHEN THE EMPLOYEES ARE CONSIDERING ENTRANCE ON DUTY IN OTHER GOVERNMENT DEPARTMENTS ON THE FOLLOWING WORK DAY. IT HAS BEEN THE POLICY OF ONE OF OUR LARGER BUREAUS TO RECOMMEND THAT SUCH EMPLOYEES BE REMOVED FROM THE ACTIVE DUTY ROLLS AT THE CLOSE OF BUSINESS ON THE LAST WORK DAY SINCE, FOR ALL PRACTICAL PURPOSES, THE EMPLOYEES HAVE SEVERED THEIR SERVICES AT THE CLOSE OF BUSINESS ON THE LAST ACTIVE DUTY DAY. IT IS CONTENDED THERE IS NO LOGICAL REASON WHY THEY SHOULD BE RETAINED ON THE ROLLS TO THE CLOSE OF BUSINESS OF THE SUNDAY OR HOLIDAY PRECEDING THE CONTEMPLATED ENTRANCE ON DUTY IN ANOTHER AGENCY. PLEASE ADVISE WHETHER UNDER THESE CIRCUMSTANCES THE SUNDAY OR HOLIDAY CONSTITUTES A BREAK IN SERVICES REQUIRING A LUMP-SUM PAYMENT FOR LEAVE.

YOUR RESPONSE TO THE FOREGOING QUESTIONS WILL BE APPRECIATED.

THE QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED.

1. PAYMENT FOR LEAVE IN A LUMP SUM PURSUANT TO THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, IS REQUIRED TO BE MADE AT THE RATE OF COMPENSATION PROPERLY RECEIVED BY THE EMPLOYEE AT DATE OF SEPARATION, DEATH, OR TRANSFER TO A POSITION UNDER ANOTHER LEAVE SYSTEM, REGARDLESS OF ANY DIFFERENT RATE THAT MIGHT HAVE BEEN PAYABLE HAD THE EMPLOYEE REMAINED IN THE SERVICE DURING THE PERIOD OVER WHICH THE LEAVE IS COMPUTED. SEE DECISION OF APRIL 7, 1945, B 48739, AND THE DECISIONS THEREIN CITED. ACCORDINGLY, THE DIFFERENTIAL RECEIVED BY THE EMPLOYEE WHOSE CASE IS PRESENTED IN QUESTION 1 AT DATE OF SEPARATION SHOULD BE INCLUDED IN COMPUTING THE LUMP-SUM PAYMENT FOR LEAVE.

2. THIS QUESTION IS SIMILAR TO THAT WHICH WAS ANSWERED IN THE DECISION OF APRIL 7, 1945, B-48739, 24 COMP. GEN. 728, AS FOLLOWS:

HENCE, IN THE CASES PRESENTED THE SALARY RATE PROPERLY PAYABLE UNDER THE LAWS AND REGULATIONS IN EFFECT ON DATE OF SEPARATION OF THE EMPLOYEES FROM THE SERVICE, INCLUDING ANY PRORATED OVERTIME COMPENSATION DUE UNDER THE WAR OVERTIME PAY ACT OF 1943, AND THE REGULATIONS ISSUED PURSUANT THERETO, IS THE PROPER RATE TO BE USED IN COMPUTING THE LUMP-SUM PAYMENT FOR LEAVE, REGARDLESS OF THE FACT THAT THE PERIOD OF LEAVE OVER WHICH THE LUMP-SUM PAYMENT IS COMPUTED EXTENDS BEYOND JUNE 30, 1945, WHEN THE WAR OVERTIME PAY ACT OF 1943, MAY NOT BE IN FORCE.

THAT ANSWER APPLIES WITH EQUAL FORCE HERE.

3. THE ACT OF AUGUST 1, 1941, 55 STAT. 616, AS AMENDED BY THE ACT OF APRIL 7, 1942, 56 STAT. 200, PROVIDES:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

SEE, ALSO, SECTION 1 OF THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, AUTHORIZING PAYMENT IN A LUMP SUM WHEN AN EMPLOYEE "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.' THE ELECTION AUTHORIZED BY THE ABOVE-QUOTED STATUTE RELATES TO "SUCH LEAVE" WHICH, OF NECESSITY, CONNOTES THE ENTIRE AMOUNT OF THE ANNUAL LEAVE STANDING TO THE CREDIT OF AN EMPLOYEE WHEN HE ENTERS THE ARMED FORCES. TO PERMIT SUCH ELECTION TO APPLY TO ONLY A PART OF "SUCH LEAVE" WOULD BE TANTAMOUNT TO READING WORDS IN THE STATUTE WHICH ARE NOT THERE. ACCORDINGLY, THIS QUESTION IS ANSWERED IN THE NEGATIVE.

4. THE RULE TO WHICH YOU REFER IN THE FIRST SENTENCE OF THIS QUESTION RELATES TO CASES WHERE IT IS KNOWN IN ADVANCE THAT AN EMPLOYEE IS TO BE RETIRED. THIS OFFICE HAS RECOGNIZED THAT IN CASES WHERE IT IS NOT KNOWN IN ADVANCE BY AN ADMINISTRATIVE OFFICE THAT AN EMPLOYEE IS TO BE RETIRED, LEAVE OF ABSENCE EITHER ANNUAL, SICK, OR WITHOUT PAY, MAY BE GRANTED PRIOR TO THE END OF THE PAY PERIOD CURRENT WHEN NOTICE IS RECEIVED THAT THE EMPLOYEE IS TO BE RETIRED. SEE, FOR INSTANCE, QUESTION AND ANSWER 9 IN THE DECISION OF MARCH 7, 1945, B-48070, 24 COMP. GEN. 659, AND, ALSO, THE DECISION OF APRIL 9, 1945, B-48611, 24 COMP. GEN. 735. IF, AS IS UNDERSTOOD, THE DEPARTMENT OF JUSTICE IS NOT CERTAIN THAT THE EMPLOYEE WHOSE CASE IS PRESENTED IN QUESTION 4 IS TO BE RETIRED FOR DISABILITY, SHE MAY BE GRANTED ANNUAL LEAVE IN ACCORDANCE WITH THE RULE STATED IN THE CITED DECISIONS, SUBJECT TO AN ADJUSTMENT FOR LEAVE ON LEAVE GRANTED DURING TERMINAL ANNUAL OR SICK LEAVE, AS REQUIRED IN THE CITED DECISIONS.

5. WHEN NO WORK DAY IS TO INTERVENE BETWEEN THE TIME A PER ANNUM EMPLOYEE LEAVES THE SERVICE OF ONE AGENCY AND ENTERS THE SERVICE OF ANOTHER AGENCY, THERE WOULD BE NO LEGAL OBJECTION TO THE ACCOMPLISHMENT OF THE TRANSFER WITHOUT LOSS OF PAY; BUT WHERE, AS IN THE SITUATION WHICH YOU PRESENT, THAT IS NOT DONE BUT THE BREAK IN SERVICE (LOSS OF PAY) IS FOR ONLY A NON- WORKDAY, THE PROVISIONS OF THE LUMP-SUM LAW OF DECEMBER 21, 1944, NEED NOT BE APPLIED, AND LEAVE MAY BE TRANSFERRED IN ACCORDANCE WITH THE LEAVE REGULATIONS--- PROVIDED, OF COURSE, THE EMPLOYEE IS BEING TRANSFERRED OR REAPPOINTED TO A POSITION UNDER THE SAME LEAVE SYSTEM.