B-51345, AUGUST 9, 1945, 25 COMP. GEN. 169

B-51345: Aug 9, 1945

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1945: I HAVE YOUR LETTER OF JULY 25. AT WHICH TIME HE WAS A FIELD REPRESENTATIVE. WAS GRANTED LWOP FOR A PERIOD OF 60 DAYS ENDING JUNE 25. HE WAS ADVISED THAT HIS REQUEST FOR EXTENSION OF LWOP HAD BEEN APPROVED FOR A PERIOD OF TWO WEEKS AND THAT HIS LWOP STATUS WOULD EXPIRE JULY 8. BY TRANSFER AND REASSIGNMENT HIS DESIGNATION WAS CHANGED FROM FIELD REPRESENTATIVE. WAS APRIL 25. WHEN HIS SALARY WAS $6. ALTHOUGH IT WAS PROBABLY SUSPECTED THAT HE WOULD BE TERMINATED WHILE IN LWOP STATUS NEVERTHELESS HE HAD THE RIGHT TO RETURN TO ACTIVE DUTY. HIS ACTUAL RESIGNATION WAS NOT KNOWN UNTIL AFTER JULY 8. IS REQUIRED TO BE MADE AT THE RATE OF COMPENSATION PROPERLY RECEIVED BY THE EMPLOYEE AT THE DATE OF SEPARATION.

B-51345, AUGUST 9, 1945, 25 COMP. GEN. 169

LUMP-SUM LEAVE PAYMENTS - SEPARATION DATE - EFFECT OF RESIGNATION WHILE ON LEAVE WITHOUT PAY WHERE AN EMPLOYEE WITH ANNUAL LEAVE TO HIS CREDIT RESIGNED WHILE ON LEAVE WITHOUT PAY WITHOUT RETURNING TO DUTY, THE SEPARATION DATE FOR PURPOSES OF A LUMP-SUM PAYMENT FOR HIS LEAVE UNDER THE ACT OF DECEMBER 21, 1944, SHOULD BE CONSIDERED AS THE DATE OF RESIGNATION RATHER THAN THE LAST DAY OF ACTIVE DUTY, AND THE LUMP-SUM PAYMENT SHOULD BE COMPUTED AT THE RATE OF COMPENSATION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 APPLICABLE ON SUCH DATE OF SEPARATION INSTEAD OF THE LOWER RATE UNDER PRIOR LAW IN EFFECT ON THE LAST DAY OF ACTIVE DUTY.

COMPTROLLER GENERAL WARREN TO WILLIAM L. HUNT, SMALLER WAR PLANTS CORPORATION, AUGUST 9, 1945:

I HAVE YOUR LETTER OF JULY 25, 1945, AS FOLLOWS:

THERE HAS BEEN PRESENTED TO ME FOR CERTIFICATION THE ENCLOSED STANDARD FORM NO. 1128, PAY ROLL FOR PERSONAL SERVICES, BUREAU VOUCHER NO. 3350, IN THE GROSS AMOUNT OF $2,209.36, REPRESENTING THE LUMP-SUM PAYMENT OF 80 DAYS 2 HOURS ACCRUED VACATION LEAVE.

THE EMPLOYEE ON APRIL 26, 1945, AT WHICH TIME HE WAS A FIELD REPRESENTATIVE, CAF-14, $6,500 PER ANNUM, WAS GRANTED LWOP FOR A PERIOD OF 60 DAYS ENDING JUNE 25, 1945. UNDER DATE OF JUNE 14, 1945, HE REQUESTED THAT HIS LWOP STATUS BE EXTENDED TO SEPTEMBER 30, 1945. IN A LETTER DATED JUNE 29, 1945, HE WAS ADVISED THAT HIS REQUEST FOR EXTENSION OF LWOP HAD BEEN APPROVED FOR A PERIOD OF TWO WEEKS AND THAT HIS LWOP STATUS WOULD EXPIRE JULY 8, 1945 COB. ON JULY 8, 1945, HE SUBMITTED HIS RESIGNATION EFFECTIVE AT THE CLOSE OF BUSINESS JULY 8, 1945.

EFFECTIVE MAY 16, 1945, WHILE IN LWOP STATUS, BY TRANSFER AND REASSIGNMENT HIS DESIGNATION WAS CHANGED FROM FIELD REPRESENTATIVE, CAF- 14, $6,500 PER ANNUM TO BUSINESS SPECIALIST ( SPECIAL ASSISTANT TO CHIEF LOAN AGENT), CAF-13 $6,400 PER ANNUM.

HIS LAST DAY OF ACTIVE DUTY, AND IN PAY STATUS, WAS APRIL 25, 1945, WHEN HIS SALARY WAS $6,500 PER ANNUM. HE RESIGNED JULY 8, 1945 WITHOUT RETURNING TO ACTIVE DUTY. ALTHOUGH IT WAS PROBABLY SUSPECTED THAT HE WOULD BE TERMINATED WHILE IN LWOP STATUS NEVERTHELESS HE HAD THE RIGHT TO RETURN TO ACTIVE DUTY, AND HIS ACTUAL RESIGNATION WAS NOT KNOWN UNTIL AFTER JULY 8, 1945.

IT HAS BEEN HELD, C.D. NO. B-48972, 4/20/45 (24 COMP. GEN. 768), THAT 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 THE DATE OF SEPARATION. IF THE LAST DAY ON ACTIVE DUTY IS CONSIDERED THE DATE OF SEPARATION AND PAYMENT MADE AT THE RATE PROPERLY RECEIVED AT THAT TIME THE EMPLOYEE WOULD BE ENTITLED TO THE EQUIVALENT OF BEING CARRIED ON THE PAY ROLL TO AND INCLUDING TWO HOURS JULY 30 AT $6,500 PER ANNUM ON A 30 DAY MONTH BASIS, 6 WORKING DAYS PER WEEK.

SHOULD THE SEPARATION DATE BE CONSIDERED JULY 8, 1945, THE DATE ON WHICH THE RESIGNATION IS A MATTER OF RECORD, AT THE SALARY IN EFFECT JUNE 30, 1945, NAMELY, $6,400 PER ANNUM TO WHICH HE WAS REASSIGNED BY PERSONNEL ACTION EFFECTIVE MAY 16, 1945, HE WOULD BE ENTITLED TO THE BENEFITS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 AND HIS LUMP-SUM PAYMENT WOULD BE ON THE BASIS OF $7,070 PER ANNUM. SINCE THE BASIC WORK-WEEK OF THIS CORPORATION IS 40 HOURS PER WEEK, MONDAY THROUGH FRIDAY, 80 DAYS 2 HOURS ACCRUED VACATION LEAVE WOULD CARRY HIM THROUGH 2 HOURS OCTOBER 30, 1945 WITHOUT OVERTIME.

THE ENCLOSED PAY ROLL IS PREPARED ON THE LATTER BASIS. AM I AUTHORIZED TO CERTIFY IT AS PREPARED? IF NOT, KINDLY ADVISE THE BASIS ON WHICH IT SHOULD BE CALCULATED AND STATE THE GROSS AMOUNT DUE.

THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, PROVIDES THAT PAYMENT IN A LUMP SUM FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE SHALL BE MADE WHEN AN EMPLOYEE "IS SEPARATED FROM THE SERVICE.' OF COURSE AN EMPLOYEE ON LEAVE WITHOUT PAY MAY NOT BE REGARDED AS HAVING BEEN SEPARATED FROM THE SERVICE. SEE SECTION 4.8 (A) OF THE CURRENT LEAVE REGULATIONS. THIS OFFICE HAS BEEN HELD THAT WHEN EMPLOYEES RESIGN WHILE ON ANNUAL OR SICK LEAVE WITHOUT RETURNING TO ACTIVE DUTY, THE SEPARATION FROM THE SERVICE FOR THE PURPOSE OF THE ABOVE ACT SHOULD BE ADMINISTRATIVELY FIXED BASED UPON THE RESIGNATION AND NEED NOT BE REGARDED AS HAVING TAKEN PLACE ON THE LAST DAY OF ACTIVE DUTY. 24 COMP. GEN. 659; ID. 735; AND ID. 768. NO REASON IS PERCEIVED WHY THE SAME RULE SHOULD NOT BE APPLIED TO RESIGNATIONS EFFECTED WHILE IN A LEAVE WITHOUT PAY STATUS. HENCE, IN THIS CASE, SINCE THE DATE OF RESIGNATION ON JULY 8, 1945, PROPERLY IS FOR CONSIDERING AS THE EFFECTIVE DATE OF SEPARATION FROM THE SERVICE, THE EMPLOYEE IS ENTITLED TO BE PAID AT THE RATE OF COMPENSATION APPLICABLE TO THE POSITION HE HELD ON SUCH DATE, AND IT IS IMMATERIAL THAT ON SUCH DATE HIS RATE OF COMPENSATION HAPPENS, BY OPERATION OF LAW, TO BE HIGHER THAN THE RATE IN EFFECT ON THE LAST DAY OF ACTIVE DUTY.

ACCORDINGLY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT UPON THAT BASIS.