B-5154, AUGUST 22, 1939, 19 COMP. GEN. 236

B-5154, AUGUST 22, 1939, 19 COMP. GEN. 236

COMPENSATION - AFTER SEPARATION FROM SERVICE - NONWORK DAY INTERVENING BETWEEN SEPARATION AND REAPPOINTMENT WHERE AN EMPLOYEE'S RESIGNATION FROM ONE GOVERNMENT AGENCY WAS ACCEPTED AS EFFECTIVE ON A SATURDAY AND HE DID NOT ENTER ON DUTY IN ANOTHER AGENCY UNTIL THE FOLLOWING MONDAY, HE WAS NOT IN THE GOVERNMENT SERVICE ON THE INTERVENING SUNDAY AND THE FACT THAT HE WAS AUTHORIZED TO TRANSFER HIS LEAVE CREDITS ON THE BASIS THAT A PERIOD OF SEPARATION FROM THE SERVICE OF NONWORK DAYS ONLY DOES NOT CONSTITUTE A "BREAK IN SERVICE" (17 COMP. GEN. 414), HAS NO EFFECT TO AUTHORIZE PAYMENT OF COMPENSATION FOR THE NONWORK DAY WHEN HE WAS OUT OF THE SERVICE, NEITHER MAY THE SUBSEQUENT ADMINISTRATIVE ACTION TO SHOW THE DATE OF RESIGNATION AS SUNDAY AUTHORIZE PAYMENT OF COMPENSATION FOR THAT DAY, FOR, WHEN THE DATE OF RESIGNATION IS ONCE FIXED, NO SUBSEQUENT ACTION CAN CHANGE THAT DATE.

COMPTROLLER GENERAL BROWN TO C. F. ALLEN, CHIEF DISBURSING OFFICER, TREASURY DEPARTMENT, AUGUST 22, 1939:

THERE HAS BEEN RECEIVED YOUR REQUEST DATED MAY 11, 1939, FOR RECONSIDERATION OF THE ACTION OF THIS OFFICE IN DISALLOWING CREDIT FOR $11.11 ON VOUCHER 162119 OF YOUR JULY 1936 ACCOUNTS, REPRESENTING 1 DAY'S SALARY PAID TO CHALMERS B. YARLEY, CHIEF COUNSEL, STATE OFFICE, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS (NOW PUBLIC WORKS ADMINISTRATION) COLUMBIA, S.C., FOR SUNDAY, JULY 26, 1936, AFTER THE EFFECTIVE DATE OF HIS RESIGNATION JULY 25, 1936.

YOU BASE YOUR REQUEST FOR REVIEW UPON THE FOLLOWING ADMINISTRATIVE STATEMENT:

RECONSIDERATION OF THE EXCEPTION RAISED AGAINST PAYMENT OF SALARY TO CHALMERS B. YARLEY, CHIEF COUNSEL, FOR JULY 26, 1936, IS REQUESTED DUE TO THE FOLLOWING FACTS:

AT THE TIME OF MR. YARLEY'S RESIGNATION FROM THIS ADMINISTRATION TO ACCEPT A POSITION WITH THE RURAL ELECTRIFICATION ADMINISTRATION IT WAS HIS DESIRE TO MAKE THE TRANSFER WITHOUT A BREAK IN HIS GOVERNMENT SERVICE. REQUESTED RELEASE AS OF THE CLOSE OF BUSINESS ON JULY 25, 1936, AND REPORTED TO THE RURAL ELECTRIFICATION ADMINISTRATION ON MONDAY, JULY 27. JULY 26 BEING A SUNDAY AND A NONWORK DAY MR. YARLEY WAS NOT AWARE THAT HIS RESIGNATION SHOULD SHOW THAT DATE AS THE EFFECTIVE DATE OF RESIGNATION AND THE MATTER WAS NOT ADJUSTED IN THE PERSONNEL DIVISION, ALTHOUGH THE INTENT WAS EVIDENCED BY THE FACT MR. YARLEY WAS PAID FOR SUNDAY, JULY 26.

SECTION 5 OF THE ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER 7409) PROVIDES: PERMANENT POSITION TO ANOTHER PERMANENT POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF THE TRANSFER BE CREDITED WITH THE ACCUMULATED LEAVE AND CHARGED WITH UNACCRUED LEAVE VANCED.'

IN THE INSTANT CASE MR. YARLEY HAD 13 AND 3/14 DAYS' ACCRUED ANNUAL LEAVE AND THIS LEAVE WAS TRANSFERRED TO THE RURAL ELECTRIFICATION ADMINISTRATION, AS EXECUTIVE OFFICER OF THIS ADMINISTRATION.

AS THERE WAS INVOLVED ONLY AN INTERVAL OF SUNDAY, A NONWORK DAY, BETWEEN TERMINATION OF THE SERVICE IN THIS AGENCY AND THE BEGINNING OF SERVICE IN HIS NEW POSITION AND THERE WAS THEREFORE NO BREAK IN SERVICE WITHIN THE MEANING OF YARLEY FOR JULY 26, 1936, FROM THE APPROPRIATION, ,40-443/70676 NIR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, 1933-37," WAS PROPERLY MADE AND THE EXCEPTION SHOULD BE WITHDRAWN.

IT APPEARS FROM THE FACTS IN THE CASE THAT MR. YARLEY'S RESIGNATION FROM THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS WAS ACCEPTED BY ORDER NO. 1375-PW, AS EFFECTIVE SATURDAY, JULY 25, 1936, AND THAT HE ENTERED UPON DUTY WITH THE RURAL ELECTRIFICATION ADMINISTRATION ON MONDAY, JULY 27, 1936. BY ORDER NO. 38-18-PW, DATED JANUARY 18, 1938, AN ATTEMPT WAS MADE TO CHANGE THE EFFECTIVE DATE OF THE RESIGNATION TO JULY 26, 1936, INSTEAD OF JULY 25, 1936. HOWEVER, WHEN A DATE OF RESIGNATION IS ONCE FIXED, NO SUBSEQUENT ACTION, WHETHER ON THE PART OF THE EMPLOYEE OR THE EMPLOYER, OR BOTH, CAN CHANGE THAT DATE (26 COMP. DEC. 448).

UPON THE FACTS STATED MR. YARLEY WAS LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE BY RESIGNATION JULY 25, 1936, AND AS HE DID NOT ENTER UPON DUTY WITH THE RURAL ELECTRIFICATION ADMINISTRATION UNTIL JULY 27, 1936, HE WAS NOT IN THE GOVERNMENT SERVICE ON SUNDAY, JULY 26, 1936, AND, THEREFORE, WAS NOT ENTITLED TO COMPENSATION FOR THAT DAY. 10 COMP. GEN. 11; 17 ID. 138; 18 ID. 951.

THE FACT THAT MR. YARLEY WAS AUTHORIZED TO TRANSFER HIS LEAVE CREDITS UNDER THE RULE STATED IN DECISION OF NOVEMBER 20, 1937, 17 COMP. GEN. 414, ON THE BASIS THAT A PERIOD OF SEPARATION FROM THE SERVICE OF NONWORK DAYS ONLY DOES NOT CONSTITUTE A "BREAK IN SERVICE," HAS NO EFFECT TO AUTHORIZE PAYMENT OF COMPENSATION FOR THE NONWORK DAY WHEN HE WAS OUT OF THE SERVICE.

ACCORDINGLY, THE ACTION IN DISALLOWING CREDIT IN THE AMOUNT OF $11.11 WAS CORRECT AND IS SUSTAINED. THE AMOUNT SHOULD BE REMITTED WITHOUT UNDUE DELAY.