B-51797, AUGUST 24, 1945, 25 COMP. GEN. 228

B-51797, AUGUST 24, 1945, 25 COMP. GEN. 228

LEAVE WITHOUT PAY IN CONNECTION WITH SEPARATION FROM SERVICE WHILE GENERALLY, IN VIEW OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM SERVICE, AN EMPLOYEE WHO HAS RECEIVED THE 30-DAY NOTICE OF SEPARATION BECAUSE OF REDUCTION IN FORCE, TO WHICH HE IS ENTITLED UNDER CIVIL SERVICE COMMISSION REGULATIONS, MAY BE GRANTED ANNUAL LEAVE DURING SUCH PERIOD, WHEN IT IS UNNECESSARY OR UNDESIRABLE TO RETAIN HIM ON ACTIVE DUTY; AND, IF HE HAS INSUFFICIENT ANNUAL LEAVE TO COVER THE ENTIRE ADVANCE-NOTICE PERIOD, LEAVE WITHOUT PAY MAY BE GRANTED FOR THE REMAINDER. WHERE AN EMPLOYEE HAS BEEN GIVEN THE REQUIRED WRITTEN NOTICE OF HIS SEPARATION FROM SERVICE, ON ACCOUNT OF A REDUCTION IN FORCE, AS OF A CERTAIN DAY, AND ACTUALLY HAS LEFT THE SERVICE ON THAT DATE, THERE HAVING BEEN NO MODIFICATION OF THE ADMINISTRATIVE ACTION PRIOR THERETO, THE EMPLOYEE MAY NOT THEREAFTER BE RESTORED TO HIS FORMER POSITION FOR THE SOLE PURPOSE OF BEING GRANTED LEAVE WITHOUT PAY. INASMUCH AS THE PURPOSE AND INTENT OF THE ACT OF DECEMBER 21, 1944, WITH RESPECT TO EMPLOYEES BEING SEPARATED FROM SERVICE IS TO REMOVE THE EMPLOYEES FROM THE ROLLS AND TO MAKE PAYMENT IN A LUMP SUM FOR ANY UNUSED ANNUAL LEAVE, IT IS THE VIEW OF THIS OFFICE THAT LEAVE WITHOUT PAY MAY NOT BE GRANTED AN EMPLOYEE FOR ANY PERIOD SUBSEQUENT TO THE EXPIRATION OF THE PERIOD OF ADVANCE NOTICE OF SEPARATION BECAUSE OF REDUCTION IN FORCE, FOR THE PURPOSE OF ENABLING HIM TO SEEK OTHER FEDERAL EMPLOYMENT OR FOR ANY OTHER PURPOSE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR PRODUCTION BOARD, AUGUST 24, 1945:

I HAVE A LETTER OF AUGUST 14, 1945, RECEIVED HERE AUGUST 18, FROM THE DIRECTOR OF PERSONNEL, WAR PRODUCTION BOARD, AS FOLLOWS:

YOUR DECISION B-46683 OF JANUARY 11, 1945, (24 COMP. GEN. 511) STATES WITH RESPECT TO THE PROVISIONS OF THE LANE ACT: " . . . . 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.'

WHILE WE UNDERSTAND THE MEANING OF THE TERM "TERMINAL ANNUAL LEAVE" WE ARE NOT CERTAIN AS TO WHAT IS MEANT BY "VACATION LEAVE" INASMUCH AS VACATION LEAVE MAY BE A GRANT OF LEAVE WITHOUT PAY. CONSEQUENTLY, THE QUESTION ARISES AS TO WHETHER OR NOT A PERIOD OF LEAVE WITHOUT PAY MAY 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. WE CITE THE FOLLOWING EXAMPLE:

EMPLOYEE A HAS BEEN GIVEN NOTICE OF HIS SEPARATION AS OF THE CLOSE OF BUSINESS ON AUGUST 15, 1945, BECAUSE OF REDUCTION IN FORCE. AUGUST 15 IS TO BE HIS LAST DAY OF ACTIVE DUTY. EMPLOYEE A HAS REQUESTED THAT HE BE GRANTED A PERIOD OF LEAVE WITHOUT PAY OF 21 DAYS IMMEDIATELY FOLLOWING AUGUST 15 FOR THE PURPOSE OF ENABLING HIM TO LOOK FOR EMPLOYMENT IN ANOTHER FEDERAL AGENCY, IN THE HOPE THAT HE MAY TRANSFER WITHOUT A BREAK IN SERVICE. THE EXTENSION OF THE EFFECTIVE DATE OF HIS SEPARATION WOULD NOT VIOLATE THAT PROVISION OF THE REDUCTION IN FORCE REGULATIONS OF THE CIVIL SERVICE COMMISSION WHICH PROVIDES THAT EACH 90-DAY PERIOD SHALL BE CONSIDERED AS A SEPARATE REDUCTION IN FORCE PROGRAM.

1. MAY THE EFFECTIVE DATE OF EMPLOYEE A'S SEPARATION FOR REDUCTION IN FORCE BE EXTENDED 20 DAYS FROM AUGUST 15, 1945, SOLELY FOR THE PURPOSE OF PLACING THIS EMPLOYEE IN A LEAVE WITHOUT PAY STATUS, INASMUCH AS HE WILL PERFORM NO WORK AFTER AUGUST 15 FOR THIS AGENCY?

THE FACTS STATED IN THE LETTER, SUPRA, ARE NOT CLEAR IN THAT IT IS NOT STATED WHETHER THE EMPLOYEE RECEIVED THE REQUIRED 30 DAYS' NOTICE OF SEPARATION BECAUSE OF REDUCTION OF FORCE SPECIFIED IN THE REGULATIONS OF THE CIVIL SERVICE COMMISSION. IF NOT, THE EMPLOYEE'S SEPARATION COULD NOT BECOME EFFECTIVE UNTIL 30 DAYS AFTER HE HAD RECEIVED NOTICE. DURING SUCH PERIOD OF NOTICE THE EMPLOYEE COULD BE GRANTED ANNUAL LEAVE. SEE DECISION OF JULY 20, 1945, B-50806, 25 COMP. GEN. 82, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, A COPY OF WHICH IS ENCLOSED. ALSO, IF HE HAD INSUFFICIENT ANNUAL LEAVE TO HIS CREDIT TO COVER THE ENTIRE PERIOD OF THE 30 DAYS' NOTICE AND IT WAS NOT DEEMED NECESSARY OR DESIRABLE TO RETAIN HIM ON ACTIVE DUTY, HE COULD BE GRANTED LEAVE OF ABSENCE WITHOUT PAY FOR THE PERIOD OF THE ADVANCE NOTICE NOT COVERED BY THE LEAVE WITH PAY.

ON THE OTHER HAND, IF THE EMPLOYEE ACTUALLY WAS SEPARATED AUGUST 15, 1945, AS MAY BE GATHERED FROM THE ABOVE-QUOTED LETTER, OF COURSE, THERE NOW WOULD BE NO AUTHORITY TO RESTORE THE EMPLOYEE TO HIS FORMER POSITION FOR THE PURPOSE OF GRANTING HIM LEAVE OF ABSENCE WITHOUT PAY. THAT IS TO SAY, IF PRIOR TO AUGUST 15, 1945, THERE WAS NO MODIFICATION OF THE ADMINISTRATIVE ACTION SEPARATING THE EMPLOYEE FROM THE SERVICE EFFECTIVE AS OF THAT DATE AND THE EMPLOYEE ACTUALLY LEFT THE SERVICE ON AUGUST 15, 1945, THE QUESTION PRESENTED IS FOR ANSWERING IN THE NEGATIVE.

IT MAY BE STATED AS THE VIEW OF THIS OFFICE THAT LEAVE OF ABSENCE WITHOUT PAY MAY NOT BE GRANTED FOR ANY PERIOD SUBSEQUENT TO THE EXPIRATION OF THE PERIOD OF ADVANCE NOTICE OF SEPARATION BECAUSE OF REDUCTION IN FORCE FOR THE PURPOSE OF ENABLING AN EMPLOYEE TO SEEK OTHER FEDERAL EMPLOYMENT OR FOR ANY OTHER PURPOSE. THE CLEAR PURPOSE AND INTENT OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, IS TO REMOVE EMPLOYEES FROM THE ROLLS AND TO MAKE PAYMENT IN A LUMP SUM FOR ANY UNUSED ANNUAL OR VACATION LEAVE--- THOSE TWO TERMS BEING SYNONYMOUS AND HAVING NO APPLICATION TO LEAVE WITHOUT PAY.