B-55526, FEBRUARY 12, 1946, 25 COMP. GEN. 592

B-55526: Feb 12, 1946

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MAXIMUM LEAVE RECREDIT UPON REEMPLOYMENT THE ONE-HALF DAY ANNUAL LEAVE CREDIT AUTHORIZED UNDER SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS FOR EMPLOYEES WHO HAVE BEEN CONTINUOUSLY EMPLOYED FOR AN ENTIRE QUARTER MAY NOT BE CREDITED TO AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS ON THE 30TH DAY OF THE 31-DAY MONTH ENDING A QUARTER. IRRESPECTIVE OF WHETHER ANY WORK WAS REQUIRED TO BE PERFORMED ON SUCH 31ST DAY. THE EMPLOYEE IS LIMITED TO CREDIT FOR TWO DAYS' ANNUAL LEAVE FOR THAT QUARTER. 23 COMP. THERE WAS RECEIVED A COPY OF YOUR LETTER OF NOVEMBER 19. AS FOLLOWS: A NUMBER OF EMPLOYEES WILL BE SEPARATED FROM THE SERVICE AT THE END OF THE YEAR. IS ENTITLED TO THE FULL MONTHLY AND QUARTERLY ANNUAL LEAVE CREDIT.

B-55526, FEBRUARY 12, 1946, 25 COMP. GEN. 592

LEAVES OF ABSENCE - ANNUAL - QUARTERLY LEAVE CREDIT; LUMP-SUM LEAVE PAYMENTS; MAXIMUM LEAVE RECREDIT UPON REEMPLOYMENT THE ONE-HALF DAY ANNUAL LEAVE CREDIT AUTHORIZED UNDER SECTION 2.1 (A) OF THE ANNUAL LEAVE REGULATIONS FOR EMPLOYEES WHO HAVE BEEN CONTINUOUSLY EMPLOYED FOR AN ENTIRE QUARTER MAY NOT BE CREDITED TO AN EMPLOYEE WHO WAS SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS ON THE 30TH DAY OF THE 31-DAY MONTH ENDING A QUARTER, IRRESPECTIVE OF WHETHER ANY WORK WAS REQUIRED TO BE PERFORMED ON SUCH 31ST DAY; INSTEAD, THE EMPLOYEE IS LIMITED TO CREDIT FOR TWO DAYS' ANNUAL LEAVE FOR THAT QUARTER. 23 COMP. GEN. 837 AND 25 ID. 212, DISTINGUISHED. AN EMPLOYEE SEPARATED FROM SERVICE AT OR NEAR THE END OF A CALENDAR YEAR AND PAID A LUMP SUM UNDER THE ACT OF DECEMBER 21, 1944, FOR CURRENT ACCRUED ANNUAL LEAVE PLUS THE MAXIMUM OF 90 DAYS' ACCUMULATED LEAVE PERMITTED UNDER THE ACT OF DECEMBER 17, 1942, MAY NOT, UPON REEMPLOYMENT IN THE NEXT CALENDAR YEAR PRIOR TO EXPIRATION OF THE LEAVE PERIOD FOR WHICH PAID, BE RECREDITED WITH MORE THAN 90 DAYS OF UNEXPIRED LEAVE; AND THE REFUND COVERING UNEXPIRED LEAVE, AS REQUIRED BY THE 1944 ACT, SHOULD COVER ONLY THE LEAVE, NOT EXCEEDING 90 DAYS, RECREDITED TO THE EMPLOYEE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, CIVILIAN PRODUCTION ADMINISTRATION, FEBRUARY 12, 1946:

ON JANUARY 30, 1946, THERE WAS RECEIVED A COPY OF YOUR LETTER OF NOVEMBER 19, 1945, AS FOLLOWS:

A NUMBER OF EMPLOYEES WILL BE SEPARATED FROM THE SERVICE AT THE END OF THE YEAR, DUE TO A REDUCTION IN FORCE. ALTHOUGH THE DESIGNATION OF DECEMBER 30, 1945 AS THE DATE OF SEPARATION, RATHER THAN DECEMBER 31, 1945, WOULD PRECLUDE THE NECESSITY OF PROCESSING SUPPLEMENTAL PAY ROLLS COVERING THE ONE DAY ( DECEMBER 31), SUCH ACTION RAISES DOUBT AS TO THE AMOUNT OF ANNUAL LEAVE THAT MAY BE CREDITED TO THE EMPLOYEES INVOLVED.

IT HAS BEEN HELD (23 COMP. GEN. 837) THAT AN EMPLOYEE, RECEIVING PAYMENT FOR THE FIRST 30 DAYS OF THE FINAL MONTH OF A QUARTER, IS ENTITLED TO THE FULL MONTHLY AND QUARTERLY ANNUAL LEAVE CREDIT, IF OTHERWISE CORRECT. SUBSEQUENT TO THE FEDERAL EMPLOYEES' PAY ACT OF 1945 IT WAS RULED (B- 51571, DATED AUGUST 22, 1945) THAT AN EMPLOYEE IS ENTITLED TO THE FULL MONTHLY ANNUAL LEAVE CREDIT IF HE IS ON THE ROLL, AND WORKS (OR IS OTHERWISE IN A PAY STATUS) ALL OF HIS BASIC WORKWEEKS DURING THE PERIOD OF THE SCHEDULE (30 DAY) USED FOR CREDITING ANNUAL LEAVE.

IN VIEW OF THE ABOVE IT IS ASSUMED THAT THE CREDITING OF ANNUAL LEAVE, BOTH MONTHLY AND QUARTERLY, IS STILL BASED ON THE CALENDAR MONTH OF 30 DAYS. HOWEVER, IT WAS STATED IN 24 COMP. GEN. 549, INVOLVING EMPLOYEES WHO HAD RESIGNED DURING THE PERIOD DECEMBER 21-29, 1944, THAT AN EMPLOYEE WAS NOT ENTITLED TO THE QUARTERLY ANNUAL LEAVE CREDIT IF HE WAS NOT IN THE SERVICE ON DECEMBER 31, 1944. ALSO, SINCE DECEMBER 31, 1945 IS A BASIC WORKDAY, IT WOULD APPEAR TO BE WITHIN THE INTENT AND PURPOSE OF THE LEAVE REGULATIONS TO REQUIRE AN EMPLOYEE TO BE IN THE SERVICE ON THAT DAY, IN ORDER TO RECEIVE THE FULL MONTHLY AND QUARTERLY ANNUAL LEAVE CREDIT. YOUR DECISION IS REQUESTED AS TO THE PROPER METHOD OF CREDITING ANNUAL LEAVE UNDER THE CITED CIRCUMSTANCES.

ANOTHER QUESTION CONCERNS THOSE EMPLOYEES WHOSE SERVICES WILL BE TERMINATED AT THE END OF THE YEAR, AND AT SUCH TIME WILL HAVE TO THEIR CREDIT THE MAXIMUM OF 116 DAYS OF ANNUAL LEAVE, FOR WHICH THEY WILL RECEIVE A LUMP-SUM PAYMENT. IF SUCH AN EMPLOYEE WERE REEMPLOYED IN THE FEDERAL SERVICE ON JANUARY 16, 1946, UNDER THE SAME LEAVE SYSTEM, HE WOULD BE REQUIRED TO MAKE A REFUND PURSUANT TO THAT PORTION OF THE ACT OF DECEMBER 21, 1944 (58 STAT. 845) WHICH STATES:

"* * * HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY.'

SUCH ACTION WOULD REQUIRE THE EMPLOYING AGENCY TO CREDIT HIM WITH 106 DAYS OF ANNUAL LEAVE, UNLESS IT IS DETERMINED THAT THE LEAVE IS SUBJECT TO THE LIMITATION OF SECTION 2.2 OF THE LEAVE REGULATIONS WHICH PROVIDES THAT:

"ACCUMULATED ANNUAL LEAVE MAY BE CARRIED FORWARD FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING 60 DAYS: PROVIDED FURTHER, THAT WHEN ACCUMULATED LEAVE EQUALS OR EXCEEDS 60 DAYS, FURTHER INCREASE IS (IN) ACCUMULATED LEAVE SHALL BE LIMITED TO 15 DAYS IN ANY SUCCEEDING YEAR.'

IT APPEARS EVIDENT THAT ANY LEAVE WHICH IS CARRIED FORWARD FOR USE IN SUCCEEDING YEARS, TAKES ON THE CHARACTER OF ACCUMULATED LEAVE, AND AS SUCH CANNOT EXCEED THE LIMITATION CONTAINED IN SECTION 2.2, SUPRA. HOWEVER, IT WAS STATED IN B-52829, DATED OCTOBER 10, 1945 (25 COMP. GEN. 341), THAT THE PLAIN LANGUAGE OF THE ACT OF DECEMBER 17, 1942, IS THAT THE LEAVE UNUSED DURING THE EMERGENCY, NOT IN OTHER FORM COMMUTED OR COMPENSATED, SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING 90 DAYS.

THEREFORE, SINCE THE EMPLOYEE WILL ACTUALLY RECEIVE COMPENSATION FOR LEAVE IN EXCESS OF 90 DAYS, AND THE ACT OF DECEMBER 21, 1944 PLAINLY REQUIRES THE CREDITING OF AN AMOUNT OF LEAVE REPRESENTED BY THE REFUND, WITHOUT LIMITATION, THERE IS MERIT TO THE CONTENTION THAT SUCH LEAVE SHOULD NOT BE CONSIDERED AS ACCUMULATED LEAVE.

IN VIEW OF THE ABOVE YOUR DECISION IS REQUESTED AS TO WHETHER THE EMPLOYEE MAY BE CREDITED WITH 106 DAYS, OR ONLY 90 DAYS, OF ANNUAL LEAVE UPON MAKING THE REQUIRED REFUND.

THERE IS NO RECORD IN THIS OFFICE OF THE RECEIPT OF THE ORIGINAL OF THE ABOVE LETTER.

AT THE TIME THE DECISION IN 23 COMP. GEN. 837 WAS RENDERED ( MAY 2, 1944,) THE COMPUTATION OF SALARIES OF CIVILIAN EMPLOYEES OF THE GOVERNMENT WAS SUBJECT TO THE PROVISIONS OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, PURSUANT TO WHICH NO PAYMENT WAS MADE FOR SERVICES RENDERED ON THE 31ST DAY OF ANY MONTH. UNDER THAT STATUTE, AN EMPLOYEE WHO WAS SEPARATED FROM SERVICE ON THE 30TH OF A 31-DAY MONTH WAS ENTITLED TO PAYMENT OF A FULL MONTH'S SALARY AS THERE WAS NOT INVOLVED AN UNAUTHORIZED ABSENCE ON THE 31ST DAY. SAID ACT OF 1906, HOWEVER, WAS REPEALED (WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL) AS TO ALL EMPLOYEES COMING WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, BY SECTION 604 (C) OF THAT ACT, 59 STAT. 303.

THE DECISION OF AUGUST 22, 1945, B-51571, 25 COMP. GEN. 212, REFERRED TO BY YOU--- PARTICULARLY QUESTION AND ANSWER 8--- DID NOT INVOLVE ANY QUESTION OF THE QUARTERLY CREDIT FOR ANNUAL LEAVE BUT ONLY THE CREDIT OF 16 HOURS OR TWO DAYS FOR 30 DAYS' SERVICE.

SECTION 2.1 OF THE ANNUAL AND SICK LEAVE LAWS AND REGULATIONS, REVISED JANUARY 1, 1944, E.O. 9414, PROVIDES:

ANNUAL LEAVE SHALL BE CREDITED TO EMPLOYEES AS FOLLOWS:

(A) PERMANENT EMPLOYEES SHALL BE CREDITED WITH LEAVE AT THE RATE OF TWO DAYS PER CALENDAR MONTH PLUS AN ADDITIONAL 1/2 DAY IN MARCH, JUNE, SEPTEMBER, AND DECEMBER TO EMPLOYEES WHO WERE CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR ENDING IN SUCH MONTHS * * *.

IN DECISION 24 COMP. GEN. 549, IT WAS STATED (AT PAGE 550):

* * * HENCE, AS THE EMPLOYEES TO WHOM YOU REFER IN THE FIRST PARAGRAPH OF YOUR LETTER WERE NOT IN THE SERVICE AT THE END OF THE QUARTER, DECEMBER 31, 1944, AND, THEREFORE, WERE NOT CONTINUOUSLY EMPLOYED FOR THE ENTIRE QUARTER-YEAR" (QUOTING FROM THE CITED LEAVE REGULATION), THEY ARE NOT ENTITLED TO THE QUARTERLY LEAVE CREDIT OF ONE-HALF DAY WHICH WOULD HAVE BEEN DUE THEM HAD THEY BEEN IN THE SERVICE DECEMBER 31, 1944.

ACCORDINGLY, PERMANENT EMPLOYEES WERE NOT ENTITLED TO THE ONE-HALF DAY ANNUAL LEAVE CREDIT FOR THE FOURTH QUARTER OF 1945, UNDER SECTION 2.1 OF THE LEAVE REGULATIONS, UNLESS THEY WERE IN A PAY STATUS ON DECEMBER 31, 1945, IRRESPECTIVE OF WHETHER ANY WORK WAS REQUIRED TO BE PERFORMED ON THAT DAY. IF SEPARATED AT THE CLOSE OF BUSINESS DECEMBER 30, 1945, THEY WOULD BE LIMITED TO CREDIT FOR TWO DAYS OR 16 HOURS' ANNUAL LEAVE FOR THAT QUARTER.

YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

IN 24 COMP. GEN. 659, IT WAS STATED (AT PAGE 660):

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, SPECIFICALLY PROVIDES THAT THE LUMP-SUM PAYMENT SHALL REPRESENT COMPENSATION "FOR ALL ACCUMULATED AND CURRENT ACCRUED * * * LEAVE.' (ITALICS SUPPLIED.) HENCE, WHILE THE DATE OF AN EMPLOYEE'S SEPARATION FROM THE SERVICE, OR LAST DAY OF ACTIVE CIVILIAN SERVICE IMMEDIATELY PRIOR TO ENTRANCE INTO THE ARMED FORCES, IS DURING THE LATTER PART OF A CALENDAR YEAR, HE MAY BE PAID FOR BOTH THE ANNUAL LEAVE ACCUMULATED UP TO THE END OF THE PRECEDING YEAR, NOT TO EXCEED 90 DAYS, PLUS THE UNUSED CURRENT YEAR'S ACCRUED LEAVE TO HIS CREDIT AT THE DATE OF SEPARATION OR MILITARY FURLOUGH. THE FACT THAT THE LEAVE IF GRANTED PURSUANT TO THE PROCEDURE IN EFFECT PRIOR TO DECEMBER 21, 1944, WOULD HAVE EXTENDED OVER INTO THE NEXT YEAR, HAS NO BEARING UPON THE MATTER; THAT IS TO SAY, THE TOTAL AMOUNT OF LEAVE NEED NOT BE REDUCED TO 90 DAYS AS OF JANUARY 1 OF THE NEXT YEAR. HENCE, AN EMPLOYEE WHO IS SEPARATED FROM THE SERVICE ON DECEMBER 31, OR WHOSE LAST DAY OF ACTIVE CIVILIAN DUTY PRIOR TO ENTRANCE INTO THE ARMED FORCES IS DECEMBER 31, COULD HAVE TO HIS CREDIT A MAXIMUM OF 116 DAYS OF ANNUAL LEAVE--- 90 DAYS ACCUMULATED UP TO THE END OF THE LAST DAY OF WHICH HIS ACTIVE SERVICE TERMINATED--- FOR WHICH A LUMP-SUM PAYMENT WOULD BE PAYABLE REPRESENTING THE COMPENSATION AT THE SALARY RATE RECEIVED AS OF DECEMBER 31, COMPUTED OVER THE PERIOD BEGINNING JANUARY 1 OF THE NEXT YEAR. * * * IN CONNECTION WITH THAT DECISION IT SHOULD BE BORNE IN MIND THAT TERMINAL LEAVE GENERALLY COULD NOT HAVE BEEN GRANTED AN EMPLOYEE IMMEDIATELY PRECEDING DECEMBER 31, THE DATE OF HIS SEPARATION AFTER THE PASSAGE OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845. 24 COMP. GEN. 511. CF. 25 COMP. GEN. 82.

WITH RESPECT TO REEMPLOYMENT IN THE FEDERAL SERVICE OF AN INDIVIDUAL WHO HAS RECEIVED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE--- THAT IS, REEMPLOYMENT DURING THE PERIOD OVER WHICH THE LUMP-SUM IS COMPUTED--- THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * THAT IF SUCH EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE OR IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY. * * *

STANDING ALONE, THAT PROVISION WELL COULD BE CONSTRUED TO AUTHORIZE THE RECREDITING IN A PROPER CASE OF MORE THAN 90 DAYS' ANNUAL LEAVE. HOWEVER, THAT PROVISION IS TO BE READ IN CONNECTION WITH SECTION 1 OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED BY THE ACT OF DECEMBER 17, 1942, 56 STAT. 1052, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THAT THE FIRST SENTENCE IN SECTION 1 OF THE ACT OF MARCH 14, 1936 (49 STAT. 1161), IS HEREBY AMENDED BY ADDING THE FOLLOWING PROVISO. "PROVIDED FURTHER, THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939, THE LEAVE UNUSED BY THE EMPLOYEES OF THE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES, NOT IN OTHER FORM COMMUTED OR COMPENSATED, SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING NINETY DAYS: AND PROVIDED FURTHER, THAT WHEN THE UNUSED LEAVE ACCUMULATED EQUALS OR EXCEEDS SIXTY DAYS IN THE AGGREGATE, NOT MORE THAN FIFTEEN DAYS OF UNUSED LEAVE MAY BE FURTHER ACCUMULATED IN ANY ONE CALENDAR YEAR.'

EMPLOYEES WHO CONTINUE IN THE SERVICE AFTER DECEMBER 31 IN A PARTICULAR YEAR PRIOR TO THE TERMINATION OF THE PRESENT EMERGENCY MAY NOT CARRY OVER TO THE NEXT CALENDAR YEAR ANY CREDIT FOR ACCUMULATED ANNUAL LEAVE IN EXCESS OF 90 DAYS. ACCORDINGLY, UPON RESTORATION OF AN EMPLOYEE WITHIN THE PERIOD COVERED BY THE LUMP-SUM LEAVE PAYMENT, THE RECREDIT TO HIM OF ACCUMULATED ANNUAL LEAVE REQUIRED BY THE ACT OF DECEMBER 21, 1944, MAY NOT EXCEED 90 DAYS, THERE BEING INDICATED IN THE LUMP-SUM LEAVE ACT NO INTENTION TO GRANT MORE ACCUMULATED LEAVE TO EMPLOYEES WHO WERE SEPARATED FROM THE SERVICE THAN IN THE CASE OF EMPLOYEES WHO CONTINUED IN THE SERVICE. AS THE ACT OF DECEMBER 21, 1944, SUPRA, REQUIRES THE REFUND OF "AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD" AND REQUIRES THE RECREDITING TO THE EMPLOYEE OF THE AMOUNT OF "LEAVE REPRESENTED BY SUCH REFUND," IT FOLLOWS THAT THE REFUND SHOULD COVER ONLY THE LEAVE RECREDITED TO THE EMPLOYEE NOT EXCEEDING 90 DAYS. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.