B-56087, APRIL 11, 1946, 25 COMP. GEN. 710

B-56087, APRIL 11, 1946, 25 COMP. GEN. 710

LEAVES OF ABSENCE - ACCRUAL - DURING PERIODS OF ADVANCE NOTICE OF SEPARATION IN VIEW OF THE TERMS OF SECTION 4.2 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, THAT LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS "PROVIDING HE RETURNS TO DUTY," AN EMPLOYEE WHO HAS RECEIVED AN ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME AS REQUIRED BY SOME LAW OR CIVIL SERVICE REGULATION HAVING THE FORCE AND EFFECT OF LAW AND WHO HAS BEEN GRANTED ANNUAL OR SICK LEAVE DURING ANY PORTION OF SUCH PERIOD MAY NOT, WITHOUT A RETURN TO DUTY, SUBSEQUENT TO SUCH LEAVE, BE CREDITED WITH ACCRUALS OF ANNUAL AND SICK LEAVE DURING SUCH PERIOD UP TO AND INCLUDING THE FINAL DATE OF SEPARATION. 23 COMP. GEN. 732, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, CIVILIAN PRODUCTION ADMINISTRATION, APRIL 11, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 19, 1946, AS FOLLOWS:

NOTWITHSTANDING THE GENERAL RULE THAT ANNUAL LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION, IT HAS BEEN HELD THAT AN EMPLOYEE MAY BE GRANTED ANNUAL LEAVE DURING AN ADVANCE NOTICE OF SEPARATION, CONSISTING OF A SPECIFIC LENGTH OF TIME, WHEN IT IS UNNECESSARY OR UNDESIRABLE TO RETAIN HIM ON ACTIVE DUTY BECAUSE OF A REDUCTION IN FORCE. (25 COMP. GEN. 82; 25 ID. 228.) SINCE THIS RULING WAS BASED ON THE PREMISE THAT THE ANNUAL LEAVE GRANTED FOR ALL OR THE LATTER PORTION OF AN ADVANCE NOTICE OF SEPARATION IS NOT TRUE OR ABSOLUTE TERMINAL LEAVE, IT WOULD APPEAR TO FOLLOW THAT SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROHIBITING THE ACCRUAL OF LEAVE WHILE ON TERMINAL LEAVE, WOULD NOT APPLY UNDER THE CIRCUMSTANCES.

SECTION 4.2 (A) OF THE CITED REGULATIONS, HOWEVER, PERMITS THE ACCRUAL OF LEAVE WHILE IN A LEAVE-WITH-PAY STATUS PROVIDING THE EMPLOYEE RETURNS TO DUTY. THEREFORE, AN EMPLOYEE WHO IS GRANTED LEAVE FOR ALL OR THE LATTER PORTION OF A PERIOD OF ADVANCE NOTICE OF SEPARATION, AND IS ACTUALLY SEPARATED AT THE TERMINATION OF SUCH NOTICE, CANNOT BE CREDITED WITH ACCRUED LEAVE BEYOND HIS LAST DAY OF ACTIVE DUTY.

IT IS OUR OPINION THAT IN ANY CASE WHERE AN EMPLOYEE ON LEAVE DOES NOT RETURN TO DUTY, SUCH LEAVE AUTOMATICALLY TAKES ON THE CHARACTER OF TERMINAL LEAVE, AND SECTION 4.2 (A) BECOMES SUBJECT TO THE SAME INTERPRETATION AS SECTION 4.2 (B). IN THIS CASE THE EMPLOYEE'S TENURE OF SERVICE IS ADMINISTRATIVELY FIXED AT THE TIME LEAVE IS GRANTED, AND THERE APPEARS NO LEGAL OBJECTION TO PERMIT THE ACCRUAL OF LEAVE UP TO AND INCLUDING THE DATE OF SEPARATION, IF OTHERWISE CORRECT. (SEE 23 COMP. GEN. 732.)

IN VIEW OF THE ABOVE YOUR DECISION IS REQUESTED AS TO WHETHER AN EMPLOYEE, WHO HAS RECEIVED AN ADVANCE NOTICE OF SEPARATION AND HAS BEEN GRANTED LEAVE DURING ALL OR THE LATTER PORTION OF SUCH PERIOD, MAY BE CREDITED WITH ACCRUALS OF ANNUAL AND SICK LEAVE UP TO AND INCLUDING FIXED DATE OF SEPARATION.

IT WAS HELD IN 23 COMP. GEN. 732, REFERRED TO IN YOUR LETTER, THAT (QUOTING FROM THE SYLLABUS):

SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS PROHIBITING THE GRANTING OF LEAVE ON LEAVE DURING TERMINAL LEAVE, APPLIES TO EMPLOYEES WHOSE TENURE OF SERVICE IS INDEFINITE AND WHOSE TERMINATION OF SERVICE MUST BE FIXED AFTER SERVICE HAS BEEN RENDERED AND HAS NO APPLICATION TO DENY TEMPORARY EMPLOYEES--- WHO ARE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR--- THE ANNUAL LEAVE TO WHICH THEY ARE ENTITLED BY LAW AND REGULATIONS FOR EACH FULL MONTH OF SERVICE, WHICH INCLUDES BOTH ACTIVE SERVICE AND LEAVE LAWFULLY GRANTED.

AS STATED IN THE DECISION, THE HOLDING WITH RESPECT TO TEMPORARY EMPLOYEES IS BASED UPON THE FACT THAT THE TERMINATION OF SERVICE OF A TEMPORARY EMPLOYEE DETERMINED IN ADVANCE BY HIS APPOINTMENT. THE HOLDING HAS NO APPLICATION TO AN EMPLOYEE WHOSE ORIGINAL APPOINTMENT WAS MADE FOR AN INDEFINITE PERIOD EVEN THOUGH THE EMPLOYEE'S REMAINING TENURE OF SERVICE LATER BECOMES ADMINISTRATIVELY FIXED.

IN DECISION OF JULY 20, 1945, B-50806, 25 COMP. GEN. 82, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, REFERRED TO IN YOUR LETTER, IN DISCUSSING THE QUESTIONS THERE PRESENTED RESPECTING THE EFFECT OF THE REQUIREMENTS OF THE VETERANS' PREFERENCE LAWS AND CIVIL SERVICE REGULATIONS FOR 30 DAYS' ADVANCE NOTICE OF SEPARATION ON ACCOUNT OF REDUCTION OF FORCE OR OTHERWISE, IT WAS STATED WITH REFERENCE TO PRIOR DECISIONS OF THIS OFFICE RELATIVE TO THE LUMP-SUM PAYMENT STATUTE OF DECEMBER 21, 1944, 58 STAT. 845, AS FOLLOWS:

* * * OF COURSE, A DISTINCTION MAY BE DRAWN BETWEEN THE TERMINAL LEAVE CONSIDERED IN THOSE DECISIONS AND THE SO-CALLED TERMINAL LEAVE HERE INVOLVED IN THAT THE FORMER RELATES TO TRUE OR ABSOLUTE TERMINAL LEAVE WHEREAS THE LATTER--- BECAUSE OF THE RIGHT IN THE VETERAN TO APPEAL THE 30 -DAY NOTICE OF DISCHARGE OR SEPARATION--- IS NOT NECESSARILY ABSOLUTE IN THAT THE RESULT OF AN APPEAL COULD VERY WELL LEAD TO THE WITHDRAWAL OR CANCELLATION OF THE NOTICE. IN ANY EVENT THIS OFFICE IS IN AGREEMENT WITH YOUR STATED VIEW THAT WHERE A LAW OR CIVIL SERVICE REGULATION HAVING THE FORCE AND EFFECT OF LAW REQUIRES AN ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME, 30 DAYS HAVING BEEN MENTIONED IN YOUR LETTER, ANNUAL LEAVE MAY BE GRANTED DURING THE PERIOD OF ADVANCE NOTICE OF SEPARATION WHERE IT IS IMPRACTICABLE TO RETAIN THE EMPLOYEE UPON ACTIVE DUTY DURING SUCH PERIOD.

THE PORTION OF THE DECISION QUOTED ABOVE IN EFFECT HOLDS THAT ANNUAL LEAVE GRANTED FOR ALL OR THE LATTER PORTION OF A PERIOD AFTER ADVANCE NOTICE OF SEPARATION IS NOT TRUE OR ABSOLUTE TERMINAL LEAVE. INDICATED, THE HOLDING WAS MADE IN DISCUSSING THE EFFECT UPON THE LUMP SUM PAYMENT LAW OF THE VETERANS' PREFERENCE LAWS AND CIVIL SERVICE REGULATIONS REQUIRING 30 DAYS' ADVANCE NOTICE OF SEPARATION ON ACCOUNT OF REDUCTION IN FORCE OR OTHERWISE. THE QUESTION OF ACCRUAL OF LEAVE DURING THE PERIOD WAS NOT THEREIN CONSIDERED. IN DETERMINING THIS QUESTION, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 4.2 (A) OF THE CURRENT LEAVE REGULATIONS, AS FOLLOWS:

SECTION 4.2 (A) LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE WITH- PAY STATUS PROVIDING HE RETURNS TO DUTY. (ITALICS SUPPLIED.)

ACCORDINGLY, IT MAY BE STATED THAT WHERE A LAW OR CIVIL SERVICE REGULATION HAVING THE FORCE AND EFFECT OF LAW REQUIRES AN ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME, AN EMPLOYEE WHO HAS RECEIVED AN ADVANCE NOTICE OF SEPARATION AND HAS BEEN GRANTED ANNUAL OR SICK LEAVE DURING ANY PORTION OF SUCH PERIOD MAY NOT, WITHOUT A RETURN TO DUTY, SUBSEQUENT TO SUCH LEAVE, BE CREDITED WITH ACCRUALS OF ANNUAL AND SICK LEAVE, UP TO AND INCLUDING THE FINAL DATE OF SEPARATION.