B-58777, JULY 9, 1946, 26 COMP. GEN. 9

B-58777: Jul 9, 1946

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PROVIDING THAT THE LUMP SUM SHALL EQUAL THE COMPENSATION THAT WOULD HAVE BEEN RECEIVED HAD THE EMPLOYEE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS LEAVE. THE LUMP SUM PAYABLE TO EMPLOYEES WHO WERE SEPARATED AFTER THE DATE OF APPROVAL ( MAY 24. 1946: I HAVE YOUR UNDATED LETTER. DEALING WITH LUMP-SUM PAYMENTS TO GOVERNMENT EMPLOYEES FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE DUE UPON SEPARATION FROM SERVICE PROVIDES IN PART: "SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.'. ADVICE IS REQUESTED WHETHER AN EMPLOYEE OF THE DEPARTMENT NOW ON LEAVE WITHOUT PAY OR IN A PAY STATUS WHO ELECTS.

B-58777, JULY 9, 1946, 26 COMP. GEN. 9

LUMP-SUM LEAVE PAYMENTS - RATE AT WHICH PAYABLE IN CONSONANCE WITH THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, PROVIDING THAT THE LUMP SUM SHALL EQUAL THE COMPENSATION THAT WOULD HAVE BEEN RECEIVED HAD THE EMPLOYEE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS LEAVE, THE LUMP SUM PAYABLE TO EMPLOYEES WHO WERE SEPARATED AFTER THE DATE OF APPROVAL ( MAY 24, 1946) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 (EFFECTIVE JULY 1, 1946) INCREASING BASIC RATES OF COMPENSATION, AND WHOSE UNUSED ANNUAL LEAVE COVERS A PERIOD EXTENDING BEYOND JUNE 30, 1946, PROPERLY SHOULD REFLECT THE COMPENSATION CHANGES EFFECTED BY THE 1946 ACT FOR SO MUCH OF THE PERIOD AS EXTENDS BEYOND JUNE 30, 1946. (AMPLIFIED BY 26 COMP. GEN. 102.)

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JULY 9, 1946:

I HAVE YOUR UNDATED LETTER, RECEIVED IN THIS OFFICE JUNE 21, 1946, AS FOLLOWS:

THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, DEALING WITH LUMP-SUM PAYMENTS TO GOVERNMENT EMPLOYEES FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE DUE UPON SEPARATION FROM SERVICE PROVIDES IN PART:

"SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.'

ADVICE IS REQUESTED WHETHER AN EMPLOYEE OF THE DEPARTMENT NOW ON LEAVE WITHOUT PAY OR IN A PAY STATUS WHO ELECTS, ON OR BEFORE JUNE 30, 1946, TO BE PAID IN A LUMP SUM UNDER SAID ACT IS ENTITLED TO COMPENSATION WITH RESPECT TO ANY UNEXPIRED PERIOD OF SERVICE ON AND AFTER JULY 1, 1946, AT THE RATE PROVIDED FOR IN THE FEDERAL EMPLOYEES' PAY ACT OF 1946 ( PUBLIC LAW 390, 79TH CONGRESS) OR MUST BE PAID AT THE RATE IN EFFECT AT THE DATE OF SEPARATION.

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, QUOTED IN PART IN YOUR LETTER, READS:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE: PROVIDED, 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. IN THE CASE OF REEMPLOYMENT IN THE FEDERAL SERVICE THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY AS " MISCELLANEOUS RECEIPTS," AND IN CASE OF REEMPLOYMENT IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

THE FEDERAL EMPLOYEES PAY ACT OF 1946, PUBLIC LAW 390, 60 STAT. 216, REFERRED TO IN YOUR LETTER AUTHORIZES, INTER ALIA, INCREASES IN EXISTING RATES OF BASIC COMPENSATION PROVIDED BY SECTION 13 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. THAT ACT WAS APPROVED MAY 24, 1946, AND SECTION 16 THEREOF, 60 STAT. 220, PROVIDES THAT, WITH ONE EXCEPTION NOT HERE MATERIAL, ITS PROVISIONS SHALL TAKE EFFECT ON JULY 1, 1946. HENCE, WITH RESPECT TO EMPLOYEES SEPARATED FROM THE SERVICE AFTER THE DATE OF APPROVAL OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, AND WHOSE UNUSED ANNUAL LEAVE COVERS A PERIOD EXTENDING BEYOND JUNE 30, 1946, IT IS CLEAR THAT, HAD THEY "REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF SUCH ANNUAL OR VACATION LEAVE," THEY WOULD HAVE RECEIVED COMPENSATION AT THE INCREASED RATES PROVIDED BY THE SAID ACT OF MAY 24, 1946, FOR SO MUCH OF THE PERIOD AS EXTENDS BEYOND JUNE 30, 1946. CONSEQUENTLY, IN CONSONANCE WITH THE PLAIN LANGUAGE OF THE 1944 STATUTE, THE LUMP-SUM PAYMENT IN SUCH CASES PROPERLY SHOULD REFLECT ANY COMPENSATION CHANGES EFFECTED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946. ACCORDINGLY, THE FIRST ALTERNATIVE QUESTION PRESENTED IN THE LAST PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE AND THE SECOND ALTERNATIVE QUESTION IN THE NEGATIVE.

CERTAIN STATEMENTS MADE IN FORMER DECISIONS OF THIS OFFICE (SUCH AS 24 COMP. GEN. 728, AND 768, AND 25 COMP. GEN. 185) WHICH MIGHT INDICATE A DIFFERENT CONCLUSION IN THIS CASE HAVE NOT BEEN OVERLOOKED.