B-59209, AUGUST 5, 1946, 26 COMP. GEN. 88

B-59209: Aug 5, 1946

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IS TO BE REGARDED AS "SEPARATED FROM THE SERVICE" AND. THE EMPLOYEE WILL NOT BE REQUIRED TO REFUND ANY PART OF SUCH LUMP-SUM PAYMENT TO THE EMPLOYING AGENCY. 1946: REFERENCE IS MADE TO YOUR LETTER OF JULY 12. MISS RICE WAS EMPLOYED APRIL 25. THE APPOINTMENT WAS EXTENDED FOR ONE YEAR. THE PROPOSED PAYMENT IS FOR ACCRUED ANNUAL LEAVE TO HER CREDIT AT THE CLOSE OF BUSINESS OCTOBER 28. AT WHICH TIME HER SERVICES WERE TERMINATED. MISS RICE WAS SUBSEQUENTLY EMPLOYED BY THE WAR DEPARTMENT. IS CONTAINED IN THE ACT OF DECEMBER 21. IN THE INSTANT CASE THE EMPLOYEE WAS REEMPLOYED IN THE WAR DEPARTMENT UNDER THE SAME LEAVE SYSTEM AS WAS APPLICABLE TO HER FORMER EMPLOYMENT IN VIEW OF WHICH SHE PROPERLY COULD NOT BE CONSIDERED AS HAVING BEEN TRANSFERRED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM.

B-59209, AUGUST 5, 1946, 26 COMP. GEN. 88

LUMP-SUM LEAVE PAYMENTS - SEPARATION FROM ONE TEMPORARY POSITION AND REEMPLOYMENT IN ANOTHER WITHOUT BREAK IN SERVICE AN EMPLOYEE SEPARATED FROM ONE TEMPORARY POSITION AND EMPLOYED THE NEXT DAY, WITHOUT A BREAK IN SERVICE, IN ANOTHER TEMPORARY POSITION IN A DIFFERENT AGENCY, THERE BEING NO RIGHT OF TRANSFER UNDER SECTION 18.9 OF THE WAR SERVICE REGULATIONS, AS REVISED, IS TO BE REGARDED AS "SEPARATED FROM THE SERVICE" AND, THEREFORE, ENTITLED TO A LUMP-SUM PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, FOR THE ANNUAL LEAVE TO HER CREDIT AT THE DATE OF SEPARATION; AND THE EMPLOYEE WILL NOT BE REQUIRED TO REFUND ANY PART OF SUCH LUMP-SUM PAYMENT TO THE EMPLOYING AGENCY.

COMPTROLLER GENERAL WARREN TO HOWARD R. OWEN, FEDERAL WORKS AGENCY, AUGUST 5, 1946:

REFERENCE IS MADE TO YOUR LETTER OF JULY 12, 1946, YOUR FILE, BM-TD, AS FOLLOWS:

THE ATTACHED PAY ROLL VOUCHER NO. 14566, PUBLIC BUILDINGS ADMINISTRATION, IN FAVOR OF MISS BARBARA ANN RICE, FORMERLY EMPLOYED BY THIS ADMINISTRATION AS A CLERK-TYPIST, CAF-3, $1902 PER ANNUM, HAS BEEN SUBMITTED TO ME FOR CERTIFICATION.

MISS RICE WAS EMPLOYED APRIL 25, 1944, UNDER A TEMPORARY APPOINTMENT NOT TO EXCEED ONE YEAR. ON APRIL 25, 1945, THE APPOINTMENT WAS EXTENDED FOR ONE YEAR.

THE PROPOSED PAYMENT IS FOR ACCRUED ANNUAL LEAVE TO HER CREDIT AT THE CLOSE OF BUSINESS OCTOBER 28, 1945, AT WHICH TIME HER SERVICES WERE TERMINATED. MISS RICE WAS SUBSEQUENTLY EMPLOYED BY THE WAR DEPARTMENT, ON OCTOBER 29, 1945, AS A CLERK-TYPIST, CAF-3, UNDER A TEMPORARY APPOINTMENT NOT TO EXCEED SIX MONTHS.

PLEASE ADVISE IF I MAY LEGALLY CERTIFY THIS VOUCHER.

PROVISION FOR PAYMENT FOR ACCRUED ANNUAL LEAVE TO GOVERNMENT EMPLOYEES, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, IS CONTAINED IN THE ACT OF DECEMBER 21, 1944, 58 STAT. 845. AS A CONDITION TO PAYMENT FOR LEAVE UNDER THAT ACT AN EMPLOYEE EITHER MUST BE "SEPARATED FROM THE SERVICE," OR TRANSFERRED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM. 24 COMP. GEN. 726.

IN THE INSTANT CASE THE EMPLOYEE WAS REEMPLOYED IN THE WAR DEPARTMENT UNDER THE SAME LEAVE SYSTEM AS WAS APPLICABLE TO HER FORMER EMPLOYMENT IN VIEW OF WHICH SHE PROPERLY COULD NOT BE CONSIDERED AS HAVING BEEN TRANSFERRED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM. HENCE, IF THE EMPLOYEE IS ENTITLED TO PAYMENT FOR HER ACCRUED LEAVE IT MUST BE PREDICATED UPON THE BASIS THAT SHE WAS "SEPARATED FROM THE SERVICE" PRIOR TO HER REEMPLOYMENT IN THE WAR DEPARTMENT.

IF NO "SEPARATION FROM THE SERVICE" OCCURRED THE EMPLOYEE WOULD IN FACT FORFEIT HER LEAVE BECAUSE PAYMENT THEREFOR WOULD BE PRECLUDED BY THE TERMS OF THE ACT OF DECEMBER 21, 1944, SUPRA, AND IN VIEW OF THE FAILURE OF THE ANNUAL AND SICK LEAVE LAWS AND REGULATIONS FOR GOVERNMENT EMPLOYEES, REVISED EFFECTIVE JANUARY 1, 1945, TO PROVIDE FOR TRANSFER OF ACCRUED LEAVE FROM ONE TEMPORARY POSITION TO ANOTHER--- WHETHER PERMANENT OR TEMPORARY--- THE LEAVE COULD NOT BE CREDITED TO HER IN THE EMPLOYING AGENCY.

IN DECISION OF APRIL 7, 1945, 24 COMP. GEN. 726, IT WAS HELD THAT AN EMPLOYEE TRANSFERRED FROM A PERMANENT TO A TEMPORARY POSITION AS DEFINED FOR LEAVE PURPOSES, BOTH POSITIONS FALLING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDING FOR ONE LEAVE SYSTEM, IS NOT ENTITLED TO BE PAID IN A LUMP SUM UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 846, FOR THE ANNUAL LEAVE TO HIS CREDIT AT THE DATE OF TRANSFER EVEN THOUGH SUCH LEAVE CREDIT IS NOT TRANSFERABLE, AS A MATTER OF RIGHT, FROM THE PERMANENT TO THE TEMPORARY POSITION, AND SINCE THERE WAS INVOLVED A TRANSFER FROM ONE POSITION TO ANOTHER WITHOUT A BREAK IN SERVICE THERE COULD BE NO SEPARATION FROM THE SERVICE SO AS TO PERMIT PAYMENT UNDER SECTION 1 OF SAID ACT, 58 STAT. 845.

TEMPORARY EMPLOYEES AS DEFINED BY THE LEAVE REGULATIONS ARE THOSE APPOINTED FOR DEFINITE PERIODS NOT TO EXCEED ONE YEAR. THIS CLASS OF EMPLOYEES LONG HAS BEEN CONSIDERED AS BEING IN A CATEGORY DIFFERENT FROM THAT OF PERMANENT EMPLOYEES, AS MAY BE GATHERED FROM THE LEAVE REGULATIONS WHICH PROVIDE THAT TEMPORARY EMPLOYEES SHALL BE CREDITED WITH 2 1/2 DAYS OF ANNUAL LEAVE PER MONTH INSTEAD OF THE 2 1/6 DAYS CREDITED TO PERMANENT EMPLOYEES BUT FAIL TO GIVE A TEMPORARY EMPLOYEE THE BENEFIT OF HIS ACCRUED LEAVE WHEN APPOINTED TO ANOTHER POSITION (PERMANENT OR TEMPORARY).

SECTION 18.9 OF THE WAR SERVICE REGULATIONS, REVISED BY THE CIVIL SERVICE COMMISSION ON OCTOBER 15, 1945, 5 CODE OF FEDERAL REGULATIONS, 1945 SUPPLEMENT PART 18, SECTION 18.9, PROVIDES IN PERTINENT PART AS FOLLOWS:

TRANSFER--- (A) STATUS OF EMPLOYEES FOR TRANSFER. A CIVILIAN EMPLOYEE OF AN AGENCY IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT * * * WILL HAVE A STATUS FOR TRANSFER PROVIDED HE HAS SERVED UNDER A WAR SERVICE INDEFINITE, PROBATIONAL, OR PERMANENT CIVIL SERVICE APPOINTMENT, OR PROVIDED HE HAS COMPLETED ONE YEAR OR MORE OF CONTINUOUS FEDERAL SERVICE, UNDER OTHER THAN A TEMPORARY APPOINTMENT, IMMEDIATELY PRIOR TO TRANSFER.

UNDER THAT REGULATION IT IS OBVIOUS THAT A TEMPORARY EMPLOYEE SUCH AS HERE INVOLVED DOES NOT HAVE THE RIGHT OF TRANSFER. HENCE, IT REASONABLY FOLLOWS THAT IF SUCH AN EMPLOYEE OBTAINS EMPLOYMENT IN ANOTHER DEPARTMENT OR AGENCY OF THE GOVERNMENT THERE MUST, IN EFFECT, BE A SEPARATION FROM HIS FORMER POSITION BEFORE HE MAY BE REAPPOINTED IN THE OTHER DEPARTMENT.

IT HAS BEEN HELD BY THIS OFFICE THAT A BREAK IN SERVICE OF ONE DAY IS SUFFICIENT TO CONSTITUTE A "SEPARATION FROM THE SERVICE" WITHIN THE MEANING OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, SUPRA, REGARDLESS OF THE FACT THAT THE LEAVE REGULATIONS DEFINE BREAK IN SERVICE AS A SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF 30 DAYS OR MORE.

ACCORDINGLY, IT REASONABLY MAY BE CONCLUDED THAT SINCE THE REGULATIONS OF THE CIVIL SERVICE COMMISSION IN EFFECT AT THE TIME THE EMPLOYEE'S SERVICES WERE TERMINATED MADE NO PROVISION FOR THE TRANSFER FROM ONE TEMPORARY POSITION TO ANOTHER, THE EMPLOYEE WAS EFFECTIVELY SEPARATED FROM THE SERVICE EVEN THOUGH NO ACTUAL BREAK IN SERVICE OCCURRED AND IS THUS ENTITLED TO PAYMENT FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, WHICH SHE WILL NOT BE REQUIRED TO REFUND TO THE EMPLOYING AGENCY SINCE SHE CANNOT RECEIVE CREDIT FOR HER LEAVE IN THAT AGENCY. CF. B- 58413, JULY 10, 1946, 26 COMP. GEN. 11.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.