B-60493, SEPTEMBER 25, 1946, 26 COMP. GEN. 214

B-60493, SEPTEMBER 25, 1946, 26 COMP. GEN. 214

LUMP-SUM LEAVE PAYMENTS - RATE AT WHICH PAYABLE - WAGE-BOARD EMPLOYEES IN THE CASE OF A WAR DEPARTMENT WAGE-BOARD EMPLOYEE SEPARATED FROM SERVICE AFTER A NEW WAGE SCHEDULE HAS BEEN AUTHORIZED BY THE DEPARTMENTAL WAGE COORDINATION BOARD BUT PRIOR TO THE DATE AN ORDER IS PUBLISHED FIXING THE EFFECTIVE DATE THEREOF, THE COMPENSATION CHANGES EFFECTED THEREBY MAY NOT BE REFLECTED IN THE LUMP-SUM LEAVE PAYMENT UNDER THE ACT OF DECEMBER 21, 1944, FOR THE LEAVE PERIOD EXTENDING BEYOND THE EFFECTIVE DATE OF SUCH SCHEDULE; HOWEVER, AN EMPLOYEE SEPARATED AFTER SUCH AN ORDER IS PUBLISHED IS ENTITLED TO HAVE THE COMPENSATION CHANGES REFLECTED IN HIS LUMP-SUM PAYMENT FOR THE LEAVE PERIOD EXTENDING BEYOND THE EFFECTIVE DATE OF THE NEW SCHEDULE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, SEPTEMBER 25, 1946:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1946, AS FOLLOWS:

QUESTION HAS BEEN RAISED IN THIS DEPARTMENT AS TO WHETHER LUMP-SUM PAYMENTS TO EMPLOYEES PAID AT WAGE RATES FIXED BY THE WAR DEPARTMENT WAGE COORDINATION BOARD WOULD BE AFFECTED BY YOUR DECISION B-58777, DATED JULY 9, 1946, TO THE SECRETARY OF THE TREASURY, AS AMPLIFIED BY YOUR ANSWER TO QUESTION 3 OF YOUR DECISION B-59352, DATED AUGUST 8, 1946, TO THE ATTORNEY GENERAL.

UNDER PRESENT REGULATIONS OF THIS DEPARTMENT ( CIVILIAN PERSONNEL CIRCULAR NO. 68, 1946 ATTACHED) THE WAR DEPARTMENT WAGE COORDINATION BOARD, WHERE NECESSARY MAY ISSUE A SPECIFIC AUTHORIZATION TO EACH INSTALLATION IN A GIVEN LOCALITY TO ADJUST WAGE RATES IN ACCORDANCE WITH A WAGE SCHEDULE DETERMINED BY THE BOARD. IT IS MANDATORY THAT SUCH WAGE ADJUSTMENTS BE EFFECTED, BY ORDER OF THE COMMANDING OFFICER OF THE INSTALLATION, NOT LATER THAN SIXTY DAYS FROM THE DATE THE BOARD ISSUES THE MEMORANDUM OF AUTHORIZATION.

IN THE SECOND PARAGRAPH OF YOUR ANSWER TO QUESTION 3 IN DECISION B 59352, YOU STATED IN PART ,IT REASONABLY APPEARS THAT THE LUMP SUM IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION AND HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.' ADVICE IS REQUESTED AS FOLLOWS:

WOULD ADMINISTRATIVE ACTION TAKEN UNDER THE REGULATION QUOTED ABOVE TO ADJUST THE WAGE RATE OF AN EMPLOYEE AT SOME FUTURE DATE AFFECT THE LUMP- SUM PAYMENT TO AN EMPLOYEE WHO SEPARATES BEFORE THE EFFECTIVE DATE BUT WHOSE ANNUAL LEAVE WOULD EXTEND BEYOND THAT DATE?

EXAMPLE: THE MEMORANDUM OF AUTHORIZATION IS DATED AUGUST 1, 1946. THE INSTALLATION COMMANDER, BY ORDER, DATED AUGUST 10 FIXES THE EFFECTIVE DATE OF THE WAGE ADJUSTMENT AS SEPTEMBER 1, 1946, THE FIRST OF A UNIT WORK- WEEK.

A. THE EMPLOYEE IS SEPARATED AUGUST 9, 1946 AND HIS TERMINAL ANNUAL LEAVE WOULD EXTEND TO OCTOBER 15, 1946. WOULD THE WAGE ADJUSTMENT ON SEPTEMBER 1, 1946 BE CONSIDERED IN COMPUTING HIS LUMP-SUM PAYMENT?

B. THE EMPLOYEE IS SEPARATED AUGUST 16, 1946 AND HIS TERMINAL ANNUAL LEAVE WOULD EXTEND TO OCTOBER 15, 1946. WOULD THE WAGE ADJUSTMENT ON SEPTEMBER 1, 1946 BE CONSIDERED IN COMPUTING HIS LUMP-SUM PAYMENT?

CIVILIAN PERSONNEL CIRCULAR NO. 68 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

1. IN ACCORDANCE WITH ORDERS 1, 8 NOVEMBER 1945, THE PROCEDURES FOR AUTHORIZATION AND APPLICATION OF NEW LOCALITY WAGE SCHEDULES AND SHIFT DIFFERENTIALS ARE HEREBY REVISED. LOCALITY WAGE SURVEYS WILL CONTINUE TO BE CONDUCTED IN ACCORDANCE WITH CIVILIAN PERSONNEL CIRCULAR 3, 1946. AFTER THE WAGE DATA HAVE BEEN SUBMITTED BY THE LOCALITY WAGE SURVEY BOARD TO THE WAR DEPARTMENT WAGE COORDINATION BOARD, THE DATA ARE ANALYZED AND, WHERE WARRANTED, A NEW WAGE SCHEDULE PREPARED. THIS SCHEDULE WILL INCLUDE THE SHIFT DIFFERENTIALS AUTHORIZED. A SPECIFIC AUTHORIZATION TO APPLY THE NEW SCHEDULE, TOGETHER WITH A COPY OF THE NEW SCHEDULE, WILL BE SENT IMMEDIATELY TO EACH INSTALLATION IN THE LOCALITY THROUGH APPROPRIATE COMMAND CHANNELS.

2. UPON RECEIPT OF THE AUTHORIZED SCHEDULE, THE COMMANDING OFFICER OF THE INSTALLATION WILL PUBLISH AN ORDER SPECIFYING THE DATE AND HOUR UPON WHICH IT WILL BE EFFECTIVE. IN FIXING THE EFFECTIVE DATE, CONSIDERATION SHOULD BE GIVEN TO THE FOLLOWING:

A. THE EARLIEST POSSIBLE EFFECTIVE DATE OF APPLICATION WILL BE SPECIFIED IN EACH MEMORANDUM OF AUTHORIZATION. THIS NORMALLY WILL BE THE DATE THE SCHEDULE IS APPROVED BY THE WAGE COORDINATION BOARD.

B. THE LATEST EFFECTIVE DATE POSSIBLE WILL BE 60 CALENDAR DAYS FROM THE DATE OF THE MEMORANDUM OF AUTHORIZATION.

IN THE DECISION OF AUGUST 8, 1946, B-59352, 26 COMP. GEN. 102, 105, REFERRED TO IN YOUR LETTER, IT WAS ALSO STATED AS FOLLOWS:

* * * THE RIGHT OF AN EMPLOYEE TO THE LUMP-SUM LEAVE PAYMENT VESTS AT THE TIME OF HIS SEPARATION FROM THE SERVICE; AND THE 1944 STATUTE (ACT OF DECEMBER 21, 1944, 58 STAT. 845) CONTEMPLATES PAYMENT THEREOF AS OF THAT TIME. HENCE, IF, AS SUGGESTED IN YOUR LETTER, THE LANGUAGE OF THE STATUTE RESPECTING THE AMOUNT OF THE LUMP SUM BE VIEWED AS PERMITTING ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF THE LUMP-SUM PAYMENT IT WILL BE SEEN THAT, CONTRARY TO THE PLAIN INTENT OF THE STATUTE, AN EMPLOYEE WOULD HAVE NO VESTED RIGHT TO A SUM CERTAIN AT THE TIME OF SEPARATION FROM THE SERVICE.

THERE HAS BEEN FOUND NOTHING IN THE LANGUAGE OF THE STATUTE OR IN ITS LEGISLATIVE HISTORY FROM WHICH IT REASONABLY MIGHT BE INFERRED THE CONGRESS INTENDED THAT THE AMOUNT OF THE LUMP-SUM PAYMENT IS DEPENDENT UPON CONTINGENCIES WHICH MIGHT ARISE AFTER THE DATE OF SEPARATION FROM THE SERVICE. RATHER, IN ORDER TO GIVE THE FULLEST EFFECT POSSIBLE TO THE PROVISION OF THE STATUTE QUOTED IN QUESTION 3, ABOVE, RESPECTING THE AMOUNT OF THE LUMP-SUM PAYMENT--- CONSISTENT WITH THE REQUIREMENT THAT SUCH PAYMENT BE MADE AT THE TIME OF SEPARATION FROM THE SERVICE--- IT REASONABLY APPEARS THAT THE LUMP SUM IS TO BE COMPUTED ON THE BASIS OF THE EMPLOYEE'S RIGHTS AT THE TIME OF SEPARATION UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THAT TIME WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.

IT APPEARS THAT, UNDER THE QUOTED REGULATIONS, THE EMPLOYEE'S RIGHTS UNDER A NEW WAGE SCHEDULE AUTHORIZED BY THE WAR DEPARTMENT WAGE COORDINATION BOARD DO NOT BECOME DEFINITE UNTIL AN ORDER IS PUBLISHED BY THE COMMANDING OFFICER OF THE INSTALLATION INVOLVED SPECIFYING THE DATE AND HOUR UPON WHICH THE NEW SCHEDULE WILL BE EFFECTIVE. HENCE, IN THE CASE OF AN EMPLOYEE WHO SEPARATES BEFORE THE ORDER IS PUBLISHED BY THE COMMANDING OFFICER, THE RIGHTS SAID EMPLOYEE MIGHT HAVE UNDER A NEW WAGE SCALE AUTHORIZED BY THE BOARD WOULD BE CONTINGENT UPON THE EFFECTIVE DATE FIXED IN AN ORDER TO BE SUBSEQUENTLY PUBLISHED. ACCORDINGLY, UNDER THE PRINCIPLES STATED IN THE ABOVE-QUOTED PORTION OF THE DECISION OF AUGUST 8, 1946, THE LUMP-SUM PAYMENT MUST BE COMPUTED WITHOUT REGARD TO THE NEW WAGE SCALE. ON THE OTHER HAND, WHERE AN EMPLOYEE SEPARATES AFTER AN ORDER IS PUBLISHED BY THE COMMANDING OFFICER FIXING THE EFFECTIVE DATE OF THE NEW WAGE SCHEDULE, THUS MAKING IT POSSIBLE TO ASCERTAIN DEFINITELY AT THE TIME OF SEPARATION THE AMOUNT WHICH THE EMPLOYEE WOULD HAVE RECEIVED IF HE HAD REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS LEAVE, THE LUMP-SUM PAYMENT SHOULD BE COMPUTED IN THE LIGHT OF THE NEW WAGE SCHEDULE AND THE EFFECTIVE DATE THEREOF.

AS TO THE SPECIFIC QUESTIONS PROPOUNDED IN THE EXAMPLE SET FORTH IN YOUR LETTER QUESTION A IS ANSWERED IN THE NEGATIVE AND B IN THE AFFIRMATIVE.