B-62536, JANUARY 8, 1947, 26 COMP. GEN. 466

B-62536, JANUARY 8, 1947, 26 COMP. GEN. 466

LEAVES OF ABSENCE - ANNUAL - TEMPORARY EMPLOYEES UNDER SECTION 2.1 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROVIDING THAT TEMPORARY EMPLOYEES SHALL BE CREDITED WITH ANNUAL LEAVE OF 2 1/2 DAYS "FOR EACH MONTH OF SERVICE," AND SECTION 1.1 (G) OF SAID REGULATIONS DEFINING A MONTH OF SERVICE AS "A PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH OR BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR MONTH," ANNUAL LEAVE DOES NOT ACCRUE TO THE CREDIT OF A TEMPORARY EMPLOYEE UNTIL THE END OF THE SERVICE MONTH IN WHICH IT IS EARNED. A TEMPORARY EMPLOYEE WHOSE APPOINTMENT EFFECTIVE ON OCTOBER 2, 1946, ENDED ON NOVEMBER 30, 1946 ( SATURDAY, A NON-WORKDAY AND THE END OF A PAY PERIOD), AND WHO, THEREFORE, WAS NOT IN A PAY STATUS ON DECEMBER 1, 1946, THE DATE HIS SECOND SERVICE MONTH WOULD HAVE EXPIRED, IS NOT ENTITLED UNDER THE ANNUAL AND SICK LEAVE REGULATIONS TO ANNUAL LEAVE CREDIT AS FOR A SECOND "MONTH OF SERVICE," ALTHOUGH HE ACTUALLY COMPLETED ALL THE PRESCRIBED TOUR OF DUTY WITHIN THE LIMITS OF HIS APPOINTMENT.

COMPTROLLER GENERAL WARREN TO JAMES N. W. MCCLURE, OFFICE OF TEMPORARY CONTROLS, EXECUTIVE OFFICE OF THE PRESIDENT, JANUARY 8, 1947:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 5, 1946, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION THE ATTACHED PAYROLL IN THE AMOUNT OF $78.64 REPRESENTING A PROPOSED SUPPLEMENTAL LUMP-SUM PAYMENT TO MR. IRVIN GOLDSTEIN UNDER THE PROVISION OF PUBLIC LAW 525, 78TH CONGRESS. YOUR DECISION IS REQUESTED AS TO THE PROPRIETY OF MY CERTIFYING THIS VOUCHER FOR PAYMENT IN VIEW OF THE FOLLOWING STATEMENT OF FACTS.

MR. GOLDSTEIN RECEIVED A TEMPORARY APPOINTMENT (TWO MONTHS) IN THIS AGENCY AS ATTORNEY, P-7, AT $8,179.50 PER ANNUM, EFFECTIVE OCTOBER 2, 1946. HE TOOK OATH OF OFFICE AND ENTERED ON DUTY THIS SAME DATE A SERVED UNDER THE APPOINTMENT UNTIL TERMINATED AS OF THE CLOSE OF BUSINESS NOVEMBER 30, 1946 ( SATURDAY), WITHOUT TAKING ANNUAL LEAVE. HIS SALARY FOR THE LAST BI-WEEKLY PAY PERIOD PLUS LUMP-SUM PAYMENT FOR 2 1/2 DAYS LEAVE ACCRUED DURING THE FIRST MONTH OF SERVICE HAS BEEN CERTIFIED FOR PAYMENT IN THE NET AMOUNT OF $337.43, GROSS OF $393.23 LESS TAX DEDUCTION OF $55.80, ON THE REGULAR PAYROLL OF THIS AGENCY FOR THE PERIOD ENDING NOVEMBER 30, 1946. AS A TECHNICAL QUESTION AROSE OVER MR. GOLDSTEIN'S COMPLETION OF HIS LAST MONTH OF SERVICE, PAYMENT FOR THE ACCRUED LEAVE FOR THAT PERIOD WAS PURPOSELY WITHHELD PENDING YOUR DETERMINATION OF THE LEGALITY FOR PAYMENT OF THE ATTACHED VOUCHER.

MR. GOLDSTEIN'S APPOINTMENT, AS EVIDENCED BY THE ATTACHED COPY OF THE PERSONNEL JOURNAL APPROVED BY THE DIRECTOR OF WAR MOBILIZATION AND RECONVERSION ON SEPTEMBER 30, 1946, WAS FOR TWO MONTHS EFFECTIVE OCTOBER 2, 1946, WITH THE PROVISO "UNLESS TERMINATED AT AN EARLIER DATE, THIS APPOINTMENT WILL EXPIRE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1946.' WAS THE INTENTION OF THE PERSONNEL OFFICE IN ADDING THIS PROVISO TO INDICATE THAT THE TEMPORARY APPOINTMENT WOULD NOT BE RENEWED. THE DATE, NOVEMBER 30, 1946, WAS THE END OF THE LAST PAY PERIOD IN WHICH REGULAR WORK COULD BE PERFORMED UNDER THE APPOINTMENT AND WAS USED IN ACCORDANCE WITH THEIR UNDERSTANDING OF YOUR DECISIONS, ESPECIALLY THAT CONTAINED IN 25 COMP. GEN. 212, TO THE EFFECT THAT IT IS UNREASONABLE TO REQUIRE AN EMPLOYEE TO WORK OVERTIME DURING HIS SERVICE MONTH TO EARN LEAVE. WHILE IT WAS OBVIOUSLY IMPOSSIBLE FOR THIS EMPLOYEE TO COMPLETE A TECHNICAL MONTH OF SERVICE UNDER THE PROVISIONS OF THE PERSONNEL JOURNAL, HE ACTUALLY COMPLETED ALL THE PRESCRIBED TOUR OF DUTY WITHIN THE LIMITS OF HIS TWO MONTHS APPOINTMENT.

THE QUESTION WHICH AROSE IS WHETHER A TEMPORARY EMPLOYEE EARNS ANNUAL LEAVE FOR A MONTH SUBSEQUENT TO THE INITIAL MONTH OF SERVICE UPON COMPLETION OF THE PRESCRIBED TOUR OF DUTY FOR THAT MONTH, OR UPON COMPLETION OF A MONTH OF SERVICE AS DEFINED IN SECTION 1.1 (G) OF THE ANNUAL AND SICK LEAVE REGULATIONS.

SECTION 2.1 (B) OF THE REGULATIONS RELATING TO ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES, EFFECTIVE JULY 1, 1946, PROVIDES THAT " TEMPORARY EMPLOYEES SHALL BE CREDITED WITH LEAVE OF 2 1/2 DAYS FOR EACH MONTH OF SERVICE.' A MONTH OF SERVICE IS DEFINED BY THE SAID REGULATIONS (SECTION 1.1 (G) AS A "PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH OR BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR TH.' ( ITALICS SUPPLIED.) PURSUANT TO SUCH REGULATIONS, ANNUAL LEAVE DOES NOT ACCRUE TO THE CREDIT OF A TEMPORARY EMPLOYEE UNTIL THE END OF THE SERVICE MONTH IN WHICH IT IS EARNED. SINCE THE SERVICES OF MR. GOLDSTEIN, THE EMPLOYEE REFERRED TO IN YOUR LETTER, WERE TERMINATED BY THE TERMS OF HIS APPOINTMENT ON NOVEMBER 31, 1946, HE WAS NOT IN A PAY STATUS AT THE CLOSE OF BUSINESS ON DECEMBER 1, 1946, THE DATE HIS SECOND SERVICE MONTH WOULD HAVE EXPIRED, HENCE, NO ANNUAL LEAVE ACCRUED TO HIS CREDIT FOR THE PERIOD. ACCORDINGLY, AS THE ACT OF DECEMBER 21, 1944, 58 STAT. 845 ( PUBLIC LAW 525), AUTHORIZES PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE ON THE DATE OF SEPARATION, MR. GOLDSTEIN IS NOT ENTITLED TO A LUMP-SUM PAYMENT IN EXCESS OF THE 2 1/2 DAYS WHICH ACCRUED TO HIS CREDIT ON NOVEMBER 1, 1946, AND WHICH AMOUNT OF LEAVE REMAINED TO HIS CREDIT AT TIME OF SEPARATION ON NOVEMBER 30, 1946.

IN VIEW OF THE FOREGOING, THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.