B-68321, AUGUST 14, 1947, 27 COMP. GEN. 92

B-68321: Aug 14, 1947

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IN AN AMOUNT EQUAL TO THE COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS CURRENT AND ACCRUED ANNUAL LEAVE. TO BE PAID TO MEDICAL AND SURGICAL SPECIALISTS OF THE VETERANS' ADMINISTRATION IN ADDITION TO BASIC PAY IS PAYABLE AS PART OF THE REGULAR COMPENSATION OF SUCH EMPLOYEES WHILE ON AUTHORIZED ANNUAL LEAVE. AS FOLLOWS: REFERENCE IS MADE TO SECTION 8 (D) OF PUBLIC LAW 293. IN CONNECTION WITH THE APPROVAL AND CERTIFICATION FOR PAYMENT OF THE 25 PERCENT SPECIALTY ALLOWANCE AUTHORIZED BY THE ABOVE-MENTIONED STATUTE THE FOLLOWING QUESTIONS HAVE ARISEN. ARE SUBMITTED FOR YOUR CONSIDERATION AND DECISION. 1. IS THE 25 PERCENT SPECIALTY ALLOWANCE PROPERLY PAYABLE APPLICABLE TO A LUMP-SUM PAYMENT BEING MADE UNDER THE PROVISIONS OF PUBLIC LAW 525.

B-68321, AUGUST 14, 1947, 27 COMP. GEN. 92

LEAVES OF ABSENCE - ANNUAL - INCLUSION OF SPECIALTY ALLOWANCE IN LUMP SUM AND COMPENSATION EQUIVALENT PAYMENTS IN COMPUTING THE AMOUNT OF THE LUMP-SUM PAYMENT FOR LEAVE AUTHORIZED TO BE PAID UPON SEPARATION FROM THE SERVICE PURSUANT TO THE ACT OF DECEMBER 21, 1944, IN AN AMOUNT EQUAL TO THE COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS CURRENT AND ACCRUED ANNUAL LEAVE, THERE SHOULD BE INCLUDED THE AMOUNT OF THE 25 PERCENT SPECIALTY ALLOWANCE PAYABLE IN ADDITION TO BASIC PAY UNDER SECTION 8 (D) OF THE ACT OF JANUARY 3, 1946, TO MEDICAL AND SURGICAL SPECIALISTS OF THE VETERANS' ADMINISTRATION. THE 25 PERCENT SPECIALTY ALLOWANCE AUTHORIZED BY SECTION 8 (D) OF THE ACT OF JANUARY 3, 1946, TO BE PAID TO MEDICAL AND SURGICAL SPECIALISTS OF THE VETERANS' ADMINISTRATION IN ADDITION TO BASIC PAY IS PAYABLE AS PART OF THE REGULAR COMPENSATION OF SUCH EMPLOYEES WHILE ON AUTHORIZED ANNUAL LEAVE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 14, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 23, 1947, AS FOLLOWS:

REFERENCE IS MADE TO SECTION 8 (D) OF PUBLIC LAW 293, 79TH CONGRESS (59 STAT. 677), AN ACT TO ESTABLISH A DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS ADMINISTRATION, WHICH PROVIDES THAT " ANY PERSON, RATED AS A MEDICAL OR SURGICAL SPECIALIST UNDER THE PROVISIONS OF THIS SECTION, SHALL RECEIVE, IN ADDITION TO HIS BASIC PAY, AN ALLOWANCE EQUAL TO 25 PERCENT OF SUCH PAY; PROVIDED, THAT IN NO EVENT SHALL THE PAY PLUS THE ALLOWANCE AUTHORIZED BY THIS SUBSCRIPTION EXCEED $11,000 PER ANNUM.'

IN CONNECTION WITH THE APPROVAL AND CERTIFICATION FOR PAYMENT OF THE 25 PERCENT SPECIALTY ALLOWANCE AUTHORIZED BY THE ABOVE-MENTIONED STATUTE THE FOLLOWING QUESTIONS HAVE ARISEN, AND ARE SUBMITTED FOR YOUR CONSIDERATION AND DECISION.

1. IS THE 25 PERCENT SPECIALTY ALLOWANCE PROPERLY PAYABLE APPLICABLE TO A LUMP-SUM PAYMENT BEING MADE UNDER THE PROVISIONS OF PUBLIC LAW 525, 78TH CONGRESS, TO COVER ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF A SPECIALIST BEING SEPARATED FROM THE SERVICE, OR OTHERWISE ENTITLED TO LUMP-SUM PAYMENT?

2. IS THE 25 PERCENT SPECIALTY ALLOWANCE PROPERLY PAYABLE APPLICABLE TO A PAYMENT BEING MADE TO A SPECIALIST TO COVER A PERIOD WHEN HE IS ABSENT FROM DUTY ON ANNUAL LEAVE?

THERE HAS BEEN CONSIDERED IN CONNECTION WITH QUESTION 1 THAT PORTION OF 24 COMP. GEN. 768 CONCERNING THE PAYMENT OF A 25 PERCENT DIFFERENTIAL FOR SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WHICH PROVIDES THAT "THE DIFFERENTIAL RECEIVED BY THE EMPLOYEE WHOSE CASE IS PRESENTED IN QUESTION 1 AT DATE OF SEPARATION SHOULD BE INCLUDED IN COMPUTING THE LUMP- SUM PAYMENT FOR LEAVE.' ON THE BASIS OF THIS DECISION IT IS THE OPINION OF THIS ADMINISTRATION THAT THE 25 PERCENT SPECIALTY ALLOWANCE WOULD IN LIKE MANNER BE PROPER FOR INCLUSION IN COMPUTING A LUMP-SUM PAYMENT TO COVER UNUSED ANNUAL LEAVE TO THE CREDIT OF A SPECIALIST.

INASMUCH AS EXCEPTION (COPY ATTACHED) HAS BEEN TAKEN BY AN AUDITOR OF THE GENERAL ACCOUNTING OFFICE TO PAYMENT MADE AT A FIELD STATION OF THIS ADMINISTRATION OF THE 25 PERCENT SPECIALTY ALLOWANCE APPLICABLE TO A LUMP- SUM PAYMENT TO COVER ANNUAL LEAVE TO THE CREDIT OF A SPECIALIST BEING SEPARATED FROM THE SERVICE, THE QUESTIONS SET FORTH ABOVE ARE PRESENTED FOR YOUR CONSIDERATION AND DECISION.

YOUR EARLY CONSIDERATION AND ADVICE IN THIS MATTER WILL BE GREATLY APPRECIATED.

THE PAYMENT OF A LUMP SUM FOR ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE AT DATE OF SEPARATION FROM THE SERVICE IS AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, 78TH CONGRESS, SECTION 1 OF WHICH READS IN PART:

* * * 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 EAVE: * * * 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.

IN VIEW OF THE SPECIFIC REQUIREMENT OF THAT ACT THAT " 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," THE CONCLUSION APPEARS REQUIRED THAT THE 25 PERCENT SPECIALTY ALLOWANCE REFERRED TO IN YOUR LETTER, WHEN OTHERWISE PROPERLY PAYABLE, IS FOR INCLUSION IN COMPUTING THE AMOUNT OF THE LUMP-SUM PAYMENT. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY. HOWEVER, WITH REFERENCE TO THE DECISION CITED IN YOUR LETTER, 24 COMP. GEN. 768, IT APPEARS PROPER TO POINT OUT THAT, ALTHOUGH THE CONCLUSION REACHED HEREIN IS SIMILAR, THE 25 PERCENT DIFFERENTIAL FOR SERVICE OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES IS A PART OF THE BASIC COMPENSATION AND NOT, AS IN THE CASE HERE, AN ALLOWANCE "IN ADDITION TO HIS BASIC PAY.' SEE 25 COMP. GEN. 188.

WITH RESPECT TO YOUR SECOND QUESTION, IT HAS BEEN HELD THAT ANNUAL LEAVE OF ABSENCE IS SYNONYMOUS WITH A DUTY STATUS; THAT COMPENSATION DURING AUTHORIZED ANNUAL LEAVE OF ABSENCE IS PAYABLE AT THE REGULAR RATE PAID FOR THE POSITION OCCUPIED BY THE EMPLOYEE WHEN THE LEAVE IS TAKEN; AND THAT THERE IS NO AUTHORITY TO FIX A RATE OF COMPENSATION DURING ANNUAL LEAVE DIFFERING FROM THE RATE REGULARLY FIXED FOR ACTIVE SERVICES DURING A REGULAR TOUR OF DUTY IN THE POSITION. SEE 22 COMP. GEN. 79, AND DECISIONS CITED THEREIN. NO REASON IS PERCEIVED FOR APPLYING A DIFFERENT RULE TO EMPLOYEES RATED AS MEDICAL OR SURGICAL SPECIALISTS SIMPLY BECAUSE THE COMPENSATION AS FIXED BY STATUTE INCLUDES AN ALLOWANCE IN ADDITION TO THE BASIC PAY.