B-68476, AUGUST 26, 1947, 27 COMP. GEN. 126

B-68476, AUGUST 26, 1947, 27 COMP. GEN. 126

LUMP-SUM LEAVE PAYMENTS - TRANSFER FROM ONE TEMPORARY POSITION TO ANOTHER WHERE AN EMPLOYEE TRANSFERS FROM ONE TEMPORARY POSITION TO ANOTHER UNDER CONDITIONS FOR WHICH THE LEAVE REGULATIONS MAKE NO PROVISION FOR THE TRANSFER OF ACCRUED ANNUAL LEAVE AND THERE WOULD RESULT A FORFEITURE OF THE LEAVE, THE EMPLOYEE MAY BE REGARDED AS "SEPARATED FROM THE SERVICE" WITHIN THE MEANING OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, EVEN THOUGH THERE BE NO ACTUAL BREAK IN SERVICE, SO THAT A LUMP-SUM PAYMENT MAY BE MADE FOR THE LEAVE.

COMPTROLLER GENERAL WARREN TO CATHERINE CORSA, DEPARTMENT OF COMMERCE, AUGUST 26, 1947:

REFERENCE IS MADE TO YOUR LETTER OF JULY 31, 1947, AS FOLLOWS:

THE ATTACHED PAYROLL VOUCHER ( STANDARD FORM 1128) COVERING LUMP SUM PAYMENT TO MR. J. ROYALL ROBERTSON FOR ACCUMULATED ANNUAL LEAVE HAS BEEN PRESENTED TO ME FOR CERTIFICATION.

ATTACHED IS MR. ROBERTSON'S LETTER OF JUNE 9, 1947 MAKING A CLAIM FOR THE 17 1/2 DAYS OF ACCRUED ANNUAL LEAVE EARNED DURING THE PERIOD OF NOVEMBER 11, 1944 TO JUNE 10, 1945, WHILE IN THE EMPLOY OF THIS BUREAU. ALSO ATTACHED IS A LETTER DATED JULY 10, 1947 FROM THE UNITED STATES DEPARTMENT OF AGRICULTURE ATTESTING TO THE FACT THAT MR. ROBERTSON WAS NOT GIVEN CREDIT FOR THE LEAVE IN QUESTION DURING THE TIME HE WAS AN EMPLOYEE OF THAT AGENCY.

YOUR DECISION AS TO THIS VOUCHER BEING PROPER FOR CERTIFICATION IS RESPECTFULLY REQUESTED IN VIEW OF THE FACTS AS HEREIN SET FORTH:

MR. ROBERTSON WAS APPOINTED AN ASSISTANT SUPERVISOR ON THE 1945 CENSUS OF AGRICULTURE SURVEY ON NOVEMBER 11, 1944, APPOINTMENT BEING LIMITED TO JUNE 30, 1945. HIS SERVICES WERE TERMINATED ON JUNE 10, 1945 AND DURING HIS PERIOD OF EMPLOYMENT WITH THIS BUREAU HE USED NO LEAVE. MR. ROBERTSON ENTERED ON DUTY WITH THE WAR FOOD ADMINISTRATION, AGRICULTURAL ADJUSTMENT AGENCY AT BLACKSBURG, VIRGINIA ON JUNE 11, 1945. HIS LEAVE RECORD WAS TRANSFERRED TO THAT AGENCY ON STANDARD FORM NO. 63, REVISED, IN ACCORDANCE WITH THEIR REQUEST OF JULY 18, 1945, COPY OF WHICH IS ENCLOSED. INASMUCH AS THE AGRICULTURAL ADJUSTMENT AGENCY DID NOT GIVE MR. ROBERTSON AN INDEFINITE APPOINTMENT (PERMANENT FOR LEAVE PURPOSES) HE WAS NOT CREDITED BY THEM WITH THE 17 1/2 DAYS OF LEAVE EARNED IN THIS BUREAU. IT, THEREFORE, APPEARS THAT HE IS ENTITLED TO PAYMENT FOR HIS ACCUMULATED ANNUAL LEAVE UNDER THE PROVISIONS OF PUBLIC LAW 525 ( LUMP SUM LEAVE PAYMENT ACT).

TEMPORARY EMPLOYEES, AS DEFINED BY THE REVISION OF THE ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE JANUARY 1, 1945,"ARE THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE AR.' IN THE INSTANT CASE THE EMPLOYEE'S APPOINTMENT IN THE BUREAU OF THE CENSUS ON NOVEMBER 11, 1944, HAVING BEEN LIMITED TO JUNE 30, 1945, HIS STATUS FOR LEAVE PURPOSES WAS THAT OF TEMPORARY EMPLOYEE; ALSO, HIS SUBSEQUENT EMPLOYMENT IN THE DEPARTMENT OF AGRICULTURE ON JUNE 11, 1945, WITHOUT A BREAK IN SERVICE LIKEWISE APPEARS TO HAVE BEEN TEMPORARY FOR A PERIOD OF ONE YEAR OR LESS. HENCE, FOR LEAVE PURPOSES THERE IS HERE INVOLVED A TRANSFER FROM ONE TEMPORARY POSITION TO ANOTHER, FOR WHICH THE 1945 LEAVE REGULATIONS MAKE NO PROVISION FOR CREDITING AN EMPLOYEE WITH HIS ACCRUED ANNUAL LEAVE.

AN EMPLOYEE NOT BEING ENTITLED TO CREDIT FOR ANNUAL LEAVE UPON TRANSFER, THERE REMAINS FOR CONSIDERATION WHETHER HE IS ENTITLED TO A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845.

AS A CONDITION TO PAYMENT FOR ANNUAL LEAVE UNDER THAT STATUTE, AN EMPLOYEE MUST EITHER BE ,SEPARATED FROM THE SERVICE" OR TRANSFERRED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM. 26 COMP. GEN. 88. SINCE THE EMPLOYEE HERE INVOLVED WAS EMPLOYED IN TEMPORARY POSITIONS IN BOTH DEPARTMENTS--- PRESUMABLY, SUBJECT ONLY TO THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, 49 STAT. 1161--- HIS TRANSFER MAY NOT BE VIEWED AS A TRANSFER UNDER A DIFFERENT LEAVE SYSTEM. THUS, IF THE EMPLOYEE IS TO RECEIVE A LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE, IT MUST BE PREDICATED UPON THE BASIS THAT THE EMPLOYEE WAS SEPARATED FROM THE SERVICE UPON THE TERMINATION OF HIS EMPLOYMENT IN THE BUREAU OF THE CENSUS ON JUNE 10, 1945.

IN DECISION OF OCTOBER 24, 1946, 26 COMP. GEN. 259, 264, IT WAS STATED, WITH RESPECT TO THE PURPOSE THE CONGRESS SOUGHT TO ACHIEVE IN ENACTING THE ACT OF DECEMBER 21, 1944, SUPRA, AS FOLLOWS:

READING THAT ACT AS A WHOLE, IT IS APPARENT THAT IT WAS THE INTENT OF THE CONGRESS TO AUTHORIZE A LUMP-SUM PAYMENT IN EVERY SITUATION IN WHICH AN EMPLOYEE OTHERWISE MIGHT BE COMPELLED TO FORFEIT THE LEAVE WHICH HAD ACCRUED TO HIS CREDIT, AND, ALSO, TO REQUIRE--- IF THE EMPLOYEE DURING THE PERIOD OVER WHICH THE LUMP-SUM PAYMENT WAS COMPUTED WERE REEMPLOYED IN A POSITION IN WHICH SUCH LEAVE AGAIN MIGHT BE CREDITED TO HIM--- A REFUND OF AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LEAVE PERIOD. * * *

IN CONSONANCE WITH THAT PRINCIPLE THERE APPEARS JUSTIFIED THE CONCLUSION THAT WHERE, AS HERE, THE LEAVE REGULATIONS MAKES NO PROVISION FOR THE TRANSFER OF ANNUAL LEAVE FROM ONE TEMPORARY POSITION TO ANOTHER AND WHERE THERE WOULD RESULT A FORFEITURE OF THE LEAVE, THERE HAS BEEN A SEPARATION FROM THE SERVICE WITHIN THE MEANING OF THE ACT OF DECEMBER 21, 1944, EVEN THOUGH NO ACTUAL BREAK IN SERVICE OCCURRED. SEE 25 COMP. GEN. 778; 26 ID. 88.

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