B-70427, DECEMBER 19, 1947, 27 COMP. GEN. 330

B-70427: Dec 19, 1947

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TO BE CHARGED AGAINST THE UNOBLIGATED BALANCE OF THE 1947 APPROPRIATION FROM WHICH SUCH EMPLOYEE WAS PAID MAY BE COMPUTED AT THE RATE OF COMPENSATION WHICH INCLUDES A WITHIN-GRADE SALARY ADVANCEMENT THAT THE EMPLOYEE BECAME ENTITLED TO SUBSEQUENT TO JUNE 30. COMPLETED THE PRESCRIBED WAITING PERIOD FOR WITHIN-GRADE SALARY-ADVANCEMENT PURPOSES WITHIN THE LEAVE- WITHOUT-PAY PERIOD OF TWENTY-TWO EIGHT-HOUR DAYS AUTHORIZED TO BE CREDITED AS SERVICE FOR SUCH PURPOSES BY SECTION 25.231 (C) OF THE FEDERAL EMPLOYEES PAY REGULATIONS IS ENTITLED TO HAVE HIS LUMP-SUM LEAVE PAYMENT COMPUTED AT THE RATE OF COMPENSATION WHICH INCLUDES THE WITHIN-GRADE SALARY ADVANCEMENT. 1947: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16.

B-70427, DECEMBER 19, 1947, 27 COMP. GEN. 330

WITHIN-GRADE SALARY ADVANCEMENTS - INCLUSION IN LUMP-SUM LEAVE PAYMENT; CREDITING OF LEAVE WITHOUT PAY IN THE CASE OF AN EMPLOYEE SEPARATED FROM THE SERVICE DURING JULY 1947 BY REASON OF REDUCTION IN FORCE--- NOTIFICATION OF WHICH HAVING BEEN RECEIVED DURING THE FISCAL YEAR 1947--- THE LUMP-SUM LEAVE PAYMENT AUTHORIZED BY SECTION 103 OF THE SECOND URGENT DEFICIENCY APPROPRIATION ACT, 1947, TO BE CHARGED AGAINST THE UNOBLIGATED BALANCE OF THE 1947 APPROPRIATION FROM WHICH SUCH EMPLOYEE WAS PAID MAY BE COMPUTED AT THE RATE OF COMPENSATION WHICH INCLUDES A WITHIN-GRADE SALARY ADVANCEMENT THAT THE EMPLOYEE BECAME ENTITLED TO SUBSEQUENT TO JUNE 30, 1947, BUT PRIOR TO HIS SEPARATION FROM THE SERVICE. AN EMPLOYEE WHO, WHILE ON LEAVE WITHOUT PAY GRANTED IN CONNECTION WITH HIS SEPARATION BY REDUCTION IN FORCE, COMPLETED THE PRESCRIBED WAITING PERIOD FOR WITHIN-GRADE SALARY-ADVANCEMENT PURPOSES WITHIN THE LEAVE- WITHOUT-PAY PERIOD OF TWENTY-TWO EIGHT-HOUR DAYS AUTHORIZED TO BE CREDITED AS SERVICE FOR SUCH PURPOSES BY SECTION 25.231 (C) OF THE FEDERAL EMPLOYEES PAY REGULATIONS IS ENTITLED TO HAVE HIS LUMP-SUM LEAVE PAYMENT COMPUTED AT THE RATE OF COMPENSATION WHICH INCLUDES THE WITHIN-GRADE SALARY ADVANCEMENT, EVEN THOUGH THE EMPLOYEE DID NOT RETURN TO A PAY STATUS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, DECEMBER 19, 1947:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 16, 1947, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE FOLLOWING FACTUAL SITUATION REPRESENTATIVE OF A NUMBER OF EMPLOYEES IN THE BUREAU OF FEDERAL SUPPLY.

DURING THE MONTH OF JUNE 1947 AN EMPLOYEE IS NOTIFIED OF HIS REDUCTION IN FORCE SEPARATION EFFECTIVE JULY 31, 1947. THE NOTICE STIPULATES THAT THE EMPLOYEE IS TO BE PLACED IN A LEAVE-WITHOUT-PAY STATUS EFFECTIVE THE OPENING OF BUSINESS OF JULY 1, 1947, TO CONTINUE THROUGH JULY 31, 1947. ON JULY 15, 1947 THE EMPLOYEE, ASIDE FROM THE FACT THAT HE IS IN A LEAVE- WITHOUT-PAY STATUS, COMPLETES THE STATUTORY PERIOD FOR A WITHIN-GRADE PROMOTION.

IN DETERMINING THE LUMP SUM PAYMENT FOR ACCUMULATED LEAVE TO BE CHARGED AGAINST THE UNOBLIGATED BALANCE OF THE 1947 APPROPRIATION FROM WHICH SUCH EMPLOYEE WAS PAID, PURSUANT TO THE PROVISIONS OF SECTION 103 OF THE SECOND URGENT DEFICIENCY APPROPRIATION ACT, 1947, PUBLIC LAW 122, 80TH CONGRESS, FIRST SESSION, IS SUCH EMPLOYEE TO BE PAID AT THE RATE OF COMPENSATION IN EFFECT FOR THE EMPLOYEE AS OF JUNE 30, 1947, OR MAY SUCH PAYMENT BE COMPUTED ON THE BASIS OF A RATE TAKING INTO CONSIDERATION THE WITHIN-GRADE PROMOTION TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED ON JULY 15, 1947 HAD HE NOT BEEN PLACED IN A LEAVE-WITHOUT-PAY STATUS?

IN YOUR CONSIDERATION OF THIS QUESTION YOUR ATTENTION IS INVITED TO SECTION 25.231 OF THE FEDERAL EMPLOYEES PAY REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION, WHICH PROVIDES, IN PART, AS FOLLOWS:

"SEC. 25.231, SERVICE TO BE CREDITED. IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

"/A) CONTINUOUS CIVILIAN EMPLOYMENT IN ANY BRANCH (LEGISLATIVE, EXECUTIVE, OR JUDICIAL), EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT OR AGENCY, OR CORPORATION OF THE FEDERAL GOVERNMENT OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA. * * *

"/C) LEAVE WITHOUT PAY AND FURLOUGH, NOT TO EXCEED IN TOTAL THE EQUIVALENT OF TWENTY-TWO EIGHT-HOUR DAYS IN THE BASIC FORTY-HOUR WORKWEEK, WITHIN THE PERIOD OF SERVICE REQUIRED FOR ONE PERIODIC WITHIN-GRADE ADVANCEMENT. * * *"

BEARING IN MIND THAT THE EMPLOYEE DOES NOT RETURN TO A PAY STATUS, THE SUBSIDIARY QUESTION FOR CONSIDERATION IS WHETHER THE "TWENTY-TWO EIGHT- HOUR DAYS" REFERRED TO IN THE FOREGOING SUBPARAGRAPH (C) MUST OCCUR WITHIN A PERIOD IN WHICH THE EMPLOYEE IS IN A PAY STATUS OR WHETHER THE "TWENTY- TWO EIGHT-HOUR DAYS" MAY BE ADDED TO THE PERIOD AFTER JUNE 30, 1947.

SECTION 103 OF THE SECOND URGENT DEFICIENCY APPROPRIATION ACT. 1947, APPROVED JUNE 27, 1947, 61 STAT. 188, PROVIDES:

WHEN EMPLOYEES ARE SEPARATED FROM THE SERVICE DURING JULY 1947 BY REASON OF A REDUCTION-IN-FORCE AND HAVE BEEN GIVEN NOTICE OF SUCH SEPARATION DURING THE FISCAL YEAR 1947, LUMP-SUM PAYMENTS FOR ACCUMULATED LEAVE MAY BE CHARGED AGAINST UNOBLIGATED BALANCES OF THE 1947 APPROPRIATIONS FROM WHICH SUCH EMPLOYEES WERE PAID: PROVIDED, THAT SUBPARAGRAPHS (A) AND (B) OF PARAGRAPH (1) OF SECTION 14 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 ( PUBLIC LAW 390) SHALL NOT APPLY TO SUCH EMPLOYEES.

THE PURPOSE OF THAT SECTION WAS TO AUTHORIZE THE USE OF UNOBLIGATED BALANCES OF APPROPRIATIONS FROM WHICH THE EMPLOYEES WERE PAID FOR THE FISCAL YEAR 1947 IN MAKING LUMP-SUM PAYMENTS FOR ACCUMULATED ANNUAL LEAVE TO EMPLOYEES SEPARATED IN JULY 1947 BY REASON OF A REDUCTION IN FORCE AND WHO RECEIVED NOTICES OF SUCH SEPARATION DURING THE FISCAL YEAR 1947. NOTHING IN THAT SECTION REQUIRES THE LUMP-SUM PAYMENT TO BE COMPUTED AT THE SALARY RATE RECEIVED BY THE EMPLOYEE AT THE CLOSE OF THE FISCAL YEAR 1947.

IT WAS HELD IN THE DECISION OF AUGUST 8, 1946, B-59352, 26 COMP. GEN. 102, 106, THAT:

* * * WHERE, PRIOR TO THE DATE OF SEPARATION, AN EMPLOYEE HAS COMPLETED THE REQUISITE PERIOD OF ACTUAL SERVICE AND ALL OTHER CONDITIONS OF THE STATUTE AND APPLICABLE REGULATIONS HAVE BEEN MET, THE MERE FACT THAT BY REASON OF THE PROVISION IN SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SUPRA, POSTPONING THE EFFECTIVE DATE OF THE WITHIN-GRADE SALARY ADVANCEMENT UNTIL "THE BEGINNING OF THE NEXT PAY PERIOD" FOLLOWING THE COMPLETION OF SUCH PERIOD OF SERVICE, HE DID NOT ACTUALLY RECEIVE THE ADVANCE PRIOR TO THE SEPARATION WOULD NOT PRECLUDE INCLUDING IT IN THE COMPUTATION OF THE LUMP SUM. IN OTHER WORDS, WHERE AN EMPLOYEE'S RIGHT TO AN INCREASE IN COMPENSATION HAD BECOME COMPLETELY VESTED AT THE DATE OF SEPARATION, IT IS IMMATERIAL THAT SUCH INCREASE IS EFFECTIVE AS OF A LATER DATE. * * *

IN APPLYING THE HOLDING IN THAT DECISION TO THE FACTS PRESENTED, THE LUMP -SUM PAYMENT WOULD BE FOR COMPUTING AT THE INCREASED SALARY RATE WHERE THE REQUISITE PERIOD OF ACTUAL SERVICE AND ALL OTHER CONDITIONS OF THE STATUTE PROVIDING FOR AUTOMATIC INCREASES HAVE BEEN MET PRIOR TO THE SEPARATION AND, IN THAT CONNECTION, I PERCEIVE NO REASON FOR CONCLUDING THAT THE "TWENTY-TWO EIGHT-HOUR DAYS" ON FURLOUGH OR LEAVE WITHOUT PAY REFERRED TO IN SECTION 25.231 (C) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, QUOTED IN YOUR LETTER, SUPRA, NEED OCCUR WITHIN A PERIOD DURING WHICH THE EMPLOYEE IS IN A PAY STATUS IN THE SENSE MENTIONED IN YOUR LETTER IN ORDER THAT SUCH DAYS MAY BE COUNTED AS SERVICE TOWARD A WITHIN-GRADE SALARY ADVANCEMENT. AS I READ THAT SECTION, IT AUTHORIZES THE CREDITING OF LEAVE OR FURLOUGH WITHOUT PAY NOT EXCEEDING IN TOTAL TWENTY-TWO EIGHT-HOUR DAYS IN THE BASIC 40-HOUR WORKWEEK TOWARD THE REQUIRED PERIOD OF SERVICE, REGARDLESS OF WHEN SUCH LEAVE OR FURLOUGH WITHOUT PAY OCCURS DURING THE 12 OR 18 MONTHS' PERIOD OF SERVICE PRESCRIBED BY SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299.

UNDER THE FACTS PRESENTED, THE REQUISITE PERIOD OF ACTUAL SERVICE MAY BE CONSIDERED AS HAVING BEEN MET AT THE TIME OF SEPARATION ON JULY 31, 1947; HENCE, IF ALL OTHER PREREQUISITES TO A WITHIN-GRADE SALARY ADVANCEMENT WERE MET AT THAT TIME THE LUMP-SUM PAYMENT OF ANNUAL LEAVE PROPERLY MAY BE COMPUTED UPON THE RATE OF COMPENSATION WHICH INCLUDES THE WITHIN-GRADE SALARY ADVANCEMENT.