B-71393, DECEMBER 23, 1947, 27 COMP. GEN. 341

B-71393, DECEMBER 23, 1947, 27 COMP. GEN. 341

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - RATE AT WHICH PAYABLE - DIFFERENTIAL FOR OVERSEAS SERVICE THE LUMP-SUM LEAVE PAYMENT AUTHORIZED BY SECTIONS 1 AND 3 OF THE ACT OF DECEMBER 21, 1944, TO BE PAID IN AN AMOUNT EQUAL TO THE COMPENSATION THAT WOULD HAVE BEEN RECEIVED BUT FOR AN EMPLOYEE'S SEPARATION FROM THE SERVICE OR TRANSFER TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM IS FOR COMPUTATION AT A RATE WHICH INCLUDES A COMPENSATION DIFFERENTIAL FOR OVERSEAS SERVICE ONLY WITH RESPECT TO EMPLOYEES WHO ARE SEPARATED OR TRANSFERRED WHILE ENTITLED TO SUCH COMPENSATION DIFFERENTIAL AND TO WHICH THEY WOULD HAVE CONTINUED TO BE ENTITLED BUT FOR SEPARATION OR TRANSFER.

COMPTROLLER GENERAL WARREN TO THE ACTING ADMINISTRATOR, WAR ASSETS ADMINISTRATION, DECEMBER 23, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 20, 1947, REQUESTING TO BE ADVISED WHETHER THIS OFFICE WOULD BE REQUIRED TO OBJECT TO OTHERWISE PROPER PAYMENTS UNDER THE PROVISIONS OF THE LUMP SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, 58 STAT. 845, PURSUANT TO A PROPOSED REGULATION READING AS FOLLOWS:

PAYMENT FOR UNUSED ANNUAL LEAVE. EMPLOYEES SEPARATING FROM THE FEDERAL SERVICE OR TRANSFERRING TO A GOVERNMENT POSITION UNDER A DIFFERENT LEAVE SYSTEM UPON RETURN TO THE CONTINENTAL UNITED STATES WILL BE ELIGIBLE TO RECEIVE PAYMENT AT THE 25 PERCENT DIFFERENTIAL RATE FOR UNUSED ANNUAL LEAVE. (26 COMP. GEN. 9; 24 COMP. GEN. 768.)

AS YOU DOUBTLESS ARE AWARE, IT IS NOT PART OF THE DUTY OF THE GENERAL ACCOUNTING OFFICE TO APPROVE OR DISAPPROVE REGULATIONS OR INSTRUCTIONS ISSUED OR TO BE ISSUED BY ANY DEPARTMENT OR OTHER AGENCY OF THE GOVERNMENT. HOWEVER, IN VIEW OF THE REPRESENTATIONS MADE IN YOUR LETTER RESPECTING THE NUMBER OF EMPLOYEES NOW SERVING IN THE TERRITORIES AND POSSESSIONS OF THE UNITED STATES AND WHO WILL BE SEPARATED FROM THE SERVICE IN THE NEAR FUTURE, A BRIEF REFERENCE TO THE STATUTE INVOLVED AND THE CONTROLLING DECISIONS OF THE OFFICE IN THE MATTER IS DEEMED DESIRABLE.

SECTIONS 1 AND 3 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 846, PROVIDE IN PART, RESPECTIVELY, AS FOLLOWS:

THAT 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 LEAVE * * *.

SEC. 3. THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP-SUM PAYMENT TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. SUCH LUMP- SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE * * *.

IT IS SETTLED THAT THE RIGHT TO THE LUMP-SUM PAYMENT AUTHORIZED BY SECTIONS 1 AND 3 OF THE 1944 STATUTE, QUOTED ABOVE, ACCRUES TO AN EMPLOYEE AT THE TIME OF HIS SEPARATION FROM THE SERVICE OR TRANSFER TO A DIFFERENT LEAVE SYSTEM. 26 COMP. GEN. 102. HOWEVER, BY REASON OF THE SPECIFIC PROVISION IN SECTION 1, SUPRA, 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," AND THE SUBSTANTIALLY SIMILAR PROVISION IN SECTION 3, SUPRA, IT IS CLEAR THAT THE AMOUNT OF THE LUMP SUM PAYMENT IS NOT NECESSARILY LIMITED TO THE RATE OF COMPENSATION OF WHICH THE EMPLOYEE IS IN RECEIPT ON THE DATE OF SEPARATION OR TRANSFER. IN THAT CONNECTION, IT WAS HELD IN THE SAID DECISION OF AUGUST 8, 1946, 26 COMP. GEN. 102, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE LUMP-SUM PAYMENT FOR LEAVE AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, UPON SEPARATION FROM SERVICE IS NOT FOR COMPUTATION ON THE BASIS OF ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE LEAVE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF SUCH PAYMENT, BUT ON THE BASIS OF THE EMPLOYEE'S RIGHTS UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THE TIME OF SEPARATION WHICH WOULD HAVE EFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE.

IN CONSONANCE WITH THE FOREGOING RULES, IT WILL BE SEEN THAT IT IS ONLY WITH RESPECT TO THOSE EMPLOYEES WHO ARE SEPARATED FROM THE SERVICE OR TRANSFERRED TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM WHILE ENTITLED TO THE SAID COMPENSATION DIFFERENTIAL AND TO WHICH THEY WOULD HAVE CONTINUED TO BE ENTITLED BUT FOR SUCH SEPARATION OF TRANSFER, THAT SUCH DIFFERENTIAL IS FOR INCLUSION IN THE COMPUTATION OF THE LUMP-SUM PAYMENT. WHERE, FOR EXAMPLE, RECEIPT OF THE DIFFERENTIAL HAS CEASED PRIOR TO THE DATE OF SEPARATION OR TRANSFER, SUCH AS IN THE CASE OF AN EMPLOYEE WHO PERFORMS DUTY WITHIN THE UNITED STATES AFTER RELIEF FROM HIS DUTY OVERSEAS, THE DIFFERENTIAL IS NOT FOR INCLUSION IN THE LUMP SUM PAYMENT. LIKEWISE, WHERE BY ADMINISTRATIVE REGULATION OR OTHERWISE, PAYMENT OF THE DIFFERENTIAL WOULD HAVE TERMINATED AT A PREDETERMINED DATE DURING THE PERIOD COVERED BY THE LUMP-SUM PAYMENT, THE DIFFERENTIAL IS FOR INCLUSION IN SUCH PAYMENT ONLY TO THE EXTENT IT OTHERWISE WOULD HAVE BEEN PAYABLE HAD THE EMPLOYEE NOT BEEN SEPARATED OR TRANSFERRED.

IT WOULD APPEAR THAT THE PROPOSED REGULATION, AS PRESENTLY WORDED, IS SUSCEPTIBLE OF CONSTRUCTION AT VARIANCE WITH THE ABOVE PRINCIPLES GOVERNING THE MATTER OF THE COMPUTATION OF THE LUMP-SUM LEAVE PAYMENT UNDER THE SAID 1944 STATUTE, AND APPROPRIATE ADJUSTMENTS SHOULD BE MADE THEREIN TO ACCORD WITH SAID PRINCIPLES PRIOR TO ITS ISSUANCE.