B-757, MARCH 4, 1939, 18 COMP. GEN. 687

B-757: Mar 4, 1939

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EMPLOYEE'S LIABILITY FOR REFUND OF UNEARNED LEAVE WHERE A POSTAL EMPLOYEE WAS IN A PAY STATUS AT THE CLOSE OF THE LEAVE YEAR (JUNE 30) PRECEDING THE LEAVE YEAR OF SEPARATION IN WHICH LEAVE WAS GRANTED WITHOUT A RETURN TO DUTY BY REASON OF THE ADMINISTRATIVE GRANTING OF SICK LEAVE PREVIOUSLY EARNED. OF THE FULL CREDIT OF BOTH ANNUAL AND SICK LEAVE FOR THE SAID LEAVE YEAR WAS AUTHORIZED UNDER THE ACT OF FEBRUARY 25. SUCH REFUND IS NOT REQUIRED. 15 COMP. AS TO EMPLOYEES WHOSE LEAVE IS CONTROLLED BY ANNUAL AND SICK LEAVE ACTS OF MARCH 14. CERTAIN INFORMATION WAS REQUESTED REGARDING THE CLAIM OF THE POST OFFICE DEPARTMENT IN THE AMOUNT OF $190.66 AGAINST THE RETIREMENT FUND CREDIT OF BYRON L.

B-757, MARCH 4, 1939, 18 COMP. GEN. 687

LEAVES OF ABSENCE - POSTAL SERVICE - ANNUAL AND SICK LEAVE ADVANCES AT BEGINNING OF NEW LEAVE YEAR WITHOUT RETURN TO DUTY - SUBSEQUENT SEPARATION FROM SERVICE WITHOUT RETURN TO DUTY, AND EMPLOYEE'S LIABILITY FOR REFUND OF UNEARNED LEAVE WHERE A POSTAL EMPLOYEE WAS IN A PAY STATUS AT THE CLOSE OF THE LEAVE YEAR (JUNE 30) PRECEDING THE LEAVE YEAR OF SEPARATION IN WHICH LEAVE WAS GRANTED WITHOUT A RETURN TO DUTY BY REASON OF THE ADMINISTRATIVE GRANTING OF SICK LEAVE PREVIOUSLY EARNED, THE ADMINISTRATIVE GRANTING, AT THE BEGINNING OF THE FOLLOWING YEAR, OF THE FULL CREDIT OF BOTH ANNUAL AND SICK LEAVE FOR THE SAID LEAVE YEAR WAS AUTHORIZED UNDER THE ACT OF FEBRUARY 25, 1928, AS AMENDED BY THE ACT OF MAY 17, 1928, 45 STAT. 595, AND IN THE ABSENCE OF ADMINISTRATIVE REGULATION REQUIRING REFUND FOR THE PRO RATA LEAVE NOT EARNED DURING THE YEAR IN WHICH SEPARATION OCCURS, SUCH REFUND IS NOT REQUIRED. 15 COMP. GEN. 597, ID. 723, DISTINGUISHED. AS TO EMPLOYEES WHOSE LEAVE IS CONTROLLED BY ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162, SEE APPLICABLE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, MARCH 4, 1939:

BY OFFICE LETTER TO YOU DATED JANUARY 28, 1939, CERTAIN INFORMATION WAS REQUESTED REGARDING THE CLAIM OF THE POST OFFICE DEPARTMENT IN THE AMOUNT OF $190.66 AGAINST THE RETIREMENT FUND CREDIT OF BYRON L. KANOUSE, DECEASED, FORMERLY EMPLOYED AS A CITY LETTER CARRIER AT SAN LEANDRO, CALIF., REPRESENTING COMPENSATION FOR 15 DAYS' ANNUAL LEAVE AND 10 DAYS' SICK LEAVE GRANTED TO HIM COVERING THE PERIOD JULY 18 TO AUGUST 22, 1938.

YOUR REPLY OF FEBRUARY 17, 1939, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28 (B-757), ADDRESSED TO THE POSTMASTER GENERAL, AND THIS BUREAU'S REPLY OF FEBRUARY 2, IN REGARD TO THE OVERPAYMENT OF SALARY MADE TO FORMER CARRIER BYRON L. KANOUSE OF THE SAN LEANDRO, CALIFORNIA, POST OFFICE.

WITH REFERENCE TO MR. KANOUSE'S LEAVE STATUS AND SALARY PAYMENTS, THERE IS ATTACHED A COPY OF A LETTER FROM THE POSTMASTER OF SAN LEANDRO DATED FEBRUARY 7, 1939, CONTAINING THE INFORMATION REQUESTED.

BASED ON THE PROVISIONS OF THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES, DATED FEBRUARY 25, 1936, THIS BUREAU ADVISED THE POSTMASTER THAT MR. KANOUSE, WHOSE APPLICATION FOR ANNUITY ON ACCOUNT OF DISABILITY HAD BEEN ALLOWED BY THE CIVIL SERVICE COMMISSION, WAS NOT ENTITLED TO PAY FOR 10 DAYS OF SICK LEAVE AND 15 DAYS OF ANNUAL LEAVE FOR THE FISCAL YEAR BEGINNING JULY 1, 1938, BECAUSE MR. KANOUSE HAD PERFORMED NO SERVICE IN THAT FISCAL YEAR. THE POSTMASTER HAD MADE PAYMENT TO MR. KANOUSE, AND AS MR. KANOUSE WAS NOT IN A FINANCIAL POSITION TO MAKE REFUND, THIS BUREAU REQUESTED THE CIVIL SERVICE COMMISSION TO WITHHOLD THE AMOUNT OF OVERPAYMENT FROM THE MONEY IN THE RETIREMENT FUND. MR. KANOUSE SUBSEQUENTLY DIED, AND THE CIVIL SERVICE COMMISSION WAS ADVISED TO THAT EFFECT.

THE REPORT OF THE POSTMASTER ACCOMPANYING YOUR LETTER IS AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF FEBRUARY 2, 1939, INITIALS SP, RELATING TO THE CASE OF BYRON L. KANOUSE, A FORMER LETTER CARRIER OF THIS OFFICE.

PRIOR TO THE LEAVE OF MR. KANOUSE, HE HAD A CREDIT OF 427 HOURS OR 53 3/8 DAYS ACCUMULATED SICK LEAVE, ALL VACATION HAD BEEN TAKEN UP TO THAT TIME.

MR. KANOUSE WORKED 2 HOURS ON SATURDAY APRIL 30, 1938, AND WAS GRANTED COMPENSATORY TIME ON MAY 2, SICK LEAVE WAS GRANTED FROM MAY 2, 1938, TO AND INC. 5 HOURS ON JULY 18, 1938, A TOTAL OF 427 HOURS EARNED SICK LEAVE.

MR. KANOUSE WAS THEN GRANTED 10 DAYS SICK LEAVE AND 15 DAYS VACATION FOR THE FISCAL YEAR 1939, THIS LEAVE SHOULD NOT HAVE BEEN ALLOWED WITH PAY, AS A RESULT THE FOLLOWING ENUMERATED DAYS WERE OVERPAID:

TABLE

JULY 18-31, 13 3/8 DAYS -------------------------------------- $72.86

AUGUST 1-15, 15 DAYS ----------------------------------------- 81.71

AUGUST 16-22, 6 5/8 DAYS ------------------------------------- 36.09

TOTAL (35 DAYS) --------------------------------------------- $190.66

MR. KANOUSE WAS THEN CARRIED ON THE ROLLS AS W.O.P. FROM AUGUST 22 TO AUGUST 31, 1938. THE VACANCY WAS THEN FILLED BY APPOINTMENT TO REGULAR CARRIER OF HAROLD T. RICHARDSON.

THE EMPLOYEE SHOULD HAVE BEEN CARRIED ON THE ROLLS IN A NONPAY STATUS FROM 3/8 DAY ON JULY 18, 1938, TO JULY 31, 1938, AND THEN DROPPED UNDER SECTION 6 ACCOUNT OF DISABILITY RETIREMENT.

THE DECISION OF FEBRUARY 25, 1936, 15 COMP. GEN. 723, CITED BY YOU, AS WELL AS THE DECISION OF JANUARY 11, 1936, 15 COMP. GEN. 597, THEREIN CONSIDERED, ARE NOT CONTROLLING IN THIS CASE. IN THE CASES CONSIDERED IN THOSE DECISIONS THE EMPLOYEE WAS IN A NONPAY STATUS AT THE CLOSE OF THE LEAVE YEAR PRECEDING THE LEAVE YEAR OF SEPARATION IN WHICH LEAVE WAS GRANTED WITHOUT A RETURN TO DUTY. IN THE INSTANT CASE THE EMPLOYEE WAS IN A PAY STATUS JUNE 30, 1938, AND UNTIL JULY 18, 1938, HAVING BEEN GRANTED SICK LEAVE PREVIOUSLY EARNED COVERING THE PERIOD MAY 2 TO JULY 18, 1938. LEAVE WITH PAY IS SYNONYMOUS WITH A DUTY STATUS. ON JULY 1,1938, THE BEGINNING OF THE LEAVE YEAR IN WHICH THERE WAS GRANTED THE 15 DAYS' ANNUAL LEAVE AND THE 10 DAYS' SICK LEAVE, THE COMPENSATION FOR WHICH THE POST OFFICE DEPARTMENT IS SEEKING RECOVERY FROM THE RETIREMENT FUND, THE EMPLOYEE WAS IN A PAY STATUS AND AUTOMATICALLY BECAME ENTITLED TO THE FULL CREDIT OF BOTH ANNUAL AND SICK LEAVE FOR SUCH LEAVE YEAR UNDER THE ACT OF FEBRUARY 25, 1928, AS AMENDED BY THE ACT OF MAY 17, 1928, 45 STAT. 595, BOTH CLASSES OF LEAVE BEING GRANTED ON A YEARLY BASIS BY THE STATUTE.

ACCORDINGLY, THE ADMINISTRATIVE ACTION GRANTING THE EMPLOYEE THE 15 DAYS' ANNUAL LEAVE AND THE 10 DAYS' SICK LEAVE FOR THE LEAVE YEAR BEGINNING JULY 1, 1938, WAS PROPER, AND IN THE ABSENCE OF A REGULATION OF THE POST OFFICE DEPARTMENT REQUIRING REFUND FOR THE PRO RATA LEAVE NOT EARNED DURING THE YEAR IN WHICH SEPARATION OCCURS, THERE IS NO AUTHORITY TO REQUIRE SUCH REFUND. SEE 4 COMP. GEN. 322; COMPARE 7 COMP. GEN. 198. THIS OFFICE FINDS NO SUCH ADMINISTRATIVE REGULATION AND NONE HAS BEEN CALLED TO MY ATTENTION IN YOUR REPLY LETTER. SEE SECTION 4 OF THE UNIFORM ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE UNIFORM SICK LEAVE REGULATIONS, EXECUTIVE ORDERS NOS. 7845 AND 7846, DATED MARCH 21, 1938, APPLICABLE TO EMPLOYEES WHOSE LEAVE IS CONTROLLED BY THE LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161, 1162.

YOU ARE ADVISED, THEREFORE, THAT IN THE ABSENCE OF AN ADMINISTRATIVE REGULATION REQUIRING A REFUND IN THIS CASE, THE CLAIM OF THE POST OFFICE DEPARTMENT AGAINST THE AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF THE EMPLOYEE MUST BE AND IS DENIED AND THE UNITED STATES CIVIL SERVICE COMMISSION IS BEING SO ADVISED BY LETTER OF TODAY.