B-77694, AUGUST 20, 1948, 28 COMP. GEN. 108

B-77694: Aug 20, 1948

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" WHICH PERIOD IS DEFINED BY THE ANNUAL AND SICK LEAVE REGULATIONS AS A PERIOD "IN A PAY STATUS" FOR A SPECIFIED INTERVAL OF TIME. THE "MONTH OF SERVICE" FOR WHICH A TEMPORARY EMPLOYEE IS ENTITLED TO LEAVE UNDER THE ANNUAL LEAVE ACT OF MARCH 14. WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR ANNUAL LEAVE WHICH WAS NOT CREDITED TO YOU FOR DECEMBER 1946 AND JANUARY 1947. THE DISALLOWANCE WAS BASED UPON THE GROUND THAT. AS IT WAS CONTRARY TO THE POLICY OF THE INSTALLATION WHERE YOU WERE EMPLOYED TO EXCUSE TARDINESS IN EXCESS OF 30 MINUTES. YOU WERE PLACED ON LEAVE WITHOUT PAY FOR 1 1/2 HOURS ON DECEMBER 6. THE MATTER OF PLACING YOU IN A LEAVE-WITHOUT-PAY STATUS INSTEAD OF EXCUSING THE TARDINESS WAS ENTIRELY A MATTER OF ADMINISTRATIVE DISCRETION AND IS NOT SUBJECT TO REVIEW BY THIS OFFICE.

B-77694, AUGUST 20, 1948, 28 COMP. GEN. 108

LEAVES OF ABSENCE - ANNUAL - TEMPORARY EMPLOYEES - MONTH OF SERVICE UNDER THE PROVISIONS OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, ENTITLING TEMPORARY EMPLOYEES TO TWO AND ONE-HALF DAYS' LEAVE FOR EACH "MONTH OF SERVICE," WHICH PERIOD IS DEFINED BY THE ANNUAL AND SICK LEAVE REGULATIONS AS A PERIOD "IN A PAY STATUS" FOR A SPECIFIED INTERVAL OF TIME, A FRACTIONAL DAY'S ABSENCE FROM DUTY WITHOUT PAY OF A TEMPORARY EMPLOYEE CONSTITUTES A BREAK IN THE NECESSARY CONTINUITY OF SERVICE SO AS TO EXCLUDE FROM CONSIDERATION THE PRIOR SERVICE FOR LEAVE ACCRUAL PURPOSES. THE "MONTH OF SERVICE" FOR WHICH A TEMPORARY EMPLOYEE IS ENTITLED TO LEAVE UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, BEING DEFINED BY THE ANNUAL AND SICK LEAVE REGULATIONS AS A PAY STATUS PERIOD ENDING "AT THE CLOSE OF BUSINESS" OF THE DATE CONCLUDING A SPECIFIED INTERVAL OF TIME, MUST BEGIN WITH THE OPENING OF BUSINESS FOR THE DATE COMMENCING THE PERIOD, AND, THEREFORE, AFTER A BREAK IN SERVICE BY A FRACTIONAL DAY'S ABSENCE FROM DUTY WITHOUT PAY AT THE BEGINNING OF A WORKDAY, A NEW MONTH OF SERVICE FOR LEAVE PURPOSES WOULD BEGIN WITH THE FIRST FULL DAY IN A PAY STATUS FOLLOWING THE BREAK IN SERVICE, AND NOT WITH THE RETURN TO A PAY STATUS ON THE DAY IN WHICH THE BREAK OCCURRED.

COMPTROLLER GENERAL WARREN TO LEO G. KRACKE, AUGUST 20, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MAY 18, 1948, REQUESTING REVIEW OF SETTLEMENT OF MAY 13, 1948, WHICH DISALLOWED YOUR CLAIM FOR COMPENSATION FOR ANNUAL LEAVE WHICH WAS NOT CREDITED TO YOU FOR DECEMBER 1946 AND JANUARY 1947, AND FOR SICK LEAVE CREDIT, AS A TEMPORARY EMPLOYEE OF THE WAR DEPARTMENT, ARMY AIR FORCE, SPECIALIZED DEPORT, PARK RIDGE, ILLINOIS, UNDER AN APPOINTMENT EFFECTIVE DECEMBER 2, 1946. THE DISALLOWANCE WAS BASED UPON THE GROUND THAT, AS ADMINISTRATIVELY REPORTED TO THIS OFFICE, YOU HAD BEEN PLACED ON LEAVE WITHOUT PAY THUS BROKE THE MONTH OF SERVICE REQUIRED OF TEMPORARY EMPLOYEES AS A CONDITION TO EARNING LEAVE.

IT APPEARS THAT THE LEAVE WITHOUT PAY RESULTED FROM YOUR TARDINESS EXCEEDING 30 MINUTES IN REPORTING FOR DUTY ON THE TWO DAYS IN QUESTION. AS IT WAS CONTRARY TO THE POLICY OF THE INSTALLATION WHERE YOU WERE EMPLOYED TO EXCUSE TARDINESS IN EXCESS OF 30 MINUTES, YOU WERE PLACED ON LEAVE WITHOUT PAY FOR 1 1/2 HOURS ON DECEMBER 6, 1946, AND 3/4 OF AN HOUR ON JANUARY 3, 1947, IN THE VIEW THAT YOU HAD NO ANNUAL LEAVE TO YOUR CREDIT WHICH COULD BE CHARGED. IN YOUR REQUEST FOR REVIEW YOU STRESS YOUR GOOD RECORD AND EXPLAIN THE REASON FOR THE TARDINESS.

THE MATTER OF PLACING YOU IN A LEAVE-WITHOUT-PAY STATUS INSTEAD OF EXCUSING THE TARDINESS WAS ENTIRELY A MATTER OF ADMINISTRATIVE DISCRETION AND IS NOT SUBJECT TO REVIEW BY THIS OFFICE. HOWEVER, THE QUESTION ARISES WHETHER THE SHORT PERIODS OF LEAVE WITHOUT PAY FOR 1 1/2 HOURS AND 3/4 OF AN HOUR, RESPECTIVELY, AFFECTED THE ACCRUAL OF LEAVE IN YOUR STATUS AS A TEMPORARY EMPLOYEE.

SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDES THAT: "TEMPORARY EMPLOYEES * * * SHALL BE ENTITLED TO TWO AND ONE -HALF DAYS LEAVE FOR EACH MONTH OF SERVICE.' LIKEWISE, SECTION 2 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, PROVIDES THAT: " TEMPORARY EMPLOYEES * * * SHALL BE ENTITLED TO ONE AND ONE-QUARTER DAYS SICK LEAVE FOR EACH MONTH OF SERVICE.' SECTION 1.1 (G) OF THE ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE JULY 1, 1946, DEFINES "MONTH OF SERVICE" AS FOLLOWS:

"MONTH OF SERVICE" MEANS A PERIOD IN A PAY STATUS COVERING A FULL CALENDAR MONTH OR BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR MONTH.

EVEN BEFORE THE LEAVE REGULATIONS SPECIFICALLY DEFINED "MONTH OF SERVICE," IT CONSISTENTLY WAS HELD IN DECISIONS OF THIS OFFICE THAT INDEFINITE EMPLOYEES, WHO EARNED LEAVE UPON A MONTH-OF-SERVICE BASIS, COULD NOT BE CREDITED WITH LEAVE AS FOR A MONTH OF CONTINUOUS SERVICE WHERE THE EMPLOYEE HAD BEEN IN A LEAVE-WITHOUT-PAY STATUS FOR PART OF A DAY. 18 COMP. GEN. 400; 20 ID. 827. IN THE FORMER DECISION IT WAS STATED, AT PAGE 402, THAT "CONTINUOUS SERVICE * * * MEANS AN ACTUAL PAY OR DUTY STATUS DURING THE ENTIRE DAILY TOUR OF DUTY ON EVERY WORK DAY OF THE MONTH.' SO MUCH THE MORE DOES THE PLAIN LANGUAGE OF THE DEFINITION OF "MONTH OF SERVICE" QUOTED ABOVE FROM THE REGULATIONS--- READING AS IT DOES "PERIOD IN A PAY STATUS" FOR THE SPECIFIED PERIOD--- REQUIRE THE CONCLUSION THAT A FRACTIONAL DAY'S ABSENCE FROM DUTY WITHOUT PAY BREAKS THE CONTINUITY OF SERVICE FOR LEAVE ACCRUAL PURPOSES. COMPARE 23 COMP. GEN. 677, AND 26 ID. 466. THEREFORE, THE LEAVE WITHOUT PAY ON DECEMBER 6, 1946, WHICH OCCURRED WITHIN A FEW DAYS OF THE COMMENCEMENT OF YOUR TEMPORARY EMPLOYMENT, CUT OFF PRIOR SERVICE FOR THE PURPOSE OF LEAVE CREDIT.

AS TO THE LEAVE WITHOUT PAY ON JANUARY 3, 1947, REFERENCE IS MADE TO THAT PART OF THE DEFINITION OF "MONTH OF SERVICE," SUPRA, WHICH READS "PERIOD IN A PAY STATUS * * * BEGINNING ON ANY DATE OF A CALENDAR MONTH AND ENDING AT THE CLOSE OF BUSINESS OF THE PRECEDING DATE IN THE NEXT CALENDAR TH.' ( EMPHASIS SUPPLIED.) THE USE OF THE EXPRESSION "AT THE CLOSE OF BUSINESS" IMPLIES THAT THE MONTH OF SERVICE MUST HAVE COMMENCED WITH THE OPENING OF BUSINESS FOR THAT MONTH. THEREFORE, A NEW MONTH OF SERVICE FOR LEAVE PURPOSES BEGAN IN YOUR CASE ON DECEMBER 7, 1946, THE FIRST FULL DAY IN A PAY STATUS FOLLOWING YOUR ABSENCE IN A NONPAY STATUS ON DECEMBER 6--- NOT COINCIDENTALLY WITH RESUMPTION OF A PAY STATUS ON DECEMBER 6--- AND ENDED, OTHER CONDITIONS BEING MET, AT THE CLOSE OF BUSINESS ON JANUARY 6, 1947 ( MONDAY). IT WOULD HAVE BEEN PERMISSIBLE UNDER SECTION 2.3 OF THE LEAVE REGULATIONS TO HAVE GRANTED YOU UP TO 2 1/2 DAYS' ANNUAL LEAVE AT ANY TIME WITH 2 1/2 WORKDAYS OF THE END OF THE SERVICE MONTH. THUS, SATURDAY AND SUNDAY, JANUARY 4 AND 5, HAVING BEEN NON-WORKDAYS, YOU COULD HAVE BEEN GRANTED ONE HOUR'S ANNUAL LEAVE (THE MINIMUM CHARGE) TO COVER THE TARDINESS ON JANUARY 3 ( FRIDAY). FROM THE ADMINISTRATIVE REPORT IN THE MATTER IT MAY BE PRESUMED THAT ANNUAL LEAVE WOULD HAVE BEEN GRANTED EXCEPT FOR THE ADMINISTRATIVE OPINION THAT YOU HAD NO LEAVE TO YOUR CREDIT BY REASON OF THE PRIOR BREAK IN SERVICE, AND IT MAY BE HELD THAT ONE HOUR'S ANNUAL LEAVE WITH PAY NOW MAY BE SUBSTITUTED FOR THE LEAVE WITHOUT PAY ON JANUARY 3 SO THAT THE CONTINUITY OF YOUR SERVICE FROM DECEMBER 7, 1946, IS PRESERVED. 16 COMP. GEN. 818; 17 ID. 596; 19 ID. 716.

THE RECORD SHOWS THAT YOUR ORIGINAL TEMPORARY APPOINTMENT FOR NOT TO EXCEED 90 DAYS EFFECTIVE DECEMBER 2, 1946, SUBSEQUENTLY WAS EXTENDED FOR TWO 30-DAY PERIODS, OR THROUGH MAY 1, 1947, AT THE END OF WHICH TIME YOU WERE GIVEN A " SECTION 2, REGULATION 8" APPOINTMENT. IN CONNECTION WITH THE LATER CHANGE IN STATUS YOU WERE PAID FOR 60 HOURS' UNUSED ANNUAL LEAVE WHICH YOU HAD BEEN CREDITED TO YOU UNDER YOUR TEMPORARY APPOINTMENTS. YOUR ANNUAL LEAVE CREDITS NOW MAY BE COMPUTED, IN THE LIGHT OF THE HOLDING HEREIN, BY CREDITING YOU WITH 20 HOURS' LEAVE FOR EACH OF THE FOUR MONTHS OF SERVICE COMMENCING DECEMBER 7, 1946, AND ENDING APRIL 6, 1947, OR 80 HOURS--- NO LEAVE BEING CREDITABLE FOR THE FRACTIONAL MONTH FROM APRIL 7 TO MAY 1. FROM THAT 80-HOUR CREDIT MUST BE DEDUCTED THE 60 HOURS FOR WHICH PAYMENT HAS BEEN MADE, AND ONE HOUR'S LEAVE SUBSTITUTED FOR THE 3/4 OF AN HOUR'S LEAVE WITHOUT PAY ON JANUARY 3, 1947, LEAVING A BALANCE OF 19 HOURS OF ACCRUED AND UNUSED LEAVE FOR WHICH YOU HAVE NOT BEEN PAID. ALSO, THE COMPENSATION FOR THE SUBSTITUTED HOUR MUST BE REDUCED BY THE QUARTER OF AN HOUR'S COMPENSATION YOU ALREADY HAVE RECEIVED FOR THAT PERIOD. THUS, YOU NOW ARE ENTITLED TO COMPENSATION FOR 3/4 OF AN HOUR FOR JANUARY 3, 1947, AND FOR 19 HOUR'S ANNUAL LEAVE AT THE RATE RECEIVED UPON EXPIRATION OF YOUR TEMPORARY APPOINTMENT MAY 1, 1947.

WITH RESPECT TO THE CREDITING OF SICK LEAVE, YOUR RIGHT THERETO WOULD BE GOVERNED BY THE SAME RULES AS INDICATED ABOVE. HOWEVER, AS IT APPEARS THAT YOU HAVE BEEN SEPARATED FROM GOVERNMENT SERVICE AND SINCE THERE IS NO AUTHORITY FOR ALLOWING COMPENSATION FOR SICK LEAVE NOT GRANTED WHILE IN AN EMPLOYMENT STATUS, YOUR RIGHT IN THAT PARTICULAR NOW IS MOOT AND NO REVISION OF THE SETTLEMENT IN THAT RESPECT IS REQUIRED.

SETTLEMENT WILL ISSUE IN DUE COURSE FOR THE AMOUNT HEREIN FOUND TO BE DUE YOU.