B-87361, AUGUST 16, 1949, 29 COMP. GEN. 76

B-87361: Aug 16, 1949

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IT IS DETERMINED BY AN EXAMINATION OF THE LEAVE RECORD THAT A PERIOD OF ADVANCED ANNUAL LEAVE GRANTED WITHIN THE WAITING PERIOD. DID NOT EXCEED THE TOTAL OF 22 WORKDAYS IN A LEAVE WITHOUT PAY STATUS WHICH IS AUTHORIZED TO BE COUNTED FOR WITHIN- GRADE ADVANCEMENT PURPOSES. THE EFFECTIVE DATE OF SUCH ADVANCEMENT SHOULD BE POSTPONED UNTIL IT IS ESTABLISHED THAT THE SERVICE REQUIREMENTS HAVE BEEN MET. WOULD EXCEED THE TOTAL OF 22 WORKDAYS IN A LEAVE WITHOUT PAY STATUS WHICH IS AUTHORIZED TO BE COUNTED FOR WITHIN-GRADE ADVANCEMENT PURPOSES. IT IS DETERMINED THAT. THE EMPLOYEE WAS ENTITLED TO THE ADVANCEMENT AT A DATE EARLIER THAN THE DATE ON WHICH IT HAD BEEN MADE EFFECTIVE. WHEREIN REFERENCE IS MADE TO A NOTICE OF EXCEPTION STATED AGAINST AN AUTHORIZED CERTIFYING OFFICER OF THE BUREAU OF THE PUBLIC DEBT.

B-87361, AUGUST 16, 1949, 29 COMP. GEN. 76

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENTS - CREDIT FOR NON-PAY STATUS WHERE, ON THE EXPIRATION OF THE 12- OR 18-MONTH WAITING PERIOD FROM THE DATE OF AN EMPLOYEE'S LAST EQUIVALENT INCREASE IN SALARY, IT IS DETERMINED BY AN EXAMINATION OF THE LEAVE RECORD THAT A PERIOD OF ADVANCED ANNUAL LEAVE GRANTED WITHIN THE WAITING PERIOD, WHEN ADDED TO LEAVE WITHOUT PAY GRANTED WITHIN SUCH PERIOD, DID NOT EXCEED THE TOTAL OF 22 WORKDAYS IN A LEAVE WITHOUT PAY STATUS WHICH IS AUTHORIZED TO BE COUNTED FOR WITHIN- GRADE ADVANCEMENT PURPOSES, A WITHIN-GRADE ADVANCEMENT MAY BE GRANTED WITHOUT DELAY; HOWEVER, IF THE POSSIBLE LEAVE WITHOUT PAY AT THE DATE AN EMPLOYEE WOULD OTHERWISE BE ELIGIBLE FOR ADVANCEMENT WOULD EXCEED THE 22- DAY ALLOWABLE PERIOD, THE EFFECTIVE DATE OF SUCH ADVANCEMENT SHOULD BE POSTPONED UNTIL IT IS ESTABLISHED THAT THE SERVICE REQUIREMENTS HAVE BEEN MET. WHERE, AFTER POSTPONEMENT OF THE EFFECTIVE DATE OF A WITHIN-GRADE ADVANCEMENT BECAUSE THE PERIOD OF ADVANCED ANNUAL LEAVE, WHEN ADDED TO LEAVE WITHOUT PAY GRANTED WITHIN THE WAITING PERIOD, WOULD EXCEED THE TOTAL OF 22 WORKDAYS IN A LEAVE WITHOUT PAY STATUS WHICH IS AUTHORIZED TO BE COUNTED FOR WITHIN-GRADE ADVANCEMENT PURPOSES, IT IS DETERMINED THAT, AS A RESULT OF THE ADVANCED ANNUAL LEAVE SUBSEQUENTLY HAVING BEEN EARNED, THE EMPLOYEE WAS ENTITLED TO THE ADVANCEMENT AT A DATE EARLIER THAN THE DATE ON WHICH IT HAD BEEN MADE EFFECTIVE, AND ADJUSTMENT IN SALARY MAY BE MADE RETROACTIVE TO THE DATE THE EMPLOYEE MET ALL THE REQUIREMENTS FOR ADVANCEMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, AUGUST 16, 1949:

THERE HAS BEEN CONSIDERED THE LETTER OF THE ACTING SECRETARY OF THE TREASURY, DATED JUNE 21, 1949, WHEREIN REFERENCE IS MADE TO A NOTICE OF EXCEPTION STATED AGAINST AN AUTHORIZED CERTIFYING OFFICER OF THE BUREAU OF THE PUBLIC DEBT, TREASURY DEPARTMENT, FOR THE REASON THAT THE WITHIN GRADE SALARY ADVANCEMENT OF AN EMPLOYEE OF THE BUREAU WAS GRANTED PREMATURELY.

THE FACTS IN THE CASE AS SET FORTH IN THE LETTER OF JUNE 21, 1949, AND IN THE DRAFT OF NOTICE OF EXCEPTION ARE THAT THE EMPLOYEE, IN GRADE CAF-5, HAD RECEIVED AN INCREASE IN SALARY EQUIVALENT TO A FULL SALARY STEP IN HIS GRADE EFFECTIVE JULY 13, 1947; THAT THE EMPLOYEE HAD BEEN ADVANCED ANNUAL LEAVE OF 15 DAYS 4 HOURS STARTING AS OF 4 HOURS ON MAY 20, 1948; THAT HE HAD BEEN PLACED ON LEAVE WITHOUT PAY ON JUNE 13, 1948, AND REMAINED IN A NON-PAY STATUS UNTIL FEBRUARY 14, 1949; THAT THE EMPLOYEE HAD BEEN GIVEN A WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE JULY 25, 1948, THE BEGINNING OF THE FIRST PAY PERIOD AFTER THE COMPLETION OF 12 MONTHS FROM JULY 13, 1947; AND THAT THE ADVANCED LEAVE SUBSEQUENTLY WAS NOT EARNED AND APPROPRIATE REFUND THEREFOR WAS MADE BY THE EMPLOYEE.

THE REFERRED-TO EXCEPTION TO THE PAYMENT COMMENCING FEBRUARY 14, 1949--- THE DATE THE EMPLOYEE RETURNED TO DUTY--- OF THE WITHIN-GRADE PROMOTION GRANTED EFFECTIVE JULY 25, 1948, WAS BASED UPON THE FACT THAT THE ADVANCED ANNUAL LEAVE FOR WHICH REFUND WAS MADE IS CONSIDERED AS LEAVE WITHOUT PAY AND WHEN ADDED TO THE PERIOD OF LEAVE WITHOUT PAY ON AND AFTER JUNE 13, 1948, EXCEEDS THE TOTAL OF 22 WORKDAYS IN A LEAVE WITHOUT PAY STATUS WHICH ARE AUTHORIZED BY THE REGULATIONS (5 C.F.R.--- 1947 SUPP. 25.231) TO BE CREDITED IN COMPUTING THE PERIODS OF SERVICE REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS AS AUTHORIZED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, 299, AS AMENDED.

IT APPEARS TO BE RECOGNIZED IN THE SAID LETTER OF JUNE 21, 1949, THAT, IF IN ADDITION TO THE REFUND OF THE SALARY PAID FOR THE PERIOD OF ADVANCED BUT UNEARNED ANNUAL LEAVE, IT IS REQUIRED THAT SUCH PERIOD BE RECORDED AS LEAVE WITHOUT PAY, THE WITHIN-GRADE SALARY ADVANCEMENT OF THE EMPLOYEE IN THE PRESENT CASE MAY NOT BE MADE EFFECTIVE UNTIL MARCH 20, 1949, AS STATED IN THE DRAFT OF THE NOTICE OF EXCEPTION. HOWEVER, THE VIEW IS EXPRESSED THAT SUCH ACTION IS NOT REQUIRED BY THE LEAVE LAWS AND REGULATIONS, AND DECISION IS REQUESTED AS TO THREE QUESTIONS:

1. WHEN AN EMPLOYEE IN AN ADVANCED ANNUAL LEAVE STATUS HAS MET ALL CONDITIONS FOR A WITHIN-GRADE SALARY PROMOTION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, MUST GRANTING OF THE PROMOTION BE DELAYED UNTIL SUCH TIME AS THE EFFECT, IF ANY, OF THE ADVANCED LEAVE ON THE WAITING PERIOD FOR THE PROMOTION HAS BEEN DETERMINED?

2. WHEN AN EMPLOYEE IN AN ADVANCED ANNUAL LEAVE STATUS HAS MET ALL CONDITIONS FOR A WITHIN-GRADE SALARY PROMOTION UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, BUT IS ON EXTENDED LEAVE WITHOUT PAY AT THE END OF THE WAITING PERIOD FOR THE PROMOTION, SHOULD GRANTING OF THE PROMOTION BE DELAYED UNTIL SUCH TIME AS THE EFFECT, IF ANY, OF THE ADVANCED LEAVE AND LEAVE WITHOUT PAY ON THE WAITING PERIOD HAS BEEN DETERMINED?

3. IF THE ANSWER TO EITHER, OR BOTH, OF THE ABOVE QUESTIONS IS IN THE AFFIRMATIVE, WILL WE BE REQUIRED TO ADJUST LEAVE RECORDS TO SHOW THAT ABSENCES ON ACCOUNT OF LEAVE WITHOUT PAY?

WITH REFERENCE TO QUESTIONS 1 AND 2, IT IS NOT PERCEIVED HOW A SITUATION COULD ARISE IN WHICH, ON THE DATE OF EXPIRATION OF THE 12- OR 18-MONTH PERIOD FROM THE DATE OF LAST EQUIVALENT INCREASE IN SALARY, IT COULD NOT BE DETERMINED BY AN EXAMINATION OF THE LEAVE RECORD, WHETHER OR NOT UNDER ANY CIRCUMSTANCES THE TOTAL AMOUNT OF LEAVE WITHOUT PAY COULD EXCEED THE 22 DAYS AUTHORIZED TO BE CREDITED BY THE REGULATIONS. IN OTHER WORDS, IF THE PERIOD OF ADVANCED ANNUAL LEAVE WITHIN A STATUTORY WAITING PERIOD ADDED TO LEAVE WITHOUT PAY GRANTED WITHIN SUCH PERIOD DID NOT EXCEED 22 WORKDAYS, THE REQUIRED WAITING PERIOD WOULD HAVE EXPIRED AND ALL OTHER REQUIREMENTS HAVING BEEN MET, THE PROMOTION NEED NOT BE DELAYED. ON THE OTHER HAND, IF THE POSSIBLE LEAVE WITHOUT PAY AT THE DATE AN EMPLOYEE WOULD OTHERWISE BE ELIGIBLE FOR A WITHIN GRADE ADVANCEMENT WOULD EXCEED 22 DAYS WITHIN THE PRESCRIBED 12 OR 18 MONTHS, THE EFFECTIVE DATE OF SUCH ADVANCEMENT SHOULD BE POSTPONED UNTIL IT IS ESTABLISHED THAT THE STATUTORY SERVICE REQUIREMENTS HAVE BEEN MET.

THE RETROACTIVE CORRECTION OF ADMINISTRATIVE ACTION TO GRANT A WITHIN- GRADE SALARY ADVANCEMENT EFFECTIVE ON THE DATE ON WHICH AN EMPLOYEE HAS MET ALL THE REQUIREMENTS FOR SUCH ADVANCEMENT WAS SANCTIONED IN 21 COMP. GEN. 369. HENCE, AN ADJUSTMENT IN SALARY MAY BE MADE WHENEVER, AFTER POSTPONEMENT OF THE EFFECTIVE DATE OF A WITHIN GRADE PROMOTION AS SET FORTH IN THE PRECEDING PARAGRAPH, IT IS DETERMINED THAT, AS A RESULT OF THE ADVANCED ANNUAL LEAVE SUBSEQUENTLY HAVING BEEN EARNED, THE EMPLOYEE WAS ENTITLED TO THE PROMOTION AT A DATE EARLIER THAN THE DATE ON WHICH IT HAD BEEN MADE EFFECTIVE. ACCORDINGLY, QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION 3, IT HAS BEEN HELD THAT THE KEEPING OF RECORDS OF EMPLOYEES' ACCRUED ANNUAL AND SICK LEAVE IS AN ADMINISTRATIVE DUTY AND RESPONSIBILITY. 22 COMP. GEN. 348. HOWEVER, INASMUCH AS THE REFUND BY AN EMPLOYEE OF THE VALUE OF UNEARNED ADVANCED LEAVE CAN HAVE NO EFFECT OTHER THAN TO PLACE THE EMPLOYEE IN A LEAVE WITHOUT PAY STATUS ON THE DAYS IN QUESTION, WHICH STATUS MAY AFFECT THE EXPENDITURE OF PUBLIC FUNDS, A PROPER REGARD FOR THE INTERESTS OF THE UNITED STATES APPEARS TO REQUIRE THE CORRECTION OF THE LEAVE RECORDS IN SUCH CASES TO BRING THE RECORDS INTO AGREEMENT WITH THE FACTS.

IN VIEW OF THE FOREGOING, THE AUDIT ACTION EVIDENCED BY THE NOTICE OF EXCEPTION WAS CORRECT AND IS SUSTAINED. THE SAID NOTICE IS RETURNED HEREWITH IN ORDER THAT THE NECESSARY COLLECTION ACTION MAY BE TAKEN.