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B-130906, JULY 25, 1957, 37 COMP. GEN. 55

B-130906 Jul 25, 1957
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FROM SERVICE - INVOLUNTARY ANNUAL LEAVE DURING NOTICE PERIOD - LUMP-SUM LEAVE PAYMENT A VETERAN PREFERENCE ELIGIBLE WHO WAS IN BOTH A VOLUNTARY AND AN INVOLUNTARY ANNUAL LEAVE STATUS DURING A THIRTY-DAY ADVANCE NOTICE PERIOD PRIOR TO SEPARATION FROM SERVICE MAY HAVE ONLY THE INVOLUNTARY LEAVE REGARDED AS A PREMATURE DISCHARGE AND IS ENTITLED TO RECREDIT AND PAYMENT IN A LUMP SUM FOR SUCH INVOLUNTARY LEAVE TO THE EXTENT THAT THE PAYMENT IS NOT IN EXCESS OF THE EMPLOYEE'S LEAVE CEILING. A VETERAN ELIGIBLE EMPLOYEE WHO WAS REQUIRED TO TAKE INVOLUNTARY ANNUAL LEAVE DURING A THIRTY-DAY ADVANCE NOTICE PERIOD PRIOR TO SEPARATION FROM SERVICE MAY NOT RECEIVE COMPENSATION AGAIN FOR THE ACTUAL TIME COVERED BY THE ENFORCED LEAVE BUT MAY BE RECREDITED WITH THE LEAVE AND RECEIVE A LUMP -SUM LEAVE PAYMENT THEREFOR.

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B-130906, JULY 25, 1957, 37 COMP. GEN. 55

OFFICERS AND EMPLOYEES - REMOVALS, SUSPENSIONS, ETC., FROM SERVICE - INVOLUNTARY ANNUAL LEAVE DURING NOTICE PERIOD - LUMP-SUM LEAVE PAYMENT A VETERAN PREFERENCE ELIGIBLE WHO WAS IN BOTH A VOLUNTARY AND AN INVOLUNTARY ANNUAL LEAVE STATUS DURING A THIRTY-DAY ADVANCE NOTICE PERIOD PRIOR TO SEPARATION FROM SERVICE MAY HAVE ONLY THE INVOLUNTARY LEAVE REGARDED AS A PREMATURE DISCHARGE AND IS ENTITLED TO RECREDIT AND PAYMENT IN A LUMP SUM FOR SUCH INVOLUNTARY LEAVE TO THE EXTENT THAT THE PAYMENT IS NOT IN EXCESS OF THE EMPLOYEE'S LEAVE CEILING. A VETERAN ELIGIBLE EMPLOYEE WHO WAS REQUIRED TO TAKE INVOLUNTARY ANNUAL LEAVE DURING A THIRTY-DAY ADVANCE NOTICE PERIOD PRIOR TO SEPARATION FROM SERVICE MAY NOT RECEIVE COMPENSATION AGAIN FOR THE ACTUAL TIME COVERED BY THE ENFORCED LEAVE BUT MAY BE RECREDITED WITH THE LEAVE AND RECEIVE A LUMP -SUM LEAVE PAYMENT THEREFOR. THE PAYMENT OF A LUMP SUM FOR INVOLUNTARY ANNUAL LEAVE A VETERAN ELIGIBLE WAS REQUIRED TO TAKE DURING A THIRTY-DAY ADVANCE NOTICE PERIOD PRIOR TO SEPARATION IS REGARDED AS PAYMENT OF "SALARY" WITHIN THE PURVIEW OF TAYLOR V. UNITED STATES, 131 COURT OF CLAIMS 387, CONCERNING ENFORCED LEAVE.

TO JOSEPH F. O-BRIEN, JULY 25, 1957:

ON JUNE 3, 1957, YOU ASKED US TO RECONSIDER OUR SETTLEMENT OF APRIL 25, 1957, WHICH ALLOWED YOU $352.31 AS ADDITIONAL LUMP-SUM PAYMENT FOR ANNUAL LEAVE ACCRUED BY YOU AS A FORMER EMPLOYEE OF THE DEPARTMENT OF JUSTICE. YOU BELIEVE THAT YOU ARE ENTITLED TO FURTHER PAYMENT.

ON SEPTEMBER 8, 1953, WHILE ON VOLUNTARY ANNUAL LEAVE WHICH COVERED THE AUGUST 28 TO SEPTEMBER 14 PERIOD, YOU RECEIVED NOTICE AS A PREFERENCE ELIGIBLE OF THE ADMINISTRATIVE INTENTION TO SEPARATE YOU FROM THE SERVICE. YOU RETURNED TO DUTY ON SEPTEMBER 14 BUT WERE PLACED ON INVOLUNTARY ANNUAL LEAVE FROM SEPTEMBER 23 THROUGH OCTOBER 15. YOU SAY, HOWEVER, THAT YOU ACTUALLY REPORTED FOR DUTY ON OCTOBER 8, 9, 12 AND 13. ON OCTOBER 16, 1953, YOU WENT ON SICK LEAVE AND WERE CONTINUED IN THAT STATUS UNTIL JANUARY 28, 1954, WHEN YOU WERE SEPARATED. YOU HAD 261 HOURS OF ACCRUED ANNUAL LEAVE TO YOUR CREDIT AT THE CLOSE OF THE 1952 LEAVE YEAR. YOU ACCRUED 216 HOURS OF ANNUAL LEAVE DURING THE 1953 LEAVE YEAR AND THE ADMINISTRATIVE RECORDS SHOW THAT YOU WERE CHARGED WITH 296 HOURS OF ANNUAL LEAVE DURING 1953, LEAVING A BALANCE OF 181 HOURS OF ANNUAL LEAVE TO YOUR CREDIT AT THE BEGINNING OF THE 1954 LEAVE YEAR. YOU WERE PAID A LUMP SUM FOR THIS ON SEPARATION.

IN TAYLOR V. UNITED STATES, 131 C.1CLS. 387, INVOLVING A REMOVAL UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT, 5 U.S.C. 863, THE EMPLOYEE WAS INVOLUNTARILY PLACED ON ANNUAL LEAVE DURING THE 30-DAY NOTICE PERIOD. THE COURT FOUND THE PROCEDURAL REQUIREMENTS OF SECTION 14 TO HAVE BEEN COMPLIED WITH BUT FOR THE PLACING OF THE EMPLOYEE ON LEAVE. IT HELD THE EMPLOYEE TO BE ENTITLED TO RECOVER SALARY FOR THE NOTICE PERIOD. REACHING SUCH CONCLUSION THE COURT STATED---

ALL PROCEDURAL REQUIREMENTS WERE COMPLIED WITH EXCEPT THAT PLAINTIFF WAS DEPRIVED OF HIS PAY DURING THE TIME HE WAS PLACED ON ANNUAL LEAVE. THIS PERIOD WAS CHARGED AGAINST HIS ACCRUED ANNUAL LEAVE, TO WHICH PLAINTIFF WAS ENTITLED AS OF RIGHT; THUS HE HAS BEEN DEPRIVED OF HIS PAY FOR THIS 30 DAY PERIOD. THIS WAS DONE PURSUANT TO THE PROVISIONS OF THE CIVIL SERVICE REGULATIONS (5 CFR 22.2 (C) 1949 ED.).

HOWEVER, THERE IS NOTHING IN THE STATUTE WHICH PERMITS THIS ENFORCED LEAVE TO BE CHARGED AGAINST AN EMPLOYEE'S ANNUAL LEAVE. THE ACT SAYS THAT "NO PERMANENT OR INDEFINITE PREFERENCE ELIGIBLE * * * SHALL BE DISCHARGED * * * AND THE PERSON WHOSE DISCHARGE * * * IS SOUGHT SHALL HAVE AT LEAST 30 DAYS' ADVANCE WRITTEN NOTICE.' THIS MEANS, WE THINK, THAT HE SHALL HAVE 30 DAYS' NOTICE IN ADVANCE OF HIS DISCHARGE, WHICH MEANS IN ADVANCE OF HIS BEING SEPARATED FROM THE PAYROLL. THE REGULATION OF THE CIVIL SERVICE COMMISSION QUOTED ABOVE WOULD DEPRIVE THE PREFERENCE ELIGIBLE OF THIS RIGHT. IT WOULD PERMIT HIS SEPARATION FROM THE PAYROLL EO INSTANTI. THIS IS IN CONFLICT WITH THE ACT AND IS,THEREFORE, INVALID.

IT IS APPARENT FROM THE FOREGOING THAT WHERE AN EMPLOYEE IS PLACED ON INVOLUNTARY ANNUAL LEAVE DURING THE 30-DAY NOTICE PERIOD THE COURT VIEWS SUCH ADMINISTRATIVE ACTION AS TANTAMOUNT TO REMOVAL AND, THUS, ENFORCED LEAVE DURING THE 30-DAY NOTICE PERIOD CONSTITUTES A PREMATURE DISCHARGE UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT. THE COURT'S VIEW OF INVOLUNTARY LEAVE HAS BEEN REAFFIRMED IN KENNY V. UNITED STATES, 134 C.1CLS. 442 AND ARMAND V. UNITED STATES, 136 C.1CLS. 339. HOWEVER, SUCH VIEW DOES NOT INCLUDE SITUATIONS WHERE THE EMPLOYEE IS ON VOLUNTARY ANNUAL LEAVE DURING ALL OR ANY PART OF THE 30 DAY NOTICE PERIOD. THE ENTIRE REASONING OF THE COURT IN THE TAYLOR CASE, BASED AS IT IS ON THE IDEA OF THE LEAVE BEING "ENFORCED" NEGATES ANY SUCH CONCLUSION. CONSEQUENTLY, EVEN THOUGH 4 DAYS OF VOLUNTARY ANNUAL LEAVE OCCURRED DURING THE 30-DAY NOTICE PERIOD ( SEPTEMBER 8, 9, 10, AND 11), SUCH DAYS ARE NOT FOR CONSIDERATION UNDER THE DOCTRINE OF THE TAYLOR CASE EITHER FOR RECREDITING OR FOR EXTENDING THE NOTICE PERIOD. FURTHERMORE, SINCE THE WRONG REMEDIED IN THE TAYLOR CASE WAS THE CHARGING FOR "ENFORCED LEAVE * * * AGAINST AN EMPLOYEE'S ANNUAL LEAVE," WE VIEW SUCH CASE AS REQUIRING THAT THE EMPLOYEE BE RECREDITED WITH THE LEAVE SO CHARGED AND PAYMENT THEREFOR MADE AS A LUMP SUM ON SEPARATION RATHER THAN REQUIRING THAT THE EMPLOYEE WHO HAS ALREADY BEEN COMPENSATED FOR THE ACTUAL TIME COVERED BY THE ENFORCED LEAVE BE COMPENSATED AGAIN FOR THE SAME PERIOD OF TIME. CONSEQUENTLY, WE VIEW THE PAYMENT OF "SALARY" AS CONTEMPLATED BY THE COURT AS PAYMENT FOR RECREDITED ANNUAL LEAVE. SUPPORT FOR THIS VIEW IS PROVIDED BY THE COURT IN THE KENNY CASE AS FOLLOWS:

THE VETERANS ADMINISTRATION, HOWEVER, VIOLATED PLAINTIFF'S RIGHTS, IN THAT THEY DEDUCTED FROM THE ANNUAL LEAVE TO WHICH HE WAS ENTITLED UPON SEPARATION THE THIRTY DAYS ELAPSING BETWEEN THE TIME HE WAS GIVEN NOTICE OF THE INTENTION TO DISCHARGE HIM AND THE DATE OF HIS ACTUAL DISCHARGE. IN TAYLOR V. UNITED STATES, 131 C.1CLS. 387, WE HELD THIS WAS IMPROPER. ( ITALICS SUPPLIED.)

THUS WE CONCLUDE THAT YOUR LEAVE ACCOUNT SHOULD BE RECREDITED WITH THE 11 DAYS ( SEPTEMBER 23, 24, 25, 28, 29, 30, OCTOBER 1, 2, 5, 6, AND 7) OF INVOLUNTARY ANNUAL LEAVE CHARGED THERETO DURING THE 30-DAY NOTICE PERIOD. ON SUCH BASIS YOU HAD 269 HOURS OF ACCRUED ANNUAL LEAVE TO YOUR CREDIT AT THE CLOSE OF THE 1953 LEAVE YEAR, 261 HOURS OF WHICH YOU WERE ENTITLED TO HAVE CARRIED OVER TO THE 1954 LEAVE YEAR. 5 U.S.C. 2066 (A).

UNDER 5 U.S.C. 61B, LUMP-SUM PAYMENTS FOR ACCRUED LEAVE IN SEPARATIONS AFTER AUGUST 31, 1953, ARE LIMITED TO 30 DAYS OR THE ACCUMULATION BROUGHT FORWARD AT THE BEGINNING OF THE YEAR, WHICHEVER IS GREATER. AS YOU ALREADY HAD RECEIVED LUMP-SUM PAYMENT OF 181 HOURS, YOU COULD BE PAID ONLY FOR 80 ADDITIONAL HOURS BECAUSE A GREATER PAYMENT WOULD BE IN EXCESS OF YOUR LEAVE CEILING OF 261 HOURS. SEE GENERALLY 35 COMP. GEN. 520. THIS CONNECTION WE SHOULD LIKE TO POINT OUT THAT EVEN IF YOU WERE RECREDITED WITH THE LEAVE CHARGED FOR OCTOBER 8, 9, 12, AND 13, THE FOREGOING PROVISION OF LAW WOULD PRECLUDE ANY FURTHER LUMP-SUM PAYMENT BEING MADE ON THAT ACCOUNT.

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