B-77963, APRIL 14, 1961, 40 COMP. GEN. 579

B-77963: Apr 14, 1961

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CIVILIAN PERSONNEL - LEAVES OF ABSENCE - ANNUAL - LUMP-SUM PAYMENTS - CURRENT LEAVE AT TIME OF PRESIDENTIAL APPOINTMENT - SUBSEQUENT RETIREMENT CURRENT ACCRUED ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF ACCEPTANCE OF A PRESIDENTIAL APPOINTMENT IS NOT SUBJECT TO THE AMOUNT RESTRICTIONS IN THE 1953 AMENDMENTS TO THE LUMP-SUM LEAVE ACT OF DECEMBER 21. WHEN THE OFFICER IS FINALLY SEPARATED FROM THE SERVICE. THE OFFICER UPON RETIREMENT MAY BE PAID FOR ACCRUED AND CURRENT ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF ACCEPTANCE OF THE PRESIDENTIAL APPOINTMENT AT THE SALARY RATE HE WAS RECEIVING ON THE DAY PRIOR TO THE ACCEPTANCE OF THE PRESIDENTIAL APPOINTMENT. THE PAYMENT TO BE COMPUTED OVER THE PERIOD SUCH LEAVE WOULD HAVE CARRIED HIM IF HE HAD BEEN PERMITTED TO USE THE LEAVE IN KIND FROM THE DATE OF RETIREMENT.

B-77963, APRIL 14, 1961, 40 COMP. GEN. 579

CIVILIAN PERSONNEL - LEAVES OF ABSENCE - ANNUAL - LUMP-SUM PAYMENTS - CURRENT LEAVE AT TIME OF PRESIDENTIAL APPOINTMENT - SUBSEQUENT RETIREMENT CURRENT ACCRUED ANNUAL LEAVE TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF ACCEPTANCE OF A PRESIDENTIAL APPOINTMENT IS NOT SUBJECT TO THE AMOUNT RESTRICTIONS IN THE 1953 AMENDMENTS TO THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 5 U.S.C. 61B, WHEN THE OFFICER IS FINALLY SEPARATED FROM THE SERVICE; THEREFORE, THE OFFICER UPON RETIREMENT MAY BE PAID FOR ACCRUED AND CURRENT ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF ACCEPTANCE OF THE PRESIDENTIAL APPOINTMENT AT THE SALARY RATE HE WAS RECEIVING ON THE DAY PRIOR TO THE ACCEPTANCE OF THE PRESIDENTIAL APPOINTMENT, THE PAYMENT TO BE COMPUTED OVER THE PERIOD SUCH LEAVE WOULD HAVE CARRIED HIM IF HE HAD BEEN PERMITTED TO USE THE LEAVE IN KIND FROM THE DATE OF RETIREMENT.

TO THOMAS F. CASHELL, FEDERAL POWER COMMISSION, APRIL 14, 1961:

YOUR LETTER OF APRIL 7, 1961, TRANSMITS A VOUCHER IN FAVOR OF MR. PAUL A. SWEENEY, FOR PAYMENT OF ANNUAL LEAVE ACCRUED TO HIS CREDIT AT THE TIME HE LEFT A POSITION IN THE DEPARTMENT OF JUSTICE (SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED) TO ACCEPT AN APPOINTMENT AS A COMMISSIONER OF THE FEDERAL POWER COMMISSION (EXEMPTED FROM THE LEAVE ACT) WITHOUT A BREAK IN SERVICE. YOU SAY THAT MR. SWEENEY WILL TERMINATE HIS SERVICE WITH THE FEDERAL POWER COMMISSION ON APRIL 15, 1961.

YOU INDICATE THAT AT THE TIME OF MR. SWEENEY'S ENTRANCE ON DUTY AS A FEDERAL POWER COMMISSIONER ON JULY 15, 1960, HE HAD 720 HOURS OF ANNUAL LEAVE AS OF THE BEGINNING OF THE LEAVE YEAR 1960 PLUS 64 HOURS OF ANNUAL LEAVE EARNED OVER THE THEN CURRENT LEAVE YEAR UP TO JULY 15, 1960. AS NO BREAK IN SERVICE OCCURRED BETWEEN MR. SWEENEY'S EMPLOYMENT IN THE DEPARTMENT OF JUSTICE AND HIS ENTRANCE ON DUTY AS A FEDERAL POWER COMMISSIONER HE COULD NOT THEN BE PAID FOR HIS ANNUAL LEAVE, SUCH LEAVE HAVING BEEN TRANSFERRED TO HIS CREDIT IN THE FEDERAL POWER COMMISSION TO BE HELD PENDING FINAL SEPARATION FROM THE SERVICE OR FOR TRANSFER WITH HIM IN THE EVENT HE AGAIN WAS REEMPLOYED IN A POSITION SUBJECT TO THE 1951 LEAVE ACT. B-127589, APRIL 27, 1956; 40 COMP. GEN. 164. YOU DESIRE TO KNOW WHETHER THE THEN CURRENTLY ACCRUED 64 HOURS OF ANNUAL LEAVE MAY BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT TO MR. SWEENEY UNDER THE PROVISIONS OF SECTION 2 (A) OF THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 5 U.S.C. 2061A, AND THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B.

SECTION 2 (A) OF THE ACT OF JULY 2, 1953, 67 STAT. 136, 137 (5 U.S.C. 2061A) IS AS FOLLOWS:

THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ANY OFFICER EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951 AS A RESULT OF THE ENACTMENT OF THIS ACT IS ENTITLED IMMEDIATELY PRIOR TO THE DATE THIS ACT BECOMES APPLICABLE TO HIM SHALL BE LIQUIDATED BY A LUMP-SUM PAYMENT IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944 (5 U.S.C. 61B 61E) OR THE ACT OF AUGUST 3, 1950 (5 U.S.C. 61F-61K), EXCEPT THAT PAYMENT UNDER EITHER SUCH ACT (1) SHALL BE BASED UPON THE RATE OF COMPENSATION WHICH HE WAS RECEIVING IMMEDIATELY PRIOR TO THE DATE ON WHICH THIS ACT BECAME APPLICABLE TO HIM, AND (2) SHALL BE MADE WITHOUT REGARD TO LIMITATIONS IMPOSED BY THE AMENDMENTS MADE BY SECTIONS 4 AND 5 OF THIS ACT WITH RESPECT TO THE AMOUNTS OF LEAVE COMPENSABLE UNDER SUCH ACTS.

SECTION 4 OF THE ACT OF JULY 2, 1953 (SECTION 5 NOT BEING APPLICABLE HERE), AMENDED THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, TO RESTRICT PAYMENT FOR ANNUAL LEAVE UPON THE SEPARATION FROM THE SERVICE OF AN OFFICER OR EMPLOYEE TO NOT IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER.

IT IS EVIDENT FROM THE PROVISIONS OF SECTION 2 (A) OF THE ACT OF JULY 2, 1953, QUOTED ABOVE, THAT THE RESTRICTIONS IN THE 1953 AMENDMENTS ON THE AMOUNT OF ANNUAL LEAVE WHICH MAY BE PAID FOR IN A LUMP SUM ARE NOT APPLICABLE TO THE ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH AN OFFICER OR EMPLOYEE IS ENTITLED AT THE TIME HE ACCEPTS A POSITION EXEMPTED FROM THE ANNUAL AND SICK LEAVE ACT OF 1951, BY SECTION 202 (C), 5 U.S.C. 2062 (C), OF THE ACT.

SINCE MR. SWEENEY HAD 720 HOURS OF ANNUAL LEAVE AT THE BEGINNING OF THE LEAVE YEAR 1960, AND HAD ACCRUED 64 HOURS OF ANNUAL LEAVE AT THE TIME OF HIS ACCEPTANCE OF THE APPOINTMENT AS A FEDERAL POWER COMMISSIONER HE WOULD BE ENTITLED TO A LUMP-SUM PAYMENT FOR 784 HOURS OF ANNUAL LEAVE UPON HIS SEPARATION FROM THE SERVICE, BASED ON THE SALARY RATE HE WAS RECEIVING IN THE DEPARTMENT OF JUSTICE ON JULY 14, 1960, ($16,790 PER ANNUM). SUCH PAYMENT IS FOR COMPUTATION OVER THE PERIOD LEAVE WOULD HAVE CARRIED HIM IF PERMITTED TO USE THE LEAVE IN KIND FROM THE DATE OF HIS RETIREMENT AS A FEDERAL POWER COMMISSIONER. THE VOUCHER COVERING THE PROPOSED PAYMENT APPEARS TO HAVE BEEN COMPUTED ON THAT BASIS; HENCE IT MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER, WHEN MR. SWEENEY IS SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS APRIL 15, 1951. THE VOUCHER IS RETURNED HEREWITH.