B-152581, MAR. 10, 1967

B-152581, MAR. 10, 1967

TO MISS ANN D. FECHUNDA:

YOUR LETTER OF FEBRUARY 23, 1967, ASKS FURTHER CONSIDERATION OF OUR DECISION OF OCTOBER 8, 1963, B-152581, WHICH SUSTAINED OUR OFFICE DISALLOWANCE OF YOUR CLAIM FOR AN ANNUAL LEAVE CREDIT INCIDENT TO YOUR TEMPORARY EMPLOYMENT FOR 89 DAYS WITH THE DEPARTMENT OF THE NAVY.

YOUR REQUEST FOR REVIEW OF OUR DECISION IS UNDERSTOOD TO BE BASED UPON WHAT YOU APPEAR TO BELIEVE IS A VIOLATION OF THE FEDERAL PERSONNEL MANUAL, SUPPLEMENT 990-2, BOOK 630-16, S3. THAT SECTION, IN PERTINENT PART, PROVIDES:

"/B) AN EMPLOYEE DOES NOT BEGIN ANOTHER 90-DAY QUALIFYING PERIOD SOLELY BECAUSE:

"/1) NONWORKDAYS, INCLUDING LEAVE WITHOUT PAY, OCCUR DURING THE 90 DAY PERIOD.

"/C) WHEN AN EMPLOYEE COMPLETES THE 90-DAY QUALIFYING PERIOD, HE IS ENTITLED TO CREDIT FOR THE ANNUAL LEAVE EARNED DURING THAT PERIOD.'

SECTION 203 OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED, NOW 5 U.S.C. 6303 (B), READS AS FOLLOWS:

"NOTWITHSTANDING SUBSECTION (A) OF THIS SECTION, AN EMPLOYEE IS ENTITLED TO ANNUAL LEAVE UNDER THIS SUBCHAPTER ONLY AFTER BEING CURRENTLY EMPLOYED FOR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE. AFTER COMPLETING THE 90-DAY PERIOD, THE EMPLOYEE IS ENTITLED TO BE CREDITED WITH THE LEAVE THAT WOULD HAVE ACCRUED TO HIM UNDER SUBSECTION (A) OF THIS SECTION EXCEPT FOR THIS SUBSECTION.'

IN OUR DECISION 31 COMP. GEN. 215, WE RULED, QUOTING FROM THE SYLLABUS (SEVENTH PARAGRAPH) AS FOLLOWS:

"UNDER SECTION 203 (I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PROVIDING THAT AN EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE "ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS * * * WITHOUT BREAK IN SERVICE," ANY SEPARATION OF ONE OR MORE WORKDAYS IS TO BE REGARDED AS A BREAKING OF THE NINETY DAY QUALIFYING PERIOD; HOWEVER, LEAVE OF ABSENCE WITHOUT PAY DOES NOT CONSTITUTE A BREAK IN SERVICE DURING THE QUALIFYING PERIOD OR AT ANY OTHER TIME.'

IN THE BODY OF THE DECISION AT PAGE 222, IN OUR DISCUSSION OF QUESTION 6C FROM WHICH THE ABOVE-QUOTED SYLLABUS IS DERIVED, WE SAID:

"* * * IT PREVIOUSLY HAS BEEN INDICATED IN THE ANSWER TO QUESTION 6A THAT THE 90-DAY QUALIFYING PERIOD REFERS TO EMPLOYMENT AND NOT ACTUAL SERVICE; ALSO, THAT A "BREAK IN SERVICE" MEANS A SEPARATION FROM THE ROLLS FOR ONE OR MORE WORKDAYS. ACCORDINGLY, YOUR ASSUMPTION THAT LEAVE WITHOUT PAY WOULD NOT BE A "BREAK IN SERVICE" EITHER DURING THE QUALIFYING 90-DAY PERIOD OR AT ANY OTHER TIME IS CORRECT.'

THUS THE BASIC QUESTION IN YOUR CASE IS WHETHER YOU WERE "EMPLOYED" OR ON THE ROLLS FOR A 90-DAY PERIOD.

THE STANDARD FORM 50 ON FILE WHICH EVIDENCES YOUR TEMPORARY APPOINTMENT READS: "TEMPORARY APPOINTMENT NTE 01-05-63, EFFECTIVE 10 08-62.' THE ABBREVIATION "NTE" CONNOTES THE LANGUAGE "NOT TO EXCEED.' THUS YOUR APPOINTMENT WAS NOT NECESSARILY FOR 90 DAYS BUT COULD BE TERMINATED AT AN EARLIER DATE AT THE WILL OF THE DEPARTMENT OF THE NAVY.

ACCORDING TO OUR RECORDS A STANDARD FORM 50, EXECUTED DECEMBER 13, 1963, TERMINATED YOUR TEMPORARY APPOINTMENT EFFECTIVE 01-04-63, OR AFTER THE COMPLETION OF ONLY 89 DAYS OF EMPLOYMENT. YOU NO LONGER WERE EMPLOYED OR ON THE ROLL ON SATURDAY, JANUARY 5, 1963, HAVING BEEN SEPARATED FROM THE SERVICE ON JANUARY 4. THUS YOU DID NOT SATISFY THE REQUIREMENTS OF EITHER THE CIVIL SERVICE REGULATION REFERRED TO IN YOUR LETTER AND QUOTED ABOVE OR OUR DECISION 31 COMP. GEN. 215.

AS YOU WERE INFORMED IN OUR DECISION OF OCTOBER 8, 1963, REFERRED TO ABOVE, THE DEPARTMENT OF THE NAVY ADVISED US THAT THE EFFECTIVE DATE OF YOUR SEPARATION WAS FIXED AS OF THE CLOSE OF BUSINESS JANUARY 4, 1963, THE 89TH DAY OF EMPLOYMENT, ONLY BECAUSE THIS WAS THE LAST WORKDAY OF THE PERIOD COVERED BY YOUR APPOINTMENT AND NOT FOR THE PURPOSE OF PRECLUDING THE ACCRUAL OF ANNUAL LEAVE. SINCE THE DECISION TO TERMINATE YOUR APPOINTMENT (THE CORRECTION OF JANUARY 2, 1963, REFERRING ONLY TO YOUR STEP AND SALARY RATE) WAS MADE AS EARLY AS DECEMBER 13, 1962, CREDENCE MUST BE GIVEN THE ADMINISTRATIVE REPORT.

WE MUST, THEREFORE, ADHERE TO OUR DECISION OF OCTOBER 8, 1963, AND CONCLUDE THAT YOU HAD NOT ACCRUED ANY ANNUAL LEAVE INCIDENT TO YOUR TEMPORARY APPOINTMENT.