B-120074, NOV. 29, 1966

B-120074: Nov 29, 1966

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FEDERAL BUREAU OF INVESTIGATION: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8. THIS WILL CARRY HIM THROUGH DECEMBER 27. HE WILL EARN AN ADDITIONAL 16 HOURS OF ANNUAL LEAVE WHICH WILL CARRY HIM THROUGH DECEMBER 29. HE DESIRES TO HAVE HIS RETIREMENT EFFECTIVE AS OF DECEMBER 30. IN THE EVENT OF AN ADVERSE DECISION IN HIS CASE HE WILL RETURN FOR ONE DAY OF DUTY BEFORE EXPIRATION OF HIS ANNUAL LEAVE. IT IS APPARENT THAT MR. IS STILL TO BE REGARDED AS BEING IN A FULL PAY STATUS. ANNUAL LEAVE IS SYNONYMOUS WITH AN ACTIVE DUTY STATUS. WE POINT OUT THAT THE PAY PERIOD IN QUESTION IS THE LAST ONE IN THE 1966 LEAVE YEAR. IN THE CASE OF AN AGENCY WHICH HAS A POLICY OF NOT GRANTING LEAVE UNTIL EARNED THE POLICY CANNOT ALWAYS BE APPLIED IN THE CASE OF THE LEAVE WHICH WOULD BE EARNED DURING THIS LAST PAY PERIOD IF AN EMPLOYEE IS TO BE GRANTED THE FULL AMOUNT OF LEAVE NORMALLY EARNED IN THE LEAVE YEAR.

B-120074, NOV. 29, 1966

TO AUTHORIZED CERTIFYING OFFICER, FEDERAL BUREAU OF INVESTIGATION:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1966, REQUESTING A DECISION BY THIS OFFICE IN THE MATTER OF EDGAR R. CLAYTON, AN EMPLOYEE OF THE FEDERAL BUREAU OF INVESTIGATION.

YOUR LETTER STATES THAT MR. CLAYTON HAS MADE APPLICATION FOR RETIREMENT WHICH HE WISHES TO BECOME EFFECTIVE DECEMBER 30, 1966. MR. CLAYTON HAS ACCUMULATED 184 HOURS OF ANNUAL LEAVE (AS OF PAY PERIOD ENDING NOVEMBER 19, 1966) BEYOND HIS CEILING SET AT 480 HOURS. HE DESIRES TO CEASE DUTY ON NOVEMBER 22, 1966, AND USE HIS 184 HOURS OF ANNUAL LEAVE ACCUMULATED BEYOND THE CEILING AS ANNUAL LEAVE PRIOR TO RETIREMENT, WHICH PRIVILEGE THE AGENCY IN ITS CONSIDERED DISCRETION HAS GRANTED HIM. THIS WILL CARRY HIM THROUGH DECEMBER 27, 1966. DURING THIS PERIOD FROM NOVEMBER 22--- DECEMBER 27, 1966, HE WILL EARN AN ADDITIONAL 16 HOURS OF ANNUAL LEAVE WHICH WILL CARRY HIM THROUGH DECEMBER 29, 1966.

HE DESIRES TO HAVE HIS RETIREMENT EFFECTIVE AS OF DECEMBER 30, 1966, AND WISHES ON THAT DATE TO BE PAID HIS FULL ACCUMULATION OF 480 HOURS AS TERMINAL LEAVE, WHILE CEASING DUTY ON NOVEMBER 22. 5 U.S.C. 61 (B). SAYS THAT HE SHOULD BE ADVANCED THE EIGHT HOURS HE WOULD EARN DURING HIS FINAL PAY PERIOD WHICH WOULD BE CREDITED TO HIM TO MAKE HIS RETIREMENT EFFECTIVE ON DECEMBER 30, 1966.

MR. CLAYTON HAS POINTED OUT THAT IF HE CEASED DUTY ON NOVEMBER 23, 1966, RATHER THAN ON NOVEMBER 22, 1966, THUS BRINGING THE EFFECTIVE DATE OF HIS RETIREMENT TO DECEMBER 30, 1966, HE WOULD LOSE THE EIGHT HOURS EARNED DURING THE FINAL PAY PERIOD AS THIS WOULD BE EIGHT HOURS' LEAVE BEYOND THE 480 HOURS FOR WHICH A LUMP-SUM PAYMENT MAY BE MADE. IN ACCORDANCE WITH OUR TELEPHONE CONVERSATION WITH YOU ON NOVEMBER 22, 1966, WE UNDERSTAND THAT MR. CLAYTON HAS BEEN PERMITTED TO BEGIN HIS ANNUAL LEAVE ON NOVEMBER 23, 1966, BUT IN THE EVENT OF AN ADVERSE DECISION IN HIS CASE HE WILL RETURN FOR ONE DAY OF DUTY BEFORE EXPIRATION OF HIS ANNUAL LEAVE.

IT IS APPARENT THAT MR. CLAYTON, THOUGH ON ANNUAL LEAVE PRIOR TO RETIREMENT, IS STILL TO BE REGARDED AS BEING IN A FULL PAY STATUS. ANNUAL LEAVE IS SYNONYMOUS WITH AN ACTIVE DUTY STATUS. SEE 26 COMP. GEN. 385.

WE POINT OUT THAT THE PAY PERIOD IN QUESTION IS THE LAST ONE IN THE 1966 LEAVE YEAR. THUS, IN THE CASE OF AN AGENCY WHICH HAS A POLICY OF NOT GRANTING LEAVE UNTIL EARNED THE POLICY CANNOT ALWAYS BE APPLIED IN THE CASE OF THE LEAVE WHICH WOULD BE EARNED DURING THIS LAST PAY PERIOD IF AN EMPLOYEE IS TO BE GRANTED THE FULL AMOUNT OF LEAVE NORMALLY EARNED IN THE LEAVE YEAR. WE SEE NO PROPER BASIS FOR A DIFFERENT RULE IN THE LATTER EXAMPLE AND MR. CLAYTON'S CASE SINCE HIS STATUS WHILE ON ANNUAL LEAVE IS SYNONYMOUS WITH ANYONE IN AN ACTIVE DUTY STATUS.

IT WOULD FOLLOW THAT MR. CLAYTON SHOULD BE ADVANCED THE EIGHT HOURS OF ANNUAL LEAVE FOR THE LAST PAY PERIOD WHICH ACTION WOULD THEN ELIMINATE ANY REQUIREMENT THAT HE RETURN TO DUTY FOR ONE DAY BY REASON OF BEGINNING HIS LEAVE ON NOVEMBER 23, 1966.

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