B-167975, DECEMBER 8, 1969 49 COMP. GEN. 383

B-167975, DECEMBER 8, 1969 49 COMP. GEN. 383

NATIONAL GUARD -- CIVILIAN EMPLOYEES -- CONVERSION TO FEDERAL POSITIONS - LEAVE STATUS A NATIONAL GUARD TECHNICIAN WHO ON JANUARY 1, 1969, BECAME A FEDERAL EMPLOYEE AS AUTHORIZED BY PUBLIC LAW 90-486, IS ENTITLED TO HAVE ALL THE ANNUAL AND SICK LEAVE TO HIS CREDIT PRIOR TO THE CONVERSION OF THE POSITION TO FEDERAL STATUS CREDITED TO HIM IN HIS FEDERAL POSITION, AS THE LEAVE EARNED AS A TECHNICIAN, BECAME SUBJECT TO THE PROVISIONS OF 5 U.S.C. 6301 ET SEQ., EFFECTIVE JANUARY 1, 1969, PURSUANT TO SECTION 3(D) OF THE ACT HOWEVER, THE ANNUAL LEAVE TO THE EMPLOYEE'S CREDIT IN EXCESS OF THE 240 HOURS LIMITATION PRESCRIBED BY 5 U.S.C. 6304, THAT HE DID NOT USE BETWEEN JANUARY 1, 1969, AND THE CLOSE OF THE 1968 LEAVE ACT--JANUARY 11, 1969--WAS FORFEITED BY OPERATION OF LAW. NATIONAL GUARD -- CIVILIAN EMPLOYEES -- CONVERSION TO FEDERAL POSITIONS -- EFFECT ON PART-TIME, ETC., FEDERAL EMPLOYMENT A NATIONAL GUARD TECHNICIAN WHO WHEN HIS TECHNICIAN POSITION WAS CONVERTED TO FEDERAL STATUS UNDER PUBLIC LAW 90-486, RESIGNED FROM A PARTIME POSTAL POSITION EFFECTIVE DECEMBER 31, 1968, AS REQUIRED BY 5 U.S.C. 5533, WHICH PROHIBITS AN EMPLOYEE FROM RECEIVING COMPENSATION FROM MORE THAN ONE POSITION FOR MORE THAN AN AGGREGATE 40 HOURS OF WORK IN ONE CALENDAR WEEK, IS REGARDED AS SEPARATED FROM THE POSTAL SERVICE AND UNDER 5 U.S.C. 5551, HE IS ENTITLED TO A LUMP-SUM LEAVE PAYMENT. THE SICK LEAVE TO THE EMPLOYEE'S CREDIT AT THE TIME OF SEPARATION FROM THE POSTAL SERVICE MAY BE RECREDITED TO HIM IN HIS NEW FEDERAL POSITION, AS PROVIDED BY SECTION 630.502(B)(1) OF THE LEAVE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION. LEAVES OF ABSENCE -- SICK LEAVE -- RECREDIT OF PRIOR LEAVE -- BREAK IN SERVICE THE SICK LEAVE EARNED BY AN EMPLOYEE IN A FEDERAL POSITION WHICH COULD NOT BE CREDITED TO HIM WHEN HE ACCEPTED A POSITION AS TECHNICIAN IN A STATE NATIONAL GUARD UNIT MAY BE RECREDITED TO THE EMPLOYEE UPON CONVERSION TO THE TECHNICIAN POSITION TO FEDERAL STATUS EFFECTIVE JANUARY 1, 1969, PURSUANT TO PUBLIC LAW 90-486, AS SECTION 630.502(B)(1) OF THE CIVIL SERVICE LEAVE REGULATIONS, PROVIDES THAT AN EMPLOYEE SEPARATED FROM THE FEDERAL SERVICE IS ENTITLED TO A RECREDIT OF SICK LEAVE WHEN REEMPLOYED IN THE FEDERAL SERVICE WITHOUT A BREAK IN SERVICE OF MORE THAN 3 YEARS.

TO MAJOR GENERAL W. P. WILSON, DEPARTMENT OF THE ARMY, DECEMBER 8, 1969:

YOUR LETTER OF SEPTEMBER 24, 1969, REFERENCE NGNGBTC, SUBMITS CORRESPONDENCE CONCERNING A NATIONAL GUARD TECHNICIAN WHO WAS EMPLOYED BY THE UNITED STATES POST OFFICE DEPARTMENT AT NIGHT AND ON WEEKENDS AND BY THE ARMY NATIONAL GUARD ON WEEKDAYS PRIOR TO JANUARY 1, 1969, UPON WHICH DATE SUCH TECHNICIANS WERE MADE FEDERAL EMPLOYEES BY THE NATIONAL GUARD TECHNICIANS ACT OF 1968, PUBLIC LAW 90-486, 82 STAT. 755, 32 U.S.C. 709 NOTE. YOU ASK WHETHER THE ANNUAL AND SICK LEAVE EARNED BY THE TECHNICIAL DURING HIS EMPLOYMENT IN THE LOCAL POST OFFICE CAN BE PAID FOR IN A LUMP SUM OR TRANSFERRED UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

WE ARE INFORMALLY ADVISED THAT THE TECHNICIAN BEFORE THE EFFECTIVE DATE OF PUBLIC LAW 90-486 HAD EARNED 256 HOURS OF ANNUAL LEAVE AND 1,362 HOURS OF SICK LEAVE. SUCH LEAVE WAS AUTHORIZED UNDER THE PROVISIONS OF NATIONAL GUARD REGULATIONS 51, SECTIONS II AND III. A LIMITATION OF 240 HOURS ANNUAL LEAVE WAS AUTHORIZED TO BE CARRIED FORWARD TO A SUBSEQUENT LEAVE YEAR. SECTION II, PARAGRAPH 4-12. SUCH REGULATIONS AUTHORIZED UNLIMITED ACCRUAL OF SICK LEAVE. SECTION III, PARAGRAPH 4-17.

AS AN EMPLOYEE IN THE LOCAL POST OFFICE WORKING EVENINGS AND WEEKENDS THE TECHNICIAN EARNED ANNUAL AND SICK LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 6301 ET SEQ. THE RECORD OF LEAVE EARNED THEREIN SHOWS BALANCES OF 118 HOURS ANNUAL LEAVE AND 90 HOURS SICK LEAVE AS OF DECEMBER 27, 1968. RESIGNED FROM HIS POSITION IN THE POST OFFICE DECEMBER 31, 1968.

EFFECTIVE JANUARY 1, 1969, THE TECHNICIAN HERE INVOLVED BECAME A FEDERAL EMPLOYEE AS AUTHORIZED BY THE ABOVE-CITED ACT. UNDER SECTION 3(D) THEREOF, 82 STAT. 757, THE ANNUAL AND SICK LEAVE PREVIOUSLY EARNED UNDER THE REGULATIONS REFERRED TO ABOVE WAS REQUIRED TO BE CREDITED TO HIM IN HIS NEW POSITION. THAT SECTION READS, IN PERTINENT PART, AS FOLLOWS:

(D) ANNUAL LEAVE AND SICK LEAVE TO WHICH A TECHNICIAN WAS ENTITLED ON THE DAY BEFORE THE CONVERSION OF HIS POSITION *** SHALL BE CREDITED TO HIM IN HIS NEW POSITION. THUS, THE LEAVE EARNED AS A TECHNICIAN PRIOR TO JANUARY 1, 1969, ALSO BECAME SUBJECT TO THE PROVISIONS OF 5 U.S.C. 6301 ET SEQ., EFFECTIVE JANUARY 1, 1969, INCLUDING THE 240 HOURS (30 DAYS) ANNUAL LEAVE ACCUMULATION LIMITATION, 5 U.S.C. 6304. THEREFORE, SINCE THE TECHNICIAN APPARENTLY DID NOT USE THE 16 HOURS ANNUAL LEAVE, CARRIED OVER FROM HIS POSITION COVERED BY THE REGULATORY LEAVE PROVISIONS, IN EXCESS OF THE APPLICABLE 240 HOURS LIMITATION, BY THE CLOSE OF THE 1968 LEAVE YEAR, SUCH LEAVE WAS FORFEITED. SUCH FORFEITURE IN THIS CASE, WOULD HAVE OCCURRED UNDER EITHER 5 U.S.C. 6304, OR THE REGULATORY PROVISIONS REFERRED TO ABOVE SINCE THERE WAS TIME BEFORE AND AFTER JANUARY 1, 1969, FOR THE TECHNICIAN TO USE THE LEAVE.

HOWEVER, WITH RESPECT TO THE 118 HOURS ANNUAL LEAVE EARNED IN THE POSITION WITH THE LOCAL POST OFFICE THE RECORD SHOWS THAT THE TECHNICIAN RESIGNED THEREFROM DECEMBER 31, 1968. APPARENTLY, SUCH RESIGNATION WAS NECESSARY IN VIEW OF THE PROVISIONS OF 5 U.S.C. 5533, WHICH PROHIBIT AN EMPLOYEE FROM RECEIVING COMPENSATION FROM MORE THAN ONE POSITION FOR MORE THAN AN AGGREGATE OF 40 HOURS OF WORK IN ONE CALENDAR WEEK WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. THEREFORE, SO FAR AS HIS POSTAL SERVICE IS CONCERNED HE MAY BE REGARDED AS HAVING BEEN SEPARATED FROM THE SERVICE AND UNDER THE PROVISIONS OF 5 U.S.C. 5551 ENTITLED TO A LUMP-SUM PAYMENT FROM THE POSTAL SERVICE FOR THE 118 HOURS OF ANNUAL LEAVE. THE NEW YORK POSTAL DATA CENTER WHICH FORWARDED CERTIFICATION OF THE LEAVE EARNED IN THE POSTAL SERVICE SHOULD BE FURNISHED A COPY OF THIS DECISION. AN EXTRA COPY IS ENCLOSED FOR THAT PURPOSE.

THE SICK LEAVE EARNED WHILE EMPLOYED IN THE POSTAL SERVICE IS FOR RECREDITING UNDER SECTION 630.502(B)(1) OF THE LEAVE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION, 5 CFR 630.502.

WE UNDERSTAND INFORMALLY THAT THE GRANTING OF FEDERAL STATUS BY THE FOREGOING ACT HAS CREATED SITUATIONS WHERE TECHNICIANS WHO WERE EMPLOYED PRIOR TO JANUARY 1, 1969, AND WHO HAD OTHER FEDERAL EMPLOYMENT IN WHICH THEY EARNED SICK LEAVE THAT COULD NOT BE TRANSFERRED WHEN THEY WERE EMPLOYED AS TECHNICIANS ARE NOW SEEKING RECREDIT OF SUCH LEAVE UNDER THE PROVISIONS OF SECTION 630.502(B)(1), REFERRED TO IN THE PRECEDING PARAGRAPH, WHICH READS, IN PERTINENT PART, AS FOLLOWS:

*** AN EMPLOYEE WHO IS SEPARATED FROM THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO A RECREDIT OF HIS SICK LEAVE IF HE IS REEMPLOYED IN THE FEDERAL GOVERNMENT *** WITHOUT A BREAK IN SERVICE OF MORE THAN THREE YEARS. IN SUCH CIRCUMSTANCES THE PROVISIONS ABOVE QUOTED WOULD BE FOR APPLICATION IN THOSE CASES WHERE THERE HAS NOT BEEN A BREAK IN SERVICE OF MORE THAN 3 YEARS.