A-84582, MARCH 30, 1937, 16 COMP. GEN. 899

A-84582, MARCH 30, 1937, 16 COMP. GEN. 899

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - AFTER SEPARATION FROM SERVICE THE RULE THAT THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM THE SERVICE FOR ANNUAL LEAVE ACCRUED BUT NOT TAKEN PRIOR THERETO AS ANNOUNCED IN DECISION IN 16 COMP. GEN. I8, AND PRIOR PUBLISHED DECISIONS, IS FOR GENERAL APPLICATION IRRESPECTIVE OF WHETHER THE SEPARATION WAS SUBSEQUENT OR PRIOR TO JANUARY 1, 1936, THE EFFECTIVE DATE OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND THERE MAY BE NO RESTORATION TO THE STATUS OF EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE IN SUCH CASES, NOTWITHSTANDING THE FAILURE TO GRANT SUCH LEAVE PRIOR TO SEPARATION WAS BECAUSE OF ADMINISTRATIVE MISUNDERSTANDING OR NEGLIGENCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MARCH 30, 1937:

YOUR LETTER OF MARCH 16, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO DECISION, 16 COMP. GEN. 28, HOLDING THAT THE ACT OF MARCH 14, 1936 (49 STAT. 1161), EFFECTIVE JANUARY 1, 1936, DOES NOT PROVIDE FOR PAYING EMPLOYEES FOR ACCRUED UNUSED LEAVE AFTER SEPARATION FROM THE SERVICE. THE CASE CONSIDERED IN THAT DECISION WAS ONE IN WHICH SEPARATION OCCURRED BEFORE PASSAGE OF THE NEW LEAVE LAWS AND ISSUANCE OF REGULATIONS THEREUNDER.

OCCASIONALLY, THROUGH UNFAMILARITY WITH THE NEW LAW AND REGULATIONS, THE OFFICIAL SUPERIOR OF AN EMPLOYEE VOLUNTARILY SEPARATED OR DISCHARGED FROM SERVICE WITHOUT MISCONDUCT HAS DENIED LEAVE ACCRUED AND ALLOWABLE UNDER THE LAW, TERMINATION OF SERVICES WITHOUT GRANTING ALL LEAVE BEING A MATTER FOR WHICH THE SEPARATED EMPLOYEE WAS NOT RESPONSIBLE. APPARENTLY THE INTENTION OF THE NEW LEAVE LAWS IS THAT LEAVE BE GRANTED AS A RIGHT AND SECTIONS 6 AND 7 OF THE PRESIDENT'S REGULATIONS GOVERNING ANNUAL LEAVE (EXECUTIVE ORDER 7409, DATED JULY 9, 1936) PROVIDE RESPECTIVELY, THAT AN EMPLOYEE VOLUNTARILY SEPARATED FROM THE SERVICE WITHOUT PREJUDICE SHALL BE ENTITLED TO ALL ACCUMULATED LEAVE PLUS CURRENT ACCRUED LEAVE TO DATE OF SEPARATION AND THAT THE DATE OF DISCHARGE, EXCEPT WHEN DUE TO EMPLOYEE'S MISCONDUCT, SHALL BE FIXED TO PERMIT ALLOWANCE OF ACCUMULATED AND CURRENT ACCRUED LEAVE. IN VIEW OF THESE PROVISIONS IT SEEMS IMPROPER THAT AN ERROR ON THE PART OF A SUPERIOR OFFICER SHOULD OPERATE TO DEPRIVE A SEPARATED EMPLOYEE OF THE LEAVE TO WHICH ENTITLED.

THERE IS TRANSMITTED HEREWITH VOUCHER IN FAVOR OF MORGAN O. TIMMS, FORMERLY DISTRICT FOREST RANGER, BURNS, OREG., AMOUNT $144.44, LESS RETIREMENT, $5.06, NET $139.38. HIS CASE IS ONE IN WHICH A PORTION OF THE ACCRUED LEAVE TO HIS CREDIT WAS DENIED BY THE SUPERIOR OFFICER AT THE TIME OF RESIGNATION BECAUSE OF MISUNDERSTANDING OF THE INTENT OF THE NEW LAWS AND REGULATIONS. WHILE THE RESIGNATION SIGNED BY MR. TIMMS WAS STATED AS EFFECTIVE SEPTEMBER 24, ITS EXECUTION WITH THAT EFFECTIVE DATE WAS DUE TO THE FACT THAT THE OFFICIAL SUPERIOR REFUSED TO GRANT THE FULL AMOUNT OF THE UNUSED ACCRUED LEAVE TO HIS CREDIT. DECISION IS REQUESTED WHETHER THIS ERROR ON THE PART OF THE SUPERIOR OFFICIAL WHICH RESULTED IN ACCEPTANCE OF THE RESIGNATION AS OF A DATE PRIOR TO THE TERMINATION OF THE ACCRUED LEAVE TO MR. TIMMS' CREDIT MAY BE CORRECTED AND THE DATE OF TERMINATION SET FORWARD SUFFICIENTLY TO COVER THAT PORTION OF THE ACCUMULATED LEAVE IMPROPERLY DENIED.

FOR FUTURE GUIDANCE IN OTHER CASES THAT EXIST OR MAY ARISE, DECISION IS DESIRED WHETHER, UNDER THE LEAVE LAWS AND THE PRESIDENT'S REGULATIONS, AN EMPLOYEE SEPARATED OTHER THAN BY REASON OF DISCHARGE FOR MISCONDUCT, MAY BE RESTORED TO THE ROLLS FOR THE PURPOSE OF ALLOWING PAYMENT FOR LEAVE WHEN THROUGH ERROR OF HIS OFFICIAL SUPERIOR:

(A) THE EMPLOYEE'S APPOINTMENT WAS TERMINATED PRIOR TO EXPIRATION OF THE LEAVE TO WHICH ENTITLED; OR,

(B) WHERE, THROUGH MISUNDERSTANDING ON THE PART OF SUCH SUPERIOR, THE EMPLOYEE WAS DENIED ALL OR ANY PORTION OF THE LEAVE TO WHICH ENTITLED.

IN THE CITED DECISION OF JULY 15, 1936, IT WAS HELD AS FOLLOWS:

THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM THE SERVICE, FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. 5 COMP. GEN. 752; 7 ID. 83; 8 ID. 471; 12 ID. 602; 13 ID. 79; AND 14 ID. 443. THE ACT OF MARCH 14, 1936, 49 STAT. 1161, EFFECTIVE JANUARY 1, 1936, MAY GRANT LEAVE OF ABSENCE AS A RIGHT BUT IT DOES NOT PROVIDE FOR PAYING EMPLOYEES FOR ACCRUED UNUSED LEAVE AFTER SEPARATION FROM THE SERVICE. * * *

THIS RULE WAS APPLIED, ALSO, IN DECISION OF AUGUST 31, 1936, 16 COMP. GEN. 202, INVOLVING POSTAL EMPLOYEES ENTITLED TO THE BENEFITS OF THE MANDATORY LEAVE LAW, AND IN DECISION OF SEPTEMBER 2, 1936, 16 ID. 212, INVOLVING EMPLOYEES OF THE WAR DEPARTMENT WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936. THE RULE WAS INTENDED FOR GENERAL APPLICATION TO EMPLOYEES IRRESPECTIVE OF WHETHER SEPARATION FROM THE SERVICE WAS SUBSEQUENT, OR PRIOR, TO JANUARY 1, 1936, THE EFFECTIVE DATE OF THE LEAVE ACT OF MARCH 14, 1936.

THE ACT OF MARCH 14, 1936, MAKES A GRANT OF LEAVE IN KIND ONLY; THAT IS, THE RIGHT TO BE ABSENT FROM DUTY FOR THE PRESCRIBED PERIOD WITHOUT LOSS OF PAY WHILE RETAINING A STATUS AS ONE OF THE ,CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" INCLUDED WITHIN THE PURVIEW OF THE LAW. THERE IS NO PROVISION OF THE LAW, EXPRESSED OR IMPLIED, AUTHORIZING A PAYMENT IN LIEU OF LEAVE NOT GRANTED TO A FORMER OFFICER OR EMPLOYEE WHO NO LONGER HAS A STATUS UPON WHICH THE STATUTE MAY OPERATE. HENCE, AFTER AN EMPLOYEE BECOMES LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE, THERE IS NO AUTHORITY TO RESTORE HIM TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING LEAVE WHICH HAD ACCRUED BUT WAS NOT TAKEN PRIOR TO SUCH SEPARATION.

THIS OFFICE HAS RECOGNIZED THE FACT THAT THE STATUTE, UNLIKE CERTAIN PRIOR LEAVE ACTS, MAKES IT THE PLAIN DUTY OF ADMINISTRATIVE OFFICERS TO GRANT THE LEAVE, BUT THERE MUST BE RECOGNIZED, ALSO, THE FACT THAT NO REMEDY HAS BEEN PROVIDED TO OFFICERS AND EMPLOYEES WHO DO NOT RECEIVE THE LEAVE PRIOR TO THEIR SEPARATION FROM THE SERVICE BECAUSE OF ADMINISTRATIVE FAILURE OR REFUSAL TO COMPLY WITH THE STATUTE. THE GRANTING OF LEAVE IS ENTIRELY AN ADMINISTRATIVE RESPONSIBILITY, AND MISUNDERSTANDING OR NEGLIGENCE IN THE ADMINISTRATION OF THE LAW MAY NOT FORM THE BASIS OF A CLAIM AGAINST APPROPRIATED MONEYS FOR ADDITIONAL COMPENSATION.

QUESTIONS (A) AND (B) ARE ANSWERED IN THE NEGATIVE, AND PAYMENT ON THE VOUCHER IN FAVOR OF MORGAN O. TIMMS IS NOT AUTHORIZED.