B-109327, AUGUST 27, 1952, 32 COMP. GEN. 111

B-109327, AUGUST 27, 1952, 32 COMP. GEN. 111

OFFICERS AND EMPLOYEES - EFFECTIVE DATE OF SEPARATION FROM SERVICE A GOVERNMENT EMPLOYEE WHO TENDERED HER RESIGNATION REQUESTING SEPARATION FROM THE SERVICE AT CLOSE OF BUSINESS JANUARY 1, 1952, ALTHOUGH HER LAST DAY OF ACTIVE DUTY WAS DECEMBER 29, 1941, MUST BE SEPARATED IN ACCORDANCE WITH THE TERMS OF THE RESIGNATION AS TENDERED, THAT IS, AS OF CLOSE OF BUSINESS JANUARY 1, 1952, AND THEREFORE, THE EMPLOYEE FORFEITED THAT PORTION OF ACCRUED ANNUAL LEAVE IN EXCESS OF THE SIXTY DAY MAXIMUM ACCUMULATION PERMITTED TO BE CARRIED FORWARD INTO THE NEXT CALENDAR YEAR 1952.

COMPTROLLER GENERAL WARREN TO MISS SOPHIE DONINE, OFFICE OF RENT STABILIZATION, AUGUST 27, 1952:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1952, FILE A-2, TRANSMITTING A PAYROLL VOUCHER IN THE AMOUNT OF $333.61, STATED IN FAVOR OF MRS. PHYLLIS M. WOLFE, FORMER EMPLOYEE OF THE OFFICE OF RENT STABILIZATION, ECONOMIC STABILIZATION AGENCY, FOR PAYMENT (LUMP SUM) COVERING 200 HOURS OF ACCUMULATED ANNUAL LEAVE EARNED DURING THE CALENDAR YEAR 1950 AND UNUSED AT THE CLOSE OF BUSINESS JUNE 30, 1950, AND REQUESTING A DECISION AS TO WHETHER SAID VOUCHER LEGALLY MAY BE CERTIFIED FOR PAYMENT.

THE FACTS AS REPORTED SHOW DECEMBER 29, 1951 AS THE LAST DAY OF ACTIVE DUTY FOR MRS. WOLFE; THAT HER RESIGNATION, AS SUBMITTED, REQUESTED SEPARATION AT THE CLOSE OF JANUARY 1, 1952, BUT THAT AS A RESULT OF AN ADMINISTRATIVE ERROR HER SEPARATION WAS EFFECTED AT THE CLOSE OF BUSINESS JANUARY 2, 1952. YOU STATE THAT MRS. WOLFE WAS CREDITED WITH 360 HOURS (45 DAYS) OF ANNUAL LEAVE ON JANUARY 1, 1951, OF WHICH 200 HOURS WERE EARNED DURING 1950, AND THAT AT THE END OF THE CALENDAR YEAR 1951 SHE HAD TO HER CREDIT 544 HOURS OF ACCUMULATED ANNUAL LEAVE, OR 64 HOURS IN EXCESS OF THE 60 DAY MAXIMUM ACCUMULATION PERMITTED TO BE CARRIED FORWARD INTO THE CALENDAR YEAR 1952.

IT IS NOTED THAT AT THE TIME OF HER SEPARATION MRS. WOLFE RECEIVED A LUMP -SUM PAYMENT FOR 336 HOURS (344 LESS 8 HOURS CHARGED FOR JANUARY 2, 1952) AND THAT PAYMENT WAS WITHHELD FOR UNUSED LEAVE EARNED DURING 1950 PENDING THE RECEIPT OF A RULING FROM THIS OFFICE AS TO WHETHER APPROPRIATED FUNDS WERE AVAILABLE THEREFOR. YOU REFER TO OFFICE DECISION DATED FEBRUARY 26, 1952, B-103682 (31 COMP. GEN. 421), WHEREIN IT WAS HELD THAT THE SUPPLEMENTAL APPROPRIATION ACT 1952, 65 STAT. 736, CONTAINED NO PROHIBITION AGAINST PAYMENT TO EMPLOYEES OF THE ECONOMIC STABILIZATION AGENCY FOR LEAVE EARNED DURING 1950, WHICH WAS NOT USED PRIOR TO JULY 1, 1951.

IT IS TO BE OBSERVED THAT THE EMPLOYEE HAD BEEN RELEASED FROM THE SERVICE AT THE TIME SAID DECISION WAS RENDERED, AND YOUR LETTER STATES THAT AFTER THE EMPLOYEE'S SEPARATION HAD BEEN EFFECTED AND IT WAS ASCERTAINED THAT WHEN SHE LEFT HER POSITION ON DECEMBER 29, 1951, SHE HAD NO INTENTION OF RETURNING TO DUTY, THE ADMINISTRATIVE OFFICE ENDEAVORED TO CHANGE THE EMPLOYEE'S DATE OF SEPARATION TO DECEMBER 29, 1951, SO AS TO COINCIDE WITH THE LAST DAY SHE PERFORMED ACTIVE DUTY. A COPY OF STANDARD FORM 50," NOTIFICATION OF PERSONNEL ACTION," DATED MARCH 6, 1952, WHICH WAS ATTACHED TO THE UNPAID VOUCHER READS, IN PART, AS FOLLOWS:

THIS CORRECTS JOURNAL NO. S-4 DATED 1-7-52, WITH RESPECT TO EFFECTIVE DATE OF ACTION. EFFECTIVE DATE OF RESIGNATION CORRECTED TO COINCIDE WITH LAST DAY OF ACTIVE DUTY IN ACCORDANCE WITH 24 COMP. GEN. 511. IN THE DECISION LAST CITED, JANUARY 11, 1945, 24 COMP. GEN. 511, IT WAS HELD (QUOTING FROM SYLLABUS):

THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, RESPECTING LUMP-SUM PAYMENTS FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE UPON SEPARATION FROM SERVICE, ARE MANDATORY, AND TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT AN EMPLOYEE IS TO BE SEPARATED FROM SERVICE. HOWEVER, YOU QUESTION THE LEGALITY OF RETROACTIVELY CHANGING THE EFFECTIVE DATE OF THE FORMER EMPLOYEE'S RESIGNATION TO COINCIDE WITH HER LAST DAY OF ACTIVE DUTY IN VIEW OF THE RULE LAID DOWN IN 10 COMP. GEN. 11 (SEE 22 COMP. GEN. 291; CF. 22 ID. 447), AND YOU REQUEST A DECISION AS TO WHETHER SAID PAYROLL VOUCHER MAY BE CERTIFIED FOR PAYMENT IN THE TOTAL AMOUNT CLAIMED.

IN OFFICE DECISION OF NOVEMBER 18, 1946, 26 COMP. GEN. 331, IT WAS HELD (QUOTING FROM SYLLABUS):

AN EMPLOYEE WHO IS TO BE PLACED ON FURLOUGH PRIOR TO SEPARATION BY REDUCTION IN FORCE MAY, UPON REQUEST, BE GRANTED ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE PRIOR TO BEING PLACED ON FURLOUGH, PURSUANT TO SECTION 2.3 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JULY 1, 1946, NOTWITHSTANDING PRIOR DECISIONS OF THIS OFFICE (24 COMP. GEN. 511; ID. 617; ID. 659; 25 ID. 228; 26 ID. 119) TO THE EFFECT THAT, IN VIEW OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, ANNUAL LEAVE COULD NOT BE GRANTED FOR A PERIOD IMMEDIATELY PRIOR TO SEPARATION.

ALSO, YOUR ATTENTION IS INVITED TO THE ANSWER TO QUESTIONS 5A AND B APPEARING IN DECISION DATED MAY 8, 1952, B-10880, ADDRESSED TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION (31 COMP. GEN. 581), COPY ATTACHED, AND PARTICULARLY TO ANSWER 5B THEREOF, WHICH READS:

IN ANSWER TO QUESTION 5 (B), THERE APPEARS NO REASONABLE BASIS FOR ANY OTHER CONCLUSION BUT THAT THE PLACING OF AN EMPLOYEE IN AN ANNUAL LEAVE STATUS AT ANY TIME IS A PROPER EXERCISE OF ADMINISTRATIVE AUTHORITY. THEREFORE, SINCE IT IS NOT REQUIRED UNDER THE NEW REGULATIONS THAT THERE BE A RETURN TO DUTY BEFORE LEAVE ON LEAVE WILL ACCRUE, NO REASON IS PERCEIVED WHY THAT AUTHORITY MAY NOT BE EXERCISED IN THE DISCRETION OF THE AGENCY EVEN THOUGH IT MAY BE KNOWN IN ADVANCE THAT THE EMPLOYEE WILL BE SEPARATED AT THE TERMINATION OF THE LEAVE SO GRANTED. SO FAR AS THE CONCLUSION HEREIN EXPRESSED IS CONTRARY TO THAT REACHED IN THE DECISION OF JANUARY 11, 1945, 24 COMP. GEN. 511, SAID FORMER DECISION NO LONGER WILL BE FOLLOWED. QUESTION 5 (B) IS ANSWERED IN THE AFFIRMATIVE.

IN VIEW OF THE FOREGOING, THE EFFECTIVE DATE OF SEPARATION IN THIS CASE MAY BE VIEWED AS C.O.B. JANUARY 1, 1952--- THE DATE OF SEPARATION AS TENDERED BY THE EMPLOYEE--- AND SINCE UNDER THE REGULATIONS 480 HOURS CONSTITUTE THE MAXIMUM AMOUNT OF ACCUMULATED ANNUAL LEAVE THAT MAY BE CARRIED FORWARD INTO THE CALENDAR YEAR 1952, IT NECESSARILY FOLLOWS THAT 64 HOURS (544 LESS 480) WERE AUTOMATICALLY FORFEITED AT THE END OF THE CALENDAR YEAR 1951. CONSEQUENTLY, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT FOR ONLY 136 HOURS OF ACCUMULATED ANNUAL LEAVE.