B-112950, DECEMBER 5, 1952, 32 COMP. GEN. 273

B-112950, DECEMBER 5, 1952, 32 COMP. GEN. 273

LEAVES OF ABSENCE - ANNUAL - ACCRUAL DURING LEAVE PERIOD COVERED BY LUMP SUM PAYMENT UPON SEPARATION FROM SERVICE EMPLOYEES WHO ARE SEPARATED FROM THE SERVICE AND PAID A LUMP SUM FOR ACCRUED LEAVE IN ACCORDANCE WITH THE ACT OF DECEMBER 21, 1944, MAY NOT BE CARRIED ON THE ROLLS AS EMPLOYEES DURING THE PERIOD OVER WHICH PAYMENT FOR SUCH LEAVE IS COMPUTED, AND THEREFORE, SAID EMPLOYEES MAY NOT ACCRUE LEAVE ON LEAVE AFTER THE DATE OF THEIR SEPARATION FROM THE SERVICE.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, UNITED STATES MOTOR CARRIER CLAIMS COMMISSION, DECEMBER 5, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 24, 1952, REQUESTING DECISION WHETHER EMPLOYEES OF YOUR COMMISSION WHO WILL BE SEPARATED FROM THE FEDERAL SERVICE DECEMBER 31, 1952, OR EARLIER, UPON THE TERMINATION DATE OF YOUR COMMISSION, WILL BE ENTITLED TO LEAVE ON LEAVE DURING THE PERIOD COVERED BY THEIR LUMP-SUM LEAVE PAYMENT.

YOU REFER TO SECTION 30.203 OF THE ANNUAL AND SICK LEAVE REGULATIONS WHICH PROVIDES THAT "LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A PAY STATUS" AND, ALSO, TO DECISION B-108880 OF MAY 8, 1952, 31 COMP. GEN. 581, IN WHICH IT WAS HELD, QUOTING FROM THE SYLLABUS:

AN EMPLOYEE WHO IS ON THE ROLLS OF AN AGENCY ON JANUARY 6, 1952, THE EFFECTIVE DATE OF THE ANNUAL AND SICK LEAVE ACT OF 1951, MAY ACCRUE LEAVE ON LEAVE DURING A TERMINAL LEAVE PERIOD, EVEN THOUGH THERE IS NO RETURN TO DUTY. 24 COMP. GEN. 511, MODIFIED. BOTH THE CIVIL SERVICE REGULATION AND THE FOREGOING DECISION RELATE TO THE ACCRUAL OF LEAVE WHILE THE EMPLOYEE IS STILL CARRIED ON THE ROLLS IN A PAY STATUS AND HAVE NO APPLICATION TO PERIODS COVERED BY LUMP-SUM LEAVE PAYMENTS. SECTION 1 OF THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDES:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT OF JUNE 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE: * * PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS. (ITALICS SUPPLIED.) AS THE LAST PROVISO IN THE ABOVE-QUOTED ACT PROVIDES SPECIFICALLY THAT PAYMENTS THEREIN AUTHORIZED SHALL NOT BE REGARDED AS SALARY OR COMPENSATION, IT IS EVIDENT THAT THE QUOTED CIVIL SERVICE REGULATION DOES NOT APPLY TO AN EMPLOYEE WHO WOULD NOT BE IN A PAY STATUS DURING THE PERIOD COVERED BY THE LUMP-SUM LEAVE PAYMENT. IN 26 COMP. GEN. 954, IT WAS HELD:

AS EMPLOYEES WHO WILL BE SEPARATED FROM THE SERVICE JUNE 28, 1947, AND WHO WILL BE PAID A LUMP SUM FOR THE LEAVE TO THEIR CREDIT AT THAT TIME, WILL NOT BE CARRIED ON THE ROLLS AS EMPLOYEES DURING THE PERIOD OVER WHICH PAYMENT FOR SUCH LEAVE IS COMPUTED, THEY WOULD NOT BE IN A LEAVE-WITH-PAY STATUS AND NO LEAVE ON LEAVE WOULD ACCRUE AFTER THE DATE OF THEIR SEPARATION.

ACCORDINGLY, THE EMPLOYEES OF YOUR COMMISSION WILL NOT BE ENTITLED TO LEAVE ON LEAVE IN COMPUTING LUMP-SUM PAYMENTS.