B-134914, FEB. 28, 1958

B-134914, FEB. 28, 1958

TO THE SECRETARY OF THE INTERIOR:

ON JANUARY 15, 1958, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR ADVICE UPON TWO QUESTIONS CONCERNING THE ANNUAL LEAVE RATE CATEGORY OF MR. JAMES V. NASH, FORMERLY AN EMPLOYEE OF THE ALASKA RAILROAD.

MR. NASH BEGAN HIS FIRST CIVILIAN GOVERNMENT SERVICE ON APRIL 26, 1949, WITH THE ALASKA RAILROAD. ON THAT DATE HE WAS RECEIVING RETIRED PAY BASED UPON TWENTY YEARS OF SERVICE WITH THE UNITED STATES ARMY. ON JANUARY 6, 1952, THE EFFECTIVE DATE OF THE GRADUATED LEAVE SYSTEM, YOUR DEPARTMENT DETERMINED THAT ONLY HIS CIVILIAN SERVICE WAS CREDITABLE FOR LEAVE PURPOSES. UPON THAT DETERMINATION, HE WAS ALLOWED AN ACCRUAL OF FOUR HOURS OF ANNUAL LEAVE PER PAY PERIOD FOR A PERIOD OF THREE YEARS, AND, THEREAFTER, HIS LEAVE ACCRUAL WAS INCREASED TO SIX HOURS PER PAY PERIOD UPON THE BASIS OF HIS COMPLETION OF THREE YEARS OF CIVILIAN SERVICE WITH THE GOVERNMENT. THE FIRST QUESTION UPON WHICH OUR ADVICE IS REQUESTED IS WHETHER MR. NASH'S PRIOR MILITARY SERVICE IS CREDITABLE FOR LEAVE PURPOSES, NOTWITHSTANDING HE RECEIVED RETIRED PAY FOR SUCH SERVICE.

IN OUR DECISION, 31 COMP. GEN. 215, WE HELD IN ANSWER TO QUESTION 2,AT PAGE 218, THAT THE CONGRESS IN USING THE WORDS "ALL SERVICE CREDITABLE UNDER THE PROVISIONS OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT * * * FOR THE PURPOSES OF AN ANNUITY UNDER SUCH ACT" APPEARING IN SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, DID NOT INTEND THAT THAT SERVICE BE ACTUALLY CREDITABLE AT THE TIME FOR ANNUITY PURPOSES BEFORE ITS BEING USED TO DETERMINE AN EMPLOYEE'S LEAVE SCALE, BUT RATHER IT HAD REFERENCE TO POTENTIALLY CREDITABLE SERVICE, THAT IS, SERVICE WHICH COULD FORM THE BASIS FOR AN ANNUITY AT SOME FUTURE DATE. ONE OF THE EXAMPLES OF POTENTIALLY CREDITABLE SERVICE FOR CIVILIAN RETIREMENT INVOLVED IN THAT DECISION WAS AN EMPLOYEE WHO WAS RECEIVING MILITARY RETIRED PAY. IN OTHER WORDS, ALTHOUGH CREDIT FOR MILITARY SERVICE TOWARDS CIVILIAN RETIREMENT ORDINARILY IS NOT PERMITTED WHEN SUCH SERVICE FORMS THE BASIS FOR MILITARY RETIREMENT PAY, IT IS CONCEIVABLE THAT AN EMPLOYEE MAY ELECT TO FOREGO HIS MILITARY RETIREMENT PAY IN ORDER TO HAVE SUCH SERVICE CREDITED UNDER THE CIVILIAN RETIREMENT ACT TO OBTAIN A HIGHER RATE OF PAY. IN THAT CONNECTION, SEE CHAPTERS R-5-19 AND Z1-55, SECTION 3 (B), OF THE FEDERAL PERSONNEL MANUAL. HENCE, IN ANSWER TO YOUR FIRST QUESTION, OUR VIEW IS THAT THE POTENTIALLY CREDITABLE MILITARY SERVICE OF MR. NASH IS CREDITABLE FOR CIVILIAN LEAVE PURPOSES. THIS VIEW THEREFORE RESULTS IN ADDITIONAL LEAVE CREDITS TO HIM.

THE SECOND QUESTION IS WHETHER AN EMPLOYEE'S RESIGNATION MAY BE PROCESSED TO TAKE EFFECT AT THE END OF HIS ACCRUED OR ACCUMULATED ANNUAL LEAVE OR WHETHER THE ADMINISTRATIVE OFFICE IS REQUIRED TO TERMINATE THE SERVICES OF AN EMPLOYEE ON ANNUAL LEAVE AND MAKE AN APPROPRIATE LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT, WHEN IT BECOMES KNOWN THAT HE WILL NOT RETURN TO ACTIVE DUTY. THE DOUBT IN THE MATTER ARISES FROM OUR DECISION, 32 COMP. GEN. 111, WHICH HELD THAT THE RESIGNATION OF A GOVERNMENT EMPLOYEE MUST BE PROCESSED IN ACCORDANCE WITH ITS TERMS AS TENDERED (AS WAS DONE IN THIS CASE), AND ALSO OUR DECISION, 24COMP. GEN. 511, WHICH HELD THAT TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE (BUT WHICH WAS ACTUALLY GRANTED IN THIS CASE CONTRARY TO SUCH HOLDING).

YOUR ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT ON NOVEMBER 13, 1956, MR. NASH REQUESTED AND WAS GRANTED ANNUAL LEAVE EXTENDING THROUGH FEBRUARY 1, 1957. HOWEVER, ON DECEMBER 15, 1956, MR. NASH SUBMITTED HIS RESIGNATION REQUESTING THAT IT BECOME EFFECTIVE ON OR ABOUT JANUARY 30, 1957. PURSUANT TO THAT REQUEST HIS RESIGNATION WAS PROCESSED TO BECOME EFFECTIVE AS OF THE FIFTH HOUR ON JANUARY 25, 1957 -- AT THE EXPIRATION OF HIS ANNUAL LEAVE CREDIT. IN THAT SITUATION NO LUMP-SUM LEAVE PAYMENT WAS MADE.

IN OUR DECISION, 34 COMP. GEN. 61, WE HELD, QUOTING FROM THE SYLLABUS, THAT:

"ADMINISTRATIVE AUTHORITY TO GRANT AN EMPLOYEE TERMINAL, ANNUAL OR VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED, IS LIMITED TO CASES WHERE THE EXIGENCIES OF THE SERVICE REQUIRE SUCH ACTION; HOWEVER, AN AGENCY ORDINARILY DOES NOT HAVE UNLIMITED DISCRETION TO GRANT TERMINAL LEAVE CONTRARY TO THE RULE STATED IN 24 COMP. GEN. 511, TO THE EFFECT THAT AN EMPLOYEE MUST BE SEPARATED AND PAID A LUMP SUM FOR THE ANNUAL LEAVE TO HIS CREDIT AS OF THE LAST DATE OF ACTIVE SERVICE.'

WE ALSO SAID CERTAIN EXCEPTIONS TO THE GENERAL RULE IN 24 COMP. GEN. 511- -- BASED UPON STATUTORY PROVISIONS AND STATUTORY REGULATIONS--- HAVE BEEN RECOGNIZED IN SUBSEQUENT OFFICE DECISIONS. SEE 25 COMP. GEN. 82; 26 ID. 331; 31 ID. 581; 33 ID. 85. SINCE YOUR ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT IN THE INSTANT CASE IT DOES NOT APPEAR THAT THE EXIGENCIES OF THE SERVICE REQUIRED THE RETENTION OF THE EMPLOYEE IN AN ANNUAL LEAVE STATUS, THE EMPLOYEE'S ANNUAL LEAVE STATUS SHOULD HAVE BEEN TERMINATED ON DECEMBER 15, 1956, THE DATE HE SUBMITTED HIS RESIGNATION AND HE SHOULD HAVE BEEN SEPARATED FROM THE SERVICE ON THAT DATE AND PAID A LUMP SUM FOR THE REMAINING ANNUAL LEAVE TO HIS CREDIT. THIS ACTION WOULD BE IN ACCORDANCE WITH THE LUMP SUM PAYMENT STATUTORY EXCEPTION TO THE GENERAL RULE AS STATED IN 24 COMP. GEN. 511. THEREFORE, THE RECONSTRUCTED LEAVE ACCOUNT SET OUT IN THE STATEMENT ACCOMPANYING THE SUBMISSION SHOWING THE ADDITIONAL AMOUNT OF LEAVE DUE BASED UPON THE HIGHER LEAVE CATEGORY RATE AND SHOWING THE DATE OF SEPARATION AS C.O.B. DECEMBER 15, 1956, IS FOR ADOPTION HERE--- SUBJECT TO CORRECT COMPUTATION OF LEAVE AS SHOWN BY THE OFFICIAL LEAVE RECORDS.

CONCERNING THE MATTER OF SUBMITTING CLAIMS FOR ADDITIONAL AMOUNTS DUE SEPARATED OR DISCHARGED GOVERNMENT EMPLOYEES TO THE CLAIMS DIVISION OF THE GENERAL ACCOUNTING OFFICE FOR SETTLEMENT, SEE OUR CIRCULAR LETTER OF NOVEMBER 21, 1952, B-112891, 32 COMP. GEN. 675, IN WHICH WE SAID THAT SUCH CLAIMS ARE PROPERLY FOR ADMINISTRATIVE HANDLING AND PAYMENT, IN THE EVENT (1) APPROPRIATIONS THEREFOR ARE AVAILABLE TO THE ADMINISTRATIVE OFFICE, (2) SUCH CLAIMS ARE OTHERWISE FREE FROM ANY DOUBTFUL QUESTION OF LAW OR FACT, AND (3) ENTITLEMENT THERETO IS CLEARLY APPARENT. ONLY SUCH CLAIMS CONTAINING DOUBTFUL QUESTIONS OF LAW OR FACT NEED BE FORWARDED TO OUR CLAIMS DIVISION FOR SETTLEMENT.