B-156451, APR. 20, 1965, 44 COMP. GEN. 636

B-156451, APR. 20, 1965, 44 COMP. GEN. 636

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - DECEASED EMPLOYEES - EXCESS LEAVE ACCUMULATION. LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - LIMITATION - CHANGES BY OPERATION OF LAW - DECEDENT'S ESTATES EMPLOYEE DIES AT OR NEAR THE END OF THE LEAVE YEAR IS THE SAME AS UNUSED EXCESS ANNUAL LEAVE WHICH WOULD BE FORFEITED IF THE EMPLOYEE HAD BEEN SEPARATED FROM THE SERVICE ON THE SAME DAY AND, THEREFORE, IN THE ABSENCE OF ANY CONGRESSIONAL INTENT TO INDICATE THAT THE AMENDMENTS TO SECTION 2 OF THE ACT OF AUGUST 3, 1950, AMENDING THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 5 U.S.C. 61G, WERE DESIGNED TO GRANT LARGER BENEFITS TO BENEFICIARIES OF DECEASED EMPLOYEES THAN TO LIVING EMPLOYEES THE DECEASED EMPLOYEE'S ESTATE IS NOT ENTITLED TO HAVE THE EXCESS UNUSED ANNUAL LEAVE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT. THE HOLDING IN 24 COMP. GEN. 659 (1945) THAT AN EMPLOYEE WHO RESIGNS OR ENTERS THE ARMED FORCES MAY BE PAID FOR ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE EVEN THOUGH THE LEAVE PERIOD OVER WHICH THE LUMP-SUM PAYMENT EXTENDS INTO THE NEXT CALENDAR YEAR WAS MADE INOPERATIVE BY THE ACT OF JULY 2, 1953, 67 STAT. 138, 5 U.S.C. 61B, WHICH PLACED A LIMITATION ON THE AMOUNT OF ANNUAL LEAVE WHICH COULD BE PAID IN A LUMP SUM ON SEPARATION AND, THEREFORE, SUCH HOLDING HAS NO APPLICATION IN DECEASED EMPLOYEE CASES WHERE EMPLOYEES HAVE UNUSED ANNUAL LEAVE IN EXCESS OF 30 DAYS, OR THE AMOUNT OF ACCUMULATED LEAVE FROM THE PRIOR YEAR, IN THE ABSENCE OF ANY CONGRESSIONAL INDICATION THAT THE AMOUNT OF CURRENT ACCRUED LEAVE DUE THE ESTATE OF A DECEASED EMPLOYEE SHOULD EXCEED THAT WHICH THE EMPLOYEE COULD HAVE TAKEN IN KIND HAD HE LIVED AND REMAINED IN THE SERVICE.

TO BAXTER REED, UNITED STATES DEPARTMENT OF AGRICULTURE, APRIL 20, 1965:

YOUR LETTER OF MARCH 29, 1965, REFERENCE 6540, REQUESTS OUR DECISION WHETHER THE ATTACHED VOUCHER FOR $316.91 IN FAVOR OF FRANCES G. JOHNSON, COVERING UNPAID COMPENSATION ALLEGEDLY DUE HAROLD R. JOHNSON, DECEASED EMPLOYEE OF THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, MAY BE CERTIFIED FOR PAYMENT.

YOUR LETTER RECITES THE FACTS PERTINENT TO MR. JOHNSON'S CASE AS FOLLOWS:

MR. HAROLD R. JOHNSON DIED JANUARY 1, 1965 (FRIDAY). THE LEAVE YEAR ENDED JANUARY 2, 1965. AS OF THE CLOSE OF BUSINESS JANUARY 1, MR. JOHNSON HAD TO HIS CREDIT 562 HOURS ANNUAL LEAVE. HE HAD BEEN IN ANNUAL LEAVE STATUS FOR THE PERIOD 12/17-31/64. HIS ANNUAL LEAVE CARRYOVER BALANCE IS 495 HOURS. HAD HE REMAINED IN THE SERVICE HIS ANNUAL LEAVE BALANCE BEGINNING JANUARY 3, 1965, WOULD HAVE BEEN 495. HE WOULD HAVE LOST THE 67 HOURS. HIS TOUR OF DUTY IS MONDAY THROUGH FRIDAY.

YOU SAY THAT A LUMP-SUM PAYMENT FOR LEAVE HAS BEEN MADE FOR 495 HOURS PLUS 8 HOURS FOR FEBRUARY 22, 1965. ALSO PAYMENT OF COMPENSATION HAS BEEN MADE FOR 80 HOURS COVERING THE PERIOD BEGINNING DECEMBER 20, 1964, AND ENDING JANUARY 2, 1965.

THE TRANSMITTED VOUCHER COVERS 67 HOURS OF LEAVE, BEING THE DIFFERENCE BETWEEN THE TOTAL ANNUAL LEAVE (562 HOURS) TO MR. JOHNSON'S CREDIT ON THE DATE OF HIS DEATH AND 495 HOURS WHICH WE UNDERSTAND TO HAVE BEEN HIS CEILING FOR ACCUMULATED LEAVE ESTABLISHED AT THE BEGINNING OF THE 1964 LEAVE YEAR. YOUR DOUBT CONCERNING HIS CASE ARISES FROM SECTION 2 OF THE ACT OF AUGUST 3, 1950, AS AMENDED BY SECTION 5 OF PUBLIC LAW 102, APPROVED JULY 2, 1953, 67 STAT. 138, SECTION 501 OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 68 STAT. 1115, AND SECTION 1 OF PUBLIC LAW 85-914, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1761.

CLAUSE (6) OF SECTION 2 OF THE ACT OF AUGUST 3, 1950, AS SO AMENDED, 5 U.S.C. 61G, READS AS FOLLOWS:

* * * (6) PAYMENT FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE EQUAL TO THE COMPENSATION THE DECEDENT WOULD HAVE RECEIVED HAD HE LIVED AND REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE;

THE PURPOSE OF SECTION 501 OF PUBLIC LAW 763 IS EXPLAINED IN THE CONFERENCE REPORT ON H.R. 2263 WHICH BECAME PUBLIC LAW 763, H.R.REPT. NO. 2665, 83D CONG., ON PAGE 27, AS FOLLOWS:

SECTION 501 OF THE CONFERENCE SUBSTITUTE AMENDS SECTION 2 OF THE ACT OF AUGUST 3, 1950, AS AMENDED BY SECTION 5 OF THE ACT OF JULY 2, 1953, WHICH PROVIDES, IN PART, FOR THE LUMP-SUM PAYMENT FOR ALL ACCUMULATED ANNUAL LEAVE TO SURVIVORS OF DECEASED OFFICERS AND EMPLOYEES IN AN AMOUNT EQUAL TO THE COMPENSATION THAT THE DECEDENT WOULD HAVE RECEIVED IF HE HAD REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL LEAVE. PAYMENT UNDER EXISTING LAW MAY BE MADE FOR CURRENT ACCRUED LEAVE ONLY WHERE THE TOTAL DOES NOT EXCEED 30 DAYS. SECTION 501 SO AMENDS THIS PROVISION TO PERMIT CURRENT ACCRUED ANNUAL LEAVE TO BE ADDED TO THE ACCUMULATED LEAVE AND BE PAID IN A LUMP-SUM PAYMENT EVEN THOUGH THE TOTAL LEAVE EQUALS OR EXCEEDS THE 30-DAY MAXIMUM.

THE AMENDMENT TO SECTION 2 OF THE ACT OF AUGUST 3, 1950, BY THE 1958 ACT, PUBLIC LAW 85-914, CORRECTED AN INEQUITY IN CASES OF THE LUMP-SUM PAYMENT OF EMPLOYEES WHO DIED WHILE STATIONED OVERSEAS AND BY ADDING THE WORD "LIVED" CLARIFIED THE EFFECT OF THE AMENDMENT IN SECTION 501 OF PUBLIC LAW 763.

THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, AS AMENDED BY SECTION 4 OF THE 1953 ACT, PUBLIC LAW 102, 67 STAT. 137, 5 U.S.C. 61B, APPLICABLE TO SURVIVING SEPARATED EMPLOYEES WAS NOT SUBSEQUENTLY AMENDED AND THUS A SURVIVING EMPLOYEE WHO SEPARATED FROM THE SERVICE ON THE SAME DAY AND WITH THE SAME LEAVE CREDITS, AS PRESENT IN THIS CASE, WOULD NOT HAVE BEEN ENTITLED TO RECEIVE THE UNUSED CURRENT ACCRUED LEAVE AS A PART OF HIS LUMP -SUM LEAVE PAYMENT. SINCE THE AMENDMENTS TO SECTION 2 OF THE 1950 ACT, CONSTRUED IN THE LIGHT OF THEIR LEGISLATIVE HISTORY, EVIDENCE NO INTENT TO GRANT LARGER BENEFITS TO BENEFICIARIES OF DECEASED THAN TO SURVIVING EMPLOYEES, WE CONCLUDE, IN THE CASE SUBMITTED BY YOU, THAT THE 67 HOURS CURRENT ACCRUED LEAVE, UNUSED AT THE END OF THE LEAVE YEAR IN WHICH IT ACCRUED, MAY NOT BE INCLUDED IN THE LUMP-SUM PAYMENT.

WE INVITE ATTENTION TO OUR DECISION IN 24 COMP. GEN. 659, WHEREIN WE RULED, QUOTING FROM THE SYLLABUS, AS FOLLOWS:

ANSWER TO QUESTION 1.

WHERE, AT OR NEAR THE END OF A CALENDAR YEAR, AN EMPLOYEE RESIGNS OR ENTERS THE ARMED FORCES WITH MORE THAN 90 DAYS' ANNUAL LEAVE TO HIS CREDIT, THE LUMP-SUM PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, FOR ALL ACCUMULATED AND CURRENT ACCRUED LEAVE MAY INCLUDE PAYMENT FOR ALL CURRENT ACCRUED LEAVE AS WELL AS THE 90 DAYS' ACCUMULATED LEAVE, EVEN THOUGH THE LEAVE PERIOD OVER WHICH THE LUMP SUM PAYMENT IS COMPUTED EXTENDS INTO THE NEXT CALENDAR YEAR AND, UNDER THE ACT OF DECEMBER 17, 1942, ONLY 90 DAYS' ANNUAL LEAVE MAY BE CARRIED OVER FROM ONE YEAR TO THE NEXT.

THAT DECISION (ANSWER TO QUESTION 1) HAS NOT BEEN IN OPERATION SINCE THE ENACTMENT OF PUBLIC LAW 102, APPROVED JULY 2, 1953, WHICH PLACED A LIMITATION ON THE AMOUNT OF ANNUAL LEAVE WHICH COULD BE PAID IN A LUMP SUM ON SEPARATION FROM THE SERVICE. AS PREVIOUSLY INDICATED, OUR VIEW IS THAT WHEN ACTIONS WERE TAKEN IN 1954 AND 1958 TO AMEND THE EXISTING LAW TO PERMIT INCLUSION IN A LUMP-SUM PAYMENT IN DECEASED CASES OF CURRENT ACCRUED ANNUAL LEAVE (IN EXCESS OF 30 DAYS OR OF THE AMOUNT OF ACCUMULATED LEAVE FROM THE PRIOR YEAR), IT WAS NOT INTENDED THAT THE AMOUNT OF SUCH CURRENT ACCRUED LEAVE SHOULD EXCEED THAT WHICH AN EMPLOYEE COULD HAVE TAKEN IN KIND HAD HE LIVED AND REMAINED IN THE SERVICE. THEREFORE, SUCH DECISION (ANSWER TO QUESTION 1) IS NO LONGER FOR APPLICATION IN DECEASED CASES OR OTHERWISE.

SINCE IT APPEARS THAT MR. JOHNSON HAS BEEN PAID ALL TO WHICH HE IS ENTITLED, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.