B-159276, JUN. 17, 1966

B-159276, JUN. 17, 1966

TO AUTHORIZED CERTIFYING OFFICER, BUREAU OF MINES, UNITED STATES DEPARTMENT OF THE INTERIOR DENVER FEDERAL CENTER:

YOUR LETTER OF MAY 24, 1966, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER TRANSMITTED THEREWITH IN FAVOR OF WILLIAM P. ZELINSKI FOR $31.84 REPRESENTING A LUMP-SUM LEAVE PAYMENT FOR 16 HOURS ANNUAL LEAVE.

YOU REPORT THAT MR. ZELINSKI RECEIVED A CAREER-CONDITIONAL APPOINTMENT AS A STUDENT TRAINEE ON JUNE 25, 1964. DURING THE PERIOD JUNE 25 THROUGH SEPTEMBER 3, 1964 (A TOTAL OF 71 DAYS), THE EMPLOYEE WORKED FULL TIME WITH A REGULARLY SCHEDULED TOUR OF DUTY. EFFECTIVE SEPTEMBER 4, 1964, MR. ZELINSKI'S EMPLOYMENT STATUS WAS CHANGED TO ON INTERMITTENT BASIS BY MEANS OF A PAY ADJUSTMENT ACTION. IT APPEARS THAT NO SEPARATION OR TRANSFER WAS EFFECTED AT THAT TIME. DURING THE PERIOD SEPTEMBER 4, 1964, TO MAY 25, 1965, THE EMPLOYEE REMAINED IN AN INTERMITTENT STATUS WITH NO PRESCRIBED TOUR OF DUTY. ON MAY 25, 1965, HE RETURNED TO A FULL-TIME STATUS WITH A REGULAR TOUR OF DUTY AND RENDERED FULL-TIME SERVICE UNTIL SEPTEMBER 10, 1965, WHEN HIS EMPLOYMENT AGAIN WAS CHANGED TO AN INTERMITTENT BASIS. CONTINUED TO SERVE AS AN INTERMITTENT EMPLOYEE UNTIL HIS RESIGNATION ON DECEMBER 9, 1965.

MR. ZELINSKI WAS NOT CREDITED WITH ANNUAL LEAVE FOR THE PERIOD JUNE 25 THROUGH SEPTEMBER 3, 1964, SINCE HE PERFORMED ONLY 71 DAYS ON FULL TIME SERVICE. UPON HIS RETURN TO A FULL-TIME STATUS ON MAY 25, 1965, IT WAS ADMINISTRATIVELY DETERMINED THAT HE WOULD HAVE TO COMMENCE A NEW 90-DAY QUALIFYING PERIOD IN ACCORDANCE WITH SECTION 203/I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED. YOU SUGGEST THAT THE EMPLOYEE MAY BE CREDITED WITH ANNUAL LEAVE FOR THE PERIOD JUNE 25 THROUGH SEPTEMBER 3, 1964, EITHER ON THE THEORY THAT (1) HE COMPLETED THE 90-DAY QUALIFYING PERIOD ON JUNE 12, 1965 (A COMBINATION OF THE 71 DAYS OF FULL-TIME SERVICE RENDERED DURING THE PERIOD JUNE 25 THROUGH SEPTEMBER 3, 1964, AND 19 DAYS FULL-TIME SERVICE RENDERED DURING THE PERIOD MAY 25 THROUGH JUNE 12, 1965), OR (2) HE COMPLETED THE 90-DAY QUALIFYING PERIOD ON SEPTEMBER 22, 1964 (A COMBINATION OF THE 71 DAYS OF FULL-TIME SERVICE DURING THE PERIOD JUNE 25 THROUGH SEPTEMBER 3, 1964, AND 19 DAYS OF THE FOLLOWING INTERMITTENT SERVICE).

WE ARE CONCERNED HERE WITH THE APPLICATION OF SECTION 203/I) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062/I), WHICH PROVIDES:

"NOTWITHSTANDING THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION, AN OFFICER OR EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE UNDER THIS CHAPTER ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT BREAK IN SERVICE. ANY CASE IN WHICH AN OFFICER OR EMPLOYEE COMPLETES A PERIOD OF CONTINUOUS EMPLOYMENT OF NINETY DAYS THERE SHALL BE CREDITED TO HIM AN AMOUNT OF ANNUAL LEAVE EQUAL TO THE AMOUNT WHICH, BUT FOR THIS SUBSECTION WOULD HAVE ACCRUED TO HIM UNDER SUBSECTION (A) OF THIS SECTION DURING SUCH PERIOD.'

IN 31 COMP. GEN. 215, WE HELD, QUOTING FROM THE SYLLABUS:

"UNDER THE PROVISIONS OF SECTION 202/B) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, EXCLUDING FROM THE LEAVE BENEFITS UNDER THE ACT PART-TIME OFFICERS AND EMPLOYEES (EXCEPT HOURLY EMPLOYEES IN THE FIELD SERVICE OF THE POST OFFICE DEPARTMENT) FOR WHOM THERE HAS NOT BEEN ESTABLISHED A REGULAR TOUR OF DUTY DURING EACH WORKWEEK, EMPLOYEES WITH WHEN ACTUALLY- EMPLOYED APPOINTMENTS WHOSE REGULAR TOUR OF DUTY HAS NOT BEEN PRESCRIBED IN ADVANCE AND NOT ENTITLED TO THE LEAVE BENEFITS OF THE ACT EVEN THOUGH THEY MIGHT ACTUALLY WORK FULL TIME FOR LONG PERIODS.'

IN 35 COMP. GEN. 638, WE HELD:

"SECTION 203/I) SUSPENDS ANY CREDIT FOR ANNUAL LEAVE "UNDER THIS TITLE" UNTIL THE EMPLOYEE SHALL HAVE BEEN EMPLOYED CONTINUOUSLY FOR A PERIOD OF 90 DAYS. THE CONCLUSION IS REQUIRED THAT THE 90-DAY EMPLOYMENT PERIOD MUST BE IN A POSITION NOT EXCLUDED FROM THE ACCRUAL OF LEAVE UNDER SECTION 202 OF THAT ACT UNLESS SUCH POSITION BE ONE IN WHICH LEAVE IS TRANSFERABLE UNDER SECTION 205 OF THE ACT, 5 U.S.C. 2064. * * * "

SINCE MR. ZELINSKI SERVED ON AN INTERMITTENT BASIS WITH NO PRESCRIBED REGULAR TOUR OF DUTY DURING THE PERIOD SEPTEMBER 4, 1964, TO MAY 25, 1965, IT FOLLOWS FROM THE ABOVE THAT NO PART OF SUCH PERIOD OF INTERMITTENT SERVICE MAY BE CREDITED TOWARD THE 90-DAY QUALIFYING PERIOD. HOWEVER, THIS DOES NOT MEAN THAT IN THE CIRCUMSTANCES PRESENTED SUCH PERIOD OF INTERMITTENT SERVICE NECESSARILY CONSTITUTES A "BREAK IN SERVICE" WITHIN THE MEANING OF SECTION 203 (I) ABOVE.

IN 37 COMP. GEN. 523 WE CONSIDERED THE CASE OF A GROUP OF STUDENT TRAINEES WHO HELD CAREER-CONDITIONAL APPOINTMENTS UNDER WHICH THEY PERFORMED FULL-TIME SERVICE WITH REGULAR TOURS OF DUTY DURING THE SUMMER. UPON RESUMPTION OF THE SCHOOL YEAR EACH STUDENT EMPLOYEE WAS CHANGED TO A WAE INTERMITTENT BASIS BY THE ISSUANCE OF A PAY ADJUSTMENT ACTION ON A PAYROLL CHANGE SLIP BUT CONTINUED TO HOLD THE SAME CAREER CONDITIONAL APPOINTMENT. UNDER THE SPECIFIC FACTS OF THAT CASE, WE HELD THAT THE PERIOD OF INTERMITTENT EMPLOYMENT DID NOT CONSTITUTE A BREAK IN SERVICE SO AS TO REQUIRE A NEW 90-DAY QUALIFYING PERIOD UPON THE STUDENT'S RETURN TO A FULL-TIME STATUS THE FOLLOWING SUMMER. CONSISTENT WITH THAT DECISION WE HOLD THAT MR. ZELINSKI DID NOT HAVE TO BEGIN A NEW 90-DAY QUALIFYING PERIOD UPON HIS RETURN TO FULL-TIME EMPLOYMENT ON MAY 25, 1965, BUT THAT HE MAY BE REGARDED AS HAVING COMPLETED THE 90-DAY QUALIFYING PERIOD ON JUNE 12, 1965, AS SUGGESTED IN YOUR LETTER.

THEREFORE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.