B-22939, JANUARY 20, 1942, 21 COMP. GEN. 694

B-22939, JANUARY 20, 1942, 21 COMP. GEN. 694

LEAVES OF ABSENCE - RETIREMENT AND REAPPOINTMENT WITHOUT BREAK IN SERVICE - LEAVE ADJUSTMENTS WHERE A NAVY DEPARTMENT EMPLOYEE WAS RETIRED FOR AGE AND REAPPOINTED TO HIS FORMER POSITION THE NEXT DAY UNDER AUTHORITY OF THE ACT OF JUNE 28, 1940, THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS AND REGULATIONS ARE APPLICABLE THE SAME AS IN ANY OTHER CASE OF SEPARATION AND REAPPOINTMENT WITHOUT BREAK IN SERVICE, AND, THEREFORE, THE EMPLOYEE SHOULD BE CREDITED UNDER HIS REAPPOINTMENT WITH THE ANNUAL AND SICK LEAVE ACCRUED AND UNUSED UNDER HIS SERVICE PRIOR TO RETIREMENT. WHERE A NAVY DEPARTMENT EMPLOYEE WAS RETIRED FOR AGE AND REAPPOINTED TO HIS FORMER POSITION THE NEXT DAY UNDER AUTHORITY OF THE ACT OF JUNE 28, 1940, THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS AND REGULATIONS ARE APPLICABLE THE SAME AS IN ANY OTHER CASE OF SEPARATION AND REAPPOINTMENT WITHOUT BREAK IN SERVICE SO AS TO REQUIRE, UPON HIS SUBSEQUENT SEPARATION FROM THE SERVICE BY VOLUNTARY RESIGNATION, THE COLLECTION OF THE AMOUNT OF COMPENSATION RECEIVED FOR ANY ANNUAL OR SICK LEAVE USED FOR UNACCRUED DURING THE ENTIRE PERIOD OF SERVICE EITHER BEFORE OR AFTER RETIREMENT.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JANUARY 20, 1942:

I HAVE A LETTER DATED JANUARY 2, 1942 (FILE P.S. AND M.-6A-PG), FROM THE DIRECTOR OF PERSONNEL, NAVY DEPARTMENT, AS FOLLOWS:

THE ENCLOSED COPY OF A LETTER RECEIVED FROM THE COMMANDANT, NAVY YARD, WASHINGTON, D.C., IN THE CASE OF LARRY W. HUNT, RETIRED AND REEMPLOYED, IS RESPECTFULLY REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR DECISION ON THE THIRD PARAGRAPH THEREOF, AS THE U.S. CIVIL SERVICE COMMISSION HAS ADVISED THAT THE MATTER APPEARS TO BE ONE FOR A DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES RATHER THAN THE CIVIL SERVICE COMMISSION.

THE REFERRED-TO LETTER IS DATED NOVEMBER 28, 1941, AND READS AS FOLLOWS: FROM: COMMANDANT. O: ASSISTANT SECRETARY OF THE NAVY ( DIVISION OF PERSONNEL

SUPERVISION AND MANAGEMENT). SUBJECT: UNACCRUED LEAVE USED AND PAID FOR IN THE CASE OF LARRY W.

HUNT, RETIRED AND REEMPLOYED. REFERENCES: (A) SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS AS

AMENDED BY THE ACT OF 2 MARCH 1940.

(B) SECTION 11 OF THE SICK LEAVE REGULATIONS AS AMENDED

BY THE ACT OF 2 MARCH 1940.

(C) THE ACT APPROVED 28 JUNE 1740 ( PUBLIC--- NO.

671--- 76TH CONGRESS).

1. LARRY W. HUNT, BORN 12 JANUARY 1879, FORMERLY A BOILERMAKER IN THIS NAVY YARD, RETIRED FOR AGE ON 31 MAY 1941 AFTER HAVING ACQUIRED FIFTEEN YEARS OF ANNUITABLE SERVICE, AND, AS AUTHORIZED BY REFERENCE (C), WAS REEMPLOYED 1 JUNE 1941 IN HIS FORMER POSITION. HE RESIGNED ON 17 SEPTEMBER 1941 IN ORDER THAT HIS NAME MAY BE RESTORED TO THE ROLL OF ANNUITANTS.

2. AT THE TIME OF HIS REEMPLOYMENT ON 1 JUNE 1941 HE HAD TO HIS CREDIT 12 1/8 DAYS OF ANNUAL LEAVE AND 4 4/8 DAYS OF SICK LEAVE WHICH HE HAD NOT TAKEN, AND AT THE TIME OF HIS RESIGNATION ON 17 SEPTEMBER 1941 HE HAD USED UNACCRUED LEAVE AS PERMITTED UNDER THE REGULATIONS.

3. SINCE THE NATURE OF THE SECOND SEPARATION WAS A VOLUNTARY ONE, INFORMATION IS REQUESTED AS TO WHETHER OR NOT A REFUND OF THE AMOUNT INVOLVED IN THE ADVANCED LEAVE SHALL BE REQUIRED.

SECTION 6 OF THE ACT OF JUNE 28, 1940, 54 STAT. 679, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

NOTWITHSTANDING THE PROVISIONS OF SECTION 2 OF THE ACT OF MAY 29, 1930 (46 STAT. 468), AND SECTION 204 OF THE ACT OF JUNE 30, 1932 (47 STAT. 404), ANY PERSON HERETOFORE OR HEREAFTER RETIRED UNDER THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, AS AMENDED, MAY BE REEMPLOYED IN THE SERVICE OF THE WAR AND NAVY DEPARTMENTS: PROVIDED, THAT THERE SHALL BE DEDUCTED AND WITHHELD FROM THE BASIC SALARY, PAY, OR COMPENSATION OF SUCH PERSON AND CREDITED TO HIS ACCOUNT AS PROVIDED IN SECTION 12 (A) OF THE ACT OF MAY 29, 1930, AS AMENDED, THE REGULAR DEDUCTIONS PRESCRIBED BY THE SAID ACT: PROVIDED FURTHER, THAT UPON SEPARATION FROM THE SERVICE FOR ANY CAUSE SUCH PERSON MAY ELECT TO RECEIVE A REFUND OF THE TOTAL DEDUCTIONS SO WITHHELD TOGETHER WITH INTEREST AT 4 PERCENTUM PER ANNUM COMPOUNDED ON JUNE 30 OF EACH YEAR, OR RECEIVE CREDIT FOR THE ADDITIONAL SERVICE IN THE COMPUTATION OF ANY ANNUITY AWARDED THEREAFTER: PROVIDED FURTHER, THAT PAYMENT OF THE ANNUITY OF SUCH PERSON SHALL BE SUSPENDED DURING THE PERIOD OF SUCH EMPLOYMENT: * * *

SECTION 4 (B), ANNUAL LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8384, DATED MARCH 29, 1940), PROVIDES:

IN CASES OF SEPARATION WHERE AN EMPLOYEE IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE, SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED ANNUAL LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH SUCH EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY. THIS SUBSECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

SECTION 11, SICK LEAVE REGULATIONS ( EXECUTIVE ORDER NO. 8385, DATED MARCH 29, 1940), PROVIDES:

IN THE CASE OF VOLUNTARY SEPARATION OR REMOVAL FOR CAUSE OF AN EMPLOYEE TO WHOM SICK LEAVE HAS BEEN ADVANCED IN AN AMOUNT IN EXCESS OF THAT ACCUMULATED, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM OR FROM ANY AMOUNT IN THE RETIREMENT FUND TO HIS CREDIT. SUCH INDEBTEDNESS SHALL BE CHARGED AGAINST THE EMPLOYEE ON THE BASIS OF THE SALARY RATE OBTAINING DURING THE PERIOD OF ADVANCED SICK LEAVE AND ON THE BASIS OF ONE DAY'S PAY FOR EACH DAY OF ABSENCE ON A DAY UPON WHICH THE EMPLOYEE WOULD OTHERWISE WORK AND RECEIVE PAY, SUCH DAYS OF ABSENCE BEING EXCLUSIVE OF SUNDAYS WHICH DO NOT OCCUR WITHIN A REGULAR TOUR OF DUTY, HOLIDAYS, AND ALL NONWORK DAYS ESTABLISHED BY FEDERAL STATUTE OR BY EXECUTIVE OR ADMINISTRATIVE ORDER. ABSENCES FOR FRACTIONAL PARTS OF A DAY SHALL BE CHARGED PROPORTIONATELY. THIS SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR AGE OR DISABILITY, OR REDUCTION OF FORCE, OR IN CASE AN EMPLOYEE WHO IS NOT ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE CERTIFICATE FROM A REGISTERED PRACTICING PHYSICIAN OR OTHER PRACTITIONER.

ALSO, THERE ARE FOR CONSIDERATION IN THIS CASE, SECTION 6 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 9 OF THE SICK LEAVE REGULATIONS, PROVIDING, RESPECTIVELY, IN PERTINENT PART, AS FOLLOWS:

SEC. 6. AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH SUCH ACCUMULATED AND CURRENT ACCRUED LEAVE AS MAY BE DUE HIM, OR CHARGED WITH ANY UNACCRUED LEAVE WHICH MAY HAVE BEEN ADVANCED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936. * * *

SEC. 9. AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY, OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY, OR INDEFINITE POSITION WITHIN THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH ACCUMULATED SICK LEAVE, AND CHARGED WITH SICK LEAVE PREVIOUSLY ADVANCED IN EXCESS OF THAT ACCUMULATED, PROVIDED SUCH LATTER POSITION IS ALSO WITHIN THE PURVIEW OF THE SAID ACT OF MARCH 14, 1936. * * *

THE EMPLOYEE IN THIS CASE WAS REAPPOINTED AFTER HIS RETIREMENT BY AUTHORITY OF LAW, AND HIS REAPPOINTMENT WAS WITHOUT BREAK IN SERVICE IN THE POSITION HE HELD PRIOR TO RETIREMENT. UNDER SUCH CIRCUMSTANCES THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACTS AND THE REGULATIONS THEREUNDER APPEAR APPLICABLE HERE IN THE SAME MANNER AS IN ANY OTHER CASE OF SEPARATION AND REAPPOINTMENT WITHOUT BREAK IN SERVICE. THE FACT THAT THE FIRST SEPARATION IN THIS CASE WAS BY RETIREMENT IS IMMATERIAL. THAT IS TO SAY, THE LEAVE ACCOUNT OF THE EMPLOYEE SHOULD BE ADJUSTED ON THE BASIS OF HIS ENTIRE PERIOD OF SERVICE BOTH BEFORE AND AFTER RETIREMENT; AND, UPON THAT BASIS, THE EMPLOYEE SHOULD BE CREDITED UNDER HIS REAPPOINTMENT AFTER RETIREMENT WITH THE ANNUAL AND SICK LEAVE ACCRUED AND UNUSED UNDER HIS SERVICE PRIOR TO RETIREMENT.

IN DECISION OF JULY 6, 1938, 18 COMP. GEN. 13, 16, IT WAS HELD AS FOLLOWS:

THE PROVISIONS OF SECTION 4 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS ARE FOR APPLICATION ONLY UPON THE FINAL SEPARATION OF AN EMPLOYEE FROM THE SERVICE. AT THAT TIME THERE IS FOR CONSIDERATION WHETHER ALL UNEARNED ANNUAL AND SICK LEAVE SHOULD BE CHARGED TO THE EMPLOYEE WHETHER ADVANCED IN ONE OR MORE PERIODS.

ACCORDINGLY, AS THE LAST SEPARATION OF LARRY W. HUNT ON SEPTEMBER 17, 1941, WAS VOLUNTARY, SECTION 4 OF THE ANNUAL LEAVE REGULATIONS AND SECTION 11 OF THE SICK LEAVE REGULATIONS REQUIRE THAT THERE BE CHARGED TO AND COLLECTED FROM HIM THE AMOUNT OF COMPENSATION RECEIVED FOR OVERDRAWN ANNUAL AND SICK LEAVE DURING HIS ENTIRE PERIOD OF SERVICE BOTH BEFORE AND AFTER RETIREMENT, CREDITING HIM, OF COURSE, WITH THE LEAVE CARRIED OVER FROM SERVICE PRIOR TO RETIREMENT.