B-36925, SEPTEMBER 30, 1943, 23 COMP. GEN. 244

B-36925, SEPTEMBER 30, 1943, 23 COMP. GEN. 244

COMPENSATION - ABSENCE ON AUTHORIZED LEAVE WITHOUT PAY FOR PORTION OF THIRTY-FIRST DAY OF MONTH THE PROVISION OF THE ACT OF JUNE 30, 1906, REQUIRING THE FORFEITURE OF ONE DAY'S PAY FOR UNAUTHORIZED ABSENCE ON THE 31ST DAY OF A MONTH, IS NOT APPLICABLE IN THE CASE OF AN EMPLOYEE WHO WAS ABSENT ON ANNUAL LEAVE THROUGH A PORTION OF THE 31ST DAY OF A MONTH AND ON AUTHORIZED LEAVE WITHOUT PAY DURING THE REMAINDER OF THAT DAY.

ACTING COMPTROLLER GENERAL YATES TO N. A. OLMSTEAD, DEPARTMENT OF AGRICULTURE, SEPTEMBER 30, 1943:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 8, 1943 (FILE T-), AS FOLLOWS:

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THE ATTACHED PAY VOUCHER CLAIMING SALARY OF JOHN F. ANDRYCZAK MAY BE CERTIFIED FOR PAYMENT AS STATED. THE VOUCHER, AS STATED, COVERS A FULL SEMI-MONTHLY PAYMENT, WHEREAS FOR MR. ANDRYCZAK'S FURLOUGH WITHOUT PAY FOR ACTIVE MILITARY TRAINING BEGAN AT 10:30 A.M., AUGUST 31, 1943, HIS EARNED LEAVE NOT BEING SUFFICIENT TO CARRY HIM THROUGH THE CLOSE OF BUSINESS, AUGUST 31.

PARTICULAR NOTICE HAS BEEN TAKEN OF YOUR DECISION OF APRIL 24, 1943, TO T. BARDEN SEXTON, B-33660, (22 COMP. GEN. 990) WHICH PROVIDES (QUOTING FROM THE SYNOPSIS):

"THE ENTRY OF AN EMPLOYEE INTO THE ACTIVE MILITARY OR NAVAL SERVICE IS TO BE REGARDED AS A ,SEPARATION" UNDER SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS, PROVIDING THAT AN EMPLOYEE WHO IS INDEBTED TO THE GOVERNMENT FOR ADVANCED ANNUAL LEAVE AT THE TIME OF HIS SEPARATION FROM THE SERVICE SHALL BE CHARGED WITH SUCH INDEBTEDNESS.'

PRIOR TO THIS DECISION, IT WAS OUR UNDERSTANDING THAT THE FINAL SALARY PAYMENT OF AN INDIVIDUAL WHO IS BEING FURLOUGHED WITHOUT PAY FOR ACTIVE MILITARY TRAINING AND SERVICE SHOULD BE COMPUTED IN THE SAME MANNER AS AN EMPLOYEE WHO HAD BEEN GRANTED LEAVE WITHOUT PAY FOR OTHER REASONS. THIS VIEW WAS APPARENTLY SUPPORTED BY SECTION 8 (C) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, WHICH READS AS FOLLOWS:

ANY PERSON WHO IS RESTORED TO A POSITION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (A) OR (B) OF SUB-SECTION (B) SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF TRAINING AND SERVICE IN THE LAND OR NAVAL FORCES, SHALL BE SO RESTORED WITHOUT LOSS OF SENIORITY, SHALL BE ENTITLED TO PARTICIPATE IN INSURANCE OR OTHER BENEFITS OFFERED BY THE EMPLOYER PURSUANT TO ESTABLISHED RULES AND PRACTICES RELATING TO EMPLOYEES ON FURLOUGH OR LEAVE OF ABSENCE IN EFFECT WITH THE EMPLOYER AT THE TIME SUCH PERSON WAS INDUCTED INTO SUCH FORCES, AND SHALL NOT BE DISCHARGED FROM SUCH POSITION WITHOUT CAUSE WITHIN ONE YEAR AFTER SUCH RESTORATION.'

ALTHOUGH YOUR DECISION INDICATES THAT THE ENTRANCE OF AN EMPLOYEE UNDER THE ACTIVE MILITARY OR NAVAL SERVICE IS TO BE REGARDED AS A SEPARATION UNDER SECTION 4 (B) OF THE ANNUAL LEAVE REGULATIONS IT IS OUR UNDERSTANDING THAT SUCH A FURLOUGH IS NOT REGARDED AS A SEPARATION FOR ALL PURPOSES. FOR EXAMPLE, WE HAVE BEEN INFORMALLY ADVISED THAT THE CIVIL SERVICE COMMISSION DOES NOT PERMIT AN EMPLOYEE WHO HAS BEEN FURLOUGHED FOR MILITARY TRAINING AND SERVICE TO WITHDRAW RETIREMENT DEDUCTIONS UNLESS HE HAS SUBMITTED RESIGNATION.

YOUR OPINION IS RESPECTFULLY REQUESTED, THEREFORE, AS TO WHETHER MR. ANDRYCZAK IS ENTITLED TO 15 DAYS SALARY AS CLAIMED OR WHETHER DEDUCTIONS SHOULD BE MADE FOR THE 5 1/2 HOURS ON AUGUST 31 WHICH WERE NOT COVERED BY EARNED ANNUAL LEAVE.

IN DECISION OF MAY 11, 1926, 5 COMP. GEN. 904, IT WAS STATED AS FOLLOWS:

THE ACT OF JUNE 30, 1906, 34 STAT. 763, PROVIDES THAT FOR ONE DAY'S UNAUTHORIZED ABSENCE ON THE 31ST DAY OF A MONTH ONE DAY'S PAY SHALL BE FORFEITED. IT HAS BEEN HELD THAT THE PROVISION RELATIVE TO FORFEITURE FOR UNAUTHORIZED ABSENCE ON THE 31ST DAY OF A MONTH IS NOT APPLICABLE TO EMPLOYEES WHO ARE SEPARATED FROM THE SERVICE ON THE 30TH DAY OF A 31-DAY MONTH. SEE 26 COMP. DEC. 687; 3 COMP. GEN. 97. SEE, ALSO, 12 COMP. GEN. 123.

THE RULE STATED IN THE ABOVE-QUOTED DECISION (22 COMP. GEN. 990). EQUALLY APPLICABLE IN THE INSTANT CASE. THE FACT THAT THE EMPLOYEE WAS ON AUTHORIZED FURLOUGH WITHOUT PAY FOR A PART OF THE 31ST DAY OF AUGUST, 1943, DOES NOT REQUIRE FORFEITURE OF ANY PORTION OF HIS SEMIMONTHLY COMPENSATION FOR THE PERIOD AUGUST 16 TO 31, 1943. ACCORDINGLY, THE VOUCHER, IF OTHERWISE CORRECT, MAY BE CERTIFIED FOR PAYMENT.