B-47646, FEBRUARY 16, 1945, 24 COMP. GEN. 617

B-47646, FEBRUARY 16, 1945, 24 COMP. GEN. 617

LEAVES OF ABSENCE - TERMINAL ANNUAL LEAVE PRECEDING EFFECTIVE DATE OF RETIREMENT IN VIEW OF THE REQUIREMENTS OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, A RAILWAY MAIL CLERK WHOSE RETIREMENT IS TO BECOME EFFECTIVE ON THE FIRST OF A CALENDAR MONTH, PURSUANT TO THE UNIFORM RETIREMENT DATE STATUTE OF APRIL 23, 1930, MAY NOT BE GRANTED TERMINAL ANNUAL LEAVE TO PREVENT A BREAK BETWEEN THE COMPLETION OF HIS LAST TOUR OF ROAD DUTY (LAST DAY OF ACTIVE SERVICE) NEAR THE END OF THE FINAL CALENDAR MONTH OF SERVICE BEFORE THE FIRST OF THE MONTH DOES NOT AFFECT HIS RIGHT TO RETIREMENT FOR WHICH OTHERWISE ELIGIBLE.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, FEBRUARY 16, 1945:

I HAVE YOUR LETTER OF FEBRUARY 8, 1945, REFERENCE 50, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTION WHICH HAS ARISEN SINCE THE SUBMISSION OF MY LETTER OF JANUARY 18, 1945, CONCERNING PUBLIC LAW 525.

IN THE RAILWAY MAIL SERVICE THE TRAIN SCHEDULES ARE SUCH AS TO PREVENT EMPLOYEES ASSIGNED TO ROAD DUTY FROM COMPLETING THEIR TOURS OF DUTY EXACTLY AT THE END OF THE MONTH. FOR EXAMPLE, A SCHEDULE INVOLVING FOUR CALENDAR DAYS FOR A ROUND-TRIP DUE TO START ON THE 29TH OF THE MONTH WOULD PREVENT A CLERK FROM COMPLETING HIS TOUR OF DUTY UNTIL AFTER THE BEGINNING OF THE FOLLOWING MONTH.

THE RETIREMENT ACT AS AMENDED BY PUBLIC LAW 165, APPROVED APRIL 31, (23), 1930, REQUIRED RETIREMENT SEPARATIONS TO BE MADE EFFECTIVE AT THE CLOSE OF THE MONTH. COMPLIANCE WITH THIS ACT HAS MADE IT NECESSARY THAT RAILWAY POSTAL CLERKS BE RELIEVED OF ASSIGNMENTS INVOLVING ROUND-TRIPS WHICH WOULD CONTINUE THEIR ACTIVE DUTY STATUS TO OR BEYOND THE FIRST OF THE MONTH IN WHICH RETIREMENT BECOMES EFFECTIVE. IT HAS BEEN THE PRACTICE TO GRANT ANNUAL LEAVE FOR THE PERIOD BETWEEN THE LAST DAY OF ACTIVE SERVICE, OR COMPLETION OF A TOUR OF ROAD DUTY, AND THE LAST DAY OF THE MONTH IMMEDIATELY PRECEDING RETIREMENT.

YOUR DECISION IS REQUESTED AS TO WHETHER EMPLOYEES IN THE RAILWAY MAIL SERVICE MAY BE GRANTED ANNUAL LEAVE IMMEDIATELY PRECEDING RETIREMENT WHEN THE GRANTING OF SUCH LEAVE IS NECESSARY TO BRIDGE THE GAP BETWEEN THE TERMINATION OF THE LAST TOUR OF ROAD DUTY AND THE LAST DAY OF THE MONTH ON WHICH SEPARATION FROM THE SERVICE WILL OCCUR.

THE LUMP-SUM PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, COVERS ANNUAL OR VACATION LEAVE TO THE CREDIT OF AN EMPLOYEE AT THE TIME OF SEPARATION FROM THE SERVICE. IN THE DECISION OF JANUARY 11, 1945, B-46683, 24 COMP. GEN. 511, IT WAS STATED IN ANSWER TO QUESTION (2) "THAT TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IN ANY CASE WHERE IT WAS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE" AND IN THE SAME DECISION IN ANSWER TO QUESTION (5) IT WAS STATED "THAT THE LAST DAY OF ACTIVE SERVICE OF AN EMPLOYEE RECEIVING A LUMP-SUM PAYMENT FOR LEAVE WILL BE THE DATE OF SEPARATION FROM THE SERVICE.' THE SAME RULES HAVE BEEN APPLIED IN SUBSEQUENT DECISIONS.

SECTION 1 OF THE UNIFORM RETIREMENT DATE ACT OF APRIL 23, 1930, 46 STAT. 253, PROVIDES:

THAT HEREAFTER RETIREMENT AUTHORIZED BY LAW OF FEDERAL PERSONNEL OF WHATEVER CLASS, CIVIL, MILITARY, NAVAL, JUDICIAL, LEGISLATIVE, OR OTHERWISE, AND FOR WHATEVER CAUSE RETIRED, SHALL TAKE EFFECT ON THE ST DAY OF THE MONTH FOLLOWING THE MONTH IN WHICH SAID RETIREMENT WOULD OTHERWISE BE EFFECTIVE, AND SAID ST DAY OF THE MONTH FOR RETIREMENTS HEREAFTER MADE SHALL BE FOR ALL PURPOSES IN LIEU OF SUCH DATE FOR RETIREMENT AS MAY NOW BE AUTHORIZED; EXCEPT THAT THE RATE OF ACTIVE OR RETIRED PAY OR ALLOWANCE SHALL BE COMPUTED AS OF THE DATE RETIREMENT WOULD HAVE OCCURRED IF THIS ACT HAD NOT BEEN ENACTED.

WHILE IT HAS BEEN RECOGNIZED GENERALLY THAT AN EMPLOYEE COULD BE PERMITTED TO REMAIN ON THE ROLL UNTIL THE END OF THE CALENDAR MONTH PRECEDING THE FIRST OF THE CALENDAR MONTH RETIREMENT BECOMES EFFECTIVE, EITHER ON ACTIVE DUTY OR IN A LEAVE WITH OR WITHOUT PAY STATUS (10 COMP. GEN. 28; 11 ID. 1; 14 ID. 585; ANSWER TO QUESTION (2) DECISION OF JANUARY 13, 1945, B-46790, 24 COMP. GEN. 526), THE ABOVE-QUOTED STATUTE DOES NOT SO REQUIRE, AS YOU APPEAR TO BELIEVE. THAT STATUTE MERELY FIXES THE EFFECTIVE DATE OF RETIREMENT AS THE FIRST OF A CALENDAR MONTH AND DOES NOT DEFEAT AN EMPLOYEE'S RIGHT TO RETIREMENT FOR WHICH APPLICATION HAS BEEN MADE WHILE THE EMPLOYEE IS IN THE SERVICE, IF SEPARATION SHOULD OCCUR DURING THE LAST CALENDAR MONTH PRIOR TO THE EFFECTIVE DATE OF RETIREMENT, PROVIDED THE EMPLOYEE OTHERWISE IS ELIGIBLE FOR RETIREMENT ON THE FIRST OF THE MONTH SELECTED WITHOUT COUNTING THE LAST FRACTIONAL MONTH OF SERVICE. HENCE, IN THE SITUATION PRESENTED IN YOUR LETTER THE FACT THAT SEPARATION MAY BE REQUIRED IN ACCORDANCE WITH THE RULES ABOVE STATED UNDER THE LUMP- SUM LAW OF DECEMBER 21, 1944, NEAR THE END OF A CALENDAR MONTH AT THE TERMINATION OF A TOUR OF ROAD DUTY, WOULD NOT DEFEAT AN EMPLOYEE'S RIGHT TO RETIREMENT EFFECTIVE ON THE FIRST OF THE FOLLOWING MONTH, PROVIDED, OF COURSE, SUCH EMPLOYEE THEN IS ELIGIBLE FOR RETIREMENT WITHOUT COUNTING THE LAST FRACTIONAL MONTH OF SERVICE. OF COURSE, IT WOULD APPEAR REASONABLE THAT AN EMPLOYEE WOULD DESIRE TO BE ON ACTIVE DUTY UNTIL HE BECOMES ELIGIBLE FOR RETIREMENT BECAUSE OF THE FACT THAT A FRACTIONAL MONTH'S SERVICE IS NOT CREDITABLE FOR ANNUITY PURPOSES UNDER THE RETIREMENT ACT.

FURTHERMORE, IT IS NOT APPARENT WHY THE MATTER OF ACTIVE DUTY OF RAILWAY CLERKS, ORDINARILY ASSIGNED TO ROAD DUTY FOR TWO OR THREE DAYS, BETWEEN THE TERMINATION OF A TOUR OF ROAD DUTY AND THE END OF A CALENDAR MONTH PRECEDING RETIREMENT, MAY NOT BE ADJUSTED ADMINISTRATIVELY.

ACCORDINGLY, THE SITUATION PRESENTED DOES NOT APPEAR TO JUSTIFY THIS OFFICE IN MAKING ANY EXCEPTION TO OR CHANGE IN THE GENERAL RULES HERETOFORE STATED UNDER THE ACT OF DECEMBER 21, 1944. THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.