B-50664, JULY 4, 1945, 25 COMP. GEN. 12

B-50664, JULY 4, 1945, 25 COMP. GEN. 12

LUMP-SUM LEAVE PAYMENTS - TRANSFER OF EMPLOYEES UNDER WAR SERVICE REGULATIONS THE GRANTING OF "LEAVE WITHOUT PAY," PURSUANT TO SECTION 4 OF WAR SERVICE REGULATION IX, TO AN EMPLOYEE SUBJECT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, FOR A PERIOD OF ESSENTIAL WAR SERVICE UNDER WAR MANPOWER COMMISSION DIRECTIVE NO. 10, IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT, MAY BE REGARDED EITHER AS A SEPARATION OR AS A TRANSFER TO ANOTHER SERVICE HAVING A DIFFERENT LEAVE SYSTEM FOR PURPOSES OF APPLYING THE LUMP-SUM LEAVE PAYMENT PROVISIONS OF THE ACT OF DECEMBER 21, 1944.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JULY 4, 1945:

I HAVE YOUR LETTER OF JUNE 22, 1945 AS FOLLOWS:

CERTAIN PROBLEMS HAVE ARISEN IN THE DEPARTMENT CONCERNING THE APPLICATION OF PUBLIC LAW 525--- 78TH CONGRESS AND EXECUTIVE ORDER 9414 (AS INTERPRETED IN 23 COMP. GEN. 790) TO CASES INVOLVING TRANSFER OF CIVILIAN EMPLOYEES FROM THE WAR DEPARTMENT TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT UNDER AUTHORITY OF SECTION 4 OF WAR SERVICE REGULATION 9 ( WAR TRANSFER--- LEAVE WITHOUT PAY).

THE PROVISIONS OF SECTION 4 OF WAR SERVICE REGULATION 9 WHICH APPEAR PERTINENT IN THE PRESENT CASE ARE QUOTED FOR YOUR INFORMATION:

"/A) THE RELEASE OF ANY EMPLOYEE FROM ANY DEPARTMENT OR AGENCY FOR EMPLOYMENT IN A PRIVATE OR PUBLIC ENTERPRISE, INCLUDING AN ACTIVITY CARRIED ON BY A STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES, OR BY ANY POLITICAL SUBDIVISION THEREOF, OR BY ANY AGENCY OR INSTRUMENTALITY OF A STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES OR THEIR POLITICAL SUBDIVISIONS, WILL BE AUTHORIZED BY THE COMMISSION UNDER DIRECTIVE NO. 10 OF THE WAR MANPOWER COMMISSION (EFFECTIVE SEPTEMBER 27, 1942) WHENEVER THE COMMISSION SHALL FIND THAT SUCH EMPLOYEE IS QUALIFIED TO PERFORM WORK IN A CRITICAL WAR OCCUPATION (AS DEFINED IN THE ESSENTIAL ACTIVITIES AND ESSENTIAL OCCUPATIONS DIRECTIVE OF THE WAR MANPOWER COMMISSION) AND CAN MAKE A MORE EFFECTIVE CONTRIBUTION TO THE WAR EFFORT IN AN ESSENTIAL ACTIVITY CARRIED ON BY A PRIVATE OR PUBLIC ENTERPRISE, SUBJECT TO THE FOLLOWING CONDITIONS:

"/1) AN EMPLOYEE RELEASED UNDER THIS SECTION SHALL BE ENTITLED TO THE REEMPLOYMENT BENEFITS SET FORTH IN SECTION 5 OF THIS REGULATION.

"/3) AN EMPLOYEE WHOSE RELEASE HAS BEEN AUTHORIZED UNDER THIS SECTION SHALL BE CARRIED IN A LEAVE-WITHOUT-PAY STATUS IN HIS FEDERAL POSITION FOR THE PERIOD OF HIS EMPLOYMENT WITH THE PRIVATE OR PUBLIC ENTERPRISE, BUT NOT TO EXTEND BEYOND SIX MONTHS AFTER THE END OF THE WAR.'

THE SPECIFIC QUESTIONS INVOLVED ARE AS FOLLOWS:

1. WHERE AN EMPLOYEE HAVING UNUSED ANNUAL LEAVE TO HIS CREDIT IS TRANSFERRED UNDER AUTHORITY OF SECTION 4 OF WAR SERVICE REGULATION 9 FROM A POSITION SUBJECT TO THE LEAVE ACT OF MARCH 14, 1936, TO THE LEGISLATIVE BRANCH OF THE GOVERNMENT, IS IT PROPER TO EFFECT A LUMP SUM PAYMENT FOR SUCH UNUSED LEAVE AT THE TIME OF TRANSFER, IRRESPECTIVE OF THE REQUIREMENT THAT THE EMPLOYEE MUST BE CONSIDERED AS BEING ON LEAVE WITHOUT PAY FROM HIS POSITION SUBJECT TO THE LEAVE ACT?

2. IF IT IS DETERMINED THAT LUMP SUM PAYMENTS CANNOT BE MADE UNDER THE CIRCUMSTANCES DESCRIBED IN QUESTION 1 ABOVE AND THE EMPLOYEE CANNOT RECEIVE PAYMENT ON A PAY PERIOD BASIS BECAUSE OF POSSIBLE VIOLATION OF THE DUAL COMPENSATION STATUTES, MAY SUCH UNUSED LEAVE REMAIN TO THE EMPLOYEE'S CREDIT UNTIL RETURN TO DUTY IN THE FORMER POSITION, NOTWITHSTANDING THE FACT THAT THE PERIOD OF WAR TRANSFER--- LEAVE WITHOUT PAY MAY EXTEND BEYOND ONE YEAR?

3. IF EMPLOYEES ARE REQUIRED TO HAVE THE UNUSED ANNUAL LEAVE REMAIN TO THEIR CREDIT DURING THE PERIOD OF WAR TRANSFER--- LEAVE WITHOUT PAY AND AT THE EXPIRATION OF SUCH PERIOD DO NOT RETURN TO THE POSITION FROM WHICH TRANSFERRED OR TO ANOTHER POSITION IN THE FEDERAL SERVICE TO WHICH THE LEAVE IS TRANSFERABLE, MAY THE DEPARTMENT EFFECT LUMP SUM PAYMENT FOR SUCH UNUSED ANNUAL LEAVE AT THE TIME THE EMPLOYEE IS ABSOLUTELY SEPARATED FROM SERVICE IN THE LEGISLATIVE BRANCH OR AT SUCH TIME AS MAY BE PERMANENTLY EMPLOYED IN THAT SERVICE (WHICH IS UNDER A "DIFFERENT LEAVE SYSTEM" WITHIN THE MEANING OF SECTION 3 OF P.L. 525/?

INASMUCH AS A CASE EMBRACING THE ABOVE QUESTION IS NOW PENDING, AN EARLY REPLY WILL BE GREATLY APPRECIATED.

THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, AUTHORIZES PAYMENT IN A LUMP SUM FOR ANNUAL LEAVE WHEN THERE IS INVOLVED (1) A SEPARATION FROM THE SERVICE, (2) DEATH, OR (3) A TRANSFER TO SERVICE HAVING A DIFFERENT LEAVE SYSTEM.

THERE HAS BEEN NOTED THE REGULATION OF THE CIVIL SERVICE COMMISSION- - THAT EMPLOYEES RELEASED UNDER DIRECTIVE NO. 10 OF THE WAR MANPOWER COMMISSION "SHALL BE CARRIED IN A LEAVE-WITHOUT-PAY STATUS IN HIS FEDERAL POSITION FOR THE PERIOD OF HIS EMPLOYMENT WITH THE * * * PUBLIC ENTERPRISE" (QUOTING FROM THE WAR SERVICE REGULATION REFERRED TO AND QUOTED IN YOUR LETTER). SO FAR AS THE RELEASE CONCERNS ANOTHER FEDERAL OFFICE OR POSITION, SUCH ACTION UNDER THE SAID REGULATION WOULD SEEM TO BE IN CONTRAVENTION OF THE PROVISIONS OF 5 U.S.C. 62 IF THE SALARY OF EITHER FEDERAL OFFICE OR POSITION WERE AT THE RATE OF $2,500 OR MORE PER ANNUM (2 COMP. GEN. 649), AND ALSO, WOULD SEEM TO BE IN CONTRAVENTION OF THE PROVISIONS OF SECTION 4.7 OF THE CURRENT LEAVE REGULATIONS IF THE PERIOD SHOULD EXCEED ONE YEAR AND THE EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT. SEE 23 COMP. GEN. 790, CITED IN YOUR LETTER. BUT HOWEVER THAT MAY BE, SO FAR AS THE PRESENT MATTER IS CONCERNED, THE GRANTING OF SO-CALLED LEAVE WITHOUT PAY PURSUANT TO SECTION 4 OF WAR SERVICE REGULATION IX, QUOTED IN YOUR LETTER, TO A WAR DEPARTMENT EMPLOYEE FOR THE PURPOSE OF PERMITTING HIM TO WORK FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT, PROPERLY MAY BE REGARDED EITHER AS A SEPARATION FROM THE WAR DEPARTMENT POSITION OR AS A TRANSFER TO ANOTHER SERVICE HAVING A DIFFERENT LEAVE SYSTEM FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE LUMP-SUM LAW OF DECEMBER 21, 1944--- PROVIDED, OF COURSE, THERE IS NO BREAK IN SERVICE.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, THUS MAKING IT UNNECESSARY TO ANSWER QUESTIONS 2 AND 3.