B-59806, AUGUST 16, 1946, 26 COMP. GEN. 119

B-59806, AUGUST 16, 1946, 26 COMP. GEN. 119

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - STATUTORY REQUIREMENT AS AFFECTING GRANT OF LEAVE WITHOUT PAY; INCLUSION OF WITHIN-GRADE ADVANCEMENT WHERE AN EMPLOYEE HAD BEEN GIVEN THE REQUIRED WRITTEN NOTICE OF HER SEPARATION FROM THE SERVICE AS OF A CERTAIN DAY, BECAUSE OF A REDUCTION IN FORCE, BUT, PRIOR TO ACTUAL SEPARATION, THE NOTICE OF SEPARATION PURPORTEDLY WAS AMENDED SO AS TO EXTEND THE DATE OF SEPARATION FOR AN ADDITIONAL PERIOD OF LEAVE WITHOUT PAY, THE LUMP-SUM PAYMENT FOR LEAVE AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, UPON SEPARATION FROM THE SERVICE IS FOR COMPUTATION OVER THE PERIOD IMMEDIATELY FOLLOWING THE DATE OF SEPARATION DESIGNATED IN THE ORIGINAL NOTICE AND NOT OVER THE PERIOD FOLLOWING SUCH ADDITIONAL LEAVE WITHOUT PAY. (OVERRULED BY 26 COMP. GEN. 331.) WHERE ALL THE CONDITIONS PRECEDENT TO A WITHIN-GRADE ADVANCEMENT UNDER SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 HAD BEEN MET ON OR BEFORE THE DATE OF SEPARATION STIPULATED IN AN EMPLOYEE'S 30-DAY ADVANCE NOTICE OF SEPARATION BECAUSE OF A REDUCTION IN FORCE, SUCH ADVANCEMENT MAY BE CONSIDERED IN THE COMPUTATION OF THE LUMP-SUM PAYMENT FOR LEAVE UNDER THE ACT OF DECEMBER 21, 1944.

ACTING COMPTROLLER GENERAL YATES TO RALPH L. TEMPLE, CIVILIAN PRODUCTION ADMINISTRATION, AUGUST 16, 1946:

I HAVE YOUR LETTER OF AUGUST 7, 1946 (AA-1-RLT) AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION THE ATTACHED PAYROLL VOUCHER COVERING LUMP SUM PAYMENT DUE VIOLA M. WOODWARD.

YOUR DECISION AS TO THIS VOUCHER BEING PROPER FOR CERTIFICATION IS RESPECTFULLY REQUESTED IN VIEW OF THE FACTS AS HEREIN SET FORTH.

ON FEBRUARY 27, 1946, VIOLA WOODWARD WAS GIVEN A REDUCTION IN FORCE NOTICE EFFECTIVE C.O.B. MARCH 31, 1946. PRIOR TO MARCH 31, 1946, MISS WOODWARD ELECTED TO BE PLACED ON FURLOUGH FOR A PERIOD OF NINETY DAYS IMMEDIATELY FOLLOWING LAST DAY OF ACTIVE DUTY, WHICH WAS TO BE MARCH 31, 1946. ON MARCH 26, 1946, MISS WOODWARD WAS NOTIFIED THAT REDUCTION IN FORCE NOTICE DATED FEBRUARY 27, AND EFFECTIVE MARCH 31, 1946, WAS AMENDED SO AS TO PLACE HER ON FURLOUGH AFTER LAST DAY OF ACTIVE DUTY ( MARCH 31) AND ADVISING THAT SHE WOULD BE SEPARATED ON THE LAST DAY OF FURLOUGH WHICH WOULD BE JUNE 29, 1946 (SEE COPY OF MARCH 26, 1946, NOTICE ATTACHED).

ON MARCH 31, 1946, MISS WOODWARD HAD SIXTY-THREE HOURS ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HER CREDIT. MISS WOODWARD WAS PLACED IN LWOP STATUS ON APRIL 1, 1946, THROUGH C.O.B. JUNE 29, 1946, AT WHICH TIME SHE WAS SEPARATED BY PROPER JOURNAL ACTION.

ON MARCH 31, 1946, THE EFFECTIVE DATE OF THE ORIGINAL REDUCTION IN FORCE NOTICE, MISS VIOLA M. WOODWARD'S GRADE WAS CAF-4, $2,166.00. ON APRIL 7, DURING THE FURLOUGH PERIOD AND WHILE ON LWOP, MISS WOODWARD WAS GIVEN A "PERIODIC" PAY INCREASE AND JOURNAL ACTION WAS PROCESSED CHANGING HER GRADE CAF-4, $2,230.00, EFFECTIVE APRIL 7.

MISS WOODWARD WAS SEPARATED AS ABOVE STATED AT C.O.B. JUNE 29, 1946, AT GRADE CAF-4, $2,230.00, WITH SIXTY-THREE HOURS ANNUAL LEAVE FOR WHICH THE ATTACHED PAYROLL IS IN PAYMENT, AND IS BASED ON SIXTY THREE HOURS AT $2,544.48 IN ACCORDANCE WITH PUBLIC LAW 390, 79TH CONGRESS, KNOWN AS FEDERAL EMPLOYEE'S PAY ACT OF 1946, ALSO IN LINE WITH YOUR DECISION B- 58777, JULY 9, 1946 (25 COMP. GEN. 9).

HAD MISS WOODWARD BEEN SEPARATED C.O.B. MARCH 31, SHE WOULD HAVE BEEN PAID A LUMP SUM OF $65.60 GROSS, BASED ON SIXTY-THREE HOURS AT $2,166.00, OR $21.25 LESS THAN THE AMOUNT OF THE ATTACHED VOUCHER.

IT IS FOR NOTE THAT DUE TO THE FURLOUGH THERE IS INVOLVED ONE HOLIDAY ( JULY 4), A WITHIN-GRADE PROMOTION, AND THE 1946 PAY ACT INCREASE, WHICH WOULD NOT HAVE OTHERWISE ENTERED INTO THE TRANSACTION.

IN SUMMARY, THE ABOVE FACTS SHOW THE EMPLOYEE WAS GIVEN A THIRTY DAY NOTICE OF INVOLUNTARY SEPARATION DUE TO NECESSARY REDUCTION IN FORCE, AND THAT PRIOR TO THE SEPARATION DATE ESTABLISHED BY THIS THIRTY DAY NOTICE, THE EMPLOYEE EXERCISED AN OPTION TO BE PLACED ON A NINETY DAY FURLOUGH BEGINNING AT THE EXPIRATION DATE OF THE THIRTY DAY ADVANCE NOTICE. THE PROPOSED DATE OF SEPARATION WAS ADVANCED ACCORDINGLY.

I DEFER CERTIFICATION OF THIS VOUCHER IN VIEW OF YOUR DECISION OF AUGUST 24, 1945, B-51797, 25 COMP. GEN. 228, QUOTE: "IT MAY BE STATED AS THE VIEW OF THIS OFFICE THAT LEAVE OF ABSENCE WITHOUT PAY MAY NOT BE GRANTED FOR ANY PERIOD SUBSEQUENT TO THE EXPIRATION OF THE PERIOD OF ADVANCE NOTICE OF SEPARATION BECAUSE OF REDUCTION IN FORCE FOR THE PURPOSE OF ENABLING AN EMPLOYEE TO SEEK OTHER FEDERAL EMPLOYMENT OR FOR ANY OTHER PURPOSE.' ITALICS SUPPLIED.)

ALSO, YOUR DECISION OF JANUARY 11, 1945, B-46683, 24 COMP. GEN. 511, QUOTE: "* * * IT MAY BE 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 AND ANY PERIOD BETWEEN THAT DATE AND THE DATE OF REEMPLOYMENT, EITHER IN THE SAME OR A DIFFERENT AGENCY, MUST BE REGARDED AS A BREAK IN SERVICE FOR THE PURPOSE OF DETERMINING RIGHTS TO WITHIN-GRADE PROMOTIONS, TRANSFER OF SICK LEAVE AND REEMPLOYMENT BENEFITS. * * *"

YOUR DECISION OF JANUARY 23, 1946 (1945), B-47112, 24 COMP. GEN. 549 QUOTE: "THE LAST DAY OF ACTIVE DUTY ON OR AFTER DECEMBER 21, 1944, OF EMPLOYEES WHO RECEIVE A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, IS THE DATE OF SEPARATION FROM THE SERVICE, AND THE PERIOD THEREAFTER OVER WHICH THE LEAVE IS COMPUTED IS NOT TO BE REGARDED AS SERVICE.'

OWING TO THE EXISTING GENERAL PRACTICE AMONG GOVERNMENT AGENCIES OF GRANTING FURLOUGHS TO EMPLOYEES AFTER BEING GIVEN REDUCTION IN FORCE NOTICES, NOTWITHSTANDING DECISIONS ABOVE QUOTED, I AM REQUIRED TO EITHER CERTIFY ATTACHED VOUCHER OR SUBMIT IT TO YOU FOR INSTRUCTIONS.

AS WE HAVE SEVERAL LUMP SUM PAYMENTS PENDING THAT ARE IN THE SAME CATEGORY AND EMPLOYEES ARE DEMANDING PAYMENT, EARLY CONSIDERATION AS POSSIBLE WILL BE APPRECIATED.

IN 24 COMP. GEN. 511, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, RESPECTING LUMP-SUM PAYMENTS FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE UPON SEPARATION FROM SERVICE, ARE MANDATORY, AND TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT AN EMPLOYEE IS TO BE SEPARATED FROM SERVICE.

AN EXCEPTION TO THE ABOVE STATED RULE WAS AUTHORIZED IN 25 COMP. GEN. 82, QUOTING FROM THE SYLLABUS:

NOTWITHSTANDING THE MANDATORY PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, IN CONNECTION WITH WHICH IT HAS BEEN HELD THAT ANNUAL LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION, ANNUAL LEAVE MAY BE GRANTED TO EMPLOYEES DURING THE PERIOD OF ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME TO WHICH THEY ARE ENTITLED UNDER A LAW OR STATUTORY REGULATIONS (SUCH AS THE REGULATIONS OF THE CIVIL SERVICE COMMISSION WITH RESPECT TO EMPLOYEES' RETENTION PREFERENCE RIGHTS UNDER SECTIONS 12 AND 14 OF THE VETERANS' PREFERENCE ACT OF 1944), WHERE IT IS IMPRACTICABLE TO RETAIN THE EMPLOYEES UPON ACTIVE DUTY DURING SUCH PERIOD.

IN 25 COMP. GEN. 228, IT WAS HELD, QUOTING FROM THE SYLLABUS:

INASMUCH AS THE PURPOSE AND INTENT OF THE ACT OF DECEMBER 21, 1944, WITH RESPECT TO EMPLOYEES BEING SEPARATED FROM SERVICE IS TO REMOVE THE EMPLOYEES FROM THE ROLLS AND TO MAKE PAYMENT IN A LUMP SUM FOR ANY UNUSED ANNUAL LEAVE, IT IS THE VIEW OF THIS OFFICE THAT LEAVE WITHOUT PAY MAY NOT BE GRANTED AN EMPLOYEE FOR ANY PERIOD SUBSEQUENT TO THE EXPIRATION OF THE PERIOD OF ADVANCE NOTICE OF SEPARATION BECAUSE OF REDUCTION IN FORCE, FOR THE PURPOSE OF ENABLING HIM TO SEEK OTHER FEDERAL EMPLOYMENT OR FOR ANY OTHER PURPOSE.

THE REQUIREMENT IN THE CIVIL SERVICE REGULATIONS FOR 30 DAYS' NOTICE UPON REDUCTION OF FORCE UPON WHICH THE DECISIONS IN 25 COMP. GEN. 82 AND 228 WERE BASED IS RETAINED IN THE LATEST REVISION OF THE CIVIL SERVICE REGULATIONS. SEE FEDERAL PERSONNEL MANUAL R3-42, DATED DECEMBER 6, 1945.

WHEN PROPER ADVANCE NOTICE OF SEPARATION BECAUSE OF A REDUCTION IN FORCE HAS BEEN ISSUED TO AN EMPLOYEE, IT WOULD BE INCONSISTENT THEREWITH TO EXTEND THE DATE OF SEPARATION FOR AN ADDITIONAL PERIOD OF LEAVE WITHOUT PAY; ALSO, SUCH AN EXTENSION WOULD BE CONTRARY TO THE PURPOSE AND INTENT OF THE LUMP SUM LEAVE ACT, NAMELY, TO CLEAR THE GOVERNMENT RECORDS OF EMPLOYEES WHO ARE NOT EXPECTED TO RETURN TO A DUTY STATUS. ACCORDINGLY, THERE APPEARS JUSTIFIED THE CONCLUSION IN THIS CASE THAT THE RIGHTS OF THE INVOLVED EMPLOYEE WITH RESPECT TO A LUMP-SUM LEAVE PAYMENT BECAME FIXED AS OF MARCH 31, 1946. THE 63 HOURS OF ANNUAL LEAVE COMPUTED OVER THE PERIOD IMMEDIATELY FOLLOWING MARCH 31, 1946, WOULD NOT EXTEND BEYOND JULY 1, 1946; HENCE, THERE IS NO BASIS FOR TAKING INTO CONSIDERATION THE SALARY INCREASES EFFECTIVE JULY 1, 1946.

WITH RESPECT TO THE INCLUSION OF WITHIN-GRADE ADVANCES IN THE LUMP SUM LEAVE PAYMENT, IT WAS HELD IN DECISION OF AUGUST 8, 1946, B-59352, 26 COMP. GEN. 102, AS FOLLOWS:

SUBSECTION (B) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, AUTHORIZES WITHIN-GRADE PROMOTIONS, IF EMPLOYEES OTHERWISE ARE ENTITLED THERETO, AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF "EACH TWELVE MONTHS OF SERVICE" OR "EACH EIGHTEEN MONTHS OF SERVICE," DEPENDING UPON THE GRADE HELD. IT IS SETTLED THAT THE PERIOD COVERED BY THE LUMP-SUM PAYMENT IS NOT "SERVICE.' CONSEQUENTLY, AN EMPLOYEE WHO IS SEPARATED FROM THE SERVICE PRIOR TO THE COMPLETION OF THE 12 OR 18 MONTHS OF "SERVICE," AS THE CASE MAY BE, CLEARLY HAS NOT MET THE REQUIREMENTS OF THE STATUTE AUTHORIZING WITHIN-GRADE ADVANCEMENTS AND THEREFORE, AT THE DATE OF SEPARATION--- WHEN HIS RIGHTS IN THE MATTER BECOME FIXED--- HE IS NOT ENTITLED TO THE WITHIN-GRADE SALARY ADVANCEMENT. ACCORDINGLY, IN LINE WITH THE REASONS STATED IN ANSWER TO QUESTION 3, SUPRA, THE LUMP SUM IN SUCH CASE IS REQUIRED TO BE COMPUTED WITHOUT REGARD TO THE WITHIN GRADE SALARY ADVANCEMENT WHICH MIGHT HAVE BEEN PAYABLE HAD THE EMPLOYEE NOT BEEN SEPARATED. OF COURSE, WHERE, PRIOR TO THE DATE OF SEPARATION, AN EMPLOYEE HAS COMPLETED THE REQUISITE PERIOD OF ACTUAL SERVICE AND ALL OTHER CONDITIONS OF THE STATUTE AND APPLICABLE REGULATIONS HAVE BEEN MET, THE MERE FACT THAT BY REASON OF THE PROVISION IN SECTION 7 (B) OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SUPRA, POSTPONING THE EFFECTIVE DATE OF THE WITHIN-GRADE SALARY ADVANCEMENT UNTIL "THE BEGINNING OF THE NEXT PAY PERIOD" FOLLOWING THE COMPLETION OF SUCH PERIOD OF SERVICE, HE DID NOT ACTUALLY RECEIVE THE ADVANCE PRIOR TO THE SEPARATION WOULD NOT PRECLUDE INCLUDING IT IN THE COMPUTATION OF THE LUMP SUM. IN OTHER WORDS, WHERE AN EMPLOYEE'S RIGHT TO AN INCREASE IN COMPENSATION HAD BECOME COMPLETELY VESTED AT THE DATE OF SEPARATION, IT IS IMMATERIAL THAT SUCH INCREASE IS EFFECTIVE AS OF A LATER DATE. * * *

WHILE IT IS STATED THAT THIS EMPLOYEE WAS GIVEN A WITHIN-GRADE ADVANCE EFFECTIVE APRIL 7, 1946, PRESUMABLY THE BEGINNING OF A PAY PERIOD, YOU FAIL TO STATE JUST WHEN THE REQUIRED WAITING PERIOD AND THE OTHER REQUIREMENTS OF THE WITHIN-GRADE PROMOTION STATUTE WERE MET. IN VIEW OF THE ABOVE DECISION OF AUGUST 8, 1946, IF ALL CONDITIONS PRECEDENT TO A WITHIN-GRADE ADVANCE HAD BEEN MET ON MARCH 31, 1946, SUCH ADVANCE MAY BE GIVEN EFFECT IN THE COMPUTATION OF THE LUMP-SUM LEAVE PAYMENT FOR ACCRUED LEAVE.

IN THE LIGHT OF THE FOREGOING, THE SUBMITTED VOUCHER MAY NOT BE CERTIFIED FOR PAYMENT.