B-60657, OCTOBER 24, 1946, 26 COMP. GEN. 259

B-60657, OCTOBER 24, 1946, 26 COMP. GEN. 259

LUMP-SUM LEAVE PAYMENTS - REFUNDS UPON REEMPLOYMENT; TRANSFER BETWEEN PERMANENT AND TEMPORARY POSITIONS; ETC. IN THE CASE OF AN EMPLOYEE REEMPLOYED UNDER THE SAME LEAVE SYSTEM PRIOR TO EXPIRATION OF THE PERIOD OVER WHICH A LUMP-SUM PAYMENT FOR LEAVE HAD BEEN COMPUTED PURSUANT TO THE ACT OF DECEMBER 21, 1944, IT IS REQUIRED THAT A REFUND OF THE GROSS COMPENSATION COVERING THE UNEXPIRED PORTION OF SUCH PERIOD BE OBTAINED, FOR DEPOSIT AS " MISCELLANEOUS RECEIPTS," AND THE LEAVE REPRESENTED THEREBY RECREDITED IN THE SECOND EMPLOYMENT, EVEN THOUGH THE EMPLOYEE HAS BEEN FINALLY SEPARATED SHORTLY AFTER THE SECOND EMPLOYMENT AND BEFORE MAKING THE REQUIRED REFUND--- THE FINAL LUMP-SUM PAYMENT TO BE COMPUTED AS OF THE DATE OF THE SECOND SEPARATION. IN THE CASE OF AN EMPLOYEE REEMPLOYED UNDER THE SAME LEAVE SYSTEM PRIOR TO EXPIRATION OF THE PERIOD OVER WHICH A LUMP-SUM PAYMENT FOR LEAVE HAD BEEN COMPUTED PURSUANT TO THE ACT OF DECEMBER 21, 1944, AND SHORTLY THEREAFTER FINALLY SEPARATED WITHOUT HAVING MADE THE REQUIRED REFUND OF THE GROSS COMPENSATION COVERING THE UNEXPIRED PORTION OF SUCH PERIOD, WITH RECREDIT OF THE LEAVE REPRESENTED THEREBY, SUCH REFUND MAY BE EFFECTED BY DEDUCTION FROM THE FINAL LUMP SUM DUE OR FROM THE FINAL SALARY PAYMENT--- DRAWING OF CHECKS NECESSARY TO ADJUSTMENT, DISPOSITION OF AMOUNT WITHHELD AS TAX, ETC., TO BE IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN THIS DECISION. THE OCCURRENCE OF NON-WORKDAYS BETWEEN THE DAY A PER ANNUM EMPLOYEE LEAVES THE SERVICE OF ONE AGENCY AND ENTERS THE SERVICE OF ANOTHER, UNDER THE SAME LEAVE SYSTEM, NEED NOT BE REGARDED AS REQUIRING APPLICATION OF THE PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, AND THE LEAVE MAY BE TRANSFERRED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THE LEAVE REGULATIONS. ON THE ANNUAL LEAVE IS GRANTED TO PERMANENT AND TEMPORARY EMPLOYEES ACCORDING TO SEPARATE SYSTEMS, ALTHOUGH THE GRANT OF LEAVE TO BOTH CLASSES OF EMPLOYEES IS PROVIDED FOR BY THE SAME STATUTE, THE APPOINTMENT, REAPPOINTMENT OR TRANSFER OF AN EMPLOYEE FROM A PERMANENT TO A TEMPORARY POSITION WITHOUT BREAK IN SERVICE MAY BE REGARDED AS A TRANSFER TO A POSITION UNDER A "DIFFERENT LEAVE SYSTEM" WITHIN THE MEANING OF SECTION 3 OF THE ACT OF DECEMBER 21, 1944, ENTITLING THE EMPLOYEE TO A LUMP-SUM PAYMENT FOR THE LEAVE TO HIS CREDIT IN THE PERMANENT POSITION, COMPUTED AS OF THE LAST DAY OF SERVICE IN SUCH POSITION. 24 COMP. GEN. 726, OVERRULED. ( AMPLIFIED BY 26 COMP. GEN. 604.)

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 24, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 13, 1946, AS FOLLOWS:

SEVERAL PROBLEMS HAVE ARISEN WITHIN THE DEPARTMENT WITH RESPECT TO THE PROPER APPLICATION OF THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, 78TH CONGRESS, 58 STAT. 845, PARTICULARLY IN CONNECTION WITH SECURING REFUNDS UPON REEMPLOYMENT DURING LUMP-SUM LEAVE PERIODS AND THE EFFECTS OF YOUR DECISION NUMBERED B-58777, JULY 9, 1946. THE CASES PRESENTED INVOLVE DIFFERENT ASPECTS OF THE SITUATION IN WHICH AN EMPLOYEE OF THE WAR DEPARTMENT OR OF ANOTHER GOVERNMENTAL AGENCY WAS SEPARATED, GIVEN A LUMP- SUM LEAVE PAYMENT, REAPPOINTED IN ANOTHER WAR DEPARTMENT INSTALLATION AND LATER SEPARATED BEFORE REFUND WAS MADE IN ACCORDANCE WITH THE PROVISO IN SECTION 1 OF THE ACT OF DECEMBER 21, 1944, SUPRA. UNDER THE RULING GIVEN IN B-47962, FEBRUARY 28, 1945 (UNPUBLISHED), THE POLICY OF PERMITTING INSTALLMENT COLLECTIONS TO COVER THE REQUIRED REFUNDS WAS ADOPTED BY THE DEPARTMENT IN CIVILIAN PERSONNEL CIRCULAR NO. 72, 1945.

CASE NO. 1. A CAF-4, $2100 PER ANNUM, EMPLOYEE AT A WAR DEPARTMENT INSTALLATION WAS SEPARATED ON MAY 31, 1946, GIVEN A LUMP-SUM PAYMENT COVERING THE PERIOD JUNE 1 THROUGH 4 HOURS ON JULY 11, 1946 (220 HOURS PLUS HOLIDAY), REEMPLOYED AT THE SAME SALARY AT ANOTHER WAR DEPARTMENT INSTALLATION ON JUNE 10, 1946, AND SEPARATED THEREFROM ON JUNE 28, 1946. THE SALARY RATE IN EFFECT ON MAY 31, 1946, WAS USED TO COMPUTE THE ENTIRE LUMP-SUM PAYMENT, NO REFUND WAS MADE UPON REEMPLOYMENT AND NO LEAVE WAS RECREDITED.

QUESTION 1. UNDER THE STATED CIRCUMSTANCES AND IN LIKE CASES WHERE A RECREDIT OF LEAVE WOULD HAVE BEEN PROPER IF COLLECTION HAD BEEN MADE, WOULD IT BE PROPER FOR THE INSTALLATION EFFECTING THE SECOND SEPARATION TO DETERMINE THE ADDITIONAL AMOUNT DUE ($9.61 IN THIS CASE) ACCORDING TO THE DECISION OF JULY 9, 1946 (B-58777) FOR THAT PORTION OF THE LUMP-SUM PERIOD EXTENDING BEYOND JUNE 30, 1946, AND TO INCLUDE THAT AMOUNT IN THE FINAL SALARY PAYMENT?

QUESTION 2: REEMPLOYMENT DURING THE LUMP-SUM LEAVE PERIOD HAD THE EFFECT OF EXTENDING THAT PERIOD FROM 4 HOURS ON JULY 11, 1946, TO 4 HOURS ON AUGUST 1, 1946, EVEN THOUGH REFUND WAS NOT MADE AND LEAVE WAS NOT RECREDITED. SHOULD THE INSTALLATION WHICH EFFECTS THE SECOND SEPARATION IN SUCH CASES DETERMINE THE DIFFERENCE BETWEEN THE AMOUNT THAT SHOULD HAVE BEEN PAID AS A SECOND LUMP-SUM LEAVE PAYMENT AND THE AMOUNT WHICH SHOULD HAVE BEEN COLLECTED UPON REEMPLOYMENT AND INCLUDE THAT DIFFERENCE ($16.96 IN THIS CASE) IN THE FINAL SALARY PAYMENT?

QUESTION 3: IF THE FINAL SALARY PAYMENT HAS BEEN MADE AFTER SEPARATION FROM THE SECOND EMPLOYMENT, WOULD IT BE PROPER FOR THE SECOND INSTALLATION TO DETERMINE THE ADDITIONAL AMOUNTS (QUESTIONS 1 AND 2 ABOVE) AND TO MAKE PAYMENT LOCALLY TO THE FORMER EMPLOYEES? YOUR DECISION B-59352, AUGUST 8, 1946, HAS BEEN NOTED.

CASE NO. 2. AN UNGRADED EMPLOYEE, WHOSE WAGES WERE NOT AFFECTED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, WAS SEPARATED FROM ONE WAR DEPARTMENT INSTALLATION ON JUNE 1, 1946, AT $3,000 PER ANNUM, GIVEN A LUMP-SUM PAYMENT COVERING THE PERIOD JUNE 2 THROUGH 6 HOURS ON JULY 19, 1946, REEMPLOYED OSTENSIBLY BY TRANSFER AT ANOTHER WAR DEPARTMENT INSTALLATION ON JUNE 24, 1946, AT $2,800 PER ANNUM, AND SEPARATED JULY 28, 1946. PRIOR TO RELEASING THE FINAL SALARY CHECK AT THE SECOND INSTALLATION IT WAS DISCOVERED THAT THE LUMP-SUM LEAVE PAYMENT HAD BEEN MADE AT THE FIRST INSTALLATION AND, THEREFORE, THE CHECK WAS NOT DELIVERED PENDING INSTRUCTIONS.

QUESTION 4: SINCE IT IS IMPRACTICAL TO SECURE REFUND FROM THE FORMER EMPLOYEE, RECREDIT THE LEAVE INVOLVED AND THEN MAKE A SECOND LUMP-SUM LEAVE PAYMENT, WOULD IT BE PROPER FOR THE SECOND INSTALLATION TO DETERMINE THE DIFFERENCE BETWEEN THE AMOUNT THAT SHOULD HAVE BEEN COLLECTED UPON REEMPLOYMENT AND THE AMOUNT WHICH WOULD HAVE BEEN DUE AS A SECOND LUMP-SUM LEAVE PAYMENT AND MAKE ADJUSTMENT IN THE FINAL SALARY PAYMENT TO COVER THAT DIFFERENCE?

CASE NO. 3. ONE OF THE OFFICES OF THE DEPARTMENT HAS PRESENTED TWO SIMILAR CASES FOR INSTRUCTIONS: TWO EMPLOYEES WERE EFFECTIVELY SEPARATED FROM WAR SERVICE POSITIONS BY REDUCTION IN FORCE ON AUGUST 9, 1946, AND WERE REAPPOINTED BY WAR ASSETS ADMINISTRATION ON AUGUST 12, 1946, IN TEMPORARY POSITIONS. THE WAR ASSETS ADMINISTRATION HAS ADVISED THAT LEAVE WOULD NOT BE RECREDITED IN THE TEMPORARY POSITIONS. IN ONE CASE IT WAS KNOWN IN ADVANCE THAT THE PERSON WAS TO BE REEMPLOYED IN THE WAR ASSETS ADMINISTRATION AND, FOLLOWING THE RULING IN 24 COMP. GEN. 726, A LUMP-SUM LEAVE PAYMENT WAS NOT MADE. IN THE OTHER CASE IT WAS NOT KNOWN THAT THE PERSON WAS TO BE REEMPLOYED AND A LUMP-SUM LEAVE PAYMENT WAS MADE BEFORE THAT FACT BECAME KNOWN. THE RULING IN 24 COMP. GEN. 726, SUPRA, PERTAINED TO TRANSFERS, WHEREAS, IN THESE CASES THERE WERE ACTUAL SEPARATIONS FROM THE SERVICE AND TEMPORARY APPOINTMENTS TO THE NEW POSITIONS. THE FOLLOWING IS QUOTED IN PERTINENT PART FROM 24 COMP. GEN. 804:

"* * * THERE IS NO AUTHORITY TO MAKE A LUMP-SUM PAYMENT FOR LEAVE EARNED AS AN EMPLOYEE UPON APPOINTMENT AS COMMISSIONER, FOR THE REASON THAT SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, WOULD NOT BE FOR APPLICATION IN SUCH A CASE UNLESS THERE WERE A BREAK IN SERVICE * * "

IN THAT CASE THERE WAS NOT INVOLVED THE MATTER OF PROPER RECREDITING OF LEAVE AS THERE IS IN THE PRESENT SITUATION AND THE CASE WAS NOT COMPLICATED BY APPOINTMENT TO A TEMPORARY POSITION FROM A PERMANENT POSITION.

IN 25 COMP. GEN. 778 AND B-59209, AUGUST 5, 1946, IT WAS HELD THAT AN EMPLOYEE LEAVING ONE TEMPORARY POSITION IN A DIFFERENT GOVERNMENT AGENCY WAS ENTITLED TO A LUMP-SUM LEAVE PAYMENT, EVEN THOUGH THERE WAS NO BREAK IN SERVICE, AND THAT REFUND WOULD NOT HAVE TO BE MADE BECAUSE LEAVE COULD NOT BE CREDITED TO THE NEW POSITION. IN THE INSTANT CASES LEAVE WILL NOT BE RECREDITED AND IT WOULD APPEAR, THEREFORE, THAT THE DEPARTMENT IS OBLIGATED TO MAKE LUMP-SUM LEAVE PAYMENTS IN ORDER NOT TO DEFEAT THE MANIFEST INTENT AND PURPOSE OF THE ACT OF DECEMBER 21, 1944, SUPRA. IF THE EMPLOYEE WERE LATER APPOINTED DURING THE LUMP-SUM LEAVE PERIOD TO A POSITION TO WHICH THE LEAVE COULD BE CREDITED, THE REFUND REQUIRED BY THE ACT WOULD THEN BECOME NECESSARY AND THE LEAVE WOULD BE CREDITED TO THE NEW POSITION.

QUESTION 5: WOULD IT BE PROPER FOR THE WAR DEPARTMENT TO MAKE LUMP SUM LEAVE PAYMENTS UNDER THE CONDITIONS DESCRIBED IN THIS CASE?

AS A MATTER OF INFORMATION TO BE INCLUDED IN GENERAL INSTRUCTIONS TO THE ENTIRE DEPARTMENT, YOUR DECISIONS ON THE FOLLOWING QUESTIONS ARE ALSO REQUESTED IN CONNECTION WITH CASE NO. 3:

QUESTION 6: WOULD THE SUBJECT EMPLOYEE WHO HAS RECEIVED A LUMP-SUM LEAVE PAYMENT BE REQUIRED TO MAKE REFUND UPON REEMPLOYMENT AND, IF SO, WOULD IT BE REQUIRED THAT THE EMPLOYING AGENCY CREDIT THE LEAVE INVOLVED? THE LATTER PART OF THIS QUESTION WAS MENTIONED IN THE LETTER OF SUBMISSION IN 24 COMP. GEN. 726, SUPRA, BUT NO SPECIFIC QUESTION WAS ASKED AND THE MATTER WAS NOT DECIDED.

QUESTION 7: WOULD YOUR ANSWER TO QUESTION 6 ABOVE BE DIFFERENT IF THERE HAD BEEN A BREAK IN SERVICE OF ONE OR MORE WORKING DAYS BETWEEN THE TWO EMPLOYMENTS?

SINCE FINAL SALARY PAYMENTS ARE BEING HELD PENDING DECISION ON THESE QUESTIONS, YOUR EARLY DECISION WILL BE GREATLY APPRECIATED.

SECTION 1 OF THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, 58 STAT. 845, PROVIDES:

THAT WHENEVER ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS SEPARATED FROM THE SERVICE OR ELECTS TO BE PAID COMPENSATION FOR LEAVE IN ACCORDANCE WITH THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, OR SECTION 4 OF THE ACT 23, 1943, HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE: PROVIDED, THAT IF SUCH EMPLOYEE IS REEMPLOYED IN THE FEDERAL SERVICE OR IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY SUCH LEAVE PAYMENT, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF SUCH LEAVE PERIOD, AND THE AMOUNT OF LEAVE REPRESENTED BY SUCH REFUND SHALL BE CREDITED TO HIM IN THE EMPLOYING AGENCY. IN THE CASE OF REEMPLOYMENT IN THE FEDERAL SERVICE THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY AS " MISCELLANEOUS RECEIPTS," AND IN CASE OF REEMPLOYMENT IN OR UNDER THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THE SUM SO REFUNDED SHALL BE COVERED INTO THE TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS.

THE REQUIREMENTS OF THE SECTION OF THE ACT QUOTED ABOVE IN RESPECT OF A LUMP-SUM PAYMENT FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE WHENEVER AN EMPLOYEE IS SEPARATED FROM THE SERVICE AND IN RESPECT OF A REFUND OF AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD FROM THE DATE OF REEMPLOYMENT TO THE EXPIRATION OF THE LEAVE PERIOD WHERE AN EMPLOYEE IS REEMPLOYED UNDER THE SAME LEAVE SYSTEM PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE LEAVE PAYMENT ARE PLAIN AND NO EXCEPTIONS TO SUCH REQUIREMENTS ARE PROVIDED. 24 COMP. GEN. 532. THAT IS TO SAY, IN THE EVENT OF REEMPLOYMENT UNDER THE SAME LEAVE SYSTEM, THERE MUST BE A REFUND AND THE AMOUNTS REFUNDED MUST BE COVERED INTO THE TREASURY AS " MISCELLANEOUS RECEIPTS.' CONSEQUENTLY, THE ONLY PROCEDURE PROPERLY FOR FOLLOWING IN THE SITUATION PRESENTED IN CASE NO. 1 (ASSUMING THE EMPLOYEE WAS REEMPLOYED UNDER THE SAME LEAVE SYSTEM) IS TO OBTAIN A REFUND FROM THE EMPLOYEE OF AN AMOUNT EQUAL TO THE GROSS COMPENSATION EARNED IN HIS ORIGINAL POSITION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LEAVE PERIOD, WHICH AMOUNT MUST BE COVERED INTO THE TREASURY AS " MISCELLANEOUS RECEIPTS" AND THE EMPLOYEE MUST BE CREDITED WITH THE AMOUNT OF LEAVE REPRESENTED BY THE REFUND. 24 COMP. GEN. 511. THE LUMP-SUM PAYMENT COVERING THE SECOND EMPLOYMENT IN CASE NO. 1 SHOULD BE COMPUTED AS OF THE DATE OF THE SECOND SEPARATION. UNDER THE CIRCUMSTANCES, THE REFUND FROM THE EMPLOYEE MAY BE OBTAINED BY MEANS OF DEDUCTION FROM THE FINAL LUMP-SUM PAYMENT DUE THE EMPLOYEE. 24 COMP. GEN. 522. A CHECK THE AMOUNT OF THE REQUIRED REFUND SHOULD BE DRAWN IN FAVOR OF THE TREASURER OF THE UNITED STATES AND SCHEDULED ON STANDARD FORM 1096," SCHEDULE OF VOUCHER DEDUCTIONS," FOR DEPOSIT AS A " MISCELLANEOUS RECEIPT" AS FOR A COLLECTION BY THE WAR DEPARTMENT. A CHECK FOR THE BALANCE, LESS THE AMOUNT OF TAX REQUIRED TO BE WITHHELD, SHOULD BE DRAWN IN FAVOR OF THE EMPLOYEE. THE AMOUNT OF THE TAX WITHHELD SHOULD BE REMITTED TO THE BUREAU OF INTERNAL REVENUE IN THE USUAL MANNER. COURSE, SINCE THE AMOUNT OF THE REFUND IS AN INDEBTEDNESS TO THE UNITED STATES, ANY FINAL SALARY PAYMENT DUE ALSO MAY BE APPLIED TO THE REFUND. 24 COMP. GEN. 334. QUESTIONS 1 AND 2 ARE ANSWERED ACCORDINGLY. ASSUMING THAT THERE HAS BEEN NO LUMP-SUM PAYMENT ON ACCOUNT OF THE SEPARATION FROM THE SECOND EMPLOYMENT, THE PROCEDURE SET OUT IN THE ANSWERS TO QUESTIONS 1 AND 2 WOULD BE FOR FOLLOWING UNDER THE CIRCUMSTANCES PRESENTED IN QUESTION 3.

WITH REFERENCE TO CASE NO. 2, IT IS PRESUMED THAT BOTH EMPLOYMENTS WERE UNDER THE SAME LEAVE SYSTEM. UNDER THAT PRESUMPTION, AND UNDER THE FACTS STATED IN YOUR LETTER, SUPRA, WITH RESPECT TO QUESTION 4, ADJUSTMENT SHOULD BE EFFECTED IN ACCORDANCE WITH THE PROCEDURE OUTLINED IN CONNECTION WITH CASE NO. 1, ABOVE.

WITH RESPECT TO THE FACTS STATED IN CASE NO. 3, IT IS NOTED THAT AUGUST 9, 1946, WAS A FRIDAY, PRESUMABLY THE LAST DAY OF THE EMPLOYEES' ADMINISTRATIVE WORKWEEK IN THE WAR DEPARTMENT, AND THAT AUGUST 12, 1946, WAS A MONDAY, PRESUMABLY THE FIRST DAY OF THE EMPLOYEES' ADMINISTRATIVE WORKWEEK IN THE WAR ASSETS ADMINISTRATION. THEREFORE, A BREAK IN SERVICE OF ONE OR MORE WORKING DAYS BETWEEN THE TWO EMPLOYMENTS DID NOT OCCUR. THAT CONNECTION, IT HAS BEEN HELD THAT WHEN NO WORKDAY INTERVENES BETWEEN THE DAY A PER ANNUM EMPLOYEE LEAVES THE SERVICE OF ONE AGENCY AND ENTERS THE SERVICE OF ANOTHER AGENCY, PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT LAW OF DECEMBER 21, 1944, NEED NOT BE APPLIED AND LEAVE MAY BE TRANSFERRED IN ACCORDANCE WITH THE PROVISIONS OF THE LEAVE REGULATIONS, PROVIDED, OF COURSE, THE EMPLOYEE IS BEING TRANSFERRED OR REAPPOINTED TO A POSITION UNDER THE SAME LEAVE SYSTEM. 24 COMP. GEN. 768, QUESTION AND ANSWER NO. 5. SEE, ALSO, 24 COMP. GEN. 532, QUESTION AND ANSWER NO. 4. SECTION 3 OF THE ACT OF DECEMBER 21, 1944, PUBLIC LAW 525, 58 STAT. 845, 846, PROVIDES:

THAT ALL ACCUMULATED AND CURRENT ACCRUED LEAVE BE LIQUIDATED BY A LUMP- SUM PAYMENT TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IN CASES INVOLVING TRANSFER TO AGENCIES UNDER DIFFERENT LEAVE SYSTEMS. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE NOT BEEN TRANSFERRED UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE: PROVIDED, THAT THE LUMP-SUM PAYMENT HEREIN AUTHORIZED SHALL NOT BE REGARDED, EXCEPT FOR PURPOSES OF TAXATION, AS SALARY OR COMPENSATION AND SHALL NOT BE SUBJECT TO RETIREMENT DEDUCTIONS. IT WAS HELD IN 24 COMP. GEN. 726, 727, THAT---

* * * AN EMPLOYEE TRANSFERRED FROM A PERMANENT TO A TEMPORARY POSITION, AS DEFINED FOR LEAVE PURPOSES, BOTH POSITIONS FALLING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, PROVIDING FOR ONE LEAVE SYSTEM, IS NOT ENTITLED TO BE PAID IN A LUMP SUM UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, FOR THE ANNUAL LEAVE TO HIS CREDIT AT THE DATE OF TRANSFER EVEN THOUGH SUCH CREDIT IS NOT TRANSFERABLE FROM THE PERMANENT TO THE TEMPORARY POSITION. * * *

THERE NOW IS FOR CONSIDERATION WHETHER THE APPLICATION OF THAT HOLDING TO CASES SUCH AS ARE PRESENTED HERE, AS WELL AS TO OTHER CASES PRESENTLY OCCURRING GENERALLY THROUGHOUT THE GOVERNMENT, IS IN CONSONANCE WITH THE PURPOSE THE CONGRESS SOUGHT TO ACHIEVE IN ENACTING THE ACT OF DECEMBER 21, 1944, SUPRA. READING THAT ACT AS A WHOLE, IT IS APPARENT THAT IT WAS THE INTENT OF THE CONGRESS TO AUTHORIZE A LUMP SUM PAYMENT IN EVERY SITUATION IN WHICH AN EMPLOYEE OTHERWISE MIGHT BE COMPELLED TO FORFEIT THE LEAVE WHICH HAD ACCRUED TO HIS CREDIT, AND, ALSO, TO REQUIRE--- IF THE EMPLOYEE DURING THE PERIOD OVER WHICH THE LUMP-SUM PAYMENT WAS COMPUTED WERE REEMPLOYED IN A POSITION IN WHICH SUCH LEAVE AGAIN MIGHT BE CREDITED TO HIM--- A REFUND OF AN AMOUNT EQUAL TO THE COMPENSATION COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LEAVE PERIOD. IT IS ONLY BY REFERENCE TO THOSE PROVISIONS OF THE LEAVE REGULATIONS WHICH PROVIDE THAT AN AGENCY TO WHICH AN EMPLOYEE IS TRANSFERRED MAY, IN ITS DISCRETION, CREDIT THE LEAVE TO HIM WHERE AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED WITHOUT A BREAK IN SERVICE FROM A PERMANENT POSITION TO A TEMPORARY POSITION IN A DIFFERENT AGENCY, THAT THIS PURPOSE IS IN ANY WAY DEFEATED--- IT APPEARING TO BE THE GENERAL ADMINISTRATIVE PRACTICE IN SUCH CASES FOR THE EMPLOYING AGENCY TO DENY THE CREDIT IN A TEMPORARY POSITION FOR LEAVE ACCRUED IN THE PRIOR PERMANENT POSITION. IS THEN DEFEATED ONLY BECAUSE OF THE CONCLUSION THAT PERMANENT EMPLOYEES AND TEMPORARY EMPLOYEES ARE BOTH UNDER ONE LEAVE SYSTEM.

SECTION 30B, TITLE 5, U.S.C. PROVIDES:

WITH THE EXCEPTION OF TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AND OFFICERS AND EMPLOYEES OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA, AND EXCEPT AS PROVIDED IN SECTION 30L OF THIS TITLE, ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS: PROVIDED FURTHER, THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT OF THE UNITED STATES ON SEPTEMBER 8, 1939, THE LEAVE UNUSED BY THE EMPLOYEES OF THE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES, NOT IN OTHER FORM COMMUTED OR COMPENSATED SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING NINETY DAYS: AND PROVIDED FURTHER, THAT WHEN THE UNUSED LEAVE ACCUMULATED EQUALS OR EXCEEDS SIXTY DAYS IN THE AGGREGATE, NOT MORE THAN FIFTEEN DAYS OF UNUSED LEAVE MAY BE FURTHER ACCUMULATED IN ANY ONE CALENDAR YEAR. SECTIONS 29A, 30B-30E, 30L AND 31A OF THIS TITLE SHALL NOT AFFECT ANY SICK LEAVE TO WHICH EMPLOYEES ARE NOW OR MAY HEREAFTER BE ENTITLED. TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. THE ANNUAL LEAVE HEREIN AUTHORIZED SHALL BE GRANTED AT SUCH TIMES AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE.

WHILE THE GRANT OF ANNUAL LEAVE BOTH TO PERMANENT EMPLOYEES AND TO TEMPORARY EMPLOYEES IS CONTAINED IN THE SAME STATUTE, IT WILL BE NOTED THAT THOSE TEMPORARY EMPLOYEES WHO ARE ENTITLED TO LEAVE ARE ENTITLED TO 2 1/2 DAYS' LEAVE FOR EACH MONTH OF SERVICE, WHEREAS OTHER EMPLOYEES COVERED BY THE SECTION ARE ENTITLED TO 26 CALENDAR DAYS' LEAVE A YEAR, OR AT THE RATE OF APPROXIMATELY 2 1/6 DAYS PER CALENDAR MONTH. ALSO, IT WILL BE NOTED THAT TEMPORARY EMPLOYEES ARE ENTITLED TO LEAVE ON A MONTHLY SERVICE BASIS WHEREAS PERMANENT EMPLOYEES ARE ENTITLED TO LEAVE ON THE BASIS OF THE CALENDAR YEAR. HENCE, WHILE, AS STATED ABOVE, THESE TWO FORMULAS FOR CREDITING LEAVE ARE CONTAINED IN THE SAME ACT, IT CLEARLY APPEARS THAT EACH FORMS THE BASIS OF A SEPARATE LEAVE SYSTEM, ONE SYSTEM FOR TEMPORARY EMPLOYEES AND ONE SYSTEM FOR PERMANENT EMPLOYEES. ACCORDINGLY, IN THAT VIEW, AN EMPLOYEE APPOINTED, REAPPOINTED, OR TRANSFERRED WITHOUT A BREAK IN SERVICE FROM A PERMANENT POSITION TO A TEMPORARY POSITION MAY BE REGARDED AS TRANSFERRING TO A POSITION UNDER A "DIFFERENT LEAVE SYSTEM," WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 3 OF THE LUMP-SUM LEAVE PAYMENT ACT OF 1944, AND AS ENTITLED TO A LUMP-SUM PAYMENT COMPUTED AS OF THE LAST DAY OF HIS SERVICE IN THE PERMANENT POSITION. THEREFORE, QUESTION NO. 5 IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION NO. 6, A REFUND UNDER SECTION 1 OF THE LUMP SUM LEAVE LAW IS REQUIRED ONLY IN CASE OF REEMPLOYMENT UNDER THE SAME LEAVE SYSTEM PRIOR TO THE EXPIRATION OF THE PERIOD COVERED BY THE LEAVE PAYMENT. SINCE, IN LINE WITH THE STATEMENTS MADE IN CONNECTION WITH QUESTION 5, THE REEMPLOYMENT WOULD NOT BE UNDER THE SAME LEAVE SYSTEM, A REFUND AND CREDIT OF LEAVE WOULD NOT BE REQUIRED. QUESTION 6 IS ANSWERED ACCORDINGLY, AND QUESTION NO. 7 IS ANSWERED IN THE NEGATIVE.