B-75880, SEPTEMBER 17, 1948, 28 COMP. GEN. 176

B-75880, SEPTEMBER 17, 1948, 28 COMP. GEN. 176

LUMP-SUM LEAVE PAYMENTS - TRANSFER FROM LEAVE-DIFFERENTIAL POSITION TO POSITION IN UNITED STATES THE TRANSFER OF A PERMANENT EMPLOYEE STATIONED OVERSEAS IN RECEIPT OF A FOREIGN-LEAVE DIFFERENTIAL TO A PERMANENT POSITION IN THE UNITED STATES--- BOTH POSITIONS COMING WITHIN THE PURVIEW OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936--- IS NOT A TRANSFER BETWEEN "DIFFERENT LEAVE SYSTEMS" ON ACCOUNT OF WHICH A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED LEAVE IS REQUIRED UNDER SECTION 3 OF THE ACT OF DECEMBER 21, 1944, WHERE THE ONLY DISTINCTION BETWEEN THE LEAVE RIGHTS OF EMPLOYEES ENTITLED TO THE DIFFERENTIAL AND THOSE EMPLOYED IN THE UNITED STATES IS THE NUMBER OF DAYS' ANNUAL LEAVE AUTHORIZED FOR A CALENDAR YEAR, THAT IS, 30 DAYS AS COMPARED WITH 26 DAYS, 26 COMP. GEN. 259, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO JACQ AEBLI, DEPARTMENT OF AGRICULTURE, SEPTEMBER 17, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 19, 1948, AS FOLLOWS:

THE ATTACHED PAYROLL VOUCHER NUMBER 685 IN THE AMOUNT OF $2594.14 REPRESENTING PAYMENT FOR LUMP SUM LEAVE DUE RICHARD C. CLIFFORD HAS BEEN SUBMITTED TO ME FOR CERTIFICATION. PLEASE ADVISE ME IF MAY CERTIFY THIS CLAIM FOR PAYMENT IN VIEW OF THE FACTS HEREIN STATED.

RICHARD C. CLIFFORD, P-4, AGRICULTURAL ENGINEER, $5905.20 PER ANNUM ( PLUS 25 PERCENT SALARY DIFFERENTIAL) WITH HEADQUARTERS AT SAN JUAN, PUERTO RICO WAS TRANSFERRED TO THE CONTINENT ON DECEMBER 8, 1947 AND ENTERED ON DUTY AT HIS NEW HEADQUARTERS, SPARTANBURG, S.C. ON THAT DATE WITH THE SAME BASIC SALARY. AT THAT TIME HE HAD ACCUMULATED AND ACCRUED LEAVE TOTALING 703 HOURS ANNUAL AND 720 HOURS SICK. ADMINISTRATIVE REGULATIONS, DEPT. OF AGRICULTURE, CHAPTER 30, SECTION 2, PARAGRAPH 1061 (2) PROVIDES FOR THE ACCRUAL OF ANNUAL LEAVE FOR PERMANENT EMPLOYEES STATIONED IN PUERTO RICO AT THE RATE OF 30 DAYS FOR EACH CALENDAR YEAR, THE EMPLOYEE TO EARN AND BE CREDITED WITH 5 HOURS EVERY SEVEN DAYS OR 20 HOURS EACH CALENDAR MONTH. SICK LEAVE ALSO ACCRUES UNDER THIS REGULATION AT THE RATE OF 30 DAYS EACH CALENDAR YEAR.

IN 26 COMPTROLLER GENERAL 264 IN DISCUSSING LUMP SUM LEAVE PAYMENTS FOR TRANSFERS FROM PERMANENT POSITIONS (EARNING 26 DAYS ANNUAL LEAVE EACH CALENDAR YEAR) TO TEMPORARY POSITIONS (EARNING 30 DAYS ANNUAL LEAVE FOR EACH CALENDAR YEAR) IT WAS HELD THAT SUCH PAYMENTS ARE PROPER EVEN THOUGH BOTH FORMULAS FOR CREDITING LEAVE ARE IN THE SAME ACT. THE BASIS OF THIS RULING WAS THAT THE AMOUNT OF LEAVE ACCRUING AND THE METHOD OF CREDITING DIFFER, THEREBY CREATING A DIFFERENT LEAVE SYSTEM. WHILE THE CASE HERE PRESENTED APPEARS IN SOME RESPECTS ANALOGOUS TO THAT DECISION AS WELL AS TO B-71393 DATED DECEMBER 23, 1947 (27 COMP. GEN. 341) IT IS NOT CONCLUSIVE, HENCE YOUR OPINION FOR THE PROPRIETY OF THE PAYMENT IS REQUESTED.

SECTION 3 OF THE LUMP-SUM LEAVE PAYMENT ACT OF DECEMBER 21, 1944, 58 STAT. 845, 846, PROVIDES:

SEC. 3. 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 * * *.

IN DECISION OF OCTOBER 24, 1946, 26 COMP. GEN. 259, 264, REFERRED TO IN YOUR LETTER, WITH RESPECT TO THE APPLICATION OF THE PROVISIONS OF THE ABOVE-QUOTED SECTION TO TRANSFERS FROM PERMANENT TO TEMPORARY POSITION UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IT WAS STATED:

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 FROM 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. * * *

IT IS UNDERSTOOD THAT PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 30, 1914, 38 STAT. 441, AS AMENDED, AUTHORIZING, IN THE DISCRETION OF THE SECRETARY OF AGRICULTURE, THE GRANTING OF LEAVE OF ABSENCE NOT TO EXCEED 30 DAYS IN ANY ONE YEAR TO EMPLOYEES ASSIGNED TO PERMANENT DUTY IN ALASKA, HAWAII, PUERTO RICO, AND GUAM--- IN CONJUNCTION WITH SECTION 5 OF THE SAID ANNUAL LEAVE ACT OF MARCH 14, 1936, AUTHORIZING THE CONTINUANCE OF ANY THEN EXISTING LEAVE DIFFERENTIAL FOR EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES--- PERMANENT EMPLOYEES STATIONED AT THE ABOVE-SPECIFIED FOREIGN DUTY STATIONS HAVE BEEN ALLOWED ANNUAL LEAVE OF 30 DAYS EACH CALENDAR YEAR. HOWEVER, IT IS FURTHER UNDERSTOOD THAT, WITH THE EXCEPTION OF EMPLOYEES STATIONED AT EXPERIMENTAL STATIONS IN SUCH FOREIGN DUTY STATIONS, ALL OF THE LEAVE REGULATIONS PRESCRIBED UNDER THE SAID ANNUAL LEAVE ACT OF MARCH 14, 1936, ARE FOR APPLICATION TO SUCH EMPLOYEES--- INCLUDING THE MAXIMUM LEAVE ACCUMULATION PROVISIONS NOW IN EFFECT WITH RESPECT TO LEAVE UNDER ACCUMULATION PROVISIONS NOW IN EFFECT WITH RESPECT TO LEAVE UNDER THE 1936 STATUTE. OF COURSE, IN VIEW OF THE LEAVE DIFFERENTIAL GRANTED EMPLOYEES AT THE SPECIFIED FOREIGN DUTY POSTS, THE PERIODIC CREDITS THEREFOR VARY IN AMOUNT FROM THOSE POSTED TO THE ACCOUNTS OF EMPLOYEES RECEIVING ONLY 26 DAYS' ANNUAL LEAVE UNDER THE 1936 STATUTE.

FROM THE FOREGOING, IT IS APPARENT THAT THE ONLY DISTINCTION BETWEEN THE LEAVE RIGHTS OF DEPARTMENT OF AGRICULTURE EMPLOYEES ENTITLED TO THE FOREIGN LEAVE DIFFERENTIAL (OTHER THAN THOSE EMPLOYED AT CERTAIN EXPERIMENTAL STATIONS) AND EMPLOYEES OF THAT DEPARTMENT STATIONED IN THE CONTINENTAL UNITED STATES, IS IN THE NUMBER OF DAYS' ANNUAL LEAVE AUTHORIZED FOR A CALENDAR YEAR, THAT IS, 30 DAYS AS COMPARED WITH 26 DAYS. SUCH CIRCUMSTANCE DOES NOT APPEAR SUFFICIENT, IN ITSELF, TO CONSTITUTE A DIFFERENT LEAVE SYSTEM FROM THAT PRESCRIBED UNDER THE 1936 STATUTE FOR PERMANENT EMPLOYEES IN THE UNITED STATES, AS WAS HELD WITH RESPECT TO TEMPORARY EMPLOYEES IN THE DECISION OF OCTOBER 24, 1946, SUPRA. IN THE LATTER SITUATION, NOT ONLY IS THERE A VARIATION IN THE TOTAL AMOUNT OF LEAVE AUTHORIZED FOR A CALENDAR YEAR, BUT ALSO THE RATE AT WHICH IT IS EARNED, AND THE CONDITIONS OF SERVICE REQUIRED FOR ELIGIBILITY THEREFOR DIFFER SUBSTANTIALLY FROM THOSE ESTABLISHED FOR PERMANENT EMPLOYEES. CONSEQUENTLY, IT DOES NOT APPEAR THAT THE HOLDING IN THAT DECISION IS, BY ANALOGY, APPLICABLE TO THE SITUATION PRESENTED IN YOUR LETTER.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT THE EMPLOYEE HERE INVOLVED IS NOT ENTITLED TO A LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF HIS TRANSFER TO A PERMANENT POSITION IN THE UNITED STATES. ACCORDINGLY, THE VOUCHER TRANSMITTED WITH YOUR LETTER PROPERLY MAY NOT BE CERTIFIED FOR PAYMENT.