B-110780, AUGUST 5, 1952, 32 COMP. GEN. 76

B-110780, AUGUST 5, 1952, 32 COMP. GEN. 76

LUMP-SUM LEAVE PAYMENTS - EMPLOYEES ENTERING MILITARY SERVICE - PERIODIC WITHIN GRADE ADVANCEMENT UNDER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, THE ENTRY OF AN EMPLOYEE INTO THE MILITARY SERVICE IS TO BE REGARDED AS A SEPARATION, AND THEREFORE, THE COMPENSATION TO BE PAID FOR LEAVE TO AN EMPLOYEE ENTERING THE MILITARY SERVICE IS FOR DETERMINATION AT THE SALARY RATE HE WAS RECEIVING ON THE LAST DAY OF HIS CIVILIAN DUTY, EVEN THOUGH THE EMPLOYEE WOULD HAVE BEEN ENTITLED TO A WITHIN GRADE ADVANCEMENT HAD HE NOT BEEN SEPARATED UNTIL THE EXPIRATION OF HIS LEAVE.

ACTING COMPTROLLER GENERAL WEITZEL TO CLARENCE J. RUTTEN, AUGUST 5, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 18, 1952, REQUESTING REVIEW OF THE SETTLEMENT OF JUNE 3, 1952, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL LUMP-SUM PAYMENT FOR ACCRUED ANNUAL LEAVE, THE DISALLOWANCE BEING FOR THE REASON THAT UNDER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, THE RIGHT TO COMPENSATION TO BE PAID FOR ACCRUED LUMP-SUM LEAVE UPON SEPARATION IS LIMITED TO THE RATE YOU WERE IN RECEIPT OF ON THE LAST DAY OF YOUR SERVICE MARCH 2, 1951; THAT ACCORDINGLY, YOUR LUMP-SUM LEAVE PAYMENT PROPERLY DID NOT TAKE INTO CONSIDERATION THE WITHIN GRADE STEP INCREASE WHICH WOULD HAVE BEEN GRANTED YOU HAD YOU REMAINED IN THE SERVICE TO THE CLOSE OF BUSINESS MARCH 3, 1951. IN YOUR REQUEST FOR REVIEW, YOU STATE THAT YOU WERE NOT SEPARATED FROM THE SERVICE BUT CARRIED ON A MILITARY FURLOUGH AND ARGUE THAT YOU ARE ENTITLED TO ALL INCREASES DURING THE PERIOD OF LUMP-SUM LEAVE.

THE ACT OF AUGUST 1, 1941, AS AMENDED BY THE ACT OF APRIL 7, 1942, PUBLIC LAW 517, 56 STAT. 200, PROVIDES AS FOLLOWS:

THAT EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE. THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845, PROVIDES IN PERTINENT PART:

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 17, 1942, OR SECTION 4 OF THE ACT OF JUNE 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 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. (ITALICS SUPPLIED.)

UNDER THE FOREGOING PROVISION OF THE LUMP-SUM ACT, THE COMPENSATION TO (BE) PAID FOR LEAVE TO AN EMPLOYEE ENTERING THE MILITARY SERVICE IS FOR DETERMINATION AT THE SALARY RATE HE WAS RECEIVING ON THE LAST DAY OF HIS CIVILIAN DUTY, THE ENTRY INTO THE MILITARY SERVICE BEING REGARDED IN THE SAME LIGHT AS A SEPARATION FROM THE SERVICE FOR THE PURPOSE OF THAT ACT. IN THAT CONNECTION IT HAS BEEN HELD BY THIS OFFICE THAT THE PERIOD COVERED BY A LUMP-SUM LEAVE PAYMENT IS NOT CIVILIAN SERVICE. 26 COMP. GEN. 102, 106. ALSO, IN OFFICE DECISION OF JANUARY 13, 1945, 23 COMP. GEN. 526, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

THE DATE OF SEPARATION FROM SERVICE IS TO BE REGARDED AS THE LAST DAY OF ACTIVE SERVICE OF AN EMPLOYEE RECEIVING A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE UNDER THE ACT OF DECEMBER 21, 1944, AND THEREFORE, THE LUMP SUM PAYABLE TO AN EMPLOYEE WHO RESIGNED BETWEEN THE DATE OF THE ACT AND DECEMBER 31, 1944--- THE DATE ON WHICH HE WOULD COMPLETE THE 18 OR 30-MONTH PERIOD OF "SERVICE" TO ENTITLE HIM TO A WITHIN -GRADE PROMOTION UNDER THE ACT OF AUGUST 1, 1941, ON JANUARY 1, 1945--- SHOULD BE COMPUTED AT HIS SALARY RATE ON THE DATE OF SEPARATION * * *.

ACCORDINGLY, SINCE YOU HAD NOT COMPLETED THE FULL PERIOD OF 52 CALENDAR WEEKS OF SERVICE (EXPIRING AT CLOSE OF BUSINESS MARCH 3, 1951) PRIOR TO ENTRY INTO THE MILITARY SERVICE YOU WERE NOT ENTITLED TO HAVE YOUR LUMP- SUM LEAVE PAYMENT COMPUTED AT A SALARY RATE TO INCLUDE AN ADDITIONAL WITHIN-GRADE SALARY ADVANCEMENT AND, UPON REVIEW THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS SUSTAINED.