B-121307, NOVEMBER 24, 1954, 34 COMP. GEN. 254

B-121307, NOVEMBER 24, 1954, 34 COMP. GEN. 254

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - REGULATIONS GOVERNING AN EXECUTIVE ORDER IS EFFECTIVE WHEN SIGNED UNLESS OTHERWISE PROVIDED AND, THEREFORE, AN EMPLOYEE SEPARATED ON DECEMBER 14, 1953, WHOSE ANNUAL LEAVE WOULD HAVE EXTENDED THROUGH DECEMBER 31, 1953, IS ENTITLED IN THE COMPUTATION OF HER LUMP-SUM LEAVE PAYMENT TO THE HALF HOLIDAYS ON DECEMBER 24 AND 31, 1953, AUTHORIZED BY EXECUTIVE ORDER NO. 10508 WHICH WAS SIGNED ON THE DATE OF THE EMPLOYEE'S SEPARATION BUT NOT FILED IN THE NATIONAL ARCHIVES UNTIL THE FOLLOWING DAY. 27 COMP. GEN. 407, MODIFIED.

ACTING COMPTROLLER GENERAL WEITZEL TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, NOVEMBER 24, 1954:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1954, REQUESTING A DECISION UPON THE QUESTION WHETHER AN EMPLOYEE OF THE VETERANS ADMINISTRATION WHO RESIGNED ON DECEMBER 14, 1953, IS ENTITLED, IN THE COMPUTATION OF HER LUMP-SUM LEAVE PAYMENT, TO CREDIT FOR THE HALF HOLIDAYS, DECEMBER 24 AND DECEMBER 31, 1953, CREATED BY EXECUTIVE ORDER NO. 10507, SIGNED DECEMBER 14, 1953. IT IS STATED THAT PAYMENTS FOR THE TWO HALF-HOLIDAYS WERE MADE BY YOUR ADMINISTRATION WITHOUT CHARGE TO LEAVE BUT THAT AN AUDIT EXCEPTION THERETO HAS BEEN TAKEN BY THE REGIONAL AUDIT OFFICE OF THE GENERAL ACCOUNTING OFFICE, DENVER, COLORADO.

THE EXCEPTION WAS BASED ON THE PROPOSITION THAT SINCE EXECUTIVE ORDER NO. 10508 WAS FILED IN THE NATIONAL ARCHIVES ON DECEMBER 15, 1953, AT 10:25 A.M., AFTER THE DATE OF THE EMPLOYEE'S SEPARATION, SHE WAS NOT ENTITLED TO COMPENSATION FOR THE HALF-HOLIDAYS, CITING AS AUTHORITY THEREFOR OFFICE DECISIONS OF JANUARY 27, 1948, 27 COMP. GEN. 407, AND FEBRUARY 12, 1954, B -118368.

THE RULES RESPECTING THE COMPUTATION OF THE LUMP-SUM ANNUAL LEAVE PAYMENT AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, AS AMENDED, IS STATED IN 26 COMP. GEN. 102 (QUOTING THE FOURTH PARAGRAPH OF THE SYNOPSIS), AS FOLLOWS:

THE LUMP-SUM PAYMENT FOR LEAVE AUTHORIZED BY THE ACT OF DECEMBER 21, 1944, UPON SEPARATION FROM SERVICE IS NOT FOR COMPUTATION ON THE BASIS OF ANY AND ALL COMPENSATION CHANGES OCCURRING IN THE INTERIM BETWEEN THE DATE OF SEPARATION AND THE EXPIRATION OF THE LEAVE PERIOD TO BE CONSIDERED IN DETERMINING THE AMOUNT OF SUCH PAYMENT, BUT ON THE BASIS OF THE EMPLOYEE'S RIGHTS UNDER ALL APPLICABLE LAWS AND REGULATIONS EXISTING AT THE TIME OF SEPARATION WHICH WOULD HAVE AFFECTED HIS COMPENSATION HAD HE REMAINED IN THE SERVICE FOR THE PERIOD COVERED BY HIS LEAVE. ( ITALICS SUPPLIED.)

EXECUTIVE ORDER NO. 10508 WAS SIGNED ON DECEMBER 14, 1953, AND THE EMPLOYEE HERE INVOLVED WAS SEPARATED FROM THE SERVICE AT THE CLOSE OF BUSINESS ON THAT DATE. CONSEQUENTLY, THE EXECUTIVE ORDER BEING IN EXISTENCE ON THE DATE OF SEPARATION, THE EMPLOYEE WAS ENTITLED TO THE BENEFITS THEREOF IN THE COMPUTATION OF HER LUMP-SUM PAYMENT, IN ACCORDANCE WITH THE RULE STATED ABOVE.

IN THE DECISION OF JANUARY 27, 1948, 27 COMP. GEN. 407, CITED AS THE BASIS FOR THE EXCEPTION, THERE WAS INVOLVED THE SITUATION IN WHICH THE EXECUTIVE ORDER HAD BEEN SIGNED AND FILED BEFORE THE DATE OF THE EMPLOYEE'S SEPARATION. HENCE, THE STATEMENT IN THAT DECISION RESPECTING THE DATE AND HOUR OF FILING THE EXECUTIVE ORDER IN THE NATIONAL ARCHIVES WAS UNNECESSARY TO A DETERMINATION OF THE EMPLOYEE'S RIGHTS. FURTHER, THE FEDERAL REGISTER ACT PRIMARILY IS A STATUTE OF NOTIFICATION, AND AS SUCH, HAS NO BEARING UPON THE FACT OF THE EXISTENCE OF AN EXECUTIVE ORDER FOR THE PURPOSE OF APPLYING THE RULE SET OUT IN 26 COMP. GEN. 102. ACCORDINGLY, THE IMPLICATION ARISING BY VIRTUE OF CERTAIN STATEMENTS CONTAINED IN 27 COMP. GEN. 407, THAT EMPLOYEES SEPARATED PRIOR TO THE DATE AND HOUR OF THE FILING OF THE EXECUTIVE ORDER IN THE NATIONAL ARCHIVES ARE NOT ENTITLED TO THE BENEFITS THEREOF IS TO BE DISREGARDED, AND THAT DECISION IS MODIFIED ACCORDINGLY.

INSTRUCTIONS WILL ISSUE TO THE DIVISION OF AUDITS TO REMOVE THE EXCEPTION HERE INVOLVED.