B-121724, APR 20, 1971

B-121724, APR 20, 1971

ANNUAL LEAVE - RECREDIT - REEMPLOYMENT DECISION THAT THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE DUE AN EMPLOYEE SEPARATED BY THE DENVER SERVICE CENTER AND SUBSEQUENTLY REEMPLOYED BY THE DEPARTMENT OF THE ARMY SHOULD BE MADE TO THE ARMY IN ACCORDANCE WITH THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 67 STAT. 136. BECAUSE THE INDIVIDUAL WAS REEMPLOYED BEFORE ANY PAYMENT WAS PROCESSED FOR HIS ANNUAL LEAVE IN ORDER FOR THE RECREDIT OF TRANSFERRED LEAVE, A CHECK SHOULD BE FORWARDED TO THE ARMY COVERING THE GROSS COMPENSATION FOR THE UNEXPIRED PORTION OF THE EMPLOYEE'S LEAVE.

TO MISS CAROL S. BOWERS:

WE REFER TO YOUR LETTER OF MARCH 11, 1971, REGARDING TREATMENT OF A LUMP- SUM PAYMENT FOR ANNUAL LEAVE DUE AN EMPLOYEE WHO WAS SEPARATED BY YOUR AGENCY AND SUBSEQUENTLY REEMPLOYED BY THE DEPARTMENT OF THE ARMY.

YOU INDICATE THAT SINCE THE INDIVIDUAL WAS REEMPLOYED BEFORE ANY PAYMENT WAS PROCESSED FOR HIS ANNUAL LEAVE, A CHECK WAS ISSUED TO HIM TO COVER ONLY THE LEAVE BETWEEN SEPARATION AND REEMPLOYMENT AND THAT A RECORD INDICATING THE BALANCE IN HIS LEAVE ACCOUNT WAS FORWARDED TO THE DEPARTMENT OF THE ARMY. THE ARMY HAS ADVISED YOU THAT RECREDIT OF THE LEAVE TRANSFERRED WILL BE DELAYED UNTIL RECEIPT OF A CHECK FROM YOUR AGENCY COVERING THE GROSS COMPENSATION FOR THE UNEXPIRED PORTION OF THE EMPLOYEE'S LEAVE. YOU EXPRESS DOUBT AS TO WHETHER THIS IS PROPER.

THE PROVISIONS OF 5 U.S.C. 6306 COVERING REFUND OF PAYMENTS FOR ANNUAL LEAVE AND RECREDIT THEREOF ARE AS FOLLOWS:

"(A) WHEN AN INDIVIDUAL WHO RECEIVED A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 5551 OF THIS TITLE IS REEMPLOYED BEFORE THE END OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT IN OR UNDER THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, EXCEPT IN A POSITION EXCEPTED FROM THIS SUBCHAPTER BY SECTION 6301(2) (II), (III), OR (VII) OF THIS TITLE, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE PAY COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LUMP-SUM PERIOD.

"(B) AN AMOUNT REFUNDED UNDER SUBSECTION (A) OF THIS SECTION SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE EMPLOYING AGENCY. WHEN AN INDIVIDUAL IS REEMPLOYED UNDER THE SAME LEAVE SYSTEM, AN AMOUNT OF LEAVE EQUAL TO THE LEAVE REPRESENTED BY THE REFUND SHALL BE RECREDITED TO HIM IN THE EMPLOYING AGENCY. WHEN AN INDIVIDUAL IS REEMPLOYED UNDER A DIFFERENT LEAVE SYSTEM, AN AMOUNT OF LEAVE EQUAL TO THE LEAVE REPRESENTED BY THE REFUND SHALL BE RECREDITED TO HIM IN THE EMPLOYING AGENCY ON AN ADJUSTED BASIS UNDER REGULATIONS PRESCRIBED BY THE CIVIL SERVICE COMMISSION. *** "

IN OUR DECISION IN 34 COMP. GEN. 290, WE HELD IN PERTINENT PART AS FOLLOWS:

" *** THIS OFFICE NO LONGER WILL REQUIRE AN EMPLOYEE TO BE RESPONSIBLE FOR THE WITHHOLDING TAX ON THE FULL AMOUNT OF THE LUMP-SUM PAYMENT WHICH WOULD HAVE BEEN MADE HAD THE SEPARATED EMPLOYEE NOT BEEN REEMPLOYED. RATHER, THE AMOUNT OF THE WITHHOLDING TAX SHOULD BE COMPUTED ONLY UPON THE GROSS AMOUNT TO WHICH THE EMPLOYEE ACTUALLY IS ENTITLED FOR THE INTERIM PERIOD BETWEEN HIS SEPARATION AND REEMPLOYMENT - SUCH AS IS PROPOSED IN THE COMPTROLLER'S LETTER. THE DIFFERENCE BETWEEN THE GROSS AMOUNT DUE THE EMPLOYEE AND THE GROSS VALUE OF THE TOTAL LEAVE CREDIT IS TO BE TRANSFERRED TO THE REEMPLOYING AGENCY IN ACCORDANCE WITH THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 67 STAT. 136, AMENDING THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 58 STAT. 845."

THE LAST SENTENCE OF THE ABOVE-QUOTED EXCERPT TO WHICH YOU REFER WAS INTENDED TO RELATE TO THE GROSS CASH VALUE OF THE BALANCE OF THE ANNUAL LEAVE. THEREFORE, PAYMENT SHOULD BE MADE TO THE DEPARTMENT OF THE ARMY AS REQUESTED.