B-134901, FEBRUARY 13, 1958, 37 COMP. GEN. 523

B-134901, FEBRUARY 13, 1958, 37 COMP. GEN. 523

CIVILIAN PERSONNEL - STUDENT-TRAINEES - REGULAR AND INTERMITTENT EMPLOYMENT - LEAVE - 90-DAY WAITING PERIOD - LUMP-SUM PAYMENT EMPLOYEES WHO HOLD CAREER-CONDITIONAL APPOINTMENTS AND WHO, DURING THE SUMMER, ARE EMPLOYED ON A FULL-TIME REGULARLY SCHEDULED TOUR OF DUTY IN WHICH LEAVE IS EARNED AFTER CONTINUOUS EMPLOYMENT FOR NINETY DAYS AND WHO, DURING THE SCHOOL YEAR, ARE EMPLOYED ON A WHEN-ACTUALLY EMPLOYED BASIS WHEN LEAVE IS NOT EARNED DO NOT HAVE TO SERVE ANOTHER 90 DAY PERIOD FOR ANNUAL LEAVE PURPOSES WHEN THEY RETURN TO THE FULL-TIME, LEAVE-EARNING STATUS THE NEXT SUMMER. EMPLOYEES WHO HOLD CAREER-CONDITIONAL APPOINTMENTS AND WHO, DURING THE SUMMER, ARE EMPLOYED ON A FULL-TIME REGULARLY SCHEDULED TOUR OF DUTY IN WHICH LEAVE IS EARNED AFTER CONTINUOUS EMPLOYMENT FOR 90 DAYS AND WHO, DURING THE SCHOOL YEAR, ARE EMPLOYED ON A WHEN-ACTUALLY EMPLOYED BASIS WHEN LEAVE IS NOT EARNED SHOULD NOT BE REGARDED AS HAVING BEEN TRANSFERRED OR SEPARATED AT THE TIME THE TOUR OF DUTY IS CHANGED FOR PAYMENT OF LUMP- SUM LEAVE, BUT THE LEAVE SHOULD REMAIN TO THE CREDIT OF THE EMPLOYEES AND UPON CHANGE BACK TO A FULL-TIME STATUS THEY ARE ENTITLED TO EARN LEAVE IMMEDIATELY.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 13, 1958:

YOUR LETTER OF JANUARY 14, 1958, REQUESTS OUR DECISION UPON THE FOLLOWING QUESTIONS:

(1) IN ANY INSTANCE WHEN AN EMPLOYEE TRANSFERS FROM A LEAVE-EARNING STATUS TO A WAE INTERMITTENT STATUS, AND LATER RETURNS TO A LEAVE EARNING STATUS WITHOUT ANY PERIOD OF ACTUAL SEPARATION FROM THE SERVICE, IS A NEW 90-DAY PERIOD FOR ANNUAL LEAVE REQUIRED?

(2) IS THE ANSWER AFFECTED BY THE FACT THAT A LUMP-SUM PAYMENT FOR ANNUAL LEAVE WAS OR WAS NOT MADE AT THE TIME OF THE CHANGE TO INTERMITTENT STATUS?

THE SPECIFIC CASE RELATED BY YOU INVOLVES A GROUP OF STUDENT TRAINEES WHO HOLD CAREER-CONDITIONAL APPOINTMENTS UNDER WHICH THEY HAVE SERVED MORE THAN 90 DAYS. YOU SAY THAT DURING THE SUMMER THEY WORK FULL-TIME WITH A REGULAR TOUR OF DUTY BUT THAT WHEN THE SCHOOL YEAR BEGINS, THEY ARE CHANGED TO A WAE INTERMITTENT BASIS BY THE ISSUANCE OF A PAY ADJUSTMENT ACTION ON A PAYROLL CHANGE SLIP, SF 1126, BUT WITHOUT CHANGING THEIR APPOINTMENTS, AND THAT THEY ARE PAID A LUMP SUM FOR THEIR ANNUAL LEAVE AND, UPON COMPLETION OF THE SCHOOL YEAR, ARE RETURNED TO FULL-TIME STATUS. THE CHANGES CONCERN ONLY THE TOUR OF DUTY--- THE TYPE OF DUTIES REMAINING THE SAME.

SECTION 203 (I), OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, 5 U.S.C. 2062 (I), READS, IN PERTINENT PART, AS FOLLOWS:

* * * AN OFFICER OR EMPLOYEE SHALL BE ENTITLED TO ANNUAL LEAVE UNDER THIS TITLE ONLY AFTER HAVING BEEN EMPLOYED CURRENTLY FOR A CONTINUOUS PERIOD OF NINETY DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT BREAK IN SERVICE. * *

THE FACTS PRESENTED SHOW THAT THE EMPLOYEES INVOLVED HERE SERVED A 90-DAY PERIOD; HENCE, THEY HAVE MET THE REQUIREMENTS OF THE FOREGOING STATUTE FOR LEAVE ENTITLEMENT. FURTHER, THE FACTS SHOW THAT THE EMPLOYEES CONTINUE TO HOLD THE SAME CAREER-CONDITIONAL APPOINTMENT WHETHER THEY ARE ON A REGULARLY SCHEDULED TOUR OF DUTY ENTITLING THEM TO EARN LEAVE OR IN A WAE INTERMITTENT STATUS WITHOUT A REGULAR TOUR OF DUTY DURING WHICH PERIOD THEY ARE NOT ENTITLED TO EARN LEAVE.

OUR DECISIONS 33 COMP. GEN. 85, AND 35 ID. 155 CONCERNED DIFFERENT APPOINTMENTS--- RESULTING IN A TRANSFER OR SEPARATION. UNDER THE FACTS PRESENTED HERE, ONLY A SINGLE APPOINTMENT IS INVOLVED AND NO TRANSFER OR SEPARATION TAKES PLACE. THUS, NO BASIS EXISTS FOR APPLYING THOSE DECISIONS TO THE SITUATION HERE INVOLVED.

THEREFORE, HEREAFTER NO LUMP-SUM PAYMENTS SHOULD BE MADE IN THESE CASES WHEN NO SEPARATION ACTUALLY TAKES PLACE. THE LEAVE EARNED IS TO REMAIN TO THE EMPLOYEE'S CREDIT, AND UPON CHANGE BACK TO FULL-TIME STATUS WITH A REGULAR TOUR OF DUTY SUCH EMPLOYEES ARE ENTITLED TO EARN LEAVE IMMEDIATELY.