[Protest of Air Force Contract Award for Aircraft Maintenance Training Device Upgrades and Logistics Support]

B-208293, AUG 15, 1983

DIGEST: EMPLOYEE'S ANNUAL LEAVE ACCOUNT WAS ERRONEOUSLY OVERCREDITED DUE TO AGENCY'S ERROR IN CALCULATING SERVICE COMPUTATION DATE AND, THUS, THE NUMBER OF HOURS OF LEAVE SHE WAS TO ACCRUE EACH PAY PERIOD. WAIVER OF THE GOVERNMENT'S CLAIM TO THE OVERCREDITED ANNUAL LEAVE IS DENIED SINCE THERE WAS A POSITIVE BALANCE REMAINING IN EMPLOYEE'S LEAVE ACCOUNT AFTER AGENCY ADJUSTED THE ACCOUNT TO CORRECT ITS ADMINISTRATIVE ERRORS. ALTHOUGH AGENCY ERRED IN OVERCREDITING LEAVE AND IN DELAYING CORRECTION OF THE ERROR, EMPLOYEE WAS ALSO AT FAULT FOR FAILING TO INQUIRE AS TO STATUS OF THE CORRECTION.

BESSIE P. WILLIAMS - RECONSIDERATION -

WAIVER OF ERRONEOUS CREDIT OF ANNUAL LEAVE:

THIS IS IN RESPONSE TO A LETTER FROM MRS. BESSIE P. WILLIAMS, DATED MARCH 10, 1983, WHICH WAS FORWARDED TO OUR OFFICE BY THE HONORABLE DOUG BARNARD, JR., HOUSE OF REPRESENTATIVES, REQUESTING RECONSIDERATION OF OUR DECISION IN BESSIE P. WILLIAMS, B-208293, JANUARY 26, 1983. IN OUR PREVIOUS DECISION, WE DENIED WAIVER OF THE GOVERNMENT'S CLAIM AGAINST MRS. WILLIAMS FOR 190 HOURS OF ANNUAL LEAVE, WHICH WAS ERRONEOUSLY CREDITED TO, AND SUBSEQUENTLY SUBTRACTED FROM, HER ANNUAL LEAVE ACCOUNT. WE DENIED WAIVER SINCE THERE WAS A POSITIVE LEAVE BALANCE REMAINING IN MRS. WILLIAMS' ACCOUNT AFTER THE AGENCY ADJUSTED HER ACCOUNT TO CORRECT ITS ERRONEOUS OVERCREDIT OF ANNUAL LEAVE. ALTHOUGH THE OVERCREDIT OF LEAVE WAS ENTIRELY THE RESULT OF ERRONEOUS ACTIONS OF GOVERNMENT AGENTS, WE HELD THAT UNDER THE CIRCUMSTANCES, THE AGENCY SHOULD BE ALLOWED TO CORRECT ITS EARLIER MISTAKE. FOR THE REASONS STATED BELOW, WE SUSTAIN OUR PRIOR DECISION.

WHEN MRS. WILLIAMS BEGAN TO WORK FOR THE BUREAU OF RECLAMATION IN 1974, AN AGENCY PERSONNEL SPECIALIST MADE AN ERROR IN COMPUTING HER SERVICE COMPUTATION DATE (YEARS OF CREDITABLE SERVICE), AND THIS ERROR RESULTED IN MRS. WILLIAMS' ACCRUAL OF 8 (RATHER THAN 6) HOURS OF ANNUAL LEAVE EACH PAY PERIOD. ALTHOUGH MRS. WILLIAMS QUESTIONED THE CLERK'S ACTION AT THAT TIME, SHE WAS ASSURED THAT NO ERROR HAD BEEN MADE.

IN 1979, HOWEVER, THE AGENCY DETERMINED THAT MRS. WILLIAMS' SERVICE COMPUTATION DATE HAD BEEN IMPROPERLY COMPUTED SINCE 1974 AND THAT, AS A RESULT, MRS. WILLIAMS' LEAVE ACCOUNT HAD BEEN OVERCREDITED WITH 238 HOURS OF ANNUAL LEAVE. (THIS FIGURE WAS LATER REVISED IN 1981 TO SHOW AN OVERCREDIT OF ONLY 190 HOURS OF LEAVE.) THE AGENCY DID NOT CORRECT THIS ERROR UNTIL APRIL 3, 1982, WHEN IT DEDUCTED 190 HOURS OF ANNUAL LEAVE FROM MRS. WILLIAMS' ACCOUNT. THIS REDUCED HER OUTSTANDING ANNUAL LEAVE BALANCE FROM 208 HOURS TO 18 HOURS.

MRS. WILLIAMS MAINTAINS THAT THE REDUCTION OF HER ANNUAL LEAVE ACCOUNT BY 190 HOURS HAS CREATED AN EXTREME HARDSHIP FOR HER BECAUSE SHE HAD PLANNED TO USE HER 240-HOUR ANNUAL LEAVE BALANCE TO FACILITATE HER RETIREMENT IN 1983 (TO REPAY PRIOR RETIREMENT CONTRIBUTIONS WHICH SHE HAD WITHDRAWN). MRS. WILLIAMS ASSERTS THAT THIS PROBLEM WITH HER LEAVE ACCOUNT IS ENTIRELY THE RESULT OF ERRORS MADE BY HER PERSONNEL OFFICE IN COMPUTING HER LEAVE ENTITLEMENT, AND THAT SHE RELIED IN GOOD FAITH ON THE AGENCY'S CALCULATIONS AT ALL TIMES. SHE QUESTIONS WHY SHE MUST BEAR THE ADVERSE RESULTS OF THE MISTAKES OF HER PERSONNEL OFFICE, PARTICULARLY WHEN SHE QUESTIONED THE PERSONNEL SPECIALIST'S COMPUTATION OF HER SERVICE COMPUTATION DATE IN THE FIRST PLACE, AND WAS ASSURED THAT THE DATE STATED WAS CORRECT.

MRS. WILLIAMS FURTHER MAINTAINS THAT IF THE AGENCY HAD CORRECTLY CALCULATED HER ANNUAL LEAVE FROM THE BEGINNING, OR IF THE AGENCY HAD CORRECTED THE ERROR IN 1979, SHE WOULD HAVE USED THE LEAVE DIFFERENTLY, THUS BUILDING UP HER RESERVES. IN THIS REGARD, SHE CONCLUDES THAT SHE WAS PLACED AT A PARTICULAR DISADVANTAGE HERE BECAUSE SHE WAS REQUIRED TO USE LARGE AMOUNTS OF LEAVE TO KEEP HER LEAVE BALANCE WITHIN THE 240 HOUR LEAVE CEILING DURING THE 3-YEAR PERIOD BETWEEN MAY 1979 (WHEN THE ERROR WAS DISCOVERED), AND APRIL 1982 (WHEN IT WAS FINALLY CORRECTED). IN LIGHT OF THESE CONCERNS, MRS. WILLIAMS REQUESTS THAT WAIVER OF THE GOVERNMENT'S CLAIM AGAINST HER BE GRANTED, AND THAT 190 HOURS OF ANNUAL LEAVE BE RESTORED TO HER ACCOUNT.

AS WE STATED IN OUR PRIOR DECISION, WE HAVE HELD THAT WAIVER OF ERRONEOUS CREDITING OF ANNUAL LEAVE IS APPROPRIATE ONLY WHERE CORRECTION OF THE OVERCREDIT WOULD REQUIRE THE EMPLOYEE TO TAKE LEAVE IN EXCESS OF THAT TO WHICH HE IS ENTITLED, THEREBY CREATING A NEGATIVE BALANCE IN HIS ANNUAL LEAVE ACCOUNT. WHERE AN EMPLOYEE HAS SUFFICIENT LEAVE IN HIS ACCOUNT TO COVER SUCH AN ADJUSTMENT, HOWEVER, THERE IS NO OVERPAYMENT OF PAY WHICH MAY BE CONSIDERED FOR WAIVER SINCE THE ERROR MAY BE EASILY CORRECTED THROUGH THE MERE REDUCTION OF THE EMPLOYEE'S POSITIVE LEAVE BALANCE. SEE LAMOYNE J. DELILLE, 56 COMP.GEN. 824 (1977); JOHN P. MITCHELL, B-180010.12, MARCH 8, 1979; AND B-176020, AUGUST 4, 1972. UPON RECONSIDERATION, WE REAFFIRM OUR PRIOR CONCLUSION THAT WAIVER IS NOT APPROPRIATE IN THIS CASE BECAUSE MRS. WILLIAMS WAS LEFT WITH A POSITIVE LEAVE BALANCE AFTER THE AGENCY ADJUSTED HER ACCOUNT TO CORRECT ITS ERRORS.

IN REQUESTING RECONSIDERATION, MRS. WILLIAMS EMPHASIZES THAT THE AGENCY'S LONG DELAY, FROM 1979 UNTIL 1982, IN CORRECTING THE ERRORS IN HER LEAVE ACCOUNT WILL COST HER PART OF HER RETIREMENT ANNUITY. SHE MAINTAINS THAT SHE WOULD HAVE USED HER LEAVE VERY DIFFERENTLY BETWEEN 1979 AND 1982 IF SHE HAD KNOWN THE DEPLETING EFFECT THAT THE AGENCY'S ADJUSTMENT WAS TO HAVE ON HER OUTSTANDING ANNUAL LEAVE BALANCE.

WE RECOGNIZE THAT MRS. WILLIAMS MAY HAVE RELIED ON THE MISINFORMATION OF GOVERNMENT OFFICIALS, AND MAY HAVE BEEN OTHERWISE DISADVANTAGED BY THE AGENCY'S DELAY IN CORRECTING HER ANNUAL LEAVE BALANCE. HOWEVER, WE BELIEVE THAT MRS. WILLIAMS HERSELF WAS ALSO AT FAULT FOR FAILING TO MAKE INQUIRY, OVER A 3-YEAR PERIOD, CONCERNING WHEN THE AGENCY WOULD MAKE THE NECESSARY CORRECTION IN HER LEAVE ACCOUNT. AS WE STATED IN ARTHUR WEINER, B-184480, MAY 20, 1976, WE CANNOT STRESS TOO HIGHLY THE IMPORTANCE OF A CAREFUL REVIEW BY EACH EMPLOYEE OF THE PAY AND LEAVE DATA PROVIDED BY THE EMPLOYING AGENCY. SUCH REVIEW, AND REPORTING OF DISCREPANCIES FOR REMEDIAL ACTION, IS AN ESSENTIAL FUNCTION IN THE GOVERNMENT'S ATTEMPT TO REDUCE PAYROLL AND LEAVE ERRORS.

IN MAY 1979, MRS. WILLIAMS WAS FIRST INFORMED THAT THE AGENCY HAD OVERCREDITED HER ANNUAL LEAVE ACCOUNT. AT THAT TIME, THE PAYROLL OFFICE STATED THAT IT WOULD TAKE ACTION TO ADJUST HER OUTSTANDING LEAVE BALANCE DOWNWARD, TO REFLECT THE AMOUNT OF LEAVE SHE WOULD HAVE ACCRUED BETWEEN JANUARY 1974, AND MAY 1979, BUT FOR THE AGENCY'S ERROR. IN REALITY, HOWEVER, THE AGENCY DID DEDUCT THE OVERCREDITED LEAVE FROM MRS. WILLIAMS' ACCOUNT UNTIL APRIL 1982. DURING THIS 3-YEAR PERIOD, MRS. WILLIAMS RECEIVED COPIES OF HER TIME AND ATTENDANCE STATEMENTS, AND THEREFORE, WAS ON NOTICE THAT THE AGENCY HAD NOT YET DEDUCTED THE ERRONEOUSLY CREDITED LEAVE HOURS. HOWEVER, THERE IS NO INDICATION IN THE RECORD BEFORE US THAT MRS. WILLIAMS MADE ANY INQUIRIES BETWEEN MAY 1979, AND APRIL 1982, AS TO WHEN THE AGENCY WOULD DEDUCT THE ERRONEOUS HOURS SO THAT SHE COULD REBUILD HER ANNUAL LEAVE BALANCE. TO THE CONTRARY, IT APPEARS THAT AFTER SOME TIME HAD PASSED AND THE CORRECTION HAD NOT BEEN MADE, MRS. WILLIAMS INSTEAD CHOSE NOT TO MAKE INQUIRY, OR OTHERWISE PURSUE THE MATTER, IN THE BELIEF THAT THE STATUTE OF LIMITATIONS HAD RUN (OR WAS ABOUT TO RUN), AND THEREFORE, THAT THE GOVERNMENT COULD NO LONGER DEDUCT THE OVERCREDITED LEAVE FROM HER ACCOUNT.

THEREFORE, WE CANNOT SAY THAT MRS. WILLIAMS WAS WITHOUT FAULT IN FAILING TO MAKE INQUIRY, DURING THE 3-YEAR PERIOD OF THE DELAY, AS TO WHEN THE ERROR WOULD BE CORRECTED. UNDER THE CIRCUMSTANCES, WAIVER MAY NOT BE GRANTED DESPITE THE LENGTHY DELAY IN CORRECTING THE ERRORS.

ACCORDINGLY, WE SUSTAIN OUR PRIOR DISALLOWANCE OF MRS. WILLIAMS' REQUEST FOR WAIVER.