B-156099, MAR. 29, 1965

B-156099, MAR. 29, 1965

TO THE HONORABLE SECRETARY OF AGRICULTURE:

YOUR LETTER OF FEBRUARY 4, 1965, SUBMITS FOR OUR CONSIDERATION THE REQUEST OF MISS HELEN U. BUTLER, A FORMER EMPLOYEE OF YOUR DEPARTMENT WHO RETIRED ON JANUARY 31, 1965, FOR THE RESTORATION OF ANNUAL LEAVE SHE WAS ADMINISTRATIVELY REQUIRED TO TAKE IN 1954 IN CONNECTION WITH HER APPEAL OF AN UNSATISFACTORY PERFORMANCE RATING.

YOUR LETTER AND THE STATEMENT ATTACHED THERETO CONTAINING THE CHRONOLOGY OF EVENTS TRANSPIRING IN THIS CASE, SHOW THAT MISS BULTER WAS ADMINISTRATIVELY REQUIRED TO TAKE ANNUAL LEAVE FOR THE PERIOD AUGUST 23 TO NOVEMBER 26, 1954, WHILE HER APPEAL OF THE UNSATISFACTORY RATING WAS BEING PROCESSED AND THAT SUCH RATING FINALLY WAS CHANGED TO SATISFACTORY AND SHE WAS SUBSEQUENTLY RETURNED TO ACTIVE DUTY STATUS.

YOUR LETTER POINTS OUT THAT BASED UPON THE CURRENT DECISION OF OUR OFFICE IT WOULD APPEAR THAT MISS BUTLER WOULD BE ENTITLED TO A RECREDIT OF THE ANNUAL LEAVE SHE WAS REQUIRED TO TAKE. 36 COMP. GEN. 779. HOWEVER, YOU ALSO SAY THAT AT THE TIME OF HER SEPARATION AND SUBSEQUENT RESTORATION TO ACTIVE DUTY THE DECISION OF OUR OFFICE WAS TO THE EFFECT THAT LEAVE COULD NOT BE RECREDITED IN SUCH CIRCUMSTANCES. 31 COMP. GEN. 38. IN ADDITION YOU SAY THAT MISS BUTLER, IN AUGUST 1956 OVER 15 MONTHS AFTER HER RETURN TO ACTIVE DUTY STATUS, WHEN SHE FIRST RAISED THE QUESTION OF RECREDIT OF HER ANNUAL LEAVE, WAS ADMINISTRATIVELY ADVISED THAT SUCH LEAVE COULD NOT BE RECREDITED UNDER THE EXISTING REGULATIONS AND OUR DECISION.

IN VIEW OF THE FOREGOING SITUATIONS YOU ASK WHETHER MISS BUTLER'S CASE IS GOVERNED BY OUR CURRENT DECISION OR THE ONE IN EFFECT AT THE TIME SHE WAS REQUIRED TO TAKE THE ANNUAL LEAVE.

OUR DECISION 36 COMP. GEN. 779, TO WHICH YOU REFER, HELD THAT THE PERIOD OF ANNUAL LEAVE AND LEAVE WITHOUT PAY THAT AN EMPLOYEE WAS REQUIRED TO TAKE CAME WITHIN THE PURVIEW OF THE PROVISIONS OF 5 U.S.C. 652 AND THAT UPON ADMINISTRATIVE RESTORATION TO DUTY HE BECAME ENTITLED THEREUNDER TO BACK PAY FOR SUCH PERIOD (LESS THE AMOUNT RECEIVED IN PAYMENT FOR ANNUAL LEAVE AND AMOUNTS EARNED THROUGH OTHER EMPLOYMENT) AND TO RECREDIT OF HIS ANNUAL LEAVE SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062. THAT DECISION HAD THE EFFECT OF REVERSING OUR PRIOR DECISION 31 COMP. GEN. 38, SUCH REVERSAL ACTION BEING PREDICATED UPON CERTAIN DECISIONS IN THE COURT OF CLAIMS.

IN VIEW THEREOF, OUR DECISION IN 36 COMP. GEN. 779, IS TO BE REGARDED AS CONTROLLING AND THE EMPLOYEE WOULD BE ENTITLED TO A RECREDIT OF THE ANNUAL LEAVE SHE WAS FORCED TO TAKE DURING THE PERIOD IN QUESTION, SUBJECT, OF COURSE, TO THE MAXIMUM ANNUAL LEAVE ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED.

YOU SAY THERE IS NO RECORD OF HOW MUCH ANNUAL LEAVE MISS BUTLER HAD TO HER CREDIT AT THE BEGINNING OF THE 1954 LEAVE YEAR. HOWEVER, THERECORD SHOWS SHE WAS GRANTED 523 HOURS OF ANNUAL LEAVE DURING THE PERIOD AUGUST 23 TO NOVEMBER 26, 1954. THE 523 HOURS LESS THE ANNUAL LEAVE ACCRUED FROM THE BEGINNING OF THE 1954 LEAVE YEAR TO NOVEMBER 26, 1954, MAY BE PRESUMED TO BE THE LEAST AMOUNT OF ANNUAL LEAVE THE EMPLOYEE COULD HAVE HAD TO HER CREDIT AT THE BEGINNING OF THE 1954 LEAVE YEAR. THAT COMPUTATION DOES NOT TAKE INTO CONSIDERATION ANY ANNUAL LEAVE WHICH MAY HAVE BEEN USED PRIOR TO AUGUST 23, 1954, BUT IN THE ABSENCE OF ANY LEAVE RECORDS IT SHOULD BE ACCEPTED AS THE EMPLOYEE'S ANNUAL LEAVE CEILING AS OF THE BEGINNING OF THE 1954 LEAVE YEAR. THAT AMOUNT OF ANNUAL LEAVE (OBVIOUSLY IN EXCESS OF 240 HOURS) SHOULD BE CREDITED TO THE EMPLOYEE'S ACCOUNT AS OF APRIL 10, 1955, DATE OF RESTORATION TO DUTY AND HER ANNUAL LEAVE ACCOUNT RECONSTRUCTED UP TO THE DATE OF SEPARATION. ANY ADDITIONAL CREDIT OF ANNUAL LEAVE RESULTING THEREFROM MAY BE PROCESSED FOR PAYMENT IN THE USUAL MANNER.