B-226573, APR 27, 1987, OFFICE OF GENERAL COUNSEL
Highlights
CIVILIAN PERSONNEL - LEAVES OF ABSENCE - ANNUAL LEAVE - CREDITS - OVERPAYMENTS - WAIVER DIGEST: AN EMPLOYEE'S ANNUAL LEAVE ACCOUNT WAS OVERCREDITED BECAUSE OF AN ERROR IN HIS SERVICE COMPUTATION DATE. WAS UNDER CONSIDERATION BY OUR CLAIMS GROUP. WE ARE PROVIDING THE FOLLOWING EXPLANATION OF OUR CLAIMS GROUP'S SETTLEMENT. WITH THE HOPE THAT THIS EXPLANATION WILL ADDRESS MR. ARMY PERSONNEL OFFICIALS ASSURED HIM THAT THE DATE WAS CORRECT. APPROXIMATELY 9 YEARS BEFORE HE WAS ENTITLED TO ACCRUE LEAVE AT THE 8-HOUR RATE. HALSTEAD USED LEAVE IN EXCESS OF THAT TO WHICH HE WAS ENTITLED IN LEAVE YEARS 1980. HALSTEAD COULD NOT RETAIN THE OVERCREDITED ANNUAL LEAVE BECAUSE THE LEAVE WAS NOT SUBJECT TO WAIVER UNDER SECTION 5584.
B-226573, APR 27, 1987, OFFICE OF GENERAL COUNSEL
CIVILIAN PERSONNEL - LEAVES OF ABSENCE - ANNUAL LEAVE - CREDITS - OVERPAYMENTS - WAIVER DIGEST: AN EMPLOYEE'S ANNUAL LEAVE ACCOUNT WAS OVERCREDITED BECAUSE OF AN ERROR IN HIS SERVICE COMPUTATION DATE, AND HE APPLIED FOR WAIVER UNDER 5 U.S.C. SEC. 5584. WE ADVISE THE INTERESTED CONGRESSMAN THAT OUR CLAIMS GROUP PROPERLY GRANTED WAIVER ONLY TO THE EXTENT THAT RECONSTRUCTION OF THE EMPLOYEE'S LEAVE ACCOUNT PRODUCED A NEGATIVE LEAVE BALANCE. THE OVERCREDITED HOURS OF ANNUAL LEAVE DEDUCTED IN RECONSTRUCTING THE EMPLOYEE'S LEAVE ACCOUNT MAY NOT BE CONSIDERED FOR WAIVER, BECAUSE THIS ADJUSTMENT DID NOT CONSTITUTE AN ERRONEOUS PAYMENT OF PAY WITHIN THE MEANING OF THE WAIVER STATUTE.
THE HONORABLE DON NICKLES:
THIS RESPONDS TO YOUR CORRESPONDENCE OF MARCH 5, 1987, FORWARDING MR. JAMES L. HALSTEAD'S LETTER OF FEBRUARY 25, 1987. IN HIS LETTER OF FEBRUARY 25, MR. HALSTEAD PRESENTS CONCERNS RELATING TO HIS APPLICATION FOR WAIVER OF ERRONEOUSLY CREDITED ANNUAL LEAVE WHICH, AT THE TIME, WAS UNDER CONSIDERATION BY OUR CLAIMS GROUP. BY SETTLEMENT DATED FEBRUARY 26, 1987, OUR CLAIMS GROUP WAIVED SALARY OVER-PAYMENTS MR. HALSTEAD RECEIVED DURING LEAVE YEARS FOR WHICH THE CORRECTION OF HIS LEAVE ACCOUNT PRODUCED NEGATIVE LEAVE BALANCES, BUT IT FOUND NO BASIS FOR ALLOWING MR. HALSTEAD TO RETAIN ERRONEOUSLY CREDITED LEAVE. WE ARE PROVIDING THE FOLLOWING EXPLANATION OF OUR CLAIMS GROUP'S SETTLEMENT, WITH THE HOPE THAT THIS EXPLANATION WILL ADDRESS MR. HALSTEAD'S CONCERNS.
WHEN MR. HALSTEAD BEGAN CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE ARMY IN FEBRUARY 1976, THE ARMY INCORRECTLY ESTABLISHED HIS SERVICE COMPUTATION DATE AS NOVEMBER 13, 1963, RATHER THAN FEBRUARY 16, 1973, BASED ON ITS ERRONEOUS INCLUSION OF HIS PRIOR YEARS OF MILITARY SERVICE. MR. HALSTEAD QUESTIONED THE CORRECTNESS OF HIS SERVICE COMPUTATION DATE ON A NUMBER OF OCCASIONS, BUT ARMY PERSONNEL OFFICIALS ASSURED HIM THAT THE DATE WAS CORRECT. AS A RESULT OF THE ARMY'S ERROR, MR. HALSTEAD BEGAN ACCRUING 8 HOURS OF ANNUAL LEAVE PER PAY PERIOD IN 1979, APPROXIMATELY 9 YEARS BEFORE HE WAS ENTITLED TO ACCRUE LEAVE AT THE 8-HOUR RATE.
IN 1986, THE ARMY DISCOVERED ITS MISTAKE AND DEDUCTED 344 HOURS OF ERRONEOUSLY CREDITED ANNUAL LEAVE FROM MR. HALSTEAD'S CURRENT LEAVE ACCOUNT. THEN, THE ARMY RECONSTRUCTED MR. HALSTEAD'S LEAVE RECORD ON AN ANNUAL BASIS BEGINNING WITH LEAVE YEAR 1979, IN ORDER TO REFLECT THE PROPER 6-HOUR RATE OF LEAVE ACCRUAL. BASED ON THIS RECONSTRUCTION, THE ARMY DETERMINED THAT MR. HALSTEAD USED LEAVE IN EXCESS OF THAT TO WHICH HE WAS ENTITLED IN LEAVE YEARS 1980, 1984, AND 1985, RESULTING IN A TOTAL SALARY OVERPAYMENT OF $908.52.
THE ARMY FORWARDED MR. HALSTEAD'S REQUEST FOR WAIVER OF HIS INDEBTEDNESS TO OUR CLAIMS GROUP, RECOMMENDING THAT THE SALARY OVERPAYMENT BE WAIVED AND ALSO QUESTIONING WHETHER MR. HALSTEAD COULD BE RECREDITED WITH THE 344 HOURS OF ANNUAL LEAVE. OUR CLAIMS GROUP WAIVED THE SALARY OVERPAYMENT UNDER 5 U.S.C. SEC. 5584 (1982 & SUPP. III 1985), BUT IT DETERMINED THAT MR. HALSTEAD COULD NOT RETAIN THE OVERCREDITED ANNUAL LEAVE BECAUSE THE LEAVE WAS NOT SUBJECT TO WAIVER UNDER SECTION 5584.
OUR CLAIMS GROUP'S DETERMINATION IN MR. HALSTEAD'S CASE WAS BASED ON THE PROVISION IN 5 U.S.C. SEC. 5584 WHICH ALLOWS US TO WAIVE ONLY THOSE CLAIMS FOR PAY AND ALLOWANCES WHICH ARISE FROM AN "ERRONEOUS PAYMENT." IN CASES INVOLVING ERRONEOUSLY CREDITED ANNUAL LEAVE, WE HAVE CONSISTENTLY HELD THAT AN "ERRONEOUS PAYMENT" OCCURS ONLY IF RECONSTRUCTION OF THE EMPLOYEE'S LEAVE ACCOUNT TO CORRECT THE CREDITING ERROR PRODUCES A NEGATIVE LEAVE BALANCE FOR ANY GIVEN LEAVE YEAR. SEE CARL H. L. BARKSDALE, B-219509, NOVEMBER 29, 1985; PATRICIA A. BOLSTAD, B-216378, OCTOBER 24, 1984. SINCE AN EMPLOYEE WITH A NEGATIVE LEAVE BALANCE HAS BEEN PAID FOR ABSENCES NOT COVERED BY LEAVE, HE IS INDEBTED FOR PAY AND THAT INDEBTEDNESS MAY BE CONSIDERED FOR WAIVER UNDER 5 U.S.C. SEC. 5584. IN CONTRAST, WHEN ERRONEOUSLY CREDITED ANNUAL LEAVE IS SET OFF AGAINST THE EMPLOYEE'S CURRENT LEAVE BALANCE, THERE HAS BEEN NO OVERPAYMENT OF PAY QUALIFYING FOR WAIVER UNDER SECTION 5584. SEE CARL H. L. BARKSDALE, CITED ABOVE.
ACCORDINGLY, SINCE MR. HALSTEAD WAS GRANTED WAIVER OF THE ERRONEOUS SALARY PAYMENTS HE RECEIVED, HE IS NOT ELIGIBLE FOR WAIVER OF ANY ADDITIONAL AMOUNTS. THE 344 HOURS OF ANNUAL LEAVE WHICH THE ARMY DEDUCTED FROM HIS LEAVE BALANCE DO NOT CONSTITUTE AN OVERPAYMENT OF PAY SUBJECT TO WAIVER UNDER 5 U.S.C. SEC. 5584, AND WE ARE AWARE OF NO OTHER LEGAL BASIS FOR RECREDITING THOSE HOURS TO HIM. SEE GENERALLY PATRICIA A. BOLSTEAD, CITED ABOVE.
IN HIS LETTER OF FEBRUARY 25, MR. HALSTEAD ASSERTS THAT FAILURE TO RECREDIT HIM WITH THE 344 HOURS OF ANNUAL LEAVE WOULD PENALIZE HIM FOR AN ERROR THAT WAS SOLELY THE FAULT OF THE ARMY. WHILE WE RECOGNIZE THAT ARMY PERSONNEL OFFICIALS WERE RESPONSIBLE FOR THE ERROR IN MR. HALSTEAD'S LEAVE ACCOUNT, IT IS WELL ESTABLISHED THAT THE GOVERNMENT IS NOT BOUND BY THE ACTS OF ITS EMPLOYEES AND CANNOT BE ESTOPPED FROM CORRECTING THEIR ERRORS. SEE BESSIE P. WILLIAMS, B-208293, JANUARY 26, 1983, AFFIRMED, AUGUST 15, 1983.
WE ARE ENCLOSING COPIES OF THE DECISIONS CITED ABOVE, AS WELL AS THE MATERIALS WHICH ACCOMPANIED YOUR CORRESPONDENCE.