B-164617, APR 13, 1972

B-164617, APR 13, 1972

CIVILIAN EMPLOYEE - ANNUAL LEAVE AND DISABILITY COMPENSATION - CONCURRENT ENTITLEMENT DECISION DISALLOWING THE CLAIM OF GLENN D. RAHR FOR PAYMENT OF ANNUAL LEAVE ALLEGEDLY LOST THROUGH ADMINISTRATIVE ERROR WHILE AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE. THE RECORD INDICATES CLAIMANT'S BELIEF THAT AN EMPLOYEE SHOULD EARN LEAVE WHILE HE IS ON A LEAVE WITHOUT PAY STATUS FOR THE PURPOSE OF RECEIVING DISABILITY COMPENSATION. MR. RAHR'S CLAIM MUST BE DENIED SINCE THE ACCRUING OF ANNUAL LEAVE TO AN EMPLOYEE WHO IS RECEIVING DISABILITY COMPENSATION IS CONTRARY TO THE SPIRIT AND INTENT OF 5 U.S.C. 8116(A).

TO MR. GLENN D. RAHR:

YOUR UNSIGNED LETTER OF JULY 9, 1971, SETS FORTH A CLAIM FOR PAYMENT OF 138 HOURS OF ANNUAL LEAVE WHICH YOU ALLEGED WAS LOST THROUGH ADMINISTRATIVE ERROR WITHOUT FAULT ON YOUR PART WHILE AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE.

YOU STATE:

"ON 2/12/68 I WAS INJURED ON THE JOB AT NORTON AFB, AND AS OF MAY 11, 1970 WENT OUT ON LWOP TO ESTABLISH COMPENSATION WITH BEC. AT THIS TIME I HAD THREE HUNDRED SEVENTY EIGHT (378) HOURS OF ANNUAL LEAVE OF WHICH ONE HUNDRED THIRTY EIGHT (138) HAD TO BE USED BEFORE THE END OF THAT YEAR. DUE TO THE FACT THAT I WAS ON OR PLACED ON LWOP STATUS THE CPO AND FINANCE OFFICE AT NORTON AFB ERRONEOUSLY SHORTCHANGED MY ANNUAL LEAVE BY REMOVING 138 HOURS OF MY ANNUAL LEAVE, LEAVING ONLY TWO HUNDRED FORTY HOURS (240) TO MY CREDIT."

YOU CONTINUE THAT ON MAY 12, 1971, YOU WERE PLACED ON SICK LEAVE TO USE 1,297 HOURS OF SICK LEAVE PRIOR TO BEING PLACED ON FURTHER DISABILITY COMPENSATION - BUREAU OF EMPLOYEES COMPENSATION (BEC) - AND THEN DISABILITY RETIREMENT, AS APPROVED BY THE CIVIL SERVICE COMMISSION.

THE ADMINISTRATIVE REPORT ON YOUR CLAIM CONFIRMS THE PERIOD OF YOUR ABSENCE WITHOUT PAY - MAY 11, 1970, TO MAY 12, 1971 - DURING WHICH YOU RECEIVED COMPENSATION FROM BEC. THE ADMINISTRATIVE OFFICE, HOWEVER, REPORTS THAT AS OF MAY 11, 1970, YOU HAD 230 HOURS OF ANNUAL LEAVE AND 1,297 HOURS OF SICK LEAVE. THE 138 HOURS - 139 AS COMPUTED ADMINISTRATIVELY - WHICH YOU CLAIM WAS FORFEITED, IS REPORTED TO REPRESENT THE ANNUAL LEAVE YOU WOULD HAVE EARNED DURING THE 1970 LEAVE YEAR AFTER MAY 11 BUT FOR THE FACT THAT YOU WERE IN A NONLEAVE EARNING STATUS WHILE RECEIVING DISABILITY COMPENSATION. YOU INDICATE THAT YOU BELIEVE AN EMPLOYEE SHOULD EARN LEAVE WHILE ON LEAVE WITHOUT PAY FOR THE PURPOSE OF RECEIVING DISABILITY COMPENSATION.

CHAPTER 81 - COMPENSATION FOR WORK INJURIES - OF TITLE 5, U.S.C. PROVIDES AT 5 U.S.C. 8116(A):

"SEC 8116. LIMITATIONS ON RIGHT TO RECEIVE COMPENSATION

"(A) WHILE AN EMPLOYEE IS RECEIVING COMPENSATION UNDER THIS SUBCHAPTER, OR IF HE HAS BEEN PAID A LUMP SUM IN COMMUTATION OF INSTALLMENT PAYMENTS UNTIL THE EXPIRATION OF THE PERIOD DURING WHICH THE INSTALLMENT PAYMENTS WOULD HAVE CONTINUED, HE MAY NOT RECEIVE SALARY, PAY, OR REMUNERATION OF ANY TYPE FROM THE UNITED STATES, EXCEPT -

"(1)IN RETURN FOR SERVICE ACTUALLY PERFORMED; AND

"(2) PENSION FOR SERVICE IN THE ARMY, NAVY, OR AIR FORCE.

HOWEVER, ELIGIBILITY FOR OR RECEIPT OF BENEFITS UNDER SUBCHAPTER III OF CHAPTER 83 OF THIS TITLE, OR ANOTHER RETIREMENT SYSTEM FOR EMPLOYEES OF THE GOVERNMENT, DOES NOT IMPAIR THE RIGHT OF THE EMPLOYEE TO COMPENSATION FOR SCHEDULED DISABILITIES SPECIFIED BY SECTION 8107(C) OF THIS TITLE."

WE HAVE HELD THAT THE ACCRUING OF ANNUAL LEAVE TO AN EMPLOYEE DURING THE PERIOD THAT HE IS IN RECEIPT OF DISABILITY COMPENSATION IS IN CONTRAVENTION OF THE SPIRIT AND INTENT OF 5 U.S.C. 8116(A) ABOVE. SEE 29 COMP. GEN. 73 (1949). THUS, THERE IS NO AUTHORITY FOR CREDITING LEAVE DURING PERIODS WHEN AN EMPLOYEE IS ON LEAVE WITHOUT PAY FOR THE PURPOSE OF RECEIVING DISABILITY COMPENSATION.

ACCORDINGLY, YOUR CLAIM FOR PAYMENT FOR THE ANNUAL LEAVE IN QUESTION IS DENIED.