B-191041, JUN. 2, 1978, 57 COMP.GEN. 516

B-191041, JUN. 2, 1978, 57 COMP.GEN. 516

LEAVES OF ABSENCE - FORFEITURE - ADMINISTRATIVE ERROR WHERE EMPLOYEE SEEKS AND OBTAINS AN UNOFFICIAL ESTIMATE OF PROJECTED RETIREMENT ANNUITY, WHEREIN AN ERROR IN DIVISION WAS MADE CAUSING AN OVERSTATEMENT OF SUCH ANNUITY, BUT BY THE TIME THE ERROR WAS DISCOVERED AND THE EMPLOYEE DECIDED TO POSTPONE RETIREMENT, HE WAS UNABLE TO SCHEDULE AND USE ALL EXCESS ANNUAL LEAVE, SINCE CALCULATION ERROR DID NOT INVOLVE CONSIDERATION OF LEAVE MATTERS SUCH ERROR AS WAS MADE DOES NOT QUALIFY UNDER 5 U.S.C. 6304 AS A BASIS FOR RESTORATION OF FORFEITED ANNUAL LEAVE.

IN THE MATTER OF EDWIN W. GUILFORD-- FORFEITED ANNUAL LEAVE, JUNE 2, 1978:

THIS ACTION IS IN RESPONSE TO A REQUEST DATED DECEMBER 30, 1977 (REFERENCE 9403:RJG), WITH ENCLOSURES, FROM MR. ROBERT J. GRIFFIN, CIVILIAN PERSONNEL DIVISION, NAVAL AIR SYSTEMS COMMAND, REQUESTING A DECISION CONCERNING THE RIGHT OF MR. EDWIN W. GUILFORD, A CIVILIAN EMPLOYEE OF THAT ACTIVITY, TO HAVE 120 HOURS OF ANNUAL LEAVE WHICH WAS FORFEITED AT THE CLOSE OF THE 1976 YEAR RESTORED TO HIS LEAVE ACCOUNT.

THE FILE INDICATES THAT IN NOVEMBER 1976, THE EMPLOYEE, WHO HAD BEEN CONTEMPLATING RETIREMENT, REQUESTED AN UNOFFICIAL COMPUTATION OF HIS ESTIMATED ANNUITY FROM HIS SERVICING PERSONNEL OFFICE. AT THAT TIME, THE EMPLOYEE APPARENTLY HAD 184 HOURS OF ANNUAL LEAVE TO USE WITHOUT LOSING IT AND IT IS INDICATED THAT HE WAS IN A POSITION TO USE IT SHOULD COMPUTATION OF HIS ANNUITY PROVE TO BE UNSATISFACTORY. UPON BEING GIVEN THAT ANNUITY ESTIMATE, APPARENTLY THERE WERE SOME DOUBTS IN HIS MIND AS TO ITS CORRECTNESS, FOR IN NOVEMBER 17, 1976, HE HAD THE COMPUTATION AGAIN CHECKED FOR ACCURACY. ON RECHECK, HE WAS ASSURED OF THE MINIMUM ACCURACY OF HIS PROJECTED ANNUITY.

ON DECEMBER 17, 1976, THE EMPLOYEE, AFTER MAKING ANNUITY COMPARISONS WITH A SIMILARLY SITUATED CO-WORKER, AGAIN HAD DOUBT AS TO THE ACCURACY OF HIS ANNUITY ESTIMATE. ON RECOMPUTATION THAT DATE BY A DIFFERENT EMPLOYEE OF THE SAME PERSONNEL OFFICE HE WAS ADVISED THAT HIS PROJECTED ANNUITY AS ORIGINALLY COMPUTED WAS ERRONEOUSLY OVERSTATED BY APPROXIMATELY $84 A MONTH. THE FILE INDICATES THAT THE ERROR WAS THE RESULT OF INCORRECT DIVISION.

AT THIS POINT, THE EMPLOYEE DECIDED TO POSTPONE RETIREMENT AND IMMEDIATELY WENT ON ANNUAL LEAVE FOR THE REMAINDER OF THE YEAR IN ORDER TO USE AS MUCH OF HIS USE-OR-LOSE LEAVE. HOWEVER, HE WAS ONLY ABLE TO SCHEDULE AND USE 64 HOURS DURING THE REMAINDER OF THE LEAVE YEAR AND LOST 120 HOURS.

IT IS THE EMPLOYEE'S CONTENTION THAT BUT FOR THE ADMINISTRATIVE ERROR IN THE COMPUTATION OF HIS PROJECTED ANNUITY, HE WOULD NOT HAVE LOST THIS LEAVE. FURTHER, THAT SINCE THE ERROR WAS NOT ADMINISTRATIVELY DISCOVERED AND CORRECTED UNTIL A DATE AFTER THE FIRST DATE SUCH LEAVE COULD BE TAKEN TO AVOID FORFEITURE, HE SHOULD HAVE SUCH FORFEITED LEAVE RESTORED TO HIS ACCOUNT.

THE CONTROLLING LAW, 5 U.S.C. 6304(D)(1), WHICH WAS ADDED TO TITLE 5, U.S.C. BY SUBSECTION 3(2) OF PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, 87 STAT. 705, PROVIDES IN PART:

(D)(1) ANNUAL LEAVE WHICH IS LOST BY OPERATION OF THIS SECTION BECAUSE OF

(A) ADMINISTRATIVE ERROR WHEN THE ERROR CAUSES A LOSS OF ANNUAL LEAVE OTHERWISE ACCRUABLE AFTER JUNE 30, 1960;

SHALL BE RESTORED TO THE EMPLOYEE.

THE CIVIL SERVICE COMMISSION HAS, PURSUANT TO 5 U.S.C. 6311 (1970), ISSUED REGULATIONS IMPLEMENTING THE PROVISIONS OF 5 U.S.C. 6304(D)(1), SUPRA. THESE REGULATIONS ARE CONTAINED IN THE ATTACHMENT TO FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 630-22, DATED JANUARY 11, 1974, AND ARE CODIFIED IN SUBPART C, PART 630 OF TITLE 5, CODE OF FEDERAL REGULATIONS.

THAT WHICH IS CONSIDERED AS CONSTITUTING ERROR UNDER THE BEFORE CITED PROVISIONS IS A MATTER FOR WHICH PRIMARY JURISDICTION HAS BEEN DETERMINED TO LIE WITH THE AGENCY INVOLVED. SEE 55 COMP.GEN. 784 (1976). IN THAT DECISION AT PAGE 785 WE POINTED OUT THAT DECISIONS OF OUR OFFICE HAVE CONSTRUED AS ADMINISTRATIVE ERROR SUCH MATTERS AS THE FAILURE OF AN AGENCY TO CARRY OUT WRITTEN REGULATIONS WHICH HAVE MANDATORY EFFECT FOR THE PURPOSE OF CORRECTING ERRONEOUS PAY RATES. ALSO, WHEN COUNSELING OF AN EMPLOYEE IS REQUIRED BY ADMINISTRATIVE REGULATION, SUCH AS IN CASES INVOLVING RETIREMENT, THE FAILURE TO GIVE CORRECT ADVICE ON SUCH MATTERS AS THE EMPLOYEE'S SERVICE CREDIT CONSTITUTES AN ADMINISTRATIVE ERROR. SEE B-174199, DECEMBER 14, 1971.

APPENDIX A OF NAVY DEPARTMENT CIVILIAN MANPOWER MANAGEMENT INSTRUCTIONS (CMMI) 831.S1, IMPLEMENTING THE PROVISIONS OF THE FPM, PROVIDES IN SECTION A-1:

A. AS A MINIMUM, EVERY EMPLOYEE WHO IS APPROACHING RETIREMENT SHOULD HAVE ACCESS, ON AN INDIVIDUAL BASIS, TO FULL INFORMATION CONCERNING RETIREMENT BENEFITS AND TO CONSULTATION ON INDIVIDUAL QUESTIONS CONCERNING RETIREMENT.

E. ANNUITIES SHOULD BE COMPUTED WITH MAXIMUM ACCURACY POSSIBLE, BUT IT SHOULD BE MADE CLEAR TO THE EMPLOYEE THAT THE CIVIL SERVICE COMMISSION IS THE AUTHORITY ON THIS. IT IS BETTER TO UNDER-ESTIMATE THAN TO OVER- ESTIMATE.

LEAVE MATTERS, WHILE INCIDENT TO RETIREMENT, ARE NOT AN INHERENT PART OF AN INQUIRY REGARDING RETIREMENT, SERVICE CREDITS FOR COMPUTATION PURPOSES, OR THE AMOUNT OF AN ANNUITY, NOR ARE THEY BY REGULATION MADE SO.

ACCORDING TO THE INFORMATION IN THE FILE, THE COUNSELING WHICH THE EMPLOYEE REQUESTED AND RECEIVED SPECIFICALLY RELATED TO THE COMPUTATION OF HIS RETIRED ANNUITY IF HE SHOULD RETIRE AT THE END OF THE YEAR. BY THE EMPLOYEE'S OWN STATEMENTS IN THE FILE, HE NEITHER REQUESTED NOR RECEIVED ANY COUNSELING REGARDING POSSIBLE FORFEITURE OF LEAVE. THE FILE INDICATES HE ALREADY KNEW THAT HE WAS IN A TAKE IT OR LOSE IT LEAVE STATUS IF HE REMAINED IN HIS POSITION AND DID NOT RETIRE AT THE END OF THE YEAR.

IT IS CLEARLY EVIDENT THAT THE CALCULATION ERROR DID NOT IN ANY WAY INVOLVE CONSIDERATION OF LEAVE. IT RELATED ONLY TO A COMPUTATIONAL ERROR IN HIS PROJECTED, BUT UNOFFICIAL RETIREMENT ANNUITY. ACCORDING TO THE FILE, SERVICE CREDITS AND RATES OF PAY WERE PROPERLY USED IN THAT COMPUTATION. WHILE THERE WAS AN ERROR IN THAT COMPUTATION, SUCH ERROR WAS ONE OF DIVISION AND RELATED ONLY TO THE ANNUITY BEING UNOFFICIALLY ESTIMATED. IN THIS CONNECTION, IT IS NOTED THAT SUCH ERROR WAS CORRECTED IN A TIMELY MANNER, THUS, AVOIDING THE EMPLOYEE ELECTING TO RETIRE AND BEING UNPLEASANTLY SURPRISED BY RECEIVING AN ANNUITY CONSIDERABLY LESS THAN ANTICIPATED.

ACCORDINGLY, SINCE THERE WAS NO ERROR MADE IN THE EMPLOYEE'S LEAVE ACCOUNT, THERE IS NO LEGAL BASIS UPON WHICH HIS FORFEITED ANNUAL LEAVE MAY BE RESTORED.