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B-126600, MAR. 9, 1956

B-126600 Mar 09, 1956
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BAILEY: YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF 155 HOURS OF ANNUAL LEAVE WHICH YOU WERE REQUIRED TO FORFEIT IN CONNECTION WITH YOUR EMPLOYMENT IN 1954. THE RECORD SHOWS THAT THE LEAVE WAS FORFEITED PURSUANT TO THE PROVISIONS OF SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951. INASMUCH AS IT WAS IN EXCESS OF THE MAXIMUM ACCUMULATION (480 HOURS) WHICH YOU WERE PERMITTED UNDER THE ACT TO CARRY OVER TO THE LEAVE YEAR 1955. IT APPEARS TO BE YOUR CONTENTION THAT (1) THE ADMINISTRATIVE ACTION IN DENYING YOU PERMISSION TO USE THE ANNUAL LEAVE DURING THE YEAR 1954 WAS IN VIOLATION OF "OTHER PUBLIC LAWS THAT REQUIRE AGENCIES TO INSURE THAT THE ANNUAL LEAVE IS NOT FORFEITED.

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B-126600, MAR. 9, 1956

TO MR. LEROY R. BAILEY:

YOUR RECENT LETTER REQUESTS REVIEW OF OUR SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF 155 HOURS OF ANNUAL LEAVE WHICH YOU WERE REQUIRED TO FORFEIT IN CONNECTION WITH YOUR EMPLOYMENT IN 1954, AS A CIVILIAN EMPLOYEE AT FORT SAM HOUSTON, TEXAS, AND KELLY FIELD AIR FORCE BASE, TEXAS. THE RECORD SHOWS THAT THE LEAVE WAS FORFEITED PURSUANT TO THE PROVISIONS OF SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, PUBLIC LAW 233, 65 STAT. 680, INASMUCH AS IT WAS IN EXCESS OF THE MAXIMUM ACCUMULATION (480 HOURS) WHICH YOU WERE PERMITTED UNDER THE ACT TO CARRY OVER TO THE LEAVE YEAR 1955.

IT APPEARS TO BE YOUR CONTENTION THAT (1) THE ADMINISTRATIVE ACTION IN DENYING YOU PERMISSION TO USE THE ANNUAL LEAVE DURING THE YEAR 1954 WAS IN VIOLATION OF "OTHER PUBLIC LAWS THAT REQUIRE AGENCIES TO INSURE THAT THE ANNUAL LEAVE IS NOT FORFEITED," AND (2) THAT YOU WERE, IN EFFECT, REQUIRED TO WORK 155 HOURS' OVERTIME, IN CONSEQUENCE OF WHICH YOU BELIEVE THAT OUR OFFICE COULD AUTHORIZE PAYMENT TO YOU UNDER THE PROVISIONS OF "ANOTHER PUBLIC LAW.' YOU REQUEST TO BE AUTHORIZED PAYMENT FOR THE 155 HOURS OF OVERTIME PURSUANT TO THE APPLICABLE STATUTES RELATING TO OVERTIME COMPENSATION.

REGARDING YOUR STATEMENT THAT THE FAILURE TO GRANT ACCRUED ANNUAL LEAVE WAS IN CONTRAVENTION OF LAW, YOU ARE ADVISED THAT OUR OFFICE IS UNAWARE OF THE EXISTENCE OF ANY SUCH LAW. IN THAT REGARD, SECTION 203/H) OF THE ABOVE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, PROVIDES:

"THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, INCLUDING SUCH LEAVE AS WILL ACCRUE TO ANY OFFICER OR EMPLOYEE DURING THE YEAR, MAY BE GRANTED AT ANY TIME DURING SUCH YEAR AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE.'

UNDER THE ABOVE-QUOTED PROVISION OF LAW, IT IS CLEAR THAT DISCRETION IS VESTED IN THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO PRESCRIBE WHEN ANNUAL LEAVE IS TO BE GRANTED. FURTHER, IT IS OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT SUCH LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE. ANSWER TO QUESTION 1, 33 COMP. GEN. 85.

AS TO YOUR REQUEST TO BE AUTHORIZED PAYMENT FOR THE FORFEITED LEAVE AS OVERTIME UNDER APPLICABLE STATUTES, YOU ARE ADVISED THAT SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, PROVIDES AS FOLLOWS:

"OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES AS FOLLOWS:"

ALSO, SECTION 25.221, PAGE Z1-323, OF THE FEDERAL PERSONNEL MANUAL ISSUED PURSUANT THERETO PROVIDES---

"AUTHORIZATION OF OVERTIME COMPENSATION. (A) ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES TO WHOM THIS SUBPART APPLIES SHALL BE CONSIDERED TO BE OVERTIME WORK AND, EXCEPT AS OTHERWISE PROVIDED IN THIS SUBPART, SHALL BE COMPENSATED AS PROVIDED IN SECTION 25.223.'

SINCE YOUR CLAIM DOES NOT REPRESENT COMPENSATION FOR OVERTIME WORK OFFICIALLY ORDERED OR APPROVED WITHIN THE CONTEMPLATION OF THE ABOVE LAW AND REGULATION, THERE APPEARS TO BE NO LEGAL BASIS FOR THE PAYMENT OF THE CLAIM AS OVERTIME. HENCE THE SETTLEMENT IS SUSTAINED.

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