B-156099, JUN. 23, 1965

B-156099, JUN. 23, 1965

TO MISS HELEN U. BUTLER:

YOUR LETTERS OF MAY 5 AND 25, 1965, ASK, IN EFFECT, WHY, UNDER THE FACTS AND CIRCUMSTANCES INVOLVED IN YOUR CASE, YOU WERE NOT ENTITLED TO LUMP-SUM PAYMENT UPON YOUR SEPARATION FROM THE SERVICE JANUARY 31, 1965, FOR THE 66 1/2 DAYS OF ANNUAL LEAVE YOU SAY YOU HAD TO YOUR CREDIT IN AUGUST 1954.

OUR DECISION B-156099, MARCH 29, 1965, TO THE SECRETARY OF AGRICULTURE IN YOUR CASE, COPY OF WHICH HAS BEEN FURNISHED YOU, POINTED OUT THAT 36 COMP. GEN. 779 WAS CONTROLLING AND THAT YOU WERE ENTITLED TO A RECREDIT OF THE ANNUAL LEAVE YOU WERE FORCED TO TAKE, I.E., 523 HOURS FOR THE PERIOD AUGUST 23 TO NOVEMBER 26, 1954, SUBJECT TO THE MAXIMUM ANNUAL LEAVE LIMITATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2061, ET SEQ.

THE FOREGOING RESTRICTIONS IN TITLE 5, U.S.C. APPLICABLE HERE, READ, IN PERTINENT PART, AS FOLLOWS:

"2062 (C) ACCUMULATION OF UNUSED LEAVE; MAXIMUM.

"THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE, SHALL ACCUMULATE FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT TO EXCEED THIRTY DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN ANY YEAR.'

"2066 (A) ANNUAL LEAVE ACCUMULATED UNDER PRIOR LAWS.

"IN ANY CASE IN WHICH---

"/2) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE WHO IS SUBJECT TO THE PROVISIONS OF SECTION 2062 (D) OF THIS TITLE, AND WHO BECOMES SUBJECT TO THE PROVISIONS OF SECTION 2062 (C) OF THIS TITLE, IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER SECTION 2062 (C) OF THIS TITLE, SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED, BUT THE USE DURING ANY LEAVE YEAR OF AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT WHICH SHALL HAVE ACCRUED DURING SUCH YEAR SHALL AUTOMATICALLY REDUCE THE MAXIMUM ALLOWABLE ACCUMULATION AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, IN THE FOLLOWING LEAVE YEAR, UNTIL THE ACCUMULATION OF SUCH OFFICER OR EMPLOYEE NO LONGER EXCEEDS THE AMOUNT PRESCRIBED IN THE APPLICABLE PROVISIONS OF SECTION 2062 OF THIS TITLE.'

FURTHER, OUR DECISION POINTED OUT THAT SINCE THERE EXISTED NO OFFICIAL RECORD OF THE ANNUAL LEAVE TO YOUR CREDIT AT THE BEGINNING OF THE 1954 LEAVE YEAR, SUCH CREDIT WAS ASCERTAINABLE FROM THE FACT THAT YOU WERE GRANTED 523 HOURS DURING THE PERIOD AUGUST 23 TO NOVEMBER 26, 1954. FROM THAT AMOUNT OF ANNUAL LEAVE THE ANNUAL LEAVE ACCRUING FROM JANUARY 3, 1954, THE BEGINNING OF THE FIRST PAY PERIOD IN THE 1954 LEAVE YEAR THROUGH THE PAY PERIOD ENDING NOVEMBER 20, 1954, 23 PAY PERIODS TIMES 8 HOURS, AN ACCRUAL OF 184 HOURS, HAD TO BE DEDUCTED LEAVING 339 HOURS AS YOUR ANNUAL LEAVE CEILING AT THE BEGINNING OF THE 1954 LEAVE YEAR. THE FOREGOING COMPUTATION IS SHOWN IN DETAIL IN THE COPY OF THE ADMINISTRATIVE WORKSHEET WHICH WE UNDERSTAND HAS BEEN FURNISHED YOU.

UNDER OUR DECISION IN YOUR CASE THE ANNUAL LEAVE ACCOUNT HAD TO BE RECONSTRUCTED. SUCH RECONSTRUCTION IS SHOWN IN DETAIL IN THE COPY OF THE ADMINISTRATIVE WORKSHEET REFERRED TO ABOVE AND THEREFORE NEED NOT BE REPEATED HERE. WE HAVE REVIEWED EACH INDIVIDUAL COMPUTATION SHOWN THEREON AND HAVE FOUND EACH TO BE CORRECT. THE ABOVE-CITED MAXIMUM ANNUAL LEAVE ACCUMULATION RESTRICTIONS, AS POINTED OUT IN OUR DECISION OF MARCH 29, 1965, HAD TO BE APPLIED FOR EACH LEAVE YEAR IN THE RECONSTRUCTION OF YOUR ACCOUNT FOR THE PURPOSE OF RECREDITING THE ANNUAL LEAVE. ON THE BASIS THEREOF ANY ANNUAL LEAVE IN EXCESS OF YOUR ANNUAL A LEAVE CEILING AT THE END OF EACH LEAVE YEAR AS SHOWN IN THE ABOVE REFERRED-TO WORKSHEET HAD TO BE CONSIDERED AS FORFEITED BY OPERATION OF THE ABOVE-QUOTED PROVISIONS. THERE ARE NO EXCEPTIONS PROVIDED BY THOSE PROVISIONS OR BY ANY OTHER STATUTE WHICH WOULD OPERATE TO PERMIT A WAIVER OF THE LIMITATIONS CONTAINED THEREIN. NOR IS THERE ANY AUTHORITY FOR CREDITING AN EMPLOYEE'S LEAVE ACCOUNT WITH THE FORFEITED ANNUAL LEAVE IN ORDER TO PERMIT THE USE THEREOF SINCE SUCH ACTION WOULD INCREASE THE ACCUMULATED ANNUAL LEAVE ABOVE THE PRESCRIBED STATUTORY CEILING. WE NOTE THAT YOU RETIRED FROM THE FEDERAL SERVICE ON JANUARY 31, 1965.

THE WORKSHEET OF THE RECONSTRUCTION OF YOUR LEAVE ACCOUNT FOR THE LEAVE YEAR JANUARY 10, 1960, TO JANUARY 7, 1961, SHOWS THAT YOU USED MORE LEAVE THAN YOU EARNED, THUS REDUCING YOUR TOTAL ANNUAL LEAVE AT THE END OF THAT YEAR TO 213 HOURS. UNDER THE PROVISIONS OF 5 U.S.C. 2066 (A), QUOTED ABOVE, YOUR LEAVE CEILING FROM THAT TIME ON WAS LIMITED TO 240 HOURS, 30 DAYS, UNDER 5 U.S.C. 2062 (C), ALSO QUOTED ABOVE. AS A RESULT, UPON YOUR SEPARATION FROM THE SERVICE ON JANUARY 31, 1965, PAYMENT TO YOU FOR YOUR ANNUAL LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 61B, WAS LIMITED TO 30 DAYS OR 240 HOURS. THE PERTINENT LANGUAGE OF THE FOREGOING PROVISIONS READS AS FOLLOWS:

"WHENEVER ANY CIVILIAN * * * EMPLOYEE OF THE FEDERAL GOVERNMENT * * * IS SEPARATED FROM THE SERVICE *** HE SHALL BE PAID COMPENSATION IN A LUMP SUM FOR ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL * * * LEAVE TO WHICH HE IS ENTITLED UNDER EXISTING LAW. SUCH LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH * * * EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL * * * LEAVE, EXCEPT THAT AFTER AUGUST 31, 1953, NO SUCH LUMP-SUM PAYMENT SHALL EXCEED COMPENSATION FOR ANY PERIOD OF SUCH LEAVE IN EXCESS OF THIRTY DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS THE GREATER. * * *"

IN VIEW THEREOF, AND SINCE BASED UPON THE RECONSTRUCTION OF YOUR ANNUAL LEAVE ACCOUNT, YOU WERE FOUND TO HAVE 256 HOURS OF ANNUAL LEAVE TO YOUR CREDIT ON THE DATE YOUR WERE SEPARATED, JANUARY 31, 1965, YOUR LUMP-SUM PAYMENT IS LIMITED TO 240 HOURS AND THE 16 HOURS IN EXCESS THEREOF NOT HAVING BEEN TAKEN IN KIND, THAT IS, USED BEFORE SEPARATION, IS ALSO FORFEITED. INASMUCH AS YOU HAD PREVIOUSLY--- BEFORE OUR DECISION IN THIS MATTER--- RECEIVED PAYMENT FOR 192 HOURS OF ANNUAL LEAVE YOU ARE ONLY ENTITLED TO AN ADDITIONAL LUMP-SUM PAYMENT FOR THE DIFFERENCE OF 48 HOURS OF ANNUAL LEAVE WHICH WE UNDERSTAND WILL BE PAID BY THE ADMINISTRATIVE OFFICE. NO BASIS EXISTS, AS POINTED OUT ABOVE, FOR A LUMP-SUM PAYMENT FOR 66 1/2 DAYS LEAVE AS YOU ALLEGE.