B-109375, JULY 14, 1952, 32 COMP. GEN. 22

B-109375: Jul 14, 1952

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LUMP-SUM LEAVE PAYMENTS - REFUNDS - MAXIMUM LEAVE ACCUMULATION LIMITATIONS AN EMPLOYEE ERRONEOUSLY SEPARATED FROM A POSITION WHO RECEIVED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE AND WHO LATER WAS RESTORED TO SAID POSITION RETROACTIVE TO THE DATE OF SEPARATION AND ALLOWED COMPENSATION UNDER THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10. IS REQUIRED TO REFUND THE LUMP-SUM LEAVE PAYMENT. 1952: REFERENCE IS MADE TO LETTER OF APRIL 28. HAMBLEN WAS SEPARATED FROM HIS POSITION UNDER THE VETERANS ADMINISTRATION REGIONAL OFFICE. BY A REDUCTION IN FORCE ACTION AND WAS PAID IN A LUMP SUM FOR THE 629 HOURS OF ANNUAL LEAVE TO HIS CREDIT AS OF THAT DATE. IT APPEARS THAT THE SEPARATION WAS APPEALED BY THE EMPLOYEE UNDER THE VETERANS PREFERENCE ACT OF 1944.

B-109375, JULY 14, 1952, 32 COMP. GEN. 22

LUMP-SUM LEAVE PAYMENTS - REFUNDS - MAXIMUM LEAVE ACCUMULATION LIMITATIONS AN EMPLOYEE ERRONEOUSLY SEPARATED FROM A POSITION WHO RECEIVED A LUMP-SUM PAYMENT FOR ANNUAL LEAVE AND WHO LATER WAS RESTORED TO SAID POSITION RETROACTIVE TO THE DATE OF SEPARATION AND ALLOWED COMPENSATION UNDER THE BACK PAY PROVISIONS OF THE ACT OF JUNE 10, 1948, IS REQUIRED TO REFUND THE LUMP-SUM LEAVE PAYMENT, EVEN THOUGH THE ANNUAL LEAVE ACCUMULATION RESTRICTION PROVISIONS OF THE ANNUAL LEAVE ACT OF 1936, AS AMENDED, PRECLUDES RECREDITING THE EMPLOYEE'S ACCOUNT WITH ALL THE ANNUAL LEAVE COVERED BY THE LUMP-SUM PAYMENT.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS AFFAIRS, JULY 14, 1952:

REFERENCE IS MADE TO LETTER OF APRIL 28, 1952, FROM THE DEPUTY ADMINISTRATOR, REQUESTING A DECISION AS TO THE AMOUNT OF REFUND OF LUMP SUM LEAVE PAYMENT THAT SHOULD BE COLLECTED FROM MR. PORTER V. HAMBLEN, AN EMPLOYEE OF THE VETERANS ADMINISTRATION, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER SET FORTH.

IT APPEARS FROM THE INFORMATION PRESENTED IN THE ABOVE LETTER THAT EFFECTIVE OCTOBER 10, 1951, MR. HAMBLEN WAS SEPARATED FROM HIS POSITION UNDER THE VETERANS ADMINISTRATION REGIONAL OFFICE, NASHVILLE, TENNESSEE, BY A REDUCTION IN FORCE ACTION AND WAS PAID IN A LUMP SUM FOR THE 629 HOURS OF ANNUAL LEAVE TO HIS CREDIT AS OF THAT DATE. FURTHER, IT APPEARS THAT THE SEPARATION WAS APPEALED BY THE EMPLOYEE UNDER THE VETERANS PREFERENCE ACT OF 1944, 58 STAT. 387, AND THAT ON MARCH 12, 1952, THE CIVIL SERVICE COMMISSION SUSTAINED THE POSITION TAKEN BY MR. HAMBLEN AND DIRECTED THAT HE BE RESTORED TO HIS FORMER POSITION RETROACTIVE TO THE DATE OF SEPARATION. AS A RESULT THEREOF, A JOURNAL ACTION WAS EXECUTED CANCELING THE REDUCTION IN FORCE ACTION RETROACTIVE TO OCTOBER 10, 1951, AND THE EMPLOYEE ACTUALLY RESUMED DUTY ON APRIL 1, 1952. FURTHER, IT IS STATED IN THE LETTER OF THE DEPUTY ADMINISTRATOR THAT UPON THE RESTORATION OF MR. HAMBLEN THE ACTUAL AMOUNT OF ANNUAL LEAVE THAT COULD BE CREDITED TO HIS ACCOUNT WAS 480 HOURS. WHILE IT IS NOT EXPRESSLY STATED IN THE LETTER OF THE DEPUTY ADMINISTRATOR, IT IS ASSUMED THAT UPON RESTORATION THE EMPLOYEE WAS PAID BACK COMPENSATION FOR THE PERIOD OF REMOVAL IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, AMENDING THE ACT OF AUGUST 24, 1912, 5 U.S.C. 652. THE SOLE QUESTION PRESENTED APPEARS TO BE WHETHER THERE SHOULD BE COLLECTED FROM THE EMPLOYEE THE ENTIRE AMOUNT OF THE LUMP-SUM LEAVE PAYMENT (PAYMENT FOR 629 HOURS' ANNUAL LEAVE) OR ONLY FOR THAT PORTION (480 HOURS) OF THE ANNUAL LEAVE WHICH LAWFULLY COULD BE RECREDITED TO HIS ACCOUNT UPON THE DATE OF RESTORATION, BECAUSE OF THE LIMITATION ON THE ACCUMULATION OF ANNUAL LEAVE IN EXCESS OF 60 DAYS (480 HOURS) IN ANY YEAR UNDER THE ANNUAL LEAVE ACT OF 1936, AS AMENDED, 65 STAT. 679.

IT HAS BEEN HELD THAT LUMP-SUM LEAVE PAYMENTS PROPERLY ARE FOR COLLECTION INCIDENT TO THE RESTORATION TO DUTY OF EMPLOYEES WHO ARE ALLOWED RETROACTIVE COMPENSATION IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF JUNE 10, 1948, SUPRA. SEE 28 COMP. GEN. 333. THE PRIMARY OBJECTIVE OF THAT ACT WOULD APPEAR TO BE THE RESTORATION OF EMPLOYEES WHO ARE IMPROPERLY SEPARATED TO RELATIVELY THE SAME FINANCIAL STATUS THEY WOULD HAVE ENJOYED WERE IT NOT FOR THE ERRONEOUS SEPARATION.

UPON THE ASSUMPTION THAT MR. HAMBLEN IS BEING PAID RETROACTIVE COMPENSATION COVERING THE ENTIRE PERIOD OF THE ERRONEOUS SEPARATION, THE RETENTION BY HIM OF ANY PORTION OF THE LUMP-SUM LEAVE PAYMENT IN ADDITION TO SUCH RETROACTIVE COMPENSATION WOULD RESULT IN HIS BEING PLACED IN A MORE ADVANTAGEOUS FINANCIAL POSITION THAN IF THE ERRONEOUS SEPARATION HAD NOT OCCURRED--- A RESULT OBVIOUSLY NEITHER INTENDED NOR CONTEMPLATED BY THE ACT OF JUNE 10, 1948. ON THE OTHER HAND, IF REFUND BE REQUIRED OF THE LUMP-SUM LEAVE PAYMENT OR IN LIEU THEREOF THE RETROACTIVE COMPENSATION BE REDUCED BY THE AMOUNT OF SUCH LUMP-SUM LEAVE PAYMENT, MR. HAMBLEN WOULD BE IN NO WORSE POSITION FINANCIALLY THAN IF THE ERRONEOUS SEPARATION HAD NOT OCCURRED. MOREOVER, IT CANNOT BE DETERMINED AS A FACT WHETHER MR. HAMBLEN WOULD HAVE APPLIED FOR THE EXCESS ANNUAL LEAVE TO HIS CREDIT OR WHETHER SUCH LEAVE, IF APPLIED FOR, WOULD HAVE BEEN GRANTED BY THE ADMINISTRATIVE OFFICE HAD NOT THE ERRONEOUS SEPARATION BEEN EFFECTED. IT SHOULD BE REMEMBERED, TOO, THAT WHILE MR. HAMBLEN TECHNICALLY MAY NOT HAVE BEEN IN AN ANNUAL LEAVE STATUS DURING THE PERIOD OF SEPARATION, HE WAS ABSENT FROM THE OFFICE AND WAS NOT REQUIRED TO REPORT FOR DUTY DURING SUCH PERIOD. VIEW THEREOF AND HAVING REGARD FOR THE FACT THAT THE LIMITATION ON THE ACCUMULATION OF ANNUAL LEAVE IS IMPOSED BY LAW AND IS NOT THE RESULT OF THE ERRONEOUS SEPARATION, IT MUST BE CONCLUDED THAT THE FULL AMOUNT OF THE LUMP-SUM LEAVE PAYMENT SHOULD BE DEDUCTED FROM THE RETROACTIVE COMPENSATION DUE THE EMPLOYEE OR OTHERWISE COLLECTED FROM HIM.