B-144328, NOV. 23, 1960

B-144328: Nov 23, 1960

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FATZINGER IS AN AUTHORIZED CERTIFYING OFFICER. WE ARE ADDRESSING OUR DECISION TO YOU. THE LETTER SHOWS THAT THE EMPLOYEE'S "LEAVE CEILING" IS 360 HOURS. HE WILL HAVE 440 HOURS ANNUAL LEAVE TO HIS CREDIT OR 80 HOURS OF CURRENT ACCRUED LEAVE. WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE. - "/1) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE IMMEDIATELY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR YEAR 1952 * * * UNDER THE PROVISIONS OF LAW THEN APPLICABLE TO SUCH OFFICER OR EMPLOYEE IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THE APPLICABLE PROVISIONS OF SECTION 2062 OF THIS TITLE * * * SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED * * *.'.

B-144328, NOV. 23, 1960

TO DR. ALAN T. WATERMAN, DIRECTOR, NATIONAL SCIENCE FOUNDATION:

ON OCTOBER 25, 1960, MR. H. R. FATZINGER, CHIEF, FISCAL EXAMINING SECTION, FINANCE OFFICE, REQUESTED OUR DECISION WHETHER AN EMPLOYEE ON DETAIL IN THE ANTARCTICA AT THE END OF THE CURRENT LEAVE YEAR--- JANUARY 7, 1961--- COULD BE PERMITTED TO USE CURRENT ACCRUED ANNUAL LEAVE UPON HIS RETURN TO HIS DUTY STATION OR WHETHER SUCH LEAVE WOULD BE FORFEITED.

IN THE ABSENCE OF INFORMATION TO INDICATE THAT MR. FATZINGER IS AN AUTHORIZED CERTIFYING OFFICER, HE WOULD NOT BE ENTITLED TO A DECISION UPON THE MATTER PRESENTED. SEE 31 U.S.C. 74, 82D AND 26 COMP. GEN. 993. HOWEVER, IN ORDER TO AVOID DELAYING THIS MATTER, WE ARE ADDRESSING OUR DECISION TO YOU.

THE LETTER SHOWS THAT THE EMPLOYEE'S "LEAVE CEILING" IS 360 HOURS. JANUARY 7, 1961, THE END OF THE CURRENT LEAVE YEAR, HE WILL HAVE 440 HOURS ANNUAL LEAVE TO HIS CREDIT OR 80 HOURS OF CURRENT ACCRUED LEAVE. THE LETTER POINTS OUT THAT BECAUSE OF HIS TEMPORARY DUTY IN ANTARCTICA NO OPPORTUNITY EXISTS FOR USING THE 80 HOURS.

5 U.S.C. 2062 (C) READS AS FOLLOWS:

"THE ANNUAL LEAVE PROVIDED 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, * * * OCCURRING IN ANY YEAR.'

5. U.S.C. 2066 READS, IN PERTINENT PART, AS FOLLOWS:

"/A) IN ANY CASE IN WHICH---

"/1) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE IMMEDIATELY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR YEAR 1952 * * * UNDER THE PROVISIONS OF LAW THEN APPLICABLE TO SUCH OFFICER OR EMPLOYEE IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THE APPLICABLE PROVISIONS OF SECTION 2062 OF THIS TITLE * * * SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED * * *.'

UNDER THE FOREGOING STATUTORY PROVISIONS IT IS CLEAR THAT THE "LEAVE CEILING" OF THE EMPLOYEE HERE INVOLVED IS 360 HOURS. OFFICERS OR EMPLOYEES WHO HAVE LESS THAN 30 DAYS ACCUMULATED ANNUAL LEAVE ARE ENTITLED THEREUNDER TO A MAXIMUM LIMITATION OF 30 DAYS OR 240 HOURS AT THE END OF A PARTICULAR LEAVE YEAR OR IF THEY HAVE ESTABLISHED AMOUNTS IN EXCESS THEREOF AS THEIR "LEAVE CEILINGS" THEY ARE ENTITLED THEREUNDER TO RETAIN SUCH LIMITATIONS UNTIL THEY ARE REDUCED BY THE USE OF THEIR ANNUAL LEAVE. WE HAVE CONSISTENTLY HELD THAT REGARDLESS OF THE REASON FOR FAILURE TO USE ANNUAL LEAVE IN EXCESS OF "LEAVE CEILINGS" THE FORFEITURE OF SUCH EXCESS LEAVE AT THE END OF THE LEAVE YEAR IS AUTOMATIC, OCCURRING BY OPERATION OF LAW, AND WE KNOW OF NO WAY OF EXTENDING THE PERIOD IN ORDER TO PERMIT THE LEAVE TO BE USED. B 121296, OCTOBER 11, 1954, 36 COMP. GEN. 596; B- 136254, JULY 7, 1958; B 138640, FEBRUARY 26, 1959; B-142239, MARCH 25, 1960.

IN VIEW OF THE STATUTE QUOTED ABOVE WE ARE REQUIRED TO CONCLUDE THAT IF THE 80 HOURS CURRENT ACCRUED ANNUAL LEAVE IS NOT USED BY JANUARY 7, 1961, FORFEITURE THEREOF WILL BE AUTOMATIC.

CONCERNING SUCH MATTERS WE MAY ADVISE YOU THAT IN PAST SESSIONS OF CONGRESS BILLS HAVE BEEN INTRODUCED IN AN EFFORT TO OVERCOME CERTAIN COMPARABLE SITUATIONS BUT UP TO NOW NONE OF THEM HAS ..END :