B-152212, SEP. 17, 1963

B-152212: Sep 17, 1963

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YOUR EARLIER LETTER WAS THE SUBJECT OF GENERAL ACCOUNTING OFFICE LETTER OF JUNE 12. YOU WERE PLACED ON ANNUAL LEAVE FROM AUGUST 5. WHICH WAS REQUESTED BY YOU. WAS ADMINISTRATIVELY APPROVED. ALTHOUGH IT WAS KNOWN IN ADVANCE THAT YOU WOULD NOT RETURN TO DUTY UPON THE EXPIRATION OF SUCH LEAVE. YOU WERE GRANTED AND CHARGED WITH 300 HOURS OF ANNUAL LEAVE AND 12 HOURS OF SICK LEAVE. YOU WERE GRANTED OR PAID FOR 357 HOURS OF LEAVE. THE ADMINISTRATIVE ERROR OF CREDITING AND PAYING YOU FOR ANNUAL LEAVE ACCRUING DURING YOUR PERIOD OF TERMINAL LEAVE WAS DISCOVERED DURING A PAYROLL AUDIT BY OUR OFFICE. YOUR PROTEST TO SUCH ACTION PRIMARILY IS BASED UPON A VERBAL UNDERSTANDING BETWEEN YOU AND THE PERSONNEL SPECIALIST OF YOUR DEPARTMENT THAT SUCH GRANTING OF TERMINAL LEAVE PRIOR TO YOUR SEPARATION AND THE CREDITING OF LEAVE EARNED WHILE ON TERMINAL LEAVE WOULD BE PROPER.

B-152212, SEP. 17, 1963

TO MR. ARTHUR G. CUMMINGS:

YOUR LETTER OF JUNE 17, 1963, SUPPLEMENTING YOUR LETTER OF APRIL 25, 1963, REQUESTS THAT THE VIEWS EXPRESSED THEREIN BE CONSIDERED IN CONNECTION WITH A REVIEW OF YOUR INDEBTEDNESS TO THE GOVERNMENT IN THE AMOUNT OF $150.24, ARISING FROM AN OVERPAYMENT FOR LEAVE INCIDENT TO YOUR RETIREMENT FROM THE DEPARTMENT OF JUSTICE. YOUR EARLIER LETTER WAS THE SUBJECT OF GENERAL ACCOUNTING OFFICE LETTER OF JUNE 12, 1963, WHICH REQUESTED YOU TO REPAY THE QUESTIONED AMOUNT TO THE DEPARTMENT.

THE RECORD DISCLOSES THAT IMMEDIATELY PRIOR TO SEPTEMBER 30, 1962, THE EFFECTIVE DATE OF YOUR RETIREMENT FROM THE BUREAU OF PRISONS, YOU WERE PLACED ON ANNUAL LEAVE FROM AUGUST 5, 1962, THROUGH SEPTEMBER 30, 1962. THIS GRANT OF LEAVE, WHICH WAS REQUESTED BY YOU, WAS ADMINISTRATIVELY APPROVED, ALTHOUGH IT WAS KNOWN IN ADVANCE THAT YOU WOULD NOT RETURN TO DUTY UPON THE EXPIRATION OF SUCH LEAVE.

AS OF AUGUST 5, 1962, YOUR LAST ACTUAL WORKDAY, YOU HAD A TOTAL OF 309 HOURS OF ANNUAL LEAVE TO YOUR CREDIT, 120 HOURS OF WHICH REPRESENTED LEAVE ACCRUED DURING THE 1962 LEAVE YEAR, THE REMAINDER, 189 HOURS, BEING LEAVE ACCUMULATED IN PRIOR LEAVE YEARS. DURING THE PERIOD OF AUGUST 5 THROUGH SEPTEMBER 30, YOU WERE GRANTED AND CHARGED WITH 300 HOURS OF ANNUAL LEAVE AND 12 HOURS OF SICK LEAVE. THE PERSONNEL SECTION OF YOUR OFFICE ALSO CREDITED YOU WITH ANNUAL LEAVE EARNED DURING THIS PERIOD OF TERMINAL LEAVE, AND INCLUDED IN YOUR UNPAID COMPENSATION FOR THE PERIOD THROUGH SEPTEMBER 30, 1962, A LUMP SUM PAYMENT FOR 45 HOURS OF UNUSED LEAVE. THUS, IN THE AGGREGATE, YOU WERE GRANTED OR PAID FOR 357 HOURS OF LEAVE.

THE ADMINISTRATIVE ERROR OF CREDITING AND PAYING YOU FOR ANNUAL LEAVE ACCRUING DURING YOUR PERIOD OF TERMINAL LEAVE WAS DISCOVERED DURING A PAYROLL AUDIT BY OUR OFFICE. AS A RESULT OF THIS DISCOVERY, THE DEPARTMENT OF JUSTICE REQUESTED YOU TO REFUND THE AMOUNT COVERING THE EXCESS OF LEAVE ERRONEOUSLY PAID. YOUR PROTEST TO SUCH ACTION PRIMARILY IS BASED UPON A VERBAL UNDERSTANDING BETWEEN YOU AND THE PERSONNEL SPECIALIST OF YOUR DEPARTMENT THAT SUCH GRANTING OF TERMINAL LEAVE PRIOR TO YOUR SEPARATION AND THE CREDITING OF LEAVE EARNED WHILE ON TERMINAL LEAVE WOULD BE PROPER.

THE GENERAL RULE RESPECTING ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL, ANNUAL OR VACATION LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED IS STATED IN 24 COMP. GEN. 511; 34 ID. 61. IN THE FIRST CITED DECISION, OUR OFFICE HELD THAT THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B (1958 ED.SUPP. IV), CONCERNING LUMP-SUM PAYMENTS FOR UNUSED ANNUAL LEAVE UPON SEPARATION FROM SERVICE, ARE MANDATORY, AND THAT TERMINAL ANNUAL LEAVE IN KIND MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE. CERTAIN EXCEPTIONS TO THAT RULE HAVE BEEN RECOGNIZED BY OUR OFFICE. SEE 25 COMP. GEN. 82; 26 ID. 331; 33 ID. 85. HOWEVER, SUCH EXCEPTIONS HAVE BEEN BASED UPON OVERRIDING STATUTORY PROVISIONS AND REGULATIONS, OR THE EXIGENCIES OF A PARTICULAR CASE. THERE IS NO EVIDENCE OF RECORD TO INDICATE THAT YOUR CASE FALLS WITHIN ANY ONE OF THESE RECOGNIZED EXCEPTIONS. ALSO, UNDER THE PRESENT LEAVE ACT A DISTINCTION MUST BE DRAWN BETWEEN THOSE SITUATIONS PERMITTING THE USE IN KIND OF CURRENT ACCRUED LEAVE PRIOR TO SEPARATION AND THE USE OF LEAVE ACCUMULATED PRIOR TO THE CURRENT YEAR. OUR DECISION, 33 COMP. GEN. 85, CONTAINS THE FOLLOWING STATEMENT:

"WHILE SECTION 4 (A) OF THE ACT OF JULY 2, 1953, ESTABLISHES A LIMITATION UPON THE NUMBER OF DAYS' ANNUAL LEAVE FOR WHICH LUMP-SUM PAYMENT MAY BE MADE FOR SEPARATIONS AFTER AUGUST 31, 1953, NOTHING APPEARS IN THE LANGUAGE OF THE ACT PROHIBITING THE USE, IN KIND, OF SUCH CURRENT YEAR'S ANNUAL LEAVE IMMEDIATELY PRIOR TO SUCH SEPARATIONS -- WHETHER BY REDUCTION IN FORCE OR OTHERWISE--- THAT COULD NOT BE INCLUDED IN THE LUMP-SUM LEAVE PAYMENT UNDER THE TERMS OF SAID SECTION 4 (A). * * *"

FURTHERMORE, IN 31 COMP. GEN. 581, IN ANSWER TO QUESTION 5 (A) IT WAS RULED THAT UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, LEAVE PROPERLY COULD ACCRUE TO THE CREDIT OF AN EMPLOYEE IN A TERMINAL LEAVE STATUS AND BE GRANTED HIM AS PART OF HIS TERMINAL LEAVE. THAT DECISION INVOLVED A GRANT OF CURRENT ACCRUED LEAVE THAT COULD NOT HAVE BEEN INCLUDED IN THE EMPLOYEE'S LUMP-SUM LEAVE PAYMENT AND ITS APPLICATION MUST BE LIMITED TO SIMILAR SITUATIONS.

SECTION 4 (A) OF THE ACT OF JULY 2, 1953, 67 STAT. 137, LIMITS LUMP SUM PAYMENTS TO THIRTY DAYS (240 HOURS) OR THE ACCUMULATION BROUGHT FORWARD AT THE BEGINNING OF THE YEAR, WHICHEVER IS GREATER. THEREFORE, OF THE TOTAL ANNUAL LEAVE (309 HOURS) TO YOUR CREDIT ON AUGUST 5, 1962, 240 HOURS SHOULD HAVE BEEN COVERED BY A LUMP-SUM PAYMENT LEAVING A REMAINDER OF 69 HOURS OF CURRENT ACCRUED LEAVE--- NOT SUBJECT TO A LUMP-SUM PAYMENT--- TO BE GRANTED IN KIND PRIOR TO YOUR SEPARATION. SINCE THIS PERIOD OF TERMINAL LEAVE DID NOT CONSTITUTE A FULL BIWEEKLY PAY PERIOD, YOU WERE NOT ENTITLED TO ACCRUE ANY ADDITIONAL LEAVE DURING SUCH PERIOD. 32 COMP. GEN. 526; ID. 396. UNDER SECTION 203 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, LEAVE ACCRUES TO AN EMPLOYEE ONLY FOR EACH FULL BIWEEKLY PAY PERIOD.

YOUR DATE OF SEPARATION ORIGINALLY SHOULD HAVE BEEN MADE EFFECTIVE FIVE HOURS AFTER THE BEGINNING OF BUSINESS ON AUGUST 16, 1962. HOWEVER, ASSUMING THAT YOU APPLIED FOR AND WERE GRANTED 4 HOURS OF SICK LEAVE SOMETIME DURING THE FIRST 69 HOURS OF YOUR CORRECT TERMINAL LEAVE PERIOD WHILE YOU WERE STILL IN A PAY STATUS, THE EFFECTIVE DATE OF YOUR SEPARATION COULD HAVE BEEN EXTENDED ANOTHER FOUR HOURS TO ONE HOUR AFTER THE BEGINNING OF BUSINESS ON AUGUST 17. THE 8 HOURS OF SICK LEAVE GRANTED TO YOU THEREAFTER WAS IMPROPER.

SINCE YOU WERE ENTITLED TO A TOTAL OF 313 HOURS OF PAID ANNUAL AND SICK LEAVE AND WERE PAID FOR 357 HOURS, THE EXCESS OF 44 HOURS MUST BE USED AS THE BASIS FOR RECOMPUTING THE AMOUNT OF THE OVERPAYMENT WHICH SHOULD BE REPAID TO THE DEPARTMENT OF JUSTICE.

A COPY OF THIS DECISION IS BEING FORWARDED TO THE DEPARTMENT OF JUSTICE, BUREAU OF PRISONS, FOR RECOMPUTATION OF THE OVERPAYMENT WITH THE REQUEST THAT YOU BE ADVISED OF THE EXACT AMOUNT DUE.