B-152947, JAN. 30, 1964

B-152947: Jan 30, 1964

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REQUESTS RECONSIDERATION OF YOUR CLAIM FOR PAYMENT FOR ANNUAL LEAVE ACCRUED DURING CALENDAR YEAR 1961 WHILE YOU WERE EMPLOYED AT HEADQUARTERS. WHICH WAS DISALLOWED BY OFFICE SETTLEMENT OF OCTOBER 8. YOU WERE SEPARATED BY REMOVAL ON OCTOBER 10. INCLUDING SUCH LEAVE AS WILL ACCRUE TO ANY OFFICER OR EMPLOYEE DURING THE YEAR. WE HAVE HELD THAT UNDER THIS SECTION "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. WHILE IT IS EXPECTED THAT. ADMINISTRATIVE OFFICIALS WILL AFFORD EMPLOYEES AN OPPORTUNITY TO TAKE THEIR CURRENT YEAR'S LEAVE IMMEDIATELY PRIOR TO SEPARATION WHEREVER POSSIBLE.

B-152947, JAN. 30, 1964

TO MR. GEORGE W. MILLER:

YOUR LETTER OF NOVEMBER 9, 1963, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR PAYMENT FOR ANNUAL LEAVE ACCRUED DURING CALENDAR YEAR 1961 WHILE YOU WERE EMPLOYED AT HEADQUARTERS, SAN ANTONIO AIR MATERIAL AREA, UNITED STATES AIR FORCE, KELLY AIR FORCE BASE, TEXAS, WHICH WAS DISALLOWED BY OFFICE SETTLEMENT OF OCTOBER 8, 1963.

YOU WERE SEPARATED BY REMOVAL ON OCTOBER 10, 1961. THE RECORD SHOWS YOU HAD CARRIED FORWARD A MAXIMUM LEAVE ACCRUAL OF 240 HOURS OF ANNUAL LEAVE FROM THE 1960 LEAVE YEAR TO THE 1961 LEAVE YEAR. AT THE TIME OF SEPARATION YOU HAD ACCRUED DURING THE CURRENT YEAR 160 HOURS OF ANNUAL LEAVE AND HAD USED 68 HOURS OF IT, LEAVING A BALANCE OF 92 HOURS. YOU NOW CLAIM PAYMENT FOR THIS BALANCE, WHICH THE AGENCY DID NOT GRANT YOU BEFORE SEPARATION, ON THE GROUND THAT SECTION 203 (H) OF THE ACT OF OCTOBER 30, 1951, 65 STAT. 681, 5 U.S.C. 2062 (H), DOES NOT PERMIT AN ARBITRARY OR CAPRICIOUS DENIAL OF SUCH LEAVE EXCEPT IN A STATE OF EMERGENCY OR A LIKE INSTANCE. SECTION 203 (H) PROVIDES THAT:

"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.'

WE HAVE HELD THAT UNDER THIS SECTION "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. WHILE IT IS EXPECTED THAT, IN KEEPING WITH THE CONGRESSIONAL EXPLANATION REFERRED TO ABOVE, ADMINISTRATIVE OFFICIALS WILL AFFORD EMPLOYEES AN OPPORTUNITY TO TAKE THEIR CURRENT YEAR'S LEAVE IMMEDIATELY PRIOR TO SEPARATION WHEREVER POSSIBLE, IT IS FELT THAT, UNDER SECTION 203 (H) IT IS OPTIONAL WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT SUCH TERMINAL LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE.' 33 COMP. GEN. 85, 87.

YOU CONTEND, IN EFFECT, THAT YOU SHOULD NOW BE PAID FOR SUCH LEAVE BECAUSE THE EXIGENCIES OF THE PUBLIC SERVICE DID NOT REQUIRE THE DENIAL OF THE LEAVE.

THE GRANTING OF SUCH LEAVE IS AN ADMINISTRATIVE RESPONSIBILITY. THE DEPARTMENT OF THE AIR FORCE HAS REPORTED THAT IT EXERCISED ITS DISCRETION AS PERMITTED BY THE QUOTED HOLDING IN 33 COMP. GEN. 85, 87. WHILE YOU ALLEGE THAT THE ADMINISTRATIVE ACTION WAS ARBITRARY AND CAPRICIOUS, YOU DO NOT FURNISH FACTS ESTABLISHING AS A MATTER OF LAW THAT SUCH IS THE CASE. FURTHER, WHEN LEAVE MUST BE TAKEN IN KIND THERE IS NO LAW AUTHORIZING PAYMENT AFTER SEPARATION FROM SERVICE. THUS, AFTER AN EMPLOYEE BECOMES LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE, THERE IS NO AUTHORITY TO RESTORE HIM TO THE STATUS OF AN EMPLOYEE SOLELY IN ORDER THAT HE MAY BE GRANTED AND PAID FOR ANNUAL LEAVE ACCRUED BUT NOT GRANTED AND TAKEN BEFORE SEPARATION. B-129860, DECEMBER 26, 1956, COPY ENCLOSED.

IN VIEW THEREOF, THE DENIAL OF YOUR CLAIM WAS PROPER AND IS HEREBY SUSTAINED.