B-157020, JUL. 12, 1965

B-157020: Jul 12, 1965

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IT APPEARS THAT IN OCTOBER 1961 AND FOR SOME TIME PRIOR THERETO YOU WERE EMPLOYED BY THE INTERNATIONAL COOPERATION ADMINISTRATION AND STATIONED IN LAOS. THE AGENCY WAS ABOLISHED EFFECTIVE NOVEMBER 3. ACCORDANCE THEREWITH YOU WERE PLACED IN THE LEAVE-WITHOUT-PAY STATUS IN FEBRUARY AND SO REMAINED UNTIL YOU WERE APPOINTED TO AFGHANISTAN IN JULY 1962 WHERE YOU SERVED UNTIL OCTOBER 1964. YOU NOW ARE RETIRED FROM SERVICE. YOU REQUESTED THE AGENCY FOR INTERNATIONAL DEVELOPMENT TO AMEND YOUR TIME AND ATTENDANCE RECORDS FOR 1962 BY SUBSTITUTING THE 46 DAYS HOME LEAVE EARNED PRIOR TO YOUR TERMINATION FROM THE INTERNATIONAL COOPERATION ADMINISTRATION FOR AN EQUAL NUMBER OF DAYS YOU WERE IN A LEAVE-WITHOUT-PAY STATUS UNDER YOUR SUBSEQUENT LIMITED APPOINTMENT AND COMPENSATE YOU THEREFOR AT YOUR RATE OF PAY IN EFFECT IN 1962.

B-157020, JUL. 12, 1965

TO MR. HARRY L. ECK:

WE REFER TO YOUR LETTER OF JUNE 8, 1965, REQUESTING REVIEW OF SETTLEMENT DATED MAY 27, 1965, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR UNUSED HOME LEAVE INCIDENT TO YOUR SERVICE WITH THE INTERNATIONAL COOPERATION ADMINISTRATION AND ITS SUCCESSOR, THE AGENCY FOR INTERNATIONAL DEVELOPMENT, DEPARTMENT OF STATE.

IT APPEARS THAT IN OCTOBER 1961 AND FOR SOME TIME PRIOR THERETO YOU WERE EMPLOYED BY THE INTERNATIONAL COOPERATION ADMINISTRATION AND STATIONED IN LAOS. THE AGENCY WAS ABOLISHED EFFECTIVE NOVEMBER 3, 1961, PURSUANT TO SECTION 621, PUB.L. 87-195, 75 STAT. 445. MEANWHILE YOU HAD RETURNED TO THE UNITED STATES IN OCTOBER 1961 FOR SEPARATION COINCIDENT WITH THE DATE OF ABOLITION OF THE AGENCY. AT THAT TIME IT APPEARS YOU HAD BOTH ANNUAL LEAVE AND HOME LEAVE TO YOUR CREDIT.

ON NOVEMBER 4, 1961, THE AGENCY FOR INTERNATIONAL DEVELOPMENT, A NEW AGENCY UNDER THE DEPARTMENT OF STATE, GAVE YOU A LIMITED APPOINTMENT NOT TO EXCEED JULY 30, 1962, WHICH PROVIDED FOR TEMPORARY DUTY (CONSULTATION) FOR 5 DAYS AND THE PRIVILEGE OF USING ALL OF YOUR ANNUAL LEAVE AFTER WHICH YOU WOULD BE PLACED IN A LEAVE-WITHOUT-PAY STATUS UNTIL TERMINATION. ACCORDANCE THEREWITH YOU WERE PLACED IN THE LEAVE-WITHOUT-PAY STATUS IN FEBRUARY AND SO REMAINED UNTIL YOU WERE APPOINTED TO AFGHANISTAN IN JULY 1962 WHERE YOU SERVED UNTIL OCTOBER 1964. YOU NOW ARE RETIRED FROM SERVICE.

ON NOVEMBER 18, 1964, YOU REQUESTED THE AGENCY FOR INTERNATIONAL DEVELOPMENT TO AMEND YOUR TIME AND ATTENDANCE RECORDS FOR 1962 BY SUBSTITUTING THE 46 DAYS HOME LEAVE EARNED PRIOR TO YOUR TERMINATION FROM THE INTERNATIONAL COOPERATION ADMINISTRATION FOR AN EQUAL NUMBER OF DAYS YOU WERE IN A LEAVE-WITHOUT-PAY STATUS UNDER YOUR SUBSEQUENT LIMITED APPOINTMENT AND COMPENSATE YOU THEREFOR AT YOUR RATE OF PAY IN EFFECT IN 1962. THE AGENCY DENIED YOUR REQUEST POINTING OUT THAT IN ALL CASES OF TERMINATION UNDER SECTION 621 (D) OF THE CITED STATUTE AND SUBSEQUENT REASSIGNMENTS THE DETERMINATION AS TO ELIGIBILITY FOR HOME LEAVE WAS MADE BY THE ADMINISTRATOR AND THAT IN YOUR CASE THERE IS NO RECORD OF SUCH DETERMINATION NOR OF A RECOMMENDATION THEREFOR. THEREAFTER, YOUR CLAIM TO THIS OFFICE WAS DISALLOWED BY SETTLEMENT DATED MAY 27, 1965. IN THE SETTLEMENT THERE WERE CITED THE STATUTORY PROVISION AND THE IMPLEMENTING REGULATION BOTH OF WHICH PROVIDE THAT UNUSED HOME LEAVE SHALL NOT BE MADE THE BASIS FOR ANY TERMINAL LEAVE OR FOR ANY LUMP-SUM PAYMENT.

IN YOUR PRESENT LETTER YOU STATE THAT YOUR CLAIM IS NOT FOR A LUMP SUM PAYMENT BUT RATHER FOR HOME LEAVE ACCUMULATED PRIOR TO YOUR LAST ASSIGNMENT OVERSEAS WHICH SHOULD BE SUBSTITUTED FOR THE LEAVE-WITHOUT PAY CHARGED IN 1962 WHILE AWAITING COUNTRY CLEARANCE AND REASSIGNMENT.

THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PERTAINING TO HOME LEAVE PROVIDE IN PERTINENT PART AS FOLLOWS (FEDERAL PERSONNEL MANUAL, BOOK III, PART 630, SECTION 630.606, FORMERLY SECTION 30.606):

"/B) AGENCY AUTHORITY. A GRANT OF HOME LEAVE IS AT THE DISCRETION OF AN AGENCY. AN AGENCY MAY GRANT HOME LEAVE IN COMBINATION WITH OTHER LEAVES OF ABSENCE IN ACCORDANCE WITH ESTABLISHED AGENCY POLICY.

"/C) LIMITATIONS. AN AGENCY MAY GRANT HOME LEAVE ONLY:

"/2) DURING AN EMPLOYEE'S PERIOD OF SERVICE ABROAD, OR WITHIN A REASONABLE PERIOD AFTER HIS RETURN FROM SERVICE ABROAD WHEN IT IS CONTEMPLATED THAT HE WILL RETURN TO SERVICE ABROAD IMMEDIATELY OR ON COMPLETION OF AN ASSIGNMENT IN THE UNITED STATES.'

IT WILL BE SEEN FROM THE QUOTED PORTION OF THE REGULATIONS THAT, SUBJECT TO THE LIMITATIONS PRESCRIBED, THE GRANTING OF HOME LEAVE IS AN ADMINISTRATIVE MATTER. MOREOVER, FROM THE CIRCUMSTANCES GIVING RISE TO YOUR RETURN TO THE UNITED STATES AND THE STATED PURPOSES OF THE LIMITED APPOINTMENT GIVEN YOU UPON SUCH RETURN IT IS APPARENT THAT THE AGENCY DID NOT CONTEMPLATE YOUR RETURN TO SERVICE ABROAD EITHER IMMEDIATELY OR UPON COMPLETION OF YOUR "ASSIGNMENT" IN THE UNITED STATES, ALTHOUGH IT MAY HAVE INTENDED TO RETAIN YOUR SERVICES IF AND WHEN A SUITABLE POSITION WAS FOUND. THUS, IN ADDITION TO THE FACT THAT THE DENIAL OF YOUR REQUEST FOR THE HOME LEAVE IN 1962 WAS A MATTER OF AGENCY DISCRETION AND NOT SUBJECT TO REVIEW BY US, WE DO NOT AGREE THAT THE CHARGE TO LEAVE-WITHOUT-PAY WAS IMPROPER OR ERRONEOUS. THEREFORE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT BY WHICH YOUR CLAIM WAS DISALLOWED.