B-160826, MAR. 8, 1967

B-160826: Mar 8, 1967

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TO THE SECRETARY OF LABOR: THIS IS IN REPLY TO THE LETTER OF MR. JOHNSON WAS AWARDED COMPENSATION ALLOWANCES FOR EMPLOYEE RELATED DISABILITY IN MAY 1966 COVERING CERTAIN PERIODS OF ANNUAL AND SICK LEAVE TAKEN BETWEEN NOVEMBER 1956 AND AUGUST 1958. THAT THE SALARY RECEIVED FOR LEAVE DURING THESE PERIODS WAS REFUNDED TO THE BUREAU BY MR. JOHNSON HAVE BEEN HELD UP BY THE DEPARTMENT PENDING OUR ADVICE IN THE MATTER AND THE SUBSEQUENT FINAL ELECTION BY MR. JOHNSON AS TO THE PERIODS FOR WHICH HE WILL RECEIVE DISABILITY COMPENSATION. ARE NOT AVAILABLE ALTHOUGH THEY ARE AVAILABLE FOR SUBSEQUENT PERIODS INCLUDING THE BEGINNING BALANCE FOR 1961. JOHNSON CANNOT PRODUCE LEAVE RECORDS FOR 1959 AND 1960 AND OUR LEAVE RECORDS FOR THOSE YEARS HAVE BEEN DESTROYED.

B-160826, MAR. 8, 1967

TO THE SECRETARY OF LABOR:

THIS IS IN REPLY TO THE LETTER OF MR. TOM KOUZES, YOUR DIRECTOR OF THE OFFICE OF FINANCIAL MANAGEMENT AND AUDIT, DATED FEBRUARY 2, 1967, CONCERNING LEAVE ACCUMULATION AND BALANCES ARISING FROM SUBSTITUTION OF LEAVE WITHOUT PAY FOR ANNUAL LEAVE, AND ELECTIONS TO TAKE EMPLOYEE'S COMPENSATION IN THE CASE OF MR. JOSEPH E. JOHNSON, A FORMER EMPLOYEE OF THE BUREAU OF APPRENTICESHIP AND TRAINING OF THE DEPARTMENT OF LABOR.

THE DIRECTOR'S LETTER INDICATES THAT MR. JOHNSON WAS AWARDED COMPENSATION ALLOWANCES FOR EMPLOYEE RELATED DISABILITY IN MAY 1966 COVERING CERTAIN PERIODS OF ANNUAL AND SICK LEAVE TAKEN BETWEEN NOVEMBER 1956 AND AUGUST 1958, AND THAT THE SALARY RECEIVED FOR LEAVE DURING THESE PERIODS WAS REFUNDED TO THE BUREAU BY MR. JOHNSON AND THE LEAVE RESTORED. INFORMALLY OUR OFFICE HAS BEEN ADVISED THAT THE CHECKS REPRESENTING THE DISABILITY COMPENSATION PAYMENTS TO MR. JOHNSON HAVE BEEN HELD UP BY THE DEPARTMENT PENDING OUR ADVICE IN THE MATTER AND THE SUBSEQUENT FINAL ELECTION BY MR. JOHNSON AS TO THE PERIODS FOR WHICH HE WILL RECEIVE DISABILITY COMPENSATION.

YOU FURNISHED COPIES OF MR. JOHNSON'S LEAVE RECORDS FOR THE PERIOD OCTOBER 23, 1955, TO MAY 30, 1959, BUT STATE THAT THE RECORDS FOR THE PERIOD JUNE 1, 1959, TO JANUARY 8, 1961, ARE NOT AVAILABLE ALTHOUGH THEY ARE AVAILABLE FOR SUBSEQUENT PERIODS INCLUDING THE BEGINNING BALANCE FOR 1961.

YOU ASK THE FOLLOWING QUESTIONS:

"1. DUE TO THE FACT THAT MR. JOHNSON CANNOT PRODUCE LEAVE RECORDS FOR 1959 AND 1960 AND OUR LEAVE RECORDS FOR THOSE YEARS HAVE BEEN DESTROYED, MAY WE ASSUME THAT 208 HOURS WERE USED IN 1959 AND 282 HOURS IN 1960. THE COMBINED TOTAL OF 490 HOURS WOULD EQUAL THE DIFFERENCE BETWEEN THE KNOWN BALANCE FOR 1958 AND THE BEGINNING BALANCE FOR 1961.

"2. SINCE MR. JOHNSON WAS NOT AWARE IN 1961 THAT CERTAIN LEAVE TAKEN IN PRIOR YEARS WOULD BE RESTORED UPON REFUND OF THE SALARY REPRESENTED THEREBY, IS HE SUBJECT TO THE NORMAL ACCUMULATION LIMITATION OF 240 HOURS IN THAT YEAR.

"3. IF YOUR ANSWER TO OUR SECOND QUESTION IS IN THE NEGATIVE, AND SINCE THE REFUND BY MR. JOHNSON WOULD REQUIRE A FORFEITURE OF ANNUAL LEAVE IN 1961, MAY HE ELECT TO TAKE EMPLOYEE'S COMPENSATION TO CONTINUE HIM IN A PAY STATUS WITH A CORRESPONDING REFUND TO THE BUREAU OF EMPLOYEES' COMPENSATION.'

WITH RESPECT TO YOUR FIRST QUESTION SINCE MR. JOHNSON'S LEAVE RECORDS FOR 1959 AND 1960 ARE NOT AVAILABLE AT THIS TIME THROUGH NO FAULT OF HIS OWN THERE WOULD APPEAR TO BE NO OBJECTION TO ASSUMING THAT OF THE TOTAL LEAVE OF 490 HOURS TAKEN DURING THE TWO YEARS 1959 AND 1960, 208 HOURS WERE USED IN 1959 AND 282 HOURS IN 1960.

IN AN ANSWER TO YOUR SECOND QUESTION FOR EACH OF THE PERIODS IN WHICH THE BUREAU OF EMPLOYEES' COMPENSATION DETERMINED THAT MR. JOHNSON WAS DISABLED HE HAS THE ELECTION OF SUBSTITUTING LEAVE WITHOUT PAY FOR ALL OR ANY PART OF THE ANNUAL OR SICK LEAVE TAKEN, REFUNDING THE SALARY PAID FOR SUCH PERIODS, AND COLLECTING THE DISABILITY COMPENSATION. SEE B-112786, JANUARY 26, 1953, COPY ENCLOSED. HIS ANNUAL AND SICK LEAVE BALANCES IN THE PRIOR YEARS AFFECTED MAY BE RECONSTRUCTED TO REFLECT THE REDUCED USE OF LEAVE AND ALSO THE REDUCED ACCRUAL OF SUCH LEAVE BECAUSE OF THE SUBSTITUTION OF LEAVE WITHOUT PAY DURING WHICH NO LEAVE IS EARNED. SEE B- 126918, MARCH 28, 1956, COPY ENCLOSED; 5 CFR 630.202.

UNDER THE PROVISIONS OF 5 U.S.C. 6304 (C) AN EMPLOYEE MAY CARRY OVER UNUSED ANNUAL LEAVE ACCUMULATED IN ACCORDANCE WITH PRIOR LAW IN EXCESS OF THE 30 DAYS LIMITATION IMPOSED IN SECTION 6304 (A) SUBJECT TO HAVING THE ACCUMULATION REDUCED EACH YEAR BY THE AMOUNT THAT THE LEAVE THAT HE USES IN A YEAR EXCEEDS THE LEAVE THAT HE ACCRUES. SEE B 126918, MARCH 28, 1956. FOR EXAMPLE, IF THE 38 HOURS OF LEAVE WITHOUT PAY IN 1956 WAS SUBSTITUTED FOR SICK LEAVE MR. JOHNSON WOULD HAVE A BALANCE OF 443 HOURS OF ANNUAL LEAVE AT THE END OF 1956 WITH THE RIGHT FOR SUBSTITUTION OF LEAVE WITHOUT PAY FOR ANNUAL LEAVE AS OUTLINED ABOVE. THE 443 HOURS OF ANNUAL LEAVE WOULD BE THE MAXIMUM THAT COULD BE CARRIED FORWARD AT THE END OF 1957 OR ANY SUBSEQUENT LEAVE YEAR SUBJECT TO REDUCTION IN ANY LEAVE YEAR IF HE USED MORE LEAVE THAN HE ACCRUED DURING THAT YEAR.

IF BY SUBSTITUTION AND RECONSTRUCTION OF HIS LEAVE RECORD MR. JOHNSON WERE TO ENTER THE YEAR 1959 WITH A LEAVE BALANCE OF 443 HOURS HE WOULD BEGIN 1960 WITH THE SAME TOTAL FOR ACCORDING TO THE RECORDS HIS LEAVE ACCRUAL AND USE WERE THE SAME, 208 HOURS. HOWEVER, AT THE END OF 1961 HIS ENTERING ANNUAL LEAVE BALANCE OF 443 HOURS WOULD BE REDUCED TO 369 HOURS. (443 HOURS BALANCE PLUS ACCRUAL OF 208 HOURS MINUS 282 HOURS TAKEN EQUAL 369 HOURS.) THEREFORE, 369 HOURS REPRESENTS THE MAXIMUM ACCUMULATION THAT MR. JOHNSON COULD CARRY OVER INTO SUCCEEDING YEARS.

IN THE EVENT MR. JOHNSON ELECTED NOT TO SUBSTITUTE LEAVE WITHOUT PAY FOR ANNUAL LEAVE OR TO SUBSTITUTE ONLY FOR SOME PERIODS OF DISABILITY AND HIS ACCUMULATED LEAVE PRIOR TO 1961 AS RECONSTRUCTED FELL BELOW 240 HOURS HE NEVER COULD AGAIN EXCEED THAT FIGURE EVEN THOUGH HE WAS NOT AWARE IN 1961 THAT PRIOR LEAVE COULD BE RESTORED. 36 COMP. GEN. 596; 37 ID 213.

TO ANSWER YOUR QUESTION SPECIFICALLY MR. JOHNSON WAS SUBJECT TO THE STATUTORY LIMITATION OF 240 HOURS OF ANNUAL LEAVE SET OUT IN 5 U.S.C. 6304 (A) IN 1961, IF UPON RECONSTRUCTION OF HIS LEAVE RECORD HE HAD ONCE DIPPED BELOW THAT CEILING.

WITH RESPECT TO YOUR THIRD QUESTION WE BELIEVE THAT THE RULES SET FORTH ABOVE WILL ENABLE YOUR OFFICE TO MAKE APPROPRIATE REFUNDS, PAYMENTS OR ADJUSTMENTS IN THIS CASE. THUS, NO ADDITIONAL COMMENTS THEREON APPEAR TO BE NECESSARY.