B-163077, JAN. 29, 1968

B-163077, JAN. 29, 1968

EMPLOYEES - SEPARATION - CHARGES DECISION TO NAVAL ADMINISTRATIVE COMMAND RE CHANGE OF SEPARATION DATE TO ALLOW CREDIT FOR ANNUAL LEAVE. SINCE DEPT. OF NAVY PRACTICE IS TO GRANT ALL OF THE ACCRUED LEAVE TO AN EMPLOYEE'S CREDIT FOR WHICH PAYMENT CANNOT BE MADE PRIOR TO SEPARATION, SEPARATION WHICH DOES NOT COMPLY WITH PRACTICE IS INEFFECTIVE. THEREFORE EMPLOYEE MAY BE RESTORED TO ROLLS TO CHANGE SEPARATION DATE FROM JUNE 30, 1967, TO JULY 14, 1967 TO PERMIT USE AND COMPENSATION FOR EXCESS ANNUAL LEAVE.

TO MR. M. A. MURRAY:

THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 28, 1967, REFERENCE J1 43/55:JC 12352, REQUESTING OUR DECISION AS TO THE ENTITLEMENT OF MRS. KATHRYN MALLEK, A FORMER EMPLOYEE OF THE TRAINING CENTER, GREAT LAKES, ILLINOIS, TO CHANGE THE DATE OF HER SEPARATION FROM THE CLOSE OF BUSINESS ON JUNE 30, 1967, TO 1400 HOURS, JULY 14, 1967, IN ORDER TO CREDIT HER WITH 70 HOURS OF ACCRUED ANNUAL LEAVE WHICH SHE LOST UPON SEPARATION.

AT THE TIME OF HER SEPARATION MRS. MALLEK HAD AN ACCRUED ANNUAL LEAVE BALANCE IN EXCESS OF HER ANNUAL LEAVE CEILING OF 432 HOURS. HOWEVER, PRIOR TO SEPARATION SHE WAS NOT PERMITTED TO TAKE THIS LEAVE WHICH WAS IN EXCESS OF THE AMOUNT FOR WHICH SHE COULD BE PAID A LUMP SUM.

YOU STATE THAT YOU HAVE DENIED MRS. MALLEK'S REQUEST FOR A CHANGE IN THE DATE OF HER RESIGNATION FROM JUNE 30, 1967, TO 1400 HOURS, JULY 14, 1967, ON THE BASIS OF NCPI 630.3-6 AND OUR DECISION B-36325, AUGUST 26, 1943, 23 COMP. GEN. 138. HOWEVER, IN VIEW OF OUR DECISION B-145957, OCTOBER 25, 1961 (COPY ENCLOSED) YOU HAVE DOUBTS AS TO WHETHER MRS. MALLEK'S REQUEST SHOULD BE DENIED.

WITH RESPECT TO FORFEITURE OF ANNUAL LEAVE NCPI 630.3-5D (2) PROVIDES AS FOLLOWS:

"PRIOR TO SEPARATION OR RESIGNATION (EXCEPT IN EMERGENCY INSTANCES, WHICH MUST BE DOCUMENTED), IT WILL BE THE PRACTICE IN THE DEPARTMENT OF THE NAVY TO PERMIT EMPLOYEES TO USE ALL CURRENT ACCRUED ANNUAL LEAVE FOR WHICH THEY CANNOT BE PAID A LUMP-SUM PAYMENT. AFTER SUCH LEAVE HAS BEEN USED, THE EMPLOYEE WILL BE SEPARATED AND PAID A LUMP SUM FOR THE BALANCE OF HIS UNUSED ANNUAL LEAVE.' IT APPEARS FROM THE ABOVE THAT IT IS THE DEPARTMENT OF THE NAVY'S PRACTICE TO ENSURE THAT EMPLOYEES UPON SEPARATION ARE AFFORDED THE OPPORTUNITY TO USE ALL ACCRUED LEAVE FOR WHICH THEY CANNOT BE PAID A LUMP SUM. THE RECORD INDICATES THAT THIS PROCEDURE WAS NOT FOLLOWED IN EFFECTING MRS. MALLEK'S SEPARATION.

THE DEPARTMENT OF THE NAVY IN A LETTER DATED NOVEMBER 8, 1967, TO THE COMMANDER, NAVAL TRAINING CENTER, GREAT LAKES, POINTED OUT THAT THE ACTION OF THE LOCAL COMMAND IN MAKING MRS. MALLEK'S SEPARATION EFFECTIVE JUNE 30, 1967, WITHOUT AFFORDING HER THE OPPORTUNITY TO USE HER LEAVE WAS IMPROPER IN THAT IT DID NOT COMPLY WITH NCPI 630.3-5D (2), ABOVE. SINCE IT IS THE ESTABLISHED PRACTICE OF THE DEPARTMENT TO GRANT ALL OF THE ACCRUED LEAVE TO AN EMPLOYEE'S CREDIT FOR WHICH HE CANNOT BE PAID A LUMP-SUM PAYMENT PRIOR TO SEPARATION, ANY SEPARATION WHICH FAILS TO PROVIDE FOR SUCH WOULD APPEAR TO BE INEFFECTIVE. SEE B 159827, AUGUST 17, 1966 (COPY ENCLOSED).

THEREFORE, WE WOULD NOT OBJECT TO A RESTORATION OF MRS. MALLEK TO THE ROLLS IN ORDER TO CHANGE HER SEPARATION DATE FROM JUNE 30, 1967, TO 1400 HOURS, JULY 14, 1967, AND THUS PERMIT HER TO USE AND BE COMPENSATED FOR HER EXCESS ACCRUED ANNUAL LEAVE.