B-166692, DEC. 12, 1969

B-166692: Dec 12, 1969

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FORFEITURE BY OPERATION OF LAW WHERE ERROR AS RESULT OF BEING IMPROPERLY PLACED IN LEAVE STATUS PENDING ACTION ON AGENCY-FILED DISABILITY RETIREMENT APPLICATION WAS CORRECTED BUT AMOUNT OF ANNUAL LEAVE WHICH COULD BE CARRIED OVER FROM YEAR TO YEAR WAS RESTRICTED BY 30-DAY STATUTORY LEAVE ACCUMULATION CEILING IN 5 U.S.C. 6304 (A) SO THAT EMPLOYEE FORFEITED 238 HOURS OF ANNUAL LEAVE. CONCERNING RESTORATION OF 238 HOURS OF ANNUAL LEAVE WHICH YOU SAY WAS FORFEITED AS A RESULT OF BEING IMPROPERLY PLACED IN A LEAVE STATUS PENDING ACTION ON AN AGENCY FILED DISABILITY RETIREMENT APPLICATION. DURING WHICH PERIOD YOU IMPROPERLY WERE CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS. OUR CLAIMS DIVISION ADVISED YOUR AGENCY THAT YOU WERE ENTITLED TO RESTORATION OF THE SICK AND ANNUAL LEAVE THAT WAS CHARGED TO YOUR ACCOUNT DURING THE PERIOD MAY 16 THROUGH JUNE 24.

B-166692, DEC. 12, 1969

LEAVES OF ABSENCE--ANNUAL--ACCRUAL--MAXIMUM LIMITATION--FORFEITURE BY OPERATION OF LAW WHERE ERROR AS RESULT OF BEING IMPROPERLY PLACED IN LEAVE STATUS PENDING ACTION ON AGENCY-FILED DISABILITY RETIREMENT APPLICATION WAS CORRECTED BUT AMOUNT OF ANNUAL LEAVE WHICH COULD BE CARRIED OVER FROM YEAR TO YEAR WAS RESTRICTED BY 30-DAY STATUTORY LEAVE ACCUMULATION CEILING IN 5 U.S.C. 6304 (A) SO THAT EMPLOYEE FORFEITED 238 HOURS OF ANNUAL LEAVE, NO AUTHORITY EXISTS FOR PAYMENT OF ANNUAL LEAVE FORFEITED BY OPERATION OF LAW REGARDLESS OF REASON FOR FAILURE TO USE SUCH EXCESS LEAVE. SEE 32 COMP. GEN. 162; 36 ID. 596.

TO MR. CLEOPHAS HENDERSON:

WE REFER TO YOUR LETTER OF OCTOBER 28, 1969, CONCERNING RESTORATION OF 238 HOURS OF ANNUAL LEAVE WHICH YOU SAY WAS FORFEITED AS A RESULT OF BEING IMPROPERLY PLACED IN A LEAVE STATUS PENDING ACTION ON AN AGENCY FILED DISABILITY RETIREMENT APPLICATION.

ON AUGUST 14, 1969, THE CLAIMS DIVISION OF OUR OFFICE ALLOWED YOUR CLAIM FOR BACK PAY UNDER 5 U.S.C. 5596 FOR THE PERIOD JUNE 24 THROUGH OCTOBER 22, 1966, DURING WHICH PERIOD YOU IMPROPERLY WERE CARRIED ON THE ROLLS IN A LEAVE WITHOUT PAY STATUS. ALSO, OUR CLAIMS DIVISION ADVISED YOUR AGENCY THAT YOU WERE ENTITLED TO RESTORATION OF THE SICK AND ANNUAL LEAVE THAT WAS CHARGED TO YOUR ACCOUNT DURING THE PERIOD MAY 16 THROUGH JUNE 24, 1966, AS WELL AS THE LEAVE WHICH YOU WOULD HAVE EARNED DURING THE PERIOD OF LEAVE WITHOUT PAY, SUBJECT TO THE MAXIMUM ACCUMULATION RESTRICTIONS OF 5 U.S.C. 6304 (A). HOWEVER, YOU APPARENTLY HAVE BEEN ADVISED BY YOUR ADMINISTRATIVE OFFICE THAT NONE OF THE ANNUAL LEAVE DISCUSSED ABOVE MAY BE RECREDITED TO YOUR LEAVE ACCOUNT IN VIEW OF SUCH MAXIMUM ACCUMULATION RESTRICTIONS.

SECTION 5596 (B) OF TITLE 5, U.S.C. PROVIDES THAT AN EMPLOYEE WHO IS ENTITLED TO BACK PAY AND OTHER RESTORATION BENEFITS PROVIDED THEREUNDER MAY NOT BE CREDITED WITH LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT AUTHORIZED BY LAW AND REGULATION. IN THAT REGARD 5 U.S.C. 6304 (A) PROVIDES:

"EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, ANNUAL LEAVE PROVIDED BY SECTION 6303 OF THIS TITLE, WHICH IS NOT USED BY AN EMPLOYEE, ACCUMULATES FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT MORE THAN 30 DAYS AT THE BEGINNING OF THE FIRST FULL BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD FOR AN EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN A YEAR.'

APPARENTLY YOUR ANNUAL LEAVE BALANCE AT THE END OF THE 1967 OR 1968 LEAVE YEAR AMOUNTED TO 240 HOURS. THEREFORE, IN RECONSTRUCTING YOUR LEAVE ACCOUNT YOUR AGENCY WAS PROHIBITED BY LAW FROM GIVING YOU CREDIT FOR ANY OF THE 238 HOURS OF ANNUAL LEAVE WHICH YOU SAY WAS OTHERWISE DUE YOU.

IN SUCH CONNECTION OUR OFFICE HAS HELD THAT THE ABOVE-QUOTED STATUTORY PROVISION REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE CREDITED TO AN EMPLOYEE AT THE CLOSE OF A LEAVE YEAR WHICH IS IN EXCESS OF THE CEILING ESTABLISHED THEREIN REGARDLESS OF THE REASON FOR THE FAILURE TO USE SUCH EXCESS LEAVE. 32 COMP. GEN. 162; 36 ID. 596. ALSO, WE MUST ADVISE YOU THAT THERE EXISTS NO LEGAL BASIS UPON WHICH YOU MAY RECEIVE PAYMENT FOR THE ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW.