B-166848, JUN. 3, 1969

B-166848: Jun 3, 1969

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JOHNSON WAS ERRONEOUSLY PLACED IN THE 8-HOUR LEAVE EARNING CATEGORY RATHER THAN THE 6-HOUR LEAVE EARNING CATEGORY DURING THE PERIOD IN QUESTION. A RECOMPUTATION OF HIS LEAVE BALANCE UNDER THE PROPER EARNING CATEGORY RESULTED IN HIS HAVING TAKEN ANNUAL LEAVE IN EXCESS OF THAT WHICH SHOULD HAVE BEEN CREDITED TO HIM TO THE EXTENT OF 32 HOURS IN 1965. WHEN THE ERROR WAS DISCOVERED IN 1968. JOHNSON CHOSE TO HAVE THE TOTAL EXCESS ANNUAL LEAVE TAKEN . DEDUCTED FROM HIS LEAVE EARNINGS FOR THAT YEAR RATHER THAN PAY THE GOVERNMENT THE VALUE OF THAT EXCESS ANNUAL LEAVE AT THE RATES HE HAD EARNED WHEN IT WAS TAKEN OR A TOTAL OF $439.14. THERE IS NO AUTHORITY TO GRANT AN EMPLOYEE ANNUAL LEAVE IN EXCESS OF THE AMOUNT HE WILL HAVE TO HIS CREDIT AT THE END OF THE CURRENT LEAVE YEAR.

B-166848, JUN. 3, 1969

TO MR. WILLIAM S. EDWARDS:

WE REFER TO YOUR LETTER OF MAY 1, 1969, CONCERNING THE EXCESS ANNUAL LEAVE CREDITED TO MR. RICHARD H. JOHNSON, AN EMPLOYEE OF THE AGRICULTURAL RESEARCH SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE AT URBANA, ILLINOIS, DURING 1965, 1966, AND 1967.

MR. JOHNSON WAS ERRONEOUSLY PLACED IN THE 8-HOUR LEAVE EARNING CATEGORY RATHER THAN THE 6-HOUR LEAVE EARNING CATEGORY DURING THE PERIOD IN QUESTION. SINCE HE USED MOST OF THE ANNUAL LEAVE CREDITED TO HIM DURING THAT PERIOD, A RECOMPUTATION OF HIS LEAVE BALANCE UNDER THE PROPER EARNING CATEGORY RESULTED IN HIS HAVING TAKEN ANNUAL LEAVE IN EXCESS OF THAT WHICH SHOULD HAVE BEEN CREDITED TO HIM TO THE EXTENT OF 32 HOURS IN 1965, 29 HOURS IN 1966, AND 58 HOURS IN 1967. WHEN THE ERROR WAS DISCOVERED IN 1968, MR. JOHNSON CHOSE TO HAVE THE TOTAL EXCESS ANNUAL LEAVE TAKEN -- 119 HOURS -- DEDUCTED FROM HIS LEAVE EARNINGS FOR THAT YEAR RATHER THAN PAY THE GOVERNMENT THE VALUE OF THAT EXCESS ANNUAL LEAVE AT THE RATES HE HAD EARNED WHEN IT WAS TAKEN OR A TOTAL OF $439.14.

ON JANUARY 13, 1969, MR. JOHNSON REQUESTED THAT THE ANNUAL LEAVE IN QUESTION BE RESTORED TO HIM OR PAYMENT FOR THE 119 HOURS OF LEAVE DEDUCTED FROM HIS 1968 ANNUAL LEAVE CREDIT BE PAID HIM AT HIS RATE OF PAY IN EFFECT AT THAT TIME -- A TOTAL OF $502.92 -- UNDER THE PROVISIONS OF 5 U.S.C. 5584 AS ADDED BY THE ACT OF OCTOBER 21, 1968, PUBLIC LAW 90-616, 82 STAT. 1212. YOU SAY THAT MR. JOHNSON HAD NO LEAVE BALANCE AT THE BEGINNING OF THE 1969 LEAVE YEAR SO THE 119 HOURS OF ANNUAL LEAVE IN QUESTION COULD BE RESTORED TO HIM WITHOUT INCREASING HIS TOTAL LEAVE ABOVE THE 30-DAY CEILING IMPOSED BY 5 U.S.C. 6304 (A).

THERE IS NO AUTHORITY TO GRANT AN EMPLOYEE ANNUAL LEAVE IN EXCESS OF THE AMOUNT HE WILL HAVE TO HIS CREDIT AT THE END OF THE CURRENT LEAVE YEAR. THEREFORE, THE PAY WHICH WAS ALLOWED MR. JOHNSON FOR DAYS HE WAS PLACED ON ANNUAL LEAVE IN EXCESS OF THE TOTAL ANNUAL LEAVE WHICH SHOULD HAVE BEEN CREDITED TO HIM DURING THE CURRENT LEAVE YEAR WAS ERRONEOUSLY PAID HIM AND IS SUBJECT TO CONSIDERATION FOR WAIVER IF OTHERWISE APPROPRIATE UNDER 5 U.S.C. 5584 AND THE REGULATIONS ISSUED PURSUANT THERETO. 4 CFR 201-203. THIS IS SO REGARDLESS OF THE FACT THAT MR. JOHNSON ELECTED TO REIMBURSE THE GOVERNMENT FOR THE EXCESS LEAVE TAKEN BY DEDUCTION THEREOF FROM ANNUAL LEAVE ACCRUED IN 1968.

SINCE THE AMOUNT OF OVERPAYMENT TO BE CONSIDERED FOR WAIVER WOULD BE THE TOTAL OF THE AMOUNTS PAID MR. JOHNSON FOR DAYS HE WAS IMPROPERLY ALLOWED ANNUAL LEAVE, $439.14, WAIVER OF RECOVERY OF SUCH ERRONEOUS PAYMENTS WOULD BE FOR CONSIDERATION BY THE DEPARTMENT OF AGRICULTURE RATHER THAN OUR OFFICE. UPON APPROVAL OF WAIVER, MR. JOHNSON MAY BE RECREDITED WITH THE 119 HOURS OF LEAVE CHARGED AGAINST HIS 1968 LEAVE ACCRUAL TO EFFECT PAYMENT IN KIND FOR THE UNEARNED ANNUAL LEAVE GRANTED DURING LEAVE YEARS 1965 THROUGH 1967.

IF A WAIVER IS NOT APPROVED BY THE DEPARTMENT OF AGRICULTURE UNDER THE CRITERIA ESTABLISHED IN 5 U.S.C. 5584 AND 4 CFR 201, THE REDUCTION OF HIS LEAVE CREDITS IN 1968 MAY NOT BE WITHDRAWN. SEE B-153913, MAY 26, 1964.