B-167592, AUG. 12, 1969

B-167592: Aug 12, 1969

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CIVIL PAY - LEAVE - MISSING STATUS DECISION TO SECRETARY OF AGRICULTURE ADVISING THAT EMPLOYEE WHO WAS IN MISSING STATUS IN VIETNAM AND WHO SUBSEQUENTLY DIED MAY HAVE LUMP SUM LEAVE PAYMENT MADE UNDER 5 U.S.C. 6304. THERE IS NOTHING IN THE MISSING PERSONS STATUTORY PROVISIONS WHICH PERMITS ACCUMULATION OF ANNUAL LEAVE IN EXCESS OF STATUTORY CEILING. THE SPECIFIC QUESTIONS PRESENTED ARE RESTATED AS FOLLOWS: "1. SINCE THIS LEAVE WAS NOT AVAILABLE TO HIM FOR USE NOR DID HE HAVE AN OPPORTUNITY TO UTILIZE THE ACCUMULATED LEAVE IN THE LEAVE YEAR 1968. IS IT NECESSARY TO REDUCE HIS LEAVE TO THE 45-DAY CARRYOVER LIMITATION ESTABLISHED BY SECTION 5562 OF THE MISSING PERSONS ACT? 1968) WAS 342 HOURS.

B-167592, AUG. 12, 1969

CIVIL PAY - LEAVE - MISSING STATUS DECISION TO SECRETARY OF AGRICULTURE ADVISING THAT EMPLOYEE WHO WAS IN MISSING STATUS IN VIETNAM AND WHO SUBSEQUENTLY DIED MAY HAVE LUMP SUM LEAVE PAYMENT MADE UNDER 5 U.S.C. 6304. THERE IS NOTHING IN THE MISSING PERSONS STATUTORY PROVISIONS WHICH PERMITS ACCUMULATION OF ANNUAL LEAVE IN EXCESS OF STATUTORY CEILING.

TO MR. SECRETARY:

WE REFER TO LETTER OF JULY 29, 1969, FROM THE DEPUTY ASSISTANT ADMINISTRATOR, FEDERAL EXTENSION SERVICE, WHEREIN HE REQUESTS A DECISION INVOLVING THE LEAVE ACCUMULATION RIGHTS OF AN EMPLOYEE WHO ENTERS A MISSING STATUS WHILE STATIONED IN VIETNAM.

THE SPECIFIC QUESTIONS PRESENTED ARE RESTATED AS FOLLOWS:

"1. MR. RAGSDALE'S UNADJUSTED ACCUMULATED ANNUAL LEAVE NOW EXCEEDS 45 DAYS. SINCE THIS LEAVE WAS NOT AVAILABLE TO HIM FOR USE NOR DID HE HAVE AN OPPORTUNITY TO UTILIZE THE ACCUMULATED LEAVE IN THE LEAVE YEAR 1968, IS IT NECESSARY TO REDUCE HIS LEAVE TO THE 45-DAY CARRYOVER LIMITATION ESTABLISHED BY SECTION 5562 OF THE MISSING PERSONS ACT? THE LEAVE BALANCE AT TIME OF ENTERING MISSING STATUS (FEBRUARY 10, 1968) WAS 342 HOURS. APPEARS THAT WE WOULD HAVE A MORAL OBLIGATION TO PROVIDE MR. RAGSDALE WITH ALL ACCUMULATED LEAVE RATHER THAN REDUCE IT TO 45 DAYS AT THE END OF EACH LEAVE YEAR.

"2. IS THE ACCOUNTING ON A COST-ACCRUAL BASIS TO ASSURE THAT NECESSARY LEAVE LIABILITY IS ESTABLISHED AT THE END OF THE FISCAL YEAR?

"3. IF QUESTION NO. 1 IS ANSWERED IN THE AFFIRMATIVE, IS THE LUMP SUM PAYMENT IN THE EVENT OF NO RETURN TO DUTY LIMITED TO 45 DAYS?

WE HAVE BEEN ADVISED INFORMALLY THAT SINCE THE DATE OF THE REQUEST FOR DECISION EVIDENCE HAS BEEN RECEIVED IN THE DEPARTMENT OF THE DEATH OF THE EMPLOYEE SO THAT THE MATTER CURRENTLY INVOLVED IS THE AMOUNT OF THE PAYMENT FOR ANNUAL LEAVE TO BE MADE IN ACCORDANCE WITH 5 U.S.C. 5581 (2) (F) AND 5582.

5 U.S.C. 5562 IS IN PART AS FOLLOWS:

"/A) AN EMPLOYEE IN A MISSING STATUS IS ENTITLED TO RECEIVE OR HAVE CREDITED TO HIS ACCOUNT, FOR THE PERIOD HE IS IN THAT STATUS, THE SAME PAY AND ALLOWANCES TO WHICH HE WAS ENTITLED AT THE BEGINNING OF THAT PERIOD OR MAY BECOME ENTITLED THEREAFTER.

"/B) ENTITLEMENT TO PAY AND ALLOWANCES UNDER SUBSECTION (A) OF THIS SECTION ENDS ON THE DATE OF---

"/1) RECEIPT BY THE HEAD OF THE AGENCY CONCERNED OF EVIDENCE THAT THE EMPLOYEE IS DEAD; * * *"

AS POINTED OUT IN THE SUBMISSION, THE LEAVE ACCUMULATION CEILING APPLICABLE TO THE DECEASED EMPLOYEE UNDER 5 U.S.C. 6304 IS 45 DAYS. THERE IS NOTHING IN THE STATUTORY LEAVE PROVISIONS CONTAINED IN 5 U.S.C. SECTIONS 6301-6311 AUTHORIZING THE ACCUMULATION OF ANNUAL LEAVE IN EXCESS OF THE STATUTORY CEILING BY AN EMPLOYEE WHO IS ENTITLED TO CONTINUATION OF PAY AND ALLOWANCES WHILE IN A MISSING STATUS UNDER 5 U.S.C. 5562. MOREOVER, WE FIND NOTHING IN THE MISSING PERSONS STATUTORY PROVISIONS AUTHORIZING THE GRANTING OF ANY GREATER AMOUNT OF PAY OR ALLOWANCES TO AN EMPLOYEE IN A MISSING STATUS THAN WOULD HAVE BEEN CREDITABLE TO HIM HAD HE NOT BEEN IN A MISSING STATUS. ACCORDINGLY, EFFECTIVE AT THE BEGINNING OF THE FIRST FULL BIWEEKLY PAY PERIOD COMMENCING IN JANUARY 1969, THE EMPLOYEE'S ACCUMULATION BALANCE SHOULD HAVE BEEN FIXED AT 360 HOURS. CF. 36 COMP. GEN. 596. A LUMP SUM PAYMENT FOR THE AMOUNT OF ACCUMULATED ANNUAL LEAVE (360 HOURS) PLUS PAYMENT FOR THE ANNUAL LEAVE WHICH ACCRUED DURING THE 1969 LEAVE YEAR UP TO DATE OF RECEIPT BY THE HEAD OF THE DEPARTMENT OF EVIDENCE OF THE DEATH OF THE EMPLOYEE SHOULD BE PAID IN ACCORDANCE WITH 5 U.S.C. 5581 (2) (F) AND 5582, CITED ABOVE.

THE FIRST AND THIRD QUESTIONS SUBMITTED ARE ANSWERED ACCORDINGLY. HAVE RECEIVED INFORMAL ADVICE THAT NO ANSWER IS REQUIRED TO THE SECOND QUESTION AND THAT THE MATTER IS BEING RESOLVED THROUGH DISCUSSIONS WITH OUR SITE AUDITORS.