B-168921, AUG 28, 1972

B-168921, AUG 28, 1972

CIVILIAN EMPLOYEE - RECREDIT OF LEAVE - LIMITATIONS DECISION REGARDING A REQUEST TO RECREDIT CERTAIN ANNUAL LEAVE TO THE ACCOUNT OF JOSEPH S. GERACE, AN EMPLOYEE OF THE PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PA. GAO HAS CONSISTENTLY HELD IN BACK PAY CASES THAT WHEN AN EMPLOYEE IS RESTORED TO DUTY BECAUSE OF AN ERRONEOUS REMOVAL FROM THE SERVICE ANY PAYMENT PREVIOUSLY MADE FOR ANNUAL LEAVE MUST BE COLLECTED BACK AT THAT TIME AND THE LEAVE REPRESENTED THEREBY RESTORED AS OF THE DATE OF SUCH REMOVAL. IN RESTORING THE 199 HOURS OF LEAVE AS OF JULY 19, 1968, AND THEN ADDING THE AMOUNT OF LEAVE ACCRUING EACH YEAR OF THE REMOVAL, THERE MUST BE APPLIED THE PROVISIONS OF 5 U.S.C. 6304, WHICH PRECLUDE MR. GERACE FROM CARRYING OVER MORE THAN 240 HOURS (30 DAYS) PER YEAR. THIS IS SO EVEN THOUGH MR. GERACE HAS HAD NO OPPORTUNITY TO USE THE FORFEITED LEAVE. SEE ZEIGLER V. UNITED STATES, 155 CT. CL. 353 (1961).

TO MR. EDWIN J. MCDERMOTT:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 7 AND 13, 1972, WITH ENCLOSURES, REQUESTING THIS OFFICE TO AUTHORIZE A RECREDIT OF CERTAIN ANNUAL LEAVE TO THE ACCOUNT OF MR. JOSEPH S. GERACE, AN EMPLOYEE OF THE PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA, IN VIEW OF THE CIRCUMSTANCES HEREINAFTER DESCRIBED.

THE RECORD INDICATES THAT ON JULY 19, 1968, MR. GERACE WAS DISMISSED FROM HIS POSITION WITH THE PHILADELPHIA NAVAL SHIPYARD DUE TO ALLEGED MISCONDUCT. INCIDENT THERETO HE WAS PAID $728.34 AS A LUMP-SUM PAYMENT FOR THE 199 HOURS OF ANNUAL LEAVE THEN TO HIS CREDIT. THIS DISMISSAL WAS THE SUBJECT OF SUIT IN THE UNITED STATES COURT OF CLAIMS, GERACE V. UNITED STATES, CT. CL. NO. 18-70, IN WHICH THE COURT RULED THAT MR. GERACE'S DISMISSAL WAS WRONGFUL AND THAT HE WAS ENTITLED TO COMPENSATION FOR THE PERIOD OF THE REMOVAL.

PURSUANT TO THE ABOVE DECISION BY COURT ORDER DATED APRIL 24, 1972, AN AWARD OF COMPENSATION WAS MADE TO MR. GERACE IN THE FOLLOWING MANNER:

"IT IS FURTHER ORDERED THAT JUDGMENT BE AND THE SAME IS ENTERED FOR PLAINTIFF IN THE AMOUNT OF $22,487.60 AS BACK SALARY, LESS $8,000 PAID ON REINSTATEMENT OF PLAINTIFF, LESS $728.34 REPRESENTING THE LUMP-SUM PAYMENT OF ACCRUED ANNUAL LEAVE UPON SEPARATION, LESS $1,516.38 REPRESENTING CREDITS TO PLAINTIFF'S ACCOUNT IN CIVIL SERVICE RETIREMENT AND DISABILITY FUND, LESS $207.61 REPRESENTING CREDIT TO PLAINTIFF'S GROUP LIFE INSURANCE FUND, AND LESS $1,493.57 FEDERAL INCOME TAXES WITHHELD; THE BALANCE OF $10,541.70 TO BE PAID TO PLAINTIFF."

IT APPARENTLY IS YOUR POSITION THAT MR. GERACE IS ENTITLED TO CREDIT OF 69 DAYS (552 HOURS) OF ANNUAL LEAVE WHICH REPRESENTS LEAVE ACCRUED DURING THE PERIOD OF HIS REMOVAL FROM THE SERVICE PLUS LEAVE ACCRUED AFTER HIS RESTORATION TO DUTY ON MARCH 29, 1971, THROUGH JUNE 10, 1972, LESS LEAVE USED DURING THE LATTER PERIOD. ALSO, THAT SINCE COLLECTION BACK OF THE LUMP-SUM PAYMENT MADE ON DATE OF DISMISSAL WAS NOT EFFECTED UNTIL MAY 10, 1972, THE 199 HOURS REPRESENTED THEREBY SHOULD HAVE BEEN RECREDITED TO HIM AT THAT TIME.

WE HAVE CONSISTENTLY HELD IN BACK PAY CASES THAT WHEN AN EMPLOYEE IS RESTORED TO DUTY BECAUSE OF AN ERRONEOUS REMOVAL FROM THE SERVICE ANY PAYMENT PREVIOUSLY MADE FOR ANNUAL LEAVE MUST BE COLLECTED BACK AT THAT TIME AND THE LEAVE REPRESENTED THEREBY RESTORED AS OF THE DATE OF SUCH REMOVAL. IN OTHER WORDS THE SEPARATION IS TREATED AS THOUGH IT NEVER OCCURRED AND THE EMPLOYEE'S LEAVE RECONSTRUCTED ON THAT BASIS. FROM THE ENCLOSURES SUBMITTED WITH YOUR LETTER IT APPEARS THAT THIS WAS THE METHOD USED BY THE PHILADELPHIA NAVY YARD TO COMPUTE MR. GERACE'S LEAVE. ALTHOUGH THE COLLECTION OF THE LUMP-SUM PAYMENT AND THE COMPUTATION OF THIS LEAVE SHOULD HAVE BEEN MADE ON THE DATE OF HIS RESTORATION THE RESULT IS THE SAME AS THE LATER COMPUTATION IN JUNE 1962. WE POINT OUT THAT IN RESTORING THE 199 HOURS OF LEAVE AS OF JULY 19, 1968, AND THEN ADDING THE AMOUNT OF LEAVE ACCRUING EACH YEAR OF THE REMOVAL, THERE MUST BE APPLIED THE PROVISIONS OF 5 U.S.C. 6304, WHICH PRECLUDE MR. GERACE FROM CARRYING OVER MORE THAN 240 HOURS (30 DAYS) PER YEAR. THIS IS SO EVEN THOUGH MR. GERACE HAS HAD NO OPPORTUNITY TO USE THE FORFEITED LEAVE. SEE ZEIGLER V. UNITED STATES, 155 CT. CL. 353 (1961).

ACCORDINGLY, YOUR REQUEST FOR RECREDITING OF HOURS OF ANNUAL LEAVE TO MR. GERACE WHICH ARE DEEMED LOST BY OPERATION OF LAW MUST BE DENIED.