B-171092, DEC. 1, 1970

B-171092, DEC. 1, 1970

ANNUAL LEAVE - ADMINISTRATIVE ERROR DENIAL OF REQUEST TO ADJUST LEAVE BALANCE TO THE LEVEL EMPLOYEE MAINTAINS IT WOULD HAVE REACHED HAD ADMINISTRATIVE ERROR NOT BEEN MADE. WHERE AN EMPLOYEE IS PLACED IN THE 8-HOUR LEAVE-EARNING CATEGORY RATHER THAN HIS PROPER 6-HOUR ONE AND AS A RESULT USES LEAVE THAT HE THEN BELIEVES TO BE IN THE "USE OR LOSE" CATEGORY, HE IS NOT ENTITLED TO BE RESTORED TO POSITION HE CLAIMS HE WOULD HAVE BEEN IN HAD HE NOT BEEN REQUIRED TO USE THE LEAVE. WHILE EMPLOYEE'S LEAVE BALANCE MAY NOT BE AT THE LEVEL HE WOULD HAVE PREFERRED TO MAINTAIN, IT REMAINS THAT HE RECEIVED PAY FOR THE HOURS HE USED.

TO MAJOR C. D. PREETORIUS:

THIS IS IN REPLY TO YOUR LETTER OF OCTOBER 1, 1970, REFERENCE DSASC MF, MAKING INQUIRY AS TO WHETHER ADJUSTMENT MAY BE MADE IN THE LEAVE BALANCE OF MR. ROBERT J. MUNCIE, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY (DSA), AS REQUESTED IN HIS LETTER OF SEPTEMBER 23, 1970.

DUE TO AN ERROR BY DSA CIVILIAN PERSONNEL OFFICE IN DETERMINING THE EMPLOYEE'S CORRECT SERVICE COMPUTATION DATE, MR. MUNCIE WAS PLACED IN THE 8-HOUR LEAVE-EARNING CATEGORY RATHER THAN HIS PROPER 6-HOUR CATEGORY. WAS THUS OVERCREDITED LEAVE FROM JULY 2, 1967, UNTIL THE ERROR WAS DISCOVERED ON MAY 5, 1970. MR. MUNCIE STATES THAT IN 1968 AND 1969 HE USED LEAVE WHICH ON THE BASIS OF THE ERRONEOUS 8-HOUR COMPUTATION EXCEEDED THE 30-DAY CEILING ON ANNUAL LEAVE IMPOSED BY 5 U.S.C. 6304(A). MAINTAINS THAT HE WOULD NOT HAVE TAKEN THIS LEAVE HAD HIS BALANCE BEEN PROPERLY COMPUTED, BECAUSE IT WOULD NOT HAVE BEEN IN THE "USE OR LOSE" CATEGORY.

THE LETTER FURNISHED BY YOUR ACCOUNTING AND FINANCE OFFICE INDICATES THAT RECOMPUTATION OF MR. MUNCIE'S LEAVE BALANCE UNDER THE PROPER LEAVE CATEGORY LEFT HIM WITH A TOTAL OF 188 HOURS TO HIS CREDIT AT THE END OF THE 1969 LEAVE YEAR. MR. MUNCIE CONTENDS THAT AN ADJUSTMENT IN HIS LEAVE BALANCE OUGHT TO BE MADE INASMUCH AS THE ADMINISTRATIVE ERROR RESULTED IN HIS TAKING LEAVE WHICH HE SAYS HE OTHERWISE WOULD NOT HAVE TAKEN AND WHICH UPON RECONSTRUCTION OF HIS LEAVE BALANCE RESULTED IN A BALANCE BELOW THE 240 HOURS THAT HE APPARENTLY WOULD LIKE TO HAVE MAINTAINED. HE STATES THAT SINCE THE RECOMPUTATION OF HIS LEAVE BALANCE ENTAILED REDUCING HIS YEARLY ACCRUAL OF LEAVE BY 25 PERCENT (I.E., 2 HOURS FEWER PER PAY PERIOD), THE LEAVE WHICH HE USED SHOULD BE LIKEWISE REDUCED BY 25 PERCENT FOR PURPOSES OF THE RECONSTRUCTION OF HIS BALANCE.

WHEN IT IS DISCOVERED THAT AN EMPLOYEE HAS HAD LEAVE ERRONEOUSLY CREDITED TO HIS ACCOUNT, HIS LEAVE ACCOUNT IS RECONSTRUCTED FOR EACH YEAR INVOLVED, SUBTRACTING THE TOTAL LEAVE USED IN EACH OF THE YEARS TO ARRIVE AT A PROPER CURRENT BALANCE. THE RECORD INDICATES THAT THIS WAS PROPERLY DONE. THERE IS NO AUTHORITY FOR SUBTRACTING ONLY 75 PERCENT OF LEAVE ACTUALLY TAKEN TO ARRIVE AT A BALANCE AS THIS WOULD BE TANTAMOUNT TO PLACING THE EMPLOYEE IN A PAY STATUS FOR HOURS NOT WORKED AND USED AS ANNUAL LEAVE WITHOUT CHARGE TO AVAILABLE LEAVE CREDITS.

IN B-169297, NOVEMBER 9, 1970, AN EMPLOYEE HAD LEAVE ERRONEOUSLY CREDITED TO HIS ACCOUNT AND USED LEAVE IN EXCESS OF THE AMOUNT PROPERLY CREDITABLE TO HIM, LEAVING HIM A NEGATIVE BALANCE. WE HELD IN THAT CASE THAT THERE HAD BEEN AN OVERPAYMENT OF PAY, REPAYMENT OF WHICH WAS SUBJECT TO THE WAIVER PROVISIONS OF PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, 82 STAT. 1212, 5 U.S.C. 5584. THERE IS, HOWEVER, NO AUTHORITY FOR WAIVING CORRECTION OF ADMINISTRATIVE ERRORS IN CONNECTION WITH OVERACCUMULATIONS OF LEAVE BALANCES. WE HELD IN THAT SAME CASE, WITH RESPECT TO THE SITUATION WHERE RECOMPUTATION LEFT A POSITIVE BALANCE AND THE EMPLOYEE HAD NOT USED ALL THE LEAVE TO WHICH HE WAS IN FACT ENTITLED, THAT THE BALANCE AS DETERMINED ON THE BASIS OF HOURS OF LEAVE ACTUALLY TAKEN WAS CORRECT.

NOTWITHSTANDING THAT MR. MUNCIE'S RECOMPUTED LEAVE BALANCE AT THE END OF THE 1969 YEAR MAY HAVE BEEN 52 HOURS SHORT OF THAT WHICH HE WOULD HAVE PREFERRED TO HAVE MAINTAINED, IT REMAINS THAT HE RECEIVED PAY FOR THOSE 52 HOURS OF LEAVE USED. CONSEQUENTLY, WE FIND NO FUNDAMENTAL INEQUITY IN ESTABLISHING MR. MUNCIE'S LEAVE BALANCE AS PROPERLY RECONSTRUCTED BY THE DEFENSE SUPPLY AGENCY.

ACCORDINGLY, MR. MUNCIE'S LEAVE BALANCE MAY NOT BE ADJUSTED AS PER HIS CLAIM. THE PAPERS WHICH YOU HAVE FORWARDED ARE HEREWITH RETURNED.