B-171900, MAR 26, 1971

B-171900: Mar 26, 1971

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ANNUAL LEAVE - FORFEITURE DECISION THAT THERE IS NO LEGAL BASIS UPON WHICH ABRAHAM EPSTEIN. MAY NOW RECEIVE PAYMENT OR BE CREDITED WITH 176 HOURS OF ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW. ALTHOUGH CLAIMANT WAS NOT CREDITED WITH A PROPER SERVICE COMPUTATION DATE THROUGH ADMINISTRATIVE ERROR. THE CORPS OF ENGINEERS IS PREVENTED BY 5 U.S.C. 6304(A) FROM GIVING HIM CREDIT FOR MORE THAN 240 HOURS OF ANNUAL LEAVE AT THE BEGINNING OF ANY LEAVE YEAR. THUS CLAIMANT WAS REQUIRED TO FORFEIT 176 HOURS OF ANNUAL LEAVE THROUGH OPERATION OF LAW. EPSTEIN'S SERVICE COMPUTATION DATE (SCD) WAS SHOWN AS FEBRUARY 5. A CORRECTIVE STANDARD FORM 50 WAS ISSUED SHOWING HIS SCD AS APRIL 20. EPSTEIN HAD A MAXIMUM CARRYOVER OF 240 HOURS OF ANNUAL LEAVE WHICH WAS STILL INTACT AT THE TIME OF THE CORRECTION.

B-171900, MAR 26, 1971

ANNUAL LEAVE - FORFEITURE DECISION THAT THERE IS NO LEGAL BASIS UPON WHICH ABRAHAM EPSTEIN, AN EMPLOYEE OF THE CORPS OF ENGINEERS, MAY NOW RECEIVE PAYMENT OR BE CREDITED WITH 176 HOURS OF ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW. ALTHOUGH CLAIMANT WAS NOT CREDITED WITH A PROPER SERVICE COMPUTATION DATE THROUGH ADMINISTRATIVE ERROR, THE CORPS OF ENGINEERS IS PREVENTED BY 5 U.S.C. 6304(A) FROM GIVING HIM CREDIT FOR MORE THAN 240 HOURS OF ANNUAL LEAVE AT THE BEGINNING OF ANY LEAVE YEAR. THUS CLAIMANT WAS REQUIRED TO FORFEIT 176 HOURS OF ANNUAL LEAVE THROUGH OPERATION OF LAW.

TO MR. JOHN H. BRANSBY:

THIS REFERS TO YOUR LETTER OF FEBRUARY 9, 1971, REFERENCE NABCT-F, WITH ENCLOSURES, CONCERNING THE ANNUAL LEAVE RECORD OF MR. ABRAHAM EPSTEIN, AN EMPLOYEE OF THE BALTIMORE DISTRICT, CORPS OF ENGINEERS.

THE INFORMATION FURNISHED SHOWS THAT ORIGINALLY MR. EPSTEIN'S SERVICE COMPUTATION DATE (SCD) WAS SHOWN AS FEBRUARY 5, 1956. HOWEVER, ON JULY 9, 1970, A CORRECTIVE STANDARD FORM 50 WAS ISSUED SHOWING HIS SCD AS APRIL 20, 1951. THE DIFFERENCE IN SERVICE TIME APPARENTLY RESULTED FROM HIS NOT HAVING PREVIOUSLY BEEN CREDITED FOR MILITARY SERVICE PERFORMED DURING THE PERIOD JANUARY 25, 1941-NOVEMBER 17, 1945. THE EARNINGS AND LEAVE STATEMENT FOR THE PAY PERIOD ENDING JULY 4, 1970, SHOWS MR. EPSTEIN'S LEAVE CATEGORY AS 6, AND THAT HE HAD ACCRUED 78 HOURS ANNUAL LEAVE TO DATE. THE EARNINGS AND LEAVE STATEMENT FOR THE NEXT PAY PERIOD ENDING JULY 18, 1970, SHOWS THAT HIS SCD AND LEAVE CATEGORY HAD BEEN CORRECTED AS OF APRIL 20, 1951, AND HIS LEAVE CATEGORY CHANGED FROM 6 TO 8 HOURS PER PAY PERIOD WITH AN ACCRUAL OF 112 HOURS ANNUAL LEAVE TO JULY 18, 1970. THE INFORMATION FURNISHED ALSO SHOWS THAT AT THE END OF THE 1969 LEAVE YEAR MR. EPSTEIN HAD A MAXIMUM CARRYOVER OF 240 HOURS OF ANNUAL LEAVE WHICH WAS STILL INTACT AT THE TIME OF THE CORRECTION. MR. EPSTEIN IS OF THE OPINION THAT IN VIEW OF RETROACTIVE ADJUSTMENT OF HIS LEAVE ACCOUNT HE IS ENTITLED TO BE CREDITED WITH AN ADDITIONAL 176 HOURS OF ANNUAL LEAVE (APPARENTLY ADDITIONAL LEAVE EARNED BUT NOT USED THROUGH THE LEAVE YEAR 1969).

WITH RESPECT TO THE ADJUSTMENT OF MR. EPSTEIN'S ANNUAL LEAVE ACCOUNT, SECTION 6304(A) OF TITLE 5, U.S.C. PROVIDES AS FOLLOWS:

"(A) 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."

IN THE RECONSTRUCTION OF MR. EPSTEIN'S LEAVE ACCOUNT FOLLOWING THE CORRECTION OF HIS LEAVE RECORDS, YOUR OFFICE WAS PROHIBITED BY THE STATUTORY PROVISION QUOTED ABOVE FROM GIVING HIM CREDIT FOR MORE THAN 240 HOURS OF ANNUAL LEAVE AT THE BEGINNING OF ANY LEAVE YEAR. THUS, MR. EPSTEIN WAS REQUIRED TO FORFEIT THE ANNUAL LEAVE IN EXCESS OF SUCH LEAVE CEILING. OUR OFFICE CONSISTENTLY HAS HELD THAT THE ABOVE-QUOTED PROVISION OF LAW REQUIRES THE FORFEITURE OF ALL ANNUAL LEAVE AT THE CLOSE OF A LEAVE YEAR WHICH IS IN EXCESS OF THE MAXIMUM PERMITTED BY LAW REGARDLESS OF THE REASON FOR THE EMPLOYEE'S FAILURE TO USE SUCH EXCESS LEAVE. 32 COMP. GEN. 162 (1952); 36 ID. 596 (1957). THERE IS NO LEGAL BASIS UPON WHICH MR. EPSTEIN MAY NOW RECEIVE PAYMENT FOR OR BE CREDITED WITH THE 176 HOURS OF ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW.