B-171947.69, MAY 30, 1975

B-171947.69, MAY 30, 1975

CIVIL SERVICE COMMISSION APPROVED EMPLOYEE'S REQUEST FOR DISABILITY RETIREMENT ON JUNE 7, 1973. AFTER EXHAUSTION OF EMPLOYEE'S SICK LEAVE ON SEPTEMBER 25, 1974, AGENCY DENIED EMPLOYEE'S REQUEST FOR TERMINAL ANNUAL LEAVE FOR PERIOD SEPTEMBER 26 THROUGH OCTOBER 21, 1974. THIS DETERMINATION IS AFFIRMED SINCE IT ACCORDS WITH OUR DECISIONS WHICH HOLD THAT ANNUAL LEAVE WHICH MAY BE INCLUDED IN A LUMP-SUM PAYMENT, CANNOT BE GRANTED AS ANNUAL TERMINAL LEAVE IN ABSENCE OF A GOVERNMENT NEED OR INTEREST THAT SUCH LEAVE BE GRANTED.

LILLIAN M. WHEELER - DISABILITY RETIREMENT - TERMINAL ANNUAL LEAVE:

THIS ACTION IS A RECONSIDERATION OF AN AGENCY DENIAL OF AN EMPLOYEE'S REQUEST TO REMAIN ON THE ROLLS IN ANNUAL LEAVE STATUS DURING THE PERIOD SEPTEMBER 26 THROUGH OCTOBER 21, 1974, IN ORDER TO QUALIFY FOR $1,000 ADDITIONAL LIFE INSURANCE, PRIOR TO SEPARATION FOR DISABILITY WHICH THE CIVIL SERVICE COMMISSION HAD APPROVED ON JUNE 7, 1973.

THE RECORD BEFORE US SHOWS THAT MISS LILLIAN M. WHEELER, AS AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, WAS ON SICK LEAVE UNTIL SEPTEMBER 25, 1974, AFTER APPROVAL OF HER REQUEST FOR DISABILITY SEPARATION. INITIALLY A SUPERVISOR IN HER AGENCY APPROVED ANNUAL LEAVE FOR THE PERIOD SEPTEMBER 26 THROUGH OCTOBER 21, 1974, UPON EXHAUSTION OF HER SICK LEAVE. HOWEVER, THE AGENCY ON SEPTEMBER 25, 1974, ADVISED MISS WHEELER THAT HER REQUEST FOR ANNUAL LEAVE COULD NOT BE GRANTED SINCE, INCIDENT TO THE PAY ASPECTS OF LUMP-SUM PAYMENTS, IT WOULD BE ERROR TO GRANT ANNUAL TERMINAL LEAVE WHERE SUCH LEAVE COULD BE INCLUDED IN A LUMP-SUM PAYMENT, UNLESS THE NEEDS AND INTEREST OF THE GOVERNMENT REQUIRED HER RETENTION IN AN ANNUAL LEAVE STATUS. THE AGENCY DETERMINED THAT THE EXTENSION OF ANNUAL LEAVE IN MISS WHEELER'S CASE WOULD NOT SERVE THE NEED OF THE GOVERNMENT, BUT ON THE CONTRARY WOULD BE ENTIRELY FOR PURPOSES OF HER PERSONAL BENEFIT. ACCORDINGLY, HER REQUEST WAS NOT GRANTED AND APPARENTLY HER ANNUITY COMMENCED SEPTEMBER 26, 1974, THE DAY AFTER HER PAY STATUS TERMINATED AND HER ANNUAL LEAVE WAS PAID IN A LUMP-SUM ANNUAL LEAVE PAYMENT.

THE AGENCY ACTION IS CONSISTENT WITH OUR DECISIONS ON GRANTING TERMINAL ANNUAL LEAVE. THE GENERAL RULE AS TO ADMINISTRATIVE AUTHORITY TO GRANT TERMINAL ANNUAL LEAVE IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE, WHEN IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED, IS SET FORTH IN 24 COMP. GEN. 511 (1945). THE SYLLABUS OF THAT DECISION READS IN PERTINENT PART AS FOLLOWS:

"THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, RESPECTING LUMP-SUM PAYMENTS FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE UPON SEPARATION FROM SERVICE, ARE MANDATORY, AND TERMINAL ANNUAL OR VACATION LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION FROM SERVICE IN ANY CASE WHERE IT IS KNOWN IN ADVANCE THAT AN EMPLOYEE IS TO BE SEPARATED FROM SERVICE."

AS POINTED OUT IN 34 COMP. GEN. 61 (1954) CERTAIN EXCEPTIONS TO THE ABOVE RULE, BASED UPON OVERRIDING STATUTORY PROVISIONS AND STATUTORY REGULATIONS HAVE BEEN RECOGNIZED. SEE 25 COMP. GEN. 82 (1945); 26 ID. 331 (1946); AND 33 COMP. GEN. 85 (1953). 34 COMP. GEN. 61 IN PERTINENT PART AT PAGE 62 READS AS FOLLOWS:

"ALSO, IN DECISION OF MAY 8, 1952, B-108880, 31 COMP. GEN. 581, *** THERE WAS CONSIDERED THE QUESTION AS TO THE ADMINISTRATIVE AUTHORITY TO PLACE AN EMPLOYEE IN AN ANNUAL LEAVE STATUS EVEN THOUGH SUCH ACTION RESULTS IN TERMINAL ANNUAL LEAVE, WHERE IT IS DETERMINED TO BE DESIRABLE FROM AN ADMINISTRATIVE STANDPOINT. WHILE THE AFFIRMATIVE ANSWER GIVEN TO THAT QUESTION WAS COUCHED IN RELATIVELY BROAD TERMS - GROUNDED PRIMARILY ON THE ADMINISTRATIVE DISCRETION TO GRANT ANNUAL LEAVE - IT IS NOT TO BE UNDERSTOOD AS RECOGNIZING AN UNLIMITED DISCRETION IN AN AGENCY WITH RESPECT TO THE GRANTING OF TERMINAL ANNUAL LEAVE CONTRARY TO THE GENERAL RULE STATED IN 24 COMP. GEN. 511. RATHER, SUCH ANSWER IS TO BE VIEWED IN THE LIGHT OF THE QUESTION THERE PRESENTED FOR DECISION, WHICH QUESTION WAS DIRECTED TO THE MATTER OF ADMINISTRATIVE AUTHORITY TO PLACE AN EMPLOYEE ON TERMINAL LEAVE WHERE THE EXIGENCIES OF THE SERVICE SO REQUIRE, ***."

THE CIVIL SERVICE COMMISSION IN ITS FEDERAL PERSONNEL MANUAL, FPM SUPPLEMENT 990-2, BOOK 630, SUBCHAPTER S3-4B(2), (1969 ED., REVISED JULY 1969), STATES:

"(2) ANNUAL LEAVE BEFORE SEPARATION. WHEN, AT THE TIME OF SEPARATION, THE EMPLOYEE HAS UNUSED ANNUAL LEAVE TO HIS CREDIT FOR WHICH HE CANNOT BE PAID IN A LUMP SUM, HIS AGENCY, IN ITS DISCRETION, MAY GRANT HIM THE EXCESS ANNUAL LEAVE IN KIND PRIOR TO HIS SEPARATION (33 COMP. GEN. 85)."

SINCE THE AGENCY HAS DISCRETION IN THE MATTER AND ITS ACTION IS WITHIN THE AUTHORITIES DISCUSSED ABOVE, THERE IS NO JUSTIFIABLE BASIS TO MODIFY SUCH ACTION AND ACCORDINGLY IT IS AFFIRMED.