B-172452, JUN 2, 1971

B-172452, JUN 2, 1971

CIVILIAN EMPLOYEE - RETIREMENT - FORFEITURE OF LEAVE DECISION PERMITTING PAYMENT FOR 193 HOURS ANNUAL LEAVE FOUND DUE MR. HARRY J. PILARSKI, EMPLOYEE OF THE VETERANS ADMINISTRATION, ORIGINALLY FORFEITED AT THE END OF 1969 LEAVE YEAR. CLAIMANT ADVISED THE VA THAT HIS CONTEMPLATED RETIREMENT DATE WAS ESTIMATED AT MAY 27, 1970, EFFECTIVE UPON EXPIRATION OF ANNUAL LEAVE, SICK LEAVE, AND HOLIDAYS. ON MARCH 10, 1969, HE WAS PLACED ON EXTENDED SICK LEAVE. AFTER THE CLOSE OF 1969 LEAVE YEAR, MR. PILARSKI DISCOVERED THAN AN ANNUAL LEAVE FORFEITURE OCCURED BECAUSE OF FAILURE OF SUPERVISORY OFFICIALS TO ADVISE HIM TO TAKE ANNUAL LEAVE. IN VIEW OF THE APPARENT INTENT THAT MR. PILARSKI BE GRANTED THE LEAVE IN QUESTION AND THE EXPRESSED POLICY OF THE VA THAT ANNUAL LEAVE SUBJECT TO FORFEITURE BE TAKEN IN ADVANCE OF RETIREMENT, MR. PILARSKI'S CLAIM SHOULD BE ALLOWED.

TO MR. JOHN D. SHYTLE:

THIS WILL REFER TO YOUR LETTER OF NOVEMBER 3, 1970 (REFERENCE 047C1:9 3), SUBMITTING A CLAIM FROM MR. HARRY J. PILARSKI FOR PAYMENT FOR 193 HOURS OF ANNUAL LEAVE FORFEITED AT THE END OF THE 1969 LEAVE YEAR, AN ADDITIONAL 36 HOURS OF LEAVE ACCRUALS THEREON AND ONE HOLIDAY. BY A SETTLEMENT OF OUR CLAIMS DIVISION DATED NOVEMBER 17, 1970, MR. PILARSKI'S CLAIM WAS DISALLOWED. HE HAS APPEALED THAT SETTLEMENT AND WE HAVE, IN CONSEQUENCE, REVIEWED THE RECORD TO DETERMINE WHETHER GROUNDS EXIST FOR ALLOWANCE OF THE CLAIM.

THE RECORD SHOWS THAT UNDER DATE OF MARCH 6, 1969, MR. PILARSKI WAS ADVISED BY A LETTER FROM THE RESPONSIBLE REGIONAL OFFICE OF THE VETERANS ADMINISTRATION THAT HIS CONTEMPLATED RETIREMENT DATE WAS ESTIMATED AT MAY 27, 1970, EFFECTIVE UPON EXPIRATION OF ANNUAL LEAVE, SICK LEAVE, AND HOLIDAYS. ON MARCH 10, 1969, MR. PILARSKI WAS PLACED ON EXTENDED SICK LEAVE, IN WHICH STATUS HE WAS CARRIED FOR THE REMAINDER OF THE TIME HE WAS AN EMPLOYEE OF THE AGENCY. IN FEBRUARY 1970, AFTER THE CLOSE OF THE 1969 LEAVE YEAR, MR. PILARSKI WAS ADVISED BY THE VETERANS ADMINISTRATION OF THE DETERMINATION OF THE EFFECTIVE DATE OF HIS RETIREMENT AS APRIL 18, 1970. AT THIS TIME HE DISCOVERED THAT AN ANNUAL LEAVE FORFEITURE OF 193 HOURS OCCURRED AT THE END OF THE 1969 LEAVE YEAR AND THAT HIS RETIREMENT DATE HAD BEEN ADVANCED FOR THAT REASON. IT IS HIS VIEW THAT THE CAUSE OF THE LOSS OF ANNUAL LEAVE WAS THE FAILURE OF SUPERVISORY OFFICIALS TO ADVISE HIM TO TAKE ANNUAL LEAVE SUBJECT TO FORFEITURE BEFORE THE CLOSE OF THE LEAVE YEAR.

OUR REVIEW OF THE RECORD RESULTS IN THE CONCLUSION THAT IT WAS THE INTENT OF THE AGENCY AND OF MR. PILARSKI THAT HIS RETIREMENT WAS TO BE EFFECTIVE ON A DATE WHICH CONTEMPLATED THE TIMELY USE OF THE ANNUAL LEAVE FORFEITED. THE DATE ORIGINALLY ESTIMATED (MAY 27, 1970) IS, WITH A MINOR DISCREPANCY INCLUDING ALLOWANCE FOR A HOLIDAY ON MAY 29, IN ACCORDANCE WITH A SUBSEQUENT RECOMPUTATION BASED ON USE OF THE LEAVE PREPARED BY THE REGIONAL OFFICE. (SEE LETTER OF OCTOBER 16, 1970, TO THE FIELD DIRECTOR, AREA #3.) WE ALSO NOTE THE FOLLOWING PROVISION OF THE VETERANS ADMINISTRATION PERSONNEL POLICY MANUAL, MP-5, PART 1, CHAPTER 8, EFFECTIVE DURING THE PERIOD OF TIME IN WHICH MR. PILARSKI WAS CARRIED ON SICK LEAVE AND EVENTUALLY RETIRED:

"12. LEAVE IN CONNECTION WITH RETIREMENT

"A. GENERAL

"(1)THE GENERAL RULE THAT EMPLOYEES ARE TO BE PAID A LUMP-SUM FOR TERMINAL ANNUAL LEAVE APPLIES ALSO IN RETIREMENT CASES. HOWEVER, IF THE EXIGENCIES OF THE SERVICE SO REQUIRE, A RETIRING EMPLOYEE MAY BE GRANTED TERMINAL ANNUAL LEAVE EVEN THOUGH IT IS KNOWN IN ADVANCE THAT THERE WILL BE NO RETURN TO DUTY. (31 COMP. GEN. 581; 33 COMP. GEN. 85; 34 COMP. GEN. (61)

"(2) EMPLOYEES SHALL BE PERMITTED TO USE ANY ANNUAL LEAVE TO THEIR CREDIT WHICH CANNOT BE INCLUDED IN A LUMP-SUM SETTLEMENT. AN EMPLOYEE APPROACHING AGE RETIREMENT, OR ONE WHO MAKES IT KNOWN THAT HE IS CONTEMPLATING OPTIONAL RETIREMENT, SHALL BE ADVISED BY HIS SUPERVISOR TO REQUEST ANNUAL LEAVE THAT CANNOT BE INCLUDED IN A LUMP-SUM SETTLEMENT REASONABLY FAR ENOUGH IN ADVANCE TO PERMIT SUCH LEAVE TO BE GRANTED."

WE BELIEVE THAT, IN VIEW OF THE APPARENT INTENT THAT MR. PILARSKI BE GRANTED THE LEAVE IN QUESTION AND THE EXPRESSED POLICY OF THE VETERANS ADMINISTRATION THAT ANNUAL LEAVE SUBJECT TO FORFEITURE BE TAKEN IN ADVANCE OF RETIREMENT, THE RETIREMENT DATE OF APRIL 21, 1970, WAS THE RESULT OF ADMINISTRATIVE ERROR AND MR. PILARSKI'S CLAIM SHOULD BE ALLOWED. SEE B- 135877, JUNE 12, 1958; B-146678, SEPTEMBER 18, 1961; B 163077, JANUARY 29, 1968; B-165593, DECEMBER 16, 1968; B-168739, FEBRUARY 3, 1970; COPIES ENCLOSED.

ACCORDINGLY, WE WOULD NOT OBJECT TO MR. PILARSKI'S RESTORATION TO THE ROLLS AND A CHANGE IN THE EFFECTIVE DATE OF HIS RETIREMENT FOR THE PURPOSE OF PERMITTING PAYMENT FOR THE ANNUAL LEAVE HEREBY FOUND DUE HIM, WITH ADVICE OF SUCH ACTION TO THE CIVIL SERVICE COMMISSION FOR THE PURPOSE OF ADJUSTMENT OF HIS ANNUITY.