B-172992, JUN 30, 1971

B-172992: Jun 30, 1971

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LUCAS FOR COMPENSATION FOR 240 HOURS OF LEAVE HE WAS REQUIRED TO USE FOR THE PERIOD MAR. 10 TO APR. 24. THIS CLAIM WAS PREVIOUSLY DISALLOWED BY THE CLAIMS DIVISION. ON THE BASIS THAT THE GRANTING OF LEAVE WAS PRIMARILY A MATTER FOR ADMINISTRATIVE DETERMINATION. IS NOT VIEWED AS DETERMINITIVE UNDER THE CIRCUMSTANCES HERE INVOLVED. IT IS THE COMP. WOULD HAVE NO OBJECTIONS TO RESTORING MR. HANNAH: TRANSMITTED HEREWITH FOR ADMINISTRATIVE DISPOSITION IS THE CLAIM OF MR. LUCAS FOR COMPENSATION FOR 240 HOURS OF LEAVE HE WAS REQUIRED TO USE FOR THE PERIOD MARCH 10 TO APRIL 24. WHILE HE WAS AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID). DISALLOWING THE CLAIM ARE THAT MR. LUCAS WHILE ON LEAVE IN THE UNITED STATES FROM VIETNAM FOR MEDICAL REASONS WAS CLEARED BY HIS PRIVATE PHYSICIAN FOR RETURN TO WORK AFTER MARCH 7.

B-172992, JUN 30, 1971

CIVILIAN EMPLOYEE - LEAVE - REIMBURSEMENT ALLOWING IN PART THE CLAIM OF LELAND M. LUCAS FOR COMPENSATION FOR 240 HOURS OF LEAVE HE WAS REQUIRED TO USE FOR THE PERIOD MAR. 10 TO APR. 24, 1969, AS AN AID EMPLOYEE, WHILE AWAITING MEDICAL CLEARANCE FROM THE STATE DEPARTMENT. THIS CLAIM WAS PREVIOUSLY DISALLOWED BY THE CLAIMS DIVISION, GAO, ON THE BASIS THAT THE GRANTING OF LEAVE WAS PRIMARILY A MATTER FOR ADMINISTRATIVE DETERMINATION. ON RECONSIDERATION OF THE RECORD, THE AUTHORITY TO GRANT LEAVE, INCLUDING ADMINISTRATIVE LEAVE, IS NOT VIEWED AS DETERMINITIVE UNDER THE CIRCUMSTANCES HERE INVOLVED. IT IS THE COMP. GEN.'S VIEW THAT THE ACTION OF PLACING CLAIMANT ON LEAVE WITHOUT HIS CONSENT MAY BE REGARDED AS AN UNJUSTIFIED PERSONNEL ACTION WITHIN THE MEANING OF 5 U.S.C. 5596(B) AND 5 CFR 550.803(E), THUS QUALIFYING HIM FOR REIMBURSEMENT OF HIS LEAVE TIME, SUBJECT TO THE PROVISIONS GOVERNING THE AMOUNT OF LEAVE TIME WHICH COULD BE ACCUMULATED. THIS WOULD ALLOW REPAYMENT OF 222 OF THE 240 HOURS OF LEAVE, AND THE COMP. GEN. WOULD HAVE NO OBJECTIONS TO RESTORING MR. LUCAS TO THE ROLLS AND EXTENDING HIS SEPARATION DATE FOR THE PURPOSE OF COMPENSATING HIM FOR THE ADDITIONAL 18 HOURS.

TO DR. HANNAH:

TRANSMITTED HEREWITH FOR ADMINISTRATIVE DISPOSITION IS THE CLAIM OF MR. LELAND M. LUCAS FOR COMPENSATION FOR 240 HOURS OF LEAVE HE WAS REQUIRED TO USE FOR THE PERIOD MARCH 10 TO APRIL 24, 1969, WHILE HE WAS AN EMPLOYEE OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT (AID).

THE PERTINENT FACTS AS SET FORTH IN OUR SETTLEMENT LETTER ISSUED BY THE CLAIMS DIVISION OF OUR OFFICE ON JULY 8, 1970, DISALLOWING THE CLAIM ARE THAT MR. LUCAS WHILE ON LEAVE IN THE UNITED STATES FROM VIETNAM FOR MEDICAL REASONS WAS CLEARED BY HIS PRIVATE PHYSICIAN FOR RETURN TO WORK AFTER MARCH 7, 1969. IT IS STATED THAT OVER MR. LUCAS' STRONG OBJECTION AID DIRECTED HIS DELAY FROM RETURNING TO WORK, PENDING MEDICAL CLEARANCE FROM THE DEPARTMENT OF STATE. THAT CLEARANCE WAS NOT OBTAINED UNTIL APRIL 16, 19698 RESULTING IN A CHARGE TO ANNUAL LEAVE OR LEAVE WITHOUT PAY FOR MR. LUCAS FROM MARCH 10 TO APRIL 24, 1969.

MR. LUCAS CLAIMED ADMINISTRATIVE LEAVE FOR THE PERIOD INVOLVED, AND IT WAS DISALLOWED BY OUR OFFICE ON THE BASIS THAT THE GRANTING OF LEAVE IS PRIMARILY A MATTER OF ADMINISTRATIVE DISCRETION AND AID REGULATIONS HAVE NO PROVISION FOR GRANTING ADMINISTRATIVE LEAVE WHILE AWAITING MEDICAL CLEARANCE. IT IS STATED THAT MR. LUCAS TERMINATED HIS EMPLOYMENT WITH AID, EFFECTIVE APRIL 3, 1971, BY VIRTUE OF DISABILITY RETIREMENT.

ON RECONSIDERATION OF THE RECORD NOW BEFORE US, THE AUTHORITY TO GRANT LEAVE - INCLUDING ADMINISTRATIVE LEAVE - IS NOT VIEWED AS DETERMINATIVE OF MR. LUCAS' RIGHT TO COMPENSATION FOR THE PERIOD AND UNDER THE CIRCUMSTANCES HERE INVOLVED. IT IS NOTED THAT A TELEGRAM OF MARCH 5, 1969, FROM THE AID MISSION IN SAIGON WHICH RECOMMENDED STATE MEDICAL CLEARANCE BEFORE ALLOWING MR. LUCAS TO RETURN TO THE POST WAS ISSUED WITHOUT AWARENESS OF THE MEDICAL CLEARANCE OBTAINED BY HIM FROM HIS PHYSICIAN. ADDITIONALLY, IT NOW APPEARS AS INDICATED IN THE LETTER OF APRIL 27, 1971, FROM AID, WASHINGTON, TO CONGRESSMAN MORRIS K. UDALL THAT THE SAIGON OFFICE WAS IN ERROR AS TO THE MEDICAL DIAGNOSIS UPON WHICH IT BASED ITS RECOMMENDATION.

IT IS OUR VIEW THAT THE ACTION OF PLACING MR. LUCAS ON ANNUAL LEAVE OR LEAVE WITHOUT PAY WITHOUT HIS CONSENT UNDER THE ABOVE CIRCUMSTANCES MAY BE REGARDED AS AN UNJUSTIFIED PERSONNEL ACTION WITHIN THE MEANING OF 5 U.S.C. 5596(B) WHICH PROVIDES:

"AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE DETERMINATION OR A TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW OR REGULATION TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS RESULTED IN THE WITHDRAWAL OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS OF THE EMPLOYEE -

"(1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE FOR THE PERIOD FOR WHICH THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART OF THE PAY, ALLOWANCES, OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD HAVE EARNED DURING THAT PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THAT PERIOD; AND

"(2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE AGENCY DURING THAT PERIOD, EXCEPT THAT THE EMPLOYEE MAY NOT BE CREDITED, UNDER THIS SECTION, LEAVE IN AN AMOUNT THAT WOULD CAUSE THE AMOUNT OF LEAVE TO HIS CREDIT TO EXCEED THE MAXIMUM AMOUNT OF THE LEAVE AUTHORIZED FOR THE EMPLOYEE BY LAW OR REGULATION."

THE IMPLEMENTING REGULATION, 5 CFR 550.803(E), SPECIFICALLY INCLUDES IN THE DEFINITION OF PERSONNEL ACTIONS FOR WHICH RELIEF IS AVAILABLE UNDER THE ABOVE-QUOTED SECTION OF THE CODE " *** FURLOUGHS WITHOUT PAY *** AND PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION *** ." THE RECORD BEFORE OUR OFFICE DOES NOT DISCLOSE WHETHER THE ENTIRE PERIOD OR ONLY A PORTION THEREOF WAS COVERED BY ANNUAL LEAVE. ANY EVENT, THE ENTIRE PERIOD IS PROPER FOR CONSIDERATION AS A PERIOD FOR WHICH RELIEF IS AUTHORIZED BY THE ABOVE LAW AND REGULATION, AND TO THE EXTENT IT WAS COVERED BY ANNUAL LEAVE, SUCH LEAVE IS PROPER FOR RECREDIT TO MR. LUCAS' LEAVE ACCOUNT.

INFORMALLY, WE ARE ADVISED THAT MR. LUCAS WAS CHARGED 240 HOURS OF ANNUAL LEAVE DURING THE PERIOD INVOLVED. ADDITIONALLY, THAT AT THE END OF THE 1969 AND 1970 LEAVE YEARS THE MAXIMUM AMOUNT OF ANNUAL LEAVE WHICH HE COULD HAVE ACCUMULATED WAS 360 HOURS; ALSO, THAT BECAUSE OF THE CHARGE OF 240 HOURS IN 1969, HIS ANNUAL LEAVE BALANCE AT THE END OF THE 1969 LEAVE YEAR WAS 51 HOURS AND AT THE END OF THE 1970 LEAVE YEAR 113 HOURS; FURTHER, THAT HE WAS PAID IN LUMP SUM FOR 131 HOURS OF ANNUAL LEAVE INCIDENT TO HIS RETIREMENT IN APRIL 1971. ON THE BASIS OF THIS INFORMATION, IT APPEARS THAT, IF THE EMPLOYEE HAD NOT BEEN CHARGED THE 240 HOURS OF LEAVE IN 1969, HE WOULD HAVE HAD A BALANCE OF 353 HOURS OF LEAVE AT THE END OF THE 1970 LEAVE YEAR.

ACCORDINGLY, THE EMPLOYEE IS ENTITLED TO AN ADDITIONAL LUMP-SUM PAYMENT FOR 222 HOURS (353 LEAVE CEILING AT END OF 1970 LEAVE YEAR LESS 131 LUMP SUM PAID). SEE 5 U.S.C. 5551 WHICH LIMITS LUMP-SUM PAYMENT TO THE GREATER OF 30 DAYS OR THE NUMBER OF DAYS CARRIED AS A CREDIT AT THE BEGINNING OF THE LEAVE YEAR.

WITH RESPECT TO THE 18 REMAINING HOURS (240 LESS 222) WE WOULD HAVE NO OBJECTION TO RESTORING MR. LUCAS TO THE ROLLS AND EXTENDING HIS SEPARATION DATE FOR PURPOSES OF COMPENSATING HIM FOR SUCH LEAVE, ASSUMING HE WOULD HAVE BEEN GRANTED HIS CURRENT ACCRUED LEAVE BEFORE SEPARATION FOR RETIREMENT HAD IT BEEN KNOWN THAT THE 18 HOURS COULD NOT HAVE BEEN INCLUDED IN A LUMP-SUM LEAVE PAYMENT. IF HE IS SO RESTORED, THE CIVIL SERVICE COMMISSION SHOULD BE ADVISED OF THE ACTION TAKEN IN ORDER THAT APPROPRIATE ADJUSTMENTS MAY BE MADE IN HIS RETIREMENT ACCOUNT.