B-172997, JUN 23, 1971

B-172997: Jun 23, 1971

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WHITESMITH'S SEPARATION BY RETIREMENT FROM CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE WAS EFFECTED WITHOUT REQUIRED COUNSELING BY PERSONNEL OFFICER AND WAS OTHERWISE CONTRARY TO AGENCY REGULATIONS AND PRACTICE THAT SUCH SEPARATION WAS NOT EFFECTIVE. TO HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER: REFERENCE IS MADE TO LETTER OF YOUR OFFICE DATED APRIL 23. WHITESMITH HAD AN ANNUAL LEAVE BALANCE OF 301 HOURS WHICH WAS 61 HOURS IN EXCESS OF HIS 240-HOUR LEAVE CEILING. SINCE HIS DUTY STATION WAS LOCATED APPROXIMATELY 150 MILES FROM THE SERVICING CIVILIAN PERSONNEL OFFICE. HE WAS NOT COUNSELED BY THAT OFFICE WITH RESPECT TO SETTING HIS RETIREMENT DATE SO AS TO AVOID A FORFEITURE OF UNUSED ANNUAL LEAVE.

B-172997, JUN 23, 1971

CIVILIAN EMPLOYEE - SEPARATION BY RETIREMENT - ACCUMULATED LEAVE ADVISING THAT SINCE MR. DONALD M. WHITESMITH'S SEPARATION BY RETIREMENT FROM CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE WAS EFFECTED WITHOUT REQUIRED COUNSELING BY PERSONNEL OFFICER AND WAS OTHERWISE CONTRARY TO AGENCY REGULATIONS AND PRACTICE THAT SUCH SEPARATION WAS NOT EFFECTIVE. NO OBJECTION EXISTS TO RESTORATION OF WHITESMITH AND CHANGE OF RETIREMENT DATE IN ACCORD WITH AIR FORCE POLICY TO ALLOW PAYMENT FOR LEAVE IN EXCESS OF THAT WHICH CAN BE PAID AS A LUMP SUM PAYMENT.

TO HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER:

REFERENCE IS MADE TO LETTER OF YOUR OFFICE DATED APRIL 23, 1970, REFERENCE ACFMA, CONCERNING THE CLAIM OF MR. DONALD M. WHITESMITH FOR THE MONETARY EQUIVALENT OF 61 HOURS OF ANNUAL LEAVE WHICH HE FORFEITED UPON HIS VOLUNTARY-OPTIONAL RETIREMENT FROM CIVILIAN EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE, BLAINE AIR FORCE STATION, BLAINE, WASHINGTON.

THE RECORD SHOWS THAT AT THE TIME OF HIS RETIREMENT ON JULY 6, 1968, MR. WHITESMITH HAD AN ANNUAL LEAVE BALANCE OF 301 HOURS WHICH WAS 61 HOURS IN EXCESS OF HIS 240-HOUR LEAVE CEILING. SINCE HIS DUTY STATION WAS LOCATED APPROXIMATELY 150 MILES FROM THE SERVICING CIVILIAN PERSONNEL OFFICE, HE WAS NOT COUNSELED BY THAT OFFICE WITH RESPECT TO SETTING HIS RETIREMENT DATE SO AS TO AVOID A FORFEITURE OF UNUSED ANNUAL LEAVE. UNDER SUCH CIRCUMSTANCES, IT WAS ASSUMED THAT MR. WHITESMITH'S SUPERVISOR WOULD FURNISH THE RELEVANT COUNSELING, BUT THIS WAS NOT ACCOMPLISHED.

OUR REVIEW OF THE RECORD LEADS TO THE CONCLUSION THAT IT WAS THE INTENT OF THE AIR FORCE AND MR. WHITESMITH THAT HIS RETIREMENT BE EFFECTED IN A MANNER WHICH WOULD ALLOW COMPENSATION FOR THE SUBJECT ANNUAL LEAVE. THAT RESPECT THE APPLICABLE AIR FORCE REGULATIONS (AFR) PROVIDE IN SUBSTANCE THAT ANY ANNUAL LEAVE, WHICH CANNOT BE INCLUDED IN A LUMP-SUM PAYMENT, SHOULD BE GRANTED BEFORE THE EMPLOYEE IS SEPARATED. SEE AFR 40- 601, PARAGRAPH 8H. MORE SPECIFICALLY, SEPARATION DATES FOR RETIRING EMPLOYEES MAY BE ESTABLISHED SO THAT THERE IS AN OPPORTUNITY TO USE ANNUAL LEAVE WHICH CANNOT BE PAID IN A LUMP SUM. SEE AFR 40-296, PARAGRAPH 7C. FURTHERMORE, THE GENERAL POLICY OF THE AIR FORCE CONFERS RESPONSIBILITY ON THE CIVILIAN PERSONNEL OFFICE OR THE DUTY SUPERVISOR TO INFORM EMPLOYEES OF THEIR RIGHTS, BENEFITS, AND OBLIGATIONS RESPECTING RETIREMENT. SEE AFR 40 831, PARAGRAPHS 1 AND 2.

OUR OFFICE HAS LONG FOLLOWED THE RULE THAT WHEN AN AUTHORIZED SEPARATION BECOMES AN ACCOMPLISHED FACT IT MAY NOT BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. 32 COMP. GEN. 111 (1952). WE HAVE RECOGNIZED EXCEPTIONS TO THAT RULE WHEN THE SEPARATION WAS NOT IN CONFORMANCE WITH ESTABLISHED AGENCY PRACTICE OR APPLICABLE REGULATIONS OR THE INTENT OF THE PARTIES. SEE B-135877, JUNE 12, 1958; B-146678, SEPTEMBER 18, 1961; AND B -172452, JUNE 2, 1971, COPY HEREWITH.

SINCE MR. WHITESMITH'S SEPARATION BY RETIREMENT WAS EFFECTED WITHOUT THE REQUIRED COUNSELING AND WAS OTHERWISE CONTRARY TO AGENCY REGULATIONS AND PRACTICE, OUR VIEW IS THAT SUCH SEPARATION WAS INEFFECTIVE. ACCORDINGLY, WE WOULD NOT OBJECT TO MR. WHITESMITH'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 ADJUSTMENTS IN HIS RETIREMENT ACCOUNT. MR. WHITESMITH HAS BEEN FURNISHED A COPY OF THIS LETTER.