B-173458, AUG 17, 1971

B-173458: Aug 17, 1971

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GRICE: REFERENCE IS MADE TO A CLAIM BY MR. WALKER'S CLAIM WAS THE SUBJECT OF YOUR LETTER TO US OF MARCH 4. THAT IT WAS HIS UNDERSTANDING THAT HE WOULD WORK UNTIL OCTOBER 23. PROVIDES: "LUMP SUM PAYMENT FOR ANNUAL LEAVE WILL BE MADE WHEN AN EMPLOYEE DIES. RESIGNS OR IS SEPARATED FOR ONE OR MORE WORKDAYS. LUMP SUM PAYMENT WILL BE MADE FOR THE ANNUAL LEAVE BALANCE OF RECORD. WHICHEVER IS GREATER. THE EFFECTIVE DATE OF SEPARATION WILL BE EXTENDED TO INCLUDE ANY UNUSED CURRENT YEAR ANNUAL LEAVE PLUS ANNUAL LEAVE ACCRUED WHILE ON SUCH EXTENSION. PAYMENT FOR THE EXTENDED PERIOD WILL BE MADE ON A PERIOD BASIS. EXCESS LEAVE NOT INCLUDED IN LUMP-SUM PAYMENT WILL REMAIN IN THE ACCOUNT WHICH WILL BE RE-ESTABLISHED UPON RESTORATION TO DUTY.".

B-173458, AUG 17, 1971

CIVILIAN EMPLOYEE - ACCRUED LEAVE - ENTITLEMENT DECISION ALLOWING CLAIM OF MR. U. OWEN WALKER, FORMER EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, FOR ANNUAL LEAVE TREATED AS FORFEITED AT THE TIME OF HIS RESIGNATION. AS CLAIMANT WORKED FROM THE DATE HE GAVE NOTIFICATION OF HIS RESIGNATION TO THE EFFECTIVE DATE THEREOF, IN COMPLIANCE WITH THE REQUEST OF HIS MILITARY SUPERIOR AND BECAUSE OF THE NEEDS OF THE GOVERNMENT, RATHER THAN TAKE LEAVE IN THE INTERIM, HIS SEPARATION MAY BE CONSIDERED INEFFECTIVE AND NOT IN COMPLIANCE WITH APPLICABLE REGULATIONS AND AGENCY POLICY. EFFECTIVE DATE OF SEPARATION MAY BE CHANGED AND ACCRUED LEAVE PAID.

TO MR. W. F. GRICE:

REFERENCE IS MADE TO A CLAIM BY MR. U. OWEN WALKER FOR CURRENT ACCRUED ANNUAL LEAVE WHICH HAS BEEN TREATED AS FORFEITED AT THE TIME OF HIS RESIGNATION, EFFECTIVE OCTOBER 23, 1970, AS AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY. MR. WALKER'S CLAIM WAS THE SUBJECT OF YOUR LETTER TO US OF MARCH 4, 1971, REFERENCE DDMT-CAF, AND OUR CLAIM SETTLEMENT LETTER OF JUNE 8, 1971, DISALLOWING THE CLAIM.

BY LETTER DATED JUNE 21, 1971, MR. WALKER REITERATES HIS CONTENTION MADE IN LETTER DATED NOVEMBER 14, 1970, THAT IT WAS HIS UNDERSTANDING THAT HE WOULD WORK UNTIL OCTOBER 23, 1970, WITH THE EFFECTIVE DATE OF HIS SEPARATION TO BE EXTENDED TO INCLUDE ANY UNUSED CURRENT YEAR ANNUAL LEAVE. HE ALSO HAS SUBMITTED A STATEMENT FROM HIS FORMER MILITARY SUPERVISOR, MAJOR LUTHER E. OSWALT, IN PERTINENT PART AS FOLLOWS:

"UPON RECEIPT OF HIS RESIGNATION ON 22 SEPTEMBER 1970 I REQUESTED MR. U. OWEN WALKER TO WORK FULL TIME THROUGH 23 OCTOBER 1970 AND ACCEPT PAY FOR ALL OF HIS LEAVE, IN LIEU OF TAKING LEAVE, INASMUCH AS OUR HEAVY PROJECT WORKLOAD MADE THE USE OF HIS SERVICES AND EXPERTISE MANDATORY SINCE WE COULD NOT HOPE TO HIRE AN EQUIVALENT TRAINED REPLACEMENT IN THE FORESEEABLE FUTURE, AND THE RESTRICTIONS ON AND COSTS FOR OVERTIME BY OTHER EXISTING PERSONNEL WOULD BE PROHIBITIVE AND UNECONOMICAL."

PARAGRAPH XV A 6 OF DDMT REGULATION NO. 1400.1, THE GOVERNING ADMINISTRATIVE REGULATIONS, PROVIDES:

"LUMP SUM PAYMENT FOR ANNUAL LEAVE WILL BE MADE WHEN AN EMPLOYEE DIES, RESIGNS OR IS SEPARATED FOR ONE OR MORE WORKDAYS, OR WHEN AN EMPLOYEE WITH RESTORATION RIGHTS ENTERS ACTIVE MILITARY DUTY AND ELECTS TO RECEIVE LUMP SUM PAYMENT. WHEN AN EMPLOYEE DIES, LUMP SUM PAYMENT WILL BE MADE FOR THE ANNUAL LEAVE BALANCE OF RECORD. IN ALL OTHER SEPARATION CASES, LUMP SUM PAYMENT MAY NOT EXCEED ANNUAL LEAVE BALANCE (IF 30 DAYS OR LESS) OR THE AMOUNT SHOWN TO THE EMPLOYEE'S CREDIT AT THE BEGINNING OF THE LEAVE YEAR, WHICHEVER IS GREATER. THE EFFECTIVE DATE OF SEPARATION WILL BE EXTENDED TO INCLUDE ANY UNUSED CURRENT YEAR ANNUAL LEAVE PLUS ANNUAL LEAVE ACCRUED WHILE ON SUCH EXTENSION, EXCEPT IN THE CASE OF SEPARATION FOR MILITARY DUTY. PAYMENT FOR THE EXTENDED PERIOD WILL BE MADE ON A PERIOD BASIS. THE CASE OF SEPARATION FOR MILITARY DUTY, EXCESS LEAVE NOT INCLUDED IN LUMP-SUM PAYMENT WILL REMAIN IN THE ACCOUNT WHICH WILL BE RE-ESTABLISHED UPON RESTORATION TO DUTY."

ALTHOUGH YOUR LETTER OF MARCH 4, 1971, STATES THAT THE REGULATIONS QUOTED ABOVE RELATE TO SEPARATIONS INITIATED BY THE EMPLOYING ACTIVITY AND DO NOT RELATE TO VOLUNTARY RESIGNATIONS, WE NOTE THAT SUCH PARAGRAPH INCLUDES SEPARATION BY REASON OF DEATH AND RESIGNATION. SINCE THE SEPARATION HERE INVOLVED WAS BY REASON OF RESIGNATION, WE MUST CONCLUDE THAT THE REGULATIONS DO IN FACT APPLY. THE REGULATIONS PROVIDE THAT THE SEPARATION DATE WILL BE EXTENDED TO INCLUDE CURRENT ACCRUED ANNUAL LEAVE.

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-172997, JUNE 23, 1971, COPY ENCLOSED.

OUR REVIEW OF THE RECORD NOW BEFORE US LEADS US TO THE CONCLUSION THAT MR. WALKER'S SEPARATION WAS NOT CONSISTENT WITH THE POLICY AS STATED IN THE APPLICABLE REGULATIONS NOR IN ACCORDANCE WITH HIS UNDERSTANDING AS TO THE PAYMENT FOR CURRENT ACCRUED ANNUAL LEAVE, AND THEREFORE SUCH SEPARATION WAS INEFFECTIVE. ACCORDINGLY, WE WOULD NOT OBJECT TO MR. WALKER'S RESTORATION TO THE ROLLS AND A CHANGE IN THE EFFECTIVE DATE OF HIS SEPARATION FOR THE PURPOSE OF PERMITTING PAYMENT OF THE ANNUAL LEAVE FOUND DUE, WITH ADVICE OF SUCH ACTION TO THE CIVIL SERVICE COMMISSION FOR THE PURPOSE OF ADJUSTMENT OF HIS RETIREMENT ACCOUNT. IN CONNECTION WITH THE AMOUNT OF LEAVE DUE, YOUR LETTER NOTES THAT THE CORRECT AMOUNT OF LEAVE IN QUESTION IS 85 HOURS RATHER THAN THE 69 HOURS SHOWN IN THE CLAIM. MR. WALKER HAS BEEN FURNISHED A COPY OF THIS LETTER.