B-174975, MAR 31, 1972

B-174975, MAR 31, 1972

CIVILIAN EMPLOYEE - REDUCTION IN FORCE - FORCED USE OF EXCESS LEAVE DECISION ALLOWING THE CLAIM OF FREDERICK R. HAZLEWOOD FOR 48 HOURS COMPENSATION ARISING FROM AN ALLEGED FORCED USE OF ANNUAL LEAVE PRIOR TO HIS SEPARATION FROM EMPLOYMENT AT MCCLELLAN AFB. AS A GENERAL RULE, WHEN AN AUTHORIZED SEPARATION BECOMES AN ACCOMPLISHED FACT IT MAY NOT BE RESCINDED OR SET ASIDE BY ADMINISTRATIVE ACTION. COMP. GEN. 111 (1952). HOWEVER, EXCEPTIONS TO THE RULE MAY BE MADE WHEN THE SEPARATION WAS NOT IN ACCORDANCE WITH ESTABLISHED AGENCY PRACTICE, APPLICABLE REGULATIONS, OR THE INTENT OF THE PARTIES. B-172997, JUNE 23, 1971. SINCE AFR 40-361 PROVIDES FOR EXTENSION OF THE NOTICE PERIOD IN REDUCTION-IN-FORCE ACTIONS TO ALLOW USE OF "EXCESS ANNUAL LEAVE," THE ADMINISTRATIVE DECISION TO REQUIRE ITS USE WITHIN THE ORIGINAL STATED NOTICE PERIOD CONSTITUTES AN UNJUSTIFIED PERSONNEL ACTION WITHIN 5 U.S.C. 5596(B). ACCORDINGLY, THE COMP. GEN. WOULD NOT OBJECT TO CERTIFICATION FOR PAYMENT OF THE ENCLOSED VOUCHER.

TO LIEUTENANT COLONEL J. W. WALKER:

REFERENCE IS MADE TO YOUR MEMORANDUM OF SEPTEMBER 4, 1970, REFERENCE ACF, WHICH CONSTITUTED THE ADMINISTRATIVE REPORT AND RECOMMENDATION ON THE CLAIM OF MR. FREDERICK R. HAZLEWOOD, A FORMER EMPLOYEE AT MCCLELLAN AIR FORCE BASE, FOR 48 HOURS COMPENSATION ARISING FROM AN ALLEGED FORCED USE OF ANNUAL LEAVE PRIOR TO HIS SEPARATION FROM THE DEPARTMENT OF THE AIR FORCE.

MR. HAZLEWOOD, BY LETTER OF NOVEMBER 12, 1971, HAS REQUESTED REVIEW OF OUR OFFICE SETTLEMENT OF SEPTEMBER 16, 1971, WHICH DISALLOWED HIS CLAIM ON THE BASIS THAT HE HAD USED HIS "EXCESS ANNUAL LEAVE" PRIOR TO SEPARATION AND HAD BEEN PAID IN LUMP SUM FOR THE REMAINING 235 HOURS OF ACCUMULATED LEAVE.

IN SUMMARY THE RECORD SHOWS MR. HAZLEWOOD WAS SCHEDULED FOR SEPARATION DUE TO REDUCTION IN FORCE EFFECTIVE APRIL 20, 1970. AT THE TIME HE RECEIVED NOTICE OF SEPARATION - MARCH 16, 1970 - THE RECORD SHOWS THAT MR. HAZLEWOOD WOULD HAVE, BY APRIL 20, 1970, 283 HOURS OF LEAVE TO HIS CREDIT. AS YOU INDICATE, MR. HAZLEWOOD REQUESTED THAT HIS SEPARATION DATE BE EXTENDED 6 DAYS TO PERMIT HIM TO USE HIS EXCESS LEAVE OF 43 HOURS AFTER APRIL 20, 1970, RATHER THAN BEFORE IT. HIS SUPERVISORS DETERMINED, HOWEVER, THAT THERE WAS SUFFICIENT TIME TO USE THE LEAVE BEFORE APRIL 20, 1970. ACCORDINGLY, MR. HAZLEWOOD WAS ON ANNUAL LEAVE FOR 48 HOURS DURING THE PERIOD APRIL 13 THROUGH APRIL 20, 1970. THE SUPERVISORY DECISION WAS JUSTIFIED AS BEING IN ACCORDANCE WITH PARAGRAPH 8H, AFR 40-601, WHICH READS:

"NORMALLY, ANY ANNUAL LEAVE WHICH CANNOT BE INCLUDED IN A LUMP SUM PAYMENT IS GRANTED BEFORE THE DATE OF AN EMPLOYEE'S SEPARATION. HOWEVER, IN CASES OF SEPARATION FOR CAUSE, THE NOTICE PERIOD MUST NOT BE EXTENDED IN ORDER TO GRANT LEAVE WHICH WILL BE FORFEITED."

MR. HAZLEWOOD URGES THAT THE DEPARTMENT OF THE AIR FORCE DIRECTIVES - AFM 3614 AND AFR 40-361 - PRECLUDE THE SUPERVISORY DECISION AS MADE. AIR FORCE REGULATION 40-361 (DATED JANUARY 10, 1969, AND APPLICABLE UNTIL JANUARY 4, 1972) AT PARAGRAPH 9C STATES WITH RESPECT TO REDUCTION IN FORCE:

"C. IF AN EMPLOYEE BEING SEPARATED HAS ANNUAL LEAVE THAT CANNOT BE INCLUDED IN A LUMP-SUM PAYMENT BECAUSE IT IS IN EXCESS OF THE AMOUNT THAT CAN BE CARRIED FORWARD AT THE BEGINNING OF THE LEAVE YEAR, HIS NOTICE IS EXTENDED TO ALLOW HIM TO USE SUCH LEAVE. IF HIS NOTICE CANNOT BE EXTENDED BECAUSE OF LACK OF FUNDS OR WORK, OR IF THE EXTENSION WOULD MEAN THAT MORE EMPLOYEES WOULD HAVE TO BE SEPARATED IN ORDER TO MEET FUND LIMITATIONS, THE EMPLOYEE IS PLACED ON ANNUAL LEAVE SUFFICIENTLY IN ADVANCE OF THE SCHEDULED DATE OF SEPARATION TO PREVENT FORFEITURE."

5 U.S.C. 5596(B) 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 APPLICABLE IMPLEMENTING REGULATIONS ARE FOUND IN 5 CFR 550.801 550.804 AND SPECIFICALLY INCLUDE IN THE DEFINITION OF PERSONNEL ACTIONS FOR WHICH RELIEF IS AVAILABLE UNDER THE ABOVE-QUOTED SECTIONS OF THE CODE " *** PERIODS OF ENFORCED PAID LEAVE WHETHER OR NOT CONNECTED WITH AN ADVERSE ACTION *** ."

SINCE AFR 40-361 PROVIDES - WITH EXCEPTIONS NOT PERTINENT HERE - FOR EXTENSION OF THE NOTICE PERIOD IN REDUCTION-IN-FORCE ACTIONS TO ALLOW USE OF "EXCESS ANNUAL LEAVE," THE ADMINISTRATIVE DECISION TO REQUIRE ITS USE WITHIN THE ORGINAL STATED NOTICE PERIOD CONSTITUTES AN UNJUSTIFIED PERSONNEL ACTION WITHIN 5 U.S.C. 5596(B).

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 ACCORDANCE WITH ESTABLISHED AGENCY PRACTICE OR APPLICABLE REGULATIONS OR THE INTENT OF THE PARTIES. SEE B-172997, JUNE 23, 1971, COPY ENCLOSED.

ACCORDINGLY, WE WOULD NOT OBJECT TO MR. HAZLEWOOD'S RESTORATION TO THE ROLLS AND CHANGE IN THE EFFECTIVE DATE OF HIS RETIREMENT FOR THE PURPOSE OF PERMITTING PAYMENT OF THE 43 HOURS OF "EXCESS ANNUAL LEAVE" WITH ADVICE OF SUCH ACTION TO THE CIVIL SERVICE COMMISSION FOR ADJUSTMENT OF HIS RETIREMENT ACCOUNT. THE PAYROLL VOUCHER SUBMITTED IS RETURNED HEREWITH FOR PROCESSING IN ACCORDANCE WITH THIS DECISION. MR. HAZLEWOOD HAS BEEN FURNISHED A COPY OF THIS LETTER.