B-175061, MAR 27, 1972

B-175061: Mar 27, 1972

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SINCE ANNUAL LEAVE ACCRUING DURING THE SEPARATION PERIOD WAS SUBJECT TO THE FORFEITURE PROVISIONS OF 5 U.S.C. 6304. PROHIBIT PAYMENT TO AN EMPLOYEE OF ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW. SUCH ACTION IS NOT SUBJECT TO A WAIVER WHICH WOULD CIRCUMVENT THE MANDATORY RESTRICTIONS IN 5 U.S.C. 5596(B)(2). HAVE BEEN SATISFACTORILY EXPLAINED. YOUR PRESENT CONCERN IS WITH RESPECT TO WAIVER OF THE LUMP SUM PAYMENT FOR ANNUAL LEAVE (480 HOURS) THAT WAS PAID TO YOU AT THE TIME OF YOUR WRONGFUL SEPARATION FROM GOVERNMENT SERVICE. UPON YOUR RESTORATION TO DUTY YOU WERE REQUIRED TO REFUND THIS AMOUNT AND ACCEPT A RECREDIT TO YOUR ANNUAL LEAVE ACCOUNT IN EXCHANGE FOR SUCH REFUND. WHICH IS ONE OF THE GENERAL "LAW" REFERENCES IN 5 U.S.C. 5596(B).

B-175061, MAR 27, 1972

CIVILIAN EMPLOYEE - WRONGFUL SEPARATION - RECREDIT OF ANNUAL LEAVE - WAIVER REQUESTED DECISION AFFIRMING PRIOR DISALLOWANCE OF A CLAIM OF EDWIN J. CHERNOSKY FOR WAIVER OF THE LUMP-SUM PAYMENT OF ANNUAL LEAVE RECEIVED AT THE TIME OF HIS WRONGFUL SEPARATION FROM GOVERNMENT SERVICE. CLAIMANT CONTENDS THAT THE REQUIRED RECREDIT TO HIS ANNUAL LEAVE ACCOUNT DID NOT AFFORD COMPLETE RESTITUTION, SINCE ANNUAL LEAVE ACCRUING DURING THE SEPARATION PERIOD WAS SUBJECT TO THE FORFEITURE PROVISIONS OF 5 U.S.C. 6304. THE PROVISIONS OF 5 U.S.C. 5596, PROHIBIT PAYMENT TO AN EMPLOYEE OF ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW. FURTHER, SUCH ACTION IS NOT SUBJECT TO A WAIVER WHICH WOULD CIRCUMVENT THE MANDATORY RESTRICTIONS IN 5 U.S.C. 5596(B)(2). SINCE THE RESULT OF WAIVER IN THE INSTANT CASE WOULD CONFER A BENEFIT THAT WOULD NOT OTHERWISE INURE TO EMPLOYEES WHO REMAIN IN GOVERNMENT SERVICE, THE PRIOR DISALLOWANCE MUST BE SUSTAINED.

TO MR. EDWIN J. CHERNOSKY:

THIS REFERS TO YOUR LETTER OF JANUARY 3, 1972, WITH ENCLOSURES, WHICH HAS BEEN CONSIDERED AS AN APPEAL FROM THE ACTION OF OUR CLAIMS DIVISION IN DENYING YOUR REQUEST FOR WAIVER CONSIDERATION UNDER 5 U.S.C. 5584.

WE BELIEVE THAT OUR CLAIMS DIVISION LETTER OF NOVEMBER 30, 1971, ADEQUATELY STATES THE FACTS WHICH, THEREFORE, NEED NOT BE REPEATED HERE. IT APPEARS THAT THE ADJUSTMENTS IN YOUR ANNUITY ACCOUNT, INCIDENT TO YOUR REINSTATEMENT WITH BACK PAY, HAVE BEEN SATISFACTORILY EXPLAINED. YOUR PRESENT CONCERN IS WITH RESPECT TO WAIVER OF THE LUMP SUM PAYMENT FOR ANNUAL LEAVE (480 HOURS) THAT WAS PAID TO YOU AT THE TIME OF YOUR WRONGFUL SEPARATION FROM GOVERNMENT SERVICE. UPON YOUR RESTORATION TO DUTY YOU WERE REQUIRED TO REFUND THIS AMOUNT AND ACCEPT A RECREDIT TO YOUR ANNUAL LEAVE ACCOUNT IN EXCHANGE FOR SUCH REFUND. YOU APPARENTLY CONTEND THAT THIS RECREDIT DOES NOT AFFORD COMPLETE RESTITUTION SINCE ANNUAL LEAVE ACCRUING DURING THE SEPARATION PERIOD DID NOT BECOME AVAILABLE FOR YOUR USE BY OPERATION OF THE FORFEITURE PROVISIONS OF 5 U.S.C. 6304, WHICH IS ONE OF THE GENERAL "LAW" REFERENCES IN 5 U.S.C. 5596(B).

YOUR IMPLIED ARGUMENT IS THAT THE ORDERED RESTORATION TO EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE HAD THE RETROACTIVE EFFECT OF MAKING THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE "AN ERRONEOUS OVERPAYMENT OF PAY" FOR WAIVER CONSIDERATION UNDER 5 U.S.C. 5584. CONSEQUENTLY, YOU BELIEVE WAIVER SHOULD BE GRANTED WITH THE RESULT THAT REPAYMENT OF SUCH LUMP-SUM PAYMENT COULD NOT HAVE BEEN REQUIRED AT THE TIME OF YOUR REINSTATEMENT AND WOULD BE FOR REFUND TO YOU AT THIS TIME. THIS WOULD PERMIT RECREDIT OF LEAVE EARNED DURING THE PERIOD OF YOUR REMOVAL.

IN OUR CLAIMS DIVISION LETTER TO YOU DATED NOVEMBER 30, 1971, WE NOTED THE INTENT OF CONGRESS IN ENACTING 5 U.S.C. 5596 AND RECOGNIZED THAT SUCH LAW MADE NO PROVISION TO PAY AN EMPLOYEE FOR THAT ANNUAL LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW (5 U.S.C. 6304) AND THEREFORE COULD NOT BE RESTORED TO HIS CREDIT. WE ALSO IMPLIED THAT UNDER THOSE CIRCUMSTANCES WE COULD NOT APPROVE A WAIVER SINCE TO DO SO WOULD CIRCUMVENT THE MANDATORY RESTRICTIONS IN 5 U.S.C. 5596(B)(2). MOREOVER, SINCE YOU WERE RECREDITED WITH THE 480 HOURS FOR WHICH YOU RECEIVED A LUMP-SUM PAYMENT AND WHICH WAS COLLECTED BY DEDUCTION FROM YOUR BACK PAY, THE WAIVER OF THE LUMP-SUM PAYMENT WAS NOT DEEMED PROPER.

THE GENERAL PURPOSE OF BACK PAY AWARDS IS TO GIVE AN EMPLOYEE THAT COMPENSATION HE WOULD HAVE RECEIVED BUT FOR THE WRONGFUL SEPARATION. IS CLEARLY NOT INTENDED TO CONFER A BENEFIT THAT WOULD NOT OTHERWISE INURE TO EMPLOYEES WHO ARE NOT SIMILARLY SEPARATED FROM THEIR POSITIONS BUT REMAIN IN GOVERNMENT SERVICE. THE RESULT OF WAIVER (5 U.S.C. 5584) IN YOUR CASE WOULD HAVE THE EFFECT OF AWARDING SUCH A BENEFIT SINCE IT WOULD ALLOW YOU TO RETAIN CURRENT ANNUAL LEAVE ACCRUALS THAT, IN THE CASES OF OTHER EMPLOYEES, WOULD BE FORFEITED ACCORDING TO 5 U.S.C. 6304 IF NOT USED BY THE CLOSE OF THE LEAVE YEAR. SEE B-173111, AUGUST 2, 1971, AND B- 171947, DECEMBER 29, 1971, COPIES ENCLOSED.

ACCORDINGLY, WE CONCLUDE THAT THERE IS NO BASIS UPON WHICH WE MAY GRANT YOUR REQUEST FOR WAIVER UNDER 5 U.S.C. 5584, AND THE ACTION OF OUR CLAIMS DIVISION IS HEREBY SUSTAINED.