B-176020, AUG 4, 1972

B-176020: Aug 4, 1972

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TO HAVE HIS LEAVE ACCOUNT RESTORED WITH 40 HOURS ANNUAL LEAVE THAT HE WAS CHARGED AFTER IT WAS DISCOVERED THAT HE HAD BEEN GRANTED ADMINISTRATIVE LEAVE FOR A PERIOD OF ABSENCE FROM HIS OFFICIAL DUTY STATION WHILE PARTICIPATING IN A CHESS TOURNAMENT. WHERE AN EMPLOYEE'S LEAVE RECORD IS ADJUSTED TO CORRECT A PREVIOUS ERROR AND THE EMPLOYEE HAS SUFFICIENT LEAVE TO COVER THE ADJUSTMENT. THERE IS NO OVERPAYMENT OF PAY. DAWSON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 16. TO HAVE HIS LEAVE ACCOUNT RESTORED WITH 40 HOURS ANNUAL LEAVE THAT HE WAS CHARGED AFTER IT WAS DISCOVERED THAT HE HAD BEEN GRANTED ADMINISTRATIVE LEAVE FOR A PERIOD THAT HE WAS ABSENT FROM HIS OFFICIAL DUTY STATION WHILE PARTICIPATING IN A CHESS TOURNAMENT.

B-176020, AUG 4, 1972

CIVILIAN EMPLOYEE - ADMINISTRATIVE LEAVE - CORRECTION OF LEAVE RECORD - WAIVER DENIED DENIAL OF REQUEST OF MARTIN J. MCGOWAN, AN EMPLOYEE OF THE NATIONAL SECURITY AGENCY, TO HAVE HIS LEAVE ACCOUNT RESTORED WITH 40 HOURS ANNUAL LEAVE THAT HE WAS CHARGED AFTER IT WAS DISCOVERED THAT HE HAD BEEN GRANTED ADMINISTRATIVE LEAVE FOR A PERIOD OF ABSENCE FROM HIS OFFICIAL DUTY STATION WHILE PARTICIPATING IN A CHESS TOURNAMENT. WAIVER UNDER THE PROVISIONS OF 5 U.S.C. 5584 MAY BE GRANTED ONLY WHERE THERE HAS BEEN AN OVERPAYMENT OF PAY. WHERE AN EMPLOYEE'S LEAVE RECORD IS ADJUSTED TO CORRECT A PREVIOUS ERROR AND THE EMPLOYEE HAS SUFFICIENT LEAVE TO COVER THE ADJUSTMENT, THERE IS NO OVERPAYMENT OF PAY. ACCORDINGLY, THE CLAIM MUST BE DENIED.

TO MR. GILBERT H. DAWSON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1972, SERIAL: N41/0518F, REGARDING THE REQUEST OF MR. MARTIN J. MCGOWAN, AN EMPLOYEE OF THE NATIONAL SECURITY AGENCY, TO HAVE HIS LEAVE ACCOUNT RESTORED WITH 40 HOURS ANNUAL LEAVE THAT HE WAS CHARGED AFTER IT WAS DISCOVERED THAT HE HAD BEEN GRANTED ADMINISTRATIVE LEAVE FOR A PERIOD THAT HE WAS ABSENT FROM HIS OFFICIAL DUTY STATION WHILE PARTICIPATING IN A CHESS TOURNAMENT. MR. MCGOWAN IS SEEKING WAIVER OF THE CHARGE AGAINST HIS LEAVE UNDER THE PROVISIONS OF 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90 616, APPROVED OCTOBER 21, 1968.

THE RECORD INDICATES THAT FROM APRIL 9, 1968, THROUGH FEBRUARY 27, 1970, MR. MCGOWAN WAS STATIONED AT A MILITARY INSTALLATION OVERSEAS. DURING THE PERIOD FROM DECEMBER 1 THROUGH DECEMBER 5, 1969, MR. MCGOWAN WAS ABSENT FROM HIS DUTY STATION WHILE REPRESENTING IT IN A CHESS TOURNAMENT AT INCIVLICK AIR FORCE BASE, IZNIR, TURKEY. HIS NAME WAS INCLUDED ALONG WITH THOSE OF MILITARY MEMBERS FROM THE INSTALLATION ON TRAVEL ORDERS WHICH AUTHORIZED "40 HOURS ADMINISTRATIVE LEAVE" FOR THE PURPOSE OF PARTICIPATING IN THE TOURNAMENT. THE CHARGE TO ADMINISTRATIVE LEAVE WAS AUTHORIZED BY THE OFFICER IN CHARGE OF THE MILITARY INSTALLATION. SUBSEQUENTLY, DURING AN AUDIT OF TIME AND ATTENDANCE CARDS IN MAY 1970 THE CHARGE TO ADMINISTRATIVE LEAVE WAS DISCOVERED AND MR. MCGOWAN WAS NOTIFIED THAT SUCH A CHARGE WAS ERRONEOUS AND THAT HE WOULD BE CHARGED ANNUAL LEAVE FOR THE PERIOD IN QUESTION. MR. MCGOWAN ATTEMPTED TO HAVE THE CHARGE TO ADMINISTRATIVE LEAVE RETROACTIVELY APPROVED BY YOUR AGENCY BUT HIS REQUEST WAS DENIED ON THE GROUND THAT THERE WAS NO AUTHORITY WHICH WOULD PERMIT THE AGENCY TO PLACE MR. MCGOWAN ON ADMINISTRATIVE LEAVE FOR A PERIOD OF TIME THAT HE WAS ABSENT FROM HIS OFFICIAL DUTY STATION FOR THE PURPOSE OF PARTICIPATING IN A CHESS TOURNAMENT. MR. MCGOWAN THEN SUBMITTED A REQUEST FOR WAIVER OF THE CHARGE AGAINST HIS ANNUAL LEAVE UNDER THE PROVISIONS OF PUBLIC LAW 90-616, CLAIMING THAT HE HAD ACTED IN GOOD FAITH IN BELIEVING THE ACTIONS OF HIS SUPERIORS IN GRANTING HIM ADMINISTRATIVE LEAVE TO BE CORRECT. THE NSA PAY CLAIMS WAIVER COMMITTEE FOUND THAT THERE WAS NO FRAUD OR FAULT ON THE PART OF THE EMPLOYEE AND RECOMMENDED THAT THE CHARGE TO LEAVE BE WAIVED AND HIS LEAVE ACCOUNT ADJUSTED TO RESTORE THE ANNUAL LEAVE DEDUCTED. YOU HAVE SUBMITTED THE MATTER TO THIS OFFICE FOR OUR DECISION AS TO WHETHER THE CHARGE TO LEAVE IS PROPER FOR WAIVER CONSIDERATION.

WHILE THE MATTER OF GRANTING ADMINISTRATIVE LEAVE IS PRIMARILY FOR DETERMINATION OF THE AGENCY INVOLVED, NEVERTHELESS, WE ARE NOT AWARE OF ANY INSTANCES IN WHICH EMPLOYEES HAVE BEEN GRANTED ADMINISTRATIVE LEAVE TO PARTICIPATE IN EVENTS SUCH AS CHESS TOURNAMENTS. SEE THE STANDARDS IN THE FEDERAL PERSONNEL MANUAL, CHAPTER 610, CONCERNING THE CIRCUMSTANCES UNDER WHICH DAILY, HOURLY, AND PIECEWORK EMPLOYEES MAY BE GRANTED ADMINISTRATIVE LEAVE. THE ADMINISTRATIVE DETERMINATION THAT MR. MCGOWAN WAS NOT ENTITLED TO ADMINISTRATIVE LEAVE FOR THE PURPOSE GRANTED AND THE SUBSTITUTION OF A CHARGE TO ANNUAL LEAVE FOR THE PERIOD IN QUESTION APPEARS TO BE PROPER. AS TO THE QUESTION OF WHETHER THE CHARGE TO ANNUAL LEAVE MAY NOW BE WAIVED, THE STANDARDS FOR WAIVER OF AN ERRONEOUS PAYMENT OF PAY UNDER THE PROVISIONS OF PUBLIC LAW 90-616 ARE PUBLISHED AT 4 CFR 91-93. SECTION 91.2(B) THEREOF DEFINES THE WORD "PAY" AS FOLLOWS:

"(B) 'PAY' MEANS SALARY, WAGES, PAY, COMPENSATION, EMOLUMENTS, AND REMUNERATION FOR SERVICES. IT INCLUDES OVERTIME PAY; NIGHT, SUNDAY STANDBY, IRREGULAR AND HAZARDOUS DUTY DIFFERENTIAL; PAY FOR SUNDAY AND HOLIDAY WORK; PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE; AND SEVERANCE PAY. IT DOES NOT INCLUDE EXPENSES OF TRAVEL AND TRANSPORTATION OR EXPENSES OF TRANSPORTATION OF HOUSEHOLD GOODS."

WE HAVE PREVIOUSLY HELD THAT WAIVER OF AN ERRONEOUS PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE IS APPROPRIATE WHEN, AS THE RESULT OF A LATER ADJUSTMENT TO AN EMPLOYEE'S LEAVE ACCOUNT, IT IS SHOWN THAT THE EMPLOYEE HAS TAKEN LEAVE IN EXCESS OF THAT TO WHICH HE WAS ENTITLED, THEREBY CREATING AN OVERPAYMENT WHICH MAY BE SUBJECT TO WAIVER. HOWEVER, WHERE AN EMPLOYEE'S LEAVE ACCOUNT IS ADJUSTED TO CORRECT A PREVIOUS ERROR AND THE EMPLOYEE HAS SUFFICIENT LEAVE TO HIS CREDIT TO COVER THE ADJUSTMENT, THEN THERE IS NO OVERPAYMENT OF PAY AND CORRECTION OF THE ERROR IS EFFECTED BY REDUCING THE EMPLOYEE'S LEAVE BALANCE ACCORDINGLY.

UNDER THE CIRCUMSTANCES IN THIS CASE, SINCE THERE WAS NO OVERPAYMENT OF PAY RESULTING FROM THE ADJUSTMENT TO MR. MCGOWAN'S LEAVE ACCOUNT THERE IS NO BASIS FOR WAIVER OF THE CHARGE TO LEAVE UNDER THE PROVISIONS OF PUBLIC LAW 90-616. MR. MCGOWAN'S REQUEST FOR WAIVER MUST THEREFORE BE DENIED.