B-180638, AUG 30, 1974

B-180638: Aug 30, 1974

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WHERE SELECTIVE SERVICE SYSTEM EMPLOYEE APPEALS A SETTLEMENT DISALLOWING CLAIM FOR 96 HOURS OF ACCRUED ANNUAL LEAVE FORFEITED WHEN EMPLOYEE WAS INVOLUNTARILY RETIRED. AGENCY STATES SHE WAS COUNSELED AS TO THIS MATTER. THE RULE OF THIS OFFICE IN CASES OF DISPUTES OF FACT IS TO ACCEPT STATEMENTS OF AGENCY IN ABSENCE OF PREPONDERANCE OF EVIDENCE TO THE CONTRARY. BAER - CLAIM FOR ACCRUED ANNUAL LEAVE FORFEITED AT SEPARATION: THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF NOVEMBER 9. BAER'S SEPARATION ACTION WAS "TERMINATION - DECLINED RELOCATION. HER LEAVE BALANCE AS OF HER SEPARATION DATE WAS 336 HOURS AND HER ANNUAL LEAVE CEILING WAS 240 HOURS WHICH RESULTED IN FORFEITURE OF 96 HOURS OF ANNUAL LEAVE.

B-180638, AUG 30, 1974

WHERE SELECTIVE SERVICE SYSTEM EMPLOYEE APPEALS A SETTLEMENT DISALLOWING CLAIM FOR 96 HOURS OF ACCRUED ANNUAL LEAVE FORFEITED WHEN EMPLOYEE WAS INVOLUNTARILY RETIRED, REPRESENTING BALANCE OF LEAVE OVER CARRY OVER CEILING OF 240 HOURS, CONTENDING THAT AGENCY FAILED TO ADVISE HER OF POSSIBLE FORFEITURE, BUT AGENCY STATES SHE WAS COUNSELED AS TO THIS MATTER, THE RULE OF THIS OFFICE IN CASES OF DISPUTES OF FACT IS TO ACCEPT STATEMENTS OF AGENCY IN ABSENCE OF PREPONDERANCE OF EVIDENCE TO THE CONTRARY.

IRENE T. BAER - CLAIM FOR ACCRUED ANNUAL LEAVE FORFEITED AT SEPARATION:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF NOVEMBER 9, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE WHICH DISALLOWED THE CLAIM OF MRS. IRENE T. BAER, A FORMER EMPLOYEE OF THE SELECTIVE SERVICE SYSTEM, FOR 96 HOURS OF ANNUAL LEAVE FORFEITED ON JUNE 25, 1972, AT THE TIME OF HER INVOLUNTARY SEPARATION. THE RECORD INDICATES THAT THE NATURE OF MRS. BAER'S SEPARATION ACTION WAS "TERMINATION - DECLINED RELOCATION," AND THAT SHE ELECTED DISCONTINUED SERVICE RETIREMENT. HER LEAVE BALANCE AS OF HER SEPARATION DATE WAS 336 HOURS AND HER ANNUAL LEAVE CEILING WAS 240 HOURS WHICH RESULTED IN FORFEITURE OF 96 HOURS OF ANNUAL LEAVE.

LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE ON SEPARATION IS GOVERNED BY 5 U.S.C. 5551 WHICH PROVIDES IN PERTINENT PART:

"*** THE LUMP-SUM PAYMENT *** MAY NOT EXCEED PAY FOR A PERIOD OF ANNUAL OR VACATION LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS GREATER. ***"

UNDER THE TERMS OF THIS STATUTE, LUMP-SUM PAYMENT FOR ANY ACCRUED ANNUAL LEAVE IN EXCESS OF THE 240 HOURS MRS. BAER HAD AT THE BEGINNING OF LEAVE YEAR 1972 WOULD BE PRECLUDED. THUS, THE ONLY WAY SHE COULD BE COMPENSATED FOR THE 96 HOURS OF ANNUAL LEAVE ACCRUED AND NOT USED PRIOR TO HER RETIREMENT WOULD BE TO PERMIT HER TO BE RESTORED TO THE ROLLS OF HER AGENCY AS AN EMPLOYEE FOR THE PURPOSE OF USING SUCH LEAVE. IN THIS CONNECTION, 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 AND HAVE PERMITTED RESTORATION TO THE ROLLS FOR THE PERIOD OF UNUSED ANNUAL LEAVE WHEN THE SEPARATION WAS NOT IN CONFORMANCE WITH ESTABLISHED AGENCY PRACTICE, APPLICABLE REGULATIONS, OR THE INTENT OF THE PARTIES. B-172452, JUNE 2, 1971, B-172997, JUNE 23, 1971, B-173632, AUGUST 3, 1971, AND B 177057, JANUARY 23, 1973.

MRS. BAER CONTENDS THAT SHE ASSUMED THE LUMP-SUM LEAVE PAYMENT WOULD COVER HER ACCRUED ANNUAL LEAVE IN THE 1972 LEAVE YEAR OF 96 HOURS IN ADDITION TO THE 240 HOURS SHE HAD ACCRUED AT THE BEGINNING OF THAT LEAVE YEAR, INASMUCH AS SHE HAD NEVER BEEN OFFICIALLY ADVISED THAT SUCH LEAVE WOULD BE FORFEITED. SHE POINTS OUT THAT IT IS EXTREMELY ILLOGICAL TO SUPPOSE THAT SHE WOULD FORFEIT LEAVE IF SHE HAD BEEN ADVISED OF THIS RESULT.

THE SELECTIVE SERVICE SYSTEM ON THE OTHER HAND STATES THAT THAT AGENCY'S POLICY GOVERNING ACCRUED ANNUAL LEAVE AT SEPARATION IS COVERED IN THEIR MANPOWER POLICIES AND PROCEDURES MANUAL, CHAPTER 630, SECTION 3.2, WHICH PROVIDES: "EXCEPT IN DOCUMENTED EMERGENCIES, EMPLOYEES WILL BE PERMITTED TO USE, BEFORE SEPARATION OR RESIGNATION, ALL CURRENT ACCRUED LEAVE FOR WHICH THEY MAY NOT RECEIVE A LUMP-SUM PAYMENT." IN ADDITION SECTION 7.1 OF CHAPTER 831 OF THE AFOREMENTIONED MANUAL PERTAINING TO RETIREMENT AND PRE-RETIREMENT COUNSELING PROVIDES:

"ALL ANNUAL LEAVE IN EXCESS OF THAT WHICH THE INDIVIDUAL IS AUTHORIZED TO CARRY OVER FROM YEAR TO YEAR MUST BE USED PRIOR TO RETIRMENT OR IT IS FORFEITED. IT IS UP TO EACH INDIVIDUAL TO MONITOR HIS OWN LEAVE ACCOUNT TO PRECLUDE THE LOSS OF SUCH LEAVE."

THE WISCONSIN STATE HEADQUARTERS OF THE SELECTIVE SERVICE SYSTEM, WHERE MRS. BAER WAS EMPLOYED AS AN APPEAL BOARD CLERK IN THE WESTERN DISTRICT, INDICATES THAT SHE WAS COUNSELED PRIOR TO SEPARATION RELATIVE TO HER RETIREMENT AND POSSIBLE FORFEITURE OF LEAVE.

MRS. BAER CONTENDS WE ERRED IN ACCEPTING STATEMENTS AND INFORMATION SUBMITTED BY GOVERNMENT AGENCIES WHILE DISREGARDING INFORMATION SUBMITTED BY HER. IN THIS CONNECTION, WE POINT OUT THAT WE HAVE NO DIRECT KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES GIVING RISE TO THE MANY CLAIMS RECEIVED IN THIS OFFICE. WE MUST,THEREFORE, BASE OUR DECISIONS ON THE FACTUAL INFORMATION FURNISHED BY THE CLAIMANTS AND REPORTS OBTAINED FROM THE VARIOUS ADMINISTRATIVE AGENCIES. THE SUBMISSION OF A CLAIM TO THIS OFFICE FOR SETTLEMENT DOES NOT, IN AND OF ITSELF, CREATE A PRESUMPTION OF THE CLAIMANT'S ENTITLEMENT TO THE AMOUNT SO CLAIMED. ON THE CONTRARY, ONE WHO ASSERTS A CLAIM HAS THE BURDEN OF FURNISHING SUBSTANTIAL EVIDENCE TO CLEARLY ESTABLISH LIABILITY ON THE PART OF THE GOVERNMENT AND THE CLAIMANT'S RIGHT TO RECEIVE PAYMENT. 4 C.F.R. 31.7. MOREOVER, WHEN DISPUTED QUESTIONS OF FACT ARISE BETWEEN A CLAIMANT AND ADMINISTRATIVE AGENCIES OF THE GOVERNMENT, IT IS THE LONG ESTABLISHED RULE OF THIS OFFICE TO ACCEPT THE STATEMENTS OF FACTS FURNISHED BY ADMINISTRATIVE AGENCIES IN COMP. GEN. 47, 54 (1961), 46 ID. 740, 744 (1967), 51 ID. 541, 543 (1972).

UPON REVIEW OF THE EVIDENCE SUBMITTED BY MRS. BAER, WE FIND THAT IT FALLS FAR SHORT OF OVERCOMING THE STATEMENTS OF FACT PROVIDED BY HER AGENCY AND THEREFORE ON RECONSIDERATION, IT IS DETERMINED THAT THE SETTLEMENT OF NOVEMBER 9, 1973, DISALLOWING MRS. BAER'S CLAIM FOR 96 HOURS OF ANNUAL LEAVE MUST BE SUSTAINED.