B-180870, AUG 27, 1974

B-180870: Aug 27, 1974

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DID NOT RECEIVE WITHIN GRADE BECAUSE HER ELIGIBILITY FOR SUCH PROMOTION WAS DELAYED UNTIL SEPTEMBER 2. SHE MAY NOT HAVE ANNUAL LEAVE SUBSTITUTED FOR LWOP FOR PURPOSE OF ACCELERATING EFFECTIVE DATE OF WITHIN-GRADE PROMOTION AND INCREASING SEVERANCE PAY SINCE SHE HAD BEEN ADVISED OF CONSEQUENCES OF USE OF EXCESS LWOP. ANNUAL LEAVE MAY BE SUBSTITUTED RETROACTIVELY FOR LWOP WAS CHARGED AS RESULT OF MISTAKE OF LAW OR FACT. 2. LEAVE REQUEST WAS APPARENTLY LOST IN DEPARTMENTAL MAIL. SHE WAS SEPARATED ON AUGUST 31. IF IT FINDS SEPARATION WAS NOT IN CONFORMANCE WITH AGENCY PRACTICE OR REGULATIONS OR INTENT OF PARTIES WITH APPROPRIATE ADJUSTMENTS IN LUMP SUM ANNUAL LEAVE AND SEVERANCE PAY ACCOUNTS SINCE SUCH SEPARATION MAY BE RESCINDED.

B-180870, AUG 27, 1974

1. WHERE EMPLOYEE SEPARATED IN REDUCTION IN FORCE ON AUGUST 21, 1973, DID NOT RECEIVE WITHIN GRADE BECAUSE HER ELIGIBILITY FOR SUCH PROMOTION WAS DELAYED UNTIL SEPTEMBER 2, 1973, BY EXCESS USE OF LEAVE WITHOUT PAY (LWOP), SHE MAY NOT HAVE ANNUAL LEAVE SUBSTITUTED FOR LWOP FOR PURPOSE OF ACCELERATING EFFECTIVE DATE OF WITHIN-GRADE PROMOTION AND INCREASING SEVERANCE PAY SINCE SHE HAD BEEN ADVISED OF CONSEQUENCES OF USE OF EXCESS LWOP, AND ANNUAL LEAVE MAY BE SUBSTITUTED RETROACTIVELY FOR LWOP WAS CHARGED AS RESULT OF MISTAKE OF LAW OR FACT. 2. WHERE EMPLOYEE, WHO RECEIVED NOTICE OF SEPARATION INCIDENT TO REDUCTION IN FORCE, REQUESTED TO BE CARRIED IN LEAVE STATUS UNTIL SEPTEMBER 30, 1973, LEAVE REQUEST WAS APPARENTLY LOST IN DEPARTMENTAL MAIL, AND SHE WAS SEPARATED ON AUGUST 31, 1973, 2 DAYS BEFORE ELIGIBILITY FOR WITHIN-GRADE PROMOTION AND THEREBY SUFFERED LOSS OF SEVERANCE PAY, AGENCY MAY CHANGE SEPARATION DATE TO SEPTEMBER 30, 1973, IF IT FINDS SEPARATION WAS NOT IN CONFORMANCE WITH AGENCY PRACTICE OR REGULATIONS OR INTENT OF PARTIES WITH APPROPRIATE ADJUSTMENTS IN LUMP SUM ANNUAL LEAVE AND SEVERANCE PAY ACCOUNTS SINCE SUCH SEPARATION MAY BE RESCINDED.

SEVERANCE PAY ENTITLEMENT OF EMPLOYEE SEPARATED INCIDENT TO REDUCTION IN FORCE:

THIS DECISION CONCERNING THE SEVERANCE PAY ENTITLEMENT OF MRS. DONNIE TIEMAN IS MADE UPON THE REQUEST OF THE AIR FORCE ACCOUNTING AND FINANCE OFFICER, PETERSON FIELD, COLORADO. THE SUBMISSION STATES THAT MRS. TIEMAN DID NOT BECOME ELIGIBLE FOR A WITHIN-GRADE PROMOTION PRIOR TO HER SEPARATION BECAUSE OF EXCESSIVE USE OF LEAVE WITHOUT PAY AND ASKS WHETHER ANNUAL LEAVE MAY BE SUBSTITUTED FOR 38 HOURS OF LEAVE WITHOUT PAY SO THAT SHE MAY BE GRANTED A WITHIN-GRADE PROMOTION EFFECTIVE PRIOR TO HER SEPARATION AND INCREASED SEVERANCE PAY.

BY LETTER DATED MAY 29, 1973, MRS. TIEMAN, AN EMPLOYEE OF THE 84TH FIGHTER INTERCEPTOR SQUADRON, HAMILTON AIR FORCE BASE, CALIFORNIA, WAS GIVEN AN OFFER TO ACCOMPANY THE TRANSFER OF FUNCTION OF THE SQUADRON TO CASTLE AIR FORCE BASE, CALIFORNIA. HAVING DECLINED THE OFFER, SHE WAS ULTIMATELY SEPARATED FROM THE ROLLS EFFECTIVE AUGUST 31, 1973, AS AN EMPLOYEE AT GRADE 3, STEP 4, $6,740 PER ANNUM, AND WAS PAID $2,216.16 SEVERANCE PAY COMPUTED AT THAT RATE OF PAY. HAD SHE BEEN SEPARATED 2 DAYS LATER, OR HAD SHE TAKEN ANNUAL LEAVE RATHER THAN LEAVE WITHOUT PAY FOR THE PERIOD FROM AUGUST 10 THROUGH AUGUST 17, MRS. TIEMAN WOULD HAVE RECEIVED A WITHIN-GRADE PROMOTION TO GRADE 3, STEP 5, $6,944 PER ANNUM, PRIOR TO SEPARATION AND WOULD HAVE BEEN ENTITLED TO ADDITIONAL SEVERANCE PAY COMPUTED ON THE BASIS OF THAT HIGHER RATE OF PAY.

CONCERNING THE EFFECTIVE DATE OF HER PROPOSED SEPARATION, MRS. TIEMAN WAS ADVISED BY NOTICE OF DECISION TO SEPARATE DATED JUNE 26, 1973, AS FOLLOWS:

"3. IN VIEW OF THE ABOVE, IT HAS BEEN DETERMINED THAT THE SEPARATION ACTION IS FULLY SUPPORTED AND WARRANTED. THIS ACTION WILL BE EFFECTIVE 31 AUGUST 1973 UNLESS YOU REQUEST TO BE CARRIED IN A LEAVE WITHOUT PAY OR ANNUAL LEAVE STATUS FOR 30 ADDITONAL DAYS. YOUR SEPARATION WILL THEN BE EFFECTIVE UPON THE EXPIRATION OF YOUR LEAVE. SHOULD YOU ELECT TO REQUEST LEAVE, PLEASE PREPARE AND SUBMIT AN SF 71, LEAVE APPLICATION, TO YOUR SUPERVISOR FOR HIS APPROVAL AND FORWARDING TO THE CIVILIAN PAY OFFICE."

ALTHOUGH WE WERE ADVISED THAT NO STANDARD FORM 71, APPLICATION FOR LEAVE, WAS RECEIVED BY THE RESPONSIBLE CIVILIAN PAY OFFICE, MRS. TIEMAN STATES THAT SHE DID IN FACT ELECT TO TAKE LEAVE AND TO REMAIN ON THE ROLLS UNTIL SEPTEMBER 30. IN A LETTER DATED SEPTEMBER 18, 1973, SHE REPORTS:

"ATTACHED IS A COPY OF LETTER RECEIVED BY ME, DATED 26 JUNE 1973, INFORMING ME OF SEPARATION DATE EFFECTIVE 31 AUGUST, UNLESS I ELECTED TO TAKE LEAVE AND/OR LEAVE WITHOUT PAY, AND REMAIN ON ROLLS AT HAMILTON AFT UNTIL SEPTEMBER 30TH. THIS I DID ELECT TO DO (I TALKED TO MR. REINALDO AND TO JIM SMOOT, TWO MEN FROM CIVILIAN PERSONNEL ASSIGNED TO HELP THOSE OF US IN 84 FIGHTER INTERCEPTOR SQUADRON WHO RECEIVED RIF NOTICES). THEY TOLD ME THAT IF I DO THIS, THEN I CANNOT APPLY FOR UNEMPLOYMENT BENEFITS UNTIL AFTER 30 SEPTEMBER.

"THIS WAS TO MY ADVANTAGE, AS I HAD PLANNED A TRIP TO MY PARENTS IN OREGON LATE IN SEPTEMBER ANYWAY. THEY DID ASSURE ME THAT WHILE ON LEAVE I WOULD ACCUMULATE LEAVE ***. MR. SMOOT SAID IT WOULD ALSO BE ONE MORE MONTH FOR WHICH I WOULD BE PAID SEVERANCE PAY ***. I ASKED MR. SMOOT IF I SHOULD PERHAPS NOTIFY CIVILIAN PERSONNEL IN WRITING OF MAY REQUEST; HE ASSURED ME THAT I HAD ONLY TO SUBMIT LEAVE REQUEST AS STATED IN PARAGRAPH 3 OF THE LETTER.

"THIS I DID IMMEDIATELY UPON RETURN TO MY OFFICE. CMSGT YOHNER (MY IMMEDIATE SUPERVISOR) TOLD ME CAPT SMIGELSKI WAS CONCERNED THAT THIS MIGHT CAUSE A DELAY IN MY REPLACEMENT ***. I CALLED MR. REINALDO, WHO TOLD ME TO ASSURE CAPT SMIGELSKI IT WOULD NOT. CAPT. SMIGELSKI, BEING AN EXTREMELY CAUTIOUS INDIVIDUAL, THEN CALLED MR. SMOOT PERSONALLY, WHO ASSURED HIM IT WAS ALL RIGHT. CAPT SMIGELSKI THEN APPROVED MY REQUEST FOR LEAVE FOR MONTH OF SEPTEMBER, PLACED IT IN A 'THOUSAND MILER' ENVELOPE, AND I PERSONALLY PLACED IT IN DISTRIBUTION, ADDRESSED AS NOTED IN THE JUNE 26 LETTER."

MRS. TIEMAN REPORTS FURTHER THAT AT LEAST FOUR PEOPLE WERE AWARE OF THE REQUEST FOR LEAVE AND THAT TWO SAW THE SIGNED APPROVAL. THE ADMINISTRATIVE REPORT CONTAINS NO INFORMATION IN THIS REGARD OTHER THAN THE STATEMENT THAT THERE IS NO STANDARD FORM 71, APPLICATION FOR LEAVE, ON RECORD. HAD THE LEAVE REQUEST BEEN RECEIVED AND PROCESSED MRS. TIEMAN WOULD HAVE BEEN SEPARATED ON SEPTEMBER 30, 1973, WELL AFTER THE EFFECTIVE DATE OF HER WITHIN-GRADE INCREASE AS DEFERRED BY HER USE OF LEAVE WITHOUT PAY DISCUSSED BELOW.

MRS. TIEMAN WOULD LIKEWISE HAVE BEEN ENTITLED TO COMPUTATION OF SEVERANCE PAY BASED ON A WITHIN-GRADE INCREASE TO GRADE3, STEP 5, PRIOR TO SEPARATION HAD SHE NOT USED AN EXCESSIVE AMOUNT OF LEAVE WITHOUT PAY. TO CREDITABLE SERVICE FOR THE 104-WEEK WAITING PERIOD BETWEEN WITHIN-GRADE INCREASES FROM STEP 4 TO STEP 5, 5 CFR 531.404(B) PROVIDES:

"(B) FOR A FULL-TIME EMPLOYEE, AND A NON-FULL-TIME EMPLOYEE WITH A PREARRANGED REGULARLY SCHEDULED TOUR OF DUTY, TIME IN A NONPAY STATUS, EXCEPT AS PROVIDED IN SEC. 531.405(B), IS CREDITABLE SERVICE IN THE COMPUTATION OF A WAITING PERIOD WHEN IT DOES NOT EXCEED, IN THE AGGREGATE:

"(1) TWO WORKWEEKS INT HE WAITING PERIOD FOR RATES 2, 3, AND 4:

"(2) FOUR WORKWEEKS INT HE WAITING PERIOD FOR RATES 5, 6, AND 7; AND

"(3) SIX WORKWEEKS INT HE WAITING PERIOD FOR RATES 8, 9, AND 10.

WHEN AN EMPLOYEE HAS TIME IN A NONPAY STATUS IN EXCESS THEREOF, HE SHALL MAKE IT UP WITH CREDITABLE SERVICE BEFORE HIS NEXT WITHIN-GRADE INCREASE IS EFFECTED.

"(C) LEAVE OF ABSENCE GRANTED TO AN EMPLOYEE BECAUSE OF AN INJURY FOR WHICH COMPENSATION IS PAYABLE UNDER SUBCHAPTER I OF CHAPTER 81 OF TITLE 5, U.S.C. IS CREDITABLE SERVICE IN THE COMPUTATION OF A WAITING PERIOD."

HAD MRS. TIEMAN USED NO MORE THAN 160 HOURS OF LEAVE WITHOUT PAY DURING THE 104-WEEK WAITING PERIOD FOR HER WITHIN-GRADE PROMOTION TO STEP 5, SHE WOULD HAVE BECOME ENTITLED TO THE INCREASE ON AUGUST 18, 1973. HOWEVER, SHE USED 198 HOURS DURING THE 104-WEEK WAITING PERIOD, INCLUDING 48 HOURS OF LEAVE WITHOUT PAY DURING THE PERIOD FROM AUGUST 10 THROUGH AUGUST 17. ALTHOUGH SHE MADE UP THE 38 HOURS OF EXCESS LEAVE WITHOUT PAY WHILE IN A WORK STATUS FROM AUGUST 20 THORUGH AUGUST 24, HER WITHIN-GRADE INCREASE COULD NOT BECOME EFFECTIVE UNTIL SETPEMBER 2, 1974, THE FIRST DAY OF THE NEXT PAY PERIOD.

WHILE THE DIRECTOR OF CIVILIAN PERSONNEL, HEADQUARTERS, AEROSPACE DEFENSE COMMAND, FOUND THAT MRS. TIEMAN APPARENTLY HAD BEEN ERRONEOUSLY ADVISED TO REQUEST LEAVE WITHOUT PAY DURING THE PERIOD FROM AUGUST 10 THROUGH AUGUST 17, WHEN SHE HAD SUFFICIENT ANNUAL LEAVE TO COVER THAT PERIOD, AND RECOMMENDED THAT ANNUAL LEAVE BE SUBSTITUTED FOR LEAVE WITHOUT PAY, THE ACCOUNTING AND FINANCE OFFICER FINDS NO BASIS TO SUPPORT A FINDING OF ADMINISTRATIVE ERROR. HE CITES MRS. TIEMAN'S STATEMENT IN HER LETTER OF SEPTEMBER 18, 1973, THAT SHE HERSELF MADE A MISTAKE IN APPLYING FOR THIS PERIOD OF LEAVE WITHOUT PAY. THE RECORD FURTHER REFLECTS THAT SHE HAD BEEN INFORMED BY THE CIVILIAN PAY OFFICE WHEN SHE TOOK PRIOR PERIODS OF LEAVE WITHOUT PAY THAT AN EXCESSIVE USE OF SUCH ABSENCES COULD DELAY THE EFFECTIVE DATE OF HER WITHIN-GRADE INCREASE. IN VIEW OF THESE CIRCUMSTANCES, WE ARE PRESENTED THE FOLLOWING QUESTIONS:

"A. IS IT PROPER TO ADJUST THE EMPLOYEE'S MAY AND LEAVE ACCOUNTS AS STATED IN THE BASE COMMANDER'S DECISION DATED 14 DECEMBER 1973 (TO PERMIT THE SUBSTITUTION OF ANNUAL LEAVE FOR LEAVE WITHOUT PAY) EVEN THOUGH THE OCCURRENCE OF AN ADMINISTRATIVE ERROR CANNOT BE SUBSTANTIATED?

"B. IF ANSWER TO 'A' ABOVE IS NEGATIVE, THEN IS IT PERMISSIBLE FOR A SEPARATED EMPLOYEE TO REQUEST A SUBSTITUTION OF ANNUAL LEAVE FOR LWOP PREVIOUSLY GRANTED FOR THE SOLE PURPOSE OF QUALIFYING FOR A WITHIN GRADE INCREASE PRIOR TO SEPARATION? ***"

IN GENERAL AN EMPLOYEE, WHO APPLIES FOR AND IS GRANTED LEAVE WITHOUT PAY AT A TIME WHEN HE HAS ANNUAL LEAVE TO HIS CREDIT OF WHICH HE HAS KNOWLEDGE, MAY NOT BE PERMITTED TO CONVERT THAT LEAVE WITHOUT PAY TO ANNUAL LEAVE. HOWEVER, WHERE LEAVE WITHOUT PAY IS CHARGED AS A RESULT OF A MISTAKE OF FACT OR LAW, THE ACTION MAY BE CORRECTED TO THE EXTENT OF SUBSTITUTING ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE AT THE TIME HE WAS CHARGED LEAVE WITHOUT PAY. 22 COMP. GEN. 178 (1942), 23 ID. 677, 688 (1944). WE CONCUR THAT THE RECORD DOES NOT CLEARLY INDICATE THAT THERE WAS A MISTAKE SPECIFICALLY AS TO THE GRANTING OF LEAVE WITHOUT PAY DURING THE PERIOD FROM AUGUST 10 THROUGH 17, GIVEN THE FACT THAT MRS. TIEMAN HAD BEEN ADVISED OF THE CONSEQUENCE OF MAKING EXCESS USE OF LEAVE WITHOUT PAY AND IN FACT INTENDED TO TAKE THE LEAVE WITHOUT PAY.

HOWEVER, THE RECORD IS UNCLEAR AS TO WHETHER THERE MIGHT NOT HAVE BEEN A MISTAKE OF A MORE GENERAL CHARACTER AS TO MRS. TIEMAN'S SEPARATION AND THE CONSEQUENCE THEREOF. WE REFER IN THIS REGARD TO THE APPARENT LOSS OF HER LEAVE REQUEST IN THE DEPARTMENT MAIL OR MISHANDLING OF THE REQUEST UPON DELIVERY. WE PRESUME THAT IF THAT REQUEST HAD BEEN PROPERLY RECEIVED AND CONSIDERED IT WOULD HAVE BEEN GRANTED AS A MATTER OF COURSE. IN THAT EVENT MRS. TIEMAN'S TAKING OF LEAVE WITHOUT PAY FOR THE PERIOD FROM AUGUST 10 THROUGH 17 WOULD NOT HAVE HAD THE EFFECT OF DELAYING HER WITHIN-GRADE INCREASE UNTIL A DATE LATER THAN THE DATE OF HER SEPARATION. THUS, IF SHE WAS UNDER THE BELIEF THAT HER SEPARATION DATE WAS TO BE EXTENDED PURSUANT TO HER LEAVE REQUEST AT THE TIME SHE REQUESTED LEAVE WITHOUT PAY, IT IS DIFFICULT TO FIND THAT SHE INTENDED THE CONSEQUENCE OF SEPARATION PRIOR TO THE EFFECTIVE DATE OF THE INCREASE, NOTWITHSTANDING THAT SHE CLEARLY INTENDED THE TAKING OF THE PARTICULAR PERIOD OF LEAVE WITHOUT PAY.

IN GENERAL, AN INDIVIDUAL IN DEALING WITH THE GOVERNMENT DOES NOT BEAR THE RISK OF MISHANDLING OF CORRESPONDENCE IN THE GOVERNMENT MAILS OR AT A GOVERNMENT INSTALLATION. 48 COMP. GEN. 765 (1969). MOREOVER, AN EMPLOYING AGENCY BEARS AN OBLIGATION TO COUNSEL AND TO DEAL IN THE MOST FORTHRIGHT OF MANNERS WITH EMPLOYEES WHO ARE INVOLVED IN A REDUCTION IN FORCE. FEDERAL PERSONNEL MANUAL, CHAPTER 351, SUBCHAPTER 1-8.

ALTHOUGH WE FIND NO BASIS UPON WHICH ANNUAL LEAVE MAY BE SUBSTITUTED FOR THE LEAVE WITHOUT PAY TAKEN BY MRS. TIEMAN, THERE IS FOR THE AGENCY'S CONSIDERATION THE RULE THAT AN OTHERWISE ACCOMPLISHED SEPARATION MAY BE RESCINDED IF IT IS NOT IN CONFORMANCE WITH ESTABLISHED AGENCY PRACTICE OR REGULATIONS OR IF IT DOES NOT CONFORM WITH THE INTENT OF THE PARTIES. UNDER THE PARTICULAR CIRCUMSTANCES HERE INVOLVED THE AGENCY FINDS SUFFICIENT BASIS TO CONCLUDE THAT MRS. TIEMAN'S REQUEST FOR LEAVE THROUGH SEPTEMBER 30, 1973, WAS SIGNED BY THE APPROPRIATE SUPERVISOR AND THAT THE DEPARTMENT'S MAIL SYSTEM OR AGENCY ACTION OR NONACTION RATHER THAN THE EMPLOYEE'S, IS THE DIRECT CAUSE OF THE FAILURE TO GRANT THE PERIOD OF EXTENDED LEAVE WE WOULD HAVE NO OBJECTION TO THE EXTENSION OF MRS. TIEMAN'S SEPARATION DATE THROUGH SEPTEMBER 30, WITH COMMENSURATE ADJUSTMENTS IN HER LUMP-SUM LEAVE ACCOUNT, AND SEVERANCE PAY.