B-239118, Sep 18, 1990

B-239118, Sep 18, 1990

CIVILIAN PERSONNEL - Leaves Of Absence - Annual leave - Restoration - Service credits - Computation errors DIGEST: Employee, because of administrative error in computing her service computation date (SCD) (December 28, 1962, rather than her correct SCD of December 29, 1972), used 6 days (48 hours) of annual leave prior to her intended retirement. Employee charged and actually used her annual leave and, therefore, has not forfeited annual leave under 5 U.S.C. Sec. 6304 (1988). Therefore, the leave may not be restored under 5 U.S.C. Sec. 6304(d)(1)(A). The provisions of the Back Pay Act, 5 U.S.C. Sec. 5596, are not applicable since claimant has not suffered a withdrawal or a reduction in pay.

Gerda M. Peterson :

This decision is in response to a joint request /1/ for a decision as to whether Ms. Gerda M. Peterson, an employee of the Department of the Army, is entitled to restoration of annual leave during the period from June 5 through June 12, 1989 (48 hours), used in connection with her intended retirement. The annual leave may not be restored.

The facts, briefly stated, are as follows. Ms. Peterson applied for retirement from the Department of the Army with a proposed retirement date of June 30, 1989. She requested and was granted annual leave from June 5 through June 30, 1989. However, on June 12, Ms. Peterson was informed by the agency that there was an error in her service computation date (SCD). Her correct SCD was December 29, 1972, not December 28, 1962, which was used in determining her retirement date eligibility. Ms. Peterson returned to work on June 22, 1989. She will not be eligible to retire until October 16, 1990.

Ms. Peterson, through her representative, is seeking to have her annual leave restored for the period June 5 through June 12, 1989.

Subsection 6304(d)(1)(A) of title 5, United States Code, 1988, authorizes restoration of lost leave because of an administrative error. When an employee has charged and used annual leave properly, the leave has not been lost within the meaning of section 6304(d)(1)(A). In this case, Ms. Peterson actually used the 48 hours of annual leave in a manner to which she was entitled and, therefore, the annual leave was not lost and may not be restored. /2/

We point out that the provisions of the Back Pay Act, 5 U.S.C. Sec. 5596 (1988), cited by the union representative, are not applicable to the facts of this case. The United States Claims Court has held that the Back Pay Act is not applicable in situations where there has been no withdrawal or reduction in pay. /3/ While there was an administrative error made by the Army, Ms. Peterson has not suffered a withdrawal or reduction in pay.

/1/ The request was submitted by the Department of the Army and the National Federation of Federal Employees pursuant to the labor management relations procedures set forth in 4 C.F.R. Part 22 (1989).

/2/ Adams v. United States, 3 Cl.Ct. 696, 698 (1983); Marguerite D. Roberts, B-233428, Oct. 6, 1989; Phoebe N. Nelson, B-184307, Oct. 21, 1975. Compare Walter E. Blank, 58 Comp.Gen. 507 (1979).

/3/ Featheringill v. United States, 217 Ct.Cl. 24, 31 (1978).