B-245117, Jan, 1992

B-245117: Jan 1, 1992

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DIGEST: Even though an employee may have submitted a schedule for use of annual leave prior to expiration of the 1986 leave year. Mikos: This decision is in response to an appeal by Mr. Which denied his claim for restoration of 172 hours of annual leave forfeited during the 1986 leave year. /1/ His claim was denied because the Claims Group concluded that there was no evidence in the record that Mr. The proposed schedule was signed by Mr. The schedule was not approved. Was allowed to remain on the agency rolls at his full rate of pay until August 11. Mikos argues that he was prevented from using his annual leave during the 1986 leave year due to exigencies of the public business and sickness.

B-245117, Jan, 1992

DIGEST: Even though an employee may have submitted a schedule for use of annual leave prior to expiration of the 1986 leave year, his annual leave may not be restored where he cancelled the leave requested for reasons other than exigency or sickness.

George H. Mikos:

This decision is in response to an appeal by Mr. George H. Mikos, a retired employee of the Department of the Army, of the settlement by our Claims Group dated June 7, 1991, which denied his claim for restoration of 172 hours of annual leave forfeited during the 1986 leave year. /1/ His claim was denied because the Claims Group concluded that there was no evidence in the record that Mr. Mikos had scheduled the use of the annual leave in advance.

In his letter of appeal, Mr. Mikos contends that he did schedule the use of his annual leave in a fashion that satisfies the time requirements of 5 U.S.C. Sec. 6304(d)(1)(B) and (C) by submitting his 1986 leave schedule on April 11, 1986. This schedule showed his proposed use of annual leave from February 11, 1986, through January 9, 1987. The proposed schedule was signed by Mr. Mikos. The schedule was not approved, in writing, by his supervisor.

In December 1986, Mr. Mikos's supervisor advised him that he should use his annual leave or face the possibility of losing it. In the latter part of December 1986, the Army approved Mr. Mikos's retirement under the optional-in-lieu of disability retirement provisions which would permit him to exhaust his sick leave prior to going off the agency rolls. opted to retire under these provisions. He began sick leave on January 2, 1987, and was allowed to remain on the agency rolls at his full rate of pay until August 11, 1988, when he retired. As a result of this decision, he forfeited approximately 172 hours of annual leave. On December 29, 1986, Mr. Mikos made a written request that his excess annual leave for 1986 be credited to the 1987 leave year since personal illness had prevented him from using it.

Mr. Mikos argues that he was prevented from using his annual leave during the 1986 leave year due to exigencies of the public business and sickness. Mr. Mikos initially appealed the denial of his claim for restoration of annual leave to the Merit Systems Protection Board which, by decision dated January 17, 1990, denied his appeal due to lack of jurisdiction over his monetary claim.

An investigation conducted by the Department of the Army discloses that each of the 20 days submitted by Mr. Mikos in April 1986 for use of annual leave was canceled by him. The investigation further showed that there was no evidence of exigencies of the public business on the days that were canceled for that reason. In addition, on the days during which the use of annual leave was canceled for sickness, the claimant's leave records show that he did not use sick leave during the pay periods involved.

Annual leave which is forfeited under 5 U.S.C. Sec. 6304(a) may be restored only under the limited circumstances set forth in 5 U.S.C. Sec. 6304(d)(1) because of (B) exigencies of the public business or (C) sickness of the employee. Both exceptions apply only when the annual leave was scheduled in advance. The implementing regulation, 5 C.F.R. Sec. 630.308 provides that, before forfeited annual leave may be restored, use of the leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year. The scheduling requirement may not be waived or modified even though extenuating circumstances may be present. See Michael Dana, et al., 56 Comp.Gen. 470, 472 (1977); Dr. W. Newlin Hewson, B-193567, May 24, 1979.

In interpreting these statutory and regulatory provisions, this Office has held that where the employee's use of her annual leave was never approved in writing by her supervisor, it was not scheduled in advance within the meaning of 5 U.S.C. Sec. 6304(d)(1)(B) (exigencies of the public business). See Rikka Pulliam, B-229228, Jan. 21, 1988.

As we stated in Pulliam, the scheduling requirement contemplates that the request to use a specific amount of annual leave on specific dates be submitted and approved at least three pay periods in advance of the end of the leave year. If such scheduled leave is not used, it is forfeited, and a request for restoration of the leave may be submitted. However, the threshold requirement for restoration under the statute is the formal scheduling of the annual leave which was forfeited.

Here, even though Mr. Mikos may have submitted a leave schedule for 1986 in April of that year, the record shows that he canceled the leave requested for reasons other than exigency or sickness. There is no evidence that he submitted any subsequent leave schedule thereafter. Accordingly, the restoration of the annual leave in question is precluded by the lack of an approved leave schedule.

Therefore, Mr. Mikos's claim for restoration of the forfeited annual leave for the 1986 leave year may not be allowed. The settlement action of June 7, 1991, by our Claims Group, is sustained.