B-209769, MAR 28, 1983

B-209769, MAR 28, 1983

DIGEST: EMPLOYEE, WHO AFTER 20 YEARS OF MILITARY SERVICE RETIRED AND WAS EMPLOYED IN A FEDERAL CIVILIAN AGENCY IN 1976, APPEALS THE DENIAL OF HIS CLAIM FOR RECREDIT OF LEAVE AVAILABLE AT THE TIME HE LEFT HIS CIVILIAN EMPLOYMENT AND ENTERED MILITARY SERVICE IN 1955. IN THE ABSENCE OF OFFICIAL RECORDS OR CORROBORATING EVIDENCE, THE EMPLOYEE'S ESTIMATE ALONE IS INSUFFICIENT TO CERTIFY A PRIOR LEAVE BALANCE UPON REEMPLOYMENT IN A CIVILIAN POSITION.

JOHN H. ADAMS:

BY LETTER OF OCTOBER 19, 1982, JOHN H. ADAMS APPEALED OUR CLAIMS GROUP'S SETTLEMENT ISSUED JUNE 22, 1982, WHICH DENIED HIS CLAIM FOR RECREDIT OF SICK LEAVE TO HIS CREDIT AT THE TIME HE ENTERED ON ACTIVE DUTY IN THE MILITARY IN 1955. THE ACTION OF THE CLAIMS GROUP IS SUSTAINED SINCE GOVERNMENT RECORDS DO NOT SHOW, AND MR. ADAMS HAS NOT VERIFIED, THE NUMBER OF HOURS OF LEAVE TO HIS CREDIT AT THE TIME OF HIS ENTRANCE ON ACTIVE DUTY.

ON JULY 12, 1955, MR. ADAMS, THEN AN EMPLOYEE OF THE POST OFFICE, WASHINGTON, D. C., ENTERED ON ACTIVE DUTY WITH THE UNITED STATES AIR FORCE. HE WAS GRANTED A MILITARY FURLOUGH BY THE POST OFFICE EFFECTIVE THAT DATE WHICH WAS SUBSEQUENTLY CONVERTED TO A SEPARATION ON JUNE 20, 1960, WHEN MR. ADAMS INDICATED HIS INTENTION TO REMAIN IN THE AIR FORCE.

MR. ADAMS RETIRED FROM THE AIR FORCE ON JUNE 30, 1976, AND WAS EMPLOYED BY THE ENVIRONMENTAL PROTECTION AGENCY. UNDER APPLICABLE REGULATIONS, 5 C.F.R. 630.504, HE WAS ENTITLED TO RESTORATION OF LEAVE TO HIS CREDIT AT THE TIME HE ENTERED ON ACTIVE DUTY. HOWEVER, THE POST OFFICE DID NOT PREPARE THE APPROPRIATE FORM (SF-1150) AT THE TIME OF HIS SEPARATION IN 1960 TO INDICATE THE AMOUNT OF LEAVE, IF ANY, MR. ADAMS HAD TO HIS CREDIT AT THE TIME HE ENTERED ON ACTIVE DUTY IN 1955. A SEARCH OF GOVERNMENT RECORDS PRODUCED NO DOCUMENTARY EVIDENCE OF THE AMOUNT OF LEAVE HE MAY HAVE HAD TO HIS CREDIT IN 1955, NOR HAS MR. ADAMS BEEN ABLE TO FURNISH ANY SUCH EVIDENCE. HIS CLAIM WAS DENIED BY THE CLAIMS GROUP FOR INSUFFICIENT PROOF.

ALTHOUGH HE FIRST CLAIMED 91 HOURS OF SICK LEAVE, MR. ADAMS NOW CONTENDS THAT HE IS AT LEAST ENTITLED TO RECREDIT OF 39 HOURS OF SICK LEAVE AND 15 HOURS OF ANNUAL LEAVE WHICH HE HAD TO HIS CREDIT AND WHICH WERE TRANSFERRED TO THE POST OFFICE ON NOVEMBER 20, 1954, BY HIS PREVIOUS EMPLOYER, THE NATIONAL SECURITY AGENCY. HE STATES THAT THERE IS NO INDICATION HE USED THIS LEAVE AND THAT THE POST OFFICE ERRED IN FAILING TO PREPARE THE PROPER DOCUMENTATION AT HIS SEPARATION, THAT IS, AN SF-1150.

MR. ADAMS' CLAIM INVOLVES THE CERTIFICATION OF LEAVE CREDITS. IN OUR DECISION IN 32 COMP.GEN. 310 (1953) WE HELD THAT THE DETERMINATION AS TO WHETHER LEAVE SHOULD BE CREDITED INCIDENT TO A TRANSFER TO AN AGENCY UNDER A DIFFERENT LEAVE SYSTEM IS THE PRIMARY RESPONSIBILITY OF THE AGENCY INVOLVED. WE SET FORTH THE FOLLOWING RULE FOR GENERAL APPLICATION IN INSTANCES WHERE THERE ARE NO OFFICIAL RECORDS FROM WHICH TO CONSTRUCT AN EMPLOYEE'S LEAVE ACCOUNT:

"*** IT IS THE VIEW OF THIS OFFICE THAT THE FURNISHING OF CERTIFICATIONS OF LEAVE CREDITS BASED UPON OTHER THAN OFFICIAL RECORDS IS NOT TO BE SANCTIONED. HOWEVER, IN LIEU OF A CERTIFICATION, WHERE NO OFFICIAL RECORDS ARE AVAILABLE, THERE SHOULD BE FURNISHED STATEMENTS TO REQUESTING AGENCIES OF ANY OTHER EVIDENCE WHICH MAY BE AVAILABLE IN RESPECT OF EMPLOYEES' LEAVE CREDITS, INCLUDING AN ESTIMATE OF HIS LEAVE CREDIT, IF POSSIBLE. ANY SUCH STATEMENTS SHOULD CLEARLY REFLECT THE FACTORS FORMING THE BASIS OF THE ESTIMATE. THE AGENCY WHERE THE EMPLOYEE CURRENTLY IS EMPLOYED MAY THEN DETERMINE WHETHER UPON THE BASIS OF SUCH SHOWING A CREDIT OF LEAVE MAY BE MADE." 32 COMP.GEN. 310, 314.

MORE SPECIFICALLY, WE HAVE HELD THAT WHERE AN EMPLOYEE'S LEAVE RECORDS HAVE BEEN DESTROYED, AN AGENCY MAY ACCEPT AS EVIDENCE OF LEAVE USAGE THE OFFICIALLY APPROVED LEAVE REQUESTS. B-175742, JUNE 20, 1972. ADDITION, WE HAVE HELD THAT ACCEPTABLE SECONDARY EVIDENCE WHICH COULD SERVE AS A BASIS FOR CREDITING LEAVE INCLUDES TIME AND ATTENDANCE REPORTS, LEAVE AND EARNINGS STATEMENTS, PERSONAL LEAVE RECORDS, AS WELL AS CERTIFICATES OF FORMER SUPERVISORS AND TIMEKEEPERS INDICATING LEAVE EARNED AND USED. MATTER OF JONES, B-189288, NOVEMBER 23, 1977; MATTER OF BONNER, 58 COMP.GEN. 741 (1979).

THE ONLY EVIDENCE IN MR. ADAMS' SITUATION IS THE AMOUNT OF LEAVE TO HIS CREDIT AT THE TIME HE BEGAN WORKING FOR THE POST OFFICE IN 1954. PAY RECORDS AVAILABLE DO NOT INDICATE WHETHER LEAVE WAS USED, AND TIME AND ATTENDANCE RECORDS HAVE BEEN DESTROYED. WHILE IT IS UNFORTUNATE THAT THE POST OFFICE ERRED IN FAILING TO DOCUMENT MR. ADAMS' LEAVE BALANCE AT THE TIME OF HIS SEPARATION, IN THE ABSENCE OF ANY OFFICIAL RECORDS OR OTHER CORROBORATING EVIDENCE, THE EMPLOYEE'S STATEMENT ALONE THAT HE DID NOT USE THE TRANSFERRED LEAVE IS INSUFFICIENT TO FORM A BASIS ON WHICH TO CERTIFY HIS PRIOR LEAVE BALANCE. ACCORDINGLY, THE ACTION OF THE CLAIMS GROUP IS SUSTAINED.