B-155548, AUG. 11, 1965

B-155548, AUG. 11, 1965

TO MR. ERVIN M. BORGFELDT:

WE REFER TO YOUR LETTER OF JULY 26, 1965, PERTAINING TO THE FORFEITURE OF ANNUAL LEAVE INCIDENT TO YOUR SERVICE WITH THE DEPARTMENT OF THE NAVY.

THE PERTINENT FACTS IN BRIEF ARE AS FOLLOWS: ON JANUARY 14, 1964, YOU APPLIED FOR AND WERE GRANTED INDEFINITE SICK LEAVE BECAUSE OF A BACK INJURY SUSTAINED IN AN OFF DUTY AUTOMOBILE ACCIDENT. YOU WERE RELEASED FOR RETURN TO DUTY ON APRIL 6, 1964, BY DR. GEORGE E. SWANSON, D.C., WHO HAD TREATED YOU REGULARLY FOR SUCH INJURY AND YOU REPORTED FOR DUTY ON THAT DATE. HOWEVER, YOUR SUPERVISOR REQUIRED THAT YOU OBTAIN CLEARANCE FOR RESUMPTION OF DUTY FROM THE STATION MEDICAL OFFICER. APPARENTLY THROUGH NO FAULT OF YOUR OWN THERE OCCURRED A SERIES OF DELAYS FOLLOWING WHICH YOU WERE ADVISED TO REPORT FOR DUTY ON JUNE 3. FOR PERSONAL REASONS YOU DID NOT REPORT UNTIL 11:30 A.M., JUNE 4, 1964.

THE QUESTION AS TO THE PROPRIETY OF RECREDITING THE INVOLUNTARY SICK AND ANNUAL LEAVE WITH WHICH YOU WERE CHARGED DURING THE PERIOD APRIL 6 THROUGH JUNE 2, 1964, WAS PRESENTED HERE AND IN OUR DECISION OF DECEMBER 17, 1964, B-155548, TO THE SECRETARY OF THE NAVY WE HELD THAT RESTORATION THEREOF TO YOUR LEAVE ACCOUNT WAS PROPER.

IN YOUR PRESENT LETTER YOU STATE THAT YOU WERE NOT INFORMED OF THE DECISION UNTIL DECEMBER 29, 1964, AT WHICH TIME THERE REMAINED ONLY TWO DAYS OF THE LEAVE YEAR AND AS A RESULT 185 HOURS OF THE ANNUAL LEAVE SO RECREDITED WERE FORFEITED AS BEING IN EXCESS OF YOUR LEAVE CEILING. YOU ALSO POINT OUT THE DELAYS ENCOUNTERED IN OBTAINING THE DECISION AND THE FURTHER DELAY IN RECEIVING NOTICE THEREOF AND REQUEST THAT YOU BE AWARDED "THE 185 HOURS OF LEAVE PAYMENT THAT (WE) PREVIOUSLY GRANTED" IN THE CITED DECISION.

SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 2062 (C), READS AS FOLLOWS:

"/C) ACCUMULATION OF UNUSED LEAVE; MAXIMUM.

"THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION, WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE, SHALL ACCUMULATE FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT TO EXCEED THIRTY DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN ANY YEAR.'

ON THE BASIS OF THIS POSITIVE STATUTORY LIMITATION ANY ANNUAL LEAVE IN EXCESS THEREOF TO WHICH AN EMPLOYEE OTHERWISE MAY BE ENTITLED IS FORFEITED BY LAW IF NOT USED PRIOR TO THE BEGINNING OF THE NEW LEAVE YEAR. WE KNOW OF NO LAW WHICH WOULD OPERATE TO PERMIT THE WAIVER OF THE SPECIFIC STATUTORY LIMITATION EVEN WHEN THE FORFEITURE RESULTS FROM ADMINISTRATIVE ERROR OR FROM OTHER CIRCUMSTANCES BEYOND THE CONTROL OF THE EMPLOYEE. WHILE WE REGRET THAT ACTION TO RESTORE THE LEAVE WAS NOT TAKEN IN TIME TO PERMIT YOU TO MAKE USE THEREOF WE ARE POWERLESS AT THIS TIME TO AUTHORIZE ANY ADJUSTMENT OF THE MATTER. SEE 36 COMP. GEN. 596.