B-153304, FEB. 11, 1964
Highlights
WITH 44 HOURS OF ANNUAL LEAVE WHICH HE MAINTAINS WERE ERRONEOUSLY CHARGED TO HIM IN 1949. SMITH IS A CRIMINAL INVESTIGATOR IN THE ALCOHOL AND TOBACCO TAX DIVISION. WILL BE ADDED TO HIS PRESENT CEILING OF 614 HOURS FOR LUMP SUM PAYMENT PURPOSES. SEPTEMBER AND OCTOBER 1949 WERE APPROVED AND THAT HE WAS CHARGED FOR SUCH LEAVE ALTHOUGH IT WAS NOT USED. HE CONTENDS ALSO THAT HE REQUESTED RESTORATION OF THE LEAVE IN DECEMBER 1949 BUT HIS REQUEST WAS DENIED. HE SAYS THE MATTER WAS HELD IN ABEYANCE SINCE HE FELT THAT IT WOULD BE USELESS TO PURSUE THE MATTER FURTHER AS LONG AS THE SAME SUPERVISOR WAS IN CHARGE. AS POINTED OUT IN THE FILE THE TIME AND ATTENDANCE RECORDS ARE DESTROYED AFTER 3 YEARS. WHILE THE EMPLOYEE MAY HAVE RENDERED SOME SERVICE ON THE DATES INVOLVED IT CANNOT BE ESTABLISHED FROM OFFICIAL RECORDS THAT HE WAS CHARGED LEAVE ON THOSE DAYS.
B-153304, FEB. 11, 1964
TO THE SECRETARY OF THE TREASURY:
BY LETTER OF JANUARY 13, 1964, THE ADMINISTRATIVE ASSISTANT SECRETARY OF YOUR DEPARTMENT REQUESTED OUR ADVICE AS TO WHETHER THE INTERNAL REVENUE SERVICE MAY RECREDIT THE LEAVE ACCOUNT OF JOEL L. SMITH, AN EMPLOYEE OF THAT SERVICE, WITH 44 HOURS OF ANNUAL LEAVE WHICH HE MAINTAINS WERE ERRONEOUSLY CHARGED TO HIM IN 1949.
THE RECORD INDICATES THAT MR. SMITH IS A CRIMINAL INVESTIGATOR IN THE ALCOHOL AND TOBACCO TAX DIVISION, ATLANTA REGION. IT APPEARS THAT HE MAY RETIRE FOR DISABILITY IN THE NEAR FUTURE AND THE LEAVE, IF RESTORED, WILL BE ADDED TO HIS PRESENT CEILING OF 614 HOURS FOR LUMP SUM PAYMENT PURPOSES.
AS SET FORTH IN THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER THE EMPLOYEE CONTENDS THAT HIS APPLICATION FOR LEAVE ON SPECIFIED DAYS IN AUGUST, SEPTEMBER AND OCTOBER 1949 WERE APPROVED AND THAT HE WAS CHARGED FOR SUCH LEAVE ALTHOUGH IT WAS NOT USED. HE CONTENDS ALSO THAT HE REQUESTED RESTORATION OF THE LEAVE IN DECEMBER 1949 BUT HIS REQUEST WAS DENIED. THEREAFTER, HE SAYS THE MATTER WAS HELD IN ABEYANCE SINCE HE FELT THAT IT WOULD BE USELESS TO PURSUE THE MATTER FURTHER AS LONG AS THE SAME SUPERVISOR WAS IN CHARGE.
IN SUPPORT OF MR. SMITH'S CONTENTIONS CERTAIN INFORMATION HAS BEEN SUBMITTED WHICH INDICATES THAT HE DID RENDER SOME SERVICE ON THE DAYS IN QUESTION (ON 3 OF WHICH HE ASKS RECREDIT OF ONLY 4 HOURS EACH), AND IN ADDITION THERE HAS BEEN FURNISHED A STATEMENT OF HIS PRESENT SUPERVISOR, DATED MAY 8, 1963, TO THE EFFECT THAT HE, AS A SPECIAL INVESTIGATOR, WORKED WITH MR. SMITH IN CHOCTAW COUNTY, ALABAMA, ON AUGUST 30 AND 31, 1949.
AS POINTED OUT IN THE FILE THE TIME AND ATTENDANCE RECORDS ARE DESTROYED AFTER 3 YEARS. THEREFORE, WHILE THE EMPLOYEE MAY HAVE RENDERED SOME SERVICE ON THE DATES INVOLVED IT CANNOT BE ESTABLISHED FROM OFFICIAL RECORDS THAT HE WAS CHARGED LEAVE ON THOSE DAYS. FURTHERMORE, THE SUPERVISOR WHO WAS IN POSSESSION OF ALL THE FACTS, OR AT LEAST HAD ACCESS TO THE RECORDS, DENIED THE REQUEST FOR RESTORATION OF THE LEAVE APPARENTLY DURING THE SAME LEAVE YEAR THE CHARGES WERE ENTERED. ALTHOUGH THE EMPLOYEE SAYS THE ACTION WAS ARBITRARY HE DID NOT MAKE A TIMELY APPEAL THEREFROM AND IN THE ABSENCE OF CLEAR PROOF TO THE CONTRARY WE MUST ASSUME THAT THE DENIAL WAS NOT IMPROPER. WE POINT OUT THAT EVEN IF IT BE DETERMINED THAT THE EMPLOYEE WAS ERRONEOUSLY CHARGED WITH THE 44 HOURS THERE ARE NO RECORDS TO SHOW WHETHER THE ADDITION OF THE 44 HOURS TO THE EMPLOYEE'S ACCRUED LEAVE WOULD BE BELOW THE MAXIMUM LEAVE CEILING APPLICABLE TO HIM IN 1949 AND SUBSEQUENT YEARS.
UPON THE PRESENT RECORD IF THE MATTER WAS BEFORE US FOR SETTLEMENT OF A CLAIM FOR LUMP-SUM LEAVE PAYMENT WE FEEL THAT WE WOULD BE REQUIRED TO DENY PAYMENT FOR THE 44 HOURS IN QUESTION. THEREFORE, MR. SMITH MAY NOT BE CREDITED WITH SUCH LEAVE.