B-206347 L/M, APR 6, 1982, OFFICE OF GENERAL COUNSEL

B-206347 L/M, APR 6, 1982, OFFICE OF GENERAL COUNSEL

DIGEST: WHERE EMPLOYEE WAS ERRONEOUSLY PLACED BY THE AGENCY IN A HIGHER LEAVE EARNING CATEGORY THAN THAT TO WHICH HE WAS ENTITLED, AGENCY WOULD BE REQUIRED TO REDUCE HIS LEAVE BALANCE. EXCESS LEAVE WOULD NOT BE SUBJECT TO WAIVER UNDER 5 U.S.C. 5584, WHERE THE CORRECTION OF THE LEAVE ACCOUNT DID NOT RESULT IN A NEGATIVE LEAVE BALANCE.

MR. ROBERT T. RICHARDS:

WE REFER TO YOUR LETTER OF JANUARY 28, 1982, WITH ENCLOSURES, CONCERNING THE RECOUPMENT OF EXCESS LEAVE WHICH RESULTED FROM YOUR AGENCY'S ERRONEOUSLY PLACING YOU IN A HIGHER LEAVE EARNING CATEGORY THAN THAT TO WHICH YOU WERE ENTITLED. THIS ERROR RESULTED FROM THE AGENCY'S CREDITING YOUR PRIOR MILITARY SERVICE FOR ANNUAL LEAVE ACCRUAL PURPOSES WHEREAS YOU INDICATE THAT YOU WERE NOT ENTITLED TO SUCH CREDIT DUE TO YOUR STATUS AS A RETIRED MEMBER OF A UNIFORMED SERVICE. SEE 5 U.S.C. 6303(A).

THE EARNINGS AND LEAVE STATEMENTS WHICH YOU HAVE SUBMITTED INDICATE THAT YOUR ANNUAL LEAVE ACCOUNT HAS BEEN ADJUSTED TO REFLECT YOUR PROPER LEAVE EARNING CATEGORY AND THAT THIS ADJUSTMENT REDUCED YOUR ANNUAL LEAVE BALANCE TO 25 HOURS FOR THE PAY PERIOD ENDING DECEMBER 26, 1981. YOU BELIEVE THAT THE EXCESS ANNUAL LEAVE SHOULD NOT HAVE BEEN RECOVERED SINCE YOU WERE NOT AT FAULT IN THE MATTER. IN THE ALTERNATIVE, YOU ARGUE THAT IF YOUR ANNUAL LEAVE ACCOUNT IS REQUIRED TO BE ADJUSTED AS A RESULT OF THE EXCESS LEAVE CREDIT, THEN SUCH ADJUSTMENT SHOULD BE MADE IN GRADUAL INCREMENTS.

GENERALLY, WHERE AN INDIVIDUAL IS CREDITED WITH LEAVE IN EXCESS OF THAT TO WHICH HE IS OTHERWISE ENTITLED, A REDUCTION IN LEAVE BALANCE WOULD BE REQUIRED IN THE ABSENCE OF A STATUTE PROVIDING OTHERWISE. WE NOTE THAT THE WAIVER STATUTE, 5 U.S.C. 5584 (1976) PROVIDES THAT A CLAIM OF THE UNITED STATES AGAINST AN EMPLOYEE ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY OR ALLOWANCES MAY BE WAIVED, IN WHOLE OR IN PART, BY THE COMPTROLLER GENERAL OF THE UNITED STATES OR BY THE HEAD OF THE AGENCY IF COLLECTION "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES." HOWEVER, WHEN AN EMPLOYEE HAS BEEN ERRONEOUSLY CREDITED WITH ANNUAL LEAVE WAIVER MAY BE CONSIDERED ONLY WHEN CORRECTION OF THE EMPLOYEE'S LEAVE ACCOUNT RESULTS IN A NEGATIVE LEAVE BALANCE. OTHERWISE, THERE IS NO OVERPAYMENT WHICH MAY BE CONSIDERED FOR WAIVER SINCE THE ERROR MAY BE CORRECTED BY REDUCTION OF THE EMPLOYEE'S POSITIVE LEAVE BALANCE. SEE MATTER OF DE LILLE, 56 COMP.GEN. 824 (1977). AS STATED ABOVE, THE ENCLOSURES FORWARDED WITH YOUR LETTER INDICATE THAT THE CORRECTION OF YOUR ANNUAL LEAVE ACCOUNT RESULTED IN A POSITIVE ANNUAL LEAVE BALANCE OF 25 HOURS.

CONCERNING YOUR REQUEST THAT THE EXCESS LEAVE BE RECOVERED IN GRADUAL INCREMENTS WE ARE NOT AWARE OF ANY LAW OR REGULATION WHICH WOULD PERMIT AN AGENCY TO CORRECT AN EMPLOYEE'S ERRONEOUS LEAVE ACCOUNT ON AN INSTALLMENT- TYPE BASIS WHERE RECONSTRUCTION OF THE LEAVE ACCOUNT RESULTS IN A POSITIVE LEAVE BALANCE. THUS, THERE WOULD APPEAR TO BE NO PROPER BASIS TO QUESTION THE ADMINISTRATIVE ACTION ADJUSTING THE LEAVE BALANCE IN YOUR CASE. NOTE THAT THE EMPLOYING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR THE ADMINISTRATION OF LEAVE. SEE FEDERAL PERSONNEL MANUAL, CHAPTER 630, PARA. 1-3.

WE TRUST THAT THE ABOVE INFORMATION WILL SERVE THE PURPOSE OF YOUR INQUIRY.