B-171947, DEC 13, 1973

B-171947, DEC 13, 1973

EMPLOYEE TRANSFERRED FROM HOME OWNERS' LOAN CORPORATION TO NAVY FEBRUARY 3, 1941, WAS ERRONEOUSLY NOT CREDITED WITH 276 HOURS OF ANNUAL LEAVE AND 344 HOURS OF SICK LEAVE. UPON CORRECTION IN 1973 EMPLOYEE WAS CORRECTLY RECREDITED WITH ONLY 49 HOURS OF ANNUAL LEAVE AND 206 HOURS OF SICK LEAVE SINCE THE REMAINING LEAVE WAS FORFEITED BY OPERATION OF LAW. SEE COMP. GEN. DECISIONS CITED.

TO MR. EUGENE J. CAVALLO:

THIS REFERS FURTHER TO YOUR LETTERS OF JULY 19 AND SEPTEMBER 28, 1973, IN WHICH YOU IN EFFECT APPEAL THE ACTION OF THE DEPARTMENT OF THE NAVY IN NOT GIVING YOU FULL CREDIT AT THE TIME FOR YOUR SEPARATION FOR ANNUAL AND SICK LEAVE YOU HAD ACCRUED PRIOR TO FEBRUARY 3, 1941, WHILE YOU WERE AN EMPLOYEE OF THE HOME OWNERS' LOAN CORPORATION.

YOU SOUGHT ADVICE FROM THIS OFFICE CONCERNING THE ABOVE PROBLEM IN NOVEMBER 1972. WE RESPONDED TO YOUR INQUIRY BY LETTER B-171947, DATED JANUARY 11, 1973, IN WHICH WE ADVISED YOU IN PART AS FOLLOWS:

"*** THE RECREDITING OF LEAVE TO AN EMPLOYEE'S ACCOUNT IS PRIMARILY A MATTER FOR DETERMINATION BY THE AGENCY IN WHICH HE IS CURRENTLY EMPLOYED. B-172557, APRIL 14, 1972; B-171351, JANUARY 18, 1971. THEREFORE, THAT DEPARTMENT SHOULD MAKE THE DETERMINATION AS TO WHETHER IT IS NOW POSSIBLE TO CREDIT YOU WITH THE LEAVE IN QUESTION. OF COURSE THIS WOULD INVOLVE THE RECONSTRUCTION OF YOUR LEAVE ACCOUNT OVER A PERIOD IN EXCESS OF THIRTY YEARS INCLUDING THE APPLICATION OF MAXIMUM LIMITATIONS. THE LIMITATIONS IN 1941 WERE 60 DAYS FOR ANNUAL LEAVE AND 90 DAYS FOR SICK LEAVE. IT IS POSSIBLE THAT THIS COULD NOT BE DONE AT THIS TIME BECAUSE OF LACK OF RECORDS WHICH MAY HAVE BEEN DESTROYED OR ARE NOT OTHERWISE AVAILABLE."

ON JUNE 7, 1973, THE SUPERVISOR, PAYROLL SECTION, HUNTERS POINT NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA, IN RESPONSE TO AN INQUIRY INITIATED BY YOU, SENT YOU A MEMORANDUM INDICATING THAT YOUR ANNUAL AND SICK LEAVE BALANCES HAD BEEN RETROACTIVELY ADJUSTED SUBJECT TO MAXIMUM LIMITATIONS ON ACCUMULATION ON LEAVE AS FOLLOWS:

"BEFORE YOU RETIRED 15 MARCH 1973 FROM NAVAL SHIPS COMMAND A LETTER WAS SENT TO THE DIRECTOR OF CIVILIAN MANPOWER MANAGEMENT REQUESTING RESTORATION OF LEAVE THAT YOU HAD WAIVED RIGHTS TO IN 1941 TO ACCEPT A JOB AT THE MARE ISLAND NAVAL SHIPYARD. THE RESTORATION OF LEAVE WAS APPROVED BUT SUBJECT TO LIMITATIONS ON THE ACCUMULATION OF LEAVE. IN 1952 THE LEAVE SYSTEM WAS REVISED DUE TO THE PASSAGE OF ANNUAL AND SICK LEAVE ACT OF 1951 (TITLE II, PUBLIC LAW 233-82ND CONGRESS, APPROVED 30 OCTOBER 1951). IN 1952 YOUR ANNUAL LEAVE BALANCE FORWARD WAS 431 HOURS. YOU WERE RESTORED 276 HOURS FOR A TOTAL BALANCE OF 707 HOURS ANNUAL LEAVE. SINCE THERE WAS A 60 DAY MAXIMUM ACCUMULATION, YOU WERE CREDITED WITH ONLY 480 HOURS ANNUAL LEAVE AND YOU LOST 227 HOURS.

"IN 1952 AT THE BEGINNING OF THE YEAR YOUR SICK LEAVE BALANCE WAS 714 HOURS AND YOU WERE RESTORED 344 HOURS. THE TOTAL BALANCE OF SICK LEAVE WAS 1058 HOURS. THE SICK LEAVE LIMITATION WAS 720 HOURS AND THE CHANGE TO 13 DAYS A YEAR WITH NO LIMIT IN ACCUMULATION WAS NOT EFFECTIVE UNTIL THE PAY PERIOD BEGINNING 6 JANUARY 1972 (SHOULD READ 6 JANUARY 1952). THEREFORE, YOUR SICK LEAVE BALANCE WAS 720 HOURS."

THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, YOUR EMPLOYER AT THE TIME OF YOUR SEPARATION, FORWARDED YOU A LETTER ON JULY 17, 1973, CONTAINING A SUMMATION OF YOUR LEAVE RECORD FOR THE PERIOD JULY 1, 1970, THROUGH MARCH 15, 1973, AS CORRECTED TO REFLECT THE LEAVE RECREDITED TO YOUR ACCOUNT BY THE PAYROLL SECTION, HUNTERS POINT NAVAL SHIPYARD. THAT LETTER STATED THAT AS OF MARCH 15, 1973, YOUR DATE OF SEPARATION, YOU HAD A BALANCE OF 240 HOURS OF ANNUAL AND NO HOURS OF SICK LEAVE. YOU WERE GIVEN A LUMP-SUM PAYMENT FOR YOUR ACCRUED ANNUAL LEAVE. THE SUMMATION CONTAINED IN THE LETTER IS AS FOLLOWS:

"A SUMMATION OF YOUR LEAVE RECORD FOR THE PERIOD 1 JULY 1970 THROUGH 15 MARCH 1973 IS LISTED. A CORRECTED RECORD OF LEAVE DATA TRANSFERRED WAS FORWARDED ON 30 MARCH 1973 BY THE PAYROLL SUPERVISOR, HUNTERS POINT NAVAL SHIPYARD. TRANSFER OF ANNUAL LEAVE WAS CORRECTED TO 190 HOURS INSTEAD OF 144 HOURS AND SICK LEAVE WAS CORRECTED TO 1,087 HOURS INSTEAD OF 1,081 HOURS FOR A GROSS INCREASE OF 52 HOURS LEAVE.

LEAVE HOURS

ANNUAL SICK

"BALANCE AS OF 1 JUL 1970 190 1,087

ACCRUAL FOR REMAINDER OF LEAVE

YEAR 112 56

USED THROUGH 9 JAN 1971 131 48

BALANCE AS OF 10 JAN 1971 171 1,095

ACCRUED FOR 1971 LEAVE YEAR 208 104

USED THROUGH 8 JAN 1972 188 176

BALANCE AS OF 9 JAN 1972 191 1,023

ACCRUED FOR 1972 LEAVE YEAR 208 104

USED THROUGH 6 JAN 1973 159 858

BALANCE AS OF 7 JAN 1973 240 269

ACCRUED THROUGH 3 MAR 1973 (LAST

COMPLETE BIWEEKLY PERIOD PRIOR

TO SEPARATION) 32 16

USED THROUGH 5 HOURS ON 6 MAR

1973 32 285

BALANCE AS OF 15 MAR 1973, DATE

OF SEPARATION 240 NONE

"YOU ORIGINALLY REQUESTED LEAVE WITHOUT PAY TO BEGIN ON 21 FEBRUARY 1973. HOWEVER, YOU WOULD HAVE FORFEITED 77 HOURS PAY STATUS TO WHICH YOU WERE ENTITLED SO PAYMENT WAS MADE THROUGH 5 HOURS ON 6 MARCH 1973 IN ORDER TO EXHAUST ALL AVAILABLE SICK LEAVE AND ANNUAL LEAVE SUBJECT TO FORFEITURE.

"YOUR FINAL PAY WAS FOR $1,881.26 WHICH CONSISTED OF $125.06 FOR 13 HOURS REGULAR PAY (RETROACTIVELY PAID FOR 5 MARCH, 8 HOURS AND 6 MARCH, 5 HOURS) AND $2,308.80 FOR 240 HOURS ANNUAL LEAVE IN LUMP SUM, PAID AT $9.62 PER HOUR, LESS DEDUCTIONS OF $468.26 FEDERAL WITHHOLDING TAX; $69.26 STATE WITHHOLDING TAX; AND $8.75 RETIREMENT AND $6.33 LIFE INSURANCE DUE TO RETROACTIVE PAYMENT."

YOU HAVE NOW APPEALED THE ACTION OF THE ADMINISTRATIVE AGENCY IN FAILING TO GIVE YOU FULL CREDIT AT THE TIME OF YOUR SEPARATION FOR THE LEAVE YOU HAD ACCRUED AS OF FEBRUARY 2, 1941. HOWEVER, FROM THE FOREGOING, IT WOULD APPEAR THAT YOU HAVE RECEIVED CREDIT FOR ALL THE LEAVE TO WHICH YOU WERE LEGALLY ENTITLED BECAUSE THE LEAVE YOU HAD ACCRUED IN 1941 AND NOT CREDITED TO YOUR ACCOUNT WAS SUBJECT TO STATUTORY MAXIMUM LIMITATIONS ON LEAVE AN EMPLOYEE COULD ACCRUE AND WAS THEREFORE FORFEITED.

WHEN AN EMPLOYEE IS RECREDITED WITH LEAVE ON A RETROACTIVE BASIS TO CORRECT AN ADMINISTRATIVE ERROR, HIS LEAVE RECORDS ARE RECONSTRUCTED FOR EACH LEAVE PERIOD AFFECTED. IN THE RECONSTRUCTED ACCOUNT, THE EMPLOYEE MAY NOT BE RECREDITED WITH ANY LEAVE WHICH WOULD CAUSE HIS LEAVE BALANCE FOR THE BEGINNING OF A NEW LEAVE YEAR, DURING THE PERIOD IN QUESTION, TO EXCEED THE STATUTORY LIMITATION IN EFFECT AT THE TIME. LEAVE IN EXCESS OF THE STATUTORY MAXIMUM LIMITATION IS FORFEITED BY OPERATION OF LAW. COMP. GEN. 596 (1957); 32 ID. 162 (1952).

THUS, AS OF JANUARY 1, 1952, YOU FORFEITED 227 HOURS OF ANNUAL LEAVE AND 338 HOURS OF SICK LEAVE. THERE IS NO AUTHORITY FOR PAYMENT OR RECREDITING OF ANNUAL OR SICK LEAVE FORFEITED BY OPERATION OF LAW. 36 COMP. GEN. 596 (1957). ACCORDINGLY, IT APPEARS THE ACTION TAKEN BY THE HUNTERS POINT NAVAL SHIPYARD AND THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, IN RECONSTRUCTING YOUR LEAVE ACCOUNT AND RECREDITING THE LEAVE YOU HAD ACCRUED AS OF FEBRUARY 2, 1941, WAS PROPER AND IS HEREBY SUSTAINED.