B-111526, OCTOBER 3, 1952, 32 COMP. GEN. 162

B-111526, OCTOBER 3, 1952, 32 COMP. GEN. 162

LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - REFUND UPON REEMPLOYMENT - EXCESS LEAVE FORFEITURE UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, WHICH PROVIDES THAT ANNUAL LEAVE IN EXCESS OF 60 DAYS MAY NOT BE CARRIED OVER FROM ONE CALENDAR YEAR TO THE NEXT, AN EMPLOYEE WHO WAS ERRONEOUSLY SEPARATED FROM THE SERVICE AND PAID A LUMP SUM FOR ANNUAL LEAVE TO HIS CREDIT MAY NOT BE RECREDITED WITH OR PAID FOR LEAVE IN EXCESS OF SAID STATUTORY LIMITATION UPON REINSTATEMENT IN THE SERVICE DURING THE FOLLOWING YEAR, NOTWITHSTANDING THAT PAYMENT FOR THE EXCESS LEAVE WAS INCLUDED IN THE LUMP-SUM PAYMENT AND THE EMPLOYEE WAS PREVENTED FROM USING THE LEAVE BY REASON OF THE ERRONEOUS SEPARATION.

COMPTROLLER GENERAL WARREN TO MORRIS J. ROBACK, OCTOBER 3, 1952:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1952, REQUESTING REVIEW OF OFFICE SETTLEMENT DATED JULY 14, 1952, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR 55 HOURS ANNUAL LEAVE ALLEGEDLY ACCRUED DURING THE CALENDAR YEAR 1950, BUT NOT CREDITED TO YOUR ACCOUNT UPON REINSTATEMENT TO YOUR FORMER POSITION WITH THE DEPARTMENT OF THE NAVY.

THE RECORD SHOWS THAT YOU WERE SEPARATED FROM THE SERVICE ON JUNE 16, 1950, BECAUSE OF A REDUCTION IN FORCE AND RECEIVED A LUMP-SUM PAYMENT FOR 535 HOURS OF ACCUMULATED AND ACCRUED ANNUAL LEAVE TO YOUR CREDIT. THE RECORDS FURTHER SHOW THAT ON JANUARY 29, 1951, YOU WERE REINSTATED TO YOUR FORMER POSITION AS A RESULT OF AN APPEAL AND PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, THE LUMP-SUM PAYMENT OF 535 HOURS ACCRUED ANNUAL LEAVE WAS DEDUCTED FROM THE COMPENSATION YOU RECEIVED FOR THE PERIOD OF YOUR SEPARATION AND YOUR LEAVE ACCOUNT WAS CREDITED WITH THE 480 HOURS ANNUAL LEAVE.

IN YOUR LETTER YOU STATE THAT YOUR SEPARATION WAS ILLEGAL AND THAT SINCE THE UNNECESSARY DELAY OF YOUR BEING REINSTATED WAS RESPONSIBLE FOR YOUR INABILITY TO USE LEAVE IN 1950 YOU SHOULD RECEIVE PAYMENT FOR THE 55 HOURS OF ANNUAL LEAVE OVER AND ABOVE THE TOTAL AMOUNT OF ANNUAL LEAVE YOU WERE LEGALLY ENTITLED TO CARRY FORWARD ON JANUARY 1, 1951, OR, IN LIEU THEREOF, RECEIVE CURRENT CREDIT THEREFOR.

THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, IN EFFECT AT THE TIME, GRANTED 26 DAYS' ANNUAL LEAVE EACH CALENDAR YEAR TO PERMANENT EMPLOYEES AND PROVIDED THAT THE PART UNUSED IN ANY YEAR COULD BE ACCUMULATED UNTIL IT TOTALS NOT TO EXCEED 60 DAYS. WHEN THE MAXIMUM ACCUMULATIONS OF ANNUAL LEAVE HAS BEEN CREDITED TO AN EMPLOYEE, ANY LEAVE UNUSED AT THE END OF THE ACCRUAL PERIOD IN EXCESS OF THE MAXIMUM ACCUMULATION IS FORFEITED, AND WHEN SO FORFEITED IT CANNOT BE RECREDITED TO THE EMPLOYEE NOR CAN PAYMENT BE MADE THEREFOR, IRRESPECTIVE OF THE REASON FOR THE FAILURE TO MAKE USE OF SUCH LEAVE.

ACCORDINGLY, UNDER THE APPLICABLE LAW 480 HOURS WAS THE MAXIMUM ACCUMULATION OF ANNUAL LEAVE YOU WERE ALLOWED TO CARRY FORWARD TO YOUR CREDIT ON JANUARY 1, 1951. THERE IS NO PROVISION OF LAW OR REGULATIONS WHICH WOULD PERMIT A LUMP-SUM PAYMENT TO YOU FOR THE 55 HOURS' ANNUAL LEAVE FORFEITED. SINCE YOU HAVE RECEIVED CREDIT FOR ALL THE HOURS OF LEAVE WHICH LAWFULLY COULD HAVE BEEN PLACED TO YOUR CREDIT ON JANUARY 1, 1951, THE SETTLEMENT OF JULY 14, 1952, DISALLOWING YOUR CLAIM, WAS CORRECT, AND UPON REVIEW, MUST BE AND HEREBY IS SUSTAINED.