B-133675, OCT. 7, 1957

B-133675, OCT. 7, 1957

TO MR. HARRY J. MARANZE:

THE HONORABLE PAUL F. SCHENCK, HAS REQUESTED US TO REVIEW YOUR CLAIM WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION SETTLEMENT DATED JUNE 26, 1957. THE DISALLOWANCE WAS REQUIRED BECAUSE NO LEGAL BASIS WAS FOUND ENTITLING YOU TO A RECREDIT OF THE 26 HOURS OF ANNUAL LEAVE IN ORDER TO RESTORE YOUR LEAVE CEILING OF 629 HOURS OR AUTHORIZING PAYMENT THEREFOR. THE REQUEST FOR THE REVIEW IS BASED UPON THE INFORMATION CONTAINED IN YOUR STATEMENT DATED JULY 27, 1957, WHICH YOU SENT TO CONGRESSMAN SCHENCK AND WHICH HE HAS TRANSMITTED TO US FOR CONSIDERATION.

YOUR STATEMENT CALLS ATTENTION TO OUR DECISION B-130499 OF FEBRUARY 15, 1957, WHICH YOU BELIEVE IS THE BASIS FOR RESTORATION OF THE 26 HOURS OF ANNUAL LEAVE GRANTED IN 1955 OR FOR PAYMENT THEREFOR AS THE RESULT OF THE ADMINISTRATIVE ERROR. THAT CASE CONCERNS AN EMPLOYEE WHO, THROUGH ADMINISTRATIVE ERROR, WAS CREDITED WITH 20 DAYS' ANNUAL LEAVE INSTEAD OF THE 26 DAYS TO WHICH HE WAS ENTITLED. THE DECISION POINTS OUT THAT SECTION 203 (C) OF THE ANNUAL SICK LEAVE ACT OF 1951, 65 STAT. 680, WHICH PERMITTED AN OFFICER OR EMPLOYEE TO ACCUMULATE ANNUAL LEAVE NOT IN EXCESS OF 60 DAYS WAS AMENDED BY SECTION 3 OF THE ACT OF JULY 2, 1953, 67 STAT. 137, TO ALLOW AN ACCUMULATION OF ONLY 30 DAYS' ANNUAL LEAVE. SINCE THE EMPLOYEE CONCERNED HAD A LEAVE BALANCE OF 195 HOURS FOR THE 1952 LEAVE YEAR HIS FUTURE ACCUMULATIONS WERE LIMITED TO 240 HOURS ANNUAL LEAVE AS FIXED BY THE 1953 ACT. THEREFORE, IT WAS CONCLUDED THAT IN VIEW OF THAT LIMITATION (30 DAYS OR 240 HOURS) THERE WAS NO LEGAL BASIS TO MAKE PAYMENT FOR THE LEAVE WHICH WAS FORFEITED BY OPERATION OF LAW--- NOTWITHSTANDING THE FORFEITURE RESULTED FROM AN ADMINISTRATIVE ERROR--- OR FOR THE ADMINISTRATIVE OFFICE NOW TO GRANT SUCH LEAVE OR TO CREDIT HIS LEAVE ACCOUNT WITH THE EXCESS LEAVE.

HOWEVER, THAT CASE DOES NOT APPLY TO THE FACTS AND CIRCUMSTANCES HERE INVOLVED. YOU HAD MORE THAN 30 DAYS (240 HOURS) OF ANNUAL LEAVE AT THE BEGINNING OF THE 1955 LEAVE YEAR. BUT, THROUGH ADMINISTRATIVE ACTION CHANGING YOU TO A HIGHER LEAVE EARNING CATEGORY--- PREMATURELY IN ERROR--- YOU WERE ADVISED THAT YOU WOULD HAVE TO USE 186 HOURS ANNUAL LEAVE OR FORFEIT ANY UNUSED PORTION THEREOF. AFTER SUCH LEAVE WAS TAKEN IT WAS ADMINISTRATIVELY FOUND YOU PROPERLY WERE ONLY ENTITLED TO 160 HOURS ANNUAL LEAVE ACCRUAL FOR THAT YEAR. AS A RESULT OF SUCH ADMINISTRATIVE ERROR YOU USED 26 HOURS OF ANNUAL LEAVE- - FOR WHICH YOU RECEIVED YOUR REGULAR COMPENSATION--- IN EXCESS OF THE ANNUAL LEAVE ACTUALLY EARNED IN THE 1955 LEAVE YEAR. THIS RESULTED IN A REDUCTION OF YOUR LEAVE CEILING FROM 629 HOURS TO 603 HOURS AT THE END OF THE 1956 LEAVE YEAR. YOU DESIRE TO HAVE THE 26 HOURS OF ANNUAL LEAVE RESTORED TO YOUR CREDIT OR TO BE PAID THEREFOR.

YOU LOSE SIGHT OF THE FACT THAT YOU DID NOT FORFEIT ANY LEAVE. YOU WERE GRANTED SUCH LEAVE THEREBY RECEIVING THE BENEFIT THEREOF. ALSO AT THE TIME THE ADMINISTRATIVE OFFICE COMMITTED THE ERROR, IT WOULD APPEAR THAT YOU SHOULD HAVE BEEN AWARE OF THE FACT THAT YOU DID NOT HAVE 15 YEARS' CREDITABLE SERVICE SO AS TO BE ENTITLED TO 26 DAYS OF LEAVE A YEAR INSTEAD OF 20 DAYS.

UNDER SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED BY THE ACT OF JULY 2, 1953, 67 STAT. 137, AN EMPLOYEE WHO HAD LEAVE IN EXCESS OF 30 DAYS (240 HOURS) AT THE END OF THE 1952 LEAVE YEAR IS ENTITLED TO RETAIN SUCH EXCESS LEAVE UNTIL USED. HOWEVER, THE STATUTE GOES ON TO SAY THAT THE USE OF ANNUAL LEAVE IN EXCESS OF THAT EARNED DURING ANY LEAVE YEAR SHALL AUTOMATICALLY REDUCE THE EMPLOYEE'S LEAVE WHICH HE WAS PERMITTED TO RETAIN IN EXCESS OF THE 30 DAYS. WE FIND NOTHING IN THAT STATUTE OR THE LEGISLATIVE HISTORY THEREOF WHICH PERMITS AN EMPLOYEE TO AGAIN ACCUMULATE LEAVE UP TO THE NUMBER OF HOURS HE HAD AT THE END OF 1952 JUST BECAUSE HE USED MORE ANNUAL LEAVE THAN ENTITLED TO FOR A PARTICULAR YEAR WHETHER THROUGH ADMINISTRATIVE ERROR OR OTHERWISE.

ACCORDINGLY, IT IS OUR VIEW THAT THE 26 HOURS OF ANNUAL LEAVE CANNOT BE RECREDITED TO YOU OR PAYMENT MADE THEREFOR. OUR SETTLEMENT OF JUNE 26, 1957, IS SUSTAINED.

A COPY OF THIS DECISION HAS BEEN FURNISHED CONGRESSMAN SCHENCK FOR HIS INFORMATION.