B-162661, NOV. 13, 1967

B-162661, NOV. 13, 1967

LEAVES OF ABSENCE - ANNUAL - FORFEITURE DECISION TO FORMER FOREST SERVICE EMPLOYEE SUSTAINING SETTLEMENT DISALLOWING RECREDIT OF LEAVE IN EXCESS OF CEILING INCIDENT TO SEPARATION IN 1959. EMPLOYEE WHO WAS GIVEN LUMP SUM PAYMENT FOR LEAVE UP TO 30 DAY LEAVE ACCUMULATION BUT WHO FORFEITED LEAVE IN EXCESS OF CEILING MAY NOT HAVE LEAVE RECREDITED AND FACT THAT EMPLOYEE HAS HAD CONTINUOUS REEMPLOYMENT SINCE SAME YEAR IN WHICH SEPARATED HAS NO BEARING ON AMOUNT OF LUMP-SUM LEAVE PAYMENT.

TO MR. STERLING E. POWELL:

WE REFER TO YOUR LETTER OF SEPTEMBER 25, 1967, IN FURTHER REFERENCE TO SETTLEMENT OF AUGUST 15, 1966, WHICH ALLOWED YOU AN ADDITIONAL LUMP SUM LEAVE PAYMENT COVERING 68 HOURS OF ANNUAL LEAVE PLUS PAY FOR ONE HOLIDAY IN THE GROSS AMOUNT OF $150.48 INCIDENT TO YOUR SEPARATION FROM THE U. S. FOREST SERVICE ON JANUARY 24, 1959.

YOU POINT OUT IN YOUR LETTER THAT FOLLOWING SUCH SEPARATION YOU WERE REEMPLOYED IN MAY 1959, AND HAVE REMAINED CONTINUOUSLY IN THE EMPLOYMENT OF THE FOREST SERVICE SINCE THAT DATE. YOU SAY THAT YOU WERE ADVISED IN 1965 THAT YOU WERE ENTITLED TO ACCRUE 26 DAYS ANNUAL LEAVE A YEAR AND SINCE THAT DATE YOU HAVE, IN FACT, BEEN ACCRUING ANNUAL LEAVE AT THE RATE OF 26 DAYS A YEAR.

WE UNDERSTAND THAT THE LEAVE FOR WHICH YOU INITIALLY WERE PAID IN A LUMP- SUM INCIDENT TO YOUR SEPARATION ON JANUARY 24, 1959, WAS 52 HOURS. THE REASON THE PAYMENT COVERED ONLY 52 HOURS WAS BECAUSE YOU WERE INCORRECTLY CREDITED WITH 4 HOURS OF ANNUAL LEAVE PER PAY PERIOD INSTEAD OF 8 HOURS. THE ADMINISTRATIVE OFFICE REPORTED THAT IF YOU HAD BEEN CORRECTLY CREDITED WITH ANNUAL LEAVE YOU WOULD HAVE HAD A TOTAL OF 120 HOURS TO YOUR CREDIT ON THE DATE OF YOUR SEPARATION ON JANUARY 24, 1959, AND, IN ADDITION, WOULD HAVE BEEN ENTITLED TO 8 HOURS PAY FOR A HOLIDAY FALLING WITHIN THE LEAVE PERIOD. THEREFORE, OUR SETTLEMENT OF AUGUST 15, 1966, ALLOWED YOU AN ADDITIONAL LUMP-SUM LEAVE PAYMENT COVERING 76 HOURS (THE DIFFERENCE BETWEEN 128 HOURS AND THE 52 HOURS FOR WHICH YOU ALREADY HAD BEEN PAID). THUS, AS YOU PREVIOUSLY HAVE BEEN ADVISED, NO FURTHER REIMBURSEMENT AS A LUMP-SUM LEAVE PAYMENT IS DUE YOU. IN SUCH CONNECTION WE POINT OUT THAT THE FACT THAT YOU WERE REEMPLOYED IN MAY 1959 AND CONTINUOUSLY HAVE BEEN SO EMPLOYED SINCE THAT DATE HAS NO BEARING UPON THE AMOUNT OF LUMP-SUM LEAVE PAYMENT TO WHICH YOU WERE ENTITLED INCIDENT TO YOUR PRIOR SEPARATION ON JANUARY 24, 1959.

THE PAPERS TRANSMITTED HERE BY THE FOREST SERVICE INDICATE THAT IN 1964 THE ERROR WAS CORRECTED IN YOUR LEAVE ACCRUAL RATE BUTH THAT THE AMOUNT OF ANNUAL LEAVE WHICH COULD BE RETROACTIVELY CREDITED TO YOUR LEAVE ACCOUNT AND CARRIED OVER FROM YEAR TO YEAR WAS RESTRICTED BY THE 30-DAY STATUTORY LEAVE ACCUMULATION CEILING--SEE SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1961, 65 STAT. 680, AS AMENDED, NOW COVERED BY 5 U.S.C. 6304 (A). THE FOREST SERVICE POINTS OUT THAT BECAUSE OF SUCH STATUTORY CEILING ON ANNUAL LEAVE ACCUMULATION WHEN YOU WERE RETROACTIVELY CREDITED WITH ANNUAL LEAVE YOU WERE REQUIRED TO FORFEIT 15 HOURS IN THE YEAR 1960, 85 HOURS IN 1961, 38 HOURS IN 1962 AND 6 HOURS IN 1963. THE LEAVE SO FORFEITED HAD A MONETARY VALUE OF $358.97. THE FOREST SERVICE SUGGESTS THAT IF IT HAD NOT BEEN FOR ADMINISTRATIVE ERROR YOU PROBABLY WOULD HAVE USED MORE OF YOUR ANNUAL LEAVE CURRENTLY ACCRUING TO YOUR ACCOUNT THEREBY AVOIDING OR REDUCING THE AMOUNT OF THE ANNUAL LEAVE FORFEITURE.

THE PROVISIONS OF 5 U.S.C. 6304 (A) THE CURRENT CODIFICATION OF THE FORMER SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, ARE AS FOLLOWS:

"/A) EXCEPT AS PROVIDED BY SUBSECTION (B) OF THIS SECTION, ANNUAL LEAVE PROVIDED BY SECTION 6303 OF THIS TITLE, WHICH IS NOT USED BY AN EMPLOYEE, ACCUMULATES FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT MORE THAN 30 DAYS AT THE BEGINNING OF THE FIRST FULL BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD FOR AN EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, OCCURRING IN A YEAR.'

WE HAVE HELD THAT THERE IS NO AUTHORITY FOR PAYMENT FOR, OR RECREDIT OF, ANNUAL LEAVE WHICH MAY BE FORFEITED BY REASON OF THE OPERATION OF THE ABOVE PROVISIONS OF LAW. THIS IS SO WHETHER THE FORFEITURE OCCURRED BY REASON OF ADMINISTRATIVE ERROR, SUCH AS HERE, OR OTHERWISE. THEREFORE, WE FIND THERE IS NO ADDITIONAL AMOUNT DUE YOU FROM THE UNITED STATES AND THAT YOU ARE NOT ENTITLED TO A RECREDIT OF THE LEAVE IN QUESTION.