B-164226, JUL. 12, 1968

B-164226, JUL. 12, 1968

TO MR. LESLIE S. GROVER:

THIS REFERS TO YOUR LETTER OF MARCH 28, 1968, CONCERNING YOUR CLAIM FOR REIMBURSEMENT OF 16 HOURS ANNUAL LEAVE ALLEGED TO BE TO YOUR CREDIT AT THE TIME OF YOUR SEPARATION FROM THE ROLLS OF THE INTERNAL REVENUE SERVICE.

IN OUR LETTER OF MAY 7, 1968, WE ADVISED YOU THAT IN ORDER THAT APPROPRIATE DISPOSITION MAY BE MADE OF THE MATTER, WE FOUND IT NECESSARY TO REQUEST A REPORT FROM THE INTERNAL REVENUE SERVICE. THE REPORT HAS NOW BEEN RECEIVED.

THE INFORMATION OF RECORD SHOWS THAT YOU WERE REMOVED FOR CAUSE EFFECTIVE AUGUST 29, 1967, AN ACTION THAT WAS SUSTAINED BY THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION ON JANUARY 4, 1968. ON THE DATE OF YOUR REMOVAL YOU HAD 736 HOURS ACCRUED ANNUAL LEAVE. YOUR LEAVE CEILING WAS 720 HOURS AT THE START OF THE LEAVE YEAR. UNDER THE LEAVE REGULATIONS YOU COULD BE PAID ONLY FOR LEAVE WITHIN YOUR CEILING NECESSITATING THE FORFEITURE OF 16 HOURS ABOVE THE CEILING.

YOUR SEPARATION HAD BEEN SCHEDULED SO THAT YOU WOULD HAVE HAD THE BENEFIT OF THE ENTIRE 736 HOURS ANNUAL LEAVE. YOU WERE ON ANNUAL LEAVE ON AUGUST 21 AND 22, 1967, AND WERE DUE TO RETURN TO DUTY ON AUGUST 23 THE DAY THE OFFICE PLANNED TO GIVE YOU THE NOTICE OF SEPARATION EFFECTIVE AUGUST 29. ON AUGUST 23 AND 24 YOU FAILED TO REPORT FOR WORK AND UPON RETURN TO WORK ON AUGUST 25, YOU REQUESTED AND WERE GRANTED SICK LEAVE FOR THOSE TWO DAYS. ON AUGUST 25 YOU RECEIVED NOTICE OF SEPARATION EFFECTIVE AUGUST 29. INSTEAD OF GOING ON LEAVE IMMEDIATELY, YOU REMAINED AT THE OFFICE TAKING CARE OF PERSONAL AFFAIRS ALL DAY. THE INTERNAL REVENUE MANUAL STATES THAT IT IS OPTIONAL WITH THE SERVICE WHETHER TO GRANT AN EMPLOYEE, IMMEDIATELY PRIOR TO HIS SEPARATION, ANNUAL LEAVE WHICH CANNOT BE INCLUDED IN THE LUMP-SUM PAYMENT. THE INTERNAL REVENUE MANUAL ALSO STATES THAT THE EFFECTIVE DATE OF SEPARATION "MAY" BE EXTENDED TO AVOID FORFEITURE. THE INTERNAL REVENUE SERVICE HAD ORIGINALLY SET YOUR SEPARATION DATE TO PRECLUDE YOU FROM LOSING ANY ACCUMULATED ANNUAL LEAVE, BUT BECAUSE OF THE CIRCUMSTANCES PREVIOUSLY RELATED, ELECTED NOT TO EXTEND THE SEPARATION DATE FOR THE PURPOSE OF PERMITTING YOU TO BE PAID FOR THE 16 HOURS OF ANNUAL LEAVE.

5 U.S.C. 5551 PROVIDING FOR LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE ON SEPARATION PROVIDES IN PART THAT:

"* * * THE LUMP-SUM PAYMENT SHALL * * * NOT EXCEED PAY FOR A PERIOD OF ANNUAL OR VACATION LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS GREATER * * *"

IN OUR DECISION 33 COMP. GEN. 85 (COPY ENCLOSED) WE SAID THAT UNDER SECTION 203 (H) OF THE ACT OF OCTOBER 30, 1951, 65 STAT. 681, 5 U.S.C. 2062 (H) (NOW 5 U.S.C. 6302), IT IS CLEAR THAT DISCRETION IS VESTED IN THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO PRESCRIBE WHEN ANNUAL LEAVE IS TO BE GRANTED. WE ALSO POINTED OUT THEREIN THAT, WHILE IT IS EXPECTED THAT IN KEEPING WITH CONGRESSIONAL EXPLANATION CONCERNING THE ACT, ADMINISTRATIVE OFFICIALS WILL AFFORD EMPLOYEES AN OPPORTUNITY TO TAKE THEIR CURRENT YEAR'S LEAVE IMMEDIATELY PRIOR TO SEPARATION WHENEVER POSSIBLE, IT IS OPTIONAL UNDER SECTION 203 (H) WITH THE EMPLOYING AGENCY TO REFUSE TO GRANT SUCH TERMINAL LEAVE IF THE EXIGENCIES OF THE PUBLIC SERVICE SO REQUIRE.

WE FIND NO BASIS FOR QUESTIONING THE ACTION OF THE INTERNAL REVENUE SERVICE IN YOUR CASE. THEREFORE, OUR VIEW IS THAT YOU MAY NOT BE RESTORED TO THE ROLLS FOR THE PURPOSE OF PAYING YOU FOR THE 16 HOURS HERE INVOLVED.