B-164939, SEPT. 3, 1968

B-164939, SEPT. 3, 1968

TO MRS. NANCY A. BURGESS:

WE REFER TO YOUR LETTER OF JUNE 28, 1968, WITH ENCLOSURES, CONCERNING THE DEPARTMENT OF THE ARMY'S DETERMINATION REGARDING YOUR ELIGIBILITY TO ACCUMULATE 45 DAYS OF ANNUAL LEAVE UNDER 5 U.S.C. 6304 (B) WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ANNUAL LEAVE NOT USED BY AN EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES IN ONE OF THE FOLLOWING CLASSES OF EMPLOYEES STATIONED OUTSIDE THE UNITED STATES ACCUMULATES FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT MORE THAN 45 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:

"/1) INDIVIDUALS DIRECTLY RECRUITED OR TRANSFERRED BY THE GOVERNMENT OF THE UNITED STATES FROM THE UNITED STATES OR ITS TERRITORIES OR POSSESSIONS INCLUDING THE COMMONWEALTH OF PUERTO RICO FOR EMPLOYMENT OUTSIDE THE AREA OF RECRUITMENT OR FROM WHICH TRANSFERRED.'

THE INFORMATION WITH YOUR LETTER INDICATES THAT YOU APPLIED FOR A POSITION WITH THE DEPARTMENT OF THE ARMY IN GERMANY BY STANDARD FORM 57, DATED FEBRUARY 4, 1964. AT THAT TIME YOU WERE AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE IN PHILADELPHIA, PENNSYLVANIA. ON THE EMPLOYMENT APPLICATION REFERRED TO ABOVE YOU INDICATED THAT YOU WERE LEAVING THE UNITED STATES TO JOIN YOUR HUSBAND WHO HAD BEEN TRANSFERRED BY THE DEPARTMENT OF STATE TO BONN, GERMANY, IN DECEMBER 1963.

ON JUNE 10, 1964, THE ACTIVITY WITH WHICH YOU NOW ARE EMPLOYED FORWARDED A STANDARD FORM 52 (REQUEST FOR PERSONNEL ACTION) TO THE CIVILIAN PERSONNEL OFFICE IN PARIS REQUESTING YOUR APPOINTMENT TO A POSITION WHICH WAS TO BECOME VACANT IN AUGUST 1964. ON JULY 18, 1964, YOU TRAVELED TO BONN, GERMANY, UNDER THE TRAVEL ORDERS ISSUED TO YOUR HUSBAND BY THE DEPARTMENT OF STATE. YOU WERE CARRIED IN AN ANNUAL LEAVE STATUS BY THE AIR FORCE FROM JULY 20 TO AUGUST 28, 1964.

EFFECTIVE AUGUST 30, 1964, YOU WERE SEPARATED FROM YOUR POSITION WITH THE DEPARTMENT OF THE AIR FORCE AND EFFECTIVE AUGUST 31, 1964, YOU WERE APPOINTED TO THE POSITION WITH THE DEPARTMENT OF THE ARMY IN BONN, GERMANY. THE PERSONNEL ACTION FORMS COVERING YOUR SEPARATION AND APPOINTMENT CONTAINED THE TERM "TRANSFER" IN DESCRIBING THE NATURE OF THE ACTIONS INVOLVED.

THE DEPARTMENT OF THE ARMY HAS DETERMINED THAT YOU WERE NOT DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES AND, THAT YOU, THEREFORE, ARE NOT ELIGIBLE TO ACCUMULATE 45 DAYS ANNUAL LEAVE UNDER 5 U.S.C. 6304 (B), ABOVE. WITH RESPECT TO THE DEPARTMENT'S DECISION OF APRIL 26, 1968, YOU ARE ADVISED THAT THE REFERENCE THEREIN TO YOUR LETTER OF JANUARY 28, 1968, IS ERRONEOUS. WE HAVE BEEN ADVISED THAT THE DEPARTMENT DID RECEIVE AND DID CONSIDER YOUR LETTER OF JANUARY 11, 1968. APPARENTLY, THE DEPARTMENT'S POSITION IS THAT THERE WAS NO INTENT TO ACTUALLY TRANSFER YOU FOR DUTY OUTSIDE THE UNITED STATES, EVEN THOUGH THE PERSONNEL PAPERS REFERRED TO ABOVE DESCRIBED YOUR EMPLOYMENT IN GERMANY AS A TRANSFER. OTHER WORDS, THE UNDERSTANDING SEEMS TO HAVE BEEN THAT YOU WOULD BE PICKED UP FOR EMPLOYMENT AFTER YOUR ARRIVAL IN GERMANY EITHER AT YOUR OWN EXPENSE OR AT THE EXPENSE OF THE DEPARTMENT OF STATE UNDER YOUR HUSBAND'S TRAVEL ORDERS.

UNDER 5 U.S.C. 6304 (B) THE EMPLOYING AGENCY HAS THE PRIMARY RESPONSIBILITY FOR DETERMINING WHETHER OR NOT THE EMPLOYEE WAS DIRECTLY RECRUITED OR TRANSFERRED FROM THE UNITED STATES WITHIN THE MEANING OF THAT STATUTE. IN THE ABSENCE OF EVIDENCE SHOWING THE AGENCY'S DETERMINATION TO BE ARBITRARY OR UNREASONABLE, WE WILL NOT SUBSTITUTE OUR JUDGMENT IN THE MATTER FOR THAT OF THE AGENCY.

ON THE PRESENT RECORD WE CAN FIND NO BASIS TO OVERRULE THE DECISION RENDERED BY THE DEPARTMENT OF THE ARMY IN YOUR CASE.