B-171325, FEB 2, 1971

B-171325, FEB 2, 1971

LIABILITY FOR REPAYMENT FOR ANNUAL LEAVE DECISION HOLDING THAT GAO FINDS NO BASIS FOR WAIVING THE LIABILITY OF FRANK J. HAUGHEY FOR REPAYMENT OF ANNUAL LEAVE INCIDENT TO REEMPLOYMENT WITH THE DEPARTMENT OF STATE. SINCE CLAIMANT RETIRED EFFECTIVE AUGUST 31, 1968, AND RECEIVED A LUMP SUM PAYMENT FOR 997 HOURS ACCRUED ANNUAL LEAVE FOR THE PROJECTED LEAVE PERIOD ENDING MARCH 3, 1969, AND CLAIMANT WAS REEMPLOYED ON JANUARY 21, 1969, PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE ACCRUED ANNUAL LEAVE PAYMENT, LIABILITY IS IMPOSED BY 5 U.S.C. 6306(A) WHICH DOES NOT PERMIT ANY EXCEPTIONS. FURTHER, THE LUMP-SUM PAYMENT MAY NOT BE CONSIDERED AS AN ERRONEOUS PAYMENT BECAUSE IT WAS LEGAL WHEN MADE.

TO MR. FRANK J. HAUGHEY:

WE REFER FURTHER TO YOUR LETTER OF NOVEMBER 5, 1970, WHICH, IN EFFECT, SEEKS RECONSIDERATION OF OUR CLAIMS DIVISION LETTER OF JUNE 2, 1970, DENYING WAIVER OF YOUR LIABILITY FOR REPAYMENT FOR ANNUAL LEAVE INCIDENT TO YOUR REEMPLOYMENT WITH THE DEPARTMENT OF STATE ON JANUARY 21, 1969.

AS SET FORTH IN OUR LETTER OF JUNE 2, THE RECORD INDICATES YOU RETIRED VOLUNTARILY FROM THE FOREIGN SERVICE EFFECTIVE AUGUST 31, 1968, AT AN ANNUAL SALARY OF $17,289. AT THE TIME OF YOUR RETIREMENT YOU WERE PAID A LUMP-SUM PAYMENT FOR 997 HOURS ACCRUED ANNUAL LEAVE PLUS SIX 8-HOUR HOLIDAYS WHICH OCCURRED DURING THE PROJECTED LEAVE PERIOD ENDING AFTER 5 HOURS ON MARCH 3, 1969. ON JANUARY 21, 1969, YOU WERE REEMPLOYED WITH THE PASSPORT OFFICE, DEPARTMENT OF STATE, UNDER A TEMPORARY APPOINTMENT (NTE 1 YEAR) AT AN ANNUAL SALARY OF $5,732. DUE TO YOUR REEMPLOYMENT PRIOR TO EXPIRATION OF THE PERIOD COVERED BY THE ACCRUED ANNUAL LEAVE PAYMENT, YOU WERE REQUESTED TO REFUND $1,969.47, REPRESENTING COMPENSATION FOR 237 HOURS OF THE LUMP-SUM PAYMENT FOR THE PERIOD JANUARY 21 THROUGH 5 HOURS ON MARCH 3, 1969. YOU WERE ADVISED THAT A RECREDIT OF 229 HOURS ANNUAL LEAVE WILL BE MADE TO YOUR LEAVE RECORD UPON FULL REPAYMENT. THE RECORD INDICATES THAT NO REPAYMENT HAS BEEN MADE.

YOUR LIABILITY IN THIS MATTER IS IMPOSED BY STATUTE. 5 U.S.C. 6306(A) PROVIDES:

"WHEN AN INDIVIDUAL WHO RECEIVED A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 5551 OF THIS TITLE IS REEMPLOYED BEFORE THE END OF THE PERIOD COVERED BY THE LUMP-SUM PAYMENT IN OR UNDER THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, EXCEPT IN A POSITION EXCEPTED FROM THIS SUBCHAPTER BY SECTION 6301(2)(II), (III), (VI), OR (VII) OF THIS TITLE, HE SHALL REFUND TO THE EMPLOYING AGENCY AN AMOUNT EQUAL TO THE PAY COVERING THE PERIOD BETWEEN THE DATE OF REEMPLOYMENT AND THE EXPIRATION OF THE LUMP-SUM PERIOD."

WHILE NO DOUBT YOU WOULD NOT HAVE ACCEPTED THE APPOINTMENT IN THE PASSPORT OFFICE HAD YOU BEEN AWARE OF THE REFUND REQUIREMENT FOR THE UNEXPIRED PORTION OF YOUR ANNUAL LEAVE, NEVERTHELESS, WE POINT OUT THAT THE ABOVE STATUTORY PROVISIONS DO NOT PERMIT ANY EXCEPTIONS.

FURTHER, WE POINT OUT THAT THE AMOUNT IN QUESTION MAY NOT BE REGARDED AS AN ERRONEOUS PAYMENT UNDER 5 U.S.C. 5584 WHICH PROVIDES FOR THE WAIVER OF ERRONEOUS PAYMENTS OF PAY AND FOR REFUND OF ANY AMOUNT SO WAIVED. THIS IS SO BECAUSE THE LUMP-SUM PAYMENT FOR LEAVE IN YOUR CASE WAS LEGAL WHEN MADE AND THEREFORE MAY NOT BE CONSIDERED NOW AS AN ERRONEOUS PAYMENT WITHIN THE MEANING OF THE STATUTORY PROVISIONS FOR WAIVER. ACCORDINGLY, WE HAVE NO BASIS FOR WAIVING YOUR LIABILITY FOR REPAYMENT OF THE INDEBTEDNESS.