B-174953, FEB 23, 1972

B-174953, FEB 23, 1972

CIVILIAN EMPLOYEE - EXCESS ANNUAL LEAVE - ADMINISTRATIVE ERROR DECISION DENYING CLAIM OF THEODORE R. ANTCZAK FOR ANNUAL LEAVE FORFEITED AT THE TIME OF HIS SEPARATION FROM EMPLOYMENT WITH THE MANNED SPACECRAFT CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, HOUSTON, TEX. CLAIMANT WAS AWARE OF HIS OPTION TO FORFEIT ANNUAL LEAVE IN EXCESS OF THAT ALLOWED FOR LUMP SUM PAYMENT UNDER 5 U.S.C. 5551, OR TO REMAIN ON THE ROLLS IN ANNUAL LEAVE STATUS AND THEREBY FORFEIT AN INCREASED ANNUITY BASED ON COST-OF-LIVING ADJUSTMENTS THAT WOULD APPLY TO EMPLOYEES RETIRING BY JULY 31, 1970. IN THE ABSENCE OF ACTIONS CONTRARY TO AGENCY POLICY OR PRACTICE, OR AS A CONSEQUENCE OF ADMINISTRATIVE ERROR, THERE IS NO BASIS TO ALLOW THE CLAIM UNDER PRESENT LAW.

TO MR. THEODORE R. ANTCZAK:

THIS REFERS TO YOUR CLAIM (Z-2458178) FOR ANNUAL LEAVE FORFEITED AT THE TIME OF YOUR SEPARATION FROM FEDERAL EMPLOYMENT WITH THE MANNED SPACECRAFT CENTER, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, HOUSTON, TEXAS.

THE RECORD INDICATES THAT YOUR SEPARATION WAS EFFECTIVE JULY 31, 1970, BY REASON OF A DISCONTINUED SERVICE RETIREMENT. THE LOSS OF ANNUAL LEAVE OCCURRED BECAUSE YOUR ACCRUED ANNUAL LEAVE FOR THE 1970 LEAVE YEAR EXCEEDED YOUR LEAVE CEILING (240 HOURS) BY 83 HOURS. THIS AMOUNT OF LEAVE COULD NOT BE INCLUDED IN YOUR LUMP-SUM PAYMENT FOR ANNUAL LEAVE BECAUSE UNDER APPLICABLE PROVISIONS OF LAW (TITLE 5, SECTION 5551, UNITED STATES CODE) SUCH PAYMENTS MAY NOT EXCEED PAY FOR A PERIOD OF ANNUAL LEAVE IN EXCESS OF 30 DAYS OR 240 HOURS. IT IS FURTHER INDICATED THAT YOU WERE CONFRONTED WITH AN ELECTION TO FORFEIT THIS LEAVE AND GAIN AN INCREASED ANNUITY BASED ON COST-OF-LIVING ADJUSTMENTS (5.6%) THAT WOULD ONLY APPLY TO EMPLOYEES RETIRING BY JULY 31, 1970, OR TO REMAIN ON THE ROLLS IN ANNUAL LEAVE STATUS UNTIL SUCH LEAVE WAS EXHAUSTED AND LOSE THE INCREASED ANNUITY.

IN RESPONSE TO OUR REQUEST FOR AN ADMINISTRATIVE REPORT ON YOUR CLAIM, WE HAVE ASCERTAINED THAT THE APPROPRIATE PERSONNEL OFFICIALS COUNSELED YOU RESPECTING THE DISCONTINUED SERVICE RETIREMENT AND THE RESULTING FORFEITURE OF ANNUAL LEAVE. THIS WAS ALSO ACKNOWLEDGED BY YOU IN YOUR LETTER OF JULY 22, 1971, TO OUR OFFICE. ON THAT BASIS WE CONCLUDE THAT YOU WERE FULLY AWARE OF THE CONSEQUENCES OF YOUR ELECTION TO OBTAIN THE INCREASED ANNUITY AND FORFEIT THE CURRENT ACCRUED ANNUAL LEAVE WHICH COULD NOT PROPERLY BE INCLUDED IN A LUMP-SUM PAYMENT.

YOUR LETTER OF JULY 22, 1971, REFERS TO A "MORE LIBERAL POLICY" IN OUR OFFICE WITH RESPECT TO ANNUAL LEAVE LOST AS A RESULT OF ADMINISTRATIVE ERROR. WE PRESUME YOU MEAN THOSE CASES WHERE WE HAVE RULED THAT AN EMPLOYEE CAN BE RESTORED TO THE ROLLS OF HIS AGENCY FOR THE PURPOSE OF GRANTING ANNUAL LEAVE, THAT WOULD OTHERWISE BE FORFEITED, IF THE RECORD CLEARLY ESTABLISHES THAT HIS SEPARATION WAS EFFECTED CONTRARY TO AGENCY POLICY OR PRACTICE, OR AS A CONSEQUENCE OF ADMINISTRATIVE ERROR. IN YOUR CASE, HOWEVER, THE RECORD FAILS TO ESTABLISH SEPARATION ACTION CONTRARY TO AGENCY POLICY, PRACTICE, REGULATION, OR AS A RESULT OF ADMINISTRATIVE ERROR. MOREOVER, EVEN IF THESE REQUIREMENTS WERE SATISFIED, YOUR RESTORATION TO THE ROLLS WOULD RESULT IN REVOCATION OF THE INCREASED ANNUITY SINCE SUCH INCREASE WAS EFFECTIVE ONLY IN THE CASES OF THOSE ANNUITANTS IN A NONPAY STATUS AS OF JULY 31, 1970. TO RESTORE YOU TO THE ROLLS WOULD EXTEND YOUR PAY STATUS BEYOND THAT DATE.

IN VIEW OF THE FOREGOING DISCUSSION, THERE IS NO PERCEIVABLE BASIS ON WHICH TO ALLOW YOUR CLAIM UNDER PRESENT LAW. YOU MAY WISH TO TAKE NOTE OF PENDING CONGRESSIONAL BILLS THAT WOULD ALLOW RESTORATION OF LEAVE WHICH IS LOST ON ACCOUNT OF ADMINISTRATIVE ERROR OR EXIGENCIES OF THE SERVICE. EMPHASIZE THAT THIS LEGISLATION IS ONLY UNDER CONSIDERATION AT THE PRESENT TIME, AND WE EXPRESS NO OPINION AS TO WHETHER THE FORM IN WHICH IT MIGHT ULTIMATELY BE ADOPTED, IF AT ALL, WOULD COVER YOUR SITUATION.