B-175583, APR 27, 1972

B-175583, APR 27, 1972

CIVILIAN EMPLOYEE - EXCESS ANNUAL LEAVE - ADMINISTRATIVE ERROR DECISION SUSTAINING PRIOR DISALLOWANCE OF A CLAIM OF LORRAINE C. MARKEY FOR AN AMOUNT REPRESENTING THE VALUE OF ANNUAL LEAVE LOST AS THE RESULT OF AN ADMINISTRATIVE ERROR WHILE EMPLOYED WITH THE ARMY ELECTRONICS COMMAND, FORT MONMOUTH, N.J. THE PRIOR DISALLOWANCE MUST BE SUSTAINED SINCE THERE ARE NO STATUTORY EXCEPTIONS TO THE PROVISIONS OF 5 U.S.C. 6304(A), WHICH EXPRESSLY LIMIT THE ACCUMULATION OF ANNUAL LEAVE. B-162661, NOVEMBER 13, 1967.

TO MRS. LORRAINE C. MARKEY:

FURTHER REFERENCE IS MADE TO LETTER DATED NOVEMBER 23, 1971, FROM MR. NASTA ON YOUR BEHALF, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR AN AMOUNT REPRESENTING THE VALUE OF ANNUAL LEAVE LOST AS THE RESULT OF AN ADMINISTRATIVE ERROR WHILE EMPLOYED WITH THE DEPARTMENT OF THE ARMY, HEADQUARTERS UNITED STATES ARMY ELECTRONICS COMMAND, FORT MONMOUTH, NEW JERSEY.

SETTLEMENT CERTIFICATE DATED AUGUST 5, 1971, DISALLOWING YOUR CLAIM, STATES IN PART AS FOLLOWS:

"THE RECORD SHOWS THAT AS A RESULT OF AN ADMINISTRATIVE ERROR YOUR SERVICE COMPUTATION DATE WAS RECORDED AS DECEMBER 22, 1953, RATHER THAN THE CORRECT DATE OF MARCH 24, 1951, RESULTING IN A DELAY IN CHANGING YOUR ANNUAL LEAVE CATEGORY FROM 6 HOURS TO 8 HOURS PER PAY PERIOD FROM APRIL 3, 1966 TO JANUARY 5, 1969. IT IS NOTED THAT THE ADMINISTRATIVE OFFICE HAS RECOGNIZED THE OMMISSION OF CREDITABLE FEDERAL SERVICE WHICH RESULTED IN A LOSS OF 2 HOURS PER PAY PERIOD DURING THE PERIOD INVOLVED AND THEIR RECORDS HAVE BEEN AMENDED TO SHOW YOUR TOTAL CREDITABLE FEDERAL SERVICE.

"YOU STATE THAT YOU WERE ADMINISTRATIVELY ADVISED THAT YOUR ANNUAL LEAVE ACCOUNT COULD NOT BE CHANGED TO CREDIT THE 2 HOURS PER PAY PERIOD LOSS SINCE YOU HAVE ACCUMULATED THE MAXIMUM 240 HOURS ANNUAL LEAVE LIMITATION UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF JULY 2, 1953, 67 STAT. 137, WHICH AMENDED 203(C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, WHICH IS APPLICABLE TO YOUR CLAIM. YOUR REQUEST FOR PAYMENT OF THE VALUE OF THE ANNUAL LEAVE LOST MAY NOT BE GRANTED UNDER THE PROVISIONS OF THE LAW AND THE REGULATIONS APPLICABLE THERETO SINCE OUR OFFICE IS NOT VESTED WITH AUTHORITY TO MAKE PAYMENTS IN SUCH CIRCUMSTANCES."

IN THE LETTER OF NOVEMBER 23, 1971, REFERENCE WAS MADE TO AN ARTICLE APPEARING IN THE FEDERAL EMPLOYEES NEWS DIGEST ISSUE OF JULY 5, 1971, WHICH INDICATED THAT THIS OFFICE "HAS ADOPTED A POLICY ON ANNUAL LEAVE LOST BY FEDERAL EMPLOYEES THROUGH ADMINISTRATIVE ERRORS OF THEIR AGENCIES." IT IS APPARENTLY BELIEVED, BASED UPON OUR DECISIONS FORMING THE POLICY ALLUDED TO IN THE NEWS ARTICLE, THAT YOU MAY BE ABLE TO OBTAIN RECOMPENSE FOR THE HOURS OF ANNUAL LEAVE WHICH WERE FORFEITED.

THE DECISIONS ALLUDED TO BY THE ARTICLE, B-172997, JUNE 23, 1971; B 172992, JUNE 30, 1971; AND B-172452, JUNE 2, 1971; COPIES HEREWITH, INVOLVED SITUATIONS WHEREIN THE CONCERNED EMPLOYEES DID NOT FORFEIT ANNUAL LEAVE ACCUMULATED IN EXCESS OF THEIR RESPECTIVE LEAVE CEILINGS BECAUSE OF EXISTING STATUTES. IN ALL OF THE CASES CONCERNED, IT WAS POSSIBLE TO CHANGE THE RETIREMENT DATE OF THE EMPLOYEE SO AS TO ENABLE HIM TO BE PLACED ON ANNUAL LEAVE IN THE AMOUNT OF THE EXCESS ACCUMULATION PRIOR TO THE TIME OF RETIREMENT AND THUS ALLOW HIM TO RETIRE WITH THE BALANCE OF HOURS ACCUMULATED, I.E., THE MAXIMUM HOUR ACCUMULATION OF ANNUAL LEAVE PERMISSIBLE UNDER LAW. THE RULE IN THE CITED CASES DOES NOT APPLY TO YOUR CASE BECAUSE YOUR LEAVE WAS FORFEITED BY OPERATION OF 5 U.S.C. 6304(A) WHICH PLACES A CEILING OF 30 DAYS (240 HOURS) ON THE AMOUNT OF LEAVE WHICH MAY BE CARRIED FORWARD AT THE END OF EACH LEAVE YEAR.

REGARDING 5 U.S.C. 6304(A), WE HAVE HELD THAT THERE ARE NO EXCEPTIONS PROVIDED BY THIS OR ANY OTHER STATUTE WHICH OPERATE TO PERMIT A WAIVER OF THIS SPECIFIC STATUTORY LIMITATION EVEN IF THERE EXISTED AN ADMINISTRATIVE ERROR WHICH WAS THE CAUSE OF THE EXCESS HOURS BEING FORFEITED. B-162661, NOVEMBER 13, 1967, COPY ENCLOSED.

IN VIEW OF THE ABOVE, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.