B-176846, OCT 25, 1972

B-176846, OCT 25, 1972

CIVILIAN PERSONNEL - ERRONEOUS REDUCTION IN FORCE - SEPARATION - OPTIONAL EXTENSION - ANNUAL LEAVE DECISION ALLOWING JOHN J. KENDZIERSKI, AN EMPLOYEE OF DSA, TO BE RECREDITED WITH ANNUAL LEAVE USED DURING AN OPTIONAL 30-DAY EXTENSION OF HIS REDUCTION IN FORCE SEPARATION, SUBSEQUENTLY DETERMINED BY THE CIVIL SERVICE COMMISSION TO BE ERRONEOUS. AN ERRONEOUSLY SEPARATED EMPLOYEE, WHO HAS EXTENDED HIS 60-DAY NOTICE OF SEPARATION PERIOD AN ADDITIONAL 30 DAYS IN AN ANNUAL LEAVE STATUS PURSUANT TO DOD MANUAL 1400.20-1-M, IS ENTITLED TO BE RESTORED ANY ANNUAL LEAVE USED DURING THIS PERIOD SINCE THE EMPLOYEE'S ELECTION TO EXTEND THE NOTICE OF SEPARATION IS NOT ENTIRELY VOLUNTARY.

TO LIEUTENANT COLONEL H. W. UTMAN:

YOUR LETTER OF AUGUST 22, 1972, REFERENCE DCRB-F, REQUESTS OUR DECISION AS TO WHETHER M. JOHN J. KENDZIERSKI, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, MAY BE RECREDITED WITH 112 HOURS OF ANNUAL LEAVE USED DURING AN OPTIONAL 30-DAY EXTENSION OF HIS REDUCTION IN FORCE (RIF) SEPARATION, WHICH WAS SUBSEQUENTLY DETERMINED BY THE CIVIL SERVICE SERVICE COMMISSION TO BE ERRONEOUS.

YOU HAVE PROVIDED US WITH THE FOLLOWING SPECIFIC INFORMATION:

"*** ON 26 NOVEMBER 1971, MR. JOHN KENDZIERSKI, QUALITY INSPECTION SPECIALIST (MECHANICAL), GS-1960-07, RECEIVED A RIF NOTICE EFFECTING HIS SEPARATION ON 31 JANUARY 1972. MR. KENDZIERSKI RETURNED HIS RIF NOTICE WITH A REQUEST FOR AN EXTENSION OF 30 DAYS IN A LEAVE STATUS IN ACCORDANCE WITH DOD REGULATION 1400.21. THE EXTENSION WAS AUTOMATICALLY GRANTED.

"MR. KENDZIERSKI APPEALED HIS RIF SEPARATION TO THE UNITED STATES CIVIL SERVICE COMMISSION, BOSTON REGION. THE DECISION OF THE APPEALS EXAMINER WAS 'THAT MR. KENDZIERSKI'S SEPARATION BY RIF BE CANCELED AND THAT HE BE RESTORED RETROACTIVELY TO A POSITION OF QUALITY INSPECTION SPECIALIST (CLOTHING), GS-1960-07, OR TO A POSITION OF SIMILAR GRADE AND SALARY, EFFECTIVE RETROACTIVELY AS OF THE DATE FOLLOWING THE DATE OF HIS 'SEPARATION'.

"MR. KENDZIERSKI WHO HAD NOT YET BEEN SEPARATED, WAS ACCORDINGLY OFFERED AND ACCEPTED A POSITION OF QUALITY INSPECTION SPECIALIST (CLOTHING), GS- 1960-07, AND ASSUMED HIS NEW POSITION ON 24 FEBRUARY 1972.

"DURING THE PERIOD FROM 1 FEBRUARY TO 23 FEBRUARY 1972, MR. KENDZIERSKI WAS ON ANNUAL LEAVE FOR PURPOSES OF HIS 30 DAY EXTENSION."

DEPARTMENT OF DEFENSE (DOD) INSTRUCTION 1400.21, PARAGRAPH III.B.3, NOW INCORPORATED IN DOD MANUAL 1400.20-1-M, EFFECTIVE DECEMBER 31, 1971, GIVES AN EMPLOYEE THE RIGHT TO EXTEND A 60-DAY NOTICE OF SEPARATION PERIOD AN ADDITIONAL 30 DAYS IN EITHER AN ANNUAL LEAVE OR LEAVE-WITHOUT-PAY STATUS. WE HAVE PREVIOUSLY HELD THAT WHERE AN EMPLOYEE IN SIMILAR CIRCUMSTANCES CHOSE TO EXTEND HIS NOTICE OF SEPARATION PERIOD FOR THE ADDITIONAL 30 DAYS IN A LEAVE-WITHOUT-PAY STATUS, HE WAS ENTITLED TO RECOVER BACK PAY FOR THE ADDITIONAL PERIOD SINCE THE AGENCY ACTION IN PLACING THE EMPLOYEE IN A NONDUTY STATUS IN CONJUNCTION WITH AN ERRONEOUS SEPARATION WAS AN UNJUSTIFIED PERSONNEL ACTION AND THE ELECTION ON THE PART OF THE EMPLOYEE TO EXTEND THE NOTICE OF SEPARATION PERIOD WAS THUS CONSIDERED NOT ENTIRELY VOLUNTARY. SEE OUR DECISION OF NOVEMBER 23, 1971, B-172195, COPY ENCLOSED.

IN THIS CASE IT IS CLEAR THAT HAD MR. KENDZIERSKI NOT TAKEN THE OPPORTUNITY AFFORDED HIM TO EXTEND THE DATE OF HIS SEPARATION HE WOULD HAVE BEEN SEPARATED ON JANUARY 31, 1972, AND THE LATER CORRECTIVE ACTION WOULD HAVE BEEN RETROACTIVE TO THAT DATE. THE FACT THAT HE CHOSE TO USE ANNUAL LEAVE STATUS RATHER THAN A LEAVE-WITHOUT-PAY STATUS FOR THAT PERIOD DOES NOT PRECLUDE THE APPLICATION OF THE PRINCIPLE ENUNCIATED IN OUR DECISION OF NOVEMBER 23, 1971.

ACCORDINGLY, WE VIEW THE PERIOD SPENT IN THE NONDUTY STATUS FROM FEBRUARY 1, 1972, TO FEBRUARY 23, 1972, AS FALLING WITHIN THE PURVIEW OF THE PROVISIONS OF 5 U.S.C. 5596, AND CAN SEE NO OBJECTION TO RESTORING TO MR. KENDZIERSKI THE ANNUAL LEAVE USED DURING THAT PERIOD TO EXTEND HIS SEPARATION DATE.