B-180926, MAR 28, 1975

B-180926, MAR 28, 1975

EMPLOYEE WHO ENTERED ON MILITARY SERVICE AND WAS PAID FOR ACCRUED ANNUAL LEAVE PURSUANT TO 5 U.S.C. SEC. 61A (1946 ED.) MAY NOT, 20 YEARS AFTER RETURNING TO FEDERAL SERVICE, REPAY LUMP-SUM PAYMENT AND HAVE ANNUAL LEAVE RESTORED TO HIS CREDIT ON GROUND THAT HE DID NOT ELECT TO RECEIVE LUMP-SUM PAYMENT SINCE IT IS CONSIDERED THAT THE ACCEPTANCE THEREOF WITHOUT PROTEST UNTIL 20 YEARS AFTER HIS RETURN FROM MILITARY SERVICE CONSTITUTED AN ELECTION WITHIN THE MEANING OF 5 U.S.C. SEC. 61A.

JOSEPH P. REAP - REQUEST TO REFUND LUMP-SUM PAYMENT AND RECREDIT OF LEAVE:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT CERTIFICATE NO. Z 1454387, NOVEMBER 21, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF THE UNITED STATES GENERAL ACCOUNTING OFFICE, DISALLOWING THE REQUEST OF MR. JOSEPH P. REAP, AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, THAT HE BE ALLOWED TO REPAY THE GOVERNMENT THE LUMP-SUM PAYMENT FOR ANNUAL LEAVE HE RECEIVED UPON ENTERING THE MILITARY SERVICE IN 1951 AND BEING RECREDITED WITH THE ANNUAL LEAVE.

MR. REAP, UPON ENTERING AN ACTIVE MILITARY DUTY IN 1951, RECEIVED A LUMP- SUM LEAVE PAYMENT AS PROVIDED IN 5 U.S.C. SEC. 61A (1946 ED.), NOW CODIFIED IN 5 U.S.C. SEC. 5552, AND MADE NO ELECTION TO HAVE THE LEAVE REMAIN TO HIS CREDIT. HE RETURNED TO DUTY WITH THE DEPARTMENT OF THE AIR FORCE ON APRIL 6, 1953, AND APPROXIMATELY 20 YEARS AFTER HIS RETURN TO FEDERAL SERVICE, HE IS SEEKING TO HAVE HIS LEAVE RECREDITED.

WITH RESPECT TO LUMP-SUM LEAVE PAYMENTS, 5 U.S.C. SEC. 61A (1946 ED.) EFFECT AT THE TIME MR. REAP ENTERED ACTIVE DUTY PROVIDED AS FOLLOWS:

"PAY OR CREDIT FOR ACCUMULATED LEAVE OF EMPLOYEES ORDERED TO ACTIVE MILITARY OR NAVAL DUTY.

EMPLOYEES OF THE UNITED STATES GOVERNMENT, ITS TERRITORIES OR POSSESSIONS, OR THE DISTRICT OF COLUMBIA (INCLUDING EMPLOYEES OF ANY CORPORATION CREATED UNDER AUTHORITY OF AN ACT OF CONGRESS WHICH IS EITHER WHOLLY CONTROLLED OR WHOLLY OWNED BY THE UNITED STATES GOVERNMENT, OR ANY CORPORATION, ALL THE STOCK OF WHICH IS OWNED OR CONTROLLED BY THE UNITED STATES GOVERNMENT, OR ANY DEPARTMENT, AGENCY, OR ESTABLISHMENT THEREOF, WHETHER OR NOT THE EMPLOYEES THEREOF ARE PAID FROM FUNDS APPROPRIATED BY CONGRESS), WHO, SUBSEQUENT TO MAY 1, 1940, SHALL HAVE ENTERED UPON ACTIVE MILITARY OR NAVAL SERVICE IN THE LAND OR NAVAL FORCES OF THE UNITED STATES BY VOLUNTARY ENLISTMENT OR OTHERWISE, SHALL BE ENTITLED TO RECEIVE, IN ADDITION TO THEIR MILITARY PAY, COMPENSATION IN THEIR CIVILIAN POSITIONS COVERING THEIR ACCUMULATED OR CURRENT ACCRUED LEAVE, OR TO ELECT TO HAVE SUCH LEAVE REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE."

IN INTERPRETING THIS SECTION WE HELD IN 22 COMP. GEN. 229 (1942), QUOTING FROM THE SYLLABUS:

"A CIVILIAN EMPLOYEE ON ACTIVE MILITARY DUTY WHO ELECTED TO BE PAID, AND WAS PAID, PURSUANT TO THE ACT OF AUGUST 1, 1941, AS AMENDED, FOR HIS ACCRUED ANNUAL LEAVE CONCURRENTLY WITH MILITARY SERVICE HAS EXHAUSTED HIS RIGHT OF ELECTION UNDER THE STATUTE EITHER TO RECEIVE PAYMENT FOR THE LEAVE OR TO HAVE IT REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM MILITARY SERVICE, AND, THEREFORE, HE MAY NOT REFUND THE AMOUNT PAID IN ORDER TO HAVE THE LEAVE REMAIN TO HIS CREDIT AT A HIGHER RATE OF COMPENSATION TO WHICH PROMOTED ON THE DEPARTMENTAL ROLLS BY OPERATION OF LAW AFTER ENTRANCE ON MILITARY DUTY."

IN FURTHER EXAMINING THIS DECISION WE POINTED OUT IN B-30601, DECEMBER 18, 1942, "*** THAT LEAVE RIGHTS FOR WHICH PAYMENT OF COMPENSATION IS AUTHORIZED UNDER THE AMENDED 1941 STATUTE, SUPRA, BECOME FUNCTUS OFFICIO WHEN PAYMENT THEREFOR IS MADE. THAT IS TO SAY, THE RIGHT TO LEAVE CREDIT BECAME EXTINGUISHED UPON PAYMENT AND ACCEPTANCE OF THE MONEY EQUIVALENT THEREFOR."

WHILE IT MAY BE THAT LUMP-SUM LEAVE PAYMENT SHOULD NOT HAVE BEEN PROCESSED WITHOUT A SPECIFIC REQUEST FROM THE EMPLOYEE, NEVERTHELESS, IT IS CONSIDERED THAT THE ACCEPTANCE OF THE PAYMENT WITHOUT PROTEST UNTIL 20 YEARS AFTER HIS RETURN FROM THE MILITARY SERVICE CONSTITUTED AN ELECTION WITHIN THE MEANING OF THE FOREGOING STATUTE AND DECISIONS.

ACCORDINGLY, THERE IS NO BASIS FOR PERMITTING THE EMPLOYEE TO REPAY THE AMOUNTS OF THE LUMP-SUM PAYMENT RECEIVED AND RECREDITING HIM WITH THE ANNUAL LEAVE REPRESENTED THEREBY.