B-182014, JAN 30, 1975

B-182014, JAN 30, 1975

1. FORMER EMPLOYEE OF IRS SEEKING COMPENSATION FOR ANNUAL LEAVE ALLEGED TO HAVE BEEN FORFEITED THROUGH ADMINISTRATIVE ERROR MAY NOT BE COMPENSATED UNDER PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, AMENDING 5 U.S.C. SEC. 6304, SINCE EMPLOYING AGENCY AUTHORIZED BY REGULATIONS TO MAKE SUCH DETERMINATIONS OF ERROR FINDS NO ERROR TO HAVE BEEN MADE AS CONTEMPLATED BY STATUTE AND GAO HAS NO AUTHORITY TO MAKE INDEPENDENT DETERMINATIONS OF ADMINISTRATIVE ERROR UNDER 5 U.S.C. SEC. 6304. 2. CLAIM FOR RECREDIT OF SICK AND ANNUAL LEAVE WHICH ACCRUED NO LATER THAN 1947 BUT WHICH WAS NOT FILED IN THE GAO UNTIL 1973 IS BARRED FROM CONSIDERATION BY THIS OFFICE PURSUANT TO 31 U.S.C. SEC. 71(A)(1970).

PHILIP REISINE - RECREDIT OF SICK AND ANNUAL LEAVE FORFEITED DUE TO ALLEGED ADMINISTRATIVE ERROR:

THIS ACTION IS IN RESPONSE TO A LETTER DATED JUNE 19, 1974, FROM SAMUEL ROWE, ESQUIRE, ON BEHALF OF MR. PHILIP REISINE, APPEALING A SETTLEMENT ISSUED BY OUR TRANSPORTATION AND CLAIMS DIVISION ON APRIL 5, 1974, WHICH DISALLOWED MR. REISINE'S CLAIM FOR RECREDIT OF UNUSED SICK AND ANNUAL LEAVE ALLEGEDLY DUE HIM AS A RESULT OF HIS EMPLOYMENT WITH THE POST OFFICE DEPARTMENT DURING THE PERIODS NOVEMBER 24 TO DECEMBER 31, 1937, AND JULY 10, 1939, TO JUNE 1, 1942. OUR SETTLEMENT STATED THAT IN THE ABSENCE OF RECORDS SHOWING THAT MR. REISINE HAD ACCRUED SICK AND ANNUAL LEAVE TO HIS CREDIT AT THE TIME HE ENTERED MILITARY SERVICE ON JUNE 9, 1942, NO BASIS EXISTS FOR THE INTERNAL REVENUE SERVICE TO RECREDIT MR. REISINE WITH ANY LEAVE ALLEGED TO HAVE ACCRUED INCIDENT TO HIS EMPLOYMENT WITH THE POST OFFICE DEPARTMENT, NOR DOES ANY BASIS EXIST FOR THE RECREDITING OF SUCH LEAVE BY THIS OFFICE.

MR. REISINE'S ATTORNEY STATES THAT MR. REISINE RETIRED FROM THE INTERNAL REVENUE SERVICE (IRS) BECAUSE OF DISABILITY IN NOVEMBER 1973, AND THAT THE ALLEGED ERROR ON THE PART OF THE POST OFFICE HAD BEEN DISCOVERED FOR THE FIRST TIME AFTER MR. REISINE'S RETIREMENT. CLAIM IS NOW BEING MADE FOR ANY SICK AND ANNUAL LEAVE DUE MR. REISINE UNDER THE PROVISIONS OF PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, 5 U.S.C. SEC. 6304(E).

SINCE MR. REISINE HAS RETIRED FROM THE FEDERAL SERVICE AND IS CLAIMING A LUMP-SUM PAYMENT FOR ANNUAL LEAVE TO HIS CREDIT AT SEPARATION IT WOULD APPEAR THAT SECTION 5 OF PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, AMENDING 5 U.S.C. SEC. 6304, WOULD BE APPLICABLE TO HIS CASE. SECTION 5 PROVIDES AS FOLLOWS:

"SEC. 5. WITH RESPECT TO A FORMER EMPLOYEE (EXCEPT A FORMER EMPLOYEE UNDER SECTION 6 OF THIS ACT) WHO IS NOT ON THE ROLLS ON THE DATE OF ENACTMENT OF THIS ACT, ANNUAL LEAVE WHICH ACCRUED AFTER JUNE 30, 1960, BUT, BECAUSE OF ADMINISTRATIVE ERROR, WAS LOST BY OPERATION OF SECTION 6304 OF TITLE 5, U.S.C. IS SUBJECT TO CREDIT AND LIQUIDATION BY LUMP-SUM PAYMENT ONLY IF A CLAIM THEREFOR IS FILED WITHIN THREE YEARS IMMEDIATELY FOLLOWING THE DATE OF ENACTMENT OF THIS ACT, WITH THE AGENCY BY WHICH HE WAS EMPLOYED WHEN THE LUMP-SUM PAYMENT PROVISIONS OF SECTION 5551 OF TITLE 5, U.S.C. LAST BECAME APPLICABLE TO HIM. PAYMENT SHALL BE BY THAT AGENCY AT THE SALARY RATE IN EFFECT ON THE DATE THE LUMP-SUM PAYMENT PROVISIONS BECAME APPLICABLE."

THE SECTION CITED ABOVE PROVIDES CONTINUING AUTHORITY TO PROVIDE PAYMENT TO FORMER EMPLOYEES WHO FORFEIT ANNUAL LEAVE BECAUSE OF AN ADMINISTRATIVE ERROR WHEN THE ERROR IS NOT DISCOVERED UNTIL AFTER SEPARATION. REGULATIONS AND INSTRUCTIONS IMPLEMENTING THE ABOVE STATUTE APPEAR IN AN ATTACHMENT TO FEDERAL PERSONNEL MANUAL LETTER NO. 630-22, JANUARY 11, 1974, ISSUED BY THE CIVIL SERVICE COMMISSION.

UNDER THESE REGULATIONS, THE DETERMINATION OF WHETHER AN ADMINISTRATIVE ERROR HAS OCCURRED, JUSTIFYING COMPENSATION FOR LEAVE LOST THROUGH SUCH ERROR IS PRIMARILY WITHIN THE DISCRETION OF THE AGENCY INVOLVED. EVEN IF AN ADMINISTRATIVE ERROR HAD BEEN THE CAUSE OF THE LOSS OF HIS ANNUAL LEAVE, PUBLIC LAW 93-181 AFFORDS NO BASIS FOR RELIEF TO MR. REISINE IN VIEW OF THE FACT THAT ANNUAL LEAVE WHICH HE MAY HAVE LOST BECAUSE OF THE ALLEGED ADMINISTRATIVE ERROR ACCRUED BEFORE JUNE 30, 1960.

MR. REISINE'S CLAIM MUST ALSO BE DISALLOWED BECAUSE IT WAS FILED WITH OUR OFFICE MORE THAN TEN YEARS AFTER THE DATE IT FIRST ACCRUED. IT IS REPORTED THAT MR. REISINE WAS GRANTED AN INDEFINITE LEAVE OF ABSENCE FROM THE POST OFFICE ON JUNE 9, 1942, TO ENTER MILITARY SERVICE AND WAS SUBSEQUENTLY SEPARATED FROM THE POST OFFICE ON DECEMBER 15, 1947, FOR FAILURE TO APPLY FOR REEMPLOYMENT WITHIN 90 DAYS OF HIS JUNE 9, 1947, DISCHARGE FROM MILITARY SERVICE. MR. REISINE VOLUNTARILY REMAINED IN THE MILITARY SERVICE FROM JUNE 12, 1947, THE DATE OF HIS REENLISTMENT, TO MAY 31, 1962. THEREAFTER MR. REISINE RECEIVED A CAREER CONDITIONAL APPOINTMENT WITH THE IRS EFFECTIVE JUNE 4, 1962, AND WAS EMPLOYED BY IRS UNTIL HIS DISABILITY RETIREMENT IN NOVEMBER 1973.

PURSUANT TO 5 U.S.C. SEC. 5552, MR. REISINE UPON ENTERING MILITARY SERVICE IN 1942 WAS ENTITLED TO BE PAID FOR HIS ACCUMULATED OR CURRENT ACCRUED LEAVE AT THAT TIME OR TO ELECT TO HAVE THE LEAVE REMAIN TO HIS CREDIT UNTIL HIS RETURN FROM ACTIVE DUTY WHICH OCCURRED ON JUNE 9, 1947. ASSUMING THAT MR. REISINE ELECTED TO LEAVE HIS ACCRUED ANNUAL LEAVE TO HIS CREDIT UNTIL HIS SEPARATION IN DECEMBER 1947, HE SHOULD HAVE BEEN PAID FOR ANY ANNUAL LEAVE TO HIS CREDIT AT THAT TIME.

THE LUMP SUM LEAVE ACT OF DECEMBER 21, 1944, 5 U.S.C. SEC. 5551, PROVIDES THAT PAYMENT IN A LUMP SUM FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE SHALL BE MADE WHEN AN EMPLOYEE IS SEPARATED FROM THE SERVICE. OUR OFFICE HAS HELD THAT PAYMENT OF UNUSED ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE UPON THE EFFECTIVE DATE OF TERMINATION OF SERVICES IS MANDATORY. 24 COMP. GEN. 511 (1945). ACCORDINGLY, ANY PAYMENT DUE MR. REISINE WAS REQUIRED TO BE MADE WHEN HE WAS SEPARATED FROM THE POST OFFICE IN 1947. IF PAYMENT WAS NOT MADE AT THE DATE OF HIS SEPARATION, MR. REISINE'S RIGHT TO FILE A CLAIM ACCRUED AT THAT TIME AND OUR OFFICE IS BOUND BY 31 U.S.C. SEC. 71A WHICH PROVIDES IN PERTINENT PART:

"(1) EVERY CLAIM OR DEMAND (EXCEPT A CLAIM OR DEMAND BY ANY STATE, TERRITORY, POSSESSION OR THE DISTRICT OF COLUMBIA) AGAINST THE UNITED STATES COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE UNDER SECTIONS 71 AND 236 OF THIS TITLE SHALL BE FOREVER BARRED UNLESS SUCH CLAIM, BEARING THE SIGNATURE AND ADDRESS OF THE CLAIMANT OR OF AN AUTHORIZED AGENT OR ATTORNEY, SHALL BE RECEIVED IN SAID OFFICE WITHIN TEN FULL YEARS AFTER THE DATE SUCH CLAIM FIRST ACCRUED: PROVIDED, THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN FIVE YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN FIVE YEARS AFTER PEACE IS ESTABLISHED."

UNDER THE ABOVE PROVISIONS OF 31 U.S.C. SEC. 71A, WE ARE PRECLUDED FROM CONSIDERING ANY CLAIM OR DEMAND AGAINST THE UNITED STATES WHICH IS COGNIZABLE BY OUR OFFICE UNLESS RECEIVED HERE WITHIN 10 FULL YEARS AFTER THE DATE IT FIRST ACCRUED, SUBJECT TO THE PROVISO THAT WHEN A CLAIM OF ANY PERSON SERVING IN THE MILITARY OR NAVAL FORCES ACCRUES IN TIME OF WAR, OR WHEN WAR INTERVENES WITHIN 5 YEARS AFTER ITS ACCRUAL, SUCH CLAIM MAY BE PRESENTED WITHIN 5 YEARS AFTER PEACE IS ESTABLISHED. FOR THE PURPOSES OF THAT ACT, IT IS CONSIDERED THAT PEACE WAS ESTABLISHED JULY 25, 1947, SINCE JOINT RESOLUTION OF JULY 25, 1947, 61 STAT. 451, SO PROVIDES. SINCE MR. REISINE'S CLAIM WAS NOT TIMELY FILED IN THIS OFFICE, THE STATUTE PRECLUDES ITS CONSIDERATION.

FOR THE ABOVE-STATED REASONS, WE MUST SUSTAIN THE DISALLOWANCE OF MR. REISINE'S CLAIM.