B-182166, NOV 6, 1974, 54 COMP GEN 349

B-182166, NOV 6, 1974, 54 COMP GEN 349

OFFICERS AND EMPLOYEES - OVERSEAS - HOME LEAVE - ACCRUAL DISALLOWANCE OF CLAIM FOR REIMBURSEMENT FOR ACCRUED HOME LEAVE OR CREDIT OF SUCH LEAVE TO ANNUAL LEAVE ACCOUNT IS AFFIRMED SINCE LEGAL AUTHORITY FOR HOME LEAVE PROVIDES ONLY FOR ITS USE AS SUCH IN DISCRETION OF AGENCY; MOREOVER, PROVISIONS OF 5 U.S.C. 6304(D)(1)(A) - RESTORATION OF FORFEITED ANNUAL LEAVE - ARE NOT APPLICABLE SINCE NO FORFEITURE IS ESTABLISHED ON THE RECORD.

IN THE MATTER OF HOME LEAVE, DEPARTMENT OF THE ARMY, NOVEMBER 6, 1974:

MR. EDWIN J. ROBINSON, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, IN EFFECT ASKS FOR A REVIEW OF A DISALLOWANCE BY OUR TRANSPORTATION AND CLAIMS DIVISION OF HIS CLAIM FOR REIMBURSEMENT OR CREDIT FOR ACCUSED HOME LEAVE WHICH WAS PART OF A SETTLEMENT CERTIFICATE OF JULY 23, 1974, COVERING SEVERAL ITEMS CLAIMED BY MR. ROBINSON.

THE PERTINENT PARAGRAPH OF THE CERTIFICATE READS AS FOLLOWS:

WITH REGARD TO REIMBURSEMENT OR CREDIT FOR ACCRUED HOME LEAVE COVERING THE PERIOD APRIL 1962 TO APRIL 22, 1972, IT HAS BEEN REPORTED BY OMAHA DISTRICT CORPS OF ENGINEERS THAT THE LEAVE RECORDS PERTAINING TO YOUR ANNUAL LEAVE AND/OR HOME LEAVE BETWEEN 1962 AND 1972 ARE NOT AVAILABLE. IN VIEW OF THE ABSENCE OF OFFICIAL RECORDS, NO ACTION MAY BE TAKEN IN CONNECTION WITH YOUR CLAIM FOR CREDIT OR REIMBURSEMENT FOR ACCRUED HOME LEAVE FOR THE PERIOD CLAIMED. HOWEVER, YOU ARE ADVISED THAT IT HAS BEEN CONSISTENTLY HELD BY THIS OFFICE THAT THE GRANTING OF LEAVE IS A MATTER WITHIN THE JURISDICTION AND DISCRETION OF THE ADMINISTRATIVE OFFICE CONCERNED.

MR. ROBINSON STATES THAT HE CONTACTED OMAHA DISTRICT, CORPS OF ENGINEERS, AND GOT AN ANSWER DIFFERENT THAN INDICATED IN THE ABOVE QUOTE. PRECLUDE ANY CONFUSION AS TO THE DATA FURNISHED THIS OFFICE, THE ADMINISTRATIVE REPORT IN FULL IS SET FORTH BELOW, FOLLOWED BY THE COMMUNICATION OF OCTOBER 31, 1973, CITED IN THE ADMINISTRATIVE REPORT AND RELIED ON BY MR. ROBINSON TO REACH HIS CONCLUSION:

EDWIN J. ROBINSON CLAIMS CREDIT OR REIMBURSEMENT FOR ACCRUED HOME LEAVE COVERING THE PERIOD APRIL 1962 TO 22 APRIL 1972 AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

DOUBT EXISTS AS TO LEGALITY OF CREDIT OR PAYMENT FOR LEAVE AS THE NECESSARY INFORMATION IS NOT AVAILABLE PERTAINING TO THE CLAIMANT'S ANNUAL LEAVE AND/OR HOME LEAVE CHARGES BETWEEN 1962 AND 1972 AS CITED IN 1ST IND, DATED 31 OCTOBER 1973. MR. ROBINSON'S LEAVE BALANCE CAN ONLY BE PICKED UP FROM A CERTIFIED SF 1150. IN ORDER FOR THIS TO BE DONE PROPERLY, IT MUST BE DONE ON A YEAR-TO-YEAR BASIS TO BE CERTAIN THAT ANNUAL LEAVE SUBJECT TO FORFEITURE IS NOT BEING CARRIED FORWARD.

THIS CLAIM HAS NOT AND WILL NOT BE PAID EXCEPT PURSUANT TO CERTIFICATION FROM YOUR OFFICE.

WE HAVE NO ADDITIONAL INFORMATION AVAILABLE; THEREFORE, THE CLAIM FILE IS RETURNED FOR YOUR DISPOSITION.

MRODC (10 OCT 73) 1ST IND

SUBJECT: CIVILIAN LEAVE ACCOUNT

DA, OMAHA DISTRICT, CORPS OF ENGINEERS, OMAHA, NEBRASKA 31 OCTOBER 1973

TO: DEPARTMENT OF THE ARMY, U.S. ARMY FINANCE SUPPORT AGENCY, INDIANAPOLIS, INDIANA 46249

1. BASIC CORRESPONDENCE WAS FORWARDED TO THIS OFFICE BY SACOM (SEE THEIR LETTER INCLOSED) BECAUSE WE FURNISH PAY AND LEAVE ACCOUNTING SERVICES TO THEM. AS INDICATED IN THEIR LETTER, MR. ROBINSON HAS TRANSFERRED TO THE U.S. ARMY ENGINEER DISTRICT, MEMPHIS, TO WHOM WE ALSO FURNISH PAY AND LEAVE ACCOUNTING SERVICES.

2. MR. ROBINSON'S LEAVE RECORD WAS TRANSFERRED TO MY CENTRAL PAYROLL OFFICE BY THE FISCAL OFFICER, U.S. NAVAL STATION, BOX 33, FPO, NEW YORK 09593. A COPY OF HIS SF 1150, INDICATING A 33 DAY HOME LEAVE BALANCE AS OF 17 OCTOBER 1972, IS INCLOSED. SINCE HOME LEAVE CAN ONLY BE USED BETWEEN OVERSEAS ASSIGNMENTS, NONE OF THAT BALANCE HAS BEEN USED TO DATE.

3. I HAVE NO ADDITIONAL PERTINENT FACTS RELATIVE TO THE CLAIM OTHER THAN THE INCLOSED SF 1150 AND THE INFORMATION PROVIDED IN PARAGRAPH 1 ABOVE. SINCE HOME LEAVE CAN ONLY BE USED BETWEEN OVERSEAS ASSIGNMENTS I HAVE NO PERSONAL KNOWLEDGE OF HIS ANNUAL LEAVE AND/OR HOME LEAVE CHARGES BETWEEN 1962-1972. THIS INFORMATION MUST BE DERIVED FROM THE INSTALLATIONS ADMINISTERING HIS LEAVE AT THAT TIME. I CAN PICK-UP LEAVE BALANCES ONLY FROM CERTIFIED SF 1150S. IN ORDER FOR THIS TO BE DONE PROPERLY, IT MUST BE DONE ON A YEAR-TO-YEAR BASIS IN ORDER TO BE CERTAIN THAT ANNUAL LEAVE, SUBJECT TO FORFEITURE, IS NOT BEING CARRIED FORWARD.

MR. ROBINSON'S ORIGINAL CLAIM RECEIVED IN OUR OFFICE ON NOVEMBER 16, 1972, STATED IN PERTINENT PART AS FOLLOWS:

*** I AM STILL CLAIMING THAT ALL HOME LEAVE ACCRUED BETWEEN APRIL 1962 AND 22 APRIL 1971 SHOULD BE TRANSFERRED TO THE ANNUAL LEAVE ACCOUNT. *** IN ABSENCE OF THIS INTERNAL TRANSFER WITHIN LEAVE ACCOUNT, I REQUEST A CASH SETTLEMENT.

THE LEGAL AUTHORITY FOR HOME LEAVE - 5 U.S.C. 6305(A) - READS:

(A) AFTER 24 MONTHS OF CONTINUOUS SERVICE OUTSIDE THE UNITED STATES, AN EMPLOYEE MAY BE GRANTED LEAVE OF ABSENCE, UNDER REGULATIONS OF THE PRESIDENT, AT A RATE NOT TO EXCEED 1 WEEK FOR EACH 4 MONTHS OF THAT SERVICE WITHOUT REGARD TO OTHER LEAVE PROVIDED BY THIS SUBCHAPTER. LEAVE SO GRANTED

"(1) IS FOR USE IN THE UNITED STATES, OR IF THE EMPLOYEE'S PLACE OF RESIDENCE IS OUTSIDE THE AREA OF EMPLOYMENT, IN ITS TERRITORIES OR POSSESSIONS INCLUDING THE COMMONWEALTH OF PUERTO RICO;

"(2) ACCUMULATES FOR FUTURE USE WITHOUT REGARD TO THE LIMITATION IN SECTION 6304(B) OF THIS TITLE; AND

"(3) MAY NOT BE MADE THE BASIS FOR TERMINAL LEAVE OR FOR A LUMP-SUM PAYMENT."

UNDER THE APPLICABLE LAW THERE IS NO AUTHORITY TO GRANT MR. ROBINSON'S CLAIM AS STATED. WITH RESPECT TO THE AMOUNT OF HOME LEAVE EARNED, MR. ROBINSON STATES THAT THE MAXIMUM HE COULD HAVE EARNED TOTALS 64 DAYS AND THAT HE HAS BEEN GRANTED 31 DAYS. THUS THE 33 DAYS INDICATED IN THE ENCLOSURE TO THE ADMINISTRATIVE REPORT ABOVE TO HIS CREDIT WOULD BE AVAILABLE FOR USE IN ACCORDANCE WITH SECTION 6305(A). THE APPLICABLE CIVIL SERVICE REGULATIONS APPEAR IN 5 C.F.R. SEC. 630.601-607. SECTION 630.606 READS:

(B) AGENCY AUTHORITY. A GRANT OF HOME LEAVE IS AT THE DISCRETION OF AN AGENCY. AN AGENCY MAY GRANT HOME LEAVE IN COMBINATION WITH OTHER LEAVES OF ABSENCE IN ACCORDANCE WITH ESTABLISHED POLICY.

(C) LIMITATIONS. AN AGENCY MAY GRANT HOME LEAVE ONLY:

(1) FOR USE IN THE UNITED STATES, THE COMMONWEALTH OF PUERTO RICO, OR A TERRITORY OR POSSESSION OF THE UNITED STATES; AND

(2) DURING AN EMPLOYEE'S PERIOD OF SERVICE ABROAD, OR WITHIN A REASONABLE PERIOD AFTER HIS RETURN FROM SERVICE ABROAD WHEN IT IS CONTEMPLATED THAT HE WILL RETURN TO SERVICE ABROAD IMMEDIATELY OR ON COMPLETION OF AN ASSIGNMENT IN THE UNITED STATES.

HOME LEAVE NOT GRANTED DURING A PERIOD NAMED IN SUBPARAGRAPH (2) OF THIS PARAGRAPH MAY BE GRANTED ONLY WHEN THE EMPLOYEE HAS COMPLETED A FURTHER SUBSTANTIAL PERIOD OF SERVICE ABROAD. THIS FURTHER SUBSTANTIAL PERIOD OF SERVICE ABROAD MAY NOT BE LESS THAN THE TOUR OF DUTY PRESCRIBED FOR THE EMPLOYEE'S POST OF ASSIGNMENT, EXCEPT WHEN THE AGENCY DETERMINES THAT AN EARLIER GRANT OF HOME LEAVE IS WARRANTED IN AN INDIVIDUAL CASE.

UNDER THE ABOVE REGULATIONS THE HOME LEAVE BALANCE MAY BE USED ON HOME LEAVE BETWEEN FUTURE TOURS OVERSEAS. HOWEVER, THERE IS NO AUTHORITY TO TRANSFER THE HOME LEAVE BALANCE TO AN EMPLOYEE'S ANNUAL LEAVE ACCOUNT IF THE EMPLOYEE HAS NOT BEEN GRANTED HOME LEAVE.

MR. ROBINSON REFERS TO THE PROVISIONS OF LAW CONCERNING RESTORATION OF ANNUAL LEAVE FORFEITED DUE TO THE ACCUMULATION LIMITATION SET FORTH IN 5 U.S.C. SEC. 6304. HE FEELS SUCH PROVISIONS HAVE A BEARING ON HIS CLAIM. SECTION 6304(D)(1)(A) CONCERNS THE LOSS OF ANNUAL LEAVE WHERE ADMINISTRATIVE ERROR IS THE CAUSE OF THE LOSS OF ANNUAL LEAVE DUE TO THE FORFEITURE PROVISIONS. MR. ROBINSON'S CLAIM AT BEST, AS WE READ THE RECORD, IS THAT HE WAS CHARGED ANNUAL LEAVE WHEN THE AGENCY WITHIN ITS DISCRETION COULD HAVE GRANTED HOME LEAVE. HOWEVER, THE RECORD BEFORE US DOES NOT SHOW A LOSS OF ANNUAL LEAVE UNDER 5 U.S.C. SEC. 6304 IN HIS LEAVE ACCOUNT. MOREOVER, THE AGENCY STATES THAT THE RECORDS TO ESTABLISH THE FACTUAL ACCURACY THEREOF ARE NOT AVAILABLE.

IN VIEW OF THE ABOVE AND THE AGENCY DISCRETION IN THE MATTER, WE SEE NO BASIS TO GRANT MR. ROBINSON'S CLAIM. ACCORDINGLY, THE DISALLOWANCE OF JULY 23, 1974, IS AFFIRMED.