B-236861, May 3, 1990

B-236861, May 3, 1990

CIVILIAN PERSONNEL - Leaves Of Absence - Annual leave - Forfeiture - Restoration DIGEST: This summary letter decision addresses well established rules which have been discussed in previous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry.

Willie J. Forest, Jr.:

The issue in this decision is whether an employee may be recredited with annual leave which was forfeited at the end of the leave year where the agency erroneously indicated on his leave and earnings statements that he retained a higher annual leave carryover ceiling. We conclude that the leave may not be restored.

In May 1987, Mr. Willie J. Forest, Jr., returned from an overseas assignment with an annual leave carryover balance of 326 hours. /1/ By the end of the 1987 leave year, his available annual leave balance had dropped to 226 hours, and his maximum annual leave carryover ceiling therefore was reduced to 240 hours. /2/ However, the agency erroneously reflected his maximum carryover balance on his leave and earnings statements as 360 hours during the leave year 1988. At the end of the leave year, he forfeited 123 hours of annual leave above his maximum carryover ceiling of 240 hours.

Mr. Forest contends that the agency's delay, until January 1989, in updating his statement to accurately reflect his maximum carryover ceiling of 240 hours and the erroneous advice, which he relied upon in choosing not to use his excess annual leave, constitute administrative error. The agency disagrees and asserts that since there are no agency regulations requiring (1) that maximum carryover balances be shown on the statement, (2) that leave ceilings be adjusted immediately after an employee's departure from an overseas post, or (3) that the agency must counsel an employee upon returning from an overseas post, no basis exists for restoration of Mr. Forest's leave.

Under the provisions of 5 U.S.C. Sec. 6304 (1988), annual leave which exceeds the accumulation permitted by law is forfeited at the beginning of the first full pay period in a year. Subsection 6304(d)(1) allows for restoration of forfeited annual leave if the forfeiture resulted from administrative error, but our Office has consistently construed an administrative error as the failure of an agency to carry out written administrative regulations having mandatory effect. See John J. Lynch, 55 Comp.Gen.784 (1976). Thus, we have held that, absent an agency regulation requiring annual leave ceilings to be adjusted immediately, the failure to show the correct annual leave ceiling was not administrative error. Priscilla Cooke, B-231759, Jan. 4, 1989; J. Paul Guedet, B-200855, Mar. 26, 1981.

Therefore, we hold that Mr. Forest is not entitled to restoration of forfeited annual leave on the basis of administrative error under 5 U.S.C. Sec. 6304(d)(1).

/1/ Employees stationed outside of the United States may accumulate 45 days (360 hours) of annual leave rather than the maximum 30 days (240 hours) allowed for employees stationed within the United States. 5 C.F.R. Sec. 630.302 (1987).

/2/ Once an employee's annual leave balance drops to 240 hours or below, 240 hours becomes the new maximum carryover ceiling. 5 C.F.R. Sec. 630.302.