B-132829, OCTOBER 2, 1957, 37 COMP. GEN. 213

B-132829, OCTOBER 2, 1957, 37 COMP. GEN. 213

CIVILIAN PERSONNEL - LEAVES OF ABSENCE - ADMINISTRATIVE ERROR - CHARGE TO ACCUMULATION V. CURRENT LEAVE AN EMPLOYEE WHO HAD A MAXIMUM ACCUMULATED ANNUAL LEAVE BALANCE OF 480 HOURS, WHEN IT WAS DISCOVERED THAT AN ADMINISTRATIVE ERROR WAS MADE IN PLACING THE EMPLOYEE IN THE WRONG LEAVE CATEGORY, IS REQUIRED BY THE AUTOMATIC LEAVE REDUCTION PROVISIONS OF SECTION 208 (A) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 5 U.S.C. 2066, TO HAVE THE ACCUMULATED LEAVE BALANCE REDUCED ON THE BASIS OF THE CORRECTED RECONSTRUCTION OF THE LEAVE RECORD AND THERE IS NO BASIS BY WHICH THE EXCESS ANNUAL LEAVE USED IN PRIOR YEARS MAY BE CHARGED TO THE CURRENT LEAVE EVEN THOUGH IT WILL RESULT IN A FORFEITURE OF ANNUAL LEAVE.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, OCTOBER 2, 1957:

ON AUGUST 2, 1957, YOUR DEPUTY ADMINISTRATOR REQUESTED OUR DECISION CONCERNING THE PROPER METHOD OF ADJUSTING AN EMPLOYEE'S LEAVE RECORD AND RECOVERING EXCESS ANNUAL LEAVE GRANTED ERRONEOUSLY AS A RESULT OF AN INCORRECT COMPUTATION OF THE EMPLOYEE'S YEARS OF FEDERAL SERVICE.

THE EMPLOYEE ENTERED ON DUTY WITH THE VETERANS ADMINISTRATION ON AUGUST 19, 1946, AND, THROUGH ADMINISTRATIVE ERROR, WAS CREDITED WITH EMPLOYMENT BY THE FLOYD COUNTY PRODUCTION AND MARKETING ADMINISTRATION, DEPARTMENT OF AGRICULTURE, FOR THE PERIOD JULY 27, 1938, THROUGH AUGUST 16, 1946. NOVEMBER 8, 1956, THE CIVIL SERVICE COMMISSION ADVISED YOUR OFFICE THAT SUCH EMPLOYMENT WAS NOT FEDERAL EMPLOYMENT, AND THEREFORE, NO CREDIT COULD BE GIVEN FOR THIS PERIOD OF SERVICE IN DETERMINING HER LEAVE-EARNING CATEGORY. AN ADMINISTRATIVE RECONSTRUCTION OF THE LEAVE RECORD OF THE EMPLOYEE, BASED UPON THE CORRECTED SERVICE COMPUTATION DATE, SHOWS THE EMPLOYEE HAD AN ANNUAL LEAVE BALANCE OF 480 HOURS AT THE BEGINNING OF THE 1953 LEAVE YEAR. AN ADMINISTRATIVE SUMMARY OF THE EMPLOYEE'S LEAVE RECORD FROM 1953 TO 1957, BASED UPON THE CORRECTED SERVICE COMPUTATION, IS SHOWN AS FOLLOWS:

CHART

1953 1954 1955 1956 1957 BALANCE BROUGHT FWD -------- 480 462 414 366 366ACCRUED ------- ------------ 166 160 160 166

TOTAL ------------------- 646 622 574532

USED -------------------- 184 208 208 142

YEAR END BALANCE -------- 462 414 366 (1) 390

(1) SUBJECT TO FORFEIT, 24.

THE SPECIFIC QUESTION PRESENTED IS WHETHER THE LEAVE BALANCE TO THE CREDIT OF THE EMPLOYEE AT THE CLOSE OF THE 1955 LEAVE YEAR MAY BE MAINTAINED AT 480 HOURS (THE NUMBER OF HOURS ACCUMULATED AT THE TIME THE ERROR WAS DISCOVERED) OR WHETHER IT IS REQUIRED TO BE REDUCED TO 366 HOURS (THE NUMBER OF HOURS SHOWN ACCUMULATED AT THE END OF 1955 AFTER THE RECOMPUTATION OF HER LEAVE RECORD).

SECTION 203 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 680, 5 U.S.C. 2062 (C), PROVIDES AS FOLLOWS:

THE ANNUAL LEAVE PROVIDED FOR IN THIS SECTION WHICH IS NOT USED BY AN OFFICER OR EMPLOYEE, SHALL ACCUMULATE FOR USE IN SUCCEEDING YEARS UNTIL IT TOTALS NOT TO EXCEED SIXTY DAYS AT THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIOD, OCCURRING IN ANY YEAR. ( ITALICS SUPPLIED.)

THE ITALICIZED PORTION OF THE ABOVE-QUOTED SECTION WAS AMENDED BY SECTION 3 OF THE ACT OF JULY 2, 1953, 67 STAT. 137, TO READ "THIRTY DAYS AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD.' SECTION 208 (A) OF THE 1951 ACT, AS AMENDED, 5 U.S.C. 2066 PROVIDES AS FOLLOWS:

IN ANY CASE IN WHICH---

(1) THE AMOUNT OF ACCUMULATED ANNUAL LEAVE TO THE CREDIT OF AN OFFICER OR EMPLOYEE IMMEDIATELY FOLLOWING THE END OF THE LAST COMPLETE BIWEEKLY PAY PERIOD IN THE CALENDAR YEAR 1952, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, UNDER THE PROVISIONS OF LAW THEN APPLICABLE TO SUCH OFFICER OR EMPLOYEE IS IN EXCESS OF THE AMOUNT ALLOWABLE UNDER THE APPLICABLE PROVISIONS OF SECTION 2062 OF THIS TITLE, OR * * * SUCH EXCESS SHALL REMAIN TO THE CREDIT OF SUCH OFFICER OR EMPLOYEE UNTIL USED, BUT THE USE DURING ANY LEAVE YEAR OF AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT WHICH SHALL HAVE ACCRUED DURING SUCH YEAR SHALL AUTOMATICALLY REDUCE THE MAXIMUM ALLOWABLE ACCUMULATION AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD, OR CORRESPONDING PERIOD IN THE CASE OF AN OFFICER OR EMPLOYEE WHO IS NOT PAID ON THE BASIS OF BIWEEKLY PAY PERIODS, IN THE FOLLOWING LEAVE YEAR, UNTIL THE ACCUMULATION OF SUCH OFFICER OR EMPLOYEE NO LONGER EXCEEDS THE AMOUNT PRESCRIBED IN THE APPLICABLE PROVISIONS OF SECTION 2062 OF THIS TITLE. ( ITALICS SUPPLIED.)

IT IS CLEAR FROM THE ABOVE-QUOTED PROVISIONS OF SECTION 208 (A) THAT THE USE OF LEAVE BY AN EMPLOYEE IN AN AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT WHICH HE ACCRUES DURING ANY LEAVE YEAR AUTOMATICALLY REDUCES HIS MAXIMUM ALLOWABLE ACCUMULATION AT THE BEGINNING OF THE FIRST COMPLETE BIWEEKLY PAY PERIOD IN THE NEXT LEAVE YEAR. IN VIEW OF THIS AUTOMATIC REDUCTION OF HIS MAXIMUM ALLOWABLE ACCUMULATION BY OPERATION OF THE STATUTE, THERE IS NO LEGAL BASIS UPON WHICH THE EMPLOYEE IN THE PRESENT CASE MAY RETAIN HIS ACCUMULATED BALANCE OF 480 HOURS OF ANNUAL LEAVE AT THE TIME THE ERROR WAS DISCOVERED, NOTWITHSTANDING THAT A FORFEITURE OF 24 HOURS ANNUAL LEAVE IN THE LEAVE YEAR 1956 WILL BE AN INCIDENTAL RESULT OF THE RECONSTRUCTION OF THE EMPLOYEE'S LEAVE ACCOUNT. THUS, IT IS OUR VIEW THAT THE EXCESS ANNUAL LEAVE USED FROM 1953 TO 1955 MAY NOT BE RECOUPED BY A CHARGE TO LEAVE EARNED IN 1956 AND 1957 AS ADMINISTRATIVELY PROPOSED IN ORDER TO MAINTAIN THE SAID 480 HOUR ANNUAL LEAVE LIMITATION.

THEREFORE, ASSUMING THE COMPUTATION AS SHOWN IN THE ADMINISTRATIVE RECONSTRUCTION OF THE EMPLOYEE'S LEAVE RECORD IS CORRECT, THE LEAVE BALANCE TO THE CREDIT OF THE EMPLOYEE AT THE CLOSE OF THE 1955 LEAVE YEAR WOULD BE 366 HOURS. COMPARE 36 COMP. GEN. 596.