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DYNNESON FOR ANNUAL LEAVE WHICH WAS FORFEITED ON THE DATE OF HIS SEPARATION FROM THE BUREAU OF INDIAN AFFAIRS. WHERE FORFEITURE OCCURS BECAUSE ANNUAL LEAVE CLAIMED IS IN EXCESS OF THE STATUTORY MAXIMUM OF 5 U.S.C. 5551(A). SECRETARY: REFERENCE IS MADE TO THE CLAIM OF MR. DYNNESON FOR ANNUAL LEAVE ALLEGED TO HAVE BEEN FORFEITED ON AUGUST 7. DYNNESON HAS STATED THAT HE WAS NOT INFORMED THAT THERE EXISTED A LIMITATION AS TO THE NUMBER OF DAYS OF ANNUAL LEAVE FOR WHICH HE COULD BE PAID. HE WOULD HAVE REDESIGNATED THE DATE OF HIS RESIGNATION SO AS TO ALLOW ENJOYMENT OF THAT ANNUAL LEAVE WHICH WOULD HAVE OTHERWISE BEEN FORFEITED. WHO IS SEPARATED FROM THE SERVICE OR ELECTS TO RECEIVE A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 5552 OF THIS TITLE.

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B-175419, OCT 25, 1972

CIVILIAN PERSONNEL - SEPARATION - FORFEITURE OF ANNUAL LEAVE DECISION ALLOWING THE CLAIM OF PHILIP L. DYNNESON FOR ANNUAL LEAVE WHICH WAS FORFEITED ON THE DATE OF HIS SEPARATION FROM THE BUREAU OF INDIAN AFFAIRS. A FORMER EMPLOYEE MAY BE RESTORED TO THE ROLLS FOR A PERIOD EQUAL TO THAT OF THE FORFEITED ANNUAL LEAVE, WHERE FORFEITURE OCCURS BECAUSE ANNUAL LEAVE CLAIMED IS IN EXCESS OF THE STATUTORY MAXIMUM OF 5 U.S.C. 5551(A), AND SUCH AN APPLICATION OF THIS STATUTE WOULD BE IN DEROGATION OF EXPRESSED AGENCY POLICY AND THE INTENT OF THE PARTIES. B-172452, JUNE 2, 1971.

TO MR. SECRETARY:

REFERENCE IS MADE TO THE CLAIM OF MR. PHILIP L. DYNNESON FOR ANNUAL LEAVE ALLEGED TO HAVE BEEN FORFEITED ON AUGUST 7, 1971, THE EFFECTIVE DATE OF HIS SEPARATION FROM THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, ALBUQUERQUE, NEW MEXICO, RECEIVED BY THIS OFFICE ON FEBRUARY 4, 1972.

MR. DYNNESON ASSERTS THAT PRIOR TO THE DATE OF HIS RESIGNATION, INDICATED ABOVE, HE CONSULTED WITH HIS SUPERVISOR, MR. C. C. SPELL, CONCERNING THE PAYMENT FOR ANNUAL LEAVE UPON HIS SEPARATION. MR. SPELL PURPORTEDLY ASSURED MR. DYNNESON THAT HE WOULD RECEIVE IN FULL, PAYMENT FOR ALL THE HOURS OF ANNUAL LEAVE WHICH HE HAD ACCUMULATED UP TO THAT DATE. MR. DYNNESON HAS STATED THAT HE WAS NOT INFORMED THAT THERE EXISTED A LIMITATION AS TO THE NUMBER OF DAYS OF ANNUAL LEAVE FOR WHICH HE COULD BE PAID. HE HAS ALSO INDICATED THAT HAD HE BEEN AWARE OF SUCH LIMITATION, HE WOULD HAVE REDESIGNATED THE DATE OF HIS RESIGNATION SO AS TO ALLOW ENJOYMENT OF THAT ANNUAL LEAVE WHICH WOULD HAVE OTHERWISE BEEN FORFEITED.

THE RECORD INDICATES THAT AT THE TIME OF HIS SEPARATION MR. DYNNESON HAD ACCUMULATED A TOTAL OF 319 HOURS OF ANNUAL LEAVE. HE RECEIVED A LUMP-SUM PAYMENT FOR 30 DAYS (240 HOURS) OF SUCH LEAVE IN ACCORDANCE WITH 5 U.S.C. 5551(A) WHICH PROVIDES AS FOLLOWS:

"SEC 5551. LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE ON SEPARATION.

"(A) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, WHO IS SEPARATED FROM THE SERVICE OR ELECTS TO RECEIVE A LUMP-SUM PAYMENT FOR LEAVE UNDER SECTION 5552 OF THIS TITLE, IS ENTITLED TO RECEIVE A LUMP-SUM PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL OR VACATION LEAVE TO WHICH HE IS ENTITLED BY STATUTE. THE LUMP-SUM PAYMENT SHALL EQUAL THE PAY THE EMPLOYEE OR INDIVIDUAL WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL EXPIRATION OF THE PERIOD OF THE ANNUAL OR VACATION LEAVE, EXCEPT THAT IT MAY NOT EXCEED PAY FOR A PERIOD OF ANNUAL OR VACATION LEAVE IN EXCESS OF 30 DAYS OR THE NUMBER OF DAYS CARRIED OVER TO HIS CREDIT AT THE BEGINNING OF THE LEAVE YEAR IN WHICH ENTITLEMENT TO PAYMENT OCCURS, WHICHEVER IS GREATER. THE LUMP-SUM PAYMENT IS CONSIDERED PAY FOR TAXATION PURPOSES ONLY."

MR. DYNNESON HAS BEEN UNSUCCESSFUL IN HIS EFFORTS TO OBTAIN PAYMENT FOR THE HOURS OF ANNUAL LEAVE FORFEITED PURSUANT TO THE ABOVE-QUOTED STATUTE. HE HAS INDICATED THAT AT NO TIME DID HE INTEND FOR SUCH A FORFEITURE TO OCCUR AND HE WOULD HAVE TAKEN THOSE NECESSARY STEPS TO INSURE A FULL REALIZATION OF THOSE FORFEITED HOURS.

THIS OFFICE HAS HAD OCCASION TO RULE THAT A RESTORATION OF A FORMER EMPLOYEE TO THE ROLLS WILL BE PERMITTED IN SUCH CASES WHERE THE ORIGINALLY SET SEPARATION DATE CAUSED A FORFEITURE OF ANNUAL LEAVE IN DEROGATION OF EXPRESSED AGENCY POLICY AND INTENT OF THE PARTIES. B 172452, JUNE 2, 1971, COPY HEREWITH.

WE HAVE BEEN ADVISED THAT IT IS THE POLICY OF YOUR AGENCY TO COUNSEL EMPLOYEES ABOUT THEIR LEAVE ENTITLEMENTS. WHILE THE BUREAU OF INDIAN AFFAIRS INDICATES THAT MR. DYNNESON AND OTHER EMPLOYEES WERE ADVISED IN A MEETING ON OCTOBER 5, 1970, OF THE LEAVE REGULATIONS (QUESTIONS BEING INVITED IN REGARD THERETO) THERE IS NO SHOWING THAT HE RECEIVED ANY ADVICE ABOUT THE TAKING OF ANNUAL LEAVE IN EXCESS OF THE MAXIMUM FOR WHICH HE COULD BE PAID FOR IN A LUMP SUM. ALSO, WE UNDERSTAND IT IS YOUR AGENCY'S POLICY TO GRANT EMPLOYEES THE USE OF ANNUAL LEAVE WHICH MAY NOT BE INCLUDED IN A LUMP-SUM LEAVE PAYMENT. THIS IS REFLECTED FROM MR. DYNNESON'S CONVERSATION WITH MR. C. C. SPELL.

WE BELIEVE MR. DYNNESON SHOULD HAVE BEEN INFORMED AT THE TIME HE SUBMITTED HIS RESIGNATION THAT THE DATE THEREOF SHOULD BE EXTENDED TO INCLUDE THE ANNUAL LEAVE WHICH COULD NOT BE INCLUDED IN HIS LUMP-SUM LEAVE PAYMENT.

ACCORDINGLY, MR. DYNNESON SHOULD BE RESTORED TO THE ROLLS IN ORDER THAT HE MAY RECEIVE PAYMENT FOR THE 79 HOURS OF ANNUAL LEAVE HERE IN QUESTION.

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