B-177977, MAY 21, 1973

B-177977, MAY 21, 1973

DENIAL OF CLAIM FOR LUMP-SUM PAYMENT OF ACCRUED LEAVE AFFIRMED UPON REVIEW AS LEAVE RECORDS FOR PERIOD FEBRUARY, 1964 TO JUNE, 1966 HAVE BEEN DESTROYED IN ACCORDANCE WITH AIR FORCE MANUAL 12-50, WHICH PERMITS SUCH DESTRUCTION AFTER 3 YEARS. IT IS IMPOSSIBLE TO RESTORE LEAVE PRIOR TO 1966, WHILE AT THE SAME TIME ASSURING THAT CLAIMANT WAS NOT BEING GRANTED LEAVE WHICH WOULD CAUSE HER YEAR END LEAVE BALANCE TO EXCEED THE STATUTORY MAXIMUM OF 240 HOURS. 5 U.S.C. 6304.

TO MRS. JANE P. HANNUM:

WE REFER TO YOUR LETTER OF JANUARY 2, 1973, ASKING THAT WE RECONSIDER OUR CERTIFICATE OF SETTLEMENT DATED NOVEMBER 29, 1972, BY WHICH YOU WERE ALLOWED $73.04 AS LUMP-SUM PAYMENT FOR 22 HOURS OF ACCRUED LEAVE FOR A PERIOD OF 5 MONTHS FROM JANUARY 1 TO JUNE 5, 1966. YOU NOTE THAT YOUR ORIGINAL CLAIM WAS FOR THE CONSIDERABLY LONGER PERIOD OF 28 MONTHS THAT YOU WERE IN A LOWER LEAVE ACCRUAL CATEGORY THAN YOU SHOULD HAVE BEEN AND QUESTION THE METHOD OF CALCULATION USED TO DERIVE THE 5-MONTH FIGURE.

THE RECORD INDICATES THAT YOU WERE EMPLOYED WITH THE DEPARTMENT OF THE AIR FORCE AT MACDILL AIR FORCE BASE, FLORIDA, WHEN IT WAS DETERMINED THAT YOU HAD BECOME ELIGIBLE TO ACCRUE LEAVE AT THE RATE OF 8 HOURS PER PAY PERIOD ON JUNE 5, 1966. HOWEVER, IT APPEARS THAT IN DETERMINING YOUR SERVICE COMPUTATION DATE FOR LEAVE ACCRUAL PURPOSES A PERIOD OF APPROXIMATELY 28 MONTHS OF EMPLOYMENT IN THE OFFICE OF SENATOR STUART SYMINGTON WAS ERRONEOUSLY OMITTED IN CALCULATING YOUR CREDITABLE SERVICE. HAD THIS TIME BEEN INCLUDED, AS IT PROPERLY SHOULD HAVE, YOU WOULD HAVE BEEN ENTITLED TO THE 8-HOUR LEAVE ACCRUAL RATE BEGINNING FEBRUARY 2, 1964, AND WOULD HAVE EARNED AN ADDITIONAL 114 HOURS OF LEAVE DURING THE PERIOD BETWEEN FEBRUARY 2, 1964, AND JUNE 5, 1966.

WHEN AN EMPLOYEE IS RECREDITED WITH LEAVE IN ORDER TO CORRECT AN ADMINISTRATIVE ERROR, HIS LEAVE RECORDS ARE RECONSTRUCTED FOR EACH LEAVE PERIOD AFFECTED. IN THUS RECONSTRUCTING THE EMPLOYEE'S LEAVE ACCOUNT, HE MAY NOT BE RECREDITED WITH ANY LEAVE WHICH WOULD CAUSE HIS LEAVE BALANCE FOR THE BEGINNING OF A NEW LEAVE YEAR DURING THE PERIOD IN QUESTION TO EXCEED THE STATUTORY LIMITATION OF 240 HOURS IMPOSED ON ANNUAL LEAVE CARRY -OVER FROM ONE LEAVE YEAR TO THE NEXT BY THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, NOW 5 U.S.C. 6304.

IN RECONSTRUCTING YOUR ACCOUNT FROM JUNE 5, 1966, THE DATE YOU WERE PLACED IN THE 8-HOUR CATEGORY, FOR EACH PERIOD IN THE 1966 LEAVE YEAR, IT WAS DETERMINED THAT YOU WERE ENTITLED TO AN ADDITIONAL 22 HOURS OF ANNUAL LEAVE FOR THAT YEAR AND THAT CREDITING YOU WITH THAT AMOUNT WOULD NOT CAUSE YOUR LEAVE BALANCE AT THE END OF 1966 TO EXCEED THE STATUTORY MAXIMUM. HOWEVER, THE ONLY RECORD OF YOUR LEAVE STILL AVAILABLE IS THE BALANCE YOU CARRIED FORWARD ON JANUARY 1, 1967, THE YEAR YOU RESIGNED FROM YOUR POSITION AT MACDILL AIR FORCE BASE. ALL OF YOUR TIME AND ATTENDANCE REPORTS AND LEAVE RECORDS PRIOR TO THAT DATE HAVE BEEN DESTROYED IN ACCORDANCE WITH TABLE 177-21 OF AIR FORCE MANUAL 12-50, WHICH PERMITS SUCH DESTRUCTION AFTER 3 PAYROLL YEARS. BECAUSE OF THE ABSENCE OF THOSE RECORDS, IT WAS IMPOSSIBLE TO RESTORE YOU WITH LEAVE PRIOR TO 1966 WHILE AT THE SAME TIME ASSURING THAT YOU WERE NOT BEING GRANTED LEAVE WHICH WOULD CAUSE YOUR YEAR-END BALANCES TO EXCEED THE STATUTORY MAXIMUM. THEREFORE ALLOWANCE OF YOUR CLAIM WAS CONFINED TO THE ADDITIONAL 22 HOURS LEAVE YOU SHOULD HAVE EARNED IN 1966.

IT IS A WELL-SETTLED RULE OF THIS OFFICE THAT WHEN AN EMPLOYEE SUBMITS A CLAIM FOR LEAVE FOR A PERIOD FOR WHICH OFFICIAL RECORDS ARE UNAVAILABLE, THEN OTHER EVIDENCE, SUCH AS SWORN STATEMENTS FROM SUPERVISORS OR FELLOW EMPLOYEES WHO CAN ATTEST TO THE AMOUNT OF LEAVE USED BY AN EMPLOYEE, MAY FORM A BASIS FOR DECIDING CLAIMS INVOLVING AN EMPLOYEE'S LEAVE ACCOUNT. IN YOUR CASE, IF YOU CAN SUBMIT SIMILAR EVIDENCE A BASIS WOULD EXIST FOR FURTHER CONSIDERING YOUR CLAIM FOR THE YEARS 1964 AND 1965.

IN THE ABSENCE OF SUCH EVIDENCE, HOWEVER, THE ACTION OF OUR CLAIMS DIVISION IN ALLOWING PAYMENT FOR LEAVE ONLY FOR THE 5-MONTH PERIOD IN 1966 MUST BE SUSTAINED.