John P. Mitchell, B-180010.12

Decision Date08 March 1979
Docket NumberB-180010.12
PartiesJOHN P. MITCHELL - ADDITIONAL LEAVE, BACK PAY, AND PER DIEM
CourtComptroller General of the United States

Digest 1. Employee who suffered work-related injury objects to agency action not crediting him with accrual of annual and sick leave while he was on leave without pay status to receive compensation under federal employee's compensation act, 5 U.S.C. 8101 et seq. Agency action was proper as 5 U.S.C. 8116(a) provides that employee receiving compensation under act May not receive salary, pay, or remuneration of any type from United States except for stated exceptions. 2. Employee used annual and sick leave in leave years 1974 through 1976 incident to work-related injury elected to buy back leave used and accept compensation for injury under the federal employee's compensation act, 5 U.S.C. 8101 et seq. Annual leave reinstated as a result of buy back is subject to forfeiture rule in 5 U.S.C. 6304(a) since it was leave used rather than forfeited and therefore such leave cannot be restored under 5 U.S.C. 6304(d). 3. Employee's use of leave May not be waived under waiver statute 5 U.S.C. 5584 (1976). Use of leave which has been erroneously credited May only be waived where later adjustment of an employee's leave account results in a negative balance in annual leave account. See matter of lamoyne J. Delille, 56 Comp.Gen. 824 (1977). 4. Agency grievance examiner held that agency violated nondiscretionary promotion policy and ordered agency to provide employee with promotion and back pay under 5 U.S.C. 5596 retroactive to August 29, 1975, which action agency implemented. Employee claims that promotion and accompanying back pay should have been retroactive to April 14, 1975, as he alleges that he would have been promoted to higher grade at that time had agency carried out nondiscretionary promotion policy. Claim May not be allowed as employee has not submitted evidence to establish claim and burden is on claimant to furnish substantial evidence to establish liability of government. 5. Employee on temporary duty elected to drive his automobile in lieu of authorized travel by common carrier suffered an intraocular hemorrhage while returning from temporary duty station and claims additional per diem in connection with his illness. Where illness, occurred subsequent to time of employee's constructive scheduled return by common carrier claim May not be allowed. Paragraph c10156-2 of JTR provides allowable travel time is limited to constructive scheduled travel time of common carrier used in computing per diem when travel by POV is not advantageous to government.

Captain robert v. Kurris, finance and accounting office, department of the army, rock island arsenal, has forwarded for our decision a claim by john P. Mitchell, concerning agency treatment of leave incident to his work-related injury and compensation therefor during the period March 3, 1974 through August 28, 1976. Mr. Mitchell raises a number of questions including accrual of leave during the compensation period, crediting of leave for intermittent duty, and the amount of leave balances shown on the agency records. Additionally, Mr. Mitchell has submitted two other claims unrelated to the work related injury claim, i.e., (1) he claims a retroactive promotion with back pay for the period April 13, 1975, through August 28, 1975, for alleged failure of the agency to follow its nondiscretionary promotion policy; and (2) he appeals a disallowance by our claims division of his claim for additional per diem for the period October 25, 1970, through November 15, 1970, incident to his becoming ill during his return from a temporary duty assignment.

Leave computations

The record shows that on February 28, 1974, Mr. Mitchell suffered a work- related injury while an employee of the department of the army at fort monmouth, new Jersey. During the period of his disability which ended August 28, 1976, he worked intermittently and used varying amounts of leave pending a determination on his claim for disability compensation filed with the department of labor under the federal employee's compensation act, 5 U.S.C. 8101-51.

Upon the approval of his claim Mr. Mitchell decided to buy back his leave by arranging to have his employee's compensation payments from the department of labor paid directly to the department of the army. Buy back of leave is permitted by 20 C.F.R. 510.310.

In connection with a work-related injury 5 U.S.C. 8118 provides in part that an employee May use annual or sick leave to his credit, but that compensation for the disability May not begin during the period of paid leave. A buy back of leave involves the substitution of leave without pay (LWOP) for the paid leave, the leave bought back being recredited to the employee's leave account.

Accrual of leave during compensation period

Mr Mitchell has objected to the fact that annual and sick leave did not accrue during the period he was placed on a LWOP status as a result of his buy back. He contends that the employee's compensation act does not preclude such leave accrual.

Section 8116 of title 5, U.S.C. Provides in part that, except for certain specified payments enumerated therein an employee who is receiving compensation under the federal employee's compensation act May not simultaneously receive salary, pay or remuneration of any type from the United States. Since the right to annual leave is a type of renumeration, there is no authority for crediting (accruing) annual leave during periods when an employee is on LWOP for the purpose of receiving disability compensation. B-164617, April 13, 1972; and 29 Comp.Gen. 73 (1947).

Crediting leave for intermittent duty

Mr. Mitchell urges that there is no need to prorate the accrual of leave. The applicable regulation for crediting leave for the periods of his intermittent duty is set forth in 5 C.F.R. 630.204 (1976) which provides that when an employee's service is interrupted by a non-leave earning period he earns leave on a pro rata basis for that portion of a pay period in which he was in a pay status. See also 32 Comp.Gen. 310 (1953); federal personnel manual (FPM) chapter 630, para. 2-3c, and FPM supplement 990-2, book 630, para. S2-3d.

Fpm Supp. 990-2, book 630, para. S2-3c(2) provides a table as a guide in determining the amount of pro rata credit for accrual of annual and sick leave when an employee's service is interrupted by a non-leave earning period. See also 5 C.F.R. 630.303 and 630.406. Accordingly, the pro rata of leave was required.

The rock island arsenal has furnished copies of Mr. Mitchell's corrected leave record, DA form 2451, from his former duty station, fort monmouth, New Jersey, for the pay period beginning January 5, 1974, through December 4, 1976. He transferred without a break in service to rock island arsenal on December 1, 1976.

The employing agency has primary responsibility for maintaining accurate leave accounts and we are not in a position to alter such accounts based upon an employee's general assertion of inaccuracy. We have, however, reviewed corrected leave records for the period March 3, 1974, through August 28, 1976, to determine if any errors were made in the computations involved. The agency properly pro rated Mr. Mitchell's credit for annual and sick leave for the fraction of each pay period he worked intermittently. However, there is a 1-hour computation error in the annual leave balance as of November 8, 1975. The corrected leave record shows an annual leave balance as of November 8, 1975, of 376 hours rather than 375 hours. Regarding leave balances as shown by record of leave data, sf-1150 prepared by fort monmouth, Mr. Mitchell has raised some specific questions. On an sf-1150 dated August 30, 1977, his leave balance as of November 20, 1976, was shown as 361 hours of annual and 385 hours of sick leave, whereas on an SF 1150 dated October 19, 1977, his respective annual and sick leave balances were 327 hours and 296 hours, a difference of 34 annual and 89 hours sick leave.

This difference is due to the agency earlier crediting him with full accrual of annual and sick leave during the period his service was interrupted by his being placed on LWOP for the purpose of receiving employee's compensation. The October 19, 1977 sf-1150 properly records the accrual of annual and sick leave pursuant to 5 C.F.R. 630.204, supra, for the time he was in a leave earning status-- the intermittent time he worked. For the 71 pay periods from March 3, 1974, through November 20, 1976, Mr. Mitchell would have accrued a total of 284 hours of sick leave if he had been in a leave earning status during the entire period. As his service was interrupted by non-leave earning periods, his pro rata sick leave accrual for this period was 195 hours. Concerning his balance of annual leave both, sf-1150's show that he entered the 1976 leave year with the maximum allowable carry over of 240 hours of annual leave. Since he earned annual leave at the rate of 8 hours per biweekly pay period he would have accrued 184 hours of annual leave as of November 20 1976, had he been on a leave earning status. As his leave earning status was interrupted by his being on LWOP, his pro rata accrual of annual leave was 155 hours, a difference of 29 hours. The remaining 5 hours difference in his annual leave balance is due to the sf-1150 dated October 19, 1977, showing the use of 68 hours of annual leave during the leave year whereas the sf-1150 dated August 30, shows a charge of only 63 hours of annual leave. Nothing in our files can resolve this difference and we must accept the later computation by the agency as being correct. Incident to Mr. Mitchell's transfer from fort monmouth to rock island arsenal on December 1, 1976, he was not credited with...

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