Office of the General Counsel

S9700537

Dear Mr. [xxx]:

This concerns your request for restoration of 192 hours of accrued annual leave that you forfeited because you did not use it by the end of the 1996 leave year. Your request is denied for the reasons stated below.

You state that, in August 1996, you submitted your application for retirement under the Voluntary Separation Incentive Program (VSIP) and requested a retirement date of January 3, 1997. You also state that you did not submit a leave application because you planned to request a lump sum payment for your unused annual leave. You state further that you were familiar with the regulations on scheduling and taking annual leave to avoid forfeiture. In addition you state that, as late as December 11, 1996, you were advised that your application for VSIP retirement was awaiting approval. You note that, based on your review of other employees requests for VSIP retirement that previously had been approved, you believed that your request also would be approved. However, your request for a retirement date of January 3, 1997 was not approved. You state that, if you had been notified by December 11, 1996 that your VSIP request could not be approved by January 3, 1997, you would have scheduled and taken most of your use or lose annual leave.

Your employing agency, the [agency], denied your request for restoration of the annual leave on the basis that you did not schedule the leave at least six weeks prior to the end of the leave year; your leave was not disapproved due to an exigency of major importance; there was a sufficient amount of time for you to have scheduled your leave in advance, even though you might have been retiring; and, notices were published in the [agency component] and Civilian Personnel Bulletin Boards reminding employees in a use or lose status to schedule their annual leave in advance to avoid forfeiture.

According to 5 U.S.C. 6304, a Federal employee may accrue and carry over a maximum of 30 days annual leave into the next leave year. Accumulated annual leave is forfeited when it exceeds the maximum amount and is not used before the end of a leave year. Section 6304(d)(1) specifies that forfeited annual leave may be restored when it was lost because of administrative error, or when the leave was scheduled in advance and was lost because of the exigencies of the public business or the sickness of the employee. OPM leave regulations at 5 C.F.R. 630.308 (1993) require that, before forfeited annual leave may be considered for restoration, use of the annual leave must have been scheduled in writing before the start of the third biweekly pay period prior to the end of the leave year.

In George D. Simpson and Olin C. Stewart, B-187104, May 8, 1978, an employee failed to submit a written request to take 112 hours of accrued annual leave, as required by regulation, because he was scheduled to retire on December 31, 1976 under a mandatory retirement provision then in effect, and he had opted to be paid a lump-sum for his unused annual leave. His employing agency requested that he remain on the rolls as a reemployed annuitant, and the employee agreed to the agencys request. At that point, however, the employee did not have enough remaining time in the 1976 leave year to schedule his annual leave to avoid forfeiture. On January 1, 1977, he was employed as a reemployed annuitant without a break in service.

The Comptroller General of the United States denied the request to restore the employees 112 hours of forfeited annual leave, because the statute required the leave to be scheduled in advance, and the statutory requirement could not be waived. The Comptroller General recognized that, even though his decision seemed harsh, "the controlling statute and regulations issued in this respect leave no choice but to treat this employee the same as any other employee in the matter of restoration of forfeited annual leave." Simpson, at 3.

The record in your case shows that your claim does not meet the criteria for restoration of the 192 hours of forfeited annual leave. The record shows that you were not prevented from using your excess annual leave because of an administrative error, the exigencies of the public business, or illness. Moreover, the record shows that you did not submit a written request to take the excess annual leave. Accordingly, we must uphold the decision of your employing agency to deny your claim for restoration of the 192 hours of forfeited annual leave.

Sincerely,

Jo-Ann Chabot

Attorney Advisor

cc: [agency component name and address]