Office of Merit Systems Oversight and Effectiveness

Date: May 24, 2002
File Number: [01-0054]
Matter of: [Claimant]

OPM Contact: Deborah Y. McKissick

The claimant is an employee of the [agency] at [agency's location]. The claimant is requesting 416 hours of annual leave credited to his leave records for the period from October 13, 1987 to April 21, 1995. The Office of Personnel Management (OPM) received the leave claim on August 27, 2001. On April 29, 2002, the agency provided a notice that they would not submit an administrative report. For the reasons discussed herein, the claim is granted.

The claimant states that, prior to his appointment with his agency, from July 21, 1971 to May 15, 1987, he completed 15 consecutive years of military service. This information is substantiated by the claimant's Certificate of Release or Discharge from Active Duty Form (DD form 214). He was hired on October 13, 1987 by the agency and assigned a service computation date of August 12, 1979.

The claimant states that after receiving his first paycheck and leave earning statement, which showed him accumulating 6 hours of annual leave per pay period instead of 8 hours, he contacted the Civilian Personnel Office (CPO) to correct his service computation date and his accumulating hours of annual leave. The claimant states that the agency did not take any actions until eight years later when the CPO conducted records check and discovered that his service computation date (SCD) did not include 7 years and 10 months of military service as depicted on his DD Form 214. The agency retroactively corrected the claimant's SCD via a Notification of Personnel Action Form (SF-50) on April 21, 1995.

The agency chose not to submit a response to OPM regarding the claim, but to stand on the agency's response, dated November 9, 2000, to the Office of the Inspector General, Headquarters. The agency stated that on April 21, 1995, the claimant's SCD was corrected for the period August 12, 1979 to September 30, 1971. The agency believes the claim is subject to the Barring Act, 31 U.S.C. 3702(b), and the 6-year limitation period began on "the date liability is fixed and is ordinarily upon completion of each biweekly period when annual leave is denied."

As a result of OPM's fact-finding, we note that the claimant and the agency agree that the agency placed him in an incorrect leave category as a result of computing an incorrect service computation date when he was hired on October 13, 1987. The agency did not credit his annual leave balance back to October 13, 1987 when the agency corrected his accumulating annual leave hours from 6 hours to 8 hours per pay period on the pay period ending September 30, 1994, nor when it corrected his service computation date on April 21, 1995.

Section 178.105 of Title 5, Code of Federal Regulations, specifies that claims are settled on the basis of the written record, and the claimant has the burden of establishing the burden of proving his or her right to payment. The claimant did not provide documents that evidenced his filing a formal written claim with the agency prior to April 21, 1995. Therefore, based on the statute of limitation for claims against the United States that limits the period of reimbursement to six years, the claim is time barred for the initial part of the claim period beginning October 13, 1987.

We considered whether it was appropriate to use the 'continuing claim' rule for this claim. Under the continuing claim rule, a new claim arises each time the Government fails to make a proper payment. Thus, a claimant may recover for six years prior to the filing of a continuing pay claim, regardless of when the underlying events occurred creating the initial claim. Janie B. Lopez, B-249968 (February 16, 1993). Accord, Burich v. United States, 366 F.2d 984, 986 (Ct.Cl.1966), cert. denied, 389 U.S. 885 (1967); Batten v. United States, 597 F.2d 1385, 1387 (Ct.Cl.1979); and 62 Comp. Gen. 80 (1982). The Department of the Army Inspector General's memorandum, dated March 5, 1999, states that the claimant filed with the agency on January 15, 1999. Based on the fact that the incorrect accumulating annual leave hour of 6 hours were used instead of 8 hours for each pay period during the period even after the SCD was corrected on April 25, 1995 via a personnel action, the 'continuing claim' rule does apply.

OPM does not conduct adversary hearings, but settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Based on the 'continuing claim' rule, the claim period begins on January 15, 1993, which is 6 years prior to his filing with the agency on January 15, 1999. The claim period continues until the claimant is appropriately compensated. Therefore, the claim is granted.

OPM^* has determined under the 'continuing claim' rule, that the agency is authorized to credit the claimant's annual leave balance the difference between the amount credited to the claimant and the amount that the claimant would have received if his annual leave had been correctly computed from the period of January 15, 1993 to January 15, 1995. See Jackie A. Murphy, B-251301, April 23, 1993; FAA Employees, 70 Comp. Gen. 292 (1991); and Richard C. Bockus, B-198085, Nov. 5, 1980. If the claimant believes that the agency has computed the amount incorrectly, he may file a new claim with this office.

This settlement is final. No further administrative review is available within the Office of Personnel Management. Nothing in this settlement limits the claimant's right to bring an action in an appropriate United States Court.