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Cover
================================================================ COVER

Office of General Counsel

March 1996

CIVILIAN PERSONNEL LAW MANUAL -
TITLE II--LEAVE

GAO/OGC-96-6

CPLM--Leave

Abbreviations
=============================================================== ABBREV

  AID - Agency for International Development
  ASCS - Agricultural Stabilization and Conservation Service
  AWOL - absent without leave
  Canal Zone - former Panama Canal Zone
  C.F.R.  - Code of Federal Regulations
  ch.  - chapter
  Comp.  Gen.  - Decisions of the Comptroller General of the United
     States
     (published volumes)
  CPLM - Civilian Personnel Law Manual
  CSC - former Civil Service Commission
  DMA - Defense Mapping Agency
  FAA - Federal Aviation Administration
  FPM - Federal Personnel Manual
  GAO - General Accounting Office
  GAO - (in a citation) General Accounting Office Policy and
     Procedures Manual for the Guidance of Federal
     Agencies
  IRS - Internal Revenue Service
  LWOP - leave without pay
  MSPB - Merit Systems Protection Board
  MSTS - Military Sea Transportation Service
  OPM - Office of Personnel Management
  para.  - paragraph
  paras.  - paragraphs
  PCS - permanent change of station
  PDY - permanent duty
  PHS - Public Health Service
  POV - privately owned vehicle
  Pub.  L.  No.  - Public Law Number
  RIF - Reduction-in-force
  SES - Senior Executive Service
  Stat.  - WSatutes at Large
  Supp.  - supplement
  TDRL - Temporary Disability Retired List
  TDY - temporary duty
  U.S.C.  - United States Code
  VA - Veterans Administration
  WAE - When actually employed
   - section
   - sections

FORWORD
============================================================ Chapter 0

This is Title II of the Fourth Edition of the Civilian Personnel Law
Manual.  The Manual is prepared by the Office of General Counsel,
U.S.  General Accounting Office (GAO).  The purpose of the Manual is
to present the legal entitlements of federal employees, including an
overview of the statutes and regulations which give rise to those
entitlements, in the following areas:  Title ICompensation, Title
IILeave, Title IIITravel, and Title IVRelocation. 

We have included with Title I an "Introduction" in two parts.  Part I
examines GAO's authority to issue decisions and settle claims and
includes a discussion of a variety of issues on jurisdictional
limitations and policy considerations.  Part II explains the
availability of pertinent research materials and facilities of the
General Accounting Office. 

This edition of the Civilian Personnel Law Manual is being published
in loose-leaf style with the introduction and four titles separately
wrapped.  The Manual generally incorporates GAO decisions issued
through September 30, 1994.  The material in the Manual is, of
course, subject to revision by statute or through the decision-making
process.  Accordingly, this Manual should be considered as a general
guide only and should not be considered as an independent source of
legal authority.  This Manual supersedes the Third Edition of the
Civilian Personnel Law Manual. 

The Federal Personnel Manual (FPM) issued by the Office of Personnel
Management is referred to in various places in the Civilian Personnel
Law Manual.  Effective December 31, 1993, the FPM was abolished. 
However, an FPM Sunset Document, dated December 31, 1993, identifies
FPM material in effect through December 31, 1994.  The Sunset
Document states that subsequent to December 31, 1994, the retained
material will either be issued as process manuals, delegated to
agencies, or incorporated in regulations. 

As always, we would welcome any comments that you may have regarding
any aspect of the Manual.

Robert P.  Murphy
General Counsel

TITLE II--LEAVE
============================================================ Chapter 1

   GENERAL PROVISIONS
---------------------------------------------------------- Chapter 1:1

      A.  COVERAGE
-------------------------------------------------------- Chapter 1:1.1

The Annual and Sick Leave Act of 1951, as amended, 5 U.S.C.  
6301-6387, applies to the following individuals: 

(1) an employee of the federal government as defined by 5 U.S.C.  
2105, and;

(2) an individual employed by the government of the District of
Columbia before October 1, 1987. 

However, there are certain employees excluded from coverage by 5
U.S.C.   6301(2).  A list of the employees excluded from the act
also may be found in FPM Supp.  990-2, Book 630, S2-1. 

An appointee who has not actually entered on duty is not an
"employee" as defined in 5 U.S.C.   2105 and, therefore, is not
entitled to military leave under 5 U.S.C.   6323.  B-205972, May 25,
1982. 

      B.  EMPLOYEES COVERED
-------------------------------------------------------- Chapter 1:1.2

1.  Type of appointment

a.  Temporary employees

Service of temporary and indefinite employees of the Federal Deposit
Insurance Corporation is considered comparable to service creditable
under 5 U.S.C.   8332 and may be credited for annual leave purposes. 
35 Comp.  Gen.  1 (1955). 

An employee of the Department of the Army, who served three
consecutive appointments of less than 90 days each without a break in
service, is entitled to annual leave under 5 U.S.C.   6303(b) for
each full biweekly pay period she was employed.  B-190005, October 6,
1977. 

b.  Intermittent employees

When a regular tour of duty is established for intermittent employees
by preparation of a monthly work schedule 3 weeks in advance, such
employees are covered by 5 U.S.C.   6301-6312.  However, the
regular tour of duty requirement is not met when employees are not
scheduled to perform duties during each week of a pay period and the
benefits of the leave act are not available to such employees.  32
Comp.  Gen.  206 (1952). 

An employee whose position was designated "intermittent" is
nonetheless entitled to annual leave benefits since he had an
established regular tour of duty for each of the 2 workweeks in a
biweekly pay period even though he may not have been scheduled to
work at the same time and on corresponding days of the 2 workweeks of
that pay period.  57 Comp.  Gen.  82 (1977). 

The fact that an employee's appointment was designated "intermittent"
does not determine his entitlement to annual leave benefits if, in
fact, he works regularly scheduled tours of duty.  57 Comp.  Gen.  82
(1977); and B-183813, June 20, 1975. 

An employee seeks reconsideration of a prior decision on his claim
that held that the employee, hired as an intermittent United States
deputy marshal, was not entitled to leave benefits because the
findings contained in his agency's report supported the determination
that he was not assigned regularly scheduled tours of duty.  Evidence
that he frequently reported to work at 8:30 a.m.  sometimes at the
request of his supervisor, that he performed a variety of duties, and
that he often worked 78 hours in a pay period is not sufficient to
refute those findings.  The prior decision, B-236228, December 22,
1989, is affirmed.  Maynard W.  Thompson, B-236228.2, April 16, 1991. 

c.  WAE employees

Employees, appointed on a when-actually-employed basis, worked
regularly scheduled tours of duty of 80 hours each pay period during
their period of employment.  Therefore, they are entitled to annual
and sick leave accrual and pay for holidays that occurred during
their tours of duty.  B-183813, June 20, 1975. 

d.  Part-time employees

A part-time employee is entitled to benefits under the Annual and
Sick Leave Act only if he serves under an established tour of duty
for each of the 2 administrative workweeks in each biweekly pay
period.  32 Comp.  Gen.  490 (1953); and 31 Comp.  Gen.  581 (1952). 

e.  Consultant

An individual consultant whose services were procured under a
contract which established an employer-employee relationship with the
government rather than an independent contractor relationship, is
entitled to accrual of annual and sick leave, where it appears he had
a regularly scheduled tour of duty.  In addition, the consultant is
entitled to compensation for holidays on which he did not perform any
work since his contract contained an express provision to that
effect.  Lynn Francis Jones, 63 Comp.  Gen.  507 (1984). 

2.  Specific categories of employees

a.  Agricultural marketing agents

Employees of the Department of Agriculture at various milk markets,
whose salaries are paid from funds established by assessments upon
milk handlers, are entitled to accrual of leave.  B-109025, June
23,1952. 

b.  Employees of cooperating agency

Personnel employed and paid pursuant to cooperative agreements
between the United States and a cooperating agency, such as a state
or other political subdivision, are employees of the United States
and are subject to federal laws controlling the rights and benefits
of federal personnel including leave entitlement so long as their
duties and time of work are supervised and controlled by federal
officers.  B-139050, June 2, 1959. 

c.  Public Health Service commissioned personnel

Commissioned personnel of the Public Health Service are considered
civilian officers and employees under 5 U.S.C.   6308 so that
members transferring between the commissioned corps and other
civilian positions are not entitled to lump-sum leave payment but may
have annual and sick leave transferred on adjusted basis.  34 Comp. 
Gen.  287 (1954). 

d.  Law clerks to federal judges

Claims for payment for annual leave from law clerks or secretaries
may be paid if a certificate is furnished from the judge showing that
a regular tour of duty was worked weekly by the employees, that all
absences were charged to leave, and the amount of leave on the date
of separation.  Similar criteria should be used to determine whether
employees could be granted leave where no separation is involved. 
B-86699, June 14, 1949, and July 20, 1949. 

e.  Maritime employees

Although civilian personnel serving on ships of the MSTS have their
wages fixed in accordance with prevailing rates and practices of the
maritime industry, such employees are not exempted from the
provisions of 5 U.S.C.   6301-6312.  43 Comp.  Gen.  661 (1964). 

      C.  EMPLOYEES EXCLUDED
-------------------------------------------------------- Chapter 1:1.3

1.  Type of appointment

a.  Contract employees

Leave is governed by statute and not by the terms of a contract. 
B-61290, November 15, 1946. 

b.  Contractors

Contractors are not regarded as employees of the United States if
engaged on other than a personal service basis and are, thus,
excluded from leave laws.  23 Comp.  Gen.  425 (1943). 

c.  Experts and consultants

Experts and consultants without a regular tour of duty are excluded
from leave benefits under 5 U.S.C.   6301-6312.  35 Comp.  Gen. 
638 (1956).  An expert appointed on an intermittent basis is not
entitled to leave even though he actually worked full time since he
did not have an established regular tour of duty.  58 Comp.  Gen. 
167 (1978). 

d.  Temporary employees

Construction tradesmen, recruited from a local work force under
temporary appointments at hourly rates to perform alterations at the
Grand Coulee Power Plant, worked side by side with regular
maintenance employees, and the total crew performed a mixture of
construction and maintenance work.  The regular workers received
maintenance wages and the temporary construction workers received
construction wages.  However, the construction workers are not
entitled to leave benefits under 5 U.S.C.   6301-6312, since they
are specifically excepted from coverage as "temporary employees
engaged on construction work at hourly rates" by 5 U.S.C.  
6301(2)(iii).  B-160391, December 21, 1966. 

e.  Intermittent employees

The National Gallery of Art employed four nurses who worked every
third weekend, and an occasional day each administrative workweek. 
One nurse also worked as relief nurse and another worked part-time
summer evenings.  Since they had no regularly scheduled tour of duty
in each administrative workweek they were not entitled to accrue
annual and sick leave by virtue of 5 U.S.C.   6301(2)(ii), which
excludes part-time employees who do not have regularly scheduled
tours of duty.  B-111206, November 24, 1971. 

Commissary cashiers who were employed on an intermittent basis
received tentative work schedules each week which were subject to
change.  Such schedule does not constitute an administratively
prescribed regular tour of duty so as to entitle these employees to
leave benefits.  B-191915, September 29, 1978. 

f.  Fee compensated persons

Persons compensated on a fee basis are not to be considered officers
and employees of the United States and, therefore, are not covered by
5 U.S.C.   6301-6312.  30 Comp.  Gen.  406 (1951). 

g.  "Officers"

The term "officers" as used in 5 U.S.C.   6301(2)(xi) applies only
to persons who are required to be appointed by the President with or
without confirmation by the Senate, and, therefore, CSC, acting under
delegation of the President's authority, contained in Executive Order
No.  10540, June 29, 1954, may designate for exemption from the leave
act only those persons who are Presidential appointees.  B-123698,
June 22, 1955, affirmed, B-123698, May 10, 1978. 

h.  De facto employees

Generally, a de facto employee does not accrue leave.  31 Comp.  Gen. 
262 (1952).  See also 57 Comp.  Gen.  406 (1978); and B-191397,
September 6, 1978. 

i.  Erroneous appointment exception

However, in Valdez we held that where a person has been appointed to
a position by an agency and the appointment is subsequently found to
have been improper or erroneous, the employee is entitled to accrual
of annual leave and lump-sum payment for unused leave upon
separation, unless (1) the appointment was made in violation of an
absolute statutory prohibition or (2) the employee was guilty of
fraud in regard to the appointment or deliberately misrepresented or
falsified a material matter.  Prior inconsistent decisions will no
longer be followed.  This new rule does not apply to persons who have
never been appointed or who serve after their appointments have
expired since those persons do not satisfy the definition of
"employee" in 5 U.S.C.   2105.  Victor M.  Valdez, Jr., 58 Comp. 
Gen.  734 (1979).  See also Sidney P.  Arnett and Mary Ann Barron,
B-220791, September 8, 1986; Thomas C.  Collins, 61 Comp.  Gen.  127
(1981). 

2.  Specific categories of employees

a.  Certain United States attorneys

Four United States attorneys who are compensated at rates in the
Executive Schedule are excluded from coverage under the annual and
sick leave provisions of 5 U.S.C.   6301-6312.  Although United
States attorneys generally are not excluded from leave benefits
(section 6301(2)(xi)), certain United States attorneys whose pay is
set at Level IV of the Executive Schedule are excluded from leave
benefits under section 6301(2)(x) which excludes officers whose basic
rates of pay exceed the highest General Schedule level.  53 Comp. 
Gen.  577 (1974). 

b.  Court reporters

Court reporters paid an annual salary to be on call as needed by the
court, but who are otherwise free to augment income with earnings
from transcript fees do not have regular tours of duty consisting of
a definite time, day, and/or hour which they are required to work
during the workweek.  Thus, they are part-time employees excluded
from annual leave entitlement by 5 U.S.C.   6301(2)(ii).  While a
court reporter-secretary may be entitled to annual leave for the
secretarial portion of duties performed during a regular tour of
duty, the record contains no certification of leave earnings and use
upon which to base a lump-sum leave payment.  54 Comp.  Gen.  251
(1974). 

c.  Governors, commissioners, and appointees

Governors and high commissioners of United States Territories are
exempted from leave benefits of 5 U.S.C.   6301-6312.  B-127205,
May 9, 1956. 

d.  Joint United States--foreign government employees

Joint United States-foreign government employees, who devote no
particular period of their employment to the work of either
government, are not officers and employees of the United States so as
to be entitled to leave benefits under 5 U.S.C.   6301-6312.  24
Comp.  Gen.  384 (1944). 

e.  Maritime Service enrollees on active administrative duty

Although enrollees (administrative) of U.S.  Maritime Service are not
expressly exempted from 5 U.S.C.   6301-6312, they are not subject
to its provisions, and a leave system may be properly established by
regulations prescribed by the Administrator of the Maritime
Administration.  B-117518, November 20, 1953. 

f.  Nonappropriated fund employees

Nonappropriated fund employees of the Army and Air Force Motion
Picture Service are not covered by 5 U.S.C.   6301-6312, and, thus,
they are not entitled to service credit for annual leave accrual on
subsequent employment in a department or agency of the executive
branch.  37 Comp.  Gen.  671 (1958). 

g.  Federal Reserve Bank employees

Employees of Federal Reserve Bank are not employees of the United
States and are not entitled to benefits under 5 U.S.C.   6301-6312. 
B-53989, December 10, 1945. 

h.  Employees of Radio Free Europe

Although section 2313 of the Foreign Service Act of 1980 amended 5
U.S.C.   8332 to allow civil service retirement credit for
employment with Radio Free Europe (thus affecting leave accrual
categories), this law does not entitle an employee of Radio Free
Europe to leave benefits under 5 U.S.C.   6301-6312.  61 Comp. 
Gen.  279 (1982). 

i.  Executive Officer of the D.C.  Courts

The Executive Officer of the District of Columbia (D.C.) Courts is
entitled to the leave benefits of the D.C.  judges as well as the
compensation and retirement benefits which are specifically provided
by statute.  Since the Executive Officer of the D.C.  Courts is no
longer subject to the Annual and Sick Leave Act, 5 U.S.C.  
6301-6312, the leave entitlement of the Executive Officer is subject
to administrative determination by the District of Columbia Courts. 
Due to legislative changes, 52 Comp.  Gen.  111 (1972) will no longer
be followed.  Larry P.  Polansky, B-217270, October 28, 1985. 

ANNUAL LEAVE
============================================================ Chapter 2

      A.  LAWS AND REGULATIONS
-------------------------------------------------------- Chapter 2:0.1

The laws and regulations governing annual leave are contained in 5
U.S.C.   6301-6312 and 5 C.F.R.  Part 630. 

1.  Definitions

a.  Accrued leave

The leave earned by an employee during the current leave year that is
unused at any given time in that year.  5 C.F.R.   630.201(b)(1). 
See also 27 Comp.  Gen.  373, 376 (1948). 

b.  Accumulated leave

The unused leave remaining to the credit of an employee at the
beginning of a leave year.  5 C.F.R.   630.201(b)(2). 

c.  Leave year

The period beginning with the first day of the first complete pay
period in a calendar year and ending with the day immediately before
the first day of the first complete pay period in the following
calendar year.  5 C.F.R.   630.201(b)(6). 

d.  Days of leave

The days on which the employee would otherwise work and receive pay
and do not include holidays and nonworkdays established by federal
statute, executive order, or administrative order.  5 U.S.C.  
6302(a). 

e.  Full biweekly pay period

For the purposes of the statutes governing leave, an employee is
deemed employed for a full biweekly pay period if he is employed
during the days within that period, exclusive of holidays and
nonworkdays established by federal statute, executive order, or
administrative order, which fall within his basic administrative
workweek.  5 U.S.C.   6302(b). 

2.  Rate of compensation

Compensation during annual leave is payable at the regular rate paid
for the position occupied by the employee when the leave is taken;
there is no authority to fix a rate of compensation during annual
leave differing from the rate regularly fixed for active service
during a regular tour in the position.  27 Comp.  Gen.  92 (1947). 

      B.  ACCRUAL
-------------------------------------------------------- Chapter 2:0.2

1.  Rate of accrual

a.  Full-time employees

Under 5 U.S.C.   6303(a) annual leave accrues at the following
rates: 

  -- employees with less than 3 years of service--1/2 day (4 hours)
     for each full biweekly pay period, or 13 days per year;

  -- employees with between 3 and 15 years of service--3/4 day (6
     hours) for each full biweekly pay period, except for the last
     full biweekly pay period in the year which shall be 1- 1/4 days
     (10 hours), or 20 days per year;

  -- employees with 15 or more years of service--1 day (8 hours) for
     each full biweekly pay period, or 26 days per year. 

b.  Part-time employees

Under 5 C.F.R.   630.303, a part-time employee for whom there has
been established in advance a regular tour of duty on 1 or more days
during each administrative workweek, and a part-time employee on a
flexible work-schedule with an established biweekly work requirement,
accrue annual leave at the following rates: 

  -- employees with less than 3 years of service--1 hour for each 20
     hours in a pay status;

  -- employees with between 3 and 15 years of service--1 hour for
     each 13 hours in a pay status;

  -- employees with 15 or more years of service--1 hour for each 10
     hours in a pay status. 

2.  Pay period requirement

a.  Biweekly pay period

To earn leave, an employee must be employed during a full biweekly
pay period and, if he enters on duty in the middle of the pay period,
he is not entitled to any credit for annual leave for that pay
period.  31 Comp.  Gen.  581, 586 (1952); and B-112731, December 4,
1952.  5 C.F.R.   630.202. 

b.  Pay period other than biweekly

An employee paid on other than a biweekly pay period basis earns
leave on a pro rata basis for a full pay period.  5 C.F.R.  
630.203. 

c.  Nonpay status during pay period

When an employee's service is interrupted by a non-leave-earning
period (nonpay status), he earns leave on a pro rata basis for that
portion of the pay period in which he was in a paid status.  5 C.F.R. 
 630.204.  See also 32 Comp.  Gen.  310, 313 (1953). 

An employee who suffered a work-related injury was in a leave
without-pay status while receiving compensation under the Federal
Employees' Compensation Act, 5 U.S.C.   8101-8151.  While the
employee's intermittent service is interrupted by a non-leave-earning
period, he earns leave only on a pro rata basis for that portion of a
pay period in which he was in a pay status.  B-180010.12, March 8,
1979. 

d.  Effective date of change in accrual rate

Any change in the rate of annual leave accrual shall take effect at
the beginning of the next pay period (or corresponding period for
employees not paid on a biweekly basis) after the pay period in which
the employee completed the prescribed period of service.  5 U.S.C.  
6303(c). 

3.  During suspension or separation

a.  Suspension for security reasons

An employee who is suspended for security reasons under 5 U.S.C.  
7532, but who is later reinstated, is entitled to accrue annual leave
for the period of suspension, subject to the maximum accrual
limitation.  39 Comp.  Gen.  52 (1959); and 35 Comp.  Gen.  121
(1955). 

b.  Veterans reemployment right

A veteran who is erroneously prevented from restoration to his
civilian job is entitled to accrual of leave for the intervening
period.  B-127901, August 1, 1956. 

c.  While receiving disability compensation

An employee who is receiving disability compensation for a
work-related illness or injury does not accrue annual leave for the
period covered by such compensation.  29 Comp.  Gen.  73 (1949);
B-180010.12, March 8, 1979; and B-164617, April 13, 1972. 

d.  Park Police during injury-related absence

When a Park Police officer is absent from duty due to injury or
illness resulting from the performance of duty and he is not charged
leave pursuant to 5 U.S.C.   6324, he remains in a pay status during
such absence, and continues to accrue sick and annual leave. 
B-182608, February 19, 1976. 

e.  Violation of Equal Employment Opportunity Act of 1972

A U.S.  district court found that an employee had been removed from
his position with the Defense Mapping Agency (DMA) in violation of
the Equal Employment Opportunity Act of 1972 and ordered the DMA to
reinstate the employee with backpay.  As a part of that award the
employee is entitled to restoration of the annual leave and the sick
leave he would have earned during the period of his discriminatory
separation as an element of backpay.  Francis J.  Pinkney III,
B-213604, May 15, 1984. 

f.  Forfeiture of leave

Federal employees are generally eligible to carry over no more than
240 hours of unused annual leave from 1 year to the next.  An
employee who has been suspended from duty without pay, and who cannot
use annual leave, is subject to this maximum leave carryover
limitation.  Thus, an employee who was suspended and was not restored
to duty until the next succeeding year forfeited the number of hours
of annual leave in excess of 240 hours which were credited to his
leave account at the time the suspension began.  B-219974, October
21, 1985. 

4.  Maximum accumulation

a.  Generally

Under 5 U.S.C.   6304(a), an employee may accumulate a maximum of 30
days, or 240 hours.  The limitation is imposed at the beginning of
the first full biweekly pay period (or corresponding period for an
employee not paid biweekly) occurring in a year.  Any excess accrued
annual leave will be forfeited at that time.  See 31 Comp.  Gen.  581
(1952).  See also this chapter, "G.  Restoration of Leave."

b.  Employees stationed outside of the United States

Employees stationed outside of the United States who meet the
conditions for eligibility established by 5 U.S.C.   6304(b) and 5
C.F.R.   630.302 may accumulate 45 days (360 hours) of annual leave. 

c.  Employed and hired locally

An employee, who entered service in the Canal Zone and was given a
transportation agreement on the basis of his travel to the Zone as a
dependent of an employee with a transportation agreement, is not
entitled to accumulate 45 days annual leave and home leave since he
did not meet the requirement of 5 U.S.C.   6304(b) that he be
recruited from the United States or a territory or possession of the
United States outside the Zone.  However, he is entitled to such
benefits upon transfer to Mexico since the Zone is considered within
the phrase "territories and possessions" of the United States as used
in 5 U.S.C.   6304(b)(1).  53 Comp.  Gen.  1966 (1974).  But see 59
Comp.  Gen.  671 (1980) regarding the changed status of the Canal
Zone. 

d.  Significance of employee's permanent residence

A postal inspector recruited in Puerto Rico and trained and employed
in the United States for 2 years, and then transferred to Puerto
Rico, was not under the 45-day ceiling since there was no indication
that he changed his permanent residence to the United States where he
would be expected to take his home leave.  48 Comp.  Gen.  437
(1968). 

e.  Reemployment following separation

An employee, who had a 45-day leave ceiling through service overseas,
separated from federal service in 1966.  Upon reemployment in 1969
the employee was limited to 30-day leave ceiling since he "used" his
annual leave when he received lump-sum payment for annual leave upon
separation.  59 Comp.  Gen.  352 (1980). 

f.  Adjustment following return from overseas post

An employee's annual leave ceiling was not adjusted on his Statement
of Earnings and Leave when it was reduced after he returned to the
United States from an overseas duty post.  Absent an agency
regulation requiring annual leave ceilings to be included on earnings
statements or requiring annual leave ceilings to be adjusted
immediately upon departure from an overseas post, the failure to show
the correct annual leave ceiling does not constitute administrative
error providing a basis for restoration of leave under 5 U.S.C.  
6304(d)(1)(A).  B-200855, March 26, 1981. 

g.  Senior Executive Service

Under the provisions of the Civil Service Reform Act of 1978, Pub. 
L.  No.  95-454, 92 Stat.  1224, annual leave accrued by an
individual while serving in a position in the Senior Executive
Service shall not be subject to the limitation on maximum
accumulation contained in 5 U.S.C.   6304(a).  See 5 U.S.C.  
6304(f), for this and other exceptions. 

h.  Part-time employees

Part-time employees operate under the same 30-day or 45-day ceilings
as apply to full-time employees.  5 C.F.R.   630.304. 

      C.  CREDITABLE SERVICES
-------------------------------------------------------- Chapter 2:0.3

1.  Generally

In determining years of service, all service of a type that would be
creditable under section 8332, regardless of whether an employee is
covered by subchapter III, chapter 83, is creditable for setting
leave earning rates.  An employee who is a retired member of a
uniformed service is entitled to credit for the active military
service only under certain conditions.  5 U.S.C.   6303(a). 

Office of Personnel Management's interpretation in former Federal
Personnel Manual Supplement 296-33 of the language in 5 U.S.C.  
6303(a)(3)(B) (1988) which gives credit for prior military service in
computing an employee's entitlement to annual leave is not
unreasonable in distinguishing between service "during" a war and
service "in" a campaign or expedition.  Although OPM's definition is
different than that in 38 U.S.C.   101 (1988), which concerns
veteran's benefits, OPM has the statutory authority to administer the
leave system and its determination will not be disturbed by GAO. 
Kenneth J.  Emanuel, Esq., B-251775, April 29, 1993. 

2.  Potentially creditable service

Service which is potentially creditable for retirement purposes such
as (1) service for which retirement deductions were withdrawn and not
repaid, (2) service not under the retirement act, (3) service where
the employee is receiving an annuity under another retirement system,
(4) military service on the basis of which an employee is receiving
retired pay, and (5) military service which was not an interruption
of civilian service and where the employee does not have 5 years of
civilian service, is creditable for setting leave earning rates.  31
Comp.  Gen.  215 (1951). 

3.  Military retiree

Military retiree who claims credit for all of his active military
service during the Vietnam conflict for the purpose of annual leave
accrual as a civilian employee is only entitled to service credit in
accord with the Office of Personnel Management's interpretation of
the leave statute.  That interpretation allows credit for annual
leave accrual purposes only for that active military service
performed during a war or in the area of a campaign or expedition for
which a campaign badge has been authorized.  Since the Vietnam
conflict is not a war for this purpose, only the retiree's active
service spent in the area of the Vietnam campaign or expedition is
creditable service.  David T.  Simrak, B-213727.2, June 2, 1987. 

      D.  NONCREDITABLE SERVICES
-------------------------------------------------------- Chapter 2:0.4

1.  Leave-without-pay status

An employee in leave-without-pay status, performing active duty for
training, may not be credited with annual leave that would have
accrued from that period of military duty.  Ronald E.  Ferguson,
B-215542, August 1, 1985. 

2.  Radio Free Europe employees

Under the provisions of section 2313 of the Foreign Service Act of
1980, 5 U.S.C.   8332 was amended effective February 15, 1981, to
allow civil service retirement credit for employment with Radio Free
Europe.  Thus, an employee's leave accrual category would be adjusted
on the effective date of the act to credit service with Radio Free
Europe.  61 Comp.  Gen.  279 (1982). 

3.  Service governed by other than 5 U.S.C.   8332

All service creditable under 5 U.S.C.   8332 for annuity purposes
under the act, even though not regarded as military or government
service, may be used in determining years of service for leave
accrual purposes unless excluded under other provisions of law. 
Therefore, the service specified in 5 U.S.C.   8332(b)(1) through
(8) is creditable, but employment not otherwise creditable for leave
accrual purposes is not made creditable solely because it may be
creditable for retirement purposes.  51 Comp.  Gen.  301 (1971).  In
the same manner, service with Howard University, which is not
creditable service under 5 U.S.C.   8332, is not federal civilian
service for leave accrual purposes.  50 Comp.  Gen.  820 (1971). 

4.  Employee on temporary disability retired list

A service member who received an appointment as a civilian employee
during the time his name was on the Temporary Disability Retired List
(TDRL) is considered a "retired member of a uniformed service" under
5 U.S.C.   6303(a) and is, therefore, not entitled to credit for
annual leave purposes for his active military service since his
disability does not meet the criteria of 5 U.S.C.   6303(a)(A)(i) or
(ii) nor does his service time qualify under 5 U.S.C.   6303(a)(B)
or (C).  Such service may be credited only if his name is removed
from the TDRL by virtue of his separation with severance pay.  In
that event his service may be credited as of the date his name is
removed from the TDRL.  Daniel F.  Cejka, 63 Comp.  Gen.  210 (1984). 

5.  Upon reemployment--military service credit

Service in the Philippine Commonwealth Army is not active military
service that is creditable for the purpose of determining an
employee's annual leave accrual rate.  Lucio R.  Gallardo, B-226020,
October 23, 1987. 

      E.  TRANSFERS AND
      REEMPLOYMENT
-------------------------------------------------------- Chapter 2:0.5

1.  Transfers

a.  Between positions under 5 U.S.C.   6301-6312

An employee who transfers between positions covered by 5 U.S.C.  
6301-6312, without a break in service, shall have his leave certified
to the employing agency for credit or charge.  5 C.F.R.  
630.501(a). 

b.  Between permanent and temporary positions

An employee who was voluntarily furloughed from a permanent position
so as to accept a temporary appointment with a temporary commission
and who resumed duties in the permanent position without a break in
service, may have the annual leave he accrued in the temporary
position transferred to his credit in the permanent position.  33
Comp.  Gen.  528 (1954). 

c.  Reemployed annuitant

An employee retired on December 31 and accepted a temporary
appointment beginning January 1 of the following year.  His
accumulated and accrued leave should be transferred to his new
position.  55 Comp.  Gen.  784 (1976); and B-106065, October 24,
1951. 

d.  Between different leave systems

Under 5 U.S.C.   6308 an employee who transfers between positions
under different leave systems without a break in service shall have
his leave credited to his new position on an adjusted basis as set
forth under CSC regulations.  See 5 C.F.R.   630.501(b).  An
employee may transfer all accumulated and currently accrued annual
leave to his credit as of the date of transfer, and the aggregate
amount of such leave, but not in excess of the maximum limitation
allowable under the former leave system, shall constitute his new
leave ceiling until reduced under 5 U.S.C.   6304(c).  48 Comp. 
Gen.  212 (1968).  See also 49 Comp.  Gen.  189 (1969). 

e.  To position not under 5 U.S.C.   6301-6312

Employees who resigned from federal employment and accepted
employment with federally-funded Legal Services Corporation may be
paid lump-sum payments for annual leave and may have sick leave
balances certified for retirement purposes or for possible recredit
since by statute employees of Legal Services Corporation are not
federal employees for leave purposes.  B-186449, January 24, 1977. 
See also Chapter 3, "Lump-Sum Leave Payments."

2.  Reemployment

a.  Generally

For employees who have received a lump-sum payment upon separation
and are reemployed before the end of the period covered by the
lump-sum payment in the federal service, see 5 U.S.C.   6306.  See
also, Chapter 3, "Lump-Sum Leave Payments."

b.  After military service

An employee who leaves his civilian position to enter the military
service and elects under 5 U.S.C.   5552 to have his leave remain to
his credit shall have his leave restored in accordance with his right
of restoration to his civilian position or upon reemployment in a
position covered under 5 U.S.C.   6301-6312, not more than 3 years
after separation from active military duty.  5 C.F.R.   630.504. 

An employee who retired after 20 years of military service and was
employed in a federal civilian agency in 1976 is not entitled to a
recredit of the leave he alleges was available at the time he left
his former civilian employment and entered military service in 1955. 
In the absence of official records or corroborating evidence, the
employee's estimate alone is insufficient to certify a prior leave
balance upon reemployment in a civilian position.  John H.  Adams,
B-209769, March 28, 1983. 

      F.  ADMINISTRATION OF ANNUAL
      LEAVE
-------------------------------------------------------- Chapter 2:0.6

1.  Generally

Annual leave is provided and used for two general purposes:  (1) to
allow every employee an annual vacation period of extended leave for
rest and recreation; and (2) to provide periods of time off for
personal and emergency purposes such as a death in the family,
religious observances, attending to personal business, etc.  As
provided in 5 U.S.C.   6302(d) annual leave may be granted at any
time during the year as the head of the agency concerned may
prescribe.  Thus, while the taking of annual leave is an absolute
right of the employee, it is subject to the right of the head of the
agency concerned to fix the time at which leave may be taken.  39
Comp.  Gen.  611 (1960); and 16 Comp.  Gen.  481 (1936). 

An employee's annual leave account was overcredited due to agency
error as to his service computation date.  Where the overcredit of
annual leave has occurred in the year in which the error was
discovered, since an employee may be advanced annual leave for his
use during the year so long as the erroneous leave already credited
him has not caused his leave accrual to exceed his maximum
entitlement for the year, the overcredit may remain to his credit and
be adjusted from proper leave earnings during the balance of the
year.  Stephen C.  Small, B-250228, February 22, 1993. 

2.  Charges to annual leave

a.  Minimum charge

The minimum charge for leave is 1 hour, and additional charges are in
multiples thereof, unless an agency establishes or negotiates a
different minimum.  However, if an employee is unavoidably or
necessarily absent or tardy for less than 1 hour the agency, for
adequate reason, may excuse him without charge to leave.  An employee
who is charged for leave for an unauthorized absence or tardiness may
not be required to perform work for any part of the leave period
charged.  5 C.F.R.   630.206. 

b.  Charges to current, not subsequent, years

Annual leave taken during a calendar year must be charged to leave
which accrues during that year or to prior accumulations.  31 Comp. 
Gen.  581 (1952); and 27 Comp.  Gen.  336 (1947).  See also this
chapter, "F.  3.  Advanced leave."

c.  Military duty

Where employees performed military service for 5-day periods and not
on weekends, they need not be charged military leave or annual leave
for the weekend periods.  B-171947, September 7, 1972; and B-149951,
November 23, 1962. 

d.  Holidays and standby duty

X-ray technicians employed by a VA hospital who receive premium pay
for standby duty under 5 U.S.C.   5545(c)(1) and who are absent on
holidays which occur within their regular tours of duty should be
charged leave for those absences since their duty on holidays was
included in determining their premium pay rates.  56 Comp.  Gen.  551
(1977), overruling 54 Comp.  Gen.  662 (1975).  See also B-192815,
December 7, 1978.  However, such employees may be excused from duty
on such holidays without a charge to leave where it has been
administratively determined that their services are not required on a
particular holiday.  56 Comp.  Gen.  551 (1977).  This 1977 decision
is limited to prospective application, and leave which was credited
or paid lump-sum under the authority of 54 Comp.  Gen.  662 prior to
April 19, 1977 (effective date of 56 Comp.  Gen.  551), need not be
collected.  However, if such leave was not recredited or paid prior
to April 19, 1977, there is no authority to do so after that date. 
58 Comp.  Gen.  345 (1979). 

VA employee receiving standby premium pay under 5 U.S.C.  
5545(c)(1) was excused from performing regular duties at office on
holiday but was required to remain at residence at standby status. 
Since he was not relieved from duty, he should not be charged annual
leave in standby status.  B-193709, November 28, 1979, citing 58
Comp.  Gen.  345 (1979). 

e.  Holiday "in lieu of"

The Department of the Army closed the commissary on Saturday before a
Monday holiday to avoid the payment of holiday pay to full-time
employees on a Tuesday-through-Saturday shift who were entitled to a
day "in lieu of" a holiday, under 5 U.S.C.   6103(b)(2).  Since
part-time or intermittent employees were not entitled to a day "in
lieu of" a holiday, they may be charged annual leave or leave without
pay on the Saturday the commissary was closed.  B-192104, September
1, 1978. 

f.  Snow emergency

Although administrative employees of FAA's Indianapolis facility were
excused from reporting to duty during snowstorm emergency of January
26, 1978, operational component remained open, staffed by air traffic
control personnel who stayed on duty.  Since the facility was not
closed, the 26th was not a nonworkday for purposes of leave
administration, and an air traffic controller absent on approved
leave for that day was properly charged annual leave even though some
air traffic controllers scheduled for duty during the day shift were
excused without charge to leave.  B-194432, October 16, 1980. 

g.  Foreign holiday

Air Force employees on temporary duty in Saudi Arabia were denied
access to work areas for 15-day period because of local Ramadan
holiday.  Although the employees traveled elsewhere during this
period, they are entitled to administrative leave with no charge to
annual leave in the same manner as employees who remained in Saudi
Arabia.  B-199961, July 7, 1982. 

h.  Nonworkdays

An employee who had exhausted his military leave sought to use annual
leave when he was prevented from working overtime on a nonworkday due
to a weekend military drill.  Annual leave may be used for military
training, but there is no authority to grant annual leave for a
nonworkday since, under 5 U.S.C.   6302(a), days of leave for which
an employee may receive compensation are exclusive of holidays and
nonworkdays.  B-188145, November 15, 1977. 

i.  Effect of time change

Employees, who are working a night shift on the last Sunday in April
when daylight savings time begins, may be charged 1 hour of annual
leave since they work only 7 hours that shift.  Administrative leave
may not be granted.  B-195779, April 25, 1978.  See also Chapter 5 of
this title, "A.  Administrative Leave."

j.  Agency-required physical exam

Where it is an agency policy to grant compensatory time to employees
who are required to take a physical examination on a nonworkday, the
agency may not otherwise charge the employee annual leave when they
report for such an examination.  B-159420, July 19, 1966. 

k.  Charge for excess compensatory time

Where an employee was erroneously granted excess compensatory time
off, the excess compensatory time may be considered for waiver under
5 U.S.C.   5584.  If waiver is not allowed, the employee's annual
leave balance may be charged for compensatory time erroneously
granted, but only with the employee's consent.  58 Comp.  Gen.  571
(1979); and B-192839, May 3, 1979.  See 59 Comp.  Gen.  253 (1980)
modifying 58 Comp.  Gen.  571 (1979). 

l.  Erroneous charge to annual leave

An audit of time and leave records of an employee upon retirement
revealed an alleged overstatement of 40 hours of annual leave.  Where
a review of evidence, particularly the time and attendance reports
for the period in question, discloses a lack of adequate
documentation to clearly show the claimant used 40 hours of annual
leave, such leave should be credited to the employee's account. 
B-186355, November 9, 1977. 

m.  Injury in performance of duty

U.S.  Park Policeman injured in the performance of duty and assigned
to light duty for 4 hours a day continues in a pay status for and
accrues leave based on a full 8-hour workday under 5 U.S.C.   6324. 
When that officer requests a week of annual leave, he should be
charged 40 hours rather than 20 hours of annual leave.  Section 6324
does not preclude the charging of annual or sick leave for absences
unrelated to the injury which occurred in the performance of duty. 
U.S.  Park Police, 66 Comp.  Gen.  353 (1987). 

n.  Relocation of housing after transfer

A transferred employee who was offered government housing for 1 year
as an accommodation in a high-cost resort area may not be paid the
expenses incurred in later moving his household goods locally to a
private residence.  Such moving expenses may be paid by the agency
only where the employee is required to occupy government quarters. 
Furthermore, the employee may not have restored the 16 hours of
annual leave used during the move.  Gordon E.  Warrington, 68 Comp. 
Gen.  324 (1989). 

3.  Advanced leave

a.  Return to duty requirement

Where it is known at the time advanced leave is requested that the
employee will not be returning to duty, advanced annual leave or sick
leave may not be granted.  25 Comp.  Gen.  874 (1946); and 23 Comp. 
Gen.  837 (1944).  Where an employee was reported lost at sea and
there was only a remote possibility that he would return to duty,
advanced annual leave may not be granted.  48 Comp.  Gen.  676
(1969). 

Where an agency has a policy not to grant leave until it is earned,
an employee on leave need not return for 1 workday prior to
retirement in order to use annual leave.  The agency may advance him
the 8 hours of leave.  B-120074, November 29, 1966. 

b.  Refund for unearned leave

An employee who is indebted for unearned leave must, upon separation,
either refund the amount paid him representing the amount of
indebtedness or have deducted that amount from any pay due him.  An
employee who enters active military service with a right of
restoration is deemed not separated for the purposes of this
provision.  Refund is not required when an employee dies, retires for
disability, or resigns or is separated because of disability under
specified conditions.  5 C.F.R.   630.209.  See also 33 Comp.  Gen. 
145 (1953); 29 Comp.  Gen.  234 (1949); and B-131792, June 14, 1957. 

The leave "forgiven" by this provision is not chargeable against
subsequently earned leave if the employee is later reemployed.  29
Comp.  Gen.  234, supra. 

4.  Substitution of annual leave

a.  For sick leave

(1) Generally--An absence which is otherwise chargeable to sick leave
may be charged to annual leave if the employee so requests and the
agency agrees.  37 Comp.  Gen.  439 (1957); and B-142571, April 20,
1960. 

(2) Hospitalization during period of removal--Where an employee was
reinstated into federal service after an improper removal, the period
the employee was in the hospital during his separation may be charged
to annual leave at the discretion of the agency.  B-183566, April 16,
1976. 

(3) Retroactive substitution--The retroactive substitution of annual
leave for sick leave is not authorized absent a law or regulation
permitting a change in a statutory right once it has been vested.  38
Comp.  Gen.  354 (1958).  An exception to this policy exists for the
liquidation of advanced sick leave.  See 37 Comp.  Gen.  439 (1957). 

(4) To avoid forfeiture of annual leave--Generally, a substitution of
annual leave for sick leave may not be made retroactively solely for
the purpose of avoiding a forfeiture of annual leave at the end of
the leave year.  38 Comp.  Gen.  354 (1958); 31 Comp.  Gen.  524
(1952); and B-183566, April 16, 1976. 

An employee who was on sick leave from September 1971 until March
1972 requested the substitution of 18 hours of annual leave forfeited
at the end of the 1971 leave year for an equal amount of sick leave. 
The retroactive substitution of annual for sick leave was permitted
since the employee, through no fault of his own, was unaware of his
leave balance, and had he been informed and able to, he would have
chosen to apply the forfeited annual leave to a period of the illness
in a timely manner.  Also, the length of the illness foreclosed any
possibility of using annual leave for vacations, etc.  B-176093, July
10, 1972.  See also B-178583, June 14, 1973.  See also this chapter,
"G.  Restoration of Leave."

An employee, who became ill in May and did not return to work until
September, requested that 64 hours of annual leave be substituted for
an equivalent amount of sick leave for the period in August when he
scheduled and took his vacation.  Since the annual leave had been
scheduled for use in August prior to the employee's illness and since
the employee made a timely request for correction of leave records
upon return to duty, the annual leave may be substituted for an
equivalent amount of sick leave.  B-192039, January 31, 1979. 

(5) Administrative error--An employee who utilized advanced sick
leave while filing for a disability retirement and who later
substituted annual leave for the advanced sick leave may have the
charge to annual leave recredited since she was erroneously advised
that she would have to repay her advanced sick leave.  There is no
requirement to repay such leave if a disability retirement is
granted.  B-175144, March 16, 1972. 

b.  For leave without pay

(1) Mistake of law or fact--Where an employee was separated due to a
reduction in force on August 31 and the employee's eligibility for
within-grade increase had been delayed until September 2 due to
excess of use of leave without pay, the employee may not substitute
annual leave for leave without pay.  Generally, annual leave may be
substituted for leave without pay only when there is a mistake of law
or fact.  B-180870, August 27, 1974. 

(2) Administrative discretion--It is within the limits of proper
administrative discretion to change the status of an employee from
leave without pay to annual leave for the purpose of placing the
employee in pay status 1 day prior to entry on military training
duty.  37 Comp.  Gen.  608 (1958). 

(3) Disability compensation--Employee was injured on the job and
subsequently received disability compensation.  He may not substitute
accrued leave for LWOP unless he refunds that portion of his
disability compensation payments covered by that leave.  B-117594,
January 15, 1954. 

(4) To avoid forfeiture of annual leave--Where an employee is granted
leave without pay (LWOP) but then forfeits excess annual leave at the
end of the year, the excess annual leave should be substituted for
the LWOP.  B-194176, January 3, 1980.  See also 23 Comp.  Gen.  677
(1944); and 22 Comp.  Gen.  178 (1942). 

(5) To avoid break in service--An employee who resigned one position
to accept a position with another agency may be charged annual leave
or leave without pay to avoid a break in service which was not
intended by the parties involved and which resulted from a delay in
receipt of the letter of appointment by the second agency.  B-112802,
February 2, 1953.  See also B-197771, August 11, 1981. 

(6) Following separation--An employee, who submitted a memorandum
requesting emergency leave or resignation, committed suicide
approximately 2 months after voluntary resignation.  Since subsequent
documentation shows the employee intended resignation, the separation
date may not be changed for purposes of granting sick leave, annual
leave, or leave without pay until death.  The separation date may not
be changed in the absence of violation of regulation or
administrative error failing to effect intent of the parties. 
B-189895, November 2, 1977. 

(7) Temporary employee--An employee who received advance credit of
annual leave as a temporary employee used all that leave and was
placed in a leave-without-pay (LWOP) status to cover the remainder of
his absence.  When he was later appointed to a permanent position
during the same leave year and received advance crediting of
additional annual leave, he requested it be retroactively substituted
for part of the LWOP period previously charged.  The request is
denied.  The prior period of LWOP was properly charged because the
employee did not have sufficient leave to cover his absence.  Since
the entitlement to additional advance annual leave arose only because
of his new employment status, it may not be retroactively substituted
for any period prior to the first date it became available for his
use.  Monideep K.  De, 67 Comp.  Gen.  594 (1988). 

(8) Donated annual leave--death of employee--Under the Temporary
Leave Transfer Program for fiscal year 1988, the retroactive
substitution of donated annual leave for leave without pay after the
death of a leave recipient was improper.  Any unused donated leave
remaining to the credit of a leave recipient after his death should
have been restored to the leave donors.  Harold A.  Gibson, 68 Comp. 
Gen.  694 (1989). 

c.  Terminal leave

(1) Administrative discretion--The administrative authority to grant
terminal, annual, or vacation leave immediately prior to separation
from federal service, when the separation is known in advance, is
limited to cases where the exigencies of the service require such
action since the agency's discretion is not unlimited.  34 Comp. 
Gen.  61 (1954); 24 Comp.  Gen.  511 (1945).  Furthermore, the
failure of an agency to grant leave under such circumstances is not
construed as administrative error under 5 U.S.C.   6304(d)(1). 
B-182608, February 27, 1975.  However, if the employee's separation
was not in conformance with established agency policy or regulations
or with the intent of the parties especially regarding counseling of
the employee and permitting the use of leave, the employee may be
restored to the rolls for the purpose of using the unpaid leave. 
B-182608, supra; B-182027, December 23, 1974; and B-174975, March 31,
1972.  See also B-121712, October 28, 1954; and B-124148, June 9,
1955. 

An employee, who is on sick leave at the time his disability
retirement application was approved, should be allowed to continue on
sick leave and to select the separation date most advantageous to
him.  61 Comp.  Gen.  363 (1982).  Where an employee took total
accrued annual leave (6 hours) during the final 6 hours of his last
day of employment before separation, the rule regarding terminal
leave does not apply, since the employee substantially worked the
entire final pay period and worked part of the last day of that
period.  The employee could properly accrue and use the leave during
the last day of employment.  B-190374, January 20, 1978.  See also
Emmitt Sheridan, B-223876, June 12, 1987. 

d.  Traveltime

(1) To and from overseas posts

(a) Generally--Under 5 U.S.C.   6303(d) an employee, (1) who is
authorized to accumulate up to 45 days of annual leave (see 5 U.S.C. 
 6304(b)), (2) whose post of duty is outside the United States, and
(3) who is returning on leave to the United States or to his place of
residence, outside the area of employment, in the Commonwealth of
Puerto Rico or the territories or possessions of the United States,
may be granted leave-free traveltime for all time actually and
necessarily occupied in going to or from a post of duty and time
necessarily occupied awaiting transportation.  This authority is
limited to one period of leave in a prescribed tour of duty ata post
outside the United States.  See also 5 C.F.R.   630.207 which
requires employees to designate their place of residence in their
request for home leave. 

(b) Travel from Alaska or Hawaii--Leave-free traveltime under 5
U.S.C.   6303(d) is not available for travel between Hawaii or
Alaska and the continental United States since they are not outside
the "United States" as defined by 5 U.S.C.   6301(1).  B-171947.62,
November 27, 1974; and 55 Comp.  Gen.  1035 (1976). 

(c) Employee hired overseas--Overseas employees recruited locally
while temporarily outside the United States may be eligible for
leave-free traveltime if it is determined that their stay abroad was
not of such duration or under such circumstances as to constitute a
residence abroad rather than in the United States.  35 Comp.  Gen. 
244 (1955). 

e.  Other traveltime

(1) Administrative discretion--It is a matter of administrative
discretion whether to charge an employee annual leave for traveltime
involving personal convenience travel in excess of that required for
official travel alone.  Thus, where an employee returning from
temporary duty interrupts his trip for personal reasons over a
weekend, it is within the discretion of the agency to charge the
employee annual leave for the completion of his return travel on
Monday.  46 Comp.  Gen.  425 (1966).  See also 40 Comp.  Gen.  53
(1960); B-175627, July 5, 1972; B-163654, June 22, 1971; and
B-171420, March 3, 1971.  See also Francis A.  Brennan, B-210686,
October 19, 1983. 

(a) Examples--Use of POV instead of common carrier:  56 Comp.  Gen. 
865 (1977); and B-187315, May 5, 1977.  See also Chapter 5 of this
title, "A.  Administrative Leave."

  -- Indirect route to new duty station:  B-192199, January 31, 1979;
     and B-189808, April 28, 1978. 

  -- Delay or interruption for personal reasons:  B-185652, December
     28, 1976; and B-188012, May 10, 1977. 

  -- Abandons duty assignment for personal reasons:  B-188702, May
     19, 1978. 

  -- Uses annual leave prior to temporary duty assignment which is
     canceled:  must charge hours representing vacation--B-191588,
     January 2, 1979; discretionary on charging annual leave for
     return travel to headquarters--B-191588, January 2, 1979; and
     B-122739, February 10, 1977. 

  -- Reviews work at home with agency approval prior to departure: 
     B-193820, January 19, 1980. 

  -- Discretion to charge annual leave for excess traveltime permits
     agency to require employee to submit accurate time and
     attendance reports for each day traveled:  56 Comp.  Gen.  104
     (1976). 

(b) Limitations on discretion--Although matters of charging leave to
an employee for traveltime are primarily matters for the
administrative office, our Office will in an appropriate situation
disapprove the granting of excess time off without a charge to leave,
as well as an unwarranted charge of annual leave.  Thus, an employee
who was authorized travel by privately owned vehicle but whose
traveltime was determined on the basis of travel by commercial
carrier was erroneously charged annual leave.  39 Comp.  Gen.  250
(1959). 

However, a charge to annual leave is required for excess traveltime
based on reasonable driving time.  An employee left the West Coast by
plane at 7:30 p.m.  on Thursday and arrived at his home on the East
Coast at 11:45 a.m.  the following day.  It was not proper for the
agency to charge him 4 hours annual leave for not reporting to the
office Friday afternoon since, being entitled to a normal period of
rest, he could have remained overnight in California and returned to
his official duty station during normal working hours on Friday. 
B-181363, August 23, 1974. 

GAO did not object to an agency's action in excusing an employee
without charge to leave for excess traveltime caused by an airline
strike.  B-160278, December 23, 1966. 

Employees who were scheduled to attend a meeting to begin on Tuesday
were authorized to travel to the meeting on Monday.  Where the
employees departed for the meeting on Sunday for reasons of personal
convenience, they should not be charged annual leave for Monday since
on a constructive travel basis they would have traveled on Monday. 
B-180021, September 5, 1978. 

An employee on temporary duty was delayed when his automobile
suffered a mechanical breakdown.  Since use of his automobile was
advantageous to the government and since the employee's actions were
reasonable and in accordance with the agency instructions, the
employee should not be charged annual leave in connection with the
excess traveltime.  B-186829, January 27, 1977. 

(c) Involuntary leave--Where an employee is voluntarily absent from
his official duty station, it is proper for the agency to charge him
annual leave.  B-166469, September 25, 1969; and 61 Comp.  Gen.  558
(1982).  An agency that bused employees during normal working hours
to its new offices prior to relocation may charge an employee annual
leave where she refused to be bused and, thus, refused to report for
duty.  B-186095, April 26, 1976.  See also Chapter 5 of this title
"F.  Leave Without Pay."

Annual leave should be charged for time spent by new appointees on
erroneously authorized house-hunting trips.  58 Comp.  Gen.  744
(1979).  See also "G.  Restoration of Leave" in this chapter. 

(d) Repayment of excess leave--Where an employee was granted excess
annual leave, he may elect to have the excess leave charged against
later accruing annual leave under the provisions of 5 U.S.C.  
6302(f).  B-189975, October 19, 1977.  The employees may elect the
method of repayment under 5 U.S.C.   6302(f) even if the employee
may have been aware of the overcharge at the time it occurred.  The
employee's actual or constructive knowledge of the error is relevant
only when waiver of overpayment is considered under 5 U.S.C.   5584. 
B-187692, October 13, 1977. 

An employee may elect to refund excess annual leave by use of
compensatory time available for use at the time the excess annual
leave was taken.  59 Comp.  Gen.  253 (1980), distinguishing 45 Comp. 
Gen.  243 (1965). 

(e) Flexible work schedule--An employee working a flexible schedule
in accordance with 5 U.S.C.   6122(a) elected the first day of the
pay period as a "flex day." When the agency was closed for that
entire day because of weather conditions, she claimed entitlement to
an additional day off in lieu of that day.  Employees taking a day
off or a "flex day" under a flexible schedule are in a nonpay status
on those days, in contrast to employees on approved leave.  Since the
employee was not in a pay status on the day the agency closed because
of weather conditions, she has no entitlement to an additional day
off.  The situation is not analogous to a holiday where employees are
in a pay status.  Ann Knodle, B-217080, June 3, 1985. 

      G.  RESTORATION OF LEAVE
-------------------------------------------------------- Chapter 2:0.7

1.  Generally

Leave forfeited by operation of 5 U.S.C.   6304(a) or (b) (30-day or
45-day or personal ceiling limitation on accumulated leave), may be
restored under 5 U.S.C.   6304(d), if the forfeited leave resulted
from (1) an administrative error, (2) the exigencies of public
business when the annual leave was scheduled in advance, or (3)
sickness of the employee when the annual leave was scheduled in
advance. 

Employee requested annual leave from his agency during June that, if
granted, would have avoided forfeiture of annual leave.  Agency
denied request because of employee's pending assignment to training
at Industrial College of the Armed Forces for remainder of the year. 
Since the Industrial College has a restrictive leave policy for its
students, it could grant him only 40 hours leave during school year
and before academic recess period from December 18, 1992, to January
1, 1993, leaving employee with 80 hours of leave subject to
forfeiture.  Employee elected not to take annual leave during the
academic recess period.  Employee's claim for restoration of annual
leave may be granted only to the extent the employee's "use or lose"
leave balance of 80 hours exceeds the leave the employee could have
taken during academic recess period.  Dennis J.  Hubscher,
B-252088.2, September 29, 1993. 

2.  Leave scheduled in advance

a.  General rule

Leave which is forfeited due to exigencies of public business or
sickness of the employee must have been scheduled in writing in
advance to be considered for restoration.  See 5 U.S.C.  
6304(d)(1)(B) and (C), and 5 C.F.R.   630.308.  This requirement
(that leave be scheduled in advance) is statutory and may not be
waived or modified even where extenuating circumstances may exist. 
56 Comp.  Gen.  470 (1977); and B-193567, May 24, 1979.  This
requirement may not be waived even for extenuating circumstances such
as those that existed in Vietnam at the end of leave year 1974. 
B-194545, June 15, 1979; and B-191379, September 28, 1978.  This rule
also applies to employees who are performing undercover assignments. 
B-191540, December 8, 1978.  See also William K.  Knotts, B-248232,
September 22, 1992. 

b.  Failure to give actual notice

The leave must be scheduled in writing.  B-187104, September 28,
1978.  Furthermore, the leave must be scheduled before the third pay
period prior to the end of the leave year, and scheduling the leave
on the first day of the third pay period is not sufficient. 
B-194459, August 22, 1979. 

Some employees of the Norfolk Naval Shipyard, on approved leave for
the remainder of the 1987 leave year ending January 2, 1988,
forfeited up to 4 hours of annual leave as a result of the President
declaring the last half (4 hours) of the scheduled workday on
December 24, 1987, as a half-day closing.  As a result, the
employees' annual leave accounts exceeded the maximum carryover of
240 hours.  There is no authority to restore the forfeited annual
leave in excess of statutory limit of 240 hours for carryover into
the next leave year.  Norfolk Naval Shipyard, 68 Comp.  Gen.  630
(1989). 

c.  Failure to counsel

An exception to the general rule on scheduling requirements exists
where the agency has implemented a written regulation which requires
that the employees be counseled concerning a possible forfeiture of
annual leave.  If the agency violated such a regulation, the
forfeited leave may be restored under 5 U.S.C.   6304(d)(1)(A).  55
Comp.  Gen.  784 (1976).  A general statement of supervisory
responsibility will not be sufficient.  B-192510, April 6, 1979. 
Where a request for leave is submitted but not approved, see
"Administrative error," below. 

d.  Early retirement

An agency erroneously advised two employees who had qualified for
early retirement benefits that they were subject to mandatory age
retirement.  In anticipation of their separation, the employees
applied for voluntary retirement at the end of the 1985 leave year
and did not schedule or use annual leave exceeding their personal
leave ceilings.  By the time the agency discovered its error and the
employees withdrew their retirement applications, they had
insufficient time to schedule and use much of their excess annual
leave and they forfeited that leave.  The forfeited annual leave may
be restored to the employees under 5 U.S.C.   6304(d)(1)(A), because
the record shows that the forfeiture resulted from an administrative
error.  Paul A.  Carr and Jerald P.  Seach, B-222221, September 8,
1986. 

e.  Employee cancels restoration request

Even though an employee may have submitted a schedule for use of
annual leave prior to expiration of the 1986 leave year, his annual
leave may not be restored where he canceled the leave requested for
reasons other than exigency or sickness.  George H.  Mikos, B-245117,
January 21, 1992.  Affirmed B-245117.2, June 19, 1992. 

3.  Administrative error

a.  Generally

Under 5 U.S.C.   6304(d)(1)(A), annual leave lost through forfeiture
under section 6304 shall be restored to the employee if lost because
of "administrative error when the error causes a loss of annual leave
otherwise accruable after June 30, 1960." If the employee is
separated before the error is discovered, the restored leave is
subject to credit and liquidation by lump-sum payment if a claim is
filed within 3 years immediately following the date of discovery of
the error.  5 U.S.C.   6304(e). 

The failure to give actual notice of this scheduling requirement to
the employees is not an administrative error since the employees are
charged with actual or constructive notice of the requirement.  56
Comp.  Gen.  470 (1977); B-193567, May 24, 1979; and B-187104, March
8, 1978. 

b.  What constitutes an administrative error

(1) Failure to counsel employee to avoid forfeiture--An employee who
retired on December 31, 1974, with 560 hours of annual leave (and a
personal ceiling of 480 hours) and then accepted a temporary
appointment effective January 1, 1975, did not receive a lump-sum
payment for his accrued and accumulated leave but rather had his
leave transferred to his new position resulting in a forfeiture of 80
hours.  The determination as to what constitutes administrative error
is primarily for the employing agency.  Therefore, if the agency
concerned determines that it violated a mandatory policy or
regulation requiring counseling employees to avoid forfeiture, then
the leave may be restored under 5 U.S.C.   6304(d)(1)(A).  55 Comp. 
Gen.  784 (1976). 

In the absence of a mandatory policy, an employee's claim for
restoration of forfeited annual leave is denied since the agency's
failure to counsel him about possible forfeiture of annual leave does
not constitute administrative error under 5 U.S.C.   6304(d)(1)(A)
(1982).  Amos Knight, B-234528, October 6, 1989. 

(2) Failure to act upon request--Where an employee submits a bona
fide, formal, and timely request for leave, there can be no
discretion on the part of the agency whether to schedule the leave or
not.  The agency must approve and schedule the leave at the time
requested by the employee or, if that is not possible because of the
agency's workload, at some other time.  Where the employee
demonstrates that, but for an administrative error in failing to
schedule the requested leave or presenting the case to the proper
official for a determination of a public exigency, the leave was lost
because of a public exigency or sickness and was not lost due to the
fault of the employee, then the employee is entitled to restoration
of the leave under 5 U.S.C.   6304(d)(1)(A).  58 Comp.  Gen.  684
(1979); 57 Comp.  Gen.  325 (1978); B- July 5, 1978; and B-189085,
April 13, 1978.  See also Jack V.  Morkal, B-232269.2, August 22,
1989. 

If an agency is unable for the balance of the leave year to approve
and schedule an employee's request for leave, the agency will not be
required to perform the needless task of approving and immediately
canceling the leave.  However, if the agency is unable, due to an
exigency of public business, to reschedule the requested leave during
the current leave year, the failure to submit the matter to the
designated official for his determination of the exigency constitutes
an administrative error which would support restoration of the annual
leave under 5 U.S.C.   6304(d)(1)(A).  B-187104, September 28, 1978;
and B-187104, March 8, 1978.  See also George A.  Raub, B-212548,
January 24, 1984. 

Where the former Office Administrator for an Independent Counsel
failed to accept requests for the scheduling of annual leave and
inconsistently handled excess annual leave in the employees' leave
accounts, we conclude that leave in excess of the 240-hour ceiling
may be restored on the basis of administrative error under the
provisions of 5 U.S.C.   6304(d)(1)(A).  Office of Independent
Counsel, B-252501, June 24, 1993. 

(3) SES member--transfer to Presidential appointment--An agency
failed to advise a career Senior Executive Service (SES) member prior
to receiving a Presidential appointment to an Executive Level IV
position that he could elect to continue receiving annual and sick
leave or other SES benefits during his Presidential appointment, as
provided in 5 U.S.C.   3392(c) (1982).  As a result, the employee
placed his annual leave and sick leave balance in abeyance and did
not elect to retain leave benefits for a period of 4 years.  The
agency's failure to properly advise the employee constituted an
unwarranted personnel action and that the annual and sick leave the
employee would have earned during this period may be retroactively
restored.  Anthony J.  Calio, 66 Comp.  Gen.  674 (1987). 

(4) Failure to determine exigency of public business--The general
rule concerning the restoration of annual leave is that leave lost
through forfeiture under 5 U.S.C.   6304 may be restored to the
employee if it is lost because of exigencies of the public business
when the annual leave was scheduled in advance.  See 5 U.S.C.  
6304(d)(1)(B) (1976).  The determination that the exigency is of such
importance as to preclude the use of scheduled annual leave is to be
made by a designated agency official as described in 5 C.F.R.  
630.305 (1980).  However, we have held that it is immaterial if an
appropriate agency official has not made a determination as to an
exigency since a failure to present the case to a proper official for
an exigency determination constitutes an administrative error which
would allow restoration of annual leave.  B-200027, August 24, 1981. 

(5) Failure to follow mandatory regulation--Where an agency has
promulgated written regulations requiring counseling to avoid
forfeiture of annual leave, the failure to counsel constitutes an
administrative error under 5 U.S.C.   6304(d)(1)(A).  55 Comp.  Gen. 
784 (1976). 

Where an employee elects to be carried on a continuation-of-pay
status for a 45-day period after a job-related injury under the
authority of 5 U.S.C.   8118 and the agency, contrary to a mandatory
regulation, refuses to continue his pay but requires him to take
leave to cover periods of his absence attributable to the injury, the
annual leave subject to forfeiture may be restored as leave lost
because of administrative error.  58 Comp.  Gen.  507 (1979). 

An employee who was required to use compensatory time before using
annual leave did not schedule use of annual leave and forfeited 208
hours of excess annual leave.  Although agency regulations required
supervisors to schedule annual leave to avoid forfeiture, the unusual
circumstances which resulted in the forfeiture of leave in this case
do not provide a basis for restoration of the forfeited leave due to
administrative error.  B-186484, June 7, 1977. 

An employee failed to use 140 hours of restored annual leave within
the 2-year period permitted by the Office of Personnel Management
regulation at 5 C.F.R.   630.306 (1993), thus resulting in its
forfeiture a second time.  The agency's failure to plan and schedule
the employee's leave to avoid forfeiture, as required by the agency's
nondiscretionary policy, constituted administrative error.  The error
may be corrected by substituting the restored leave for annual leave
the employee took during the period.  The resulting forfeited annual
leave may be restored under 5 U.S.C.   6304(d)(1)(A) (1988).  73
Comp.  Gen.  51 (1993). 

(6) Employee on extended illness--Where an employee suffers a
prolonged illness before the end of a leave year it is presumed that,
if the employee had been properly advised of his annual leave
balance, he would have requested scheduling of annual leave in order
to avoid forfeiture.  B-193431, August 8, 1979; and B-182608,
February 19, 1976.  Thus, where such an employee was not given
notification that he would forfeit annual leave if he did not apply
for it, an administrative error occurred and the forfeited leave may
be restored to the employee.  B-187777, February 27, 1979, modifying
B-187777, January 3, 1978.  However, when the employee applied for
disability retirement and the agency placed him on leave without pay
on December 31, in order to preserve his entitlement to
cost-of-living increases in his annuity pursuant to CSC regulations,
any leave forfeited after December 31, but before the end of the
leave year, is not forfeited because of administrative error and may
not be restored.  B-187777, February 27, 1979. 

An employee of the Department of the Army who was absent from work
from June 21, 1982, through January 23, 1983, due to a work injury,
and received workers' compensation under the Federal Employees'
Compensation Act (5 U.S.C.  Chapter 81) during the period, forfeited
47 hours of annual leave in the 1982 leave year.  Employees only
received annual notices warning them in general.  The employee was
not specifically notified that in his case he would forfeit the leave
if it were not scheduled leave.  We presume he would have taken
action to avoid forfeiture if he had been properly notified.  The 47
hours of leave may be restored.  Leonard J.  Milewski, 63 Comp.  Gen. 
180 (1984). 

An employee who went on sick leave on October 23, 1981, through the
end of leave year 1981 and forfeited 104 hours of annual leave is not
entitled to restoration of the forfeited leave and additional
lump-sum leave since the leave was not scheduled.  This case does not
fall within our decisions which presume scheduling of the leave
during an extended period of absence due to illness.  This employee's
illness was of shorter duration, he was aware of his leave balance
and knew that he was responsible for scheduling the leave to avoid
forfeiture, and, in any event, it was not clear that he would have
scheduled the leave.  John E.  Brady, B-214337, August 6, 1984. 

An employee scheduled annual leave for use in November because he was
told that no leave requests would be granted in December and January
but became ill so that he was unable to take the annual leave as
scheduled.  He returned to work from sick leave 10 workdays before
the end of the leave year but did not request rescheduling of annual
leave for that period, and, thus, forfeited 80 hours of leave.  He is
entitled to restoration of his leave under 5 U.S.C.   6304 and
Office of Personnel Management guidelines since he scheduled the
leave in advance and his illness occurred late in the year and was
for such duration that by the time he returned to work his leave
would not have been approved, even if he had formally requested it,
because of the exigencies of the public business.  Walter Schmidt,
B-223238, February 27, 1987. 

(7) Erroneous lump-sum leave payment--An employee resigned from
position with USIA and was appointed the following day to position
with Air Force.  Lump-sum payment for annual leave was erroneous, and
Air Force should have recredited leave at time of appointment rather
than date employee completed repayment of lump-sum amount.  Leave
forfeited as a result of the Air Force's failure to recredit leave
account until lump-sum amount had been repaid shall be restored under
5 U.S.C.   6304(d)(1)(A).  59 Comp.  Gen.  335 (1980). 

(8) Failure to collect lump-sum leave payment--In our decision
B-200327, November 13, 1980, we determined that a lump-sum payment
for unused annual leave which is correctly and legally made to a
federal employee upon his separation from government service may not
later be considered an "erroneous" payment within the meaning of the
statute authorizing waiver of erroneous overpayments of compensation,
even though the employee concerned accepts another federal
appointment without any awareness that he will then become legally
obligated to refund part of that lump-sum leave payment by accepting
reemployment.  Hence, collection of the employee's resulting debt may
not be waived under 5 U.S.C.   5584.  Accordingly, if the hiring
agency erroneously fails to collect the refund and recredit the leave
to him on the date of reemployment, leave which cannot later be
recredited because it is subject to forfeiture limitations may be
restored to a separate leave account under the leave restoration
provisions of 5 U.S.C.   6304(d).  Compare 55 Comp.  Gen.  784
(1976). 

(9) Erroneous leave ceiling--Due to administrative error, an employee
was led to believe he was entitled to carry over 45 days of annual
leave as opposed to 30 days.  Employee carried over more than 30
days' leave in several years prior to his retirement.  Pursuant to 5
U.S.C.   6304(d)(1)(A) annual leave in excess of the 30 days may be
restored and the employee may be paid for all annual leave accrued as
of the date of retirement.  B-201358, August 24, 1981. 

(10) Failure to credit excess leave in restored leave account--An
employee who was reinstated after an unwarranted separation must have
his excess annual leave credited to a separate leave account as
provided under the Back Pay Act, 5 U.S.C.   5596(b)(1)(B)(i), and
the failure to do so constitutes administrative error under 5 U.S.C. 
 6304(d)(1)(A).  B-204628, July 7, 1982. 

(11) Forfeiture under other provisions--An employee who resigned
August 13, 1973, forfeited 93 hours which could not be liquidated by
lump-sum payment under 5 U.S.C.   5551(a).  He may not have such
leave restored under 5 U.S.C.   6304 as leave lost by administrative
error since restoration applies only to leave forfeited by operation
of  6304 which limits annual leave carryover to new leave year. 
B-182608, February 27, 1975.  However, an employee, who resigned
November 10, 1973, and forfeited annual leave prior to the amendment
to 5 U.S.C.   5551(a), by Public Law No.  93-181, December 14, 1973,
may be restored to the rolls for the period of the unused annual
leave where the record indicates that the parties did not intend a
forfeiture to occur and it was the agency's policy to avoid
forfeiture in such circumstances.  B-191210, July 21, 1978.  See also
"Terminal leave" in this chapter and Chapter 3 of this title
"Lump-Sum Leave Payments."

(12) Forfeiture because of additional holidays--Where an employee
takes annual leave for the remainder of the leave year (13 days) but
is charged for only 11 days because two additional holidays were
declared by executive order during that period, there is no authority
under 5 U.S.C.   6304 to restore the 6 hours of forfeited annual
leave in excess of the statutory limit of 240 hours for carry over
into the next leave year.  B-182549, August 22, 1975; and B-207139,
September 29, 1982.  See also Norfolk Naval Shipyard, 68 Comp.  Gen. 
630 (1989). 

An employee on approved leave for the remainder of the 1981 leave
year forfeited 4 hours of annual leave as a result of the President
granting 4 hours of administrative leave on December 24, 1981.  The
failure of the employee's agency to counsel him of GAO's holding in
Joseph A.  Seymour, B-182549, August 22, 1975, that there is no
authority to restore leave forfeited in this type of situation, does
not constitute administrative error since the agency did not have a
regulation requiring that its employees be counseled concerning
possible forfeiture.  William M.  Gaultieri, B-207139, September 29,
1982. 

(13) Failure to credit certain judges and law clerks--Magistrate and
bankruptcy judges and law clerks who are entitled to credit for
annual and sick leave, which was initially not credited to them due
to an erroneous agency position that they were not subject to the
Annual and Sick Leave Act, cannot obtain credit for annual leave in
excess of the statutory maximum carryover ceiling of 240 hours. 
Granting their claim for annual leave credit beyond the statutory
maximum would result in a windfall to them and run counter to a
judicial decision addressing comparable circumstances.  Leave
Restoration for Judicial Branch Employees, B-230807.2, September 13,
1991. 

c.  What does not constitute administrative error

(1) Scheduling problems--The failure of an agency to advise an
employee of the scheduling requirements of 5 U.S.C.   6304(d)(1)(B)
and (C), does not constitute an administrative error since employees
are charged with constructive knowledge of those requirements.  56
Comp.  Gen.  470 (1977); B-193567, May 24, 1979; B-192510, April 6,
1979; and B-187104, March 8, 1978.  In the absence of a written
regulation requiring counseling to avoid forfeiture, a general
statement regarding a supervisor's responsibility to insure that
leave is scheduled is not sufficient.  B-192510, April 6, 1979. 
Furthermore, the fact that the supervisor does not require leave
requests to be in writing does not constitute administrative error
since the burden is on the employee to submit a written request for
annual leave.  B-192510, April 6, 1979; and B-187104, September 28,
1978. 

(2) Erroneous advice or delays--Where an employee obtained an
unofficial estimate of projected retirement annuity but later
postponed such retirement due to an error in the estimate, he may not
have forfeited excess annual leave restored since the calculation of
error did not involve consideration of leave matters and, thus, leave
was not forfeited due to administrative error.  B-191041, June 2,
1978. 

An employee, who did not use excess annual leave because of alleged
delays in processing his disability retirement application, may not
have forfeited leave restored in the absence of an agency regulation
requiring counseling on impending forfeiture of annual leave. 
B-187055, March 4, 1977. 

Prior to end of leave year an employee was erroneously advised to use
15 hours of annual leave to avoid forfeiture, and error resulted in
employee's leave ceiling being reduced from 360 to 345 hours.  The
statute does not provide for restoration of leave that is used rather
than forfeited.  B-196834, July 15, 1980.  See also B-171716, March
26, 1971. 

(3) Incorrect leave and earnings statements--Although employee's
leave and earnings statement erroneously reflected lower leave
balance, employee was on notice of error and leave forfeited at end
of leave year may not be restored under 5 U.S.C.   6304(d)(1)(A). 
B-195562, June 6, 1980.  See also Priscilla Cooke, B-231759, January
4, 1989. 

(4) Failure to promptly credit annual leave--An employee who
transferred from the Social Security Administration (SSA) to the
Department of Labor was erroneously given a lump-sum leave payment. 
He returned the payment, but his leave balance from SSA was not
credited to his account until 2 years later.  Even though it was an
error not to have promptly credited the annual leave upon his
transfer, since the employee had sufficient time to schedule and use
the excess leave after it was credited, he may not be recredited with
the leave which he forfeited at the end of the leave year.  Wallie
Breig, B-213849, May 14, 1984. 

(5) Leave substituted for LWOP--Reemployed annuitant forfeited 60
hours of annual leave although he had requested and was granted 200
hours of leave without pay (LWOP) that year.  Leave subject to
forfeiture should be substituted for LWOP taken during that leave
year.  23 Comp.  Gen.  677, 688 (1944); and 22 Comp.  Gen.  178
(1942).  Leave was thus not forfeited and subject to restoration
under 5 U.S.C.   6304(d)(1)(A).  B-194176, January 3, 1980. 

4.  Exigencies of public business

a.  Generally

Under 5 U.S.C.   6304(d)(1)(B) annual leave lost through forfeiture
under section 6304 shall be restored to the employee if lost because
of "exigencies of public business when the annual leave was scheduled
in advance." The determination that the exigency is of such
importance as to preclude the use of scheduled annual leave is to be
made by an agency official as described in 5 C.F.R.   630.305. 

b.  Leave scheduled in advance

A second requirement for restoration under this condition is that the
annual leave was scheduled in advance in writing prior to the third
biweekly pay period prior to the end of the leave year.  See 5 C.F.R. 
 630.308. 

Before leave forfeited due to exigencies of public business may be
restored, it must have been scheduled in advance.  58 Comp.  Gen. 
684 (1979); B-193567, May 24, 1979; B-191379, September 28, 1978; and
B-187104, March 8, 1978. 

However, when an employee submits a timely request in writing for
leave, there can be no discretion whether to schedule the leave or
not.  The agency must approve and schedule the leave either at the
time requested by the employee, or, if not possible because of the
agency's workload, at some other time.  In the case of an exigency of
public business, the matter must be submitted to the designated
official for his official determination.  The agency's failure to
present the case to the proper official for determination of an
exigency of public business constitutes administrative error.  58
Comp.  Gen.  684 (1979); B-187104, September 28, 1978; and "3. 
Administrative error," above. 

c.  What constitutes an exigency of public business

An employee scheduled 40 hours annual leave in writing for December
1979, but he forfeited 16 hours of such leave at the end of the 1979
leave year because he performed jury duty.  He is entitled to have
such annual leave restored.  Since 5 U.S.C.   6322, prohibits loss
of or reduction in annual leave where employee is summoned to perform
jury service, it constitutes an exigency of the public business under
5 U.S.C.   6304(d)(1)(B).  60 Comp.  Gen.  598 (1981). 

d.  What does not constitute an exigency of public business

Two IRS employees who were suspended in December 1978, due to bribery
indictments, forfeited annual leave which could not be used during
nonduty, nonpay status.  Although leave was scheduled in advance and
employees were later returned to duty, they did not forfeit leave
because they were performing work.  Leave may not be restored under
exigencies of public business provision.  B-197957, July 24, 1980. 
See also B-209958, March 2, 1983. 

An AID employee who separated and forfeited 104 hours of annual leave
allegedly due to an exigency of the public business is not entitled
to lump-sum payment for the forfeited hours since the appropriate
agency official did not make the requisite exigency determinations. 
B-198177, March 31, 1981.  Moreover, although agency failure to make
proper exigency determination may not in and of itself bar
restoration of forfeited annual leave under 5 U.S.C.   6304(d)(1),
such leave may not be restored in the absence of evidence that it was
timely requested and scheduled in writing and that its use was
officially denied.  B-197704, October 7, 1980. 

5.  Sickness

a.  Generally

Under 5 U.S.C.   6304(d)(1)(C) annual leave lost through forfeiture
under section 6304 shall be restored to the employee if lost because
of "sickness of the employee when the annual leave was scheduled in
advance."

b.  Leave scheduled in advance

Under 5 C.F.R.   630.308 (1995) 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. 

c.  Employee on extended illness

A Park Police officer who was injured in the performance of duty and
was thereafter absent from duty for nearly 1 year without charge to
leave pursuant to 5 U.S.C.   6324, forfeited 204 hours of annual
leave.  The forfeited leave may be restored to his account under 5
U.S.C.   6304(d)(1)(C) since, in cases of prolonged illness
preceding the end of a leave year, the employee may be presumed to
have requested proper scheduling of annual leave otherwise subject to
forfeiture.  B-182608, February 19, 1976.  See also Leonard J. 
Milewski, 63 Comp.  Gen.  180 (1984), and John C.  Brady, B-214337,
August 6, 1984, at "3.  Administrative error, (6) Employee on
extended illness."

An employee sustained a compensable on-the-job injury resulting in a
prolonged recuperation period which extended beyond the end of the
leave year.  The fact that he scheduled annual leave after the
injury, with the knowledge that he probably would be unable to use
it, does not preclude restoration of the leave.  The employee, who
was covered by workers' compensation during the period, was not
obligated to use the scheduled annual leave to avoid forfeiture. 
Bruce F.  Scott, B-218728, December 10, 1981. 

A prolonged illness preceding the end of the leave year raises a
presumption that the employee would have requested proper scheduling
of annual leave otherwise subject to forfeiture.  B-193431, August 8,
1979; and B-187777, February 27, 1979, modifying B-187777, January 3,
1978. 

An employee, whose disability retirement application was approved on
October 27, 1976, scheduled use of his annual leave which was subject
to forfeiture but did not use the scheduled annual leave since he was
on extended sick leave pending his disability retirement.  The
forfeited leave may be restored under 5 U.S.C.   6304(d)(1)(C) since
neither the statutory language nor the legislative history of Pub. 
L.  No.  93-181 indicates that annual leave which is not used as a
result of extended sick leave pending disability retirement may not
be restored under this provision.  58 Comp.  Gen.  435 (1979). 

6.  Use of restored leave

a.  Forfeiture

An employee failed to use restored forfeited leave within the
required 2-year period and the leave again was forfeited.  Although
the employee alleges that the agency erred in advising him regarding
the rules for using restored leave, the leave may not be restored
again.  The 2-year requirement, which is contained in a regulation
issued by OPM, has the force and effect of law and may not be waived
or modified by this Office.  5 C.F.R.   630.306 (1991).  Dr.  James
A.  Majeski, B-247196, April 13, 1992.  See also B-188993, December
12, 1977. 

In 1973 an agency discovered an error in the rate of accrual of leave
of an employee which resulted in crediting his leave account with 24
additional hours in 1972 and 26 additional hours in 1973.  The leave
which was credited in 1972 but forfeited without an opportunity to be
used, may be restored.  However, leave which was earned in a leave
year but forfeited that same year may not be restored.  B-186820,
December 16, 1977. 

An employee has no rights to further restoration and lump-sum payment
of unused forfeited and restored 1977 leave, which was forfeited
again at the end of the 1980 leave year.  Although agency personnel
gave him erroneous advice concerning his restored leave and failed to
fix the date, as required by the regulations, for the running of the
2 years in which to use-or-lose his restored leave, no legal
authority exists for further restoration of leave once it is
forfeited a second time.  William Corcoran, B-213380, August 20,
1984. 

b.  Failure to charge restored leave account

Where an agency fails to charge the restored leave account at the
employee's request, restored annual leave which is subsequently
forfeited may be restored to an employee's leave account.  56 Comp. 
Gen.  1014 (1977). 

7.  Under Back Pay Act of 1966

a.  Generally

An employee who loses leave as a result of an unwarranted or
unjustified personnel action under the Back Pay Act of 1966, 5 U.S.C. 
 5596, shall be recredited with all annual and sick leave which
accrued during the period.  Further, through the enactment of Pub. 
L.  No.  94-172, December 23, 1975, 89 Stat.  1025, there is no
limitation on the amount of annual leave which may be restored, and
any leave in excess of the maximum allowable shall be credited to a
separate leave account.  5 U.S.C.   5596(b)(1)(B) (1994) and 5
C.F.R.   630.505 and 550.805(g) (1995). 

An employee who was erroneously separated and later reinstated is
entitled to credit for annual leave earned during the erroneous
separation under the authority of 5 U.S.C.   5596.  Annual leave
which is in excess of the employee's annual leave ceiling shall be
credited to a separate leave account which, under regulations, gives
the employee 2 years from the date the leave is credited to the
separate account in which to schedule and use such annual leave.  57
Comp.  Gen.  464 (1978).  See 5 C.F.R.   550.805(g) (1995). 

b.  Erroneous holiday

The agency erroneously applied Executive Order No.  11582, February
11, 1971, and designated Tuesday, instead of the prior Saturday, as a
holiday "in lieu of" Washington's Birthday for employees with a
Tuesday-through-Saturday workweek.  To correct the error, the agency
paid holiday pay for Saturday and charged employees annual leave for
Tuesday.  However, under these circumstances this charge to leave
constitutes an unjustified or unwarranted personnel action and the
leave should be restored.  B-127474, February 9, 1979. 

c.  Involuntary leave

(1) Disability retirement--An employee, was placed on involuntary
leave pursuant to CSC regulations pending action on an agency-filed
application for disability retirement.  She is not entitled to
restoration of leave under the Back Pay Act, 5 U.S.C.   5596, when
the agency-filed application was initially denied since the
determination to place her on leave was based on competent medical
findings.  B-184522, April 21, 1977, affirming B-184522, March 16,
1976.  However, when the agency-filed application was initially
denied by the CSC and the agency appealed determination, agency must
either restore the employee to duty, or take steps to remove her on
disability grounds.  Agency's failure to do so constituted an
unwarranted or unjustified personnel action under the Back Pay Act. 
B-184522, March 16, 1976.  See also B-206237, August 16, 1982. 

An employee was on sick leave, annual leave, and then on approved
leave without pay pending a determination on his application for
disability retirement, including his unsuccessful appeal of the
denial of his application.  He may not have leave recredited under 5
U.S.C.   5596 since the record does not establish that the leave was
involuntary or that the employee was ready, willing, and able to work
during that period.  B-128314, January 8, 1979.  For same principle,
but involving regular retirement rather than disability retirement,
see Ralph C.  Harbin, B-201633, April 15, 1983. 

Based upon medical evidence from an employee's personal physician and
an examination by agency physician showing that the employee could
not perform the duties of her position, the agency placed the
employee on involuntary leave and submitted an agency initiated
disability retirement application.  After initial rejection of the
application, the agency appealed to OPM, which approved the
retirement application.  The employee then appealed to the Merit
Systems Protection Board (MSPB), which ruled that the employee was
not totally disabled.  The employee claimed backpay for the entire
period she was on involuntary leave.  The claimant is entitled to
backpay for the period between the initial denial of the application
and the OPM granting of retirement.  Once the application was granted
it was appropriate for the employee to be retired.  MSPB's finding
that the employee was not totally disabled did not make improper the
agency action in placing the employee in a nonpay status pending the
appeal to MSPB.  63 Comp.  Gen.  156 (1984). 

Agency placed employee on involuntary leave following
fitness-for-duty examination and filed for her disability retirement. 
After disability retirement was denied by Office of Personnel
Management (OPM), employee claimed backpay for period of involuntary
leave and leave without pay.  Claim is denied since OPM did not
overturn medical evidence submitted by agency and agency action was
based on competent medical evidence.  Memphis Defense Depot,
B-214631, August 24, 1984. 

The Office of Personnel Management (OPM) determined that an employee,
placed on involuntary leave on the basis of medical evidence provided
by his own physician and the results of a fitness-for-duty
examination, was not eligible for disability retirement.  The agency
failed to return the employee to duty until 4 months later.  The
employee is entitled to backpay and restoration of leave for the
period of involuntary leave subsequent to OPM's determination since
the agency was required at that point to either return the employee
to duty or initiate his separation on the grounds of disability.  The
employee's claim for the period prior to OPM's determination may not
be allowed since the agency reasonably interpreted the medical
evidence presented as indicating the employee's incapacity to perform
his duties and OPM did not overturn that evidence.  Albert R. 
Brister, B-217171, May 28, 1985. 

(2) Employee illness--Based on a preliminary diagnosis of
tuberculosis made by the employee's personal physician, the agency
placed the employee on involuntary leave while confirmatory tests
were being made.  The agency's decision was based upon competent
medical evidence, and leave may not be restored under the Back Pay
Act even though the required tests were not conducted by the
employee's treating physician and the state-operated laboratories
within a normal time period.  B-181313, May 6, 1977, affirming
B-181313, February 7, 1975.  See also B-192956, April 9, 1979. 

(3) Employee suspension--An employee who was suspended from
employment after her arrest on criminal charges is not entitled to
leave restoration after some of the criminal charges were dismissed
since there was no finding that the suspension was an unjustified or
unwarranted personnel action under the Back Pay Act.  B-192643, July
6, 1979. 

(4) Under Federal Employees' Compensation Act--buy back--An employee
who uses annual or sick leave to recuperate from a work-related
injury may "buy back" such leave pursuant to 20 C.F.R.   10.310, be
placed on leave without pay, and accept compensation for the injury
under the Federal Employees' Compensation Act, 5 U.S.C.  
8101-8151.  However, annual leave which is reinstated as a result of
a "buy back" is subject to forfeiture under 5 U.S.C.   6304(a) and
may not later be restored.  B-180010.12, March 8, 1979; B-187104,
March 8, 1978; B-182608, August 9, 1977; B-184008, March 7, 1977; and
B-204522, March 23, 1982.  To avoid forfeiture, an employee may
choose to be placed on annual leave during this period, and the
employee would be required to refund a portion of the employee's
compensation to the Department of Labor.  B-180010.12, March 8, 1979;
and B-182608, August 9, 1977. 

An employee who wishes to "buy back" leave where there are no
official records from which to determine the amount of leave taken
may "buy back" leave on the basis of secondary evidence determined to
be acceptable by the agency such as leave requests, leave and
earnings statements, time and attendance reports, personal leave
records, and certificates from supervisors and timekeepers.  58 Comp. 
Gen.  741 (1979). 

Where an employee "buys back" annual leave used during work-related
injury in order to receive workers' compensation payments,
repurchased leave may be forfeited in reconstructing leave account of
prior years and such forfeited leave may not be restored due to
administrative error.  B-204522, March 23, 1982; B-182608, August 9,
1977; and B-184008, March 7, 1977. 

An employee who used restored 1977 annual leave and regular annual
leave in 1978 to recuperate from a work-related illness accepted
workers' compensation and bought back leave used.  Upon
reconstruction of the employee's leave records to show recredit of
the leave as of the time it was used, 66 hours of repurchased
restored and regular annual leave were found to be subject to
forfeiture.  Regular annual leave reinstated as the result of buy
back and subject to forfeiture under 5 U.S.C.   6304(a) (Supp.  III
1979), may not be restored under 5 U.S.C.   6304(d) nor may restored
leave recredited to a prior leave year and subject to forfeiture
under 5 C.F.R.   630.306 (1982) be restored further.  However, since
the employing agency failed to apprise the employee of the
consequences of buy back, the employee at his election may choose to
be placed on annual leave for 1978 to avoid any or all forfeiture. 
The employee would then be entitled to be paid for the 66 hours of
leave at the pay rates then in effect and he would have to refund the
portion of workers' compensation covered by that leave.  62 Comp. 
Gen.  253 (1983). 

Under the provisions of the Federal Employees' Compensation Act, an
employee who uses annual or sick leave during absences from work in
connection with work-related injuries or illnesses may "buy back" or
repurchase such leave and accept workers' compensation for the period
of such absences under the act.  An employee may not use accumulated
annual or sick leave in order to liquidate an indebtedness owed the
agency since annual and sick leave may not be converted into a
monetary equivalent in these circumstances.  See Donald R.  Manning
v.  United States, 7 Cl.  Ct.  128, 133 (1984). 

      H.  WAIVER OF OVERCREDIT OF
      ANNUAL LEAVE
-------------------------------------------------------- Chapter 2:0.8

An employee's annual leave account was erroneously overcredited due
to the agency's error in calculating her service computation date
and, thus, the number of hours of leave she was to accrue each pay
period.  Since there was a positive balance remaining in the
employee's leave account after the agency adjusted her account to
correct the administrative error, there was no overpayment of pay or
allowances which may be considered for waiver under 5 U.S.C.   5584. 
Donna J.  Williams, B-230366, June 27, 1988. 

Where an employee's annual leave account was overcredited, the
employee may be granted waiver only to the extent reconstruction of
his leave account results in a negative leave balance.  The hours
deducted in reconstructing his annual leave account may not be waived
or otherwise recredited.  When an employee has sufficient leave to
his credit to cover the adjustment there is no overpayment of pay
which may be considered for waiver.  Carl H.  L.  Barksdale,
B-219505, November 29, 1985. 

An employee's annual leave account was overcredited due to agency
error as to his service computation date.  Where the overcredit of
annual leave is has occurred during years prior to the year in which
the error was discovered, the employee's leave account is to be
reconstructed for each separate year involved to arrive at the proper
current leave balance, and to determine whether an erroneous payment
of salary occurred in any year where excessive use of leave resulted
in a negative leave balance, the value of which becomes a debt due
the United States subject to waiver.  Stephen C.  Small, B-250228,
February 22, 1993. 

      I.  VOLUNTARY LEAVE TRANSFER
      PROGRAM
-------------------------------------------------------- Chapter 2:0.9

Under the Voluntary Leave Transfer Program, donated leave may not be
transferred to the recipient or used after the medical emergency
terminates and any unused transferred leave must be restored to the
leave donors.  Therefore, the retroactive substitution of a
recipient's unused donated leave for the recipient's leave without
pay after the death of the recipient was improper, and the payment of
compensation resulting from the retroactive substitution was
erroneous.  The erroneous payment, however, may be subject to waiver. 
Mary Dawson, 70 Comp.  Gen.  432 (1991).  See also Harold A.  Gibson,
68 Comp.  Gen.  694 (1989). 

      J.  INTERNATIONAL DATELINE
------------------------------------------------------- Chapter 2:0.10

An employee performing temporary duty in Guam celebrated the Fourth
of July holiday there.  He commenced return travel on the following
day and, after crossing the international dateline, he arrived at his
official duty station in Hawaii on the Fourth of July.  Since the
office was closed, he was unable to work.  In accordance with 5
U.S.C.   6103 (1982) and Executive Order No.  11,582, the employee's
holiday observance was in Guam.  However, he should not be required
to use annual leave in Hawaii on the Fourth of July since it is
appropriate for his agency to exercise its discretion and grant him
an excused absence without loss of pay for the day.  Crossing the
International Dateline, B-229355, November 22, 1988. 

LUMP-SUM LEAVE PAYMENTS
============================================================ Chapter 3

      A.  STATUTORY AND REGULATORY
      AUTHORITIES
-------------------------------------------------------- Chapter 3:0.1

An employee (as defined by 5 U.S.C.   2105) or an individual
employed by the District of Columbia who is separated from the
service is entitled to receive a lump-sum payment for accumulated and
current accrued annual leave to which he is entitled by statute.  The
payment shall equal the pay the employee would have received had he
remained in the service until the end of the period of annual leave,
and the payment is considered pay for taxation purposes only.  5
U.S.C.   5551(a). 

An employee who enters active duty in the armed forces may elect to
have his leave remain to his credit until his return from active
duty.  5 U.S.C.   5552. 

Governing OPM regulations on lump-sum leave payments are contained in
FPM Chapter 550, Subchapter 2 and FPM Supp.  990-2, Book 550,
Subchapter 2. 

      B.  ENTITLEMENT
-------------------------------------------------------- Chapter 3:0.2

1.  Payable upon separation

Employees who are separated from the service are entitled to a
lump-sum payment for all unused annual leave through the last full
pay period before separation.  The right to a lump-sum payment vests
on the date of separation.  33 Comp.  Gen.  85 (1953). 

2.  Payable upon transfer or change of positions

a.  Transfer to position not under leave system

Where an employee transfers to a position not covered by 5 U.S.C.  
6301-6312 and his accumulated leave cannot be transferred, such
transfer may be regarded as a separation for the purposes of a
lump-sum leave payment.  49 Comp.  Gen.  189 (1969); 33 Comp.  Gen. 
622 (1954); and 33 Comp.  Gen.  85, 88 (1953). 

An executive branch employee who went on leave without pay in order
to accept a position with a Congressional committee and who later
resigned from his agency is entitled to lump-sum payment for annual
leave upon date of separation and not the date he was placed on LWOP. 
B-191713, May 22, 1978. 

Employees who resigned from a federal agency and accepted employment
with federally-funded Legal Services Corporation may be paid lump-sum
payments for annual leave pursuant to 5 U.S.C.   5551 even though
the Legal Services Corporation paid "cash bonuses" for certain
amounts of leave.  Community Services Administration, B-186449,
January 24, 1977. 

b.  Change to intermittent employment with no regular tour of duty

Where an employee converts to a position as an intermittent employee
with no regular tour of duty during an administrative workweek and
where he will earn no leave and cannot transfer his leave, he shall
receive a lump-sum payment for all annual leave accumulated under his
prior position.  47 Comp.  Gen.  706 (1968); and 33 Comp.  Gen.  85,
88 (1953). 

c.  Transfers to other positions

(1) Judges and court employees--Where an employee of the Department
of Justice takes a position with a federal judge or with the U.S. 
Courts which is not covered by 5 U.S.C.   6301-6312 and to which
his accumulated leave is not transferrable, the employee shall
receive a lump-sum leave payment to avoid forfeiture of the leave. 
33 Comp.  Gen.  622 (1954) and B-166640, May 21, 1969.  See also
B-128026, July 20, 1956.  However, the judges of the Tax Court, which
was removed from the executive branch and established as a
constitutional court, were not regarded as being "separated from the
service" as contemplated by 5 U.S.C.   5551.  Instead, their
entitlement to payments for annual leave remained undisturbed and
their accumulated leave would be paid upon separation or recredited
upon return to a position covered by 5 U.S.C.   6301-6312.  49
Comp.  Gen.  545 (1970). 

(2) Restoration in VA after 90-day temporary appointment with
Army--In August 1987, immediately before beginning a 90-day temporary
appointment with the Army, the claimant was notified that she had
prevailed in an equal employment opportunity complaint against the
Veterans Administration (VA).  As a result, she was reinstated as a
VA employee with backpay and restoration of leave from February 1984
until she started working for the Army.  In view of her reinstatement
by VA, she is treated as an employee who is transferred from one
agency to another.  Consequently, she first became entitled to a
lump-sum leave payment at the end of her 90-day temporary
appointment, and the Army must pay her for her full annual leave
balance, including restored leave.  Priscilla M.  Worrell, 68 Comp. 
Gen.  548 (1989). 

3.  Payment optional

a.  Duty in armed forces

An employee who entered active duty in the armed forces requested
that his leave remain to his credit until his return, but never
returned to federal service.  The action should be recorded as a
separation and the individual is entitled to receive a lump-sum
payment.  B-162148, October 5, 1967. 

An employee who enters on active duty with the armed forces and
elects to receive a lump-sum payment under 5 U.S.C.   5552
relinquishes any right to a recredit of the leave upon return to
federal service.  Joseph P.  Reap, B-180926, March 28, 1975. 

A retired Regular officer serving in a civilian position who reports
for 2 weeks active duty is entitled to receive a lump-sum payment or
to have his leave remain to his credit until his return from active
duty.  49 Comp.  Gen.  444 (1970). 

b.  Position in public international organization

Under 5 U.S.C.   3582(a)(4), an employee who transfers to an
international organization (as defined in 5 U.S.C.   3581) is
entitled to elect to retain his annual leave to his credit or to
receive a lump-sum payment.  If he elects the lump-sum payment but is
reemployed within 6 months after transfer, he must refund the
lump-sum payment to the agency.  See also FPM Supp.  990-2, Book 550,
S2-2a(2) regarding leave restored by operation of 5 U.S.C.  
6304(d)(1). 

4.  Lump-sum payment not payable

a.  Transfer to position where annual leave is transferable

A lump-sum payment may not be made to an employee upon transfer to a
position to which his annual leave is transferable, but instead his
leave is transferred to his new position.  5 U.S.C.   6308. 

Where an employee resigns from one agency and is reemployed in
another agency the following day, a lump-sum leave payment may not be
made.  If a lump-sum payment is erroneously made, the leave should be
recredited at the time of reemployment, not after the lump sum amount
has been repaid.  59 Comp.  Gen.  335 (1980).  See also Chapter 2,
"G.  Restoration of Leave."

b.  Personal ceiling limitation

An employee may transfer all accumulated and currently accrued annual
leave to his credit as of the date of transfer not in excess of the
maximum limitation allowable under the leave system from which
transferred, and that amount shall constitute the employee's annual
leave ceiling until reduced under 5 U.S.C.   6304(c).  48 Comp. 
Gen.  212 (1968). 

c.  Student trainee employed intermittently between full-time tours
of duty

Normally, an employee who moves to a position as an intermittent
employee with no regular tour of duty is entitled to a lump-sum
payment for accrued annual leave.  However, if the employee is a
student trainee, the period of intermittent employment between
full-time tours of duty shall not be regarded as a transfer or
separation for purposes of lump-sum leave payment, and any leave
earned under regular employment shall remain to his credit.  37 Comp. 
Gen.  523 (1958). 

d.  Exempted officers

When an employee subject to the annual and sick leave provisions of 5
U.S.C.   6301 accepts a Presidential appointment, which is exempted
from those provisions, he may not receive a lump-sum payment for
annual leave.  40 Comp.  Gen.  164 (1960); 38 Comp.  Gen.  386
(1958); 33 Comp.  Gen.  177 (1953); and B-165516, November 22, 1968. 
The accumulated and accrued annual leave is to be credited for
payment upon separation or death under 5 U.S.C.   5551 or for
recredit upon reemployment without a break in service in a position
subject to the leave provisions.  See 49 Comp.  Gen.  545 (1970) and
Judge Eugene Black, B-116694, January 28, 1976. 

The Copyright Royalty Tribunal is obligated to make the lump-sum
annual leave due a retiring Commissioner.  Although none of the leave
was earned at the Tribunal because the Commissioner is a Presidential
appointee serving in a position in the legislative branch not subject
to the Annual and Sick Leave Act, he has leave to his credit carried
over from service in a prior position in another agency.  An
employee's right to a lump-sum payment for accrued annual leave vests
upon the employee's separation from the federal service, and it is
the employing agency at the time of separation that must pay the
employee for accrued annual leave to the employee's credit at the
time of separation notwithstanding that the leave was earned in
another agency.  Presidential Appointees, 71 Comp.  Gen.  411 (1992). 

An Air Force employee with annual leave to his credit received a
Presidential appointment as a judge of the United States Court of
Military Appeals, incident to which the judge claimed payment for his
annual leave.  A judge of this court is an "officer" as that term is
defined in 5 U.S.C.   2104(a) (1988), and therefore he is exempt
from the leave act.  Accordingly, his claim may not be paid because
an employee with annual leave to his credit who receives an
appointment to a position exempt from the leave act is not considered
separated from the federal service for the purpose of receiving a
lump-sum leave payment under 5 U.S.C.   5551 (1988).  The leave
remains credited to him until he either separates from the federal
service or returns to a position covered by the leave act.  Judge
Eugene R.  Sullivan, 71 Comp.  Gen.  522 (1992). 

A Foreign Service Officer, who was appointed Ambassador (an excepted
position in which no leave is earned) in 1972, retired as a Foreign
Service Officer in 1975 but remained Ambassador until 1976.  He may
not be paid lump-sum payments for accrued annual leave upon
retirement as a Foreign Service Officer because the statute and
Department of State regulations preclude such payment until an exempt
officer is separated from the federal service or is transferred to a
specified position.  B-186043, October 4, 1976. 

If a lump-sum payment is made, the rate shall be the salary received
prior to Presidential appointment but the time period shall be
projected from the date of retirement.  40 Comp.  Gen.  579 (1961). 
If the employee has any leave in a separate account restored under 5
U.S.C.   6304(d)(1), it shall be liquidated by lump-sum payment
immediately upon transfer to the excepted position.  FPM Supp. 
990-2, Book 550, S2-2b(2). 

e.  Transfer from temporary position

An employee was voluntarily furloughed from a permanent position in
order to accept a temporary position for 2 months, and then returned
without a break in service to the permanent position.  The annual
leave which accrued in the temporary position shall be transferred
and not paid in a lump sum.  33 Comp.  Gen.  528 (1954). 

f.  Payable upon garnishment

Where the wife of a former employee seeks to garnish money due the
employee for accrued annual leave for child support, and the former
employee's whereabouts and/or continued existence is unknown, payment
may be made without determination of the status of the employee since
in this case, under 5 U.S.C.   5582, the wife would also receive any
money due the employee if he is deceased.  However, payment must be
in accordance with the limitations contained in section 303(b) of the
Consumer Protection Act, 15 U.S.C.   1673(b), since under Office of
Personnel Management regulations, those limitations also apply to
garnishment of payments in consideration of accrued leave.  Wesley E. 
Pitts, B-207015, December 14, 1982. 

g.  Absence without leave

Former employee claims backpay equal to amount the agency deducted
from her lump-sum leave payment to cover overpayments of pay for
periods of alleged absence without leave.  It is within the agency's
administrative discretion to place employees who refuse to comply
with order to report to work on leave without pay.  In view of the
administrative discretion which exists with respect to determinations
concerning absence from duty, and in the absence of any finding by an
appropriate authority of an unjustified or unwarranted personnel
action, her claim is denied.  Verda L.  Campbell, B-221067, June 1,
1987. 

      C.  RATE PAYABLE
-------------------------------------------------------- Chapter 3:0.3

1.  Generally

Under 5 U.S.C.   5551(a), the lump-sum payment is computed on the
basis of the employee's rights at separation under all applicable
laws and regulations existing at the time which would have affected
his pay had he remained in the service for the period covered by the
leave.  38 Comp.  Gen.  161, 163 (1958).  See also FPM Chapter 550,
S2-3 and FPM Supp.  990-2, Book 550, S2-3. 

2.  Statutory pay increases

a.  General Schedule

If the employee is separated prior to a statutory pay increase but
the period of projected leave extends beyond the effective date of
the increase, the lump-sum payment shall be adjusted to reflect the
increased rate for any leave from the effective date of the pay
increase.  47 Comp.  Gen.  773 (1968); B-165201, October 2, 1968. 

b.  Wage Board employees

For prevailing rate (Wage Board) employees who retire or separate
prior to the effective date of a wage increase under 5 U.S.C.  
5341-5349, and who receive a lump-sum payment for leave, there may be
no retroactive adjustment to the lump-sum payment even if the leave
would have extended beyond the effective date of the new wage rate. 
However, if the employee is on "terminal leave" up to or beyond the
date the new wage rate is ordered into effect, his pay may be
adjusted to reflect the new wage rates.  54 Comp.  Gen.  655 (1975). 

The above-cited decision does not apply to those employees whose
wages are negotiated under section 9(b) of Pub.  L.  No.  92-392 (5
U.S.C.   5343 note).  Retroactive wage increases under the authority
of section 9(b) are not limited to employees who were in the service
of the government on the day the wage increase is ordered into
effect.  57 Comp.  Gen.  589 (1978), distinguishing 54 Comp.  Gen. 
655 (1975). 

Where a Wage Board employee retires or separates after issuance of an
order granting a prospective wage increase but before the effective
date of the increase, he is entitled to receive his lump-sum leave
payment paid at the higher rate for the period extending beyond the
effective date of the wage increase.  59 Comp.  Gen.  494 (1980),
distinguishing 54 Comp.  Gen.  655 (1975). 

Where a Wage Board employee retires or separates prior to issuance of
an order granting a prospective wage increase but his accrued leave
extends beyond the effective date of the increase, he is entitled to
receive his lump-sum leave payment paid at the higher rate for the
period beyond the effective date of the increase, provided that the
order granting the increase is issued prior to the effective date
mandated in 5 U.S.C.   5344(a).  59 Comp.  Gen.  494 (1980),
distinguishing 54 Comp.  Gen.  655 (1975). 

The rule in 54 Comp.  Gen.  655 (1975) is limited to situations
involving retroactive wage increases where the employee retires or
separates before the effective date of a wage increase and the order
granting the new wage rate is issued after the effective date of the
increase.  In those situations, the lump-sum leave payment may not be
adjusted upward due to the provisions of 5 U.S.C.   5344(b). 

Lump-sum annual leave payments made to prevailing rate employees may
be adjusted to reflect the increase in rates of pay commencing after
the effective date of Pub.  L.  No.  96-369, October 1, 1980, only if
the employee performed service after the effective date of the act
(October 1, 1980) as required by subsection 114(c) of the act.  61
Comp.  Gen.  94 (1981). 

3.  Step increases

a.  Generally

Where prior to date of separation, a General Schedule employee has
completed the requisite period of actual service, and has met all
other conditions for a within-grade advancement under 5 U.S.C.  
5335, the fact that, because such advancements are not effective
until the beginning of the next pay period following completion of
the required period of service, the advancement was not actually
received prior to separation, would not preclude including it in the
computation of the lump-sum payment under 5 U.S.C.   5551 for leave
extending beyond the beginning of the next pay period.  26 Comp. 
Gen.  102 (1946). 

An employee who was separated from federal service by a reduction in
force received a lump-sum payment for accrued annual leave.  Since
the period covered by the lump-sum leave payment is not counted as
federal service, the employee may not, upon later reemployment, use
the period for determining entitlement to a periodic step increase. 
59 Comp.  Gen.  15 (1979). 

b.  Eligibility completed while on leave without pay

Where the employee completed the requisite service for a step
increase while on leave without pay in connection with a reduction in
force, the step increase would be included in his lump-sum payment
even though the employee did not return to a pay status.  27 Comp. 
Gen.  330 (1947). 

c.  Eligibility completed while on military furlough

An employee was credited with step increases while on military
furlough and resigned without returning to his civilian position. 
Such step increases should be included in the computation of his
lump-sum payment.  B-115871, August 24, 1953. 

4.  Premium pay

An employee's lump-sum payment shall include the premium percentage
pay for irregular or unscheduled overtime to which he would have been
entitled had he remained in the service for the period covered by his
leave.  36 Comp.  Gen.  18 (1956); and 38 Comp.  Gen.  161 (1958). 

An employee who was receiving premium pay for standby duty under the
provisions of 5 U.S.C.   5545(c)(1) is not entitled to such premium
pay while on extended sick leave pending disability retirement, and
thus is not entitled to include the premium pay rate in his lump-sum
payment for leave upon separation.  59 Comp.  Gen.  683 (1980). 

5.  Cost-of-living allowances and foreign differentials

a.  Separated at post of duty

If an employee is receiving a cost-of-living allowance or post
differential and he is separated at his post of duty, such
differential or allowance shall be included in the computation of his
lump-sum payment.  52 Comp.  Gen.  993 (1973); 32 Comp.  Gen.  323
(1953); 29 Comp.  Gen.  10 (1949); and 28 Comp.  Gen.  465 (1949). 

b.  Separated away from post of duty

An employee who was separated after leaving his overseas post may not
have the post differential or cost-of-living allowance he was
receiving included in his lump-sum leave payment since he was not
receiving the differential or allowance at the time of separation. 
38 Comp.  Gen.  594 (1959); 33 Comp.  Gen.  287 (1954); and 28 Comp. 
Gen.  465 (1949). 

Where an employee was evacuated from Vietnam to the United States and
was no longer receiving post differential, he is not entitled to
inclusion of post differential in the computation of the lump-sum
payment for accumulated annual leave upon separation from service in
the United States.  William E.  Pope, Jr., B-186046, November 9,
1976. 

c.  Separated while on temporary duty

An employee who was receiving a cost-of-living allowance returned to
the United States for temporary duty and was then separated from
federal service after being in an annual leave status for a few days. 
His lump-sum payment should include the cost-of-living allowance even
though he was separated away from his overseas post if it was in the
public interest not to return him to his overseas post for
separation.  B-155356, November 20, 1964. 

6.  Reemployed annuitants

While a reemployed annuitant's pay will be reduced by the amount of
his annuity, his lump-sum payment upon separation shall be based upon
his full pay rate without reduction by the amount of his annuity.  5
U.S.C.   8344(a).  36 Comp.  Gen.  340 (1956) and 36 Comp.  Gen. 
209 (1956). 

7.  Nonworkdays and holidays

a.  Generally

An employee is not entitled to pay for holidays during the period
covered by his lump-sum annual leave payment.  5 U.S.C.   5551(a). 
61 Comp.  Gen.  363 (1982). 

Employee's claim for night shift differential and holiday pay as part
of lump-sum leave payment upon separation is denied.  Employee did
not qualify for night shift differential at the time of his
separation, and language of statute providing for payment of lump-sum
leave is clear and unambiguous and specifically excludes holiday pay. 
Larry R.  Taylor, B-252287, May 28, 1993. 

b.  Inauguration Day

Under the rule in effect prior to December 5, 1980, since
Inauguration Day, or the following Monday when the day falls on
Sunday, is a holiday for federal employees in the District of
Columbia area, under 5 U.S.C.   6103(c), a former federal employee
who was employed in the District of Columbia and who retired with
sufficient annual leave to extend through the holiday may have it
included in the lump-sum leave payment.  36 Comp.  Gen.  478 (1956). 

c.  Executive order holidays

Under the prior rule, where a holiday is established by executive
order, employees who are separated after the date the order was
signed are entitled to payment for the holiday which falls within the
period covered by their lump-sum payment.  Since an executive order
is effective when signed unless otherwise provided, an employee who
is separated on the day the order is signed is entitled to the
holiday in the computation of the lump-sum payment.  34 Comp.  Gen. 
254 (1954). 

d.  Holidays and employees overseas

(1) American citizens--Foreign holidays should not be included in
computing lump-sum payments for accumulated annual leave of American
employees since there is no authority to close offices or declare
such holidays to be nonworkdays for American citizens.  B-130233,
February 25, 1957. 

(2) Local employees--Where it is discretionary rather than mandatory
to excuse local employees of the Foreign Service on United States
national holidays and local holidays, such holidays may not be
included in lump-sum payments due local employees on separation from
service.  36 Comp.  Gen.  447 (1956). 

e.  Rotating workweeks

An employee who works a regular rotation schedule should have his
lump-sum payment computed on the basis of the workdays, holidays,
etc., occurring within the rotative workweek he would have worked had
he remained in federal service.  30 Comp.  Gen.  508 (1951). 

8.Retention allowance--5 U.S.C.  5754

Employee who was receiving a 25 percent retention allowance under 5
U.S.C.   5754 has retired from federal service and requested that
the retention allowance be included in his lump-sum leave payment
under 5 U.S.C.   5551 as pay he would have received had he remained
in the service until expiration of the period of the annual leave. 
The claim is denied.  A retention allowance is an addition to basic
pay in the nature of a bonus for remaining with the agency, payment
is discretionary with head of the agency and may be reduced or
discontinued at any time, and a reduction or elimination may not be
appealed.  Payment as lump-sum leave would be inconsistent with the
intent of the statute to retain an employee who would otherwise leave
government service.  Lafayette E.  Carnahan, B-249816, March 8, 1993. 

      D.  REEMPLOYMENT AND
      RECREDIT
-------------------------------------------------------- Chapter 3:0.4

1.  Generally

5 U.S.C.   6306 provides that when an employee has received a
lump-sum payment under 5 U.S.C.   5551 and he reenters the federal
service (except for certain positions) before the end of the period
covered by the lump-sum payment, he shall refund an amount
corresponding to the unexpired portion of the period covered by the
lump-sum payment and receive a credit for the corresponding amount of
annual leave.  See also 5 C.F.R.  Part 630, Subpart E; FPM Chapters
550 and 630; and FPM Supp.  990-2, Book 550, S2-4. 

2.  Part-time reemployed annuitant

Employee, grade GS-13, step 9, retired from his position and then was
rehired as a part-time reemployed annuitant at GS-12, step 10, before
the expiration of the period covered by his lump-sum annual leave
payment.  Employee is entitled to be paid for lump-sum annual leave
at the rate for GS-13, step 9, for the period between retirement and
reemployment.  After separation from the GS-12 position he is
entitled to receive a lump-sum annual leave payment only at the rate
for GS-12, step 10.  Willis E.  Staymates, B-200548, August 12, 1981. 

3.  Transfer to international organization

Employee of Nuclear Regulatory Commission transferred to an
international organization under 5 U.S.C.   3581-3584 effective
August 16, 1978, at which time he elected to retain annual leave to
his credit pursuant to 5 U.S.C.   3582(a)(4).  On January 22, 1980,
also pursuant to 5 U.S.C.   3582(a)(4) and prior to reemployment,
employee requested lump-sum payment for annual leave retained. 

Consistent with computation provisions of 5 U.S.C.   3583 and
implementing regulations, computation of employee's payment is based
on rate of pay attaching to his federal agency position at time of
his request for lump-sum leave payment under 5 U.S.C.   3582(a)(4),
not the date of the transfer.  60 Comp.  Gen.  409 (1981). 

4.  Refunds

a.  Refund required

(1) Temporary position--A refund is required even if the employee is
reemployed in a temporary position for less than 90 days.  32 Comp. 
Gen.  387 (1953). 

(2) After erroneous separation--An employee who is restored to duty
retroactively after an erroneous separation must refund lump-sum
payment for leave, and this payment is a proper setoff against a
backpay award.  59 Comp.  Gen.  395 (1980); and 57 Comp.  Gen.  464
(1978).  The erroneous lump-sum payment may be subject to waiver
under 5 U.S.C.   5584 to the extent necessary to avoid a net
indebtedness.  59 Comp.  Gen.  395 (1980).  Prior decisions to the
contrary, 55 Comp.  Gen.  48 (1975) and B-175061, March 27, 1972,
will no longer be followed.  See also Cassandra B.  Wyatt, B-231943,
July 14, 1989. 

A terminated employee is entitled to a lump-sum payment for unused
annual leave upon separation from service, but must refund the full
amount if the separation is subsequently set aside, because there no
longer exists any proper basis for the payment.  Therefore,
recoupment of a lump-sum leave payment is required in the case of an
employee who was terminated, but whose termination was subsequently
changed to a suspension in arbitration proceedings, since the
employee would not have received a lump-sum payment for unused leave
if suspension rather than termination had been the original
disciplinary action.  B-219974, October 21, 1985. 

(3) Reemployment under different leave system--Where a Public Health
Service officer received a lump-sum annual leave payment upon
separation and is reemployed in the civil service before expiration
of the period of leave, he shall refund the unexpired portion of the
lump-sum payment even though different leave systems are involved. 
See B-119016, July 20, 1956.  Also see 33 Comp.  Gen.  209 (1953). 

Employee, with accumulated annual leave, resigned competitive
position without a break in service to accept Presidential
appointment to a position exempted from coverage under the Annual and
Sick Leave Act of 1951, as amended.  He later resigned Presidential
appointment and, without break in service, was reappointed to
competitive position covered by Leave Act.  When he was appointed to
the exempted position he was not paid for his annual leave balance. 
The balance was recredited when he was reappointed to the competitive
position.  Upon retirement from that position he became entitled to
lump-sum payment for annual leave at then current rate of
compensation.  See 5 U.S.C.   5551 and 6302(e).  Joseph F. 
Friedkin, B-223225, July 29, 1986. 

b.  Refund not required

(1) Reemployed under "no leave" system--An employee reemployed in a
position which has no annual leave system to which leave can be
recredited need not refund any of his unexpired lump-sum leave
payment.  33 Comp.  Gen.  209, 213 (1953). 

(2) Personal leave ceiling--An employee with a "saved" leave ceiling
(see 5 U.S.C.   6304(c)) who resigns in one leave year and is
reemployed in the next leave year prior to the expiration of the
lump-sum leave payment period shall have his ceiling constructively
reestablished by deducting from the previous ceiling the excess over
current accrual, if any, of the expired portion of leave covered by
the lump-sum payment added to leave actually used during the year. 
38 Comp.  Gen.  91 (1958). 

An employee with a 45-day annual leave ceiling resigned from federal
service, received a lump-sum leave payment, and was reemployed 3
years later.  Upon receipt of his lump-sum payment for unused annual
leave the employee received his full entitlement for his annual
leave.  Upon re-entry into federal service, he became subject to the
30-day leave ceiling and had no right to have the 45-day ceiling
reinstated.  59 Comp.  Gen.  352 (1980). 

(3) Inclusion of cost-of-living allowance--An employee who is
required to refund part of a lump-sum payment shall include any
differential or cost-of-living allowance included in the lump-sum
payment.  B-137579, November 20, 1958. 

c.  Recredit

The leave of an employee is to be reconstructed as of the date of
reemployment, even though the employee is permitted to refund the
payment in installments and the agency denies use of the leave
represented by the refund until the refund has been made in full.  38
Comp.  Gen.  91 (1958). 

d.  Reemployment prior to payment

Employees who are separated and then reemployed by another agency
prior to the processing of the lump-sum leave payment, may be paid
for that portion of leave which expired during the interval between
employments (less taxes), and have the remaining leave transferred
without tax deductions to the new agency.  34 Comp.  Gen.  290
(1954); B-121724, April 20, 1971.  See also 49 Comp.  Gen.  444
(1970). 

      E.  WAIVER
-------------------------------------------------------- Chapter 3:0.5

An employee, a Personnel Management Specialist, resigned his
competitive status position with his agency and accepted an excepted
position in another agency without a break in service.  He prepared
his own SF-52, Request for Personnel Action, noting that lump-sum
payment for annual leave was not to be made.  Due to an error by the
agency's personnel office, he received the lump-sum payment for his
annual leave, and he seeks waiver of this erroneous overpayment.  The
employee's resignation and subsequent reemployment without a
separation for one or more workdays does not authorize lump-sum
payment of annual leave under 5 U.S.C.   5551(a) (1982).  The
overpayment may not be waived under 5 U.S.C.   5584, since the
employee was not without fault in the matter.  Frank J.  Delano,
B-224052, May 11, 1987. 

Following a 1 workday break in service, a former employee of the
Panama Canal Company, who received a lump-sum payment from the
Company for his accrued annual leave, was reemployed by the
Department of the Navy.  He is required by statute to refund the
amount of the lump-sum leave payment he received except the amount
covering his 1 day break in service since he was employed in
government service during the period covered by the lump-sum payment. 
The government's claim may not be waived since, even if it is
considered as an erroneous payment, the employee is not without fault
in the matter.  Darell K.  Seymour, B-210211, April 11, 1983. 

Employee received lump-sum leave payment upon separation because of
reduction in force (RIF), which was later found to be improper by
court.  When employee was reinstated, gross amount of backpay was set
off against gross amount of lump-sum leave payment, and additional
amounts were deducted from employee's salary up to total of original
lump-sum leave payment.  Employee sought waiver of repayment of
entire lump-sum leave payment.  Waiver under 5 U.S.C.   5584 is
granted only to the extent of the net indebtedness; therefore, our
Claims Group's partial waiver applied the proper legal standard.  The
waiver is, however, modified in amount to reflect corrected
computation of backpay. 

Following grant of waiver, agency deducted income taxes and Medicare
when refunding repayments to employee.  Record showed that amounts
refunded originally had been collected from employee's after-tax
salary.  While this Office does not rule on tax questions, which
should be resolved between the individual and the Internal Revenue
Service, this issue also involves the administration of the
Comptroller General's waiver authority.  Where, as it was here,
amount being refunded had been collected from employee's after-tax
salary, it was improper to deduct taxes when the moneys were refunded
following waiver.  Agency should furnish revised W-2 form and any
other necessary documentation so that employee can file amended tax
returns or claims for refund of taxes that were improperly collected
from waiver refund.  Victor Crichton, 66 Comp.  Gen.  570 (1987). 

A lump-sum payment for unused annual leave which is correctly and
legally made to a federal employee upon his separation from
government service may not later be considered an "erroneous" payment
within the meaning of the statute authorizing waiver of erroneous
overpayments of compensation.  This is true even though the employee
accepts another federal appointment without any awareness that he
will then become legally obligated to refund part of that lump-sum
leave payment by accepting reemployment.  Hence, collection of the
employee's resulting debt may not be waived under 5 U.S.C.   5584. 
William A.  Bonin, B-200327, November 13, 1980. 

      F.  TERMINAL LEAVE
-------------------------------------------------------- Chapter 3:0.6

An employee took approved annual leave for all of the next to last
pay period of the leave year and for all workdays except the last
administrative workday of the last pay period of the leave year and
then retired.  The lump-sum annual leave payment he received did not
include credit for 16 hours of annual leave which had accrued for
those two pay periods because the agency deemed it to be the granting
of leave on leave in violation of the terminal leave restriction. 
The leave credit is allowed.  Terminal leave occurs when leave is
taken after employee has performed his last day of active duty. 
Since the employee was present for and performed duty on the last
administrative workday of the pay period in which he retired, such
leave used immediately prior to that day is not violative of the
terminal leave restriction.  Aurora D.  Rives, B-190374, January 20,
1978, distinguished.  Emmitt Sheridan, B-223876, June 12, 1987. 

      G.  FOREIGN SERVICE OFFICERS
-------------------------------------------------------- Chapter 3:0.7

State Department Foreign Service Officers who are receiving a special
differential at the time of their separation may have such amount
included in their lump-sum annual leave payment.  The officers are
receiving the pay under statutory authority, and the lump-sum leave
payment is computed on the basis of the employee's rights at the time
of separation.  Furthermore, since the employee's rights vest at the
time of separation, there is no authority to place a limitation
occurring between the time of separation and the expiration of the
period to be considered in determining the amount of the lump-sum
leave payment.  Foreign Service Officers, 67 Comp.  Gen.  351 (1988). 

SICK LEAVE
============================================================ Chapter 4

      A.  LAWS AND REGULATIONS
-------------------------------------------------------- Chapter 4:0.1

The laws and regulations governing sick leave are contained in 5
U.S.C.   6301-6312, 5 C.F.R.  Part 630, FPM Chapter 630, and FPM
Supp.  990-2, Book 630. 

      B.  ACCRUAL
-------------------------------------------------------- Chapter 4:0.2

1.  Rate

a.  Full-time employee

A full-time employee earns sick leave with pay at the rate of
one-half day or 4 hours for each full biweekly pay period.  5 U.S.C. 
 6307(a). 

b.  Part-time employee

A part-time employee earns 1 hour of sick leave with pay for each 20
hours in a pay status.  5 C.F.R.   630.406.  If a part-time
employee's hours in a pay status exceed an agency's basic working
hours in a pay period, the excess hours are disregarded in computing
leave earnings.  5 C.F.R.   630.202(b). 

c.  District of Columbia firefighters

Members of the Firefighting Division of the Fire Department of the
District of Columbia accrue sick leave at the rate of two-fifths of a
day for each full biweekly pay period and may be advanced a maximum
of 24 days of sick leave with pay in cases of serious illness or
disability.  5 U.S.C.   6307. 

d.  Sick leave--additional compensation

An employee's claim for additional compensation for use of advance
sick leave is denied.  Sick leave which is advanced and used, but
which is not compensated for until after a pay rate increase, may not
be compensated for at the higher rate of pay.  Leave which is used
only has the value of the employee's rate of pay for the pay period
in which it is to be charged.  Mildred E.  Taylor, B-205359, June 28,
1988. 

2.  Entitlement

a.  Generally

As a general matter, an employee who accrues annual leave under 5
U.S.C.   6301-6312, also accrues sick leave.  See the cases set
forth in Chapter 2 of this title, "Annual Leave," "B.  Accrual."

b.  While receiving disability compensation

See B-180010.12, March 8, 1979; B-189531, September 14, 1977; and
cases set forth in Chapter 2 of this title, "Annual Leave," "B. 
Accrual."

c.  Lump-sum payment

An employee who served nearly 5 months on a temporary appointment
sought reimbursement for his accumulated sick leave.  Unused sick
leave may be credited towards service upon retirement or it may be
recredited to the employee if reemployed within 3 years from
separation.  However, there is no authority for lump-sum payment of
sick leave.  B-190152, November 30, 1977.  See also B-199477, May 3,
1982. 

Editor's note:  The 3-year limit has been removed for those returning
to federal service on or after December 2, 1994.  See 5 C.F.R.  
630.502(b) and (c) (1995). 

      C.  TRANSFERS AND
      REEMPLOYMENT
-------------------------------------------------------- Chapter 4:0.3

1.  Transfers

a.  Between positions under 5 U.S.C.   6301-6312

When an employee transfers between positions under 5 U.S.C.  
6301-6312, the agency from which he transfers shall certify his sick
leave account to the employing agency for credit or charge.  5 C.F.R. 
 630.502(a). 

b.  Between different leave systems

Sick leave to the credit of an employee who transfers between
positions under different leave systems without a break in service
shall be transferred to his new employing agency on an adjusted basis
under regulations prescribed by OPM.  5 U.S.C.   6308.  See also 5
C.F.R.   630.502. 

c.  Agricultural Stabilization and Conservation Service (ASCS)
employees

Under 5 U.S.C.   6312, an employee who transfers without a break in
service between the Department of Agriculture and an ASCS county
committee may transfer his annual and sick leave balances to the new
position.  Furthermore, the leave balances transferred from county
committee service are treated as earned in federal employment if the
employee later transfers to another agency.  48 Comp.  Gen.  486
(1969). 

Where the record is clear that the Department of Agriculture intended
to transfer an ASCS county committee employee to a civil service
position without a forfeiture of accumulated sick leave, the agency
may correct the employee's records to reflect a transfer without a
break in service.  A 19-day break in service may be changed to
authorized leave of absence without pay since forfeiture of sick
leave in this case would be in direct contravention of clear
statutory mandate to avoid forfeiture during such transfers. 
B-191014, March 10, 1978. 

ASCS county committee employee (a nonfederal position) who was
separated in reduction in force during 1975 and subsequently received
an appointment with the Forest Service, sought to have her unused
sick leave recredited.  She was properly denied credit for unused
sick leave.  Under 5 U.S.C.   6312 county committee employees may
have leave balances transferred under 5 U.S.C.   6308.  That section
authorizes credit for unused leave balances only where employees
transfer between positions under different leave systems without a
break in service.  B-199806, September 29, 1981. 

d.  Commissioned officers of Public Health Service

Commissioned personnel of the Public Health Service are considered
civilian officers and employees under 5 U.S.C.   6301-6312.  Thus,
members transferring to and from the commissioned corps to other
civilian positions are not entitled to a lump-sum payment but may
have their annual and sick leave transferred on an adjusted basis. 
34 Comp.  Gen.  287 (1954). 

e.  District of Columbia teachers

District of Columbia Teachers' Leave Act of 1949 is essentially a
sick leave act.  Therefore, under 5 U.S.C.   6308, a federal
employee, who, without a break in service, transfers to a position
under the District of Columbia Teachers' Leave Act, may transfer sick
leave upon an adjusted basis in accordance with regulations
prescribed by CSC.  However, no annual leave may be transferred.  33
Comp.  Gen.  209 (1953). 

f.  Legal Services Corporation

Employees who resigned from federal employment and accepted
employment with federally-funded Legal Services Corporation were paid
bonuses equal to a portion of accrued annual and sick leave. 
Employees may have sick leave balances certified for retirement
purposes or for possible recredit since by statute employees of the
Legal Services Corporation are not federal employees for leave
purposes.  B-186449, January 24, 1977. 

g.  Senior Executive Service to Presidential appointment

An agency failed to advise a career Senior Executive Service (SES)
member prior to receiving a Presidential appointment to a Executive
Level IV position that he could elect to continue receiving annual
and sick leave or other SES benefits during his Presidential
appointment, as provided in 5 U.S.C.   3392(c).  As a result of the
agency's failure to properly counsel the employee, the employee
placed his annual and sick leave balance in abeyance and did not
elect to retain leave benefits for a period of 4 years.  We conclude
that the agency's failure to properly advise the employee constituted
an unwarranted personnel action and that the annual and sick leave
the employee would have earned during this period may be
retroactively restored.  Anthony J.  Calio, 66 Comp.  Gen.  674
(1987). 

2.  Reemployment after break in service

a.  Generally

An employee who is separated from the federal government or the
government of the District of Columbia is entitled to a recredit of
his sick leave if he is reemployed in the federal government or the
government of the District of Columbia, without a break in service of
more than 3 years.  5 C.F.R.   630.502(b)(1). 

Editor's note:  The 3-year limit no longer in effect for those whose
leave has not been forfeited and who return to federal service on or
after December 2, 1994.  5 C.F.R.   630.502(b) and (c) (1995). 

A NASA employee who resigned his position to accept employment with a
Congressional committee is entitled to recredit of his sick leave
balance if he is reemployed within 3 years from the date of
separation.  John L.  Swigert, B-191713, May 22, 1978. 

An employee who had a break in federal service of more than 3 years
may not receive a recredit of sick leave on the basis that he was
prevented from earlier reinstatement by the imposition of a federal
hiring freeze, and by the agency's delay in completing his required
background investigation.  The employee's unused sick leave may not
be recredited since under 5 C.F.R.   630.502(b)(1), recrediting of
sick leave is permitted only when an employee's break in service does
not exceed 3 years.  Neither this Office nor the agency concerned may
waive or grant exceptions to that regulation, which has the force and
effect of law.  Recredit of Sick Leave of FBI Employee After Break in
Service, B-209068, January 20, 1983. 

b.  Appointment after 3 years

A federal employee, who was separated from federal service on January
23, 1970, was offered reemployment within 3 years.  However, because
of a hiring freeze he was not appointed until after 3 years from his
separation date.  He may not be recredited with sick leave earned
during prior service.  OPM regulations, contained in 5 C.F.R.  
630.502(b)(1), provide that a separated employee may be recredited
with sick leave only if the break in service is 3 years or less. 
B-180604, April 9, 1974.  See also B-188913, October 17, 1977. 

c.  What constitutes "break in service" temporary appointment

An employee served under several temporary appointments on a
when-actually-employed basis between his voluntary separation in 1953
and his reemployment in 1956.  Although he does not accrue leave
during a when-actually-employed appointment, he is entitled to
recredit of sick leave accumulated prior to his separation in 1953
upon his reemployment in 1956.  The term "break in service" in 5
C.F.R.   630.502(b) refers to actual separation from the federal
service.  47 Comp.  Gen.  308 (1967). 

d.  Congressional employment

GAO employee resigned and worked more than 3 years with Congressional
committee before he was employed by NASA.  Sick leave which could not
be transferred or used during Congressional employment may be
recredited to position at NASA since Congressional employment does
not constitute "break in service" under 5 C.F.R.   630.502.  59
Comp.  Gen.  704 (1980). 

e.  Peace Corps volunteer service

An employee with 568 hours of sick leave resigned December 3, 1965,
to train and serve as a Peace Corps volunteer.  The employee who was
reemployed July 6, 1970, contends that volunteer service should be
considered federal service for the purpose of extending the 3-year
limit within which sick leave may be recredited after a break in
service.  However, 22 U.S.C.   2504(f) may not be considered as
authorizing the counting of volunteer service to suspend the 3-year
break-in-service rule.  B-175209, August 14, 1972. 

f.  Organizations which receive federal funding

Employee who had a break in federal service of over 3 years seeks
recredit of sick leave on basis that he was employed by various
organizations and instrumentalities that receive federal funding. 
Employee contends that such employment avoids a break in service in
excess of 3 years.  Under 5 C.F.R.   630.502(b), a recredit of sick
leave is permitted when an employee's break in service does not
exceed 3 years.  Since service with private organization or state
instrumentalities that receive federal funding does not constitute
federal service, employee may not have sick leave recredited.  61
Comp.  Gen.  83 (1981). 

g.  Transfer or detail to international organization

An employee who resigned to work for an international organization
requested restoration of sick leave upon his subsequent reemployment. 
Under 5 U.S.C.   3582, an agency is required to restore the sick
leave only if an employee was transferred or detailed to an
international organization.  Hence, the sick leave may not be
restored since the employee was not transferred or detailed to the
international organization but rather resigned to accept that
position.  Neither may the leave be restored under 5 C.F.R.  
630.502(b) since service with an international organization does not
constitute federal service for the purpose of 5 U.S.C.   6301-6312
and the employee's break in service exceeded 3 years.  B-180857,
August 27, 1974. 

h.  Service as substitute teacher in District of Columbia

Substitute teachers employed by the District of Columbia government
do not earn sick leave under the District of Columbia Teachers' Leave
Act of 1949, 31 D.C.  Code  691, nor under 5 U.S.C.   6301-6312. 
However, service as a substitute teacher in the District of Columbia
is service for the purpose of recrediting sick leave under 5 C.F.R. 
 630.502(b) after a separation from federal service.  Accordingly, a
former substitute teacher reemployed by HEW within the applicable
time limit, is entitled to recredit of sick leave earned as a federal
employee prior to his substitute teaching.  54 Comp.  Gen.  669
(1975). 

i.  Reemployment after military service

Federal civilian employees who leave their positions to pursue
military careers are eligible under regulation for a recredit of
their civil service sick leave after their retirement from military
service, if they are reemployed in a civilian capacity by the
government within the following 3 years.  Hence, an individual who
left civil service employment when called to active military duty,
and who was subsequently retired from military service after
completing 20 years' active duty, may be allowed a recredit of his
civil service leave balance upon his reemployment as a civilian 1
year later.  The fact that he had a 2-month break in service during
his military career is immaterial, since only a break in service in
excess of 3 years could have operated to extinguish his leave
restoration rights.  Roberto De La Cruz, 65 Comp.  Gen.  430 (1986). 

3.  Evidence to support claim

a.  Generally

The crediting of sick leave is primarily an administrative matter,
and the employing agency must determine the acceptability of any
secondary evidence presented and whether it may be used as a basis
for crediting the leave claimed.  Examples of supporting evidence
which might be considered sufficient would include Time and
Attendance Reports, Leave and Earnings Statements, personal leave
records, or certificates of former supervisors or timekeepers
indicating leave earned and used during the period.  B-189288,
November 23, 1977.  See also 58 Comp.  Gen.  741 (1979). 

Certifications of leave credits based upon other than official
records are normally not to be sanctioned.  However, in lieu of a
certification, where no official records are available, there should
be furnished statements of any other evidence which may be available
in respect of employee's leave credits, including an estimate of his
leave credit, if possible.  Any such statements should clearly
reflect the factors forming the basis of the estimate.  The agency
where the employee currently is employed may then determine whether,
upon the basis of such showing, a credit of leave may be made.  32
Comp.  Gen.  310 (1953).  See also Mark Radke, B-212670, January 17,
1984, involving annual leave as well as sick leave. 

b.  Sworn statements

Unused sick leave of an employee who was inducted into the Army may
be recredited upon his reemployment after retirement from the
military service.  The statement of the Letterkenny Army Depot and
the statement of the National Personnel Records Center that they have
no record of the employee's sick leave balance at the time he entered
the military would not preclude the acceptance of secondary evidence
to support his claim for recredit.  Accordingly, statements furnished
by officers and employees who have knowledge of facts and
circumstances existing at the time of his induction may be used. 
B-164220, September 5, 1968. 

c.  Officially approved leave requests

Where an employee's leave records have been destroyed an agency may
accept as evidence of leave usage the officially approved leave
requests and the employee's affidavit attesting that such leave
requests represent the only sick leave that was used for the period
involved.  B-175742, June 20, 1972. 

4.  Merger of leave systems

An employee who earned leave under the leave acts of 1936 or any
other leave system merged under 5 U.S.C.   6301-6312, is entitled
to a recredit of that leave under those sections if he would have
been entitled to recredit for it on reentering the leave system under
which it was earned.  However, this section does not revive leave
already forfeited.  5 C.F.R.   630.503. 

      D.  ADMINISTRATION OF SICK
      LEAVE
-------------------------------------------------------- Chapter 4:0.4

1.  Generally

The granting of sick leave in accordance with the controlling
regulations is an administrative responsibility.  The nature of the
evidence required to determine whether an employee was incapacitated
must of necessity be left to administrative determination, bearing in
mind the possibility of abuse.  FPM Supp.  990-2, Book 630, S4-2b(1). 

An agency shall grant sick leave to an employee when the employee: 

  -- Receives medical, dental, or optical examination or treatment;

  -- Is incapacitated for the performance of duties by sickness,
     injury, or pregnancy and confinement;

  -- Is required to give care and attendance to a member of his
     immediate family who is afflicted with a contagious disease; or

  -- Would jeopardize the health of others by his presence at his
     post of duty because of exposure to a contagious disease.  5
     C.F.R.   630.401. 

Editor's note:  See 5 U.S.C.   6307, amended September 30, 1994, and
5 C.F.R.   630.401(a) (1995) for current coverage for care of family
member, purposes relating to death of family member, and adoption of
a child. 

Unless an agency establishes a minimum charge of less than 1 hour or
establishes a different minimum through negotiations, the minimum
charge for sick leave is 1 hour.  5 C.F.R.   630.206(a). 

2.  Granting

a.  Agency discretion

During a period when 3,000 air traffic controllers reported
themselves disabled for duty, an air traffic controller who was
absent for 2 weeks alleged that his absence was due to the effects of
drugs prescribed by a physician designated by the Federal Aviation
Administration.  Claimant states that pursuant to regulations,
prescribed drugs were incapacitating for traffic control duty and,
therefore, he should have been carried on sick leave rather than an
absent without leave status.  Absent a showing of arbitrary or
capricious action, GAO is generally without authority to overturn
administrative action by which sick leave is refused or employee is
placed in an absent without leave status.  B-170730, August 16, 1971. 

It was within the discretion of the appropriate officials of the
Defense Investigative Service to decide that one of its employees who
requested sick leave was entitled to it, based on evidence that the
employee was absent due to a severe physically incapacitating
emotional injury following the death of his wife.  Michael J.  DeLeo,
B-207444, October 20, 1982. 

b.  First 40-hour employees

National Aeronautics and Space Administration employees assigned to a
first 40-hour workweek under 5 C.F.R.   610.111 contend that local
regulations governing their use of sick leave, which permit their
supervisor to retroactively determine that a day on which they were
sick may be accounted for as a nonworkday, are contrary to law and
CSC regulations.  Inasmuch as the local regulations could be applied
to deprive employees of the use of sick leave, the local regulations
are inconsistent with CSC regulations and, therefore, must be
amended.  B-171947.48, July 9, 1976. 

c.  Contagious disease

An employee may be granted sick leave to care for a member of his
immediate family who is ill at home with a disease requiring
isolation, quarantine, or restriction of movement for the period
required by local health regulations or, in absence thereof, in
accordance with a period specified in a physician's certificate.  36
Comp.  Gen.  183 (1956). 

An arbitrator granted sick leave to an employee who attended a sick
member of his family not afflicted with a contagious disease.  The
award may not be implemented by the agency since there is no legal
authority to grant sick leave under these circumstances.  55 Comp. 
Gen.  183 (1975). 

Employee who was away from work in order to provide care and
assistance for his seriously ill son claims sick leave should be
granted instead of the annual leave granted by the agency.  Employee
may be granted sick leave only if the son's illness is contagious and
his movement is restricted by the health authorities.  5 C.F.R.  
201(b)(3).  Since the son's illness is not contagious and his
movement was restricted because of the nature of the illness and not
because the health authority restricted movement to prevent spread of
a contagious illness, the employee may not be granted sick leave. 
Joseph F.  Scinto, Esq., B-250175, January 6, 1993. 

An employee residing in Alaska claims sick leave for the time he
remained at home to care for his child who was suffering from
conjunctivitis.  The governing regulations allow sick leave when an
employee is required to attend to an immediate family member with a
contagious disease.  5 C.F.R.   640.401(c) (1988).  They define such
a disease as one for which public officials require the child to be
quarantined, isolated, or restricted in movement for a specified
period.  Since in this case a state public health official stated
that conjunctivitis would preclude the child from attending the day
care facility while the child was exhibiting the disease's acute
symptoms, the child's freedom of movement was substantially
restricted and agency allowance of sick leave would be appropriate. 
Morton Forska, B-238784, June 15, 1990. 

d.  Prepared childbirth

An employee, who was present at the delivery of his child in
accordance with the Lamaze method of prepared childbirth, claims sick
leave should be substituted for annual leave granted by the agency. 
Sick leave is appropriate only when the circumstances specifically
meet the criteria contained in the regulations.  See 5 C.F.R.  
630.401.  Thus, sick leave may not be allowed since the employee did
not undergo medical treatment and he was not incapacitated for duty
as required by regulations.  B-195042, August 6, 1979, citing 55
Comp.  Gen.  183 (1975). 

e.  Treatment by marriage/family counselor

Employee requested sick leave for period of emotional stress while
she was under the care of a licensed marriage/family counselor. 
Since such a counselor is considered a "practitioner" who may certify
the employee's incapacitation to work, the agency may grant the use
of sick leave.  B-201099, December 22, 1981. 

f.  During erroneous separation

An employee was restored to duty and awarded backpay for the period
of her erroneous separation, including a period during which she was
incapacitated by illness.  Backpay may not be awarded for a period of
incapacity when an employee is not ready, willing, and able to
perform the duties of the former position.  However, where the
employee has accumulated sick leave, the period of incapacity may be
charged to sick leave upon restoration to duty.  46 Comp.  Gen.  139
(1966). 

g.  Criminal confinement

The incapacity of an employee to perform his duties because of
confinement to a mental hospital for treatment or diagnosis would
appear to be a case in which sick leave could properly be granted. 
However, where an employee was unavailable for performance of duties
because he was confined as a result of a criminal conviction, the
employee was not incapacitated for any of the reasons set forth in
the regulations.  Therefore, the agency's determination not to grant
sick leave was correct and there is no basis for his retroactive
reinstatement to the rolls for the purpose of granting 264 hours of
sick leave.  B-176645, November 1, 1972. 

h.  Supporting evidence

An agency may grant sick leave only when supported by
administratively acceptable evidence.  Regardless of the duration of
the absence, an agency may accept an employee's certification as to
the reason for his absence.  However, for an absence in excess of 3
workdays, or for a lesser period when determined necessary by an
agency, the agency may also require a medical certificate, or other
administratively acceptable evidence as to the reason for the
absence.  5 C.F.R.   630.403. 

i.  Personal certification

Where, due to a scarcity of physicians or other practitioners in a
particular locality, an employee is unable to procure a physician's
certificate to support his application for sick leave for a period of
more than 3 days' duration, as required by the regulations, it is
within the agency's discretion to grant the employee sick leave on
the basis of his personal certification.  23 Comp.  Gen.  186 (1943). 

3.  Advance leave

a.  Generally

In cases of serious disability or illness, a maximum of 30 days sick
leave with pay may be advanced to the employee.  5 U.S.C.   6307(c). 
An employee serving under a limited appointment or one which will be
terminated on a specific date, may be advanced sick leave only up to
the total amount he would otherwise earn during the term of his
appointment.  5 C.F.R.   630.404. 

b.  Administrative determination

An agency's decision not to grant an employee advance sick leave and
to place him on leave without pay for absences from work after he
applied for disability retirement is sustained.  The authority to
grant or refuse a request for advance sick leave is exclusively
within the jurisdiction of the agency.  B-182085, December 24, 1974. 

The granting of advance sick leave is normally a matter within the
discretion of the agency.  However, where an employee of the IRS
requested 30 days of advance sick leave, but her request was denied
based on the assumption that she would not return to duty, the IRS
may retroactively grant the employee advance sick leave after her
return to duty if the agency determines its original action
constituted an unwarranted or unjustified personnel action under the
Back Pay Act, 5 U.S.C.   5596.  B-187171, June 7, 1977. 

Employee claims backpay for period before disability retirement when
agency terminated advance sick leave and placed employee on leave
without pay pending retirement.  Advance sick leave may be granted at
the discretion of employing agency.  Hence, agency's decision to
terminate advance sick leave and to place employee on leave without
pay for absences from work after employee applied for disability
retirement will not be disturbed.  B-199114, April 28, 1981. 

c.  Liquidation of advanced leave

An employee injured on the job in 1964, elected to receive employees'
compensation until he resigned.  Since it was not clear at that time
that the resignation was based on medical factors, annual leave of 75
hours was used to offset an equal number of hours of advanced sick
leave.  The voucher for 75 hours of annual leave may be paid, since
under 5 C.F.R.   630.209(b), an employee is not required to refund
an amount equal to any unliquidated advanced sick leave if he resigns
or retires because of disability.  B-174466, December 27, 1971. 

Prior to voluntary retirement, an employee had been advanced 240
hours of sick leave.  After he retired, the money equivalent of
advanced sick leave was collected back from his accrued annual leave
and by setoff from his retirement fund.  In view of evidence that the
employee was disabled at the time of retirement, the employing agency
may refund money equivalent of advanced sick leave since under 5
C.F.R.   630.209(b) an employee is not required to refund
unliquidated advanced sick leave if he resigns or retires on
disability.  B-188903, July 6, 1977. 

An employee who was advanced sick leave may, with administrative
approval, refund the value of the advanced sick leave she has taken
and be placed in leave without pay status for the period involved. 
B-189531, September 14, 1977 and 29 Comp.  Gen.  76 (1949).  But see
5 C.F.R.   630.208(d) holding that the period is not a nonpay
status. 

4.  Change of separation date for purpose of granting sick leave

a.  Generally

5 U.S.C.   6307 provides for the granting of sick leave to employees
on the rolls and not to former employees separated by retirement
resignation, or otherwise.  Separated employees may not be restored
to rolls for the purpose of taking sick leave unless there was a bona
fide administrative error in fixing the employee's separation date. 
B-180436, February 13, 1975. 

A claim by a civilian employee with Department of the Navy for
payment of sick leave accumulated at the date of his separation,
based on an apparently bona fide medical determination by a Navy
medical authority that the claimant was capable of performing the
duties of his position subject to certain limitations, is disallowed. 
There is no statutory authority for reimbursing an employee for sick
leave not used prior to his separation.  An employee cannot be
restored to his former position solely to be granted unused sick
leave, unless there was a bona fide administrative error in effecting
separation.  Further, disability retirement approved retroactively
does not invalidate an otherwise proper action taken by the Navy
Department.  B-162628, December 27, 1967.  See also B-199477, May 3,
1982. 

An employee committed suicide approximately 2 months after his
voluntary resignation.  Although the employee's initial memorandum
presented the agency with the alternative of granting leave or
accepting his resignation, subsequent documents show that the
employee intended resignation.  The separation date may not be
changed for the purpose of granting sick leave, annual leave, and
leave without pay until the employee's death because such date may
not be changed in the absence of a violation of regulation or a bona
fide administrative error in effecting the separation.  B-189895,
November 2, 1977. 

The movement of a former employee's resignation date 6 months forward
to the date of his death in order to permit payment of accumulated
sick leave, life insurance benefits, and a survivor's retirement
annuity to his widow, may not be allowed.  A separation date may not
be changed absent administrative error, violation of policy or
regulation, or evidence that resignation was not the intent of the
parties.  There is no evidence of administrative error or violation
of policy or regulation which would warrant a change in the
employee's separation date.  Although the widow states that her
husband would not have intended to resign had he known of his
illness, that does not establish contrary intent sufficient to change
his separation date.  Although the widow also suggests that the
illness reduced her husband's capacity to make a responsible decision
regarding his resignation, in the absence of a judicial adjudication
of incapacity, we must presume that the employee had the legal mental
capacity to discharge his rights and obligations.  Kenneth A. 
Gordon, 62 Comp.  Gen.  620 (1983). 

b.  Administrative error

An employee, who was carried on sick leave from February 20, 1968,
until January 4, 1969, may have annual leave substituted for 136
hours of sick leave.  The employee had requested annual leave for the
period December 22, 1968, through January 4, 1969, which was granted
but through administrative error was charged on leave records as sick
leave.  Since additional sick leave would have been granted prior to
his retirement for disability, the employee should be restored to the
rolls and the separation date extended for that purpose.  B-170896,
October 22, 1970. 

An employee resigned from the Department of the Army with 222 hours
sick leave to her credit and was employed by the National Labor
Relations Board 2 years later.  Through an administrative error she
was not credited sick leave until after her separation due to
confinement for pregnancy which required the use of annual leave and
leave without pay.  She may have sick leave substituted for the
period during which annual leave and leave without pay was used.  CSC
regulations provide that a person restored to federal employment
within 3 years after separation is entitled to recredit of sick
leave, and the record shows that the absence would have been charged
to sick leave had information been furnished, the non-availability of
which was due to administrative error.  B-159606, July 26, 1966. 

c.  Violation of agency policy

An employee, involuntarily removed from service on July 23, 1965, for
absence without leave, was notified by CSC in 1966 that his
application of February 1, 1965, for disability retirement had been
approved.  The employee should be given an opportunity to use his
forfeited sick leave by restoration to the rolls with proper
adjustments for that purpose, since the FPM provides that a definite
duty rests with an agency not to separate an ill employee, if he has
the necessary service to qualify for disability retirement.  If he is
unable to work, the agency should carry him in a leave status (with
or without pay) until notification by the CSC's action on his
application.  39 Comp.  Gen.  89 (1959); B-162875, December 19, 1967;
and 61 Comp.  Gen.  363 (1982). 

A claim for payment for the sick and annual leave accrued as of an
employee's retirement date on the basis that the subsequent approval
of his disability retirement proves that the physician's
pronouncement of his fitness for duty was erroneous, and that he
could have been granted all of his leave prior to separation had the
agency allowed his disability retirement is disallowed.  The employee
may not be reimbursed for sick leave not granted prior to his
separation or be restored to the agency rolls for the purpose of
granting such leave absent an error or violation of a regulation in
effecting the separation.  The employee was not refused leave prior
to his optional retirement; rather he elected to be separated
effective April 30, 1968, to be eligible for a 3.9 percent
cost-of-living allowance.  B-167973, October 13, 1969. 

d.  Intent of parties

A chest X-ray incident to an employee's separation indicated no
abnormality nor a need for additional X-rays.  However, an X-ray
taken incident to a reemployment examination 4 days after his
retirement revealed carcinoma of the lung requiring surgery.  The
agency does not deny the likelihood of error which would taint the
otherwise valid processing of the retirement and render the
separation ineffective as being contrary to the intent of both
parties.  Accordingly, the employee should be restored to the rolls
for the purpose of allowing him to exhaust his accrued sick leave. 
B-175201, July 2, 1972. 

An employee, who was separated from the service because of pregnancy
prior to the termination of her accumulated sick leave which had been
administratively approved on the basis of a timely application
supported by a doctor's certificate, is entitled to corrective action
to show her separation at the termination of sick leave since that
was originally intended by both parties.  B-116468, October 5, 1953. 
See however, B-199477, May 3, 1982, where a request to use or be paid
for 44 hours of sick leave was denied upon employee's resignation
following 18-month absence for maternity leave. 

e.  Sick leave used in computation of annuity

An employee who alleges that she was advised by her agency to apply
for involuntary retirement to facilitate the processing of the
application and to apply for disability retirement after her
involuntary retirement was approved was, thus, unable to use 273
hours of sick leave.  She requests that her separation date be
changed so that she may be restored to the rolls for the purpose of
exhausting her sick leave.  However, the 273 hours of sick leave were
used in the computation of her annuity.  Thus, 5 C.F.R.   630.407
prohibits the recredit of sick leave to her account for use even if
her separation date were changed.  B-183551, November 28, 1975. 

Unused sick leave may be credited towards service upon retirement or
it may be recredited to employee if reemployed within 3 years from
separation.  However, there are no provisions which allow for a
lump-sum payment for unused sick leave upon resignation.  B-201773,
March 4, 1981.  See also B-199477, May 3, 1982. 

5.  Substitution of sick leave

a.  For annual leave

(1) General rule--An employee who was entitled to use sick leave
specifically requested that such time be charged to annual leave. 
After annual leave is granted, an employee may not thereafter have
such leave charged to sick leave and be recredited with the amount of
annual leave previously charged for the purpose of a lump-sum payment
upon separation for retirement.  54 Comp.  Gen.  1086 (1975); and
B-182804, March 29, 1976. 

A Navy employee requested and was granted annual leave in connection
with his hospitalization and recuperation in October and November
1973.  However, after enactment of Pub.  L.  No.  93-181, December
14, 1973, 87 Stat.  705, by which the limit on a lump-sum leave
payment for annual leave was removed, and apparently after his
decision to retire in December 1973, he requested that sick leave be
substituted for the annual leave so taken.  The request may not be
granted, since such substitution involves a change in a vested
statutory right and such changes are not authorized absent a
provision in a statute or regulation providing therefor.  B-181087,
June 21, 1974. 

An employee who was entitled to use sick leave specifically requested
that annual leave be charged instead.  Subsequently the employee
desired to retroactively substitute sick leave for the annual leave
charged.  Once annual leave is granted, an employee may not
thereafter have such leave charged to sick leave and be recredited
with the amount of annual leave previously charged.  See B-191327,
November 8, 1978, citing 54 Comp.  Gen.  1086 (1975); and B-181087,
June 21, 1974.  Section 6304(d)(1) of Title 5, U.S.  Code, does not
allow the retroactive substitution of sick leave for annual leave
because an employee, with the aid of hindsight, realized that his
choice of leave was injudicious.  B-193431, August 8, 1979; and
B-190662, July 7, 1978. 

An employee timely requested and had approved the use of 72 hours of
annual leave at the end of a leave year in order to avoid forfeiture. 
Shortly thereafter, the employee was involved in a non-job-related
accident and went on sick leave.  Due to a lengthy recuperation
period, the employee requested that a portion of the absence be
charged to the annual leave subject to forfeiture, rather than sick
leave.  Such request was granted.  In June or July of the succeeding
leave year, the employee requested retroactive substitution of sick
leave for the excess annual leave used at the end of the preceding
leave year.  The request is denied.  After annual leave is granted in
lieu of sick leave as a matter of choice, thereby avoiding forfeiture
of that leave at the end of the leave year under 5 U.S.C.   6304,
the employee may not thereafter have sick leave retroactively
substituted for such annual leave and have that annual leave
recredited solely for the purpose of enhancing the lump-sum leave
payment upon separation for retirement nearly a year later.  Virginia
A.  Gibson, 65 Comp.  Gen.  608 (1986). 

(2) Exception--In Lindsey v.  United States, 214 Ct.  Cl.  574
(1977), the Court of Claims considered the claim of an employee who
requested and was granted annual leave for a period of incapacity in
order to prevent a possible forfeiture of annual leave.  Later that
calendar year the employee elected to retire, and he requested that
the sick leave be retroactively charged for the period in lieu of the
annual leave previously requested and granted since the annual leave
could be included in his lump-sum payment, while the fractional month
credit for sick leave gave him no benefit for retirement purposes. 
The court held that when an employee seeks leave substitution to be
compensated for all his accumulated annual leave in the same year of
his retirement, substitution of sick for annual leave is allowable. 

The court, although limiting its holding to the specific facts of the
case, suggested that GAO review its leave substitution policy.  In
light of the Lindsey decision, where an employee retires or dies
during the same year in which the leave is taken, and a timely
request is made, agencies may allow retroactive leave substitution in
their discretion depending upon the circumstances of each case. 
Prior decisions to the extent they are inconsistent will no longer be
followed.  57 Comp.  Gen.  535 (1978). 

However, cases which do not present the special circumstances as set
forth in Lindsey and 57 Comp.  Gen.  535 (1978) will be governed by
the general rule as set forth above.  B-193431, August 8, 1978; and
B-190662, July 7, 1978. 

(3) Administrative error--An administrative error in charging part of
a period of sick leave prior to an employee's death as annual leave
is substantiated by documents which establish that sick leave
applications were properly certified and presented and that no
application for annual leave was submitted.  Therefore, the voucher
covering payment for the annual leave recredited to the account of
the deceased employee may be certified.  B-123655, December 6, 1955. 

Upon review of an employee's accumulated annual leave pending his
retirement on February 28, 1969, it was administratively decided,
without consulting the employee, to show him in an annual leave
status from December 12, 1968, through January 20, 1969, which
resulted in the employee using 24 hours of annual leave in excess of
his current accrual.  Because the employee was unable to work during
this period and had unused sick leave to his credit, his request that
24 hours of annual leave charged for January 16, 17, and 20 be
changed to sick leave is approved.  Since the timing of the charge to
annual leave was not his, but was an administrative decision, the
payment for 24 hours of annual leave charged him in error is
authorized.  B-166841, July 16, 1969.  See also 31 Comp.  Gen.  524
(1952). 

(4) Workers' Compensation--buy back--An employee, who used annual
leave instead of sick leave based on the incomplete advice received
from the agency personnel office, may retroactively substitute sick
leave for annual leave to avoid forfeiture of the annual leave in a
workers' compensation leave buy-back situation.  Prior decisions
distinguished.  Gilbert J.  Ramos, B-233945, February 24, 1989. 

b.  For leave without pay

(1) Generally--5 U.S.C.   6307 provides for the granting of sick
leave only to employees on the rolls and not to former employees who
have been separated by retirement, resignation, or otherwise. 
Separated employees may not be restored to the rolls for the purpose
of substituting sick leave for leave without pay unless there was an
administrative error in fixing their separation date.  B-180436,
February 13, 1975. 

A retired federal employee seeks the substitution of bought-back sick
leave for leave without pay (LWOP) for the period he spent on LWOP
pending a decision on his workers' compensation application.  Where
the employee retired during the same year in which the LWOP was
taken, and his request for the leave substitution was timely made, we
conclude that the employee's agency may, in its discretion consistent
with normal sick leave considerations, allow the retroactive
substitution of his bought-back sick leave for his LWOP.  Larry L. 
Van Eerden, 63 Comp.  Gen.  291 (1984). 

After separation from his employment with the government, a former
employee seeks to have a portion of his period of leave without pay
(LWOP) converted to sick leave because he was not previously informed
that the sick leave might be available to him while he held outside
employment.  We hold that sick leave may not be substituted
retroactively after separation in the absence of a bona fide error or
violation of a regulation governing the employee's separation. 
Marion R.  Clark, 67 Comp.  Gen.  565 (1988). 

(2) Administrative error--The estate of an employee, who died while
on leave without pay in which he was placed while too ill to report
for duty following a furlough, despite sick leave to his credit, may
be compensated for such sick leave since the agency reports that the
employee would have been placed on sick leave at time of his recall
to duty except for an administrative error.  B-130418, February 28,
1957. 

(3) Unjustified or unwarranted personnel action--An employee of the
IRS requested 30 days advanced sick leave, but her request was denied
because it was assumed she would not return to duty.  Upon her return
to duty she sought a retroactive grant of the advanced sick leave and
substitution of the sick leave for leave without pay.  If the agency,
upon review, should find that the original denial was an unjustified
or unwarranted personnel action under the Back Pay Act, 5 U.S.C.  
5596, corrective action may be taken.  B-187171, June 7, 1977. 

(4) Following maternity leave--An employee who resigned following
18-month period of maternity leave may not be compensated for 44
hours of accumulated sick leave.  The employee may not be restored to
the rolls to grant the leave in the absence of an error or a
violation of regulations, and the leave may not be paid lump-sum. 
B-199477, May 3, 1982. 

(5) While in nonpay status--An employee, who was in a nonpay status
at the time he became ill and continued in such status throughout the
period of his illness, may not be granted sick leave.  Absence with
pay is synonymous with an active duty status.  If there are no duties
for the employee to perform and he is in a non-pay status it would be
improper to terminate the nonpay status primarily for the purpose of
placing the employee in a sick leave status.  B-122201, January 7,
1955. 

(6) Sick leave used in computation of annuity--An agency placed an
employee in an absent-without-leave status when she refused
reassignment and took leave, claiming sickness.  Request for recredit
of sick leave is denied since pursuant to 5 C.F.R.   630.407, sick
leave used in the computation of an annuity may not be substituted
for leave without pay.  B-181500, April 2, 1975. 

(7) Following illness--Upon reconsideration we sustain our prior
decision that an employee, who received advanced sick leave, was
properly paid for that leave.  The advanced sick leave was
substituted for leave without pay only during pay periods following
the employee's illness.  Reconsideration of Mildred E.  Taylor,
B-205359.2, July 14, 1989. 

6.  Involuntary sick leave

a.  Incapacitated for performance of assigned duties

An employee who performed duties for which the agency required safety
goggles was placed on involuntary sick and annual leave after a
medical determination that, due to a vision impairment, he should not
be required to wear safety goggles.  His sick leave may not be
restored since an employee may be involuntarily placed on sick leave
when the cognizant administrative officials determine, based upon
competent medical evidence, that the employee is incapacitated for
the performance of his assigned duties.  B-193559, April 27, 1979. 
See also B-186197, July 28, 1976; B-181313, February 7, 1975; and
B-206544, July 7, 1982. 

An employee who was placed on involuntary sick leave after an agency
physician found there were limiting conditions to the employee's
continued employment in his assigned position is not entitled to
backpay and recredit of sick leave since an agency may place an
employee on involuntary sick leave when medical evidence indicates
that he is incapacitated for performance of his assigned duties. 
Jack L.  Hamilton, 63 Comp.  Gen.  372 (1984). 

Former air traffic controller was placed on involuntary sick leave
pending his placement into second career training program and
eventual retirement on disability.  The employee is entitled to
restoration of the involuntary sick leave since the determination to
place him on sick leave was not based on competent medical evidence,
and was contrary to agency procedures.  Paul C.  Smith, B-218666,
April 29, 1986. 

U.S.  Park Policeman injured in the performance of duty and assigned
to light duty for 4 hours a day continues in a pay status for and
accrues leave based on a full 8-hour workday under 5 U.S.C.   6324. 
When that officer requests a week of annual leave, he should be
charged 40 hours rather than 20 hours of annual leave.  Section 6324
does not preclude the charging of annual or sick leave for absences
unrelated to the injury which occurred in the performance of duty. 
U.S.  Park Police, 66 Comp.  Gen.  353 (1987). 

b.  Employee ready, willing, and able to perform

An employee was placed on sick leave without his consent while an
agency action for his involuntary disability retirement was being
processed.  The retirement was later rejected by CSC for failure to
establish at any time that the employee was not physically and
mentally capable of performing his duties.  Subsequently the employee
was placed on sick leave while the agency was processing a disability
separation action under 5 U.S.C.   7701.  It too was rejected on the
basis that the medical evidence did not support the separation.  The
placing of an employee, who was willing and able to perform his
duties, on involuntary sick leave is an unjustified and unwarranted
personnel action, and, upon restoration to duty, the employee is
entitled to have both periods of sick leave regarded as erroneous
suspensions, and the salary received during the sick leave period
regarded as backpay allowable under 5 U.S.C.   7701.  Therefore,
recredit of the sick leave is proper.  39 Comp.  Gen.  154 (1959). 
See also "Agency-filed application for disability retirement" in this
chapter. 

Army employee was placed on indefinite sick leave as a result of a
medical examination which found him to be legally blind in one eye. 
The employee voluntarily applied for a disability retirement which
was denied by the Civil Service Commission and he was restored to
active duty.  Employee is not entitled to have recredited the sick
leave charged to him while application for retirement was pending
since there is nothing to indicate that his leave was involuntary or
that he was ready, willing, and able to work during such period. 
B-194020, May 12, 1981. 

c.  Pending fitness-for-duty examination

The initial administrative action to place a Veterans Administration
police officer on involuntary sick leave pending a fitness-for-duty
examination is justified where the conduct of the employee, after an
on-the-job injury, raises a question concerning his ability to
perform the duties of the position without disrupting hospital
patients and personnel.  Sick leave may not be restored since, after
the scheduled medical examination, the employee was found not fit to
perform the duties of his position.  Also, it is not unreasonable for
the agency to take 7 weeks to reach a final determination since the
agency had to schedule additional medical tests and examinations when
the initial tests proved inconclusive.  B-192956, April 9, 1979. 

d.  Agency-filed application for disability retirement

An employee is not entitled to restoration of leave when placed on
involuntary leave pending resolution of an agency-filed application
for disability retirement.  41 Comp.  Gen.  774 (1962); B-184522,
March 16, 1976; and B-184706, January 12, 1976.  However, if the
application is denied by CSC and the agency files an appeal, the
employee must be either restored to duty or separated pending the
agency appeal.  B-184522, March 16, 1976.  See also B-206237, August
16, 1982. 

Agency placed employee on involuntary leave and leave without pay
pending Civil Service Commission's action on agency-filed application
for disability retirement.  Employee claims restoration of leave and
backpay since Commission denied retirement application.  Agency's
placing employee on involuntary annual leave and leave without pay
was not an unjustified or unwarranted personnel action where the
agency's action was based on results of psychiatric evaluation. 
Record as a whole shows no reason why agency should not have relied
on such competent medical evidence.  B-195597, July 6, 1981. 

e.  Contagious disease

An employee suspected of having a contagious disease, who is placed
on involuntary sick and annual leave pursuant to medical advice, is
not entitled to restoration of the leave as the administrative action
was a reasonable precaution to protect public health.  42 Comp.  Gen. 
438 (1963). 

      E.  EMPLOYEE RECEIVING
      WORKERS' COMPENSATION
-------------------------------------------------------- Chapter 4:0.5

An employee who uses sick leave to recuperate from a work-related
injury may "buy back" such leave pursuant to 20 C.F.R.   10.310, be
placed on leave without pay, and accept compensation for the injury
under the Federal Employees' Compensation Act, 5 U.S.C.  
8101-8151.  58 Comp.  Gen.  741 (1979).  There is no other authority
to "buy back" sick leave except under the conditions prescribed in 20
C.F.R.   10.310.  B-189531, September 14, 1977.  However, with
administrative approval an employee may liquidate advanced leave by
refunding the value of the sick leave used and by being placed in a
leave-without-pay status for that period.  B-189531, September 14,
1977.  See also 29 Comp.  Gen.  76 (1949). 

Under the provisions of the Federal Employees' Compensation Act, an
employee who uses annual or sick leave during absences from work in
connection with work-related injuries or illnesses may "buy back" or
repurchase such leave and accept workers' compensation for the period
of such absences under the act.  We hold that an employee may not use
accumulated annual or sick leave in order to liquidate an
indebtedness owed the agency since annual and sick leave may not be
converted into a monetary equivalent in these circumstances.  See
Donald R.  Manning v.  United States, 7 Cl.  Ct.  128, 133 (1984);
Government Printing Office--Workers' Compensation, B-229168,
September 7, 1988. 

      F.  AWARDS
-------------------------------------------------------- Chapter 4:0.6

Approval of an incentive awards program for reduced usage of sick
leave is the responsibility of OPM, and OPM has recommended against
such approval.  Awards--Nonuse of Sick Leave, 67 Comp.  Gen.  349
(1988). 

An employee, who used annual leave instead of sick leave based on the
incomplete advice received from the agency personnel office, may
retroactively substitute sick leave for annual leave to avoid
forfeiture of the annual leave in a workers' compensation leave
buy-back situation.  Prior decisions distinguished.  Gilbert J. 
Ramos, B-233945, February 24, 1989. 

      G.  WAIVER
-------------------------------------------------------- Chapter 4:0.7

An employee on extended sick leave when his position was abolished on
December 7, 1979, was carried in sick leave status until April 30,
1980, when he applied for a discontinued service retirement. 
Initially denied by OPM, the application for retirement was approved
as of December 7, 1979, after GAO authorized a retroactive
separation.  The employee may be granted a partial waiver,
representing the difference between the salary he received in the
form of sick leave from December 7, 1979, to April 30, 1980, and the
retroactive annuity payments he received for the same period.  There
is no indication that at the time he received it, he knew the payment
of salary was or could become erroneous nor is there any indication
of any fault, misrepresentation, or lack of good faith on the
employee's part.  He remains liable for the amount of sick leave
salary that was duplicated by the retroactive annuity payments. 
James J.  Burns, B-202274, June 24, 1987. 

An employee in effect abandoned his federal position on the date he
began a job with a local government, prior to completing a required
year of service incident to a relocation he received from his federal
employer.  To give the appearance of completing the required year of
service, the employee submitted documents purporting to show him on
annual leave, sick leave, and leave without pay through the end of
the required time in service.  Pay for sick leave and a holiday he
received after abandoning federal employment were erroneous payments
subject to collection.  Waiver of these payments is denied because
the employee has not met the standards for waiver under 5 U.S.C.  
5584 (1988).  John P.  Maille, 71 Comp.  Gen.  199 (1992). 

      H.  BUY BACK OF SICK
      LEAVE--INJURY INCURRED
      OUTSIDE OF ASSIGNED DUTIES
-------------------------------------------------------- Chapter 4:0.8

GAO employee who was injured en route to work, wishes to reestablish
her sick leave balance by using funds received from insurance
settlement to "buy back" sick leave used.  There is no authority to
"buy back" accrued sick leave in absence of approved claim for injury
incurred while performing duties.  Vicki Lynn Miller, B-189531,
September 14, 1977.  See E of this Chapter, above. 

OTHER LEAVE PROVISIONS
============================================================ Chapter 5

      A.  ADMINISTRATIVE LEAVE
-------------------------------------------------------- Chapter 5:0.1

1.  Generally

The term "administrative leave," while not officially recognized in
legislation or executive regulation, is used to refer to an
authorized absence from duty with pay and without charge to leave. 
Since there are no general OPM regulations covering administrative
leave, each agency or department has the authority for determining
the situations in which excusing employees from work without charge
to leave is appropriate.  However, for some of the more common
situations in which agencies generally grant administrative leave see
FPM Supp.  990-2, Book 630, Subchapter 11 and 53 Comp.  Gen.  582
(1974).  For information regarding the granting of administrative
leave to daily, hourly, and piecework employees, see 5 C.F.R.  
610.301 - 610.306. 

2.  Administrative discretion

a.  Fire fighting

The denial of administrative leave to an employee for time spent as a
member of a volunteer fire department in fighting a local fire
outside his government installation was a proper exercise of
administrative discretion.  Each agency has the responsibility for
determining situations in which excusing employees from work without
a charge to leave is appropriate.  54 Comp.  Gen.  706 (1975). 

b.  Emergency situation

A retroactive grant of 8 hours administrative leave to an employee by
the local commander of an Air Force Base for time he spent in
cleaning and arranging for repair of damages to his home that
resulted from an ammunition train explosion, was a proper exercise of
administrative discretion.  Each agency, under the general guidance
of decisions of the Comptroller General and FPM Supplement 990-2,
Book 630, Subchapter 11, has responsibility for determining
situations in which excusing employees from work without charge to
leave is appropriate.  53 Comp.  Gen.  582 (1974). 

c.  Donating blood

The granting of administrative leave to a civilian employee of the
Army so that he, as one of two medically acceptable donors, could
donate blood on a semi-weekly basis to his critically ill nephew was
a proper exercise of administrative discretion.  The matter is
discussed in FPM Supplement 990-2, Book 630, Subchapter 11, which
indicates that donating blood has been recognized as one of the areas
for which administrative leave has been authorized under law,
executive order, or decisions of our Office.  B-188189, November 2,
1977. 

d.  Rest period after travel

The granting of administrative leave to an employee for an
acclimatization rest after he completed a full day of duty and
traveled over 7 hours by air on his return from Guam is a proper
exercise of administrative discretion.  Each agency, generally, has
responsibility for determining situations in which excusing employees
from work without charge to leave is appropriate.  55 Comp.  Gen. 
510 (1975).  However, see 41 C.F.R.   301-7.11 for current
regulations on rest stops and Title III, Travel, CPLM. 

For discussion of acclimatization rest in connection with the Fly
America Act, see Title III--Travel, Chapter 4. 

e.  Rest break in office

Agencies may grant employees brief rest periods when such periods are
determined to be beneficial or essential to the efficiency of the
federal service.  However, such periods are considered to be part of
the employee's basic workday, and an employee who skipped a rest
period and departed early would not have worked a full 40-hour week. 
Furthermore, any decision to expand a lunch period from 30 to 45
minutes should be done pursuant to 5 U.S.C.   6101(a)(3)(F) rather
than scheduling a 15-minute rest break prior to lunch.  B-190011,
December 30, 1977.  See also B-188687, May 10, 1978. 

f.  Fulfillment of position requirements

When federal employees request administrative leave for a brief,
determinate period of time to fulfill requirements of their position,
the employing agency normally has discretion to grant the request. 
Thus, attorneys who are required to become members of a bar to
maintain their employment may generally be granted administrative
leave for the time required to attend a necessary state bar admission
ceremony.  But when a state provides for an attorney who is a federal
employee to be sworn in to its bar in the vicinity of the attorney's
permanent duty station and place of residence, the employing agency
may grant administrative leave only if the attorney chooses the
option of being sworn in locally.  Andrew Maikovich, B-219112, August
14, 1985. 

g.  Sale of a horse

An employee who was transferred from Texas to Puerto Rico incident to
a reduction-in-force began travel less than 30 days after travel
orders were issued.  The employee was granted administrative leave to
sell a horse and equipment he used in official government business
which, due to the short time involved, had to be sold with
professional help at a distant location.  The grant of administrative
leave is a matter of agency discretion under the guidance of our
decisions.  We have no objection to the grant of administrative leave
in the circumstances presented.  Richard D.  Knight, B-212688,
December 16, 1983. 

h.  Handicapped employee

Where a handicapped employee arrived early at his temporary duty site
in order to avoid driving in inclement weather it would be an
appropriate exercise of administrative discretion for the agency to
excuse the employee for the time in question, without a charge to his
annual leave account.  Steve Stone, 64 Comp.  Gen.  310 (1985). 

3.  Amount of leave to be granted

a.  Brief periods

An employee, who had been granted 1 week's administrative leave in
connection with a change of station, did not complete the transfer
because it was canceled.  No objection will be made to the granting
of such leave, if the agency determines it was granted for the
purpose of complying with a transfer order before its cancellation. 
An agency may excuse an employee for brief periods of time without
charge to leave or loss of pay.  B-180693, May 23, 1974; and 44 Comp. 
Gen.  333 (1964). 

An employee who reviews files at home instead of reporting to office
prior to departure for temporary duty may be excused for brief
periods of time without a charge to leave.  B-193820, January 9,
1980. 

b.  Long periods

(1) Generally--Employee may not be placed on administrative leave
with pay for an extended period.  Nina R.  Mathews, B-237615, June 4,
1990. 

(2) Professional examination--Excused absences of 14, 28, and 31
days, without charges to leave, granted to employees for bar
examination preparation are not authorized by statute and are not
appropriate under FPM guidelines, pertaining to excusing employees
for periods of brief duration.  B-156287, February 5, 1975. 

(3) Voluntary humanitarian service--An employee performed services
for Africare, a private nonprofit organization assisting in the
Sahelian Drought Relief Program.  The services rendered were similar
to those performed in her government position.  However, she may not
be granted administrative leave, since no authority exists for
granting such leave to an employee of the executive branch for the
purpose of engaging in voluntary, humanitarian work for a private,
nonprofit organization for a period of 6 weeks.  B-156287, June 26,
1974. 

(4) International athletic competition--An employee of the Nuclear
Regulatory Commission may not be granted 3 weeks' administrative
leave to participate in the Pan American Games as a member of the
United States Field Hockey Team.  B-185128, December 3, 1975. 

4.  Medical purposes

a.  Medical examinations

An agency head may excuse employees' absences to take
administratively required physical examinations.  Such absences
without charge to leave or loss of pay by an employee should not be
granted for extended periods of time.  Nor should they be granted for
any period the employee may subsequently be hospitalized to take more
extensive tests and examinations based upon conditions discovered or
medical suspicions resulting from the initial examination.  44 Comp. 
Gen.  333 (1964). 

b.  Veteran's physical examination

Under the provisions of Executive Order No.  5396, July 17, 1930, a
disabled veteran shall be permitted to use annual or sick leave or
leave without pay in order to receive medical treatment.  However, it
is not within the discretion of the agency to grant administrative
leave for treatment or examination.  B-188012, May 10, 1977. 

c.  Work-related injury

An agency's action of placing an employee on administrative leave for
1-1/2 months due to an on-the-job injury was improper as no statutory
authority exists for this action.  Although certain situations which
are discussed in FPM Supplement 990-2, Book 630, S11-5, have been
recognized where an employee may be placed on administrative leave
for brief periods of time, no such authority exists for granting
extended periods of administrative leave.  B-192510, April 6, 1979. 

An employee who sustained a work-related injury was placed on
administrative leave by the agency for a period of almost 4 months. 
The agency had no authority for granting the employee administrative
leave for such an extended absence resulting from an injury. 
Accordingly, the agency should rescind the administrative leave and
charge sick and annual leave for the period in question.  Since the
employee's leave balances were sufficient to cover only a portion of
his 4-month absence from work, the agency should retroactively place
him on leave without pay for the remainder of that period.  Walter R. 
Boehmer, Jr., B-207672, September 28, 1983. 

However, under the provisions of 5 U.S.C.   6324 a member of the
Executive Protective Service force may not be charged sick leave for
an absence due to an injury or illness resulting from the performance
of duty.  The employee is placed on administrative leave.  57 Comp. 
Gen.  781 (1978). 

d.  Nonwork-related injury

An employee, who was injured and unable to perform his regular duties
but who could perform other limited duties, submitted a grievance
alleging that his agency did not comply with a labor-management
agreement in that it did not "make every effort" to find a limited
duty position for him.  The recommendation of an arbitrator that the
employee be granted 30 days of administrative leave may not be
implemented by the agency.  There is no legal authority to grant
administrative leave under these circumstances.  53 Comp.  Gen.  1054
(1974). 

e.  Disability retirement

A United States magistrate, who earns neither sick nor annual leave,
may not have 35 days of administrative leave retroactively granted so
as to change the date of his disability retirement from November 9,
1976 to December 31, 1976.  An employee's separation date may not be
changed absent a bona fide administrative error and there is no
authority to grant administrative leave under these circumstances. 
B-190533, December 2, 1977. 

5.  Other specific situations

a.  Incident to relocation

A transferred employee seeks restoration of 8 hours annual leave
charged to his leave account while he was awaiting the arrival of
movers on a scheduled day of travel.  If his agency determines that
he delayed travel while reasonably and necessarily awaiting movers,
GAO would interpose no objection if he was administratively excused
for such time.  55 Comp.  Gen.  779 (1976). 

Transferred employee who used 40 hours of administrative leave for
pre- and post-moving arrangements as authorized by agency regulation
was charged annual leave for time in excess of 40 hours used for
separate trip to deliver his automobile to a port for shipment
overseas.  Although traveltime to and from a port to deliver an
automobile may be charged to administrative leave, the employee is
not entitled to reinstatement of charged leave for it is within
administrative discretion to set a maximum on the time an employee is
away from official duty without a charge to annual leave.  B-194311,
January 28, 1981. 

b.  Incident to training

Where the FAA has authorized travel by common carrier to a training
site and has determined that travel by privately owned vehicle is not
advantageous to the government, the FAA may not grant administrative
leave for the excess traveltime occasioned by an employee's use of a
privately owned vehicle as a matter of personal preference.  56 Comp. 
Gen.  865 (1977). 

However, it is permissible for a union contract between the FAA and
its employees to provide that 1 day of administrative leave will be
provided to FAA employees on temporary duty at the FAA Academy,
Oklahoma City, Oklahoma, for the purpose of finding living
accommodations.  Because accommodations are not provided the
employees and per diem is reduced due to the extended temporary duty,
the 1-day provision would be consistent with prior decisions
recognizing that various situations within the context of official
travel may require administrative leave, especially if they directly
or indirectly further the agency's function.  B-192258, September 25,
1978. 

c.  Counsel appointed for indigents

Federal attorneys who serve as counsel to indigent defendants in
state and federal court cases may not be excused from their federal
employment without a loss of pay or a charge to annual leave.  44
Comp.  Gen.  643 (1965); and 61 Comp.  Gen.  652 (1982). 

d.  Absentee ballot voting

Directive in FPM, authorizing agencies to permit employees who desire
to vote in states where they maintain voting residences to be excused
for that purpose without charge to annual leave, except where voting
by absentee ballot is permitted, may not be extended by
administrative regulation so as to authorize the excusing of an
employee, without charge to annual leave, who absents himself from
work for 1 day in order to vote in a state where voting by absentee
ballot is permitted.  32 Comp.  Gen.  361 (1953). 

e.  Employee under investigation

During an investigation of an employee for wrongdoing, when it is in
the interest of the government to have the employee off the job, it
is not proper to place the employee in an enforced leave status. 
Instead the employee may be relieved from duty and continued in a pay
status without charge to leave for the short time (24 hours or so)
necessary to process his suspension.  38 Comp.  Gen.  203 (1958). 

f.  Employee being removed

An employee who was notified on March 5 of his separation for cause
effective March 10 may be granted excused absence from March 5
through March 10 but may not be granted additional excused absence
when separation date was postponed to March 16.  B-194576, January
10, 1980. 

g.  Bad weather

It is within the discretion of the employing agency to allow only 2
hours of administrative leave for inclement weather even though the
employee claimed 15 hours of administrative leave for severe ice
conditions which caused him to be late for work.  B-189775, October
19, 1977. 

An employee may not be allowed 2 days of administrative leave where
her return to work from annual leave was delayed due to a severe snow
storm at her vacation site.  B-193389, November 29, 1978. 

However, where an employee's return to duty from a vacation site was
delayed due to a snow storm which affected both the vacation site as
well as the duty station, it is within the discretion of the agency
to grant administrative leave depending upon the efforts of the
employee to reach his office.  B-195688, February 6, 1980,
distinguishing B-193389, November 29, 1978. 

h.  Employees on annual leave--early dismissal--emergency weather

Following a late evening return from a temporary duty assignment in
Virginia, several employees of the Portsmouth, New Hampshire, Naval
Shipyard took annual leave the next day.  While these employees were
on annual leave, most employees were dismissed at noon because of a
hurricane and given 4 hours administrative leave.  The employees on
annual leave were charged annual leave for the entire day, but claim
entitlement to 4 hours administrative leave on the basis that they
had intended to schedule only 4 hours of annual leave and would have
reported for duty but for the early dismissal.  Since none of the
employees on leave informed the agency that they would be reporting
for duty at any time that day, the agency reasonably applied the
leave regulations by placing the employees in an annual leave status
for the entire shift.  Anthony J.  Sarni, et al., 66 Comp.  Gen.  607
(1987). 

Fort Eustis, Virginia, and Fort Monroe, Virginia, experienced heavy
snowfall resulting in a large number of employees reporting late for
duty on January 21, 1985.  The Commanders at both installations
originally authorized up to 2 hours of administrative leave for
employees reporting late.  Several days thereafter, the Commander of
Fort Monroe retroactively declared Fort Monroe to have been closed
for 2 hours on the date in question, resulting in a 6-hour workday. 
The decision whether to close a federal installation is committed to
agency discretion, but in this case the decision of the Fort Monroe
Commander to retroactively close the fort for 2 hours on the day in
question was an abuse of agency discretion.  Therefore, his decision
was not effective to alter the leave status of employees who did not
report to the installation on January 21.  Fort Monroe, B-219232,
September 26, 1986. 

i.  Professional examination

Excused absences of 14, 28, and 31 days, without charges to leave,
granted to employees for bar examination preparation are not
authorized by statute and are not appropriate under FPM guidelines
pertaining to excusing employees for periods of brief duration. 
B-156287, February 5, 1975. 

j.  Union activities

Under the provisions of the Civil Service Reform Act of 1978, Pub. 
L.  No.  95-454, 92 Stat.  1214, employees shall be authorized
official time while representing a labor organization in the
negotiation of a collective-bargaining agreement.  In addition, the
Federal Labor Relations Authority may determine whether official time
shall be authorized to employees participating in proceedings before
the Authority.  All other matters concerning the use of official time
are subject to negotiation between the agency and the union, except
for matters solely relating to the internal business of a labor
organization which must be performed when the employee is in a
nonduty status.  See 5 U.S.C.   7131. 

k.  Advice to federal credit unions

The granting of administrative leave to federal employees to render
advice and support to federal credit unions is a proper exercise of
administrative authority.  The amount of administrative leave granted
is a matter of administrative discretion, and an agency may establish
limits as to the amount of administrative leave which may be granted
each employee during specific intervals of time.  Grants of
administrative leave are usually for short periods of time.  Also,
the types of activities for which excused absences may be granted are
matters of administrative discretion and may be specified or listed
in agency regulations.  Administrative Leave-Federal Employees
Providing Advice and Support to Federal Credit Unions, 63 Comp.  Gen. 
542 (1984). 

l.  Daylight savings time

Employees who work the night shift on the last Sunday in April when
clocks are set ahead for daylight savings time may not be allowed 1
hour of administrative leave at the end of the shift to fulfill the
requirement that they work 8 actual hours.  Employees must use 1 hour
of annual leave, or in the alternative by union agreement or agency
policy, employees may be allowed to work 1 hour beyond the end of
their shift.  57 Comp.  Gen.  429 (1978). 

m.  RIF--administrative leave during notice period

The Assistant Secretary of the Navy (Financial Management) proposes
to provide by regulation that employees subject to reduction-in-force
(RIF) procedures be placed on administrative leave during the 30-day
RIF notice period.  The Secretary is advised that there is no
authority to grant administrative leave under these circumstances. 
Further, the Office of Personnel Management regulations state that an
employee should remain in a duty status during the advance notice
period.  66 Comp.  Gen.  639 (1987). 

n.  Pending voluntary retirement

Employee, who voluntarily took leave without pay (LWOP) to preserve
possible eligibility for early retirement pending determination of
creditable service, returned to duty 42 workdays later after being
found ineligible.  His request that LWOP be changed to administrative
leave because he was misled by agency's errors must be denied since
there is no authority for administrative leave for such purpose or
extended period.  AND, since the employee voluntarily took LWOP to
preserve possible eligibility for early retirement, knowing there was
a question about his eligibility, he was not entitled to backpay
under 5 U.S.C.   5596 when he was found ineligible since there was
no unjustified or unwarranted personnel action.  B-200015, November
17, 1980.  See also Gladys W.  Sutton, B-209652, August 12, 1983. 

o.  Insurance proceeds

Under 5 U.S.C.   6324, a member of the Executive Protective Service
is not charged sick leave while recuperating from an on-the-job
injury.  The employee is placed on administrative leave.  The United
States has no authority to collect from the liability insurer of the
negligent party causing the employee's injury an amount to compensate
itself for the administrative leave granted the employee.  57 Comp. 
Gen.  781 (1978). 

p.  Partial shutdown of agency

In its discretion, the Merit Systems Protection Board (MSPB) may
retroactively grant administrative leave with pay to employees who
were ordered not to report for work during a brief partial shutdown
of the agency implemented in order to forestall a funding gap which
would have necessitated a full closedown.  The MSPB may grant such
leave to the extent appropriated funds were available and adequate on
the dates of the partial shutdown.  Merit Systems Protection Board,
62 Comp.  Gen.  1 (1982). 

q.  Furloughs

Incident to a forced agency furlough plan, an employee took 3
furlough days off without pay during a scheduled furlough period. 
The furlough plan was later canceled and the employee was allowed to
substitute annual leave for the 3 days.  The agency's denial of the
employee's request for restoration of annual leave was an appropriate
exercise of its discretion, in the absence of a showing that others
similarly situated were granted an excused absence with pay.  Steven
M.  Rudolph, B-219211, December 9, 1985.  Compare Merit Systems
Protection Board, 62 Comp.  Gen.  1 (1982). 

      B.  HOLIDAYS
-------------------------------------------------------- Chapter 5:0.2

1.  Generally

Title 5, U.S.C.   6103(a) designates certain days as legal public
holidays.  Subsection (b) establishes the rules to be applied to
federal employees when a holiday designated by law or executive order
falls on a Saturday.  Subsection (c) designates January 20 of each
fourth year after 1965, Inauguration Day, a holiday for federal
employees who work in the metropolitan Washington area.  Title 5,
U.S.C.   6104 extends similar benefits to employees paid on a daily,
hourly, and piece-work basis.  See also Executive Order No.  11582,
February 11, 1971, and 5 C.F.R.   610.201 and 610.202. 

2.  Inclusion of holiday in regular workweek

In the absence of specific legislation to the contrary, an
administrative office may, within its discretion, include a holiday
within the official hours of duty or regular workweek of employees
and require them to work on that day.  22 Comp.  Gen.  762 (1942);
and 27 Comp.  Gen.  191 (1947). 

3.  Local and foreign holidays

It is within the administrative discretion of agencies to close field
offices in the United States, its possessions, or foreign countries
on local holidays where federal work may not be properly performed. 
When the office is thus closed, such days are not chargeable to
annual leave, and employees paid on an annual or monthly basis are
entitled to compensation for such days.  17 Comp.  Gen.  298 (1937). 

Air Force employees stationed in Saudi Arabia on temporary duty were
denied access to their work areas for 15-day period because of local
Ramadan holiday.  Employees who elected to leave the country during
this period are entitled to administrative leave in same manner as
employees who remained in the country.  B-199961, July 7, 1982. 

4.  Irregular unscheduled holiday work

An employee receiving premium pay for standby duty under 5 U.S.C.  
5545(c)(1) may be excused from work on holidays within his regular
tour of duty without charge to leave when the employing agency
determines that his services are not required on the holiday.  56
Comp.  Gen.  551 (1977), overruling 54 Comp.  Gen.  662 (1975).  See
also B-192815, December 7, 1978. 

If the employee's services are administratively required on the
holiday and he absents himself on a holiday within his regularly
scheduled tour of duty, he must be charged leave.  56 Comp.  Gen. 
551 (1977), overruling 54 Comp.  Gen.  662 (1975).  See also
B-193709, November 28, 1979. 

The 1977 decision (56 Comp.  Gen.  551) was a changed construction of
law and was limited to prospective application.  Leave which was
credited or paid lump-sum under the authority of 54 Comp.  Gen.  662
prior to April 19, 1977 (the effective date of 56 Comp.  Gen.  551),
need not be collected.  However, if such leave was not recredited or
paid prior to April 19, 1977, there is no authority to do so after
that date.  58 Comp.  Gen.  345 (1979). 

5.  Part-time employee

Part-time employee was scheduled to work 4 hours on Washington's
Birthday but did not due to holiday observance.  Under 5 U.S.C.  
6104 employee is entitled only to 4 hours of pay as if work was
performed, irrespective of entitlement of other part-time employees
who were scheduled to work 8 hours that day.  B-194821, April 24,
1980. 

6.  Compressed work schedule

Employees working four 10-hour workdays under Title II of Federal
Employees Flexible and Compressed Work Schedules Act of 1978, Pub. 
L.  No.  95-390, shall receive 10 hours off for a holiday.  However,
employees working flexible schedule under Title I of act are limited
by the statute to 8 hours off for a holiday.  B-196653, December 31,
1979. 

7.  Holiday pay--seasonal employees

Seasonal employees of the IRS who were hired during the tax return
filing season for as long as needed were not entitled to be paid for
Memorial Day holiday although separated from service on the day
following the holiday.  At the close of business on the workday
preceding the holiday, there remained no further work for the
employees and hence the employees were precluded by lack of work and
not the holiday observance from performing any work.  B-193821, June
18, 1979, distinguishing 56 Comp.  Gen.  393 (1977) and 45 Comp. 
Gen.  291 (1965). 

8.  "In lieu of" holiday

Under Executive Order No.  11582, February 11, 1971, an employee
whose basic workweek is Tuesday through Saturday is entitled to
Saturday off, an "in lieu of" holiday, when a holiday falls on
Monday, a regular day off.  Therefore, when an agency incorrectly
requires employees to take Tuesday as a holiday, the employees are
entitled to holiday premium pay for working on Monday and must be
paid for Tuesday without a charge to annual leave.  B-127474,
February 9, 1979. 

However, because part-time employees are not entitled to a day "in
lieu of" a holiday which does not fall within their basic workweek,
part-time employees on a Tuesday-through-Saturday workweek must take
annual leave or leave without pay when the work place is closed on
Saturday by administrative order due to a Monday holiday.  B-192104,
September 1, 1978. 

Although part-time employees are not covered by 5 U.S.C.   6103(b)
and Executive Order No.  11582 which authorize designated and "in
lieu of" holidays for full-time employees when an actual holiday
falls on an employee's nonworkday, agencies have the discretion to
grant part-time employees administrative leave for those holidays
falling within the part-time employee's regularly scheduled workweek. 
Shirley A.  Lombardo, 63 Comp.  Gen.  306 (1984).  See also Part-time
employees, B-214156, May 29, 1984. 

9.  Nonpay status before and after holiday

An employee in a nonpay status for the workdays immediately before
and after a holiday may not receive compensation for a holiday on
which he performed no work since there is no presumption that he
would have worked on the holiday if it had been a regular working
day.  B-187520, February 22, 1977; and B-186687, January 13, 1977. 
See also 9 Comp.  Gen.  350 (1930). 

10.  Pay status before or after holiday

An employee in a pay status for the workday immediately before or
after a holiday is entitled to pay for the holiday regardless of
whether he is on leave without pay or absent immediately succeeding
or preceding the holiday.  56 Comp.  Gen.  393 (1977) overruling 13
Comp.  Gen.  207 (1934) and modifying 45 Comp.  Gen.  291 (1965); 18
Comp.  Gen.  206 (1938); 16 Comp.  Gen.  807 (1937); and 13 Comp. 
Gen.  206 (1934). 

11.  Employee refuses to work holiday

When, regardless of the need for his services, an employee
unjustifiably absents himself or refuses to work on a holiday
contrary to a proper administrative order, there is no requirement
that such absence must be excused or that the employee be paid his
regular compensation for that day.  The agency is not required to
charge such absence to annual leave.  However, while an
administrative deduction of pay, because of such refusal to work that
day, is not an adverse action, any suspension or other disciplinary
action affecting the employee's pay for any other day would be
subject to the laws, regulations, and procedures applicable to such
disciplinary actions.  44 Comp.  Gen.  274 (1964). 

12.  Holiday good-will gesture

On the last workday before Christmas, an Installation Commander
released the Installation's civilian employees for the afternoon as a
"holiday good-will gesture." The Civilian Personnel Officer found the
action to be a humbug stating that the Commander had no authority to
release employees as a holiday good-will gesture.  The Installation
Commander's exercise of the discretionary authority to grant excused
absence in the circumstances was a lawful order under existing
entitlement authorities.  It follows that the employees in question
are entitled to administrative leave--everyone of them.  A Christmas
Case, 64 Comp.  Gen.  171 (1984). 

      C.  COURT LEAVE
-------------------------------------------------------- Chapter 5:0.3

1.  Generally

An employee of the United States or of the government of the District
of Columbia is entitled to leave, without loss of or reduction in pay
or leave to which the employee is otherwise entitled, for a period of
absence during which the employee is summoned in connection with a
judicial proceeding to serve as a juror or as a witness on behalf of
a state or local government.  5 U.S.C.   6322(a). 

For materials relating to the disposition of juror and witness fees
and expense payments made to federal employees, see Title I of this
manual, Compensation, Chapter 9. 

Where an employee forfeited 16 hours of scheduled annual leave
because he performed jury duty, he is entitled to restoration of the
forfeited leave since jury duty constitutes an exigency of the public
business under 5 U.S.C.   6304(d)(1)(B).  60 Comp.  Gen.  598
(1981). 

2.  Prevailing plaintiff in discrimination action

Although not entitled to court leave under 5 U.S.C.   6322 which is
limited to jurors and certain summoned witnesses, an employee who
prevails in a discrimination action filed against her agency in
federal court is entitled to official time for attendance at her
trial without charge to leave.  59 Comp.  Gen.  290 (1980). 

3.  Unsuccessful litigant in discrimination action

An agency granted court leave in connection with employee's
unsuccessful discrimination action against his employing agency under
Title VII of the Civil Rights Act of 1964, as amended, codified at 42
U.S.C.   2000e-16 et seq.  Although the agency's determination to
grant the employee court leave predated the Office of Personnel
Management's instructions making it clear that court leave is not
authorized in this situation, the employee's absence should be
charged to the otherwise appropriate leave account on the basis of
our holding in Wilma Pasake, 59 Comp.  Gen.  290 (1980).  There is no
basis to consider the holding in Pasake as applicable only from the
date FPM bulletin 630-38 was issued some 5 months after the decision
was rendered.  That bulletin merely clarifies the purpose of 5 U.S.C. 
 6322 in a manner consistent with our holding in Pasake.  B-201602,
April 1, 1981. 

4.  Representation of indigent defendant

An employee of the Veterans Administration, who is licensed to
practice as an attorney in New Jersey, was involuntarily summoned to
represent an indigent defendant.  He may not be granted court leave
for such duties.  61 Comp.  Gen.  652 (1982). 

5.  Unsuccessful plaintiff in action against federal government

An employee who brought an action in United States district court
against the Department of Labor (DOL), seeking to prevent her removal
from her position by the Secretary of Labor, was charged 4 hours of
annual leave for time spent observing oral argument in her case.  The
district court ruled she was improperly separated but the United
States Court of Appeals upheld her separation.  DOL did not abuse its
discretion in charging her annual leave since there is no basis for
an unsuccessful plaintiff suing the federal government to have such
time considered official time.  Furthermore, 5 U.S.C.   6322
granting court leave to jurors or witnesses does not apply here. 
Ismene M.  Kalaris, B-212031, September 27, 1983. 

6.  Service as a juror

a.  Eligibility

(1) Part-time employee--A part-time federal employee with a regular
tour of duty who is called for jury service in a United States court
is entitled to court leave under 5 U.S.C.   6322 for those periods
of jury service that coincide with his regularly scheduled tour of
duty.  36 Comp.  Gen.  378 (1956). 

(2) Temporary employee--An employee serving under a temporary
appointment is eligible for court leave under 5 U.S.C.   6322.  48
Comp.  Gen.  630 (1969). 

(3) When-actually-employed employee--Employees working on an
intermittent or when-actually-employed basis without a regular tour
of duty are not eligible for court leave under 5 U.S.C.   6322.  49
Comp.  Gen.  287 (1969). 

A career-conditional employee on a when-actually-employed basis who
has a regularly scheduled tour of duty, may be granted court leave
for jury duty performed on scheduled workdays, since her employment
covered a protracted period under a continuing established work
schedule.  Although, technically, the conditions of her employment
call for a when-actually-employed designation, they may be viewed as
tantamount for court leave purposes, to those of temporary employees,
whose entitlement to such leave was upheld in 48 Comp.  Gen.  630
(1969).  See also B-166056, August 12, 1970. 

b.  Administration

(1) Duration of jury service--A federal employee under a proper
summons from a state or federal court to serve on a jury may be
granted court or jury leave for the entire period from the date on
which he is required to report to court, to the time he is discharged
by the court, regardless of the number of hours per day or the days
per week he actually served on a jury during the period.  20 Comp. 
Gen.  131 (1940) and 20 Comp.  Gen.  181 (1940). 

(2) Employee excused or discharged by court--Jury service for which a
government employee is entitled to court leave does not include
periods when the employee is excused or discharged by the court,
either for an indefinite period subject to call by the court or for a
definite period in excess of 1 day.  20 Comp.  Gen.  181 (1940) and
26 Comp.  Gen.  413 (1946). 

(3) Return to duty when excused by court--If the return of a juror to
duty would not involve hardship, such as depriving an employee night
duty of his sleep or where the place of duty is far removed from the
court, an agency, in its discretion, may inform a prospective juror
that if he is excused from jury duty for 1 day or a substantial
portion thereof, he should return to his regular duty or suffer a
charge against annual leave.  26 Comp.  Gen.  413 (1946). 

When an employee will be expected to perform jury duty for a
substantial part of the day on the date stated in the summons
commencing jury service, the employee is not required to report to
work that same day.  Once summoned by a court for jury duty, an
employee's primary responsibility is to the court.  When it is
apparent that an employee will be required to perform jury duty for
less than a substantial part of the day, and when it is reasonable to
do so, the employee's agency may require the employee to report for
work prior to reporting for or after being excused from jury duty. 
60 Comp.  Gen.  412 (1981). 

An employee who resided in Virginia and whose permanent duty station
was Washington, D.C., was summoned to jury duty in New Jersey for a
1-week period beginning on a Monday.  The employee is entitled to
court leave for the Friday he was excused from jury duty under the
holding in 26 Comp.  Gen.  413 (1946).  In view of the substantial
distance involved, it would have imposed a hardship to have required
the employee to return to his permanent duty station following a day
of jury service on Thursday to report for duty on Friday.  C.  Robert
Curran, 64 Comp.  Gen.  851 (1985). 

(4) Night jury service--An employee, who performs duty for a full
workday and then sits on a grand jury in the evening, may be granted
court leave for the day following such duty to the extent necessary
to alleviate hardship.  The employee is entitled to retention of a
pro rata portion of his grand jury fee to the extent that the hours
actually served exceed hours of court leave granted.  B-70371, August
5, 1975. 

(5) Weekend duty--It would be a hardship on Federal Aviation
Administration employees who are called for weekday jury duty and
whose tours of duty include work on Saturdays or Sundays, or both, to
require them to work their regularly scheduled weekend days in
addition to serving on juries on 5 weekdays.  Therefore, the Federal
Aviation Administration may establish a policy to permit those
employees to be absent on weekends without charge to annual leave and
with payment of premium pay normally received by them for work on
Saturdays and Sundays.  54 Comp.  Gen.  147 (1974). 

(6) Employee eligible for excusal--An employee who commuted to his
permanent duty station in Washington, D.C., from a residence in
Virginia, and who also maintained a residence in New Jersey, was
called to serve as a juror in New Jersey.  The employee's agency
denied court leave after determining that he might have been excused
from jury duty since he was living in Virginia.  The employee is
entitled to court leave under 5 U.S.C.   6322 even though he did not
advise the court of facts that might have excused him from jury
service.  C.  Robert Curran, 64 Comp.  Gen.  851 (1985). 

c.  Relation to other types of leave

(1) Annual leave

(a) Employee on annual leave--If an employee is on annual leave when
called for jury service, court leave should be substituted.  27 Comp. 
Gen.  83 (1947). 

An employee on annual leave under an advance notice of separation
from the federal civilian service due to a reduction in force was
summoned as a juror.  He is entitled to have otherwise proper court
leave substituted for annual leave, not to extend beyond the date
administratively fixed for his separation.  27 Comp.  Gen.  414
(1948). 

(b) May not be substituted for court leave--The requirement that a
period of absence for jury service be without a deduction from other
types of leave of absence is mandatory.  The effect of the law is not
to deny the employee the use of annual leave.  The intent is to
preserve other leave rights without diminution resulting from jury
service.  Thus, regardless of whether an employee may desire to use
annual leave when serving on a jury, the fact remains that annual
leave is being diminished if it is used, which is prohibited by
statute.  B-119969, March 21, 1969. 

(c) Forfeiture of annual leave--Where an employee forfeited 16 hours
of scheduled annual leave because of jury duty, the annual leave may
be restored since jury duty constitutes an exigency of the public
business under 5 U.S.C.   6304(d)(1)(B).  See 5 U.S.C.   6322 which
prohibits the loss of or reduction in annual leave where an employee
is summoned to perform jury service.  60 Comp.  Gen.  598 (1981). 

(d) Leave without pay--An employee on leave without pay, although
otherwise eligible, may not be granted court leave when called to
jury duty.  Court leave is available only to an employee who, except
for jury duty, would be on duty or on leave with pay.  27 Comp.  Gen. 
83 (1947). 

7.  Service as a witness

a.  Generally

An employee who is summoned or assigned by his agency to (1) testify
or produce records on behalf of the United States or the District of
Columbia, or (2) testify in his official capacity or produce official
records on behalf of a party other than the United States or the
District of Columbia, is performing official duty for the period of
such service.  5 U.S.C.   6322(b). 

b.  Testimony in official capacity

When an employee is summoned or assigned by his agency to testify in
his official capacity or to produce official records, he is in an
official duty status and entitled to his regular compensation without
regard to any entitlement to court leave.  38 Comp.  Gen.  142
(1958). 

c.  Former employee

An employee is considered to be a witness in his official capacity
when he is called as a witness in the official capacity of a former
position he held in the federal service, as well as when called as a
witness in the official capacity of the position in which he is
currently serving.  B-160343, November 23, 1966. 

d.  Private litigation

Pub.  L.  No.  94-310, June 15, 1976, 90 Stat.  687, amended 5 U.S.C. 
 6322 to permit court leave to serve as a witness on behalf of any
party in a judicial proceeding where the United States, the District
of Columbia, or any state or local government is a party. 
Previously, we held that employees who were summoned to appear as
individuals and not in their official capacities in a suit in the
Court of Claims by fellow employees for overtime compensation were
not entitled to court leave authorized by 5 U.S.C.   6322, for the
period of absence in which they appeared as witnesses on behalf of a
private party and without official assignment.  52 Comp.  Gen.  10
(1972). 

e.  Appearance in juvenile court proceedings

An employee summoned to appear on several occasions in juvenile court
proceedings in Pennsylvania concerning her son is not entitled to
court leave under 5 U.S.C.   6322 since she was summoned as a party
to the proceedings rather than as a witness, under a Pennsylvania
statute which provides that the court shall summon the parents,
guardian, or custodian, and any other persons as appear to the court
to be "proper or necessary parties to the proceeding." Court Leave,
B-214719, June 25, 1984. 

f.  Employee-defendant as witness

An employee who is summoned to county court for a traffic violation
is not entitled to court leave as a witness under 5 U.S.C.   6322 in
connection with his appearance in court as a defendant.  Entitlement
of Employee-Defendant to Court Leave, 62 Comp.  Gen.  87 (1982). 

g.  To accompany child to judicial proceeding

Court leave authorized by 5 U.S.C.   6322 to employees serving as
witnesses is limited to the time required by an employee to appear
personally as a witness or a juror.  Consequently, this statutory
provision does not permit court leave to an employee required to
accompany her 10-year-old son who was a witness at a federal grand
jury proceeding.  66 Comp.  Gen.  355 (1987). 

      D.  MILITARY LEAVE
-------------------------------------------------------- Chapter 5:0.4

1.  Generally

Military leave for civilian employees of the District of Columbia and
federal employees, as defined by 5 U.S.C.   2105 is authorized by 5
U.S.C.   6323.  Military leave is available to all permanent or
temporary indefinite federal and District employees who are members
of a reserve component of the armed forces or the National Guard. 

Under 5 U.S.C.   6323, as amended by Pub.  L.  No.  96-431, October
1, 1980, 94 Stat.  1850, employees are allowed military leave as
follows: 

  -- Reserve members of the armed forces or members of the National
     Guard are entitled to up to 15 days of military leave during
     each fiscal year while performing active duty for training;

  -- Reserve members of the armed forces or National Guard are
     entitled to 22 days of military leave when performing federal
     service or full-time military service with the National Guard
     for the purpose of providing military aid to enforce the law or
     for providing assistance to civil authorities in the protection
     or saving of life or property or the prevention of injury; or

  -- Members of the National Guard of the District of Columbia are
     entitled to military leave for each day of a parade or
     encampment ordered pursuant to Title 39 of the District of
     Columbia Code. 

A civilian federal employee, who is a member of the reserves, is
entitled to accrue and carry over 15 days of military leave each
fiscal year in spite of the fact that he did not request such leave
and regardless of whether he was a member of an active or inactive
reserve unit.  The military leave statute, 5 U.S.C.   6232, makes no
distinction for accrual purposes between the employee's participation
in an active or inactive reserve unit.  Galen Rex Quinn, B-227222,
November 5, 1987. 

Note the provisions of 5 U.S.C.   5519, which requires the crediting
of military pay against civilian compensation where military leave
has been granted under 5 U.S.C.   6323(c).  See D.  6.  of this
chapter. 

While 5 U.S.C.   6323 authorizes employees who are in the reserves
of the armed services up to 15 days in a calendar year for active
duty without a loss in pay or time in service, this section does not
operate to shorten the time required of an employee in an apprentice
training period prior to promotion.  Therefore, promotions
conditioned upon the successful completion of a training program are
properly delayed by the amount of time on military leave.  B-189002,
February 8, 1978. 

Title 5, U.S.C.   6323(a) provides that an employee is entitled to
military leave only if he is on active duty.  See 10 U.S.C.  
270(a).  Where an employee is required to attend weekend drills or
attend training while in an inactive duty status, he is not entitled
to military leave.  B-188145, November 15, 1977; and B-187704, May 6,
1977.  See also 32 Comp.  Gen.  363 (1953).  Any absence from work
should be charged to annual leave. 

An employee of the Government Printing Office (GPO), after initially
reporting for 14 days of active duty for training with his Air Force
Reserve unit returned to GPO on the first day of his military duty
and performed 7-1/2 hours of overtime work on a nonregularly
scheduled day of work.  Once an employee reports for active military
duty he may not be paid for performing his normal civilian duties,
since active military duty is incompatible with civilian service with
the government.  Schofield C.  Ford, B-222967, June 2, 1987. 

2.  Entitlement

a.  Temporary employees

Intermittent and temporary employees of the federal government,
appointed for less than 1 year, are not eligible for military leave
under 5 U.S.C.   6323.  54 Comp.  Gen.  999 (1975).  See also Jerry
L.  Donathan, B-232438, February 24, 1989. 

b.  Temporary indefinite employees

Employees assigned to an executive agency under the Intergovernmental
Personnel Act, 5 U.S.C.   3374, are eligible for military leave with
pay under 5 U.S.C.   6323, provided their appointments are for a
period in excess of 1 year.  The Comptroller General has held that
Congress intended to exclude from eligibility for military leave only
employees having part-time, intermittent, and temporary appointments
for less than 1 year.  B-173997, June 19, 1972. 

c.  Law clerk-trainee

Since the extension of appointments to 14 months of law clerks
serving under 5 C.F.R.   213.3102(e) does not change the nature of
those appointments to permanent or temporary indefinite, there is no
basis for granting military leave with pay under 5 U.S.C.   6323 to
law clerk-trainees prior to the conversion of their appointments to
permanent appointments.  B-173997, October 27, 1971; B-154080, July
16, 1964; and B-159563, March 17, 1973. 

d.  Term appointments

Employees under term appointments for periods of more than 1 year but
not to exceed 4 years (unlike temporary employees appointed for less
than 1 year) are eligible for military leave under 5 U.S.C.   6323. 
46 Comp.  Gen.  72 (1966). 

e.  Part-time employees

5 U.S.C.   6323(a)(2) authorizes accrual of military leave to
part-time employees on a percentage basis. 

f.  Appointees

An appointee prior to entry on duty is not entitled to military leave
since an appointment to the civil service is effective only after the
appointee has accepted the appointment and has actually entered on
duty.  An appointee is not an employee as defined in 5 U.S.C.  
2105.  B-205972, May 25, 1982. 

g.  Key federal employees--members of standby reserve

Special agents of the FBI who have been designated Key Federal
Employees and are members of the Standby Reserve are entitled to
military leave under 5 U.S.C.   6323(a) when they are on active duty
for training.  The employees may not use or be charged annual leave
for such duty unless the period of active duty for training exceeds
the military leave available to the employee.  Federal Bureau of
Investigation--Active Standby Reserve Elective Training, B-208706,
August 31, 1983. 

3.  Granting

a.  Additional days

When a federal employee, who as member of a reserve component of the
armed forces or the National Guard performs law enforcement services
for a state or the District of Columbia, exhausts the 22 days of
additional leave provided under 5 U.S.C.   6323(b), he may not be
granted administrative leave.  The discretionary authority of agency
heads to excuse employees when absent without charge to leave may not
be used to increase the number of days an employee is excused to
participate in reserve and National Guard duty.  Therefore, an
employee who has exhausted his section 6323(b) military leave may not
be further excused from duty without loss of pay or a charge to leave
for performing military duty.  49 Comp.  Gen.  233 (1969).  See also
B-231760, February 17, 1989, where leave was denied under 5 U.S.C.  
6323(b) for help in the effort to fight forest fires. 

b.  Uncommon tour of duty

To avoid a disparity in the benefits between employees who work five
8-hour tours of duty and those who work uncommon tours of duty, the
leave benefits provided in 5 U.S.C.   6323(b), prescribing 22
additional days of military leave for civilian employees who as
members of a reserve component of the armed forces or the National
Guard perform law enforcement services, should be converted into
hours and charged in units of hours on the same basis as annual and
sick leave is charged under 5 U.S.C.   6301-6312.  49 Comp.  Gen. 
233 (1969). 

c.  Weekend drills

Civilian employees whose regular workweek includes Sunday, may not
take military leave under 5 U.S.C.   6323(a) (1976) to attend
weekend Navy Reserve drills since an employee, as a member of a
reserve component of the armed forces, is entitled to military leave
under section 6323(a) only if he is on active duty under 10 U.S.C.  
270(a) (1976).  Drills are inactive duty.  B-202564, July 31, 1981. 

4.  Status prior to military duty

a.  Leave without pay

An employee of the Interstate Commerce Commission was placed on leave
without pay incident to his hospitalization.  Subsequently, during
convalescence he received orders to active military duty as a reserve
officer in the Army Judge Advocate General's Corps.  He may properly
be paid for 15 days of military leave only if it may be determined
that he would have been in a civilian pay status during the first 15
days of his military service but for the requirement that he perform
such military service.  B-166993, June 18, 1969; and 37 Comp.  Gen. 
608 (1958). 

A civilian employee on leave without pay due to insufficient annual
leave immediately prior to military leave and in a nonpay status for
part of the next working day after his return from 17 days of
military duty may receive payment for 15 days of military leave
pursuant to 5 U.S.C.   6323.  But for the requirement to perform
military duty he would have been in a civilian pay status during the
first 15 days of his military duty period, and upon return he could
be considered in a civilian pay status, having performed official
duties in his regular civilian position for a portion of the day. 
B-179444, September 27, 1973. 

b.  After erroneous separation

An employee was reemployed under a temporary appointment in the same
position from which he was separated by a reduction in force.  He was
then ordered to be restored to his former position, retroactive to
the date of separation, pursuant to a CSC decision which regarded the
employee as retaining the same status as when he was improperly
removed.  He may have military leave which was denied because of the
temporary appointment substituted for annual leave and leave without
pay.  34 Comp.  Gen.  442 (1955). 

5.  Administration of military leave

a.  Under section 6323(a)

(1) Nonworkdays--Air Force employees, who were ordered to military
duty for three separate 5-day periods, covering Monday through
Friday, with a return to civilian status on weekends, are not
chargeable with military leave for the intervening weekends, even
though they occurred between periods of military duty.  Military
leave under 5 U.S.C.   6323(a) is chargeable only for such days as
an employee is in a military duty status.  Therefore, any annual
leave charged for such weekends should be restored, if not in excess
of the maximum accumulation permitted by law, and any leave without
pay should now be paid.  B-149951, November 23, 1962; and
B-171947.27, September 7, 1972. 

Naval reservists, whose 15-day military leave authorized by 5 U.S.C. 
 6323(a) includes nonworkdays and incorporates Saturday and Sunday
at the start and end of leave, may not contend that the phrase "from
his duties" as used in the military leave acts excludes nonworkdays. 
Nonworkdays occurring at the start and close of military leave are
not included in the period of military leave.  B-133674, December 30,
1957.  See also B-188145, November 15, 1977. 

When an employee of a government agency reports for active duty for
training he should be placed in a military leave status on the first
day for which he was regularly scheduled to work and continued in a
military leave status until the last regularly scheduled workday,
including intervening nonworkdays, such as holidays and weekends,
occurring within his tour of active duty.  Schofield C.  Ford,
B-222967, June 2, 1987. 

Employees who were ordered to advance duty June 5-6 and summer camp
June 7-21 must be charged military leave for nonworkdays at beginning
of summer camp since the absence for military leave was continuous
and the weekend of June 7-8 fell wholly within the period of absence. 
61 Comp.  Gen.  558 (1982).  See also George McMillan, B-211249,
September 20, 1983. 

An agency may allow an employee to choose not to use military leave
at all for workdays included in an absence due to military duty but
rather to cover the workdays by taking annual leave, leave without
pay, compensatory time off, or a combination of these.  In such a
situation, there need be no charge to military leave for the
nonworkdays wholly within the absence.  Military Leave, 71 Comp. 
Gen.  513 (1992). 

(2) Part day--A National Guard technician for a period of 5 days
performed 4 hours of civilian duty each day followed by active
military duty as part of year-round annual training authorized under
32 U.S.C.   503.  He is entitled to civilian pay without charge to
leave for the 4 hours worked in a civilian capacity on the day he
reported for military duty, with a charge of 4 hours annual leave or
a full day of military leave under 5 U.S.C.   6323(a) for the 4
remaining hours of the civilian duty day.  In order for the
technician to receive compensation from both civilian and military
sources, 8 hours of annual leave or a full day of military leave is
chargeable for the balance of the 5-day period, since no additional
pay would result for the part-time performance of his civilian duties
without a charge to leave.  52 Comp.  Gen.  471 (1973). 

A National Guard technician, who became subject to military control
upon reporting for full-time training duty after completion of his
civilian workday, is entitled under the principle stated in 49 Comp. 
Gen.  233 (1969) to his civilian pay without charge to leave for the
day of reporting, even though he may be entitled to military pay for
that day.  However, since full-time training duty as a member of the
National Guard constitutes active duty under 37 U.S.C.   204(d),
which is incompatible with civilian service, there is no entitlement
under the rule in 37 Comp.  Gen.  255 (1957) to civilian pay without
charge to appropriate leave--military (under 5 U.S.C.   6323(a)),
annual, or leave without pay--for the days subsequent to his coming
under military control, even though the duties of his military
assignment were such that he was able to perform his civilian duty on
those days.  52 Comp.  Gen.  471 (1973).  See also George McMillan,
B-211249, September 20, 1983. 

(3) Full day--A National Guard technician upon completion of his
civilian workday departed for 2 weeks' full-time training duty.  He
returned home afterwards in a military travel status shortly after
midnight and reported to his civilian position the same day.  He is
entitled to civilian pay without charge to military or civilian leave
for the day of departure, since his civilian duties were performed
before he became subject to military control.  He is entitled to
civilian compensation for the day he reported back to his civilian
position, as he no longer was subject to military control.  In
addition, he is entitled to military pay incident to his return
travel from training as it is not incompatible with the performance
of his civilian duties or the payment therefor after the termination
of active military training duty.  52 Comp.  Gen.  471 (1973). 

(4) Minimum charge--There is no provision for charging military leave
under 5 U.S.C.   6323(a) in increments of less than 1 day.  52 Comp. 
Gen.  471 (1973). 

(5) Use of annual leave--An employee may be granted annual leave in
order to perform military training in excess of the 15 days of
military leave provided under section 6323(a).  See 49 Comp.  Gen. 
233 (1969), 47 Comp.  Gen.  761 (1968), and 37 Comp.  Gen.  255
(1957).  However, an employee may not be granted annual leave on a
nonworkday in lieu of military leave when military leave is exhausted
in order to receive compensation for overtime work scheduled on a
nonworkday.  B-188145, November 15, 1977. 

Under normal circumstances, an employee may not elect to use annual
leave rather than military leave for days he is absent from his
civilian employment while performing active military duty under
orders at his own option.  However, the employee may be involuntarily
assessed annual leave, or leave without pay if appropriate, for the
days he is absent from civilian employment to perform active duty for
training after his military leave has been exhausted.  In that
situation his employing agency should ordinarily charge the first 15
days of active duty to military leave, and then charge the days of
absence from employment for the performance of additional active duty
to annual leave or leave without pay.  George McMillan, B-211249,
September 20, 1983. 

(6) Full-time and field training--Employee of the District of
Columbia was ordered to perform 20 days of full-time training duty
and 15 days of annual field training as a member of the District of
Columbia National Guard.  Since full-time training duty directed
under the authority of 32 U.S.C.   502 is active duty, employee is
entitled to military leave under 5 U.S.C.   6323(a) for 15 days of
the 20 days of such duty.  Because the additional 15 days of annual
field training was ordered under the authority of Title 39 of the
District of Columbia Code, applicable specifically to the District of
Columbia National Guard, he is entitled to military leave for that
encampment under 5 U.S.C.   6323(c).  AND:  Since holidays were
included in these two periods and since the holidays in question were
totally within the periods of absence on military leave, employee
must be charged military leave for them.  60 Comp.  Gen.  381 (1981). 

Military leave was denied and annual leave was charged by the
employing agency to a former employee of the Government Printing
Office and member of the District of Columbia National Guard because
the employee had used his 15-day annual allotment of military leave
under 5 U.S.C.   6323(a) during annual training.  The employee, as a
member of the D.C.  National Guard, was also eligible to take
military leave for annual training under 5 U.S.C.   6323(c), which
is not subject to the 15-day ceiling.  In view of this, subsection
6323(c) leave may be substituted for subsection 6323(a) leave for
annual training in order to cover the time he was charged annual
leave.  Thomas J.  Callahan, B-218763, November 26, 1985. 

Military leave should be charged on a calendar-day basis rather than
on a workday basis despite disparate results based upon the type of
schedule worked by the employee, and regardless of the type of
schedule the employee may work, military leave may not be charged in
increments of less than 1 day.  National Guard Technicians, 64 Comp. 
Gen.  154 (1984). 

b.  Under section 6323(c)

(1) Standby time--The term "full-time military service for his State"
contained in 5 U.S.C.   6323(c) for federal employees performing
active service in the aid of law enforcement as members of a reserve
component of the armed forces or the National Guard, includes the
time from reporting when so ordered by competent authority to serve
in the active military service of the state until relieved by proper
orders.  It also includes any standby time necessitated by the need
for the employee to take over or perform when his active service or
skill is needed, as well as actual engagement in law enforcement
duties.  49 Comp.  Gen.  233 (1969). 

(2) Use of annual leave--A federal employee who as a member of a
reserve component of the armed forces or National Guard is entitled
to 22 workdays of leave in a calendar year pursuant to 5 U.S.C.  
6323(c) for periods of active duty in aid of law enforcement may be
granted annual leave or unused military leave under 5 U.S.C.  
6323(a) only if section 6323(c) leave is exhausted.  Under section
6323(b), an employee entitled "to leave without loss of or reduction
in .  .  .  leave" may not elect to use, nor may he voluntarily be
charged annual leave, or any other type of leave for periods of
service in the aid of law enforcement if he has section 6323(c) leave
available for use, even to avoid a forfeiture of leave.  49 Comp. 
Gen.  233 (1969).  See also Charles W.  Haas, B-212851, January 4,
1984. 

c.  Waiver

An employee who had accumulated 16 days of military leave was
erroneously granted 28 days of military leave over a 2-month period. 
His indebtedness for use of 12 days of excess military leave is
subject to waiver under 5 U.S.C.   5584 (1982), but we conclude that
waiver is not appropriate under the circumstances.  James J. 
Serpente, 68 Comp.  Gen.  104 (1988). 

An employee called to military duty to participate in Operation
Desert Storm requested to be placed in a leave without pay status. 
However, the agency erroneously placed him on annual leave and paid
him his salary for 80 hours.  Upon discovery of the error, the agency
gave the employee the option of keeping the payment and the charge to
his leave or having the leave reinstated and being billed for the
payment.  The employee chose to have the leave reinstated. 
Collection of the resulting debt for the annual leave payment is not
against equity and good conscience nor against the best interests of
the United states in these circumstances since the employee elected
to have the leave restored with the knowledge that this would create
a debt.  Therefore, the debt is not eligible for waiver under 5
U.S.C.   5584.  Larry Jamerson, B-248732, July 28, 1992. 

6.  Offset of civilian salary

Where a statute specifically refers by section number to another
statute, they are interpreted as of the time of adoption, without
subsequent amendments, in the absence of a contrary legislative
intent.  Therefore, under the current code, the salary offset
provision in 5 U.S.C.   5519 (1988) applies to amounts received by
reservists and national guardsmen while on military leave to enforce
the law under 5 U.S.C.   6323(b) (1988), but salary offset does not
apply to leave under 5 U.S.C.   6323(c) (1988) for District of
Columbia National Guardsmen ordered or authorized to serve in parades
or encampments even though section 5519 literally refers to section
6323(c).  Reservists and National Guard Members, 70 Comp.  Gen.  1
(1990). 

7.  Carry over and use in next fiscal year

In light of the 1980 amendment to the military leave statute, 5
U.S.C.   6323(a), federal employees who are members of the Reserve
or National Guard are now entitled to carry over up to 15 days of
unused military leave into the next fiscal year.  When the carried
over leave is combined with the 15 days accrued in the new fiscal
year, it produces a maximum military leave benefit of 30 days which
may be used in one fiscal year.  Employees may be continued in
military leave status on leave they had to their credit in the fiscal
year they entered active duty although the military duty to which the
leave is applied extends into the next fiscal year.  No return to
civilian status is necessary.  Decisions to the contrary [10 Comp. 
Gen.  102 (1930), 10 Comp.  Gen.  116 (1930), 11 Comp.  Gen.  469
(1932), 12 Comp.  Gen.  241 (1932), 17 Comp.  Gen.  174 (1937), 29
Comp.  Gen.  269 (1949), 35 Comp.  Gen.  708 (1956), 40 Comp.  Gen. 
186 (1960), 41 Comp.  Gen.  320 (1961), 51 Comp.  Gen.  23 (1971)]
are no longer applicable.  Accrual and Charging of Military Leave, 70
Comp.  Gen.  263 (1991).  This decision was amplified in 71 Comp. 
Gen.  513 (1992), immediately below. 

Federal employees who are members of the Reserve or National Guard
serving on active military duty which extends into a second or
succeeding fiscal year may accrue and use the 15 days of military
leave which accrue at the beginning of the second and each succeeding
fiscal year without return to civilian status.  70 Comp.  Gen.  263
(1991), amplified.  Military Leave, 71 Comp.  Gen.  513 (1992). 

When an employee who is a member of the Reserve or National Guard
serves on an extended period of active duty that spans two or more
fiscal years, such as Operation Desert Shield/Storm, military leave
need not be charged for intervening nonworkdays occurring between the
beginning of the second or subsequent fiscal year and the date on
which the employee begins to use military leave.  Each fiscal year
may be considered separately for charging periods of military leave
under 5 U.S.C.   6323(a).  However, once use of military leave is
begun, it must be charged on a calendar day basis including
intervening nonworkdays.  Military Leave, 71 Comp.  Gen.  513 (1992). 

      E.  HOME LEAVE
-------------------------------------------------------- Chapter 5:0.5

1.  Generally

Home leave for federal employees stationed outside the United States
is authorized by 5 U.S.C.   6305(a), with implementing regulations
found at 5 C.F.R.   630.601-630.607.  Only those employees who
qualify for the maximum annual leave accumulation of 45 days under
the provisions of 5 U.S.C.   6304(b) are eligible for home leave. 
Home leave may be used only in the United States, the Commonwealth of
Puerto Rico, or the territories and possessions of the United States. 
An employee is eligible for home leave entitlements only when he has
completed 24 months of continuous service abroad.  5 U.S.C.  
6305(a). 

An employee of the Department of Agriculture was recruited from her
place of permanent residence in the continental United States for
assignment in Puerto Rico and was thus eligible to accrue the 45 days
of annual leave authorized by 5 U.S.C.   6304(b)(1) for individuals
recruited or transferred from the United States or its territories or
possessions for employment outside the area of recruitment or from
which transferred.  62 Comp.  Gen.  545 (1983). 

Since she qualified for the maximum annual leave accumulation of 45
days under 5 U.S.C.   6304(b)(1), and completed a basic period of 24
months continuous service abroad she was entitled to accrue home
leave under 5 U.S.C.   6305(a) on the basis of her continuous
service.  Although the rate at which she earned home leave was
subject to the agency's interpretation of implementing regulations at
5 C.F.R.   630.604, the agency's total denial of statutory home
leave accrual entitlement was improper.  However, the agency has
discretion as to when and in what amount home leave may be granted. 
62 Comp.  Gen.  545 (1983). 

The agency's policy which purports to deny the 45-day annual leave
accumulation, home leave accrual, and tour renewal travel agreement
entitlements to employees recruited from places of actual residence
in the continental United States for assignment in Puerto Rico by
arbitrarily identifying some assignments as "rotational" and others
"permanent" and refusing to let some "permanent" transferees execute
overseas employment agreements because the positions could have been
filled by local hires, may not be given effect so as to defeat
express statutory entitlements.  62 Comp.  Gen.  545 (1983). 

An employee who executed an agreement to remain in the service of the
IRS in Puerto Rico for 24 months but who obtained an appointment in
Puerto Rico with HUD only 5 months later, did not satisfy the terms
of his original agreement by remaining with HUD for an additional 19
months.  Based on information evidencing his intent to relocate to
Puerto Rico on a permanent basis, HUD properly determined that the
employee's residence at the time of his appointment was Puerto Rico. 
Therefore, since his place of residence was the same as his post of
duty, his employment in Puerto Rico does not constitute "service
abroad" under 5 U.S.C.   6305(a).  Because of that residency
determination he was not given a return travel agreement and
therefore, he fails to meet the condition of 5 U.S.C.  
6403(b)(2)(ii) for entitlement to a 45-day leave ceiling.  Miquel
Caban, 63 Comp.  Gen.  563 (1984). 

2.  In a foreign country

Since home leave may be used only in the United States, the
Commonwealth of Puerto Rico, or the territories and possessions of
the United States, a Foreign Service employee may not be granted home
leave in the Panama Canal Zone which, through the Panama Canal Treaty
of 1977, is under the full sovereignty of Republic of Panama.  59
Comp.  Gen.  671 (1980). 

3.  Erroneous grant of home leave

Navy employee who was hired locally, in Guam, was erroneously granted
home leave.  Upon employee's retirement, Navy reconstructed annual
leave account and charged employee's account with number of days of
home leave taken.  Employee is entitled to waiver of home leave
erroneously granted and used.  Annual leave account is recredited
with number of days charged to it for home leave.  B-201358, August
24, 1981. 

4.  Entitlement

a.  Minimum service requirement

(1) After erroneous separation--An employee was separated in a
reduction-in-force action from a position with the Trust Territories
of the Pacific Islands prior to the completion of 2 years' service at
that post.  The separation was found to be invalid, and he was
ordered reinstated to his prior position or an equivalent position. 
He accepted a position with the Bureau of Reclamation in Denver.  He
is entitled, under 5 U.S.C.   5596, to count the time he did not
spend at his foreign post due to his erroneous separation for the
purpose of fulfilling the 24 months' overseas service requirement. 
However, the limitations imposed on granting home leave by 5 C.F.R. 
 630.606(c) disqualified the employee from using his home leave
until he has served another qualifying period overseas.  52 Comp. 
Gen.  860 (1973). 

(2) Temporary duty in the United States--To be eligible for the home
leave travel allowances prescribed for an employee who satisfactorily
completes an agreed upon period of service the employee must have
completed a minimum of 12 months of service following the date on
which he arrives at or returns to his overseas post of duty. 
Therefore, an agency may not regard an agreed upon period of overseas
service as commencing on the date the employee is assigned to
training or temporary duty in the United States following completion
of home leave and credit the employee with the time spent in training
toward the fulfillment of the agreed upon period of service.  49
Comp.  Gen.  425 (1970). 

(3) Effect of break in service--A school teacher after serving for 1
year in the Pacific Islands resigned and departed for the continental
United States.  She must complete a new period of 24 months'
continuous service overseas before being eligible for a grant of home
leave.  Title 5, U.S.C.   6305(a) and 5 C.F.R.   630.606(a) provide
that a basic service period of 24 months of continuous service abroad
is required for home leave, and a continuous period is terminated by
a break in service.  B-159334, July 29, 1966. 

(4) Administrative discretion--The disallowance of a claim for
reimbursement for accrued home leave or the credit of such leave to
the employee's annual leave account is affirmed, since the legal
authority for home leave provides only for its use as such at the
discretion of an agency.  Moreover, the provisions of 5 U.S.C.  
6304(d)(1)(A) regarding the restoration of forfeited annual leave are
not applicable, since no forfeiture is established on the record.  54
Comp.  Gen.  349 (1974). 

Although the granting of home leave is basically for each agency's
determination, the Army's refusal to grant it to an employee who had
completed his basic service period required for home leave
entitlement under 5 U.S.C.   6305, solely on the grounds that the
employee had refused to sign a transportation agreement, appears
fundamentally discriminatory.  The right to return travel had already
been earned and home leave itself is not forfeited even if the
employee refuses to sign a transportation agreement.  B-170250,
October 23, 1970. 

The determination as to when and in what amount home leave will be
granted is a matter for administrative determination.  62 Comp.  Gen. 
545 (1983). 

b.  Return to overseas post requirements

(1) Agency determination--An overseas employee serving in Bangkok was
transferred to St.  Croix, Virgin Islands, but was not authorized
home leave.  While 5 U.S.C.   6305(a) and the implementing
regulations provide that an employee may be granted home leave after
24 months' continuous service outside of the United States, they also
provide that home leave will be granted only when it is planned that
the employee will complete another tour of duty abroad.  Here it was
administratively determined that the employee would not complete
another tour abroad.  B-163364, April 6, 1971. 

The Army has requested our decisions concerning its interpretation of
the home leave regulation, 5 C.F.R.   630.606(c)(2) (1987).  The
Army may grant home leave during an employee's period of service
abroad, or within a reasonable period after the employee's return
from service abroad when it is contemplated, i.e., expected, that the
employee will return to service abroad immediately or on completion
of a permanent assignment in the United States.  Lagatta and Shaffer,
B-226306, May 12, 1988. 

(2) Agency intent--An employee's separation in a reduction-in-force
action from a position with the Trust Territories of the Pacific
Islands prior to completion of 2 years' service was found to be
invalid.  He was ordered reinstated to the same position or an
equivalent position, and accepted a position with the Bureau of
Reclamation in Denver.  He is entitled pursuant to 5 U.S.C.   5596
to home leave credit authorized under 5 U.S.C.   6305(a), and may
count the time he did not spend at his foreign post due to his
erroneous separation for purposes of fulfilling the 24 months'
overseas service requirement.  However, limitations imposed on the
granting of home leave disqualified the employee for home leave at
the time he accepted the Denver position, since there was no intent
to return him overseas.  52 Comp.  Gen.  860 (1973). 

(3) Transferred to Alaska--Under 5 U.S.C.   6305, a federal employee
generally is entitled to home leave if he has completed a basic
service period of 24 continuous months abroad and it is contemplated
that he will serve another tour of duty abroad.  Thus, when an
employee served 24 months in Puerto Rico and transferred to Alaska,
he erroneously was granted home leave because under 5 U.S.C.   6301,
Alaska is not an assignment abroad.  While home leave was erroneous,
the pay received while on home leave may be waived under 5 U.S.C.  
5584.  56 Comp.  Gen.  824 (1977). 

(4) Transferred to CONUS--An employee who completed an overseas
assignment and was transferred back to the continental United States
apparently believed he was entitled to home leave.  However, it is
not completion of an assignment but rather contemplation of another
period of duty abroad that is required for authorized home leave. 
See 5 C.F.R.   630.606(c).  Therefore, the employee is not entitled
to home leave.  B-192199, January 31, 1979. 

(5) Failure to complete service under new agreement--An employee who
had been stationed in Montreal, Canada, for 2 years, used home leave
to perform renewal agreement travel.  She then returned to her duty
station in Montreal for approximately 18 months before transferring
to a position in the United States.  The employee is not indebted for
home leave since she had served in Montreal for a continuous period
of 24 months prior to the home leave, the agency allowed home leave
with the expectation that she would return for further duty in
Montreal and she did, in fact, return to Montreal immediately after
using home leave.  Her entitlement is not affected by her failure to
complete a 2-year service agreement she signed before departing
Montreal on home leave.  Virginia M.  Borzellere, B-214066, June 11,
1984.  See also Ann McCarthy, B-216935, September 17, 1985. 

      F.  LEAVE WITHOUT PAY
-------------------------------------------------------- Chapter 5:0.6

1.  Generally

Leave without pay is a temporary nonpay status and absence from duty
which, in most cases, is granted at the employee's request.  It does
not include nonpay status on days for which the employee would be
paid on an overtime basis and does not include days on which the
employee is not scheduled to work.  FPM Chapter 630, Subchapter 12
and FPM Supp.  990-2, Book 630, Subchapter 12. 

2.  Use results in forfeiture of annual leave

Where an employee has excess annual leave subject to forfeiture, he
should not be carried in a leave without pay (LWOP) status.  Where
LWOP has been erroneously granted, annual leave should be substituted
to avoid forfeiture.  B-194176, January 3, 1980.  See also 23 Comp. 
Gen.  677 (1944); and 22 Comp.  Gen.  178 (1942). 

3.  Administrative discretion

The authorization of leave without pay is solely a matter of
administrative discretion, and employees cannot demand it as a matter
of right, except in cases of (1) disabled veterans in need of medical
treatment, and (2) reservists and National Guardsmen performing
military training duties.  See FPM Chapter 630, S12-2 and FPM Supp. 
990-2, Book 630, S12-2.  See also 54 Comp.  Gen.  154 (1974). 

4.  Involuntary charge

a.  Employee refuses to report for duty

Where an agency relocated its offices and during the transition bused
employees to the new offices within normal working hours, the agency
may place an employee on leave without pay where the employee refused
to be bused to the new offices and, thus was considered to be
unjustifiably refusing to report for duty as assigned.  B-186095,
April 26, 1976; and B-159542, July 21, 1966. 

b.  Employee incapacitated for duty

When an employee is determined to be incapacitated for the
performance of assigned duties, he may be involuntarily placed on
leave without pay.  B-186197, July 28, 1976; B-181313, February 7,
1975, and May 6, 1977; and B-206237, August 16, 1982. 

c.  Disability retirement

Recommendations on granting leave without pay pending settlement of
an employee's claim for disability retirement are contained in FPM
Supp.  831-1.  An agency may, under conditions set forth in 5 C.F.R. 
 831.1206, place an employee on leave with or without his consent
when the agency has filed an application for disability retirement. 
Such action does not constitute an unjustified or unwarranted
personnel action under 5 U.S.C.   5596.  41 Comp.  Gen.  774 (1962);
B-184522, March 16, 1976, and April 21, 1977; B-184706, January 12,
1976; and B-206237, August 16, 1982. 

5.  Federal employees' compensation

Leave without pay may be granted to an employee pending action on a
claim for disability compensation under the Federal Employees'
Compensation Act, 5 U.S.C.   8101-8151, and may be substituted for
annual and/or sick leave previously charged when disability
compensation is granted for a work-related illness or injury.  32
Comp.  Gen.  310 (1953); B-180010.12, March 8, 1979; B-187104, March
8, 1978; B-182608, August 9, 1977; B-184008, March 7, 1977; B-166538,
April 28, 1969; and B-112786, January 26, 1953.  See also FPM Chapter
630, S12-2(b)(4)(d) and FPM Supp.  990-2, Book 630, S12-2(b)(5)(e). 

6.  Disability retirement

In order to increase his annuity, an employee of the Air Force who
retired on disability in 1976 requested that he be allowed to waive
and refund compensation received during a period of disability and be
placed on leave without pay.  The effect would be to push back the
date of retirement to 1974.  Refund may not be accepted because there
is no authority for an employee to waive and refund compensation when
the salary for his position is fixed by or pursuant to legislative
authority.  B-189897, September 5, 1978. 

An employee, who was on leave and approved LWOP pending a
determination on his application for disability retirement, including
his unsuccessful appeal of the denial of his application, may not
have leave recredited or receive backpay since the record does not
indicate that his placement on leave and LWOP was involuntary or that
he was ready, willing, and able to work during that period. 
B-128314, January 8, 1979. 

7.  Substitution of leave without pay

a.  For annual leave

A reemployed annuitant may not have LWOP retroactively substituted
for annual leave because once an employee elects to use annual leave,
the obligation of the United States is discharged and cannot be
changed in the absence of a law or regulation so providing. 
Furthermore, agency policy of requiring the use of annual leave
before leave without pay precludes the requested substitution. 
B-188242, August 9, 1977. 

b.  For sick leave

(1) Administrative error--A terminally ill employee who applied for
disability retirement and waived his military retired pay, neglected
to request LWOP and died while in a sick leave status prior to
approval of the disability retirement.  The failure to request LWOP
resulted in a substantially lower survivor annuity to the employee's
widow.  Since the failure to request LWOP resulted from the
employee's mistaken belief that he had performed all actions
necessary to maximize the annuity, the agency may retroactively
substitute LWOP for sick leave.  B-190204, January 26, 1978. 

However, where there are no counseling errors or misunderstandings on
the part of the employee, LWOP may not be retroactively substituted
for sick leave.  58 Comp.  Gen.  661 (1979), distinguishing B-190204,
January 26, 1978. 

(2) Premature retirement--Generally, an employee's separation date
may not be changed except where the separation did not conform to the
intention of the parties due to a bona fide mistake.  Thus, an
employee who retired voluntarily after erroneous advice regarding
life insurance and who would have otherwise delayed her retirement
may be retroactively restored to the rolls in an LWOP status in order
to obtain the required creditable service.  B-187596, December 15,
1976. 

      G.  MISCELLANEOUS
-------------------------------------------------------- Chapter 5:0.7

1.  Compensatory time for religious holidays

Under the provisions of 5 U.S.C.   5550a, employee may work overtime
and earn compensatory time for religious observances requiring the
employee's absence from work. 

2.  Voluntary leave sharing In 1988 a voluntary leave sharing program
was created.  5 U.S.C.   6331-6373. 

3.  The Family and Medical Leave Act of 1993, 5 U.S.C.   6381-6387,
authorizes limited unpaid leave for certain family and medical
purposes. 

DETAILED TABLE OF CONTENTS
=========================================================== Appendix 1

   CHAPTER 1
--------------------------------------------------------- Appendix 1:1

   GENERAL PROVISIONS
--------------------------------------------------------- Appendix 1:2

A.Coverage
B.Employees Covered
1.Type of appointment
a.Temporary employees
b.Intermittent employees
c.WAE employees
d.Part-time employees
e.Consultant
2.Specific categories of employees
a.Agricultural marketing agents
b.Employees of cooperating agency
c.Public Health Service commissioned personnel
d.Law clerks to federal judges
e.Maritime employees
C.Employees Excluded
1.Type of appointment
a.Contract employees
b.Contractors
c.Experts and consultants
d.Temporary employees
e.Intermittent employees
f.Fee compensated persons
g."Officers"
h.De facto employees
i.Erroneous appointment exception
2.Specific categories of employees
a.Certain United States attorneys
b.Court reporters
c.Governors, commissioners, and appointees
d.Joint United States--foreign government
employees
e.Maritime Service enrollees on active
administrative duty
f.Nonappropriated fund employees
g.Federal Reserve Bank employees
h.Employees of Radio Free Europe
i.Executive Officer of the D.C.  Courts

   CHAPTER 2
--------------------------------------------------------- Appendix 1:3

   ANNUAL LEAVE
--------------------------------------------------------- Appendix 1:4

A.Laws and Regulations
1.Definitions
a.Accrued leave
b.Accumulated leave
c.Leave year
d.Days of leave
e.Full biweekly pay period
2.Rate of compensation
B.Accrual
1.Rate of accrual
a.Full-time employees
b.Part-time employees
2.Pay period requirement
a.Biweekly pay period
b.Pay period other than biweekly
c.Nonpay status during pay period
d.Effective date of change in accrual rate
3.During suspension or separation
a.Suspension for security reasons
b.Veterans reemployment right
c.While receiving disability compensation
d.Park Police during injury-related absence
e.Violation of Equal Employment Opportunity Act of
1972
f.Forfeiture of leave
4.Maximum accumulation
a.Generally
b.Employees stationed outside of the United States
c.Employed and hired locally
d.Significance of employee's permanent residence
e.Reemployment following separation
f.Adjustment following return from overseas post
g.Senior Executive Service
h.Part-time employees
C.  Creditable Services
1.Generally

2.Potentially creditable service
3.Military retiree
D.  Noncreditable Services
1.Leave-without-pay status
2.Radio Free Europe employees
3.Service governed by other than 5 U.S.C.   8332
4.Employee on temporary disability retired list
5.Upon reemployment--military service credit
E.  Transfers and Reemployment
1.Transfers
a.Between positions under 5 U.S.C.   6301-6312
b.Between permanent and temporary positions
c.Reemployed annuitant
d.Between different leave systems
e.To position not under 5 U.S.C.   6301-6312
2.Reemployment
a.Generally
b.After military service
F.  Administration of Annual Leave
1.Generally
2.Charges to annual leave
a.Minimum charge
b.Charges to current, not subsequent, years
c.Military duty
d.Holidays and standby duty
e.Holiday "in lieu of"
f.Snow emergency
g.Foreign holiday
h.Nonworkdays
i.Effect of time change
j.Agency-required physical exam
k.Charge for excess compensatory time
l.Erroneous charge to annual leave
m.Injury in performance of duty
n.Relocation of housing after transfer
3.Advanced leave
a.Return to duty requirement
b.Refund for unearned leave
4.Substitution of annual leave
a.For sick leave
(1)Generally

(2)Hospitalization during period of removal
(3)Retroactive substitution
(4)To avoid forfeiture of annual leave
(5)Administrative error
b.For leave without pay
(1)Mistake of law or fact
(2)Administrative discretion
(3)Disability compensation
(4)To avoid forfeiture of annual leave
(5)To avoid break in service
(6)Following separation
(7)Temporary employee
(8)Donated annual leave--death of employee
c.Terminal leave
(1)Administrative discretion
d.Traveltime
(1)To and from overseas posts
(a)Generally
(b)Travel from Alaska or Hawaii
(c)Employee hired overseas
e.Other traveltime
(1)Administrative discretion
(a)Examples
(b)Limitations on discretion
(c)Involuntary leave
(d)Repayment of excess leave
(e)Flexible work schedule
G.  Restoration of Leave
1.Generally
2.Leave scheduled in advance
a.General rule
b.Failure to give actual notice
c.Failure to counsel
d.Early retirement
e.Employee cancels restoration request
3.Administrative error
a.Generally
b.What constitutes an administrative error
(1)Failure to counsel employee to avoid
forfeiture

(2)Failure to act upon request
(3)SES member--transfer to Presidential
appointment
(4)Failure to determine exigency of public
business
(5)Failure to follow mandatory regulation
(6)Employee on extended illness
(7)Erroneous lump-sum leave payment
(8)Failure to collect lump-sum leave payment
(9)Erroneous leave ceiling
(10)Failure to credit excess leave in restored
leave account
(11)Forfeiture under other provisions
(12)Forfeiture because of additional holidays
(13)Failure to credit certain judges and law
clerks
c.What does not constitute administrative error
(1)Scheduling problems
(2)Erroneous advice or delays
(3)Incorrect leave and earnings statements
(4)Failure to promptly credit annual leave
(5)Leave substituted for LWOP
4.Exigencies of public business
a.Generally
b.Leave scheduled in advance
c.What constitutes an exigency of public business
d.What does not constitute an exigency of public
business
5.Sickness
a.Generally
b.Leave scheduled in advance
c.Employee on extended illness
6.Use of restored leave
a.Forfeiture
b.Failure to charge restored leave account
7.Under Back Pay Act of 1966
a.Generally
b.Erroneous holiday
c.Involuntary leave
(1)Disability retirement

(2)Employee illness
(3)Employee suspension
(4)Under Federal Employees' Compensation
Act--buy back
H.Waiver of Overcredit of Annual Leave
I.Voluntary Leave Transfer Program
J.International Dateline

   CHAPTER 3
--------------------------------------------------------- Appendix 1:5

   LUMP-SUM LEAVE PAYMENTS
--------------------------------------------------------- Appendix 1:6

A.Statutory and Regulatory Authorities
B.Entitlement
1.Payable upon separation
2.Payable upon transfer or change of positions
a.Transfer to position not under leave system
b.Change to intermittent employment with no
regular tour of duty
c.Transfers to other positions
(1)Judges and court employees
(2)Restoration in VA after 90-day temporary
appointment with Army
3.Payment optional
a.Duty in armed forces
b.Position in public international organization
4.Lump-sum payment not payable
a.Transfer to position where annual leave is
transferable
b.Personal ceiling limitation
c.Student trainee employed intermittently between
full-time tours of duty
d.Exempted officers
e.Transfer from temporary position
f.Payable upon garnishment
g.Absence without leave
C.  Rate Payable
1.Generally
2.Statutory pay increases

a.General Schedule
b.Wage Board employees
3.Step increases
a.Generally
b.Eligibility completed while on leave without pay
c.Eligibility completed while on military furlough
4.Premium pay
5.Cost-of-living allowances and foreign differentials
a.Separated at post of duty
b.Separated away from post of duty
c.Separated while on temporary duty
6.Reemployed annuitants
7.Nonworkdays and holidays
a.Generally
b.Inauguration Day
c.Executive order holidays
d.Holidays and employees overseas
(1)American citizens
(2)Local employees
e.Rotating workweeks
8.Retention allowance--5 U.S.C.   5754
D.  Reemployment and Recredit
1.Generally
2.Part-time reemployed annuitant
3.Transfer to international organization
4.Refunds
a.Refund required
(1)Temporary position
(2)After erroneous separation
(3)Reemployment under different leave system
b.Refund not required
(1)Reemployed under "no leave" system
(2)Personal leave ceiling
(3)Inclusion of cost-of-living allowance
c.Recredit
d.Reemployment prior to payment
E.  Waiver
F.  Terminal Leave
G.  Foreign Service Officers

   CHAPTER 4
--------------------------------------------------------- Appendix 1:7

   SICK LEAVE
--------------------------------------------------------- Appendix 1:8

A.  Laws and Regulations
B.  Accrual
1.Rate
a.Full-time employee
b.Part-time employee
c.District of Columbia firefighters
d.Sick leave--additional compensation
2.Entitlement
a.Generally
b.While receiving disability compensation
c.Lump-sum payment
C.  Transfers and Reemployment
1.Transfers
a.Between positions under 5 U.S.C.   6301-6312
b.Between different leave systems
c.Agricultural Stabilization and Conservation
Service (ASCS) employees
d.Commissioned officers of Public Health Service
e.District of Columbia teachers
f.Legal Services Corporation
g.Senior Executive Service to Presidential
appointment
2.Reemployment after break in service
a.Generally
b.Appointment after 3 years
c.What constitutes "break in service" temporary
appointment
d.Congressional employment
e.Peace Corps volunteer service
f.Organizations which receive federal funding
g.Transfer or detail to international organization
h.Service as substitute teacher in District of
Columbia
i.Reemployment after military service
3.Evidence to support claim
a.Generally

b.Sworn statements
c.Officially approved leave requests
4.Merger of leave systems
D.  Administration of Sick Leave
1.Generally
2.Granting
a.Agency discretion
b.First 40-hour employees
c.Contagious disease
d.Prepared childbirth
e.Treatment by marriage/family counselor
f.During erroneous separation
g.Criminal confinement
h.Supporting evidence
i.Personal certification
3.Advance leave
a.Generally
b.Administrative determination
c.Liquidation of advanced leave
4.Change of separation date for purpose of granting
sick leave
a.Generally
b.Administrative error
c.Violation of agency policy
d.Intent of parties
e.Sick leave used in computation of annuity
5.Substitution of sick leave
a.For annual leave
(1)General rule
(2)Exception
(3)Administrative error
(4)Workers' Compensation--buy back
b.For leave without pay
(1)Generally
(2)Administrative error
(3)Unjustified or unwarranted personnel action
(4)Following maternity leave
(5)While in nonpay status
(6)Sick leave used in computation of annuity
(7)Following illness

6.Involuntary sick leave
a.Incapacitated for performance of assigned duties
b.Employee ready, willing, and able to perform
c.Pending fitness-for-duty examination
d.Agency-filed application for disability
retirement
e.Contagious disease
E.  Employee Receiving Workers' Compensation
F.  Awards
G.  Waiver

   CHAPTER 5
--------------------------------------------------------- Appendix 1:9

   OTHER LEAVE PROVISIONS
-------------------------------------------------------- Appendix 1:10

A.  Administrative Leave
1.Generally
2.Administrative discretion
a.Fire fighting
b.Emergency situation
c.Donating blood
d.Rest period after travel
e.Rest break in office
f.Fulfillment of position requirements
g.Sale of a horse
h.Handicapped employee
3.Amount of leave to be granted
a.Brief periods
b.Long periods
(1)Generally
(2)Professional examination
(3)Voluntary humanitarian service
(4)International athletic competition
4.Medical purposes
a.Medical examinations
b.Veteran's physical examination
c.Work-related injury
d.Nonwork-related injury
e.Disability retirement
5.Other specific situations
a.Incident to relocation
b.Incident to training
c.Counsel appointed for indigents
d.Absentee ballot voting
e.Employee under investigation
f.Employee being removed
g.Bad weather
h.Employees on annual leave--early
dismissal--emergency weather
i.Professional examination
j.Union activities
k.Advice to federal credit unions
l.Daylight saving time
m.RIF--administrative leave during notice period
n.Pending voluntary retirement
o.Insurance proceeds
p.Partial shutdown of agency
q.Furloughs
B.  Holidays
1.Generally
2.Inclusion of holiday in regular workweek
3.Local and foreign holidays
4.Irregular unscheduled holiday work
5.Part-time employee
6.Compressed work schedule
7.Holiday pay--seasonal employees
8."In lieu of" holiday
9.Nonpay status before and after holiday
10.Pay status before or after holiday
11.Employee refuses to work holiday
12.Holiday good-will gesture
C.Court Leave
1.Generally
2.Prevailing plaintiff in discrimination action
3.Unsuccessful litigant in discrimination action
4.Representation of indigent defendant
5.Unsuccessful plaintiff in action against federal
government
6.Service as a juror
a.Eligibility

(1)Part-time employee
(2)Temporary employee
(3)When-actually-employed employee
b.Administration
(1)Duration of jury service
(2)Employee excused or discharged by court
(3)Return to duty when excused by court
(4)Night jury service
(5)Weekend duty
(6)Employee eligible for excusal
c.Relation to other types of leave
(1)Annual leave
(a)Employee on annual leave
(b)May not be substituted for court leave
(c)Forfeiture of annual leave
(d)Leave without pay
7.Service as a witness
a.Generally
b.Testimony in official capacity
c.Former employee
d.Private litigation
e.Appearance in juvenile court proceedings
f.Employee-defendant as witness
g.To accompany child to judicial proceeding
D.  Military Leave
1.Generally
2.Entitlement
a.Temporary employees
b.Temporary indefinite employees
c.Law clerk-trainee
d.Term appointments
e.Part-time employees
f.Appointees
g.Key federal employees--members of standby
reserve
3.Granting
a.Additional days
b.Uncommon tour of duty
c.Weekend drills
4.Status prior to military duty

a.Leave without pay
b.After erroneous separation
5.Administration of military leave
a.Under section 6323(a)
(1)Nonworkdays
(2)Part day
(3)Full day
(4)Minimum charge
(5)Use of annual leave
(6)Full-time and field training
b.Under section 6323(c)
(1)Standby time
(2)Use of annual leave
c.Waiver
6.Offset of civilian salary
7.Carry over and use in next fiscal year
E.  Home Leave
1.Generally
2.In a foreign country
3.Erroneous grant of home leave
4.Entitlement
a.Minimum service requirement
(1)After erroneous separation
(2)Temporary duty in the United States
(3)Effect of break in service
(4)Administrative discretion
b.Return to overseas post requirements
(1)Agency determination
(2)Agency intent
(3)Transferred to Alaska
(4)Transferred to CONUS
(5)Failure to complete service under new
agreement
F.Leave Without Pay
1.Generally
2.Use results in forfeiture of annual leave
3.Administrative discretion
4.Involuntary charge
a.Employee refuses to report for duty
b.Employee incapacitated for duty

c.Disability retirement
5.Federal employees' compensation
6.Disability retirement
7.Substitution of leave without pay
a.For annual leave
b.For sick leave
(1)Administrative error
(2)Premature retirement
G.Miscellaneous
1.Compensatory time for religious holidays
2.Voluntary leave sharing
3.The Family and Medical Leave Act of 1993

*** End of document. ***