United States General Accounting Office 

GAO Office of General Counsel 

Fourth Edition 1996 Civilian 

Personnel Law 

Manual 

Title II—Leave 

GAO/OGC-96-6 

V 
Foreword 

• 

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 (GAG). 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 I—Compensation, Title II—Leave, Title III—Travel, and Title 

IV—Relocation. 

We have included with Title I an "Introduction" in two parts. Part I 

examines GAG'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 ofthe Civilian Personnel Law Manual is being published in 

loose-leaf style vdth the introduction and four titles separately wrapped. 

The Manual generally incorporates GAG 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 soiurce 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 Persormel 

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 v^dll either be 

issued as process manuals, delegated to agencies, or incorporated in 

regulations. 

Pursuant to section 211 of the Legislative Branch Appropriations Act of 

1996, PubUc Law 104-53, effective June 30,1996, the GAG'S function of 

settling claims of federal employees for compensation and leave under 31 

U.S.C § 3702 has been transferred to the Office of Personnel Management 

(OPM). The related authority under 31 use. § 3529 to render decisions 

conceming these matters has been transferred to the head of GPM by the 

General Accounting Office Act of 1996, PubUc Law 104-316, effective 

October 19,1996. Accordingly, all future claims settlements and related 

decisions wdU be made by GPM. For more information, see the Introduction 

placed with Title I of this Manual. 

Page 1 GAO/OGC-96-6 CPLM—Leave 
Foreword 

As always, we would welcome any comments that you may have regarding 

any aspect of the Manual. 

Robert P. Murphy 

General Counsel 

Page 2 GAO/OGC-96-6 CPLM—Leave 
Contents 

Foreword 

Contents 

Detailed Table of 

Contents 

Chapter 1 

General Provisions 

Chapter 2 

Annual Leave 

Chapter 3 

Lump-Sun I Leave 

Payments 

Chapter 4 

Sick Leave 

Chapter 5 

Other Leave 

Provisions 

1 

i 

iii 

1-1 

2-1 

3-1 

4-1 

5-1 

Abbreviations 

AID Agency for Intemationa l Development 

ASCS Agricultural Stabihzation and Conservation Service 

AWOL absent without leave 

Canal Zone former Panama Canal Zone 

C.F.R. Code of Federal Regulations 

ch. chapter 

Page l GA0/06C-96-6 CPLM—Leave 
Contents 

Comp. Gen. 

CPLM 

CSC 

DMA 

FAA 

FPM 

GAG 

GAO 

IRS 

LWGP 

MSPB 

MSTS 

OPM 

para. 

paras. 

PCS 

PDY 

PHS 

POV 

Pub. L. No. 

RIF 

SES 

Stat. 

Supp. 

TDRL 

TDY 

U.S.C. 

VA 

WAE 

§ 

§§ 

Decisions of the Comptroller General of 

the United States (published volumes) 

CiviUan Personnel Law Manual 

former Civil Service Commission 

Defense Mapping Agency 

Federal Aviation Administration 

Federal Personnel Manual 

General Accoimting Office 

(in a citation) General Accounting Office Policy and 

Procedures Manual for the Guidance of Federal 

Agncy 

Intemal Revenue Service 

leave without pay 

Merit Systems Protection Board 

MiUtary Sea Transportation Service 

Office of Personnel Management 

paragraph 

paragraphs 

permanent change of station 

permanent duty 

PubUc Health Service 

privately ov^med vehicle 

PubUc Law 

reduction in force 

Senior Executive Service 

Statutes at I-arge 

supplement 

Temporary DisabiUty Retired list 

temporary duty 

United States Code 

Veterans Administration (now Department of Veterans 

Affairs) 

when actuaUy employed 

section 

sections 

Page i i GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

Chapter 1—General 

Provisions 

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. PubUc Health Service commissioned persormel 

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 attomeys 

b. Court reporters 

c. Govemors, commissioners, and appointees 

d. Joint United States-foreign govemment 

employees 

e. Maritime Service enroUees on active administrative 

duty 

t. Nonappropriated fund employees 

g. Federal Reserve Bank employees 

h. Employees of Radio Free Europe 

i. Executive Officer of the D.C. Courts 

j . Armed forces members detailed under Foreign 

Assistance Act 

1 

1 

1-

1-

1-

1-2 

1-2 

1-3 

1-3 

1-3 

1-3 

1-3 

1-3 

1-4 

1-4 

1-4 

1-4 

1-4 

1-4 

1-4 

1-5 

1-5 

1-5 

1-5 

1-6 

1-6 

1-6 

1-6 

1-7 

1-7 

1-7 

1-7 

1-7 

1-7 

1-8 

1-8 

Chapter 2—^Annual 

Leave 

Laws and Regulations 

1. Definitions 

a. Accrued leave 

2-1 

2-1 

2-1 

Page iii GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

b. Accumulated leave 2-1 

c. Leave year 2-1 

d. Days of leave 2-1 

e. FuU biweekly pay period 2-1 

2. Rate of compensation 2-1 

B. Accmal 2-2 

1. Rate of accmal 2-2 

a. FuU-time employees 2-2 

b. Part-time employees 2-2 

2. Pay period requirement 2-2 

a. Biweekly pay period 2-2 

b. Pay period other than biweekly 2-3 

c. Nonpay status during pay period 2-3 

d. Effective date of change in accmal rate 2-3 

3. During suspension or separation 2-3 

a. Suspension for security reasons 2-3 

b. Veterans reemployment right 2-3 

c. While receiving disabUity compensation 2-4 

d. Park PoUce during iryury-related absence 2-4 

e. Violation of Equal Employment Opportunity Act of 

1972 2-4 

f. Forfeiture of leave 2-4 

4. Maximum accumulation 2-4 

a. Generally 2-4 

b. Employees stationed outside of the United States 2-5 

c. Employed and hired locally 2-5 

d. Significance of employee's permanent residence 2-5 

e. Reemployment foUowing separation 2-5 

f Adjustment follovkdng retum from overseas post 2-6 

g. Senior Executive Service 2-6 

h. Part-time employees 2-6 

C. Creditable Services 2-6 

1. GeneraUy 2-6 

2. Potentially creditable service 2-7 

3. MiUtary retiree 2-7 

D. Noncreditable Services 2-7 

1. Leave-without-pay status 2-7 

2. Radio Free Europe employees 2-7 

3. Service governed by other than 5 U.S.C. § 8332 2-8 

4. Employee on temporary disabUity retired Ust 2-8 

5. Upon reemployment—^miUtary service credit 2-8 

Page iv GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

E. Transfers and Reemployment 2-9 

1. Transfers 2-9 

a. Between positions under 5 U.S.C. §§ 6301-6312 2-9 

b. Between permanent and temporary positions 2-9 

c. Reemployed annuitant 2-9 

d. Between different leave systems 2-9 

e. To position not under 5 U.S.C. §§ 6301-6312 2-9 

2. Reemployment 2-10 

a. Generally 2-10 

b. After miUtary service 2-10 

F. Adniinistration of Annual Leave 2-10 

1. Generally 2-10 

2. Charges to annual leave 2-11 

a. Minimum charge 2-11 

b. Charges to current, not subsequent, years 2-11 

c. MiUtary duty 2-11 

d. HoUdays and standby duty 2-12 

e. Holiday "in lieu of' 2-12 

f. Snow emergency 2-12 

g. Foreign hoUday 2-13 

h. Nonworkdays 2-13 

i. Effect of time change 2-13 

j . Agency-required physical exam 2-13 

k. Charge for excess compensatory time 2-13 

1. Erroneous charge to annual leave 2-14 

m. Iryury in perfonnance of duty 2-14 

n. Relocation of housing after transfer 2-14 

3. Advanced leave 2-14 

a. Retum to duty requirement 2-14 

b. Refimd for uneamed leave 2-15 

4. Substitution of aimual leave 2-15 

a. For sick leave 2-15 

(1) Generally 2-15 

(2) Hospitalization during period of removal 2-15 

(3) Retroactive substitution 2-15 

(4) To avoid forfeiture of annual leave 2-16 

(5) Administrative error 2-16 

b. For leave writhout pay 2-16 

(1) Mistake of law or fact 2-16 

(2) Administrative discretion 2-17 

(3) DisabUity compensation 2-17 

(4) To avoid forfeiture of annual leave 2-17 

Page v GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

G. 

(5) To avoid break in service 

(6) Following separation 

(7) Temporary employee 

(8) Donated annual leave—death of employee 

c. Tenninal leave 

(1) Administrative discretion 

d. Traveltune 

(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 

Restoration of Leave 

1. Generally 

2. Leave scheduled in advance 

a. General rule 

b. FaUure to give actual notice 

c. FaUure to counsel 

d. Early retUement 

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) FaUure to determine exigency of public 

business 

(5) FaUure to foUow mandatory regulation 

(6) Employee on extended iUness 

(7) Enoneous lump-sum leave payment 

(8) FaUure to coUect lump-sum leave payment 

(9) Enoneous leave ceUing 

2-17 

2-17 

2-17 

2-18 

2-18 

2-18 

2-19 

2-19 

2-19 

2-19 

2-19 

2-19 

2-19 

2-20 

2-20 

2-21 

2-21 

2-21 

2-22 

2-22 

2-22 

2-22 

2-23 

2-23 

2-23 

2-24 

2-24 

2-24 

2-24 

2-24 

2-25 

2-26 

2-26 

2-26 

2-27 

2-28 

2-28 

2-29 

Page vi GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

(10) FaUure to credit excess leave in restored 

leave account 2-29 

(11) Forfeiture under other provisions 2-29 

(12) Forfeiture because of additional hoUdays 2-29 

(13) FaUure to credit certain judges and law 

clerks 2-30 

c. What does not constitute admirustrative error 2-30 

(1) Schedulmg problems 2-30 

(2) Enoneous advice or delays 2-31 

(3) Inconect leave and eamings statements 2-31 

(4) FaUure to promptly credit aimual leave 2-31 

(5) Leave substituted for LWOP 2-31 

4. Exigencies of public business 2-32 

a. Generally 2-32 

b. Leave scheduled in advance 2-32 

c. What constitutes an exigency of pubUc business 2-32 

d. What does not constitute an exigency of public 

business 2-33 

5. Sickness 2-33 

a. Generally 2-33 

b. Leave scheduled in advance 2-33 

c. Employee on extended iUness 2-33 

6. Use of restored leave 2-34 

a. Forfeiture 2-34 

b. FaUure to charge restored leave account 2-35 

7. Under Back Pay Act of 1966 2-35 

a. Generally 2-35 

b. Erroneous hoUday 2-36 

c. Involimtary leave 2-36 

(1) DisabiUty retirement 2-36 

(2) Employee UUiess 2-37 

(3) Employee suspension 2-38 

(4) Under Federal Employees' Compensation 

Act—buy back 2-38 

H. Waiver of Overcredit of Armual Leave 2-39 

I. Voluntary Leave Transfer Program 2-40 

J. Intemational Dateline 2-40 

Chapter 3 ^Lump- ^- statutory and Regulatory Authorities 3-1 

Sum Leave Payments ^-T'f^^Lpo.se^.uon l\ 

Page vii GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

C. 

2. 

3. 

4. 

Ra 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

Payable upon transfer or change of positions 

a. Transfer to position not under leave system 

b. Change to intermittent employment wdth 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 

Payment optional 

a. Duty in armed forces 

b. Position in pubUc intemational organization 

Lump-sum payment not payable 

a. Transfer to position where annual leave is 

transferable 

b. Personal ceiUng 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 wdthout leave 

te Payable 

Generally 

Statutory pay increases 

a. General Schedule 

b. Wage Board employees 

Step increases 

a. Generally 

b. EUgibility completed while on leave without pay 

c. Eligibility completed whUe on miUtary furlough 

Premium pay 

Cost-of-Uving allowances and foreign differentials 

a. Separated at post of duty 

b. Separated away from post of duty 

c. Separated whUe on temporaiy duty 

Reemployed annuitants 

Nonworkdays and hoUdays 

a. GeneraUy 

b. Inauguration Day 

c. Executive order hoUdays 

d. HoUdays and employees overseas 

3-1 

3-1 

3-2 

3-2 

3-2 

3-2 

3-3 

3-3 

3-3 

3-3 

3-3 

3-4 

3-4 

3-4 ^ 

3-5 ^^ r 

3-5 

3-6 

3-6 

3-6 

3-6 

3-6 

3-7 

3-8 

3-8 

3-8 

3-8 

3-9 

3-9 

3-9 

3-9 

3-9 

3-10 

3-10 

3-10 

3-10 

3-10 

3-11 ^ ^ 

Page viii GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

Chapter 4—Sick 

Leave 

D. 

E. 

E 

G. 

A. 

B. 

C. 

(1) American citizens 

(2) Local employees 

e. Rotating workweeks 

8. Retention aUowance—5 U.S.C. § 5754 

Reemployment and Recredit 

1. Generally 

2. Part-time reemployed annuitant 

3. Transfer to intemational 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-Uving aUowance 

c. Recredit 

d. Reemployment prior to payment 

Waiver 

Terminal Leave 

Foreign Service Officers 

Laws and Regulations 

Accrual 

1. Rate 

a. FuU-time employee 

b. Part-time employee 

c. District of Columbia firefighters 

d. Sick leave—additional compensation 

2. Entitlement 

a. Generally 

b. While receiving disabUity compensation 

c. Lump-sum payment 

Transfers and Reemployment 

1. TVansfers 

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

b. Between different leave systeins 

c. Agricultural StabiUzation and Conservation 

Service (ASCS) employees 

d. Commissioned officers of PubUc Health Service 

3-11 

3-11 

3-11 

3-11 

3-12 

3-12 

3-12 

3-12 

3-13 

3-13 

3-13 

3-13 

3-13 

3-14 

3-14 

3-14 

3-14 

3-14 

3-15 

3-15 

3-16 

3-17 

4-1 

4-1 

4-1 

4-1 

4-1 

4-1 

4-1 

4-1 

4-1 

4-2 

4-2 

4-2 

4-2 

4-2 

4-2 

4-2 

4-3 

Page ix GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

e. District of Columbia teachers 4-3 

f Legal Services Corporation 4-3 

g. Senior Executive Service to presidential 

appointment 4-4 

2. Reemployment after break in service 4-4 

a. Generally 4-4 

b. Appointment after 3 years 4-5 

c. What constitutes "break in service" temporary 

appointment 4-5 

d. Congressional employment 4-5 

e. Peace Corps volunteer service 4-5 

f Organizations which receive federal funding 4-6 

g. Transfer or detail to intemational organization 4-6 

h. Service as substitute teacher in District of 

Columbia 4-6 

i. Reemployment after miUtary service 4-7 

3. Evidence to support claim 4-7 

a. Generally 4-7 

b. Swom statements 4-8 

c. OfficiaUy approved leave requests 4-8 

4. Merger of leave systems 4-8 

D. Administration of Sick Leave 4-8 

1. Generally 4-8 

2. Granting 4-9 

a. Agency discretion 4-9 

b. First 40-hour employees 4-9 

c. Contagious disease 4-10 

d. Prepared chUdbuth 4-11 

e. Treatment by marriage/family counselor 4-11 

f During erroneous separation 4-11 

g. Criminal confinement 4-11 

h. Supporting evidence 4-12 

i. Personal certification 4-12 

3. Advance leave 4-12 

a. Generally 4-12 

b. Administrative determination 4-12 

c. LiqiUdation of advanced leave 4-13 

4. Change of separation date for purpose of granting 

sick leave 4-14 

a. GeneraUy 4-14 

b. Administrative error 4-15 

c. * Violation of agency poUcy 4-15 

Page X GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

d. Intent of parties 4-16 

e. Sick leave used in computation of annuity 4-17 

5. Substitution of sick leave 4-17 

a. For annual leave 4-17 

(1) General rule 4-17 

(2) Exception 4-18 

(3) Adininistrative error 4-19 

(4) Workers' Compensation—buy back 4-19 

b. For leave without pay 4-20 

(1) Generally 4-20 

(2) Administrative error 4-20 

(3) Uryustified or unwarranted personnel action 4-20 

(4) FoUowing maternity leave 4-21 

(5) While in nonpay status 4-21 

(6) Sick leave used in computation of annuity 4-21 

(7) FoUowdng illness 4-21 

6. Involuntary sick leave 4-21 

a. Incapacitated for performance of assigned duties 4-21 

b. Employee ready, wdUing, and able to perform 4-22 

c. Pending fitness-for-duty examination 4-23 

d. Agency-fUed appUcation for disability retirement 4-23 

e. Contagious disease 4-24 

E. Employee Receiving Workers' Compensation 4-24 

F Awards 4-24 

G. Waiver 4-25 

H. Buy Back of Sick Leave—Ir\jury Incuned Outside of 

Assigned Duties 4-25 

Chapter 5—Other 

Leave Provisions 

A. Administrative Leave 

1. Generally 

2. Administrative discretion 

a. Firefighting 

b. Emergency situation 

c. Donating blood 

d. Rest period after travel 

e. Rest break in office 

f FulfUhnent of position requirements 

g. Sale of a horse 

h. Handicapped employee 

3. Amount of leave to be granted 

a. Brief periods 

5-1 

5-1 

5-1 

5-1 

5-1 

5-1 

5-2 

5-2 

5-2 

5-3 

5-3 

5-3 

5-3 

Page xi GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

b. Long periods 5-4 

(1) Generally 5-4 

(2) Professional examination 5-4 

(3) Voluntzuy humanitarian service 5-4 

(4) Intemational athletic competition 5-4 

4. Medical purposes 5-4 

a. Medical examinations 5-4 

b. Veterem's physiccil examination 5-4 

c. Work-related iryury 5-5 

d. Nonwork-related iruuiy 5-5 

e. DisabiUty retirement 5-6 

5. Other specific situations 5-6 

a. Incident to relocation 5-6 

b. Incident to training 5-6 

c. Counsel appointed for indigents 5-7 

d. Absentee ballot voting 5-7 

e. Employee under investigation 5-7 

f. Employee being removed 5-7 

g. Bad weather 5-8 

h. Employees on annual leave—early 

dismissal—emergency weather 5-8 

i. Professional examination 5-9 

j . Union activities 5-9 

k. Advice to federal credit unions 5-9 

1. DayUght saving time 5-10 

m. RIF—administrative leave during notice period 5-10 

n. Pending voluntary retirement 5-10 

o. Insurance proceeds 5-10 

p. Partial shutdowrn of agency 5-11 

q. Furloughs 5-11 

B. HoUdays 5-11 

1. GeneraUy 5-11 

2. Inclusion of hoUday in regular workweek 5-12 

3. Local and foreign hoUdays 5-12 

4. Inegular unscheduled hoUday work 5-12 

5. Part-time employee 5-13 

6. Compressed work schedule 5-13 

7. HoUday pay—seasonal employees 5-13 

8. "Ul Ueu o r hoUday 5-13 

9. Nonpay status before and after hoUday 5-14 

10. Pay status before or after hoUday 5-14 

11. Employee refuses to work hoUday 5-14 

Page xii GAOA>GC-96-6 CPLM—Leave 
Detailed Table of Contents 

12. HoUday good-wiU gesture 5-15 

C. Court Leave 5-15 

1. Generally 5-15 

2. Prevailuig plaintiff in discrimination action 5-15 

3. Unsuccessful litigant in discrimination action 5-16 

4. Representation of indigent defendant 5-16 

5. Unsuccessful plaintiff in action against federal 

govemment 5-16 

6. Service as a juror 5-16 

a. EUgibility 5-16 

(1) Part-tune employee 5-16 

(2) Temporary employee 5-17 

(3) When-actuaUy-employed employee 5-17 

b. Administration 5-17 

(1) Duration of jury service 5-17 

(2) Employee excused or discharged by court 5-17 

(3) Retum to duty when excused by court 5-17 

(4) Night jury service 5-18 

(5) Weekend duty 5-18 

(6) Employee eUgible for excusal 5-18 

c. Relation to other types of leave 5-19 

(1) Annual leave 5-19 

(a) Employee on annual leave 5-19 

(b) May not be substituted for court leave 5-19 

(c) Forfeiture of annual leave 5-19 

(d) Leave without pay 5-19 

7. Service as a witness 5-20 

a. Generally 5-20 

b. Testimony in official capacity 5-20 

c. Former employee 5-20 

d. Private Utigation 5-20 

e. Appearance in juvenile court proceedings 5-20 

f. Employee-defendant as wdtness 5-21 

g. To accompany chUd to judicial proceeding 5-21 

D. MiUtaiy Leave 5-21 

1. Generally 5-21 

2. Entitlement 5-23 

a. Temporary employees 5-23 

b. Temporary Uidefinite employees 5-23 

c. Law clerk-trainee 5-23 

d. Term appoUitments 5-23 

e. Part-time employees 5-23 

Page xiii GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

f Appointees 5-24 

g. Key federal employees—members of standby 

reserve 5-24 

3. Granting 5-24 

a. Additional days 5-24 

b. Uncommon tour of duty 5-24 

c. Weekend drills 5-25 

4. Status prior to mUitary duty 5-25 

a. Leave wdthout pay 5-25 

b. After erroneous separation 5-25 

5. Administration of military leave 5-26 

a. Under section 6323(a) 5-26 

(1) Nonworkdays 5-26 

(2) Part day 5-27 

(3) FuU day 5-27 

(4) Minimum charge 5-28 

(5) Use of annual leave 5-28 

(6) FuU-time and field training 5-28 

b. Under section 6323(c) 5-29 

(1) Standby time 5-29 

(2) Use of annual leave 5-29 

c. Waiver 5-30 

6. Offset of civiUan salary 5-30 

7. Carry over and use in next fiscal year 5-30 

E. Home Leave 5-31 

1. Generally 5-31 

2. In a foreign country 5-33 

3. Erroneous grant of home leave 5-33 

4. Entitlement 5-33 

a. Minimum service requirement 5-33 

(1) After erroneous separation 5-33 

(2) Temporary duty in the United States 5-33 

(3) Effect of break in service 5-34 

(4) Administrative discretion 5-34 

b. Retum to overseas post requirements 5-34 

(1) Agency determination 5-34 

(2) Agency intent 5-35 

(3) Transfened to Alaska 5-35 

(4) Transferred to CONUS 5-35 

(5) FaUure to complete service under new 

agreement 5-36 

Page xiv GAO/OGC-96-6 CPLM—Leave 
Detailed Table of Contents 

F. Leave Without Pay 5-36 

1. Generally 5-36 

2. Use results in forfeiture of annual leave 5-36 

3. Administrative discretion 5-36 

4. Involuntary charge 5-37 

a. Employee refuses to report for duty 5-37 

b. Employee incapacitated for duty 5-37 

c. DisabiUty retirement 5-37 

5. Federal employees' compensation 5-37 

6. DisabiUty retirement 5-38 

7. Substitution of leave wdthout pay 5-38 

a. For annual leave 5-38 

b. For sick leave 5-38 

(1) Adininistrative enor 5-38 

(2) Premature retirement 5-39 

G. MisceUaneous 5-39 

1. Compensatory time for reUgious hoUdays 5-39 

2. Voluntary leave sharing 5-39 

3. The Family and Medical Leave Act of 1993 5-39 

Page XV GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

A. Coverage The Annual and Sick Leave Act of 1951, as amended, 5 u.s.c. §§ 6301-6387, 

appUes to the foUowing individuals: 

(1) an employee ofthe federal govemment as defined by 5 u.s.c. § 2105, 

and; 

(2) an individual employed by the govemment 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 rmlitary leave 

under 5 u.s.c. § 6323. B-205972, May 25,1982. 

B. Employees Covered 1. Type of appointment 

a. Temporary employees 

Service of temporary and indefinite employees ofthe 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 wdthout 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 estabUshed 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 avaUable to such employees. 32 Comp. Gen. 206 (1952). 

Page 1-1 GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

An employee whose position was designated "intermittent" is nonetheless 

entitled to annual leave benefits since he had an estiiblished 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 

conesponding days of the 2 workweeks of that pay period. 57 Comp. 

Gen. 82 (1977). 

The fact that an employee's appomtment 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 am. 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-actuaUy-empIoyed basis, worked 

regularly scheduled tours of duty of 80 hours each pay period during their 

period of emplojTuent. Therefore, they are entitled to annual and sick 

leave accmal and pay for hoUdays that occuned 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 imder an estabUshed 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). 

Page 1-2 GAO/OGC-96-6 CPLM—Leave 
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General Provisions 

e. Consultant 

An individual consultant whose services were procured under a contract 

which estabUshed an employer-employee relationship wdth the 

govemment 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 hoUdays 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 ofthe Department of Agriculture at various imlk markets, 

whose salaries are paid firom funds estabUshed by assessments upon milk 

handlers, are entitled to accmal 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 poUtical subdivision, are employees ofthe United States and are 

subject to federal laws controUing the rights and benefits of federal 

personnel including leave entitlement so long as their duties and time of 

work are supervised and controUed by federal officers. B-139050, June 2, 

1959. 

c. PubUc Health Service commissioned personnel 

Commissioned persormel ofthe PubUc Health Servdce are considered 

civiUan officers and employees under 5 u.s.c. § 6308 so that members 

transferring between the commissioned corps and other civiUan positions 

are not entitled to lump-sum leave payment but may have annual and sick 

leave transferred on acijusted basis. 34 Comp. Gen. 287 (1954). 

d. Law clerks to federal judges 

Claims for payment for annual leave firom law clerks or secretaries may be 

paid if a certificate is fumished firom the judge showdng that a regular tour 

of duty was worked weekly by the employees, that aU absences were 

charged to leave, and the amount of leave on the date of separation. 

Page 1-3 GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

Similar criteria should be used to detennine whether employees could be 

granted leave where no separation is involved. B-86699, June 14,1949, and 

July 20, 1949. 

e. Maritime employees 

Although civUian personnel serving on ships ofthe MSTS have their wages 

fixed in accordance wdth prevailing rates and practices of the maritime 

industry, such employees are not exempted fi*om the provisions of 5 u.s.c. 

§§ 6301-6312. 43 Comp. Gen. 661 (1964). 

C. Employees Excluded i. Type of appomtment 

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. Ebcperts and consultants 

Experts and consultants wdthout a regular tour of duty are excluded from 

leave benefits under 6 use. §§ 6301-6312. 36 Comp. Gen. 638 (1956). An 

expert appointed on an intermittent basis is not entitled to leave even 

though he actuaUy worked fuU time since he did not have an established 

regular tour of duty. 58 Comp. Gen. 167 (1978). 

d. Temporary employees 

Constmction tradesmen, recruited firom a local work force under 

temporary s^pointments at hourly rates to perform alterations at the 

Grand Coulee Power Plant, worked side by side wdth regular maintenance 

employees, and the total crew performed a mixture of constmction and 

maintenance work. The regular workers received maintenance wj^es and 

the temporary constmction workers received constmction wages. 

However, the constmction workers are not entitled to leave benefits under 

Page 1-4 GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

5 U.S.C. §§ 6301-6312, since they are specifically excepted from coverage as 

"temporary employees engz^ed on constmction work at hourly rates" by 

5 U.S.C. § 6301(2)(m). B-160391, December 21,1966. 

e. Intermittent employees 

The National GaUery of Art employed four nurses who worked every third 

weekend, and an occasional day each administrative workweek. One 

nurse also worked as reUef 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 use. § 6301(2)(U), 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 entifle 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.se. 

§§ 6301-6312. 30 Comp. Gen. 406 (1951). 

g. "Officers" 

The term "officers" as used in 5 u.se. § 6301(2)(xi) appUes only to persons 

who are required to be appointed by the President with or wdthout 

confirmation by the Senate, and, therefore, esc, acting under delegation of 

the President's authority, contained in Executive Order No. 10540, June 29, 

1954, may designate for exemption firom 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 

GeneraUy, 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. 

Page 1-5 GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

i. Enoneous appointment exception 

However, in Valdez we held that where a person has been appointed to a 

position by an agency and the appointment is subsequentiy found to have 

been improper or enoneous, the employee is entitied to accmal 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 guUty of fraud in regard to the 

appointment or deUberately misrepresented or falsified a material matter. 

Prior inconsistent decisions wdll no longer be foUowed. 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. Amett and Mary Ann Barron, B-220791, 

September 8, 1986; Thomas C. CoUms, 61 Comp. Gen. 127 (1981). 

2. Specific categories of employees 

a. Certain United States attomeys 

Four United States attomeys who are compensated at rates in the 

Executive Schedule are excluded from coverage under the annual and sick 

leave provisions of 5 use. §§ 6301-6312. Although United States attomeys 

generally are not excluded from leave benefits (section 6301(2)(xi)), 

certain United States attomeys whose pay is set at level YV ofthe 

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 caU as needed by the court, 

but who are otherwdse free to augment income wdth eamings from 

transcript fees do not have regular tours of duty consisting of a defmite 

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 use. § 6301(2)(U). WhUe 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 eamings and use upon which to base a lump-sum 

leave payment. 54 Comp. Gen. 251 (1974). 

Page 1-6 GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

c. Governors, commissioners, and appointees 

Govemors and high commissioners of United States Territories are 

exempted firom leave benefits of 5 u.s.e. §§ 6301-6312. B-127205, May 9, 

1956. 

d. Jouit United States-foreign govemment employees 

Joint United States-foreign govemment employees, who devote no 

particular period of their employment to the work of either govemment, 

are not officers and employees ofthe United States so as to be entitied to 

leave benefits under 5 u.s.e. §§ 6301-6312. 24 Comp. Gen. 384 (1944). 

e. Maritime Service enrollees on active administrative duty 

Although enroUees (administrative) of U.S. Maritime Service are not 

expressly exempted from 5 u.s.e. §§ 6301-6312, they are not subject to its 

provisions, and a leave system may be properly estabUshed by regulations 

prescribed by the Administrator ofthe 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.e. §§ 6301-6312, and, thus, they are 

not entitied to service credit for annual leave accmal 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 entitied to benefits under 5 u.s.e. §§ 6301-6312. B-53989, 

December 10, 1945. 

h. Employees of Radio Free Europe 

Although section 2313 ofthe Foreign Service Act of 1980 amended 5 u.s.e. 

§ 8332 to allow civil service retirement credit for employment wdth Radio 

Free Europe (thus affecting leave accmal categories), this law does not 

entitle an employee of Radio Free Europe to leave benefits under 5 u.s.e. 

§§ 6301-6312. 61 Comp. Gen. 279 (1982). 

Page 1-7 GAO/OGC-96-6 CPLM—Leave 
Chapter 1 

General Provisions 

i. Executive Officer ofthe D.C. Courts 

The Executive Officer of the District of Columbia (D.C.) Courts is entitied 

to the leave benefits of the D.C. judges as weU as the compensation and 

retirement benefits which are specificaUy provided by statute. Since the 

Executive Officer ofthe D.C. Courts is no longer subject to the Annual and 

Sick Leave Act, 5 u.s.e. §§ 6301-6312, the leave entitiement ofthe Executive 

Officer is subject to adininistrative determination by the District of 

Columbia Courts. Due to legislative changes, 52 Comp. Gen. Ill 

(1972) WdU no longer be foUowed. Larry P. Polansky, B-217270, October 28, 

1985. 

j . Armed forces members detaUed under Foreign Assistance Act 

Members ofthe armed forces assigned to perform functions outside the 

United States under the Foreign Assistance Act of 1961, 22 u.s.e. § 2385(d), 

which authorized compensation, aUowances, and benefits to assigned 

personnel at the rates provided for the Foreign Service Reserve and staff 

by the Foreign Service Act of 1946, as amended, 22 u.s.e. §§ 3901, 3962, and 

3963, are paid in accordance wdth section 625(d)(1) ofthe 1961 Act, 22 

u.s.e. § 2385(d)(1). Therefore, although commissioned personnel ofthe 

United States Coast Guard assigned to programs under the Foreign 

Assistance Act may only receive the compensation, aUowances, and 

benefits prescribed for the Foreign Service Reserve and staff, 42 Comp. 

Gen. 296 (1962), since they continue their status in the active service ofthe 

armed forces during their assignment, they contUiue to be entitied to their 

leave benefits as armed forces members. 43 Comp. Gen. 119 (1963). 

Page 1-8 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

A. Laws and Regulations The laws and regulations goveming annual leave are contained in 5 u.s.e. 

§§ 6301-6312 and 5 e.F.R. Part 630. 

1. Definitions 

a. Accrued leave 

The leave eamed by an employee during the current leave year that is 

unused at any given time in that year. 5 e.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 e.F.R. § 630.201(b)(2). 

c. Leave year 

The period begmning wdth 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 foUowdng calendar year. 5 e.F.R. 

§ 630.201(b)(6). 

d. Days of leave 

The days on which the employee would otherwdse work and receive pay 

and do not include hoUdays and nonworkdays estabUshed by federal 

statute, executive order, or adininistrative order. 5 u.s.c. § 6302(a). 

e. Full biweekly pay period 

For the purposes of the statutes goveming leave, an employee is deemed 

employed for a full biweekly pay period if he is employed during the days 

wdthin that period, exclusive of hoUdays and nonworkdays estabUshed by 

federal statute, executive order, or administrative order, which faU wdthin 

his basic administrative workweek. 5 u.s.e. § 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 

Page 2-1 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

the rate regularly fixed for active service during a regular tour in the 

position. 27 Comp. Gen. 92 (1947). 

B. Accrua l l. Rate of accmal 

a. FuU-time employees 

Under 5 use. § 6303(a) annual leave accrues at the followdng rates: 

• employees wdth 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 fuU biweekly pay period 

in the year which shaU be 1-1/4 days (10 hours), or 20 days per year; 

• employees wdth 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 e.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 wdth an estabUshed biweekly work requirement, accmes 

annual leave at the foUowdng rates: 

• employees with less than 3 years of service—1 hour for each 20 hours in a 

pay status; 

• employees wdth 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 eam 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. 

Page 2-2 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

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 e.F.R. § 630.203. 

c. Nonpay status during pay period 

When an employee's service is intermpted by a non-Ieave-eaming 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 iruuiy was in a leave-wdthoutpay status whUe receiving compensation under the Federal Employees' 

Compensation Act, 5 u.s.e. §§ 8101-8151. WhUe the employee's intermittent 

service is intermpted by a non-Ieave-eaming 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 accmal rate 

Any change in the rate of annual leave accmal shaU take effect at the 

beginning ofthe next pay period (or conesponding 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.e. § 6303(c). 

3. During suspension or separation 

a. Suspension for security reasons 

An employee who is suspended for security reasons under 5 use. § 7532, 

but who is later reinstated, is entitled to accme annual leave for the period 

of suspension, subject to the maximum accmal Umitation. 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 civiUan job 

is entitled to accmal of leave for the intervening period. B-127901, 

August 1,1956. 

Page 2-3 GAO/OGC-96-6 CPLM—Leave 
Ch<4>ter 2 

Annual Leave 

c. Wtule receiving disabiUty compensation 

An employee who is receiving disabiUty compensation for a work-related 

illness or iiyury does not accme 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 PoUce during u:\iuiy-related absence 

When a Park PoUce officer is absent firom duty due to ii\jury or iUness 

resulting fi-om 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 accme sick and annual leave. B-182608, Febmary 19, 

1976. 

e. Violation of Equal Employment Opportunity Act of 1972 

A U.S. district court found that an employee had been removed firom his 

position wdth the Defense Mi^ping Agency (DMA) in violation ofthe Equal 

Employment Opportunity Act of 1972 and ordered the DMA to reinstate the 

employee Avith backpay. As a part of that award the employee is entitied to 

restoration of the annual leave and the sick leave he would have eamed 

during the period of his discriminatory separation as an element of 

backpay. Francis J. Pmkney m, B-213604, May 15,1984. 

f Forfeiture of leave 

Federal employees are generaUy eUgible to carry over no more than 240 

hours of unused annual leave firom 1 year to the next An employee who 

has been suspended from duty wdthout 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 GeneraUy 

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 

fuU biweekly pay period (or conesponding period for an employee not 

Page 2-4 GA0/06C-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

# 

paid biweekly) occurring in a year. Any excess accmed annual leave wiU 

be forfeited at that time. See 31 Comp. Gen. 581 (1952). See also this 

chapter, "G. Restoration of Leave." 

b. Employees stationed outside ofthe United States 

Employees stationed outside ofthe United States who meet the conditions 

for eUgibUity estabUshed 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 locaUy 

An employee, who entered service in the Canal Zone and was given a 

transportation zigreement on the basis of his travel to the Zone as a 

dependent of an employee wdth a transportation z^eement, is not entitied 

to accumulate 45 days annual leave and home leave since he did not meet 

the requirement of 5 u.s.e. § 6304(b) that he be recruited from the United 

States or a territory or possession ofthe United States outside the Zone. 

However, he is entitied to such benefits upon transfer to Mexico since the 

Zone is considered wdthin 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 ofthe 

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 foUowdng 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 Umited to 30-day leave ceiUng suice he "used" his annual 

leave when he received lump-sum payment for annual leave upon 

separation. 59 Comp. Gen. 352 (1980). 

Page 2-6 GAO/OGC-96-6 CPLM—Leave 
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Annual Leave 

f. Adjustment foUowdng retum firom overseas post 

An employee's annual leave ceiling was not ac^justed on his Statement of 

Eamings and Leave when it was reduced after he returned to the United 

States firom an overseas duty post. Absent an agency regulation requiring 

annual leave ceilings to be included on eamings statements or requiring 

£uinual leave ceiUngs to be adjusted immediately upon departure fi-om an 

overseas post, the faUure to show the conect annual leave ceiling does not 

constitute administrative enor providing a basis for restoration of leave 

under 5 u.s.e. § 6304(d)(1)(A). B-200855, March 26,1981. 

g. Senior Executive Service 

Under the provisions of the CivU Service Reform Act of 1978, Pub. L. No. 

95-454,92 Stat 1224, annual leave accmed by an individual whUe serving 

in a position in the Senior Executive Service shaU not be subject to the 

liinitation on maximum accumulation contained in 5 u.s.e. § 6304(a). See 

5 u.s.e. § 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 fuU-time employees. 5 e.F.R § 630.304. 

C. Creditable Services i. GeneraUy 

In detennining years of service, aU service of a type that would be 

creditable under section 8332, regardless of whether £m 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 entitied to credit for the active miUtary service only under 

certain conditions. 5 us.e. § 6303(a). 

Office of Personnel Man£^ement's interpretation in former Federal 

Persormel Manual Supplement 296 ^ ofthe language in 5 use. 

§ 6303(a)(3)(B) (1988) which gives credit for prior miUtary service in 

computing an employee's entitiement to annual leave is not unreasonable 

in distinguishing between service "during" a war and service "in" a 

campaign or expedition. Although OPM'S defmition is different than that in 

38 use. § 101 (1988), which concerns veteran's benefits, GPM has the 

statutory authority to administer the leave system and its determination 

Page 2-6 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

wdU not be disturbed by GAO. Kenneth J. Emanuel, Esq., B-251775, April 29, 

1993. 

2. PotentiaUy creditable service 

Service which is potentiaUy creditable for retirement purposes such as 

(1) service for which retirement deductions were wdthdrawn and not 

repaid, (2) service not under the retirement act, (3) service where the 

employee is receiving an annuity under another retirement system, 

(4) miUtary service on the basis of which an employee is receiving retired 

pay, and (5) miUtary service which was not an intermption of civiUan 

service and where the employee does not have 5 years of civiUan service, 

is creditable for setting leave earning rates. 31 Comp. Gen. 215 (1951). 

3. MiUtcuy retiree 

MiUtary retiree who claims credit for aU of his active miUtary service 

during the Vietnam confUct for the purpose of annual leave accmal as a 

civiUan employee is only entitied to service credit in accord with the 

Office of Personnel Management's interpretation of the leave statute. That 

interpretation aUows credit for annual leave accrual purposes only for that 

active miUtary service perfonned during a war or in the area of a campaign 

or expedition for which a campaign badge has been authorized. Since the 

Vietnam confUct is not a war for this puipose, only the retiree's active 

service spent in the area ofthe Vietnam campaign or expedition is 

creditable service. David T. Simrak, B-213727.2, June 2,1987. 

D. Noncreditable Services i. Leave-wdthout-pay status 

An employee in leave-wdthout-pay status, performing active duty for 

training, may not be credited wdth annual leave that would have accrued 

firom that period of miUtary 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 use. § 8332 was amended effective February 15,1981, to aUow civU 

service retirement credit for employment wdth Radio Free Europe. Thus, 

an employee's leave accmal category would be adjusted on the effective 

Page 2-7 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

date of the act to credit service wdth Radio Free Europe. 61 Comp. 

Gen. 279 (1982). 

3. Service governed by other than 5 use. § 8332 

AU service creditable under 5 u.s.e. § 8332 for annuity purposes under the 

act, even though not regarded as miUtary or govemment service, may be 

used in determining years of service for leave accmal purposes unless 

excluded under other provisions of law. Therefore, the service specified in 

5 u.s.e. § 8332(b)(1) through (8) is creditable, but employment not 

otherwdse creditable for leave accmal purposes is not made creditable 

solely because it may be creditable for retirement purposes. 51 Comp. 

Gen. 301 (1971). In the same manner, service wdth Howard University, 

which is not creditable service under 5 u.s.c. § 8332, is not federal civiUan 

service for leave accmzd purposes. 50 Comp. Gen. 820 (1971). 

4. Employee on temporary disabiUty retired list 

A service member who received an appointment as a civiUan employee 

during the time his name was on the Temporary DisabiUty Retired List 

(TDRL) is considered a "retured member of a uniformed service" under 

5 use. § 6303(a) and is, therefore, not entitied to credit for annual leave 

purposes for his active mUitary service since his disabUity does not meet 

the criteria of 5 u.s.e. § 6303(a)(A)(i) or (u) nor does his service time 

quaUfy under 5 u.s.e. § 6303(a)(B) or (C). Such service may be credited 

only if his name is removed firom the TDRL by virtue of his separation with 

severance pay. In that event his service may be credited as ofthe date his 

name is removed from the TDRL. Daniel F. Cejka, 63 Comp. Gen. 210 (1984) 

5. Upon reemployment—^nulitary service credit 

Service in the PhiUppUie Commonwealth Army is not active miUtary 

service that is creditable for the purpose of determining an employee's 

annual leave accmal rate. Lucio R. GaUardo, B-226020, October 23,1987. 

Page 2-8 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

E. Transfers and 

Reemployment 

1. Transfers 

a. Between positions under 5 u.s.e. §§ 6301-6312 

An employee who transfers between positions covered by 5 use. 

§§ 6301-6312, wdthout a break ui service, shaU 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 wdth a temporary commission 

and who resumed duties in the pennanent position wdthout a break in 

service, may have the annual leave he accmed in the temporary position 

transfened 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 ofthe foUowdng year. His accumulated 

and accmed leave should be transfened to his new position. 55 Comp. 

Gen. 784 (1976); and B-106065, October 24,1951. 

d. Between different leave systeins 

Under 5 u.s.e. § 6308 an employee who transfers between positions under 

different leave systeins wdthout a break in service shaU have his leave 

credited to his new position on an ac^usted basis as set forth under esc 

regulations. See 5 e.F.R. § 630.501(b). An employee may transfer aU 

accumulated and cunently accmed annual leave to his credit as ofthe 

date of transfer, and the aggregate amount of such leave, but not in excess 

ofthe maximum liinitation allowable under the former leave system, shaU 

constitute his new leave ceiling untU reduced under 5 u.s.e. § 6304(c). 

48 Comp. Gen. 212 (1968). See also 49 Comp. Gen. 189 (1969). 

e. To position not under 5 u.s.e. §§ 6301-6312 

Employees who resigned from federal employment and accepted 

employment wdth 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 sUice by statute 

Page 2-9 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

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 GeneraUy 

For employees who have received a lump-sum payment upon separation 

and are reemployed before the end ofthe period covered by the lump-sum 

payment in the federal service, see 5 u.s.e. § 6306. See also, Ch£q)ter 3, 

"Lump-Sum Leave Payments." 

b. After mUitary service 

An employee who leaves his civiUan position to enter the miUtary service 

and elects under 5 u.s.e. § 5552 to have his leave remain to his credit shaU 

have his leave restored in accordance wdth his right of restoration to his 

civiUan position or upon reemployment in a position covered under 5 u.s.e. 

§§ 6301-6312, not more than 3 years after separation from active miUtary 

duty. 5 e.F.R. § 630.504. 

An employee who retired after 20 years of miUtary service and was 

employed in a federal civiUan agency in 1976 is not entitied to a recredit of 

the leave he aUeges was avaUable at the time he left his former civiUan 

employment and entered miUtary service in 1955. In the absence of official 

records or conoborating evidence, the employee's estimate alone is 

Uisufficient to certify a prior leave balance upon reemployment in a 

civUian position. John H. Adams, B-209769, March 28,1983. 

E Administration of 1. GeneraUy 

Annual Leave 

Annual leave is provided and used for two general purposes: (1) to aUow 

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 famUy, reUgious 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 

concemed may prescribe. Thus, whUe the taking of annual leave is an 

absolute right of the employee, it is subject to the right of the head of the 

Page 2-10 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

agency concemed 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 enor 

as to his service computation date. Where the overcredit of annual leave 

has occuned in the year in which the enor was discovered, since an 

employee may be advanced annual leave for his use during the year so 

long as the enoneous leave already credited him has not caused his leave 

accmal to exceed his maximum entitiement for the year, the overcredit 

may remain to his credit and be adjusted from proper leave eamings 

during the balance ofthe year. Stephen C. SmaU, B-250228, Febmary 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 estabUshes 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 wdthout 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 ofthe leave period charged. 5 e.F.R § 630.206. 

b. Charges to current, not subsequent, years 

Annual leave taken during a calendar year must be charged to leave which 

accmes 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. MiUtary duty 

Where employees performed miUtary service for 5-day periods and not on 

weekends, they need not be charged miUtary leave or annual leave for the 

weekend periods. B-171947, September 7,1972; and B-149951, 

November 23, 1962. 

Page 2-11 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

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 wdthin their regular tours of duty should be charged leave for 

those absences since their duty on hoUdays 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 hoUdays wdthout a charge 

to leave where it has been administratively determined that their services 

are not required on a particular hoUday. 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 

AprU 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.e. 

§ 5545(c)(1) was excused from performing regular duties at office on 

hoUday but was required to remain at residence at standby status. Since he 

was not reUeved from duty, he should not be charged annual leave in 

standby status. B-193709, November 28,1979, citing 58 Comp. Gen. 345 

(1979). 

e. HoUday "in Ueu of 

The Department of the Army closed the commissary on Saturday before a 

Monday hoUday to avoid the payment of hoUday pay to fuU-tune 

employees on a Tuesday-through-Saturday shift who were entitied to a day 

"in lieu of a hohday, under 5 use. § 6103(b)(2). Since part-time or 

intermittent employees were not entitled to a day "in Ueu of a holiday, 

they may be charged annual leave or leave wdthout pay on the Saturday the 

commissary was closed. B-192104, September 1,1978. 

f. Snow emergency 

Although administrative employees of FAA'S Indianapohs faciUfy were 

excused from reporting to dufy during snowstorm emergency of 

January 26,1978, operational component remained open, staffed by air 

traffic control personnel who stayed on dufy. Since the faciUfy was not 

closed, the 26th was not a nonworkday for purposes of leave 

administration, and an air traffic controller absent on approved leave for 

Page 2-12 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

that day was properly charged annual leave even though some air traffic 

controUers scheduled for dufy during the day shift were excused wdthout 

charge to leave. B-194432, October 16,1980. 

g. Foreign hoUday 

Air Force employees on temporary dufy in Saudi Arabia were denied 

access to work areeis for 15-day period because of local Ramadan hoUday. 

Although the employees traveled elsewhere during this period, they are 

entitied to administrative leave wdth 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 miUtary leave sought to use annual 

leave when he was prevented from working overtime on a nonworkday 

due to a weekend miUtary driU. Annual leave may be used for miUtary 

training, but there is no authorify to grant annual leave for a nonworkday 

sUice, under 5 u.s.c. § 6302(a), days of leave for which an employee may 

receive compensation are exclusive of hoUdays 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 

dayUght saving time begins, may be charged 1 hour of annual leave smce 

they work only 7 hours that shift Administrative leave may not be granted. 

B-195779, April 25,1978. See also Ch£q)ter 5 ofthis titie, "A Admmistrative 

Leave." 

j . Agency-required physical exam 

Where it is an agency poUcy to grant compensatory time to employees who 

are required to take a physical examination on a nonworkday, the agency 

may not otherwdse 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 enoneously granted excess compensatory time 

off, the excess compensatory time may be considered for waiver under 

Page 2-13 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

5 u.s.c. § 5584. If waiver is not aUowed, the employee's annual leave 

balance may be charged for compensatory time enoneously granted, but 

only wdth the employee's consent. 58 Comp. Gen. 571 (1979); and 

B-192839, May 3,1979. See 59 Comp. Gen. 253 (1980), modifymg 58 Comp. 

Gen. 571 (1979). 

1. Enoneous 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. Ii\jury in performance of dufy 

U.S. Park PoUceman iryured in the performance of dufy and assigned to 

light dufy for 4 hours a day continues in a pay status for and accmes leave 

based on a fuU 8-hour workday under 5 u.s.e. § 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 iryury which 

occuned m the performance of duty. U.S. Park PoUce, 66 Comp. Gen. 353 

(1987). 

n. Relocation of housing after transfer 

A transfened employee who was offered govemment housing for 1 year as 

an accommodation m a high cost resort area may not be paid the expenses 

incuned in later moving his household goods locaUy to a private 

residence. Such moving expenses may be paid by the agency only where 

the employee is required to occupy govemment 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. Retum to duty requirement 

Where it is knowTi at the time advanced leave is requested that the 

employee wdll not be retuming to duty, advanced annual leave or sick 

Page 2-14 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

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 possibiUfy that he would retum to dufy, advanced 

annual leave may not be granted. 48 Comp. Gen. 676 (1969). 

Where an agency has a policy not to grant leave untU it is eamed, an 

employee on leave need not retum 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 uneamed leave 

An employee who is indebted for uneamed 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 miUtary service wdth a right of restoration is 

deemed not separated for the purposes of this provision. Refund is not 

required when an employee dies, retires for disabUify, or resigns or is 

separated because of disabiUty 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 eamed leave if the employee is later reemployed. 29 Comp. 

Gen. 234, supra. 

4. Substitution of annual leave 

a. For sick leave 

(1) GeneraUy—^An absence which is otherwdse 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, AprU 20, 1960. 

(2) Hospitalization during period of removal—Where an employee was 

reinstated into federal service after an unproper removal, the period the 

employee was in the hospital during his separation may be charged to 

annual leave at the discretion ofthe agency. B-183566, AprU 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 

Page 2-15 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

(1968). An exception to this poUcy exists for the Uquidation of advanced 

sick leave. See 37 Comp. Gen. 439 (1967). 

(4) To avoid forfeiture of annual leave—GeneraUy, 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 (1968); 31 Comp. Gen. 524 (1962); and B-183666, 

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 mformed and able to, he would have chosen to e^ply the 

forfeited annual leave to a period of the illness in a timely manner. Also, 

the length of the illness foreclosed any possibiUfy of using annual leave for 

vacations, etc. B-176093, July 10,1972. See also B-178683, June 14,1973. 

See also this chapter, "G. Restoration of Leave." 

An employee, who became iU 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 

retum to dufy, the annual leave may be substituted for an equivalent 

amount of sick leave. B-192039, January 31,1979. 

(5) Adimnistrative enor—^An employee who utiUzed advanced sick leave 

whUe filing for a disabiUty retirement and who later substituted annual 

leave for the advanced sick leave may have the charge to annual leave 

recredited since she was enoneously advised that she would have to repay 

her advanced sick leave. There is no requirement to repay such leave if a 

disabiUfy retirement is granted. B-176144, March 16,1972. 

b. For leave wdthout pay 

(1) Mistake of law or fact—Where an employee was separated due to a 

reduction m force on August 31 and the employee's eUgibUify for 

within-grade mcrease had been delayed until September 2 due to excess of 

use of leave wdthout pay, the employee may not substitute annual leave for 

Page 2-16 GAOA>GC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

leave wdthout pay. GeneraUy, 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 wdthin the Umits of proper 

administrative discretion to change the status of an employee from leave 

wdthout pay to annual leave for the purpose of placing the employee in pay 

status 1 day prior to entry on miUtary training dufy. 37 Comp. Gen. 608 

(1958). 

(3) DisabUify compensation—Employee was iryured on the job and 

subsequently received disabiUfy compensation. He may not substitute 

accrued leave for LWOP unless he refunds that portion of his disabiUfy 

compensation payments covered by that leave. B-117594, Januaiy 15,1954. 

(4) To avoid forfeiture of annual leave—Where an employee is granted 

leave wdthout pay (LWOP) but then forfeits excess annual leave at the end 

ofthe 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 wdth 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, Febmary 2,1953. See also 

B-197771, August 11,1981. 

(6) FoUowdng separation—An employee, who submitted a memorandum 

requesting emergency leave or resignation, conimitted 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 wdthout pay untU death. The separation date may not be changed 

in the absence of violation of regulation or administrative enor faUuig to 

effect Uitent ofthe parties. B-189895, November 2, 1977. 

(7) Temporary employee—^An employee who received advance credit of 

annual leave as a temporary employee used aU that leave and was placed 

in a leave-wdthout-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 

Page 2-17 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

requested it be retroactively substituted for part ofthe 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 entitiement 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 

avaUable 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 wdthout 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. Tenninal leave 

(1) Administrative discretion—The administrative authorify to grant 

terminal, annual, or vacation leave immediately prior to separation from 

federal service, when the separation is known in advance, is Umited to 

cases where the exigencies ofthe service require such action since the 

Eigency's discretion is not unlimited. 34 Comp. Gen. 61 (1954); 24 Comp. 

Gen. 511 (1945). Furthermore, the faUure of an agency to grant leave under 

such circumstances is not constmed as administrative enor under 5 u.s.e. 

§ 6304(d)(1). B-182608, Febmary 27, 1975. However, tf the employee's 

separation was not in conformance wdth estabUshed agency poUcy or 

regulations or with the intent of the parties especiaUy regarding 

counseUng of the employee and pennitting the use of leave, the employee 

may be restored to the roUs 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 disabiUty retirement 

appUcation was approved, should be aUowed 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 accmed 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 

substantiaUy worked the entire final pay period and worked part of the 

last day of that period. The employee could properly accme and use the 

leave during the last day of employment B-190374, January 20, 1978. See 

also Emmitt Sheridan, B-223876, June 12,1987. 

Page 2-18 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

d. Traveltime 

(1) To and from overseas posts 

(a) GeneraUy—Under 5 u.s.c. § 6303(d) an employee, (1) who is authorized 

to accumulate up to 45 days of aimual leave (see 5 u.s.e. § 6304(b)), 

(2) whose post of dufy is outside the United States, and (3) who is 

retuming 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 aU time actuaUy and necessarily occupied in going to or 

from a post of duty and tune necessarily occupied awaiting transportation. 

This authorify is limited to one period of leave in a prescribed tour of dufy 

at a 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.e. 

§ 6303(d) is not avaUable for travel between HawaU or Alaska and the 

continental United States since they are not outside the "United States" as 

defmed by 5 u.s.e. § 6301(1). B-171947.62, November 27,1974; and 

55 Comp. Gen. 1035 (1976). 

(c) Employee hired overseas—Overseas employees recruited locaUy whUe 

temporarily outside the United States may be eUgible 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 tiiat required for official fravel 

alone. Thus, where an employee retuming from temporary dufy intermpts 

his trip for personal reasons over a weekend, it is wdthin the discretion of 

the agency to charge the employee annual leave for the completion of his 

retum 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. 

Page 2-19 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

(a) Examples—Use of POV instead of common carrier 56 Comp. Gen. 866 

(1977); and B-187315, May 5,1977. See also Chz^ter 6 of this titie, "A 

Adminisfrative Leave." 

Indirect route to new dufy station: B-192199, January 31,1979; and 

B-189808, April 28,1978. 

Delay or intermption for personal reasons: B-185652, December 28,1976; 

and B-188012, May 10,1977. 

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

Uses annual leave prior to temporary dufy assignment which is canceled: 

must charge hours representing vacation—B-191588, January 2,1979; 

discretionary on charging annual leave for retum fravel to 

headquarters—B-191588, January 2,1979; and B-122739, Febmary 10,1977. 

Reviews work at home wdth agency approval prior to departure: B-193820, 

January 9,1980. 

Discretion to charge annual leave for excess traveltime permits agency to 

require employee to submit accurate time and attendance reports for each 

day fraveled: 56 Comp. Gen. 104 (1976). 

(b) Limitations on discretion—^Although matters of charging leave to an 

employee for fraveltime are primarUy matters for the adiruiustrative office, 

our Office wiU m an £q}propriate situation disapprove the granting of 

excess time off without a charge to leave, as weU as an unwarranted 

charge of annual leave. Thus, an employee who was authorized travel by 

privately owned vehicle but whose fraveltime was determined on the basis 

of fravel by commercial carrier was enoneously 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 

11:46 am. the foUowing day. It was not proper for the agency to charge him 

4 hours annual leave for not reporting to the office Friday aftemoon since, 

being entitied to a normal period of rest, he could have remained overnight 

in Califomia and retumed to his official dufy station during normal 

workmg hours on Friday. B-181363, August 23,1974. 

GAG 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. 

Page 2-20 GAO/OGC-96-6 CPUA—Leave 
Chapter 2 

Annual Leave 

Employees who were scheduled to attend a meeting to begUi on Tuesday 

were authorized to fravel 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 fravel basis they would have traveled on Monday. B-180021, 

September 6,1978. 

An employee on temporary dufy was delayed when his automobUe 

suffered a mechanical breakdown. Smce use of his automobUe was 

advantageous to the govemment and since the employee's actions were 

reasonable and in accordance with the agency instmctions, the employee 

should not be charged annual leave in connection with the excess 

fraveltime. B-186829, Januaiy 27,1977. 

(c) Involuntaiy leave—Where an employee is voluntarily absent from his 

official dufy station, it is proper for the agency to charge him annual leave. 

B-166469, September 25,1969; and 61 Comp. Gen. 568 (1982). An agency 

that bused employees during normal working hours to its new offices prior 

to relocation may charge an employee aimual leave where she refused to 

be bused and, thus, refused to report for dufy. B-186096, April 26,1976. See 

also Chapter 5 ofthis titie "F. Leave Without Pay." 

Annual leave should be charged for time spent by new appointees on 

enoneously authorized house-hunting trips. 58 Comp. Gen. 744 (1979). See 

also "G. Restoration of Leave" ui 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 6 u.se. § 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 enor is relevant only when waiver of overpayment is 

considered under 5 u.s.e. § 6684. B-187692, October 13,1977. 

An employee may elect to refund excess annual leave by use of 

compensatoiy time avaUable for use at the time the excess annual leave 

was taken. 69 Comp. Gen. 263 (1980), distinguishmg 46 Comp. Gen. 243 

(1966). 

(e) Flexible work schedule—^An employee working a flexible schedule in 

accordance wdth 6 u.s.c. § 6122(a) elected the first day ofthe pay period as 

Page 2-21 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

a "flex day." When the agency was closed for that entire day because of 

weather conditions, she claimed entitiement to an additional day off in Ueu 

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 confrast 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 entitiement to an 

additional day off The situation is not analogous to a hoUday where 

employees are hi a pay status. Ann Knodle, B-217080, June 3, 1985. 

G. Restoration of Leave i. GeneraUy 

Leave forfeited by operation of 5 use. § 6304(a) or (b) (30-day or 45-day or 

personal ceiling limitation on accumulated leave) may be restored under 

5 use. § 6304(d), ifthe forfeited leave resulted from (1) an administrative 

enor, (2) the exigencies of pubUc 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 fraining at Industrial 

CoUege of the Armed Forces for remainder of the year. Since the Industrial 

CoUege has a restrictive leave poUcy for its students, it could grant him 

only 40 hours leave during school year and before ac£idemic recess period 

from December 18, 1992, to January 1, 1993, leaving employee wdth 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 pubUc business or sickness 

of the employee must have been scheduled in writing in advance to be 

considered for restoration. See 5 use. § 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 

Page 2-22 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

Cfrcumstances may exist 56 Comp. Gen. 470 (1977); and B-193567, May 24, 

1979. This requfrement may not be waived even for extenuating 

cfrcumstances 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 appUes to employees who are performing undercover 

assignments. B-191540, December 8,1978. See also WilUam K Knotts, 

B-248232, September 22, 1992. 

b. FaUure to give actual notice 

The leave must be scheduled in writing. B-187104, September 28, 1978. 

Furthermore, the leave must be scheduled before the thfrd pay period 

prior to the end ofthe leave year, and scheduUng the leave on the ffrst day 

ofthe thfrd pay period is not sufficient B-194459, August 22, 1979. 

Some employees ofthe 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 authorify 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. FaUure to counsel 

An exception to the general rule on scheduUng requfrements exists where 

the agency has implemented a written regulation which requfres that the 

employees be counseled conceming a possible forfeiture of annual leave. 

If the £^ency violated such a regulation, the forfeited leave may be 

restored under 5use. § 6304(d)(1)(A). 65 Comp. Gen. 784 (1976). A 

general statement of supervisory responsibiUfy wdU not be sufficient 

B-192510, April 6,1979. Where a request for leave is submitted but not 

^proved, see "Adminisfrative enor," below. 

d. Early retirement 

An agency enoneously advised two employees who had qualified for early 

retirement benefits that they were subject to mandatoiy age retirement. In 

anticipation of thefr separation, the employees £^pUed for voluntary 

retirement at the end ofthe 1985 leave year and did not schedule or use 

Page 2-23 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

annual leave exceeding thefr personal leave ceilings. By the time the 

agency discovered its enor and the employees withdrew thefr retirement 

j^pUcations, they had Uisufficient time to schedule and use much of thefr 

excess annual leave and they forfeited that leave. The forfeited annual 

leave may be restored to the employees under 6 u.s.c. § 6304(d)(1)(A), 

because the record shows that the forfeiture resulted from an 

administrative enor. 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 expfration 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-246117, January 21, 

1992. Affirmed B-246117.2, June 19,1992. 

3. Administrative enor 

a GeneraUy 

Under 6 use. § 6304(d)(1)(A), aimual leave lost through forfeiture under 

section 6304 shaU be restored to the employee if lost because of 

"administrative enor when the enor causes a loss of annual leave 

otherwdse accmable after June 30,1960." Ifthe employee is separated 

before the enor is discovered, the restored leave is subject to credit and 

Uquidation by lump-sum payment if a claim is fUed within 3 years 

unmediately foUowdng the date of discovery ofthe enor. 6 u.s.c. § 6304(e). 

The faUure to give actual notice of this scheduling requfrement to the 

employees is not an adininistrative enor since the employees are charged 

with actual or constmctive notice ofthe requfrement 66 Comp. Gen. 470 

(1977); B-193667, May 24,1979; and B-187104, March 8,1978. 

b. What constitutes an adminisfrative enor 

(1) FaUure 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 temporaiy appointment 

effective Januaiy 1,1976, did not receive a lump-sum payment for his 

accmed and accumulated leave but rather had his leave fransfened to his 

new position resulting in a forfeiture of 80 hours. The detennination as to 

Page 2-24 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

what constitutes adminisfrative enor is primarily for the employing 

agency. Therefore, if the agency concemed determines that it violated a 

mandatoiy poUcy or regulation requiring counseling employees to avoid 

forfeiture, then the leave may be restored under 5 use. § 6304(d)(1)(A). 

65 Comp. Gen. 784 (1976). 

In the absence of a mandatory poUcy, an employee's claim for restoration 

of forfeited aimual leave is denied since the agency's faUure to counsel 

him about possible forfeiture of annual leave does not constitute 

adminisfrative enor under 6 u.s.e. § 6304(d)(1)(A) (1982). Amos Knight, 

B-234528, October 6, 1989. 

(2) FaUure 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 

ofthe 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 ofthe agency's work load, at some other 

time. Where the employee demonsfrates that, but for an adminisfrative 

enor in faiUng to schedule the requested leave or presenting the case to 

the proper official for a detennination of a pubUc exigency, the leave was 

lost because of a pubUc exigency or sickness and was not lost due to the 

fault of the employee, then the employee is entitied to restoration of the 

leave under 5 u.s.e. § 6304(d)(1)(A). 58 Comp. Gen. 684 (1979); 67 Comp. 

Gen. 325 (1978); B-190263, July 5, 1978; and B-189085, April 13,1978. See 

also JackV. 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 wdU not be requfred 

to perform the needless task of approving and immediately canceling the 

leave. However, ifthe agency is unable, due to an exigency of pubUc 

business, to reschedule the requested leave during the cunent leave year, 

the faUure to submit the matter to the designated official for his 

detennination ofthe exigency constitutes an adminisfrative enor which 

would support restoration of the annual leave under 5 u.s.e. 

§ 6304(d)(1)(A). B-187104, September 28,1978; and B-187104, March 8, 

1978. See also George A Raub, B-212548, Januaiy 24,1984. 

Where the former Office Adminisfrator for an Independent Counsel faUed 

to accept requests for the scheduUng of annual leave and inconsistentiy 

handled excess annual leave in the employees' leave accounts, we 

conclude that leave in excess of the 240-hour ceiUng may be restored on 

Page 2-25 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

the basis of adininistrative enor under the provisions of 5 u.s.e. 

§ 6304(d)(1)(A). Office of Uidependent 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 use. 

§ 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 faUure to properly advise the employee 

constituted an unwjmranted personnel action and the annual and sick 

leave the employee would have eamed during this period may be 

refroactively restored. Anthony J. Calio, 66 Comp. Gen. 674 (1987). 

(4) FaUure to detennine exigency of pubUc business—The general rule 

conceming 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 pubUc business when the annu£il leave was 

scheduled m 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 m 5 C.F.R. § 630.305 (1980). However, we have held 

that it is immaterial if an appropriate agency official has not made a 

detennination as to an exigency since a faUure to present the case to a 

proper official for an exigency determination constitutes an administrative 

enor which would aUow restoration of annual leave. B-200027, August 24, 

1981. 

(5) Failure to follow mandatory regulation—Where an agency has 

promulgated wTitten regulations requiring counseUng to avoid forfeiture of 

annual leave, the faUure to counsel constitutes an adininistrative enor 

under 5 u.s.e. § 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 iiyury under the authorify of 5 use. 

§ 8118 and the agency, confrary to a mandatory regulation, refuses to 

continue his pay but requfres him to take leave to cover periods of his 

absence attributable to the iiyury, the annual leave subject to forfeiture 

may be restored as leave lost because of adminisfrative error. 58 Comp. 

Gen. 507 (1979). 

Page 2-26 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

An employee who was requfred 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 requfred supervisors 

to schedule annual leave to avoid forfeiture, the unusual cfrcumstances 

which resulted in the forfeiture of leave in this case do not provide a basis 

for restoration ofthe forfeited leave due to adminisfrative enor. B-186484, 

June 7,1977. 

An employee faUed to use 140 hours of restored annual leave wdthin the 

2-year period permitted by the Office of Personnel Management regulation 

at 5 CF.R. § 630.306 (1993), thus resulting in its forfeiture a second time. 

The agency's faUure to plan and schedule the employee's leave to avoid 

forfeiture, as requfred by the agency's nondiscretionary poUcy, constituted 

adminisfrative enor. The enor may be conected 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). Charles R. Cox, 73 Comp. Gen. 51 (1993). 

(6) Employee on extended illness—Where an employee suffers a 

prolonged iUness 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 scheduUng of annual leave in order to avoid forfeiture. 

B-193431, August 8, 1979; and B-182608, Febmary 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 occuned and the 

forfeited leave may be restored to the employee. B-187777, Febmaiy 27, 

1979, modifying B-187777, January 3, 1978. However, when the employee 

appUed for disabiUfy retirement and the agency placed him on leave 

wdthout pay on December 31, in order to preserve his entitiement to 

cost-of-Uving increases in his annuify pursuant to ese regulations, any 

leave forfeited after December 31, but before the end of the leave year, is 

not forfeited because of adminisfrative enor and may not be restored. 

B-187777, Febmary 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 iiyuiy, and 

received workers' compensation under the Federal Employees' 

Compensation Act (5 u.s.e. Chapter 81) during the period, forfeited 47 

hours of annual leave in the 1982 leave year. Employees only received 

annual notices waming them in general. The employee was not specificaUy 

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 

Page 2-27 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

been properly notified. The 47 hours of leave may be restored. Leonard J. 

MUewski, 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 entitied to 

restoration of the forfeited leave and additional lump-sum leave since the 

leave was not scheduled. This case does not faU wdthin our decisions 

which presume scheduling ofthe leave during an extended period of 

absence due to iUness. This employee's iUness 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 

theit 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 iU so that he was unable to take the annual leave as scheduled. He 

retumed to work from sick leave 10 workdays before the end ofthe leave 

year but did not request rescheduling of annual leave for that period, and, 

thus, forfeited 80 hours of leave. He is entitied 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 occuned late in the year 

and was for such duration that by the time he retumed to work his leave 

would not have been s^proved, even if he had formaUy requested it, 

because ofthe exigencies ofthe pubUc business. Walter Schmidt, 

B-223238, Febmary 27, 1987. 

(7) Enoneous lump-sum leave pasmnent—An employee resigned from 

position wdth USIA and was appointed the foUowing day to position wdth 

Afr Force. Lump-sum payment for annual leave was enoneous, and Afr 

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 Afr Force's faUure to recredit leave account until 

lump-sum amount had been repaid shaU be restored under 5 u.se. 

§ 6304(d)(1)(A). 59 Comp. Gen. 336 (1980). 

(8) FaUure to coUect lump-sum leave payment—In our decision B-200327, 

November 13,1980, we detennined that a lump-sum payment for unused 

annual leave which is conectiy and legaUy made to a federal employee 

upon his separation from govemment service may not later be considered 

an "enoneous" payment wdthin the meaning of the statute authorizing 

waiver of enoneous overpayments of compensation, even though the 

Page 2-28 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

employee concemed accepts another federal appointment without any 

awareness that he wdU then become legally obUgated to refund part of that 

lump-sum leave payment by accepting reemployment. Hence, coUection of 

the employee's resultmg debt may not be waived under 6 u.s.e. § 5584. 

Accordingly, ifthe hiring agency enoneously fails to coUect 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.e. § 6304(d). Compare 55 Comp. Gen. 784 (1976). 

(9) Enoneous leave ceUing—Due to adminisfrative enor, an employee 

was led to beUeve he was entitled to carry over 46 days of annual leave as 

opposed to 30 days. Employee carried over more than 30 days' leave in 

several years prior to his retfrement Pursuant to 5 u.s.c. § 6304(d)(1)(A) 

annual leave in excess ofthe 30 days may be restored and the employee 

may be paid for aU annual leave accmed 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 unwananted separation must have 

his excess annual leave credited to a separate leave account as provided 

under the Back Pay Act, 5 u.s.e. § 5596(b)(l)(B)(i), and the faUure to do so 

constitutes administrative enor under 5 u.s.e. § 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 Uquidated by 

lump-sum payment under 5 u.s.e. § 5661(a). He may not have such leave 

restored under 5 u.s.e. § 6304 as leave lost by administrative enor since 

restoration applies only to leave forfeited by operation of section 6304 

which limits annual leave carryover to new leave year. B-182608, 

Febmary 27,1975. However, an employee, who resigned November 10, 

1973, and forfeited annual leave prior to the amendment to 5 u.s.e. 

§ 5551(a), by PubUc Law 93-181, December 14,1973, may be restored to 

the roUs 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 poUcy to avoid forfeiture in such cfrcumstances. 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 hoUdays—Where an employee takes 

annual leave for the remainder of the leave year (13 days) but is charged 

Page 2-29 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

for only 11 days because two additional hoUdays were declared by 

executive order during that period, there is no authorify under 5 u.s.e. 

§ 6304 to restore the 6 hours of forfeited annual leave in excess ofthe 

statutory Umit of 240 hours for cany 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 ofthe 1981 leave year 

forfeited 4 hours of annual leave as a result of the President granting 

4 hours ofadministrative leave on December 24, 1981. The faUure ofthe 

employee's agency to counsel him of GAG'S holding in Joseph A. Seymour, 

B-182549, August 22, 1975, that there is no authorify to restore leave 

forfeited in this type of situation, does not constitute administrative enor 

since the agency did not have a regulation requiring that its employees be 

counseled conceming possible forfeiture. WilUam M. Gaultieri, B-207139, 

September 29, 1982. 

(13) FaUure to credit certain judges and law clerks—Magisfrate and 

bankruptcy judges and law clerks who are entitied to credit for annual and 

sick leave, which was initiaUy not credited to them due to an enoneous 

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 ceiUng of 240 hours. Granting thefr claim for annual 

leave credit beyond the statutory maximum would result in a windfaU to 

them and run counter to a judicial decision addressing comparable 

cfrcumstances. Leave Restoration for Judicial Branch Employees, 

B-230807.2, September 13,1991. 

c. What does not constitute adminisfrative enor 

(1) ScheduUng problems—^The faUure of an agency to advise an employee 

of the scheduUng requfrements of 5 use. § 6304(d)(1)(B) and (C) does not 

constitute an administrative enor since employees are charged wdth 

constmctive knowledge of those requfrements. 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 WTitten regulation requiring counseUng to avoid 

forfeiture, a general statement regarding a supervisor's responsibiUfy to 

insure that leave is scheduled is not sufficient. B-192510, AprU 6, 1979. 

Furthermore, the fact that the supervisor does not requfre leave requests 

to be in writing does not constitute adminisfrative enor 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. 

Page 2-30 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

(2) Enoneous advice or delays—Where an employee obtained an 

unofficial estimate of projected retfrement annuity but later postponed 

such retfrement due to an enor in the estimate, he may not have forfeited 

excess annual leave restored since the calculation of enor did not involve 

consideration of leave matters and, thus, leave was not forfeited due to 

admmisfrative enor. B-191041, June 2,1978. 

An employee, who did not use excess annual leave because of aUeged 

delays in processing his disabiUfy retirement appUcation, may not have 

forfeited leave restored in the absence of an agency regulation requiring 

counseUng on impending forfeiture of annual leave. B-187055, March 4, 

1977. 

Prior to end of leave year an employee was enoneously advised to use 

15 hours of annual leave to avoid forfeiture, and enor resulted in 

employee's leave ceiUng 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) Inconect leave and eamings statements—^Although employee's leave 

and eamings statement enoneously reflected lower leave balance, 

employee was on notice of enor and leave forfeited at end of leave year 

may not be restored under 5 use. § 6304(d)(1)(A). B-195562, June 6,1980. 

See also PriscUla Cooke, B-231759, January 4,1989. 

(4) FaUure to promptiy credit annual leave—^An employee who fransfened 

from the Social Security Adminisfration (SSA) to the Department of Labor 

was enoneously given a lump-sum leave payment He retumed the 

payment, but his leave balance from SSA was not credited to his account 

until 2 years later. Even though it was an enor not to have promptiy 

credited the annual leave upon his fransfer, since the employee had 

sufficient time to schedule and use the excess leave after it was credited, 

he may not be recredited wdth the leave which he forfeited at the end of 

the leave year. WaUie 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 wdthout 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.e. § 6304(d)(1)(A). B-194176, January 3, 

1980. " 

Page 2-31 GAO/OGC-96-6 CPLM—Leave 
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Annual Leave 

4. Exigencies of pubhc busmess 

a. GeneraUy 

Under 5 u.s.c. § 6304(d)(1)(B) annual leave lost through forfeiture under 

section 6304 shaU be restored to the employee if lost because of 

"exigencies of pubUc business when the annual leave was scheduled Ui 

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 hi 5 C.F.R. § 630.305. 

b. Leave scheduled in advance 

A second requfrement for restoration under this condition is that the 

annual leave was scheduled in advjmce in writing prior to the thfrd 

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 pubUc business may be 

restored, it must have been scheduled m 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 ofthe agency's work load, at 

some other time. In the case of an exigency of pubUc business, the matter 

must be submitted to the designated official for his official detennination. 

The agency's faUure to present the case to the proper official for 

detennination of an exigency of pubUc business constitutes adininistrative 

enor. 68 Comp. Gen. 684 (1979); B-187104, September 28,1978; and 

"3. Adminisfrative enor," 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 ofthe 

1979 leave year because he performed jury dufy. He is entitled to have 

such annual leave restored. Since 5 use. § 6322, prohibits loss of or 

reduction in annual leave where employee is summoned to perform jury 

Page 2-32 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

• 

sendee, it constitutes an exigency of the pubUc business under 6 u.s.e. 

§ 6304(d)(1)(B). 60 Comp. Gen. 598 (1981). 

d. What does not constitute an exigency of pubUc business 

Two IRS employees who were suspended in December 1978, due to bribery 

indictments, forfeited annual leave which could not be used during 

nondufy, nonpay status. Although leave was scheduled in advance and 

employees were later retumed to dufy, they did not forfeit leave because 

they were perfonning work. Leave may not be restored under exigencies 

of pubUc 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 

aUegedly due to an exigency ofthe pubUc business is not entitied to 

lump-sum payment for the forfeited hours since the ^propriate agency 

official did not make the requisite exigency detenninations. B-198177, 

March 31,1981. Moreover, although £^ency faUure to make proper 

exigency detennination may not in and of itself bar restoration of forfeited 

annual leave under 5 use. § 6304(d)(1), such leave may not be restored m 

the absence of evidence that it was timely requested and scheduled in 

writing and that its use was officiaUy denied. B-197704, October 7,1980. 

6. Sickness 

a GeneraUy 

Under 5 use. § 6304(d)(1)(C) annual leave lost through forfeiture under 

section 6304 shaU be restored to the employee if lost because of "sickness 

ofthe 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 

m writing before the start of the thfrd biweekly pay period prior to the end 

ofthe leave year. 

c. Employee on extended iUness 

A Park PoUce officer who was ii\jured in the performance of dufy and was 

thereafter absent from dufy for nearly 1 year wdthout charge to leave 

pursuant to 5 use. § 6324, forfeited 204 hours of annual leave. The 

Page 2-33 GAO/06C-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

forfeited leave may be restored to his account under 5 use. 

§ 6304(d)(1)(C) since, in cases of prolonged Ulness preceding the end ofa 

leave year, the employee may be presumed to have requested proper 

scheduUng of annual leave otherwdse subject to forfeiture. B-182608, 

Febmary 19,1976. See also Leonard J. MUewski, 63 Comp. Gen. 180 

(1984), and John C. Brady, B-214337, August 6, 1984, at "3. Administrative 

enor, b. What constitutes an adminisfrative enor, (6) Employee on 

extended iUness." 

An employee sustained a compensable on-the-job iryury resulting in a 

prolonged recuperation period which extended beyond the end of the 

leave yeair. The fact that he scheduled annual leave after the ii\jury, wdth 

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 obUgated to use the 

scheduled annual leave to avoid forfeiture. Bmce F. Scott, B-218728, 

December 10,1981. 

A prolonged Ulness preceding the end of the leave year raises a 

presumption that the employee would have requested proper scheduUng 

of annual leave otherwise subject to forfeiture. B-193431, August 8, 1979; 

and B-187777, Febmary 27, 1979, modUymg B-187777, January 3, 1978. 

An employee, whose disabUity retfrement appUcation 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 disabUity retirement. The forfeited leave 

may be restored under 5 use. § 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 

disabiUfy retfrement may not be restored under this provision. 58 Comp. 

Gen. 435 (1979). 

6. Use of restored leave 

a. Forfeiture 

An employee faUed to use restored forfeited leave wdthin the required 

2-year period and the leave again was forfeited. Although the employee 

alleges that the agency ened in advising him regarding the rules for using 

restored leave, the leave may not be restored again. The 2-year 

requfrement, which is contained in a regulation issued by OPM, has the 

Page 2-34 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

force and effect of law and may not be waived or modified by this Office. 

6 e.F.R § 630.306 (1991). Dr. James A. M^eski, 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 Avith 24 additional 

hours in 1972 and 26 additional hours in 1973. The leave which was 

credited in 1972 but forfeited wdthout an opportunify to be used, may be 

restored. However, leave which was eamed 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 enoneous 

advice conceming his restored leave and faUed to fix the date, as requfred 

by the regulations, for the running of the 2 years in which to use-or-lose his 

restored leave, no legal authorify exists for further restoration of leave 

once it is forfeited a second time. WUUam Corcoran, B-213380, August 20, 

1984. 

b. FaUure 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 subsequentiy forfeited 

may be restored to an employee's leave account 66 Comp. Gen. 1014 

(1977). 

7. Under Back Pay Act of 1966 

a GeneraUy 

An employee who loses leave as a result of an unwananted or uiyustified 

personnel action under the Back Pay Act of 1966, 6 u.s.e. § 5596, shaU be 

recredited wdth aU 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 Umitation on the amount of annual leave which 

may be restored, and any leave in excess ofthe maximum aUowable shaU 

be credited to a separate leave account 5 u.s.e. § 5696(b)(1)(B) (1994) and 

5 e.F.R §§ 630.505 and 550.805(g) (1995). 

An employee who was enoneously separated and later reinstated is 

entitied to credit for aimual leave eamed during the enoneous separation 

Page 2-35 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

under the authorify of 5 u.s.e. § 5596. Annual leave which is m excess of 

the employee's annual leave ceiling shaU 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 6 C.F.R. § 650.806(g) 

(1995). 

b. Enoneous hoUday 

The agency enoneously appUed Executive Order No. 11582, February 11, 

1971, and designated Tuesday, instead ofthe prior Saturday, as a hoUday 

"in Ueu of Washington's Bfrthday for employees wdth a 

Tuesday-through-Saturday workweek. To conect the enor, the agency 

paid hoUday pay for Saturday and charged employees annual leave for 

Tuesday. However, under these cfrcumstances tlus charge to leave 

constitutes an uiyustified or unwananted personnel action and the leave 

should be restored. B-127474, Febmary 9, 1979. 

c. Involuntary leave 

(1) DisabiUfy retfrement—^An employee was placed on involuntary leave 

pursuant to ese regulations pending action on an agency-filed £^pUcation 

for disabiUty retirement She is not entitied to restoration of leave under 

the Back Pay Act 5 use. § 5696, when the agency-filed appUcation was 

initiaUy denied since the detennination to place her on leave was based on 

competent medical findmgs. B-184522, April 21,1977, afSrmmg B-184622, 

March 16,1976. However, when the agency-filed s^pUcation was mitiaUy 

denied by the esc and the agency appealed determination, agency must 

either restore the employee to dufy, or take steps to remove her on 

disjibiUfy grounds. Agency's faUure to do so constituted an unwananted or 

uiyustified 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 improved leave 

Avithout pay pending a determination on his appUcation for disabiUfy 

retirement mcluding his unsuccessful £^peal ofthe denial of his 

appUcation. He may not have leave recredited under 6 u.s.c. § 5696 sinqe 

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 mvolvmg regular 

retirement rather than disabUify retirement see Ralph C. Harbm, B-201633, 

April 16,1983. 

Page 2-36 GAO/06C-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

Based upon medical evidence from an employee's personal physician and 

an examination by agency physician showdng that the employee could not 

perform the duties of her position, the agency placed the employee on 

involuntary leave and submitted an agency initiated disabiUfy retirement 

application. After initial rejection ofthe application, the agency appealed 

to OPM, which approved the retfrement appUcation. The employee then 

appealed to the Merit Systems Protection Board (MSPB), which ruled that 

the employee was not totaUy 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 ofthe application and the 

GPM granting of retfrement. Once the appUcation was granted it was 

appropriate for the employee to be retfred. MSPB'S finding that the 

employee was not totaUy 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 followdng fitness-for-duty 

examination and fUed for her disabiUty retfrement After disabUity 

retfrement was denied by Office of Personnel Management (GPM), 

employee claimed backpay for period of involuntary leave and leave 

wdthout pay. Claim is denied since GPM did not overturn medical evidence 

submitted by agency and agency action was based on competent medical 

evidence. Memphis Defense Depot, B-214631, August 24rl984. 

The Office of Personnel Management (GPM) 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 eUgible for disabiUfy retirement. The agency faUed to retum the 

employee to duty untU 4 months later. The employee is entitled to backpay 

and restoration of leave for the period of involuntary leave subsequent to 

OPM'S detemiination since the agency was requfred at that point to either 

retum the employee to dufy or initiate his separation on the grounds of 

disabUity. 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 preUminary diagnosis of tuberculosis 

made by the employee's personal physician, the agency placed the 

employee on involuntary leave whUe confirmatory tests were being made. 

The agency's decision was based upon competent medical evidence, and 

Page 2-37 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

leave may not be restored under the Back Pay Act even though the 

requfred tests were not conducted by the employee's freating physician 

and the state-operated laboratories wdthin a normal time period. B-181313, 

May 6,1977, afffrmmg B-181313, Febmary 7, 1975. See also B-192956, 

April 9, 1979. 

(3) Employee suspension—^An employee who was suspended from 

employment after her anest on criminal charges is not entitied to leave 

restoration after some ofthe criminal charges were dismissed since there 

was no finding that the suspension was an uiyustified 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 

iryury may "buy back" such leave pursuant to 20 C.F.R. § 10.310, be placed 

on leave wdthout pay, and accept compensation for the iiyury under the 

Federal Employees' Compensation Act 5 use. §§ 8101-8151. However, 

annual leave which is reinstated as a result of a "buy back" is subject to |^ ^ 

forfeiture under 5 u.s.e. § 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 requfred to refund a portion ofthe 

employee's compensation to the Department of Labor. B-180010.12, 

March 8, 1979; and B-182608, August 9, 1977. 

An employee who wdshes 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 detennined to be 

acceptable by the agency such as leave requests, leave and eamings 

st£itements, 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 

iiyury in order to receive workers' compensation payments, repurchased 

leave may be forfeited in reconstmcting leave account of prior years and 

such forfeited leave may not be restored due to adminisfrative enor. 

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' 

Page 2-38 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

compensation and bought back leave used. Upon reconstmction 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.e. § 6304(a) (Supp. 

in 1979), may not be restored under 5 u.s.e. § 6304(d) nor may restored 

leave recredited to a prior leave year and subject to forfeiture under 5 e.F.R 

§ 630.306 (1982) be restored further. However, since the employing agency 

faUed to apprise the employee ofthe consequences of buy back, the 

employee at his election may choose to be placed on annual leave for 1978 

to avoid any or aU forfeiture. The employee would then be entitied 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 wdth work-related iiyuries or iUnesses 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 Uquidate an indebtedness owed the agency 

since annual and sick leave may not be converted into a monetary 

equivalent in these cfrcumstances. See Donald R. Manning v. United 

States, 7 Cl. Ct 128, 133 (1984). 

H. Waiver of Overcredit of 

Annual Leave 

An employee's annual leave account was enoneously overcredited due to 

the agency's enor in calciUating 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 conect the adminisfrative enor, 

there was no overpayment of pay or aUowances which may be considered 

for waiver under 5 u.s.c. § 5584. Donna J. WUUams, B-230366, June 27,1988. 

Where an employee's annual leave account was overcredited, the 

employee may be granted waiver only to the extent reconstmction of his 

leave account results in a negative leave balance. The hours deducted in 

reconstructing his annual leave account may not be waived or otherwdse 

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. 

Page 2-39 GAO/OGC-96-6 CPLM—Leave 
Chapter 2 

Annual Leave 

An employee's annual leave account was overcredited due to agency enor 

as to his service computation date. Where the overcredit of annual leave 

has occurred during years prior to the year in which the enor was 

discovered, the employee's leave account is to be reconstmcted for each 

separate year involved to arrive at the proper cunent leave balance, and to 

detennine whether an enoneous payment of salary occuned 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. SmaU, B-250228, Febmaiy 22,1993. 

I. Voluntary Leave Transfer 

Program 

Under the Voluntary Leave Transfer Program, donated leave may not be 

fransfened to the recipient or used after the medical emergency 

terminates and any unused fransfened leave must be restored to the leave 

donors. Therefore, the refroactive substitution of a recipient's unused 

donated leave for the recipient's leave wdthout pay after the death ofthe 

recipient was improper, and the payment of compensation resulting from 

the refroactive substitution was enoneous. The enoneous 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 An employee performing temporary dufy m Guam celebrated the Fourth of 

July hoUday there. He commenced retum travel on the foUowing day and, 

after crossing the intemational dateline, he arrived at his official dufy 

station Ul Hawau on the Fourth of July. Smce the office was closed, he was 

unable to work. In accordance wdth 5 u.se. § 6103 (1982) and Executive 

Order No. 11,682, the employee's hoUday observance was m Guam. 

However, he should not be requfred to use annual leave in Hawau on the 

Fourth of July since it is expropriate for his agency to exercise its 

discretion and grant him an excused absence without loss of pay for the 

day. Crossmg the Intemational DateUne, B-229366, November 22,1988. 

Page 2-40 GAO/06C-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

A. Statutoiy and 

Regulatory Authorities 

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 entitied to 

receive a lump-sum payment for accumulated and cunent accrued annual 

leave to which he is entitied by statute. The payment shaU 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 puiposes only. 6 u.s.e. § 6551(a). 

An employee who enters active dufy in the armed forces may elect to have 

his leave remain to his credit until his retum from active dufy. 5 u.s.e. 

§ 5552. 

Goveming OPM regulations on lump-sum leave payments are contained in 

FPM Chapter 550, Subchapter 2 and FPM Supp. 990-2, Book 550, Subchapter 

2. 

^ -

Entitlement 1. Payable upon separation 

Employees who are separated from the service are entitied to a lump-sum 

pajmient for aU unused annual leave through the last fuU pay period before 

separation. The right to a lump-sum pajmtient vests on the date of 

separation. 33 Comp. Gen. 86 (1963). 

2. Payable upon fransfer or change of positions 

a Transfer to position not under leave system 

Where an employee fransfers to a position not covered by 5 u.s.c. 

§§ 6301-6312 and his accumulated leave cannot be fransfened, such 

fransfer 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. 86, 88 (1963). 

An executive branch employee who went on leave wdthout pay in order to 

accept a position wdth a Congressional committee and who later resigned 

from his Jigency is entitied to lump-sum payment for annual leave upon 

date of separation and not the date he was pleiced on LWOP. B-191713, 

May 22,1978. 

Employees who resigned from a federal agency and accepted employment 

wdth federaUy funded Legal Services Corporation may be paid lump-sum 

Page 3-1 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Pasrments 

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. 

Communify Services Administration, B-186449, January 24, 1977. 

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

Where an employee converts to a position as an intermittent employee 

wdth no regular tour of dufy during an administrative workweek and where 

he wdU eam no leave and cannot transfer his leave, he shaU receive a 

lump-sum payment for aU 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 ofthe Department 

of Justice takes a position wdth a federal judge or wdth the U.S. courts 

which is not covered by 5 u.s.e. §§ 6301-6312 and to which his accumulated 

leave is not fransfenable, the employee shaU receive a lump-sum leave 

payment to avoid forfeiture ofthe leave. 33 Comp. Gen. 622 (1954) and 

B-166640, May 21, 1969. See also B-128026, July 20, 1956. However, the 

judges ofthe Tax Court, which was removed from the executive branch 

and estabUshed as a constitutional court, were not regarded as being 

"separcited from the service" as contemplat.ed by 5 u.s.c. § 5551. Instead, 

thefr entitiement to payments for annual leave remained undisturbed and 

thefr accumulated leave would be paid upon separation or recredited upon 

retum to a position covered by 5 use. §§ 6301-6312. 49 Comp. Gen. 545 

(1970). 

(2) Restoration in VA after 90-day temporary z^pointment wdth Army—In 

August 1987, immediately before beginning a 90-day temporary 

appointment wdth the Army, the claimant was notified that she had 

prevaUed in an equal employment opportunify complaint against the 

Veterans Adminisfration (VA). AS a result, she was reinstated as a VA 

employee wdth backpay and restoration of leave from Febmaiy 1984 untU 

she started working for the Army. In view of her reinstatement by VA, she 

is freated as an employee who is fransfened from one agency to another. 

Consequentiy, she first became entitled to a lump-sum leave payment at 

the end of her 90-day temporaiy appointment, and the Army must pay her 

for her fuU annual leave balance, including restored leave. PriscUla M. 

WoneU, 68 Comp. Gen. 548 (1989). 

Page 3-2 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

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 untU his retum, but never retumed to federal 

service. The action should be recorded as a separation and the individual 

is entitied to receive a lump-sum payment. B-162148, October 5,1967. 

An employee who enters on active duty wdth the armed forces and elects 

to receive a lump-sum pajTuent under 5 u.s.c. § 5552 relinquishes any right 

to a recredit of the leave upon retum to federal service. Joseph P. Reap, 

B-180926, March 28, 1975. 

A retfred Regular officer serving in a civiUan 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 untU his retum from active dufy. 49 Comp. 

Gen. 444 (1970). 

b. Position in pubUc intemational organization 

Under 5 u.s.c. § 3582(a)(4), an employee who transfers to an Uitemational 

organization (as defined in 5 u.s.e. § 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 wdthin 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.e. 

§ 6304(d)(1). 

4. Lump-sum payment not payable 

a. Transfer to position where annual leave is transferable 

A lump-sum pajnnent may not be made to an employee upon fransfer to a 

position to which his annual leave is transferable, but instead his leave is 

fransfened to his new position. 5 u.s.e. § 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 enoneously 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." 

Page 3-3 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

b. Personal ceiling limitation 

An employee may transfer aU accumulated and cunently accmed 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 transfened, and 

that amount shall constitute the employee's annual leave ceiling until 

reduced under 5 u.s.e. § 6304(c). 48 Comp. Gen. 212 (1968). 

c. Student trainee employed intermittentiy between full-time tours of dufy 

NormaUy, an employee who moves to a position as an intermittent 

employee wdth no regular tour of dufy is entitled to a lump-sum payment 

for accmed annual leave. However, if the employee is a student frainee, 

the period of intermittent employment between fuU-time tours of dufy 

shaU not be regju^ded as a transfer or separation for purposes of lump-sum 

leave payment ai^d any leave eamed under regular employment shaU 

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.e. § 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 

accmed annual leave is to be credited for payment upon separation or 

death under 5 u.s.e. § 5551 or for recredit upon reemployment wdthout 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 2"8ri976. 

The Copyright Royalfy Tribunal is obligated to make the lump-sum annual 

leave due a retiring Commissioner. Although none ofthe leave was eamed 

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 accmed annual leave vests upon the employee's separation 

from the federal service, and it is the employing agency at the tune of * 

separation that must pay the employee for accmed annual leave to the 

employee's credit at the time of separation notwdthstanding that the leave 

was eamed in another agency. Presidential Appointees, 71 Comp. Gen. 411 

(1992). 

Page 3-4 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

An Afr Force employee wdth annual leave to his credit received a 

presidential appomtment as a judge ofthe United States Court of MiUtary 

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 hi 6 u.s.e. 

§ 2104(a) (1988), and therefore he is exempt from the leave act. 

Accordingly, his claim may not be paid because an employee wdth 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 untU he either separates from 

the federal service or retums to a position covered by the leave act Judge 

Eugene R. SulUvan, 71 Comp. Gen. 522 (1992). 

A Foreign Service Officer, who was appointed Ambassador (an excepted 

position in which no leave is eamed) Ui 1972, retfred as a Foreign Service 

Officer in 1975 but remained Ambassador untU 1976. He may not be paid 

lump-sum payments for accmed annual leave upon retfrement 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 transfened to a specified position. B-186043, 

October 4, 1976. 

ff a lump-sum payment is made, the rate shall be the salary received prior 

to presidential appointment but the time period shaU be projected from 

the date of retfrement. 40 Comp. Gen. 679 (1961). Ifthe employee has any 

leave in a separate account restored under 5 u.s.e. § 6304(d)(1), it shaU be 

Uquidated by lump-sum payment Unmediately 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 retumed 

wdthout a break in service to the permanent position. The annual leave 

which accmed Ui the temporaiy position shall be transfened and not paid 

m a lump sum. 33 Comp. Gen. 528 (1954). 

f Payable upon garnishment 

Where the wdfe of a former employee seeks to garnish money due the 

employee for accmed annual leave for child support, and the former 

employee's whereabouts and/or continued existence is unknovm, payment 

Page 3-5 GAO/OGC-96-6 CPLM—Leave 
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Lump-Sum Leave Payments 

may be made without determination of the status of the employee since in 

this case, under 5 u.s.e. § 5582, the wdfe would also receive any money due 

the employee if he is deceased. However, payment must be in accordance 

wdth the limitations contained ui section 303(b) of the Consumer 

Protection Act, 15 u.s.c. § 1673(b), since under Office of Personnel 

Management regulations, those hmitations also s^ply to garnishment of 

payments in consideration of accmed leave. Wesley E. Pitts, B-207015, 

December 14, 1982. 

g. Absence wdthout 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 aUeged absence wdthout leave. It is wdthin the agency's 

adminisfrative discretion to place employees who refuse to comply with 

order to report to work on leave without pay. In view of the adminisfrative 

discretion which exists wdth respect to determinations conceming 

absence from duty, and in the absence of any finding by an appropriate 

authorify of an uiyustified or unwarranted personnel action, her claim is 

denied. Verda L. CampbeU, B-221067, June 1, 1987. 

C. Rat e Payabl e l. GeneraUy 

Under 5 u.s.e. § 5551(a), the lump-sum payment is computed on the basis 

of the employee's rights at separation under aU ^pUcable 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 

Ifthe employee is separated prior to a statutory pay increase but the 

period of projected leave extends beyond the effective date ofthe 

increase, the lump-sum payment shaU be ac^usted to reflect the increased 

rate for any leave from the effective date ofthe pay mcrease. 47 Comp. 

Gen. 773 (1968); B-165201, October 2, 1968. 

Page 3-6 GAO/OGC-96-6 CPLM—Leave 
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Lump-Sum Leave Payments 

b. Wage Board employees 

For prevaiUng rate (Wage Board) employees who retfre or separate prior 

to the effective date of a wage increase under 5 u.s.e. §§ 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 "tenninal leave" up to or beyond the date the new wage 

rate is ordered into effect, his pay may be ac^justed 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 I\ib. L. No. 92-392 (5 u.s.c. § 5343 

note). Retroactive wage increases under the authority of section 9(b) are 

not Umited to employees who were in the service of the govemment 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 hicrease 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 accmed leave extends 

beyond the effective date of the increase, he is entitied 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 grantUig the increase 

is issued prior to the effective date mandated in 5 u.s.c. § 5344(a). 59 Comp. 

Gen. 494 (1980), distmguishing 54 Comp. Gen. 655 (1975). 

The rule in 54 Comp. Gen. 655 (1975) is lunited to situations mvoMng 

retroactive wage increases where the employee retfres 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.e. § 5344(b). 

Lump-sum annual leave payments made to prevaiUng rate employees may 

be ac^usted to reflect the increase in rates of pay commencing after the 

effective date of Pub. L. No. 96-369, October 1,1980, only ifthe employee 

Page 3-7 GAO/OGC-96-6 CPLM—Leave 
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Lump-Sum Leave Payments 

performed service after the effective date ofthe act (October 1,1980) as 

requfred by subsection 114(c) ofthe act 61 Comp. Gen. 94 (1981). 

3. Step increases 

a GeneraUy 

Where prior to date of separation, a General Schedule employee has 

completed the requisite period of actual service, and has met aU other 

conditions for a within-grade advancement under 5 u.s.e. § 5336, the fact 

that, because such advancements are not effective until the beginning of 

the next pay period foUowdng completion ofthe requfred period of service, 

the advancement was not actuaUy received prior to separation, would not 

preclude including it in the computation ofthe 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 entitiement to a periodic step increase. 59 Comp. Gen. 16 

(1979). 

b. EUgibiUfy completed whUe on leave wdthout pay 

Where the employee completed the requisite service for a step increase 

whUe on leave wdthout pay in connection wdth a reduction in force, the 

step increase would be included in his lump-sum payment even though the 

employee did not retum to a pay status. 27 Comp. Gen. 330 (1947). 

c. EUgibiUfy completed whUe on miUtary furlough 

An employee was credited wdth step increases whUe on miUtaiy furlough 

and resigned wdthout retuming to his civiUan position. Such step increases 

should be included in the computation of his lump-sum payment 

B-l 16871, August 24, 1953. 

Page 3-8 GAO/OGC-96-6 CPLM—Leave 
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Lump-Sum Leave Payments 

4. Premium pay 

An employee's lump-sum payment shaU include the premium percentage 

pay for inegular 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 dufy under the 

provisions of 5 u.s.e. § 5545(c)(1) is not entitled to such premium pay whUe 

on extended sick leave pendUig disabiUfy 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 aUowances and foreign differentials 

a. Separated at post of duty 

ff an employee is receiving a cost-of-living aUowance or post differential 

and he is separated at his post of dufy, such differential or aUowance shaU 

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 dufy 

An employee who was separated after leaving his overseas post may not 

have the post differential or cost-of-living aUowance 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. WiUiam E. Pope, Jr., B-186046, November 9,1976. 

c. Separated whUe on temporaiy dufy 

An employee who was receiving a cost-of-living allowance retumed 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 

pajTTient should include the cost-of-Uving aUowance even though he was 

Page 3-9 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

separated away from his overseas post if it was in the pubUc interest not to 

retum him to his overseas post for separation. B-155356, November 20, 

1964. 

6. Reemployed annuitants 

WhUe a reemployed annuitant's pay wdll be reduced by the amount of his 

annuify, his lump-sum payment upon separation shall be based upon his 

fuU pay rate wdthout reduction by the amount of his annuify. 5 use. 

§ 8344(a). 36 Comp. Gen. 340 (1956) and 36 Comp. Gen. 209 (1956). 

7. Nonworkdays and hoUdays 

a. Generally 

An employee is not entitled to pay for hoUdays during the period covered 

by his lump-sum annual leave payment 5 u.s.e. § 5551(a). 61 Comp. 

Gen. 363 (1982). 

Employee's claim for night shift differential and hoUday pay as part of 

lump-sum leave payment upon separation is denied. Employee did not 

quaUfy 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 m effect prior to December 5, 1980, since Inauguration Day, 

or the foUowdng Monday when the day faUs on Sunday, is a holiday for 

federal employees in the District of Columbia area, under 5 use. § 6103(c), 

a former federal employee who was employed in the District of Columbia 

and who retired wdth sufficient annual leave to extend through the hoUday 

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 hoUday is established by executive order, 

employees who are separated after the date the order was signed are 

entitled to payment for the hoUday which falls wdthin the period covered 

by their lump-sum payment. Since an executive order is effective when 

Page 3-10 GAO/OGC-96-6 CPLM—Leave 
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Lump-Sum Leave Payments 

• 

signed unless otherwise provided, an employee who is separated on the 

day the order is signed is entitled to the hoUday in the computation of the 

lump-sum payment. 34 Comp. Gen. 254 (1954). 

d. HoUdays and employees overseas 

(1) American citizens—Foreign hoUdays should not be included in 

computing lump-sum payments for accumulated annual leave ofAmerican 

employees since there is no authorify to close offices or declare such 

hoUdays to be nonworkdays for American citizens. B-130233, Febmary 25, 

1957. 

(2) Local employees—Where it is discretionary rather than mandatory to 

excuse local employees of the Foreign Service on United States national 

hoUdays Eind local hoUdays, 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, hoUdays, etc., 

occurring wdthin the rotative workweek he would have worked had he 

remained m federal service. 30 Comp. Gen. 508 (1951). 

8. Retention allowance—5 u.s.e. § 5754 

Employee, who was receiving a 25 percent retention aUowance under 

5 u.s.e. § 5754, has retfred from federal service and requested that the 

retention allowance be included in his lump-sum leave payment under 

5 u.s.e. § 5551 as pay he would have received had he remained in the 

service until expfration 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 wdth the agency, payment is discretionary wdth head 

ofthe 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 otherwdse leave govemment service. Lafayette E. Camahan, 

B-249816, March 8, 1993. 

Page 3-11 GAO/OGC-96-6 CPLM—Leave 
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Lump-Sum Leave Payments 

D. Reemployment and l- GeneraUy 

Recredit 5 u.s.e. § 6306 provides that when an employee has received a lump-sum 

payment under 5 u.s.e. § 5551 and he reenters the federal service (except 

for certain positions) before the end of the period covered by the 

lump-sum payment, he shaU refund an amount conesponding to the 

unexpfred portion of the period covered by the lump-sum payment and 

receive a credit for the conesponding amount of annual leave. See also 

5 e.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 

rehfred as a part-time reemployed annuitant at GS-12, step 10, before the 

expfration ofthe period covered by his lump-sum annual leave payment. 

Employee is entitied to be paid for lump-sum annual leave at the rate for 

GS-13, step 9, for the period between retfrement and reemployment. After 

separation from the GS-12 position he is entitied to receive a lump-sum 

annual leave payment only at the rate for GS-12, step 10. WUUs E. 

Staymates, B-200548, August 12,1981. 

3. Transfer to intemational organization 

Employee of Nuclear Regulatory Commission fransfened to an 

intemational organization under 5 u.s.e. §§ 3581-3684 effective August 16, 

1978, at which time he elected to retain annual leave to his credit pursuant 

to 5 u.s.e. § 3582(a)(4). On January 22,1980, also pursuant to 5 use. 

§ 3582(a)(4) and prior to reemployment, employee requested lump-sum 

payment for annual leave retained. Consistent wdth computation 

provisions of 5 u.s.e. § 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.e. 

§ 3582(a)(4), not tiie date oftiie fransfer. 60 Comp. Gen. 409 (1981). 

Page 3-12 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

4. Refunds 

a. Refund requfred 

(1) Temporary position—^A refund is requfred even if the employee is 

reemployed in a temporary position for less than 90 days. 32 Comp. 

Gen. 387 (1953). 

(2) After enoneous separation—^An employee who is restored to dufy 

retroactively after an enoneous 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.e. § 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, wdU no longer be foUowed. 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 fuU 

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 tennination was subsequentiy 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 discipUnary action. B-219974, 

October 21, 1985. 

(3) Reemployment under different leave system—Where a PubUc Health 

Service officer received a lump-sum annual leave payment upon 

separation and is reemployed hi the civU service before expfration ofthe 

period of leave, he shaU 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, wdth 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, wdthout break 

in service, was reappoUited 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 

Page 3-13 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

• 

reappointed to the competitive position. Upon retirement from that 

position he became entitied to lump-sum payment for annual leave at 

then-cunent rate of compensation. See 5 u.s.c. §§ 5561 and 6302(e). Joseph 

F. Friedkin, B-223225, July 29, 1986. 

b. Refund not requfred 

(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 unexpfred lump-sum leave payment 

33 Comp. Gen. 209, 213 (1953). 

(2) Personal leave ceUing—An employee wdth a "saved" leave ceUing (see 

5 u.s.e. § 6304(c)) who resigns in one leave year and is reemployed in the 

next leave year prior to the expfration ofthe lump-sum leave payment 

period shaU have his ceiUng constmctively reestabUshed by deducting 

from the previous ceiUng the excess over current accmal, if any, of the 

expfred portion of leave covered by the lump-sum payment added to leave 

actuaUy used during the year. 38 Comp. Gen. 91 (1958). 

An employee wdth 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 fuU 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 ceiUng remstated. 59 Comp. Gen. 352 (1980). 

(3) Inclusion of cost-of-Uving aUowance—^An employee who is requfred to 

refund part of a lump-sum payment shaU include any differential or 

cost-of-Uving aUowance included m the lump-sum payment B-137579, 

November 20, 1958. 

c. Recredit 

The leave of an employee is to be reconstmcted 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 fuU. 38 Comp. 

Gen. 91 (1958). 

Page 3-14 GAO/OGC-96-6 CPLM—Leave 
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d. Reemployment prior to payment 

Employees who are separated and then reemployed by another agency 

prior to the processhig of the lump-sum leave pajTnent, may be paid for 

that portion of leave which expired during the interval between 

employments (less taxes), and have the remaining leave transferred 

wdthout tax deductions to the new agency. 34 Comp. Gen. 290 (1954); 

B-121724, AprU 20, 1971. See also 49 Comp. Gen. 444 (1970). 

E. Waiver An employee, a personnel management specialist, resigned his competitive 

status position wdth his agency and accepted an excepted position in 

another agency wdthout a break in service. He prepared his ovm SF-52, 

Request for Personnel Action, noting that lump-sum payment for annual 

leave was not to be made. Due to an enor by the agency's personnel office, 

he received the lump-sum payment for his annual leave, and he seeks 

waiver of this enoneous overpayment. The employee's resignation £ind 

subsequent reemployment without a separation for one or more workdays 

does not authorize lump-sum payment of annual leave under 5 use. 

§ 5551(a) (1982). The overpayment may not be waived under 5 u.s.e. 

§ 5584, since the employee was not wdthout fault in the matter. Frank J. 

Delano, B-224052, May 11,1987. 

FoUowdng 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 accmed annual leave, was reemployed by the Department of the Navy. 

He is requfred 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 govemment service during the period 

covered by the lump-sum payment. The govemment's claim may not be 

waived since, even if it is considered as an enoneous payment, the 

employee is not wdthout fault m the matter. DareU 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 

agjiinst 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.e. § 5584 is granted only to the extent of 

the net indebtedness; therefore, our Claims Group's partial waiver appUed 

Page 3-15 GAO/OGC-96-6 CPLM—Leave 
Chapter 3 

Lump-Sum Leave Payments 

the proper legal standard. The waiver is, however, modified in amount to 

reflect conected computation of backpay. 

FoUowdng grant of waiver, agency deducted income taxes and Medicare 

when refunding repayments to employee. Record showed that amounts 

refunded origmaUy had been coUected from employee's after-tax salaiy. 

WhUe this Office does not rule on tax questions, which should be resolved 

between the uidividual and the Intemal Revenue Service, this issue also 

involves the admmisfration of the CompfroUer General's waiver authorify. 

Where, as it was here, amount being refunded had been coUected from 

employee's after-tax salary, it was improper to deduct taxes when the 

moneys were refunded foUowdng waiver. Agency should fumish revised 

W-2 form and any other necessary documentation so that employee can 

file amended tax retums or claims for refund of taxes that were 

improperly coUected from waiver refund. Victor Crichton, 66 Comp. 

Gen. 570 (1987). 

A lump-sum payment for unused annual leave which is conectiy and 

legaUy made to a federal employee upon his separation from govemment 

service may not later be considered an "enoneous" payment wdthin the 

meaning of the statute authorizing waiver of enoneous overpayments of 

compensation. This is tme even though the employee accepts another 

federal appointment wdthout any awareness that he wdU then become 

legaUy obUgated to refund part of that lump-sum leave payment by 

accepting reemployment. Hence, coUection ofthe employee's resulting 

debt may not be waived under 5 use. § 5684. WUUam A. Bonm, B-200327, 

November 13, 1980. 

K Termina l Leave An employee took approved annual leave for aU of the next to last pay 

period of the leave year and for aU workdays except the last adminisfrative 

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 accmed for those two pay periods 

because the eigency deemed it to be the granting of leave on leave in 

violation ofthe terminal leave restriction. The leave credit is aUowed. 

Terminal leave occurs when leave is taken after employee has perfortned 

his last day of active dufy. Since the employee was present for and 

performed dufy on the last adminisfrative workday of the pay period in 

which he retired, such leave used immediately prior to that day is not 

violative ofthe terminal leave restriction. Aurora D. Rives, B-190374, 

Januaiy 20,1978, distuiguished. Emmitt Sheridan, B-223876, June 12,1987. 

Page 3-16 GAO/OGC-96-6 CPLM—Leave 
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G. Foreign Service Officers state Department Foreign Service Officers who are receiving a special 

differential at the time of thefr separation may have such amount included 

in thefr lump-sum annual leave payment. The officers are receiving the pay 

under statutory authorify, 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 authorify to place a limitation occurring between the time of 

separation and the expfration of the period to be considered in 

detennining the amount of the lump-sum leave payment. Foreign Service 

Officers, 67 Comp. Gen. 351 (1988). 

Page 3-17 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

A. Laws and Regulations The laws and regulations goveming sick leave are contained in 5 u.s.e. 

§§ 6301-6312, 5 e.F.R. Part 630, FPM Chapter 630, and FPM Supp. 990-2, Book 

630. 

B. Accrual 1. Rate 

a FuU-time employee 

A fuU-time employee earns sick leave wdth pay at the rate of one-half day 

or 4 hours for each fuU biweekly pay period. 5 u.s.e. § 6307(a). 

b. Part-time employee 

A part-time employee earns 1 hour of sick leave wdth pay for each 20 hours 

in a pay status. 5 e.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 eamings. 5 CF.R. § 630.202(b). 

c. District of Columbia firefighters 

Members of the Ffrefighting Division of the Ffre Department of the District 

of Columbia accme sick leave at the rate of two-fifths of a day for each fuU 

biweekly pay period and may be advanced a maximum of 24 days of sick 

leave wdth pay in cases of serious iUness or disabUify. 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. 

MUdred E. Taylor, B-205359, June 28,1988. 

2. Entitiement 

a GeneraUy 

As a general matter, an employee who accmes annual leave under 5 u.s.e. 

§§ 6301-6312, also accrues sick leave. See the cases set forth in Chester 2 

ofthis titie, "Annual Leave," "B. Accrual." 

Page 4-1 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

b. WMle receiving disabUity compensation 

See B-180010.12, March 8, 1979; B-189531, September 14, 1977; and cases 

set forth in Chapter 2 ofthis titie, "Annual Leave," "B. Accmal." 

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 retfrement or it may be recredited 

to the employee if reemployed wdthin 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 retuming to 

federal service on or after December 2, 1994. See 5 C.F.R. § 630.502(b) and 

(c) (1995). 

C. Transfers and 

Reemployment 

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 shaU 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 shaU be 

transfened to his new employing agency on an adjusted basis under 

regulations prescribed by OPM. 5 use. § 6308. See also 5 CFR. § 630.502. 

c. Agricultural StabUization and Conservation Service (ASCS) employees 

Under 5 use. § 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 transfened from county committee 

service are treated as eamed in federal employment ifthe employee later 

transfers to another agency. 48 Comp. Gen. 486 (1969). 

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Where the record is clear that the Department of Agriculture intended to 

fransfer an Ases counfy committee employee to a civU service position 

wdthout a forfeiture of accumulated sick leave, the agency may conect the 

employee's records to reflect a fransfer wdthout a break in service. A 

19-day break in service may be changed to authorized leave of absence 

wdthout pay sUice forfeiture of sick leave in this case would be ui dfrect 

contravention of clear statutory mandate to avoid forfeiture during such 

fransfers. B-191014, March 10,1978. 

Ases county committee employee (a nonfederal position) who was 

separated in reduction in force during 1975 and subsequentiy received an 

appointment wdth the Forest Service, sought to have her unused sick leave 

recredited. She was properly denied credit for unused sick leave. Under 

5 u.s.e. § 6312, counfy committee employees may have leave balances 

transfened under 6 u.s.e. § 6308. That section authorizes credit for unused 

leave balances only where employees transfer between positions under 

different leave systeins wdthout a break in service. B-199806, 

September 29,1981. 

d. Commissioned officers of PubUc Health Service 

Commissioned personnel ofthe PubUc Health Service are considered 

civUian officers and employees under 5 u.s.c. §§ 6301-6312. Thus, members 

fransferring to and from the commissioned corps to other civUian 

positions are not entitied to a lump-sum payment but may have thefr 

annual and sick leave fransfened on an ac^justed basis. 34 Comp. Gen. 287 

(1954). 

e. District of Columbia teachers 

District of Columbia Teachers' Leave Act of 1949 is essentiaUy a sick leave 

act. Therefore, under 5 u.s.e. § 6308, a federal employee, who, wdthout a 

break in service, transfers to a position under the District of Columbia 

Teachers' Leave Act, may transfer sick leave upon an ac^justed basis in 

accordance wdth regulations prescribed by ese. However, no annual leave 

may be transfened. 33 Comp. Gen. 209 (1953). 

f Legal Services Corporation 

Employees who resigned from federal employment and accepted 

emplojmtient wdth federally funded Legal Services Corporation were paid 

bonuses equal to a portion of accmed annual and sick leave. Employees 

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may have sick leave balances certified for retfrement purposes or for 

possible recredit since by statute employees ofthe Legal Services 

Corporation are not federal employees for leave purposes. B-186449, 

January 24, 1977. 

g. Senior Executive Service to presidential appointment 

An agency faUed 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.e. § 3392(c). As a result of the agency's faUure 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 faUure to properly advise the employee 

constituted an unwananted personnel action and that the annual and sick 

leave the employee would have eamed during this period may be 

refroactively 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 govemment or the 

govemment of the District of Columbia is entitled to a recredit of his sick 

leave if he is reemployed in the federal govemment or the govemment of 

the District of Columbia, wdthout a break in service of more than 3 years. 

5 CF.R. § 630.502(b)(1). 

Editor's note: The 3-year Umit is no longer in effect for those whose leave 

has not been forfeited and who retum to federal service on or after 

December 2, 1994. 5 e.F.R § 630.502(b) and (c) (1995). 

A NASA employee who resigned his position to accept employment wdth a 

Congressional committee is entitled to recredit of his sick leave balance if 

he is reemployed wdthin 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. 

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The employee's unused sick leave may not be recredited since under 

6 e.F.R. § 630.502(b)(1), recrediting of sick leave is pennitted only when an 

employee's break in service does not exceed 3 years. Neither this Office 

nor the agency concemed 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 m 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 reemplojmtient wdthin 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 wdth sick leave eamed during 

prior service, GPM regulations, contained in 5 C.F.R § 630.502(b)(1), provide 

that a separated employee may be recredited wdth sick leave only if the 

break in service is 3 years or less. B-180604, AprU 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-actuaUy-employed basis between his voluntary separation in 1953 

and his reemployment in 1956. Although he does not accrue leave during a 

when-actuaUy-empIoyed appointment, he is entitied to recredit of sick 

leave accumulated prior to his separation in 1953 upon his reemployment 

m 1956. The term "break m service" m 5 e.F.R § 630.502(b) refers to actual 

separation from the federal service. 47 Comp. Gen. 308 (1967). 

d. Congressional emplojmnent 

GAG employee resigned and worked more than 3 years with Congressional 

committee before he was employed by NASA. Sick leave which could not 

be transfened or used during congressional employment may be 

recredited to position at NASA since congressional employment does not 

constitute "break in service" under 5 e.F.R. § 630.502. 59 Comp. Gen. 704 

(1980). 

e. Peace Corps volunteer service 

An employee wdth 568 hours of sick leave resigned December 3,1965, to 

frain and serve as a Peace Corps volunteer. The employee who was 

reemployed July 6,1970, contends that volunteer service should be 

Page 4-5 GAO/OGC-96-6 CPLM—Leave 
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Sick Leave 

considered federal service for the purpose of extending the 3-year limit 

wdthin which sick leave may be recredited after a break m service. 

However, 22 u.s.e. § 2504(f) may not be considered as authorizuig 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 m federal service of over 3 years seeks recredit 

of sick leave on basis that he was employed by various organizations and 

instrumentaUties that receive federal funding. Employee contends that 

such emplojmnent avoids a break in service in excess of 3 years. Under 

5 C.F.R § 630.602(b), a recredit of sick leave is permitted when an 

employee's break in service does not exceed 3 years. Since service wdth 

private organization or state instrumentaUties that receive federal funding 

does not constitute federal service, employee may not have sick leave 

recredited. 61 Comp. Gen. 83 (1981). 

g. Transfer or detaU to intemational organization 

An employee who resigned to work for an intemational organization 

requested restoration of sick leave upon his subsequent reemployment 

Under 6 u.s.e. § 3582, an agency is requfred to restore the sick leave only if 

an employee was fransfened or detaUed to an intemational organization. 

Hence, the sick leave may not be restored since the employee was not 

fransfened or detaUed to the intemational organization but rather 

resigned to accept that position. Neither may the leave be restored under 

5 e.F.R § 630.602(b) since service wdth an intemational organization does 

not constitute federal service for the purpose of 5 u.s.e. §§ 6301-6312 and 

the employee's break in service exceeded 3 years. B-180867, August 27, 

1974. 

h. Service as substitute teacher in District of Columbia 

Substitute teachers employed by the District of Columbia government do 

not eam sick leave under the District of Columbia Teachers' Leave Act of 

1949, 31 D.C. Code, § 691, nor under 6 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 6 C.F.R. § 630.602(b) after a 

separation from federal service. Accordingly, a former substitute teacher 

reemployed by HEW wdthin the j^pUcable time limit, is entitied to recredit 

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• 

of sick leave eamed as a federal employee prior to his substitute teaching. 

64 Comp. Gen. 669 (1975). 

i. Reemployment after miUtary service 

Federal civiUan employees who leave thefr positions to pursue miUtary 

careers are eUgible under regulation for a recredit of thefr civU service sick 

leave after thefr retfrement from miUtary service, if they are reemployed in 

a civiUan capacify by the govemment wdthin the foUowing 3 years. Hence, 

an individual who left civU service employment when caUed to active 

miUtaiy dufy, and who was subsequentiy retfred from mUitary service after 

completing 20 years' active dufy, may be aUowed a recredit of his civU 

service leave balance upon his reemployment as a civiUan 1 year later. The 

fact that he had a 2-month break in service during his mUitary 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. Evddence to support claim 

a GeneraUy 

The crediting of sick leave is primarUy an jidministrative matter, and the 

employing agency must detennine the acceptabiUfy 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 Eamings Statements, personal leave records, or certificates of former 

supervisors or timekeepers indicating leave eamed 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 

normaUy not to be sanctioned. However, in Ueu of a certification, where 

no official records are avaUable, there should be fumished statements of 

any other evidence which may be avaUable in respect of employee's leave 

credits, mcluding an estimate of his leave credit, if possible. Any such 

statements should clearly reflect the factors fonning the basis ofthe 

estimate. The agency where the employee currentiy 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 weU as sick leave. 

Page 4-7 GAO/OGC-96-6 CPLM—Leave 
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b. Swom Statements 

Unused sick leave of £m employee who was inducted into the Army may be 

recredited upon his reemployment after retirement from the miUtary 

service. The statement of the Letterkermy 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 miUtary would 

not preclude the acceptance of secondary evidence to support his claim 

for recredit Accordingly, statements fumished by officers and employees 

who have knowledge of facts and cfrcumstances existing at the time of his 

induction may be used. B-164220, September 5,1968. 

c. OfficiaUy approved leave requests 

Where an employee's leave records have been destroyed an agency may 

accept as evidence of leave usage the officiaUy 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 eamed leave under the leave acts of 1936 or any other 

leave system merged under 5 u.s.e. §§ 6301-6312, is entitied 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 eamed. However, 

this section does not revive leave afready forfeited. 5 C.F.R. § 630.503. 

D. Administration of Sick i. GeneraUy 

Leave 

The granting of sick leave in accordance wdth the confrolUng regulations is 

an adminisfrative responsibiUfy. The nature ofthe evidence requfred to 

determine whether an employee was inc^acitated must of necessify be 

left to adminisfrative determination, bearing in mind the possibiUfy of 

abuse, FPM Supp. 990-2, Book 630, S4-2b(l). 

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

• receives medical, dental, or optical examination or freatment; 

• is incapacitated for the performance of duties by sickness, iiyury, or 

pregucmcy and confinement 

Page 4-8 GAO/OGC-96-6 CPLM—Leave 
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is requfred to give care and attendance to a member of his immediate 

famUy who is affUcted with a contagious disease; or 

would jeopardize the health of others by his presence at his post of dufy 

because of exposure to a contagious disease. 5 e.F.R § 630.401. 

Editor's note: See 5 use. § 6307, amended September 30,1994, and 5 e.F.R 

§ 630.401(a) (1995) for current coverage for care of famUy member, 

purposes relating to death of famUy member, and adoption of a chUd. 

Unless an agency estabUshes a minimum charge of less than 1 hour or 

estabUshes a different minimum through negotiations, the minimum 

charge for sick leave is 1 hour. 5 e.F.R. § 630.206(a). 

2. Granting 

a Agency discretion 

During a period when 3,000 afr traffic confroUers reported themselves 

disabled for duty, an afr traffic confroUer who was absent for 2 weeks 

aUeged that his absence was due to the effects of dmgs prescribed by a 

physician designated by the Federal Aviation Adminisfration. Claimant 

states that pursuant to regulations, prescribed drugs were incapacitating 

for fraffic confrol dufy and, therefore, he should have been carried on sick 

leave rather than an absent wdthout leave status. Absent a showdng of 

arbifrary or capricious action, GAO is generaUy wdthout authority to 

overturn administrative action by which sick leave is refused or employee 

is placed in an absent wdthout leave status. B-170730, August 16, 1971. 

It was wdthin the discretion of the expropriate officials ofthe Defense 

Investigative Service to decide that one of its employees who requested 

sick leave was entitied to it, based on evidence that the employee was 

absent due to a severe physicaUy incapacitating emotional iiyury foUowdng 

the death of his wdfe. Michael J. DeLeo, B-207444, October 20, 1982. 

b. Ffrst 40-hour employees 

National Aeronautics and Space Adminisfration employees assigned to a 

ffrst 40-hour workweek under 5 CF.R. § 610. Ill contend that local 

regulations governing thefr use of sick leave, which pennit thefr supervisor 

to refroactively detennine that a day on which they were sick may be 

accounted for as a nonworkday, are confrary to law and ese regulations. 

Inasmuch as the local regulations could be appUed to deprive employees 

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of the use of sick leave, the local regulations are inconsistent wdth ese 

regulations and, therefore, must be amended. B-l 71947.48, July 9,1976. 

c. Contagious disease 

An employee may be granted sick leave to care for a member of his 

immediate famUy who is Ul at home wdth a disease requiring isolation, 

quarantine, or restriction of movement for the period requfred by local 

health regulations or, in absence thereof, in accordance wdth a period 

specified hi 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 wdth a contagious disease. The award 

may not be implemented by the agency since there is no legal authorify to 

grant sick leave under these cfrcumstances. 55 Comp. Gen. 183 (1975). 

Employee who was away from work in order to provide care and 

assistance for his seriously iU 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 e.F.R. § 201(b)(3). Since the son's 

illness is not contagious and his movement was restricted because of the 

nature ofthe Ulness and not because the health authorify restricted 

movement to prevent spread of a contagious Ulness, the employee may not 

be granted sick leave. Matter of Lawrence J. Chandler, B-250175, 

January 6, 1993. 

An employee residing in Alaska claims sick leave for the time he remained 

at home to care for his chUd who was suffering from coryunctivitis. The 

goveming regulations aUow sick leave when an employee is required to 

attend to an immediate fainily member wdth a contagious disease. 5 e.F.R. 

§ 640.401(c) (1988). They define such a disease as one for which public 

offlcials require the child to be quarantuied, isolated, or restricted in 

movement for a specified period. Since in this case a state pubUc health 

official stated that coiyunctivitis would preclude the child from attending 

the day care facilify while the child was exhibiting the disease's acute 

symptoms, the chUd's freedom of movement was substantiaUy restricted 

and agency aUowance of sick leave would be appropriate. Morton Forsko, 

B-238784, June 15, 1990. 

Page 4-10 GAO/OGC-96-6 CPLM—Leave 
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# 

d. Prepared chUdbfrth 

An employee, who was present at the deUvery of his chUd in accordance 

wdth the Lamaze method of prepared chUdbirth, claims sick leave should 

be substituted for annual leave granted by the ^ency. Sick leave is 

appropriate only when the cfrcumstances specificaUy meet the criteria 

contained in the regulations. See 5 e.F.R. § 630.401. Thus, sick leave may 

not be aUowed since the employee did not undergo medical freatment and 

he was not incapacitated for dufy as requfred by regulations. B-195042, 

August 6, 1979, citing 55 Comp. Gen. 183 (1975). 

e. Treatment by marriage/famUy counselor 

Employee requested sick leave for period of emotional sfress whUe she 

was under the care of a Ucensed marriage/famUy 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 enoneous separation 

An employee was restored to duty and awarded backpay for the period of 

her enoneous separation, including a period during which she was 

incj^acitated by illness. Backpay may not be awarded for a period of 

incapacify when an employee is not ready, wiUing, and able to perform the 

duties ofthe former position. However, where the employee has 

accumulated sick leave, the period of incapacify may be charged to sick 

leave upon restoration to dufy. 46 Comp. Gen. 139 (1966). 

g. Criminal confinement 

The incapacify of an employee to perform his duties because of 

confinement to a mental hospital for freatment or diagnosis would s^pear 

to be a case in which sick leave could properly be granted. However, 

where an employee was unavaUable for performance of duties because he 

was confined as a result of a criminal conviction, the employee was not 

incapacitated for any ofthe 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 refroactive remstatement to the roUs for the purpose of 

grantmg 264 hours of sick leave. B-176645, November 1,1972. 

Page 4-11 GAO/OGC-96-6 CPLM—Leave 
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h. Supporting evidence 

An agency may grant sick leave only when supported by adminisfratively 

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 detemiined 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 e.F.R. § 630.403. 

i. Personal certification 

Where, due to a scarcify of physicians or other practitioners in a particular 

locality, an employee is unable to procure a physician's certificate to 

support his appUcation for sick leave for a period of more than 3 days' 

duration, as required by the regulations, it is wdthin 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. GeneraUy 

In cases of serious disabilify or iUness, a maximum of 30 days sick leave 

wdth pay may be advanced to the employee. 5 u.s.e. § 6307(c). An employee 

serving under a Umited appointment or one which wdll be terminated on a 

specific date, may be advanced sick leave only up to the total amount he 

would otherwdse eam during the term of his appointment. 5 e.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 wdthout pay for absences from work after he applied 

for disabiUfy retirement is sustained. The authorify to grant or refuse a 

request for advance sick leave is exclusively wdthin the jurisdiction of the 

agency. B-182085, December 24, 1974. 

The granting of advance sick leave is normaUy a matter wdthin the 

discretion ofthe agency. However, where an employee ofthe iRS requested 

30 days of advance sick leave, but her request was denied based on the 

assumption that she would not retum to dufy, the iRS may retroactively 

grant the employee advance sick leave after her retum to duty if the 

Page 4-12 GAO/OGC-96-6 CPLM—Leave 
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agency determines its original action constituted an unwarranted or 

uiyustified personnel action under the Back Pay Act, 5 u.s.e. § 5596. 

B-187171,June7,1977. 

Employee claims backpay for period before disabiUfy retirement when 

agency tenninated advance sick leave and placed employee on leave 

wdthout pay pending retirement Advance sick leave may be granted £it the 

discretion of employing agency. Hence, agency's decision to terminate 

advance sick leave and to place employee on leave wdthout pay for 

absences from work after employee appUed for disabiUfy retfrement wdU 

notbe disturbed. B-199114, AprU 28,1981. 

c. Liquidation of advanced leave 

An employee iiyured 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 requfred to refund an amount equal to any 

unUquidated advanced sick leave if he resigns or retfres because of 

disabUify. B-174466, December 27, 1971. 

Prior to voluntary retfrement, an employee had been advanced 240 hours 

of sick leave. After he retired, the money equivalent of advanced sick leave 

was coUected back from his ziccmed annual leave and by setoff from his 

retfrement 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 CF.R. § 630.209(b) an employee is not 

requfred to refund unUquidated advanced sick leave if he resigns or retfres 

on disabUify. B-188903, July 6, 1977. 

An employee who was advanced sick leave may, wdth adminisfrative 

j^proval, refund the value of the advanced sick leave she has taken and be 

placed in leave wdthout pay status for the period involved. B-189531, 

September 14, 1977; and 29 Comp. Gen. 76 (1949). But see 5 e.F.R. 

§ 630.208(d) holding that the period is not a nonpay status. 

Page 4-13 GAO/OGC-96-6 CPLM—Leave 
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4. Change of separation date for puipose of granting sick leave 

a GeneraUy 

5 use. § 6307 provides for the granting of sick leave to employees on the 

roUs and not to former employees separated by retfrement, resignation, or 

otherwdse. Separated employees may not be restored to roUs for the 

purpose of taking sick leave unless there was a bona fide adminisfrative 

enor in fixing the employee's separation date. B-180436, Febmaiy 13, 

1975. 

A claim by a civiUan employee wdth Department of the Navy for payment 

of sick leave accumulated at the date of his separation, based on an 

apparentiy bona fide medical determination by a Navy medical authorify 

that the claimant was capable of perfonning the duties of his position 

subject to certain hmitations, is disaUowed. There is no statutoiy authorify 

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 

adminisfrative enor in effecting separation. Further, disabiUfy retfrement 

approved refroactively does not invaUdate an otherwdse proper action 

taken by the Navy Departinent 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 wdth the altemative 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 wdthout 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 zidminisfrative enor 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 pennit payment of accumulated sick 

leave, Ufe insurance benefits, and a survivor's retfrement annuify to his 

widow, may not be aUowed. A separation date may not be changed absent 

adminisfrative enor, violation of poUcy or regulation, or evidence that 

resignation was not the intent of the parties. There is no evidence of 

adminisfrative enor or violation of poUcy or regulation which would 

wanant a change in the employee's separation date. Although the widow 

states that her husband would not have intended to resign had he known 

Page 4-14 GA0/06C-96-6 CPLM—Leave 
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of his illness, that does not estabUsh confrary intent sufficient to change 

his separation date. Although the wddow also suggests that the iUness 

reduced her husband's capacify to make a responsible decision regarding 

his resignation, in the absence of a judicial a(^judication of incapacify, we 

must presume that the employee had the legal mental capacity to 

discharge his rights and obUgations. Kenneth A. Gordon, 62 Comp. 

Gen. 620 (1983). 

b. Adminisfrative enor 

An employee, who was carried on sick leave from Febmaiy 20,1968, untU 

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 Januaiy 4,1969, which was granted but through 

adminisfrative enor was charged on leave records as sick leave. Since 

additional sick leave would have been granted prior to his retfrement for 

disabUify, the employee should be restored to the roUs and the separation 

date extended for that purpose. B-l 70896, October 22,1970. 

An employee resigned from the Department ofthe Army wdth 222 hours 

sick leave to her credit and was employed by the National Labor Relations 

Board 2 years later. Through an adminisfrative enor she was not credited 

sick leave untU after her separation due to confinement for pregnancy 

which requfred the use of annual leave and leave wdthout pay. She may 

have sick leave substituted for the period during which annual leave and 

leave wdthout pay was used, esc regulations provide that a person restored 

to federal employment wdthin 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 fumished, the 

non-avaUabiUfy of which was due to adininistrative enor. B-159606, 

July 26, 1966. 

c. Violation of agency poUcy 

An employee, uivoluntarily removed from service on July 23, 1965, for 

absence wdthout leave, was notified by ese in 1966 that his appUcation of 

Febmary 1,1965, for disabiUfy retfrement had been approved. The 

employee should be given an opportunify to use his forfeited sick leave by 

restoration to the roUs wdth proper ac^justments for that purpose, suice the 

FPM provides that a definite dufy rests wdth an agency not to separate an iU 

employee, if he has the necessary service to qualify for disabiUfy 

retfrement. If he is unable to work, the agency should carry him in a leave 

Page 4-15 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

Status (with or without pay) until notification by the ese's action on his 

E^pUcation. 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 accmed as of an 

employee's retfrement date on the basis that the subsequent ^proval of 

his disabiUty retirement proves that the physician's pronouncement of his 

fitness for dufy was enoneous, and that he could have been granted aU of 

his leave prior to separation had the agency aUowed his disabiUfy 

retfrement is disaUowed. The employee may not be reimbursed for sick 

leave not granted prior to his separation or be restored to the agency roUs 

for the purpose of grcinting such leave absent an enor or violcition of a 

regulation in effecting the separation. The employee was not refused leave 

prior to his optional retfrement rather he elected to be separated effective 

AprU 30, 1968, to be eUgible for a 3.9 percent cost-of-Uving aUowance. 

B-167973, October 13, 1969. 

d. Intent of parties 

A chest X-ray incident to an employee's separation indicated no 

abnormaUfy nor a need for additional X-rays. However, an X-ray taken 

incident to a reemployment examination 4 days after his retfrement 

revealed carcinoma of the lung requiring surgery. The agency does not 

deny the likelihood of enor which would taint the otherwdse vaUd 

processing of the retfrement and render the separation ineffective as being 

confrary to the intent of both parties. Accordingly, the employee should be 

restored to the roUs for the purpose of aUowing him to exhaust his 

accmed 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 

adminisfratively improved on the basis of a timely appUcation supported 

by a doctor's certificate, is entitied to conective action to show her 

separation at the termination of sick leave since that was originaUy 

mtended 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 foUowdng 18-month 

absence for maternity leave. 

Page 4-16 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

e. Sick leave used in computation of annuify 

An employee who aUeges that she was advised by her agency to apply for 

involuntary retirement to faciUtate the processing of the appUcation and to 

apply for disabiUty retfrement after her involuntary retfrement 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 wdthin 3 years from 

separation. However, there are no provisions which allow for a lump-sum 

pajmtient 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 

specificaUy requested that such time be charged to annual leave. After 

annual leave is grauited, an employee may not thereafter have such leave 

charged to sick leave and be recredited wdth the amount of annual leave 

previously charged for the purpose of a lump-sum pajmient 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 

wdth 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 Umit on a lump-sum leave pajnitient for annual 

leave was removed, and apparently after his decision to retfre hi 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 specificaUy requested that 

annual leave be charged Uistead. Subsequentiy the employee desired to 

Page 4-17 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

refroactively 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 wdth the amount of annual leave 

previously charged. See B-191327, November 8, 1978, citmg 54 Comp. 

Gen. 1086 (1975); and B-181087, June 21, 1974. Section 6304(d)(1) of Titie 

5, U.S. Code, does not allow the retroactive substitution of sick leave for 

annual leave because an employee, wdth the aid of hindsight, realized that 

his choice of leave was iryudicious. 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 

refroactive 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 Ueu of sick leave as a matter of choice, thereby avoiding 

forfeiture of that leave at the end of the leave year under 5 use. § 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—Ul 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 retfre, and he requested that the sick leave be refroactively 

charged for the period in Ueu of the annual leave previously requested and 

granted since the annual leave could be included in his lump-sum 

pajTuent, whUe 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 retfrement, substitution of sick for annual 

leave is jdlowable. 

The court, althougli Umiting its holding to the specific facts of the case, 

suggested that GAG review its leave substitution policy. In Ught of the 

Page 4-18 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

Lindsey decision, where an employee retfres or dies during the same year 

in which the leave is taken, and a timely request is made, agencies may 

aUow retroactive leave substitution in thefr discretion depending upon the 

circumstances of each case. Prior decisions to the extent they are 

uiconsistent wdll no longer be foUowed. 57 Comp. Gen. 535 (1978). 

However, cases which do not present the special cfrcumstances as set 

forth in lindsey and 57 Comp. Gen. 535 (1978) wdll be govemed by the 

general rule as set forth above. B-193431, August 8,1978; and B-190662, 

July 7, 1978. 

(3) Adminisfrative error—An adminisfrative enor hi 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 

retfrement on Febmary 28, 1969, it was adminisfratively decided, wdthout 

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 cunent accmal. 

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 pajonent for 24 hours of annual leave charged 

him in enor 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 refroactively substitute sick leave for 

annual leave to avoid forfeiture ofthe annual leave hi a workers' 

compensation leave buy-back situation. Prior decisions 

[Edmond Godfrey, 62 Comp. Gen. 253 (1983); Robert W. Lockridge, 

B-193431, August 8,1979; Betty J. Anderson, B-182608, August 9,1977; and 

Eugene W. Whitwam, 54 Comp. Gen. 1086 (1975)] distuiguished. GUbert J. 

Ramos, B-233945, Febmary 24,1989. 

Page 4-19 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

b. For leave wdthout pay 

(1) GeneraUy—5 use. § 6307 provides for the granting of sick leave only to 

employees on the roUs and not to former employees who have been 

separated by retfrement, resignation, or otherwdse. Separated employees 

may not be restored to the roUs for the purpose of substituting sick leave 

for leave wdthout pay urUess there was an admirustrative enor in fixing 

thefr separation date. B-180436, Febmaiy 13, 1975. 

A retired federal employee seeks the substitution of bought-back sick 

leave for leave wdthout pay (LWOP) for the period he spent on LWOP pending 

a decision on his workers' compensation appUcation. Where the employee 

retfred 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 wdth normal sick leave 

considerations, aUow the refroactive substitution of his bought-back sick 

leave for his LWOP. Larry L. Van Eerden, 63 Comp. Gen. 291 (1984). 

After separation from his employment wdth the govemment, a former 

employee seeks to have a portion of his period of leave wdthout pay (LWOP) 

converted to sick leave because he was not previously informed that the 

sick leave might be avaUable to him whUe he held outside emplojmnent We 

hold that sick leave may not be substituted refroactively after-separation 

in the absence of a bona fide enor or violation of a regulation goveming 

the employee's separation. Marion R. Clark, 67 Comp. Gen. 565 (1988). 

(2) Admirusfrative enor—The estate of an employee, who died whUe on 

leave wdthout pay in which he was placed whUe too iU to report for duty 

foUowdng 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 recaU to dufy except for an 

adminisfrative enor. B-130418, Febmary 28, 1957. 

(3) Uiyustified or unwananted 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 retum to dufy. Upon her retum to 

duty she sought a refroactive grant of the advanced sick leave and 

substitution of the sick leave for leave wdthout pay. If the agency, upon 

review, should find that the original denial was an uiyustified or 

unwarranted personnel action under the Back Pay Act, 5 use. § 5596, 

conective action may be taken. B-187171, June 7, 1977. 

Page 4-20 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

(4) FoUowdng matemify leave—^An employee who resigned followdng 

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 roUs 

to grant the leave hi the absence of an enor 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 iU and continued hi such status throughout the period 

of his iUness, may not be granted sick leave. Absence wdth pay is 

synonymous wdth an active dufy status, ff there are no duties for the 

employee to perform and he is in a nonpay 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-wdthout-leave status when she refused 

reassignment and took leave, claiming sickness. Request for recredit of 

sick leave is denied since pursuant to 5 CF.R. § 630.407, sick leave used in 

the computation of an armuity may not be substituted for leave without 

pay. B-181500, April 2, 1975. 

(7) FoUowdng iUness—^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 Ulness. 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 requfred safefy 

goggles was placed on involuntary sick and annual leave after a medical 

determination that, due to a vision impairment he should not be requfred 

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, Febmary 7, 1975; and B-206544, July 7, 1982. 

Page 4-21 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

An employee who was placed on involuntary sick leave after an agency 

physician found there were limiting conditions to the employee's 

continued emplojmient in his assigned position is not entitied 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. HamUton, 

63 Comp. Gen. 372 (1984). 

Former afr fraffic controUer was placed on involuntary sick leave pending 

his placement into second career fraining program and eventual 

retfrement on disabiUty. The employee is entitied to restoration ofthe 

involuntary sick leave since the detemiination to place him on sick leave 

was not based on competent medical evidence, and was confrary to 

agency procedures. Paul C. Smith, B-218666, AprU 29, 1986. 

U.S. Park PoUceman iiyured in the performance of dufy and assigned to 

Ught dufy for 4 hours a day continues in a pay status for and accmes leave 

based on a fuU 8-hour workday under 5 u.s.e. § 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 chargmg 

of annual or sick leave for absences unrelated to the iryury which 

occuned in the performance of dufy. U.S. Park PoUce, 66 Comp. Gen. 353 

(1987). 

b. Employee ready, wdlling, and able to perform 

An employee was placed on sick leave wdthout his consent whUe an 

agency action for his involuntary disabiUfy retirement was being 

processed. The retirement was later rejected by ese for faUure to establish 

at any time that the employee was not physicaUy and mentaUy capable of 

performing his duties. Subsequentiy the employee was placed on sick 

leave whUe the agency was processing a disabiUfy separation action under 

5 use. § 7701. It too was rejected on the basis that the medical evidence 

did not support the separation. The placing of an employee, who was 

wiUing and able to perform his duties, on involuntary sick leave is an 

uiyustified and unwarranted persormel action, and, upon restoration to 

duty, the employee is entitied to have both periods of sick leave regarded 

as enoneous suspensions, and the salary received during the sick leave 

period regarded as backpay aUowable under 6 u.s.e. § 7701. Therefore, 

recredit of the sick leave is proper. 39 Comp. Gen. 154 (1959). See also 

"Agency-filed appUcation for disabUify retirement" in this ch^ter. 

Page 4-22 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

Army employee was placed on indefinite sick leave as a result of a medical 

examination which found him to be legaUy blind in one eye. The employee 

voluntarily j^pUed for a disabiUfy retfrement which was denied by the 

CivU Service Commission and he was restored to active dufy. Employee is 

not entitied to have recredited the sick leave charged to him whUe 

£^pUcation for retfrement was pending since there is nothing to indicate 

that his leave was involuntary or that he was ready, wdlling, and able to 

work during such period. B-194020, May 12,1981. 

c. Pending fitness-for-dufy examination 

The initial administrative action to place a Veterans Adminisfration poUce 

officer on involuntary sick leave pending a fitness-for-dufy examination is 

justified where the conduct ofthe employee, after an on-the-job iryury, 

raises a question conceming his abiUfy to perform the duties ofthe 

position wdthout 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 eigency 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-192966, 

April 9, 1979. 

d. Agency-filed appUcation for disabiUfy retfrement 

An employee is not entitied to restoration of leave when placed on 

involuntary leave pending resolution of an Jigency-filed appUcation for 

disabUify retirement 41 Comp. Gen. 774 (1962); B-184522, March 16,1976; 

and B-184706, January 12,1976. However, ifthe ^pUcation is denied by 

esc and the agency files an appeal, the employee must be either restored to 

dufy 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 wdthout pay 

pending CivU Service Commission's action on agency-filed appUcation for 

disjibiUfy retfrement Employee claims restoration of leave and backpay 

since Commission denied retfrement j^pUcation. Agency's placing 

employee on involuntary annual leave and leave without pay was'not an 

uryustified or unwarranted persormel 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 reUed on such competent medical 

evidence. B-195597, July 6, 1981. 

Page 4-23 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

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 pubUc health. 42 Comp. Gen. 438 (1963). 

E. Employee Receiving 

Workers' Compensation 

An employee who uses sick leave to recuperate from a work-related iryury 

may "buy back" such leave pursuant to 20 CF.R. § 10.310, be placed on 

leave wdthout pay, and accept compensation for the iryury under the 

Federal Employees' Compensation Act 5 use. §§ 8101-8151. 58 Comp. 

Gen. 741 (1979). There is no other authority to "buy back" sick leave 

except under the conditions prescribed in 20 CF.R. § 10.310. B-189531, 

September 14, 1977. However, wdth administrative approval an employee 

may liquidate advanced leave by refunding the value ofthe sick leave used 

and by being placed in a leave-wdthout-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 

cormection wdth work-related iiyuries 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 Uquidate an indebtedness 

owed the agency since annual and sick leave may not be converted into a 

monetary equivalent in these cfrcumstances. See Donald R. Manning v. 

United States, 7 Cl. Ct 128, 133 (1984); Govemment Printing 

Office—Workers' Compensation, B-229168, September 7, 1988. 

An employee, who used annual leave instead of sick leave based on the 

incomplete advice received from the agency persormel office, may 

refroactively substitute sick leave for armual leave to avoid forfeiture of 

the annual leave in a workers' compensation leave buy-back situation. 

Prior decisions distinguished aie Usted on page 4-19 ofthis title. GUbert J. 

Ramos, B-233945, Febmary 24, 1989. 

R Awards Approval of an incentive awards program for reduced usage of sick leave 

is the responsibUity of OPM, and OPM has recommended agamst such 

approval. Awards—^Telephone—Nonuse of Sick Leave, 67 Comp. Gen. 349 

(1988). 

Page 4-24 GAO/OGC-96-6 CPLM—Leave 
Chapter 4 

Sick Leave 

G. Waiver An employee on extended sick leave when his position was aboUshed on 

December 7,1979, was carried in sick leave status until April 30,1980, 

when he appUed for a discontinued service retirement InitiaUy derued by 

GPM, the appUcation for retirement was approved as of December 7,1979, 

after GAG authorized a refroactive 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 AprU 30,1980, 

and the refroactive annuify pajmtients 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 enoneous nor is there any indication of any 

fault, misrepresentation, or lack of good faith on the employee's part. He 

remains Uable for the amount of sick leave salary that was dupUcated by 

the refroactive annuify payments. James J. Bums, 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 requfred year of 

service incident to a relocation he received from his federal employer. To 

give the appearance of completing the requfred year of service, the 

employee submitted documents purporting to show him on annual leave, 

sick leave, and leave wdthout pay through the end of the requfred time in 

service. Pay for sick leave and a hoUday he received after abandoning 

federal emplojmnent were enoneous payments subject to coUection. 

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. MaiUe, 71 Comp. 

Gen. 199 (1992). 

H. Buy Back of Sick 

Leave—Iryury Incurred 

Outside of Assigned Duties 

GAG employee who was iryured en route to work, wdshes to reestabUsh her 

sick leave balance by using funds received from insurance settiement to 

"buy back" sick leave used. There is no authorify to "buy back" accmed 

sick leave in absence ofapproved claim for iiyury incurred whUe 

performmg duties. Vicki Lynn MUler, B-189531, September 14,1977. See E 

ofthis chapter, above. 

Page 4-25 GAO/OGC-96-6 CPLM—Leave 
Chapter 5 

Other Leave Provisions 

A. Administrative Leave i. GeneraUy 

The term "adminisfrative leave," whUe not officiaUy recognized in 

legislation or executive regulation, is used to refer to an authorized 

absence from dufy wdth pay and without charge to leave. Since there are 

no general GPM regulations covering adininistrative leave, each agency or 

department has the authorify for detennining the situations in which 

excusing employees from work wdthout charge to leave is appropriate. 

However, for some of the more common situations in which agencies 

generaUy grant administrative leave, see FPM Supp. 990-2, Book 630, 

Subchapter 11 and 53 Comp. Gen. 582 (1974). For information regarding 

the granting of adminisfrative leave to daUy, hourly, and piecework 

employees, see 5 C.F.R §§ 610.301-610.306. 

2. Administrative discretion 

a Ffre fightmg 

The denial of adminisfrative leave to an employee for time spent as a 

member of a volunteer fire department in fighting a local fire outside his 

govemment instaUation was a proper exercise of admirusfrative 

discretion. Each agency has the responsibiUfy for determining situations in 

which excusing employees from work wdthout a charge to leave is 

appropriate. 54 Comp. Gen. 706 (1975). 

b. Emergency situation 

A refroactive grant of 8 hours sidminisfrative leave to an employee by the 

local commander of an Afr Force Base for time he spent in cleaning and 

arranging for repafr of damages to his home that resulted from an 

ammunition train explosion, was a proper exercise of adminisfrative 

discretion. Each agency, under the general guidance of decisions of the 

CompfroUer General and FPM Supplement 990-2, Book 630, Subchjqjter 11, 

has responsibiUfy for determining situations in which excusing employees 

from work without charge to leave is appropriate. 63 Comp. Gen. 582 

(1974). 

c. Donating blood 

The granting of adminisfrative leave to a civUian employee ofthe Army so 

that he, as one of two medicaUy acceptable donors, could donate blood on 

a semiweeldy basis to his criticaUy Ul nephew was a proper exercise of 

Page 5-1 GAO/OGC-96-6 CPLM—Leave 
Chapter 6 

Other Leave Provisions 

adminisfrative discretion. The matter is discussed in FPM Supplement 

990-2, Book 630, Subchapter 11, which indicates that donating blood has 

been recognized as one ofthe areas for which adininistrative leave has 

been authorized under law, executive order, or decisions of our Office. 

B-188189, November 2, 1977. 

d. Rest period after fravel 

The granting of adminisfrative leave to an employee for an acclimatization 

rest after he completed a fiiU day of dufy and traveled over 7 hours by afr 

on his retum from Guam is a proper exercise of adminisfrative discretion. 

Each agency, generaUy, has responsibiUfy for detennining situations in 

which excusing employees from work wdthout charge to leave is 

^propriate. 55 Comp. Gen. 510 (1975). However, see 41 CF.R § 301-7.11 

for cunent regulations on rest stops and Titie HI, Travel, CPLM. 

For discussion of acclimatization rest in connection wdth the Fly America 

Act, see Titie III—Travel, Ch^ter 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 ofthe federal 

service. However, such periods are considered to be part ofthe 

employee's basic workday, and an employee who skipped a rest period 

and departed early would not have worked a fuU 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. 

i. Fulfillment of position requfrements 

When federal employees request adminisfrative leave for a brief, 

determinate period of time to fulfiU requfrements of thefr position, the 

employing agency normaUy has discretion to grant the request Thus, 

attomeys who are requfred to become members of a bar to maintain thefr 

employment may generaUy be granted admirustrative leave for the time 

requfred to attend a necessary state bar admission ceremony. But when a 

state provides for an attomey who is a federal employee to be swom in to 

its bar in the viciruty of the attomey's permanent dufy station and place of 

residence, the employing agency may grant administrative leave orUy if the 

Page 5-2 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

attorney chooses the option of being swom in locaUy. Andrew Maikovich, 

B-219112, August 14, 1985. 

g. Sale of a horse 

An employee who was fransfened from Texas to Puerto Rico incident to a 

reduction in force began fravel less than 30 days after fravel orders were 

issued. The employee was granted admirusfrative leave to seU a horse and 

equipment he used in official govemment business which, due to the short 

time involved, held to be sold wdth professional help at a distant location. 

The grant ofadministrative leave is a matter of agency discretion under 

the guidance of our decisions. We have no objection to the grant of 

adminisfrative leave in the cfrcumstances presented. Richard D. Knight, 

B-212688, December 16,1983. 

h. Handicapped employee 

Where a handicapped employee arrived early at his temporary dufy site in 

order to avoid driving in inclement weather it would be an impropriate 

exercise of adminisfrative discretion for the j^ency to excuse the 

employee for the time in question, wdthout 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 

cormection with a change of station, did not complete the fransfer because 

it was canceled. No objection wdU be made to the granting of such leave, if 

the agency determines it was granted for the purpose of complying with a 

fransfer order before its canceUation. An agency may excuse an employee 

for brief periods of time wdthout 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 dufy may be excused for brief periods of time 

without a charge to leave. B-193820, January 9, 1980. 

Page 5-3 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

b. Long periods 

(1) GeneraUy—Employee may not be placed on adminisfrative leave wdth 

pay for an extended period. Nina R. Mathews, B-237616, 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, Febmaiy 5,1976. 

(3) Voluntary humanitarian service—An employee performed services for 

Africare, a private nonprofit organization assisting in the SaheUan Drought 

ReUef Program. The services rendered were simUar to those performed in 

her govemment position. However, she may not be granted jidmirustrative 

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) Intemational athletic competition—^An employee of the Nuclear 

Regulatory Commission may not be granted 3 weeks' adminisfrative leave 

to participate in the Pan American Games as a member ofthe 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 adminisfratively 

requfred physical examinations. Such absences wdthout 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 zmy period the employee may 

subsequentiy be hospitaUzed to take more extensive tests and 

examinations based upon conditions discovered or medical suspicions 

resulting from the irutial 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 shaU be permitted to use annual or sick leave or leave 

wdthout pay in order to receive medical freatment. However, it is not 

Page 5-4 GAO/OGC-96-6 CPLM—Leave 
Chapter 5 

Other Leave Provisions 

• 

wdthin the discretion of the agency to grant administrative leave for 

treatment or examination. B-188012, May 10, 1977. 

c. Work-related iryury 

An agency's action of placing an employee on administrative leave for 

1-1/2 months due to an on-the-job iiyury was improper as no statutory 

authority exists for this action. Although certain situations which are 

discussed ui FPM Supplement 990-2, Book 630, Sll-5, have been recognized 

where an employee may be placed on adminisfrative 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 iryury was placed on 

administrative leave by the agency for a period of almost 4 months. The 

agency had no authorify for granting the employee administrative leave for 

such an extended absence resulting from an iiyury. Accordingly, the 

agency should rescind the adminisfrative leave and charge sick and annual 

leave for the period in question. Since the employee's leave balances were 

sufficient to cover orUy a portion of his 4-month absence from work, the 

agency should retroactively place him on leave wdthout 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 iryury or Ulness resulting from the performance of dufy. The 

employee is placed on administrative leave. 57 Comp. Gen. 781 (1978). 

d. Nonwork-related iryury 

An employee, who was iryured and unable to perform his regular duties 

but who could perform other Umited duties, submitted a grievance alleging 

that his agency did not comply wdth a labor-management agreement in that 

it did not "make every effort" to find a limited dufy 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 cfrcumstances. 

53 Comp. Gen. 1054 (1974). 

Page 5-5 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

e. DisabiUfy retfrement 

A Uruted States magisfrate, who earns neither sick nor annual leave, may 

not have 35 days of adininistrative leave retroactively granted so as to 

change the date of his disabiUfy retfrement from November 9,1976, to 

December 31,1976. An employee's separation date may not be changed 

absent a bona fide administrative enor and there is no authorify to grant 

administrative leave under these circumstances. B-190533, December 2, 

1977. 

5. Other specific situations 

a. Incident to relocation 

A transfened employee seeks restoration of 8 hours annual leave charged 

to his leave account whUe he was awaiting the arrival of movers on a 

scheduled day of fravel. ff his agency detennines that he delayed fravel 

whUe reasonably and necessarily awaiting movers, GAO would interpose no 

objection if he was administratively excused for such time. 55 Comp. 

Gen. 779 (1976). 

Transfened employee who used 40 hours of administrative leave for preand post-moving anangements as authorized by agency regulation was 

charged annual leave for time in excess of 40 hours used for separate trip 

to deUver his automobile to a port for shipment overseas. Although 

traveltime to and from a port to deUver an automobUe may be charged to 

administrative leave, the employee is not entitied to reinstatement of 

charged leave for it is wdthin administrative discretion to set a maximum 

on the time an employee is away from official duty wdthout 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 detennined that travel by privately owmed vehicle is not 

advantageous to the govemment, 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 wdll be provided to 

FAA employees on temporary dufy at the FAA Academy, Oklahoma City, 

Page 5-6 GAO/OGC-96-6 CPLM—Leave 
Chapter 5 

Other Leave Provisions 

Oklahoma, for the purpose of finding Uving accommodations. Because 

accommodations are not provided the employees and per diem is reduced 

due to the extended temporary dufy, the 1-day provision would be 

consistent wdth prior decisions recognizing that various situations wdthin 

the context of official travel may require admirustrative leave, especially ff 

they dfrectiy or indirectiy further the agency's function. B-192258, 

September 25, 1978. 

c. Counsel appointed for indigents 

Federal attomeys who serve as counsel to indigent defendants in state and 

federal court cases may not be excused from their federal employment 

wdthout a loss of pay or a charge to annual leave. 44 Comp. Gen. 643 

(1965) and 61 Comp. Gen. 652 (1982). 

d. Absentee baUot voting 

Dfrective in FPM, authorizing agencies to permit employees who desfre to 

vote in states where they maintain voting residences to be excused for that 

purpose wdthout charge to annual leave, except where voting by absentee 

baUot is permitted, may not be extended by administrative regulation so as 

to authorize the excusing of an employee, wdthout 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 wTongdoing, when it is in the 

interest of the govemment 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 reUeved from duty and continued in a pay status wdthout 

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 

Page 5-7 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

It is wdthin the discretion of the emplojdng agency to allow orUy 2 hours of 

administrative leave for inclement weather even though the employee 

claimed 15 hours ofadministrative 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 admuiistrative leave where her 

retum 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 retum to dufy from a vacation site was 

delayed due to a snow storm which affected both the vacation site as weU 

as the dufy station, it is wdthin the discretion of the agency to grant 

administrative leave depending upon the efforts ofthe employee to reach 

his office. B-195688, Febmary 6, 1980, distmguishmg B-193389, 

November 29,1978. 

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

FoUowing a late evening retum from a temporaiy dufy assignment in 

Vfrgirua, several employees of the Portsmouth, New Hampshfre, 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 admirusfrative leave. The employees on 

annual leave were charged annual leave for the entfre day, but claim 

entitlement to 4 hours adminisfrative leave on the basis that they had 

intended to schedule only 4 hours of annual leave and would have 

reported for dufy but for the early dismissal. Since none of the employees 

on leave informed the agency that they would be reporting for dufy at any 

time that day, the agency reasonably appUed the leave regulations by 

placing the employees in an annual leave status for the entfre shift. 

AnthonyJ. Sami, etal., 66 Comp. Gen. 607 (1987). 

Fort Eustis, Vfrgmia, and Fort Monroe, Vfrgmia, experienced heavy 

snowfaU resulting in a large number of employees reporting late for dufy 

on January 21,1985. The Commanders at both instaUations 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 m a 6-hour workday. The decision whether to close a 

federal instaUation 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 hi question was an abuse of agency discretion. 

Page 5-8 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

Therefore, his decision was not effective to alter the leave status of 

employees who did not report to the instaUation on Januaiy 21. Fort 

Monroe, B-219232, September 26,1986. 

i. Professional examination 

Excused absences of 14, 28, and 31 days, wdthout charges to leave, granted 

to employees for bar examination preparation are not authorized by 

statute and are not appropriate under FPM guideUnes pertaining to 

excusing employees for periods of brief duration. B-156287, Febmary 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 shaU 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 proceeduigs before the Authority. AU other 

matters conceming the use of official time are subject to negotiation 

between the agency and the union, except for matters solely relating to the 

intemal business of a labor organization which must be performed when 

the employee is ui a nondufy status. See 5 u.s.e. § 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 adminisfrative 

authority. The amount of adminisfrative leave granted is a matter of 

administrative discretion, and an agency may establish Umits as to the 

amount of administrative leave which may be granted each employee 

during specUic intervals of time. Grants of administrative leave are usuaUy 

for short periods of tune. Also, the tj^es of activities for which excused 

absences may be granted are matters of administrative discretion and may 

be specified or listed in agency regulations. Adminisfrative Leave—Federal 

Employees Providing Advice and Support to Federal Credit Unions, 

63 Comp. Gen. 542 (1984). 

Page 5-9 GAO/06C-96-6 CPLM—Leave 
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Other Leave Provisions 

1. DayUght saving tune 

Employees who work the night shift on the last Sunday in April when 

clocks are set ahead for daylight saving time may not be aUowed 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 altemative by union agreement or agency poUcy, employees may be 

allowed to work 1 hour beyond the end oftheir 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 authorify 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 wdthout pay (LWOP) to preserve 

possible eligibiUfy for early retfrement pending determination of creditable 

service, retumed to dufy 42 workdays later after being found uieUgible. His 

request that LWOP be changed to administrative leave because he was 

misled by agency's enors 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 eUgibiUfy for early 

retirement, knowdng there was a question about his eUgibUity, he was not 

entitled to backpay under 5 u.s.c § 5596 when he was found ineUgible 

since there was no uiyustified or unwarranted persormel action. B-200015, 

November 17, 1980. See also Gladys W. Sutton, B-209652, August 12, 1983. 

o. Insurance proceeds 

Under 5 u.s.e. § 6324, a member of the Executive Protective Service is not 

charged sick leave while recuperating from an on-the-job iryury. The 

employee is placed on administrative leave. The United States has no 

authorify to collect from the UabUity insurer of the negUgent party causing 

the employee's iryury an amount to compensate itself for the 

administrative leave granted the employee. 57 Comp. Gen. 781 (1978). 

Page 5-10 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

p. Partial shutdowoi of agency 

In its discretion, the Merit Systems Protection Board (MSPB) may 

retroactively grant adininistrative leave wdth pay to employees who were 

ordered not to report for work during a brief partial shutdowm of the 

agency implemented in order to forestaU a funding gap which would have 

necessitated a fuU closedowni. 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 wdthout pay during a scheduled furlough period. The furlough 

plan was later canceled and the employee was aUowed 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 showdng that others similarly situated were 

granted an excused absence wdth pay. Steven M. Rudolph, B-219211, 

December 9, 1985. Compare Merit Systems Protection Board, 62 Comp. 

Gen. 1 (1982). 

B. Holidays l- Generally 

Title 5, u.s.c § 6103(a) designates certain days as legal public hoUdays. 

Subsection (b) estabUshes the rules to be applied to federal employees 

when a holiday designated by law or executive order faUs 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 

metropoUtan Washington area. Title 5, u.s.e. § 6104 extends simUar 

benefits to employees paid on a daUy, hourly, and piecework basis. See 

also Executive Order No. 11582, Febmary 11, 1971, and 5 CF.R §§ 610.201 

and 610.202. 

Page 5-11 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

2. Inclusion of hoUday in regular workweek 

In the absence of specific legislation to the contrary, an administrative 

office may, wdthin its discretion, include a hoUday wdthin the official hours 

of dufy or regular workweek of employees and requfre them to work on 

that day. 22 Comp. Gen. 762 (1942) and 27 Comp. Gen. 191 (1947). 

3. Local and foreign hoUdays 

It is wdthin the adminisfrative discretion of agencies to close field offices 

in the United States, its possessions, or foreign countries on local hoUdays 

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 entitied to compensation for such 

days. 17 Comp. Gen. 298 (1937). 

Afr Force employees stationed in Saudi Arabia on temporary dufy were 

denied access to thefr work areas for 15-day period because of local 

Ramadan hoUday. Employees who elected to leave the country during this 

period are entitied to administrative leave in same marmer as employees 

who remained in the country. B-199961, July 7, 1982. 

4. Inegular unscheduled hoUday work 

An employee receiving premium pay for standby dufy under 6 U.S.C. 

§ 5545(c)(1) may be excused from work on hoUdays wdthin his regular 

tour of dufy wdthout charge to leave when the employing agency 

determines that his services are not requfred on the hoUday. 56 Comp. 

Gen. 551 (1977), overmUng 54 Comp. Gen. 662 (1975). See also B-192815, 

December 7,1978. 

Ifthe employee's services are adrrunisfratively required on the hoUday and 

he absents himself on a hoUday wdthin his regularly scheduled tour of 

dufy, he must be charged leave. 56 Comp. Gen. 551 (1977), overruUng 

64 Comp. Gen. 662 (1975). See also B-193709, November 28,1979. 

The 1977 decision (56 Comp. Gen. 551) was a changed constmction of law 

and was limited to prospective appUcation. Leave which was credited or 

paid lump sum under the authorify of 54 Comp. Gen. 662 prior to April 19, 

1977 (the effective date of 56 Comp. Gen. 551), need not be coUected. 

However, if such leave was not recredited or paid prior to .^ril 19,1977, 

there is no authorify to do so after that date. 68 Comp. Gen. 345 (1979). 

Page 6-12 GAO/OGC-96-6 CPLM—Leave 
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5. Part-time employee 

Part-time employee was scheduled to work 4 hours on Washington's 

Birthday but did not due to hoUday observance. Under 5 u.s.e. § 6104 

employee is entitled only to 4 hours of pay as if work was performed, 

inespective of entitlement of other part-time employees who were 

scheduled to work 8 hours that day. B-194821, AprU 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, shaU receive 10 hours off for a hoUday. 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 ofthe iRS who were hfred during the tax retum fiUng 

season for as long as needed were not entitled to be paid for Memorial Day 

hoUday although separated from service on the day followdng the hoUday. 

At the close of business on the workday preceding the hoUday, there 

remained no further work for the employees and hence the employees 

were precluded by lack of work and not the hoUday 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 hoUday 

Under Executive Order No. 11582, Febmary 11, 1971, an employee whose 

basic workweek is Tuesday through Saturday is entitled to Saturday off, 

an "in lieu of hoUday, when a hoUday faUs on Monday, a regular day off. 

Therefore, when an agency inconectiy requfres employees to take 

Tuesday as a hoUday, the employees are entitled to hoUday premium pay 

for woridng on Monday and must be paid for Tuesday wdthout a charge to 

annual leave. B-127474, Febmary 9, 1979. 

However, because part-time employees are not entitied to a day "in Ueu of 

a holiday which does not faU wdthin their basic workweek, part-time 

employees on a Tuesday-through-Saturday workweek must take annual 

leave or leave wdthout pay when the workplace is closed on Saturday by 

Page 5-13 GAO/OGC-96-6 CPLM—Leave 
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administrative order due to a Monday holiday. B-192104, September 1, 

1978. 

Although part-time employees are not covered by 5 use. § 6103(b) and 

Executive Order No. 11582 which authorize designated and "in Ueu of 

holidays for fuU-tune employees when an actual holiday falls on an 

employee's nonworkday, agencies have the discretion to grant part-time 

employees administrative leave for those hoUdays falUng wdthin the 

part-time employees' 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 hoUday 

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 hohday if it had been a regular working day. B-187520, 

Febmary 22, 1977; and B-186687, January 13, 1977. See also 9 Comp. 

Gen. 350 (1930). 

10. Pay status before or after hoUday 

An employee in a pay status for the workday immediately before or after a 

holiday is entitled to pay for the hoUday regardless of whether he is on 

leave wdthout pay or absent immediately succeeding or preceding the 

holiday. 56 Comp. Gen. 393 (1977), overruUng 13 Comp. Gen. 207 

(1934) and modifymg 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 uryustifiably 

absents himself or refuses to work on a holiday confrary to a proper 

administrative order, there is no requfrement 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 

disciphnaiy action affecting the employee's pay for any other day would 

be subject to the laws, regulations, and procedures appUcable to such 

discipUnary actions. 44 Comp. Gen. 274 (1964). 

Page 5-14 GAO/OGC-96-6 CPLM—Leave 
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12. HoUday good-wiU gesture 

On the last workday before Christmas, an InstaUation Commander 

released the InstaUation's civiUan employees for the aftemoon as a 

"holiday good-wdU gesture." The civiUan personnel officer found the action 

to be a humbug stating that the Commander had no authority to release 

employees as a holiday good-wdU gesture. The Installation Commander's 

exercise ofthe discretionary authority to grant excused absence hi the 

circumst£inces was a lawrful 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 l. GeneraUy 

An employee ofthe United States or ofthe govemment ofthe District of 

Columbia is entitied to leave, wdthout loss of or reduction in pay or leave 

to which the employee is otherwdse entitied, for a period of absence during 

which the employee is summoned in connection wdth a judicial proceeding 

to serve as a juror or as a wdtness on behalf of a state or local govemment. 

5 u.s.e. § 6322(a). 

For materials relating to the disposition of juror and wdtness 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 dufy, he is entitled to restoration of the forfeited leave 

since jury duty constitutes an exigency of the public business under 5 u.s.e. 

§ 6304(d)(1)(B). 60 Comp. Gen. 598 (1981). 

2. PrevaiUng plainttff in discrimination action 

Although not entitled to court leave under 5 use. § 6322 which is Umited 

to jurors and certain summoned wdtnesses, an employee who prevaUs in a 

discrimination action filed against her agency in federal court is entitied to 

official time for attendance at her trial wdthout charge to leave. 59 Comp. 

Gen. 290 (1980). 

Page 5-15 GAO/OGC-96-6 CPLM—Leave 
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3. Unsuccessful Utigant in discrimination action 

An agency granted court leave in cormection wdth employee's unsuccessful 

discrimination aiction against his employing agency under Titie VII of the 

CivU Rights Act of 1964, as amended, codified at 42 use. § 2000e-16 et seq. 

Although the agency's determination to grant the employee court leave 

predated the Office of Personnel Management's histmctions making it 

clear that court leave is not authorized in this situation, the employee's 

absence should be charged to the otherwdse appropriate leave account on 

the basis ofour holding ui WUma Pasake, 59 Comp. Gen. 290 (1980). There 

is no basis to consider the holding in Pasake as appUcable orUy from the 

date FPM BuUetin 630-38 was issued some 5 months after the decision was 

rendered. That buUetin merely clarifies the purpose of 5 u.s.e. § 6322 in a 

manner consistent wdth our holding in Pasake. B-201602, AprU 1, 1981. 

4. Representation of indigent defendant 

An employee ofthe Veterans Adminisfration, who is Ucensed to practice a^^ ^ 

an attomey 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 govemment 

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 govemment to have such time considered official time. 

Furthermore, 5 u.s.e. § 6322 granting court leave to jurors or wdtnesses 

does not jpply here. Ismene M. Kalaris, B-212031, September 27,1983. 

6. Service as a juror 

a EUgibiUfy 

(1) Part-time employee—^A part-time federal employee wdth a regular tour 

of dufy who is caUed 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 

Page 5-16 GAO/OGC-96-6 CPLM—Leave 
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coincide wdth his regularly scheduled tour of duty. 36 Comp. Gen. 378 

(1956). 

(2) Temporary employee—^An employee serving under a temporaiy 

appointment is eUgible for court leave under 5 u.s.c. § 6322. 48 Comp. 

Gen. 630 (1969). 

(3) When-actuaUy-employed employee—Employees working on an 

Uitermittent or when-actually-employed basis wdthout a regular tour of 

dufy are not eligible for court leave under 5 u.s.e. § 6322. 49 Comp. 

Gen. 287 (1969). 

A career-conditional employee on a when-actuaUy-employed basis who 

has a regularly scheduled tour of dufy, may be granted court leave for jury 

dufy performed on scheduled workdays, sUice her employment covered a 

protracted period under a continuing estabUshed work schedule. 

Although, technicaUy, the conditions of her employment caU for a 

when-actuaUy-employed designation, they may be viewed as tantamount 

for court leave purposes, to those of temporaiy employees, whose 

entitlement to such leave was upheld in 48 Comp. Gen. 630 (1969). See 

also B-166056, August 12,1970. 

b. Admirusfration 

(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 entfre period from the date on which he is requfred 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 actuaUy 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 

govemment 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 caU 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) Retum to duty when excused by court—ff the retum of a juror to duty 

would not involve hardship, such as depriving an employee on night dufy 

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 ff he is 

Page 5-17 GAO/OGC-96-6 CPLM—Leave 
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excused from juiy dufy for 1 day or a substantial portion thereof, he 

should retum to his regular dufy or suffer a charge against annual leave. 

26 Comp. Gen. 413 (1946). 

When an employee wdU be expected to perform jury dufy for a substantial 

part of the day on the date stated in the summons commencing jury 

service, the employee is not requfred to report to work that same day. 

Once summoned by a court for jury dufy, an employee's primary 

responsibiUfy is to the court. When it is apparent that an employee wdU be 

requfred to perform jury dufy for less than a substantial part of the day, 

and when it is reasonable to do so, the employee's agency may requfre the 

employee to report for work prior to reporting for or after being excused 

from jury dufy. 60 Comp. Gen. 412 (1981). 

An employee who resided in Vfrginia and whose permanent dufy station 

was Washington, D.C, was summoned to jury dufy in New Jersey for a 

1-week period begiiming on a Monday. The employee is entitied to court 

leave for the Friday he was excused from jury dufy under the holding in 

26 Comp. Gen. 413 (1946). In view ofthe substantial distance involved, it 

would have imposed a hardship to have requfred the employee to retum to 

his permanent dufy station foUowing a day of jury service on Thursday to 

report for duty on Friday. C. Robert Cunan, 64 Comp. Gen. 851 (1985). 

(4) Night jury service—^An employee, who performs dufy for a fuU 

workday and then sits on a grand jury in the evening, may be granted court 

leave for the day foUowdng such dufy to the extent necessary to aUeviate 

hardship. The employee is entitied to retention of a pro rata portion of his 

grand jury fee to the extent that the hours actuaUy served exceed hours of 

court leave granted. B-70371, August 5,1975. 

(5) Weekend dufy—It would be a hardship on Federal Aviation 

Adminisfration employees who are caUed for weekday jury dufy and 

whose tours of dufy include work on Saturdays or Sundays, or both, to 

requfre them to work thefr regularly scheduled weekend days m addition 

to serving on juries on 5 weekdays. Therefore, the Federal Aviation 

Adminisfration may estabUsh apoUcy to pennit those employees to be 

absent on weekends wdthout charge to armual leave and wdth payment of 

premium pay normaUy received by them for work on Saturdays and 

Sundays. 64 Comp. Gen. 147 (1974). 

(6) Employee eUgible for excusal—^An employee who commuted to his 

permanent dufy station in Washington, D.C, from a residence in Virguiia, 

Page 6-18 GAO/OGC-96-6 CPLM—Leave 
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and who also maintained a residence in New Jersey, was caUed to serve as 

a juror in New Jersey. The employee's agency derued court leave after 

determining that he might have been excused from jury dufy since he was 

Uving in Vfrginia The employee is entitied 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 Cunan, 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 

caUed for jury service, court leave should be substituted. 27 Comp. Gen. 83 

(1947). 

An employee on aimual leave under an advance notice of separation from 

the federal civiUan service due to a reduction in force was summoned as a 

juror. He is entitied to have otherwdse 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 requfrement that a period 

of absence for jury service be wdthout 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 armual leave. The intent is to preserve other leave 

rights wdthout diminution resulting from jury service. Thus, regardless of 

whether an employee may desfre to use annual leave when serving on a 

jury, the fact remains that annual leave is being diminished ff 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 dufy, the annual leave may be 

restored since jury dufy constitutes an exigency ofthe pubUc business 

under 5 use. § 6304(d)(1)(B). See 5 u.s.e. § 6322 which prohibits the loss of 

or reduction in annual leave where an employee is summoned to perform 

juiy service. 60 Comp. Gen. 598 (1981). 

(d) Leave wdthout pay—^An employee on leave wdthout pay, although 

otherwdse eUgible, may not be granted court leave when caUed to jury 

dufy. Court leave is avaUable only to an employee who, except for jury 

dufy, would be on dufy or on leave wdth pay. 27 Comp. Gen. 83 (1947). 

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7. Sendee 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 parfy other than the United States or the District of Columbia, is 

performing official duty for the period ofsucb service. 5 use. § 6322(b). 

b. Testimony in official capacify 

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 wdthout regard to any 

entitlement to court leave. 38 Comp. Gen. 142 (1958). 

c. Former employee 

An employee is considered to be a wdtness in his official capacity when he 

is called as a witness in the official capacify of a former position he held in 

the federal service, as well as when called as a wdtness in the official 

capacity ofthe 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 use. § 6322 to 

permit court leave to serve as a wdtness on behalf of any party in a judicial 

proceeding where the United States, the District of Columbia, or any state 

or local govemment is a party. Previously, we held that employees who 

were summoned to appear as individuals find 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 use. § 6322, for the period of absence in which they appeared as 

wdtnesses on behalf of a private party and wdthout official assignment. 

52 Comp. Gen. 10 (1972). 

e. Appearcmce in juvenile court proceedings 

An employee summoned to appear on several occasions in juvenile court 

proceedings in Pennsylvania conceming her son is not entitled to court 

Page 5-20 GAO/OGC-96-6 CPLM—Leave 
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• 

leave under 5 u.s.e. § 6322 since she was summoned as a parfy to the 

proceedings rather than as a wdtness, under a Permsylvania statute which 

provides that the court shaU 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 wdtness 

An employee who is summoned to counfy court for a traffic violation is 

not entitied to court leave as a wdtness under 5 u.s.c § 6322 in cormection 

wdth his appearance in court as a defendant. Entitiement of 

Employee-Defendant to Court Leave, 62 Comp. Gen. 87 (1982). 

g. To accompany chUd to judicial proceeding 

Court leave authorized by 5 u.s.e. § 6322 to employees serving as wdtnesses 

is Umited to the time requfred by an employee to appear personaUy as a 

wdtness or a juror. Consequentiy, this statutory provision does not permit 

court leave to an employee requfred to accompany her 10-year-old son 

who was a witness at a federal grand jury proceeding. Court Leave to 

Accompany ChUd to Judicial Proceeding, 66 Comp. Gen. 355 (1987). 

D. Military Leave l. GeneraUy 

MUitary leave for civiUan employees ofthe District of Columbia and 

federal employees, as defined by 5 u.s.e. § 2105 is authorized by 5 u.s.e. 

§ 6323. MiUtary leave is avaUable to aU permanent or temporary indefinite 

federal and District employees who are members of a reserve component 

ofthe armed forces or the National Guard. 

Under 5 use. § 6323, as amended by Pub. L. No. 96-431, October 1,1980, 

94 Stat 1850, employees are aUowed mUitary leave as foUows: 

Reserve members ofthe armed forces or members ofthe National Guard 

are entitied to up to 15 days of mUitary leave during each fiscal year whUe 

performing active dufy for fraining; 

Reserve members ofthe armed forces or National Guard are entitied to 

22 days of miUtary leave when perfonning federal service or fuU-time 

mUitary service wdth the National Guard for the purpose of providing 

miUtary aid to enforce the law or for providing assistance to civU 

Page 5-21 GAO/OGC-96-6 CPLM—Leave 
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• 

authorities in the protection or saving of Ufe or properfy or the prevention 

of iiyury; or 

Members ofthe National Guard ofthe District of Columbia are entitied to 

miUtary leave for each day of a parade or encampment ordered pursuant 

to Titie 39 ofthe Distirict of Columbia Code. 

A civiUan federal employee, who is a member ofthe reserves, is entitied to 

accme and carry over 15 days of miUtary 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 miUtary leave 

statute, 5 u.s.e. § 6323, 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 use. § 5519, which requfres the crediting of 

mUitary pay against civiUan compensation where miUtary leave has been 

granted under 5 use. § 6323(c). See D., 6. ofthis chapter. 

WhUe 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 dufy wdthout a 

loss in pay or time in service, this section does not operate to shorten the 

time requfred 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 mUitary leave. B-189002, Febmary 8,1978. 

Titie 5, use. § 6323(a) provides that an employee is entitied to mUitary 

leave orUy if he is on active dufy. See 10 u.s.c. § 270(a). Where an employee 

is requfred to attend weekend driUs or attend fraining whUe m an inactive 

duty status, he is not entitied to miUtary 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 aimual leave. 

An employee ofthe Govemment Printing Office (GPO), after mitiaUy 

reporting for 14 days of active duty for training wdth his Afr Force Reserve 

unit retumed to GPO on the first day of his miUtary dufy and performed 

7-1/2 hours of overtime work on a nonregularly scheduled day ofwork. 

Once an employee reports for active miUtary dufy he may not be paid for 

performing his normal civiUan duties, since active miUtary dufy is 

mcompatible wdth civiUan service wdth the govemment Schofield C Ford, 

B-222967, June 2,1987. 

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2. Entitlement 

a. Temporary employees 

Intermittent and temporary employees of the federal govemment, 

appointed for less than 1 year, are not eligible for mUitary leave under 

5 use. § 6323. 54 Comp. Gen. 999 (1975). See also Jeny L. Donathan, 

B-232438, Febmary 24, 1989. 

b. Temporary indefiiute employees 

Employees assigned to an executive agency under the Intergovernmental 

Personnel Act 5 u.s.e. § 3374, are eligible for mUitary leave with pay under 

5 u.s.e. § 6323, provided their appointments are for a period in excess of 

1 year. The CompfroUer General has held that Congress intended to 

exclude from eUgibiUfy for miUtary leave orUy employees having part-time, 

intermittent, and temporary appointments for less than 1 year. B-173997, 

June 19, 1972. 

c. Law clerk-trainee 

Smce the extension of appouitments to 14 months of law clerks serving 

under 5 CF.R. § 213.3102(e) does not change the nature of those 

appointments to permanent or temporaiy indefinite, there is no basis for 

granting mUitary leave wdth pay under 5 u.s.c. § 6323 to law clerk-trainees 

prior to the conversion of thefr 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 (unUke temporaiy employees appointed for less than 

1 year) are eUgible for miUtary leave under 5 u.s.e. § 6323. 46 Comp. 

Gen. 72 (1966). 

e. Part-time employees 

5 use. § 6323(a)(2) authorizes accrual of miUtary leave to part-time 

employees on a percentage basis. 

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f Appointees 

An appointee prior to entry on dufy is not entitied to miUtary leave since 

cm appointment to the civU service is effective only after the appointee has 

accepted the appointment and has actuaUy entered on dufy. An j^pointee 

is not an employee as defined in 5 us e § 2105. B-205972, May 25, 1982. 

g. Key federal employees—members of standby reseive 

Special agents ofthe FBI who have been designated Key Federal 

Employees and are members of the Standby Reserve are entitied to 

mUitary leave under 5 use. § 6323(a) when they are on active dufy for 

trairung. The employees may not use or be charged annual leave for such 

duty unless the period of active dufy for training exceeds the miUtary leave 

avaUable 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.e. § 6323(b), he may not be granted admirusfrative 

leave. The discretionary authority of agency heads to excuse employees 

when absent wdthout charge to leave may not be used to increase the 

number of days an employee is excused to participate in reserve and 

National Guard dufy. Therefore, an employee who has exhausted his 

section 6323(b) miUtary leave may not be further excused from dufy 

wdthout loss of pay or a charge to leave for performing miUtary dufy. 

49 Comp. Gen. 233 (1969). See also B-231760, Febmaiy 17, 1989, where 

leave was denied under 5 u.s.e. § 6323(b) for help in the effort to fight 

forest fires. 

b. Uncommon tour of dufy 

To avoid a disparify in the benefits between employees who work five 

8-hour tours of dufy and those who work uncommon tours of dufy, the 

leave benefits provided in 5 u.s.c § 6323(b), prescribing 22 additional days 

of miUtary leave for civiUan 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 

Page 5-24 GAO/OGC-96-6 CPLM—Leave 
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of hours on the same basis as annual and sick leave is charged under 

5 u.se. §§ 6301-6312. 49 Comp. Gen. 233 (1969). 

c. Weekend driUs 

Civilian employees whose regular workweek includes Sunday, may not 

take mUitary leave under 5 u.s.e. § 6323(a) (1976) to attend weekend Navy 

Reserve driUs since an employee, as a member of a reserve component of 

the armed forces, is entitied to miUtary leave under section 6323(a) orUy if 

he is on active dufy under 10 u.s.e. § 270(a) (1976). DriUs are inactive duty. 

B-202564,July31, 1981. 

4. Status prior to miUtary dufy 

a Leave wdthout pay 

An employee of the Interstate Commerce Commission was placed on leave 

wdthout pay incident to his hospitaUzation. Subsequently, during 

convalescence he received orders to active mUitary duty as a reserve 

officer in the Army Judge Advocate General's Corps. He may properly be 

paid for 15 days of miUtary leave orUy ff it may be determined that he 

would have been in a civiUan pay status during the ffrst 15 days of his 

miUtary service but for the requfrement that he perform such miUtary 

service. B-166993, June 18, 1969; and 37 Comp. Gen. 608 (1958). 

A civiUan employee on leave wdthout pay due to insufficient armual leave 

immediately prior to mihtary leave and in a nonpay status for part of the 

next working day after his retum from 17 days of miUtary duty may 

receive payment for 15 days of miUtary leave pursuant to 5 u.s.e. § 6323. 

But for the requfrement to perform miUtary dufy he would have been in a 

civiUan pay status during the first 15 days of his miUtary dufy period, and 

upon retum he could be considered in a civiUan pay status, having 

performed official duties in his regular civiUan position for a portion of the 

day. B-179444, September 27, 1973. 

b. After enoneous separation 

An employee was reemployed under a temporary ^pointment 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, refroactive to the date of 

separation, pursuant to a ese decision which regarded the employee as 

retaining the same status as when he was improperly removed. He may 

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have miUtary leave, which was denied because of the temporary 

appointment, substituted for annual leave and leave wdthout pay. 34 Comp. 

Gen. 442 (1955). 

5. Administration of mUitary leave 

a. Under section 6323(a) 

(1) Nonworkdays—^Afr Force employees, who were ordered to mUitary 

duty for three separate 5-day periods, covering Monday through Friday, 

wdth a retum to civiUan status on weekends, are not chargeable wdth 

mihtary leave for the intervening weekends, even though they occuned 

between periods of miUtary dufy. MiUtary leave mider 5 use. § 6323(a) is 

chargeable only for such days as an employee is in a mUitary dufy status. 

Therefore, any annual leave charged for such weekends should be 

restored, ff not in excess ofthe maximum accumulation permitted by law, 

and any leave wdthout pay should now be paid. B-149951, November 23, 

1962; and B-171947.27, September 7, 1972. 

Naval reservists, whose 15-day mUitary leave authorized by 5 use. 

§ 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 mihtary leave acts excludes nonworkdays. 

Nonworkdays occurring at the start and close of miUtary leave are not 

included ui the period of mihtary leave. B-133674, December 30, 1957. See 

also B-188145, November 15, 1977. 

When an employee of a govemment agency reports for active duty for 

training he should be placed in a mUitary leave status on the first day for 

which he was regularly scheduled to work and continued in a mUitary 

leave status untU the last regularly scheduled workday, including 

intervening nonworkdays, such as hoUdays and weekends, occurring 

wdtiiUi his tour of active dufy. 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 miUtary leave was continuous and the 

weekend of June 7-8 fell wholly wdthin the period of absence. 61 Comp. 

Gen. 558 (1982). See also George McMiUan, B-211249, September 20, 1983. 

An agency may aUow an employee to choose not to use miUtary leave at all 

for workdays included in an absence due to miUtary duty but rather to 

Page 5-26 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

cover the workdays by taking annual leave, leave wdthout pay, 

compensatory time off, or a combination of these. In such a situation, 

there need be no charge to miUtary leave for the nonworkdays wholly 

wdthin the absence. MUitary Leave, 71 Comp. Gen. 513 (1992). 

(2) Part day—^A Nationad Guard technician for a period of 5 days 

performed 4 hours of civiUan dufy each day followed by active nulitary 

dufy as part of yesir-round annual training authorized under 32 u.s.c § 503. 

He is entitled to civUian pay wdthout charge to leave for the 4 hours 

worked in a civihan capacify on the day he reported for mUitary dufy, wdth 

a charge of 4 hours annual leave or a fuU day of miUtary leave under 5 u.s.c. 

§ 6323(a) for the 4 remaining hours of the civiUan duty day. In order for 

the technician to receive compensation from both civiUan and miUtary 

sources, 8 hours of annual leave or a fuU day of miUtary leave is 

chargeable for the balance of the 5-day period, since no additional pay 

would result for the part-time performance of his civiUan duties without a 

charge to leave. 52 Comp. Gen. 471 (1973). 

A National Guard technician, who became subject to nulitary control upon 

reporting for fuU-time training duty after completion of his civiUan 

workday, is entitled under the principle stated in 49 Comp. Gen. 233 

(1969) to his civUian pay wdthout charge to leave for the day of reporting, 

even though he may be entitled to mUitary pay for that day. However, 

since fuU-time training duty as a member of the National Guard constitutes 

active dufy under 37 u.s.e. § 204(d), which is incompatible with civUian 

service, there is no entitlement under the rule hi 37 Comp. Gen. 255 

(1957) to civUian pay wdthout charge to appropriate leave—mUitary (under 

5 use. § 6323(a)), annual, or leave wdthout pay—for the days subsequent 

to his coming under miUtary control, even though the duties of his miUtary 

assignment were such that he was able to perform his civiUan duty on 

those days. 52 Comp. Gen. 471 (1973). See also George McMiUan, 

B-211249, September 20, 1983. 

(3) FuU day—^A National Guard technician upon completion of his civUian 

workday departed for 2 weeks' fuU-time training dufy. He retumed home 

afterwards in a military travel status shortly after midnight and reported to 

his civUian position the same day. He is entitled to civiUan pay wdthout 

charge to miUtary or civiUan leave for the day of departure, since his 

civUian duties were performed before he became subject to miUtary 

control. He is entitled to civUian compensation for the day he reported 

back to his civUian position, as he no longer was subject to miUtary 

control. In addition, he is entitled to miUtary pay incident to his retum 

Page 5-27 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

travel from training as it is not incompatible wdth the performance of his 

civiUan duties or the payment therefor after the termination of active 

military traming duty. 52 Comp. Gen. 471 (1973). 

(4) Minimum charge—There is no provision for charging mUitary 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 nulitary training in excess of the 15 days of miUtary 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 Ueu of miUtary leave 

when mUitary leave is exhausted in order to receive compensation for 

overtime work scheduled on a nonworkday. B-188145, November 15, 1977. 

Under normal cfrcumstances, an employee may not elect to use annual 

leave rather than mUitary leave for days he is absent from his civiUan 

emplojonent whUe performing active miUtary duty under orders at his own 

option. However, the employee may be involuntarily assessed aimual 

leave, or leave wdthout pay if appropriate, for the days he is absent from 

civiUan emplojmnent to perform active duty for training after his mUitary 

leave has been exhausted. In that situation his employing agency should 

ordinarily charge the first 15 days of active dufy to nulitary leave, and then 

charge the days of absence from employment for the performance of 

additional active dufy to annual leave or leave wdthout pay. George 

McMUlan, B-211249, September 20, 1983. 

(6) Full-time and field training—Employee of the District of Columbia was 

ordered to perform 20 days of fiUl-time trauiing duty and 15 days of armual 

field fraining as a member of the District of Columbia National Guard. 

Since fuU-time training dufy directed under the authority of 32 use. § 502 

is active dufy, employee is entitled to miUtary leave under 5 use. § 6323(a) 

for 15 days ofthe 20 days ofsucb duty. Because the additional 15 days of 

annual field training was ordered under the authorify of Titie 39 ofthe 

District of Columbia Code, appUcable specificaUy to the District of 

Columbia National Guard, he is entitled to miUtary leave for that 

encampment under 5 use. § 6323(c). AND: Since holidays were included 

in these two periods and since the holidays in question were totally wdthin 

the periods of absence on miUtciry leave, employee must be charged 

mUitary leave for them. 60 Comp. Gen. 381 (1981). 

Page 5-28 GAO/OGC-96-6 CPLM—Leave 
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MiUtary leave was denied and annual leave was charged by the employing 

agency to a former employee ofthe Govemment Printing Office and 

member ofthe District of Columbia National Guard because the employee 

had used his 15-day annual allotment of mUitary leave under 5 u.s.e. 

§ 6323(a) during annual training. The employee, as a member ofthe D.C. 

National Guard, was also eUgible to take miUtary leave for annual fraining 

under 5 u.s.e. § 6323(c), which is not subject to the 15-day ceUUig. In view 

ofthis, 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. CaUahan, B-218763, November 26, 1985. 

MiUtary 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 tj^e of schedule the 

employee may work, mUitary 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 "fuU-time mUitary service for his State" 

contained hi 5 u.s.e. § 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 authorify to serve m the active 

miUtary service of the state untU 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 skUl is needed, as weU 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 dufy in aid of law enforcement may be granted annual 

leave or unused mUitary leave under 5 u.s.e. § 6323(a) orUy ff section 

6323(c) leave is exhausted. Under section 6323(b), an employee entitied 

"to leave wdthout 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 ff 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. 

Page 5-29 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

c. Waiver 

An employee who had accumulated 16 days of miUtary leave was 

erroneously granted 28 days of miUtary leave over a 2-month period. His 

indebtedness for use of 12 days of excess miUtary leave is subject to 

waiver under 5 use. § 5584 (1982), but we conclude that waiver is not 

appropriate under the circumstances. James J. Serpente, 68 Comp. 

Gen. 104 (1988). 

An employee caUed to miUtary dufy to participate in Operation Desert 

Storm requested to be placed in a leave wdthout pay status. However, the 

agency enoneously placed him on armual leave and paid him his salary for 

80 hours. Upon discovery of the enor, the agency gave the employee the 

option of keeping the pajmient and the charge to his leave or having the 

leave reinstated and being bUled for the pajmient. The employee chose to 

have the leave reinstated. CoUection of the resulting debt for the annual 

leave payment is not against equify and good conscience nor against the 

best interests of the United States in these circumstances since the 

employee elected to have the leave restored wdth the knowledge that this 

would create a debt. Therefore, the debt is not eUgible for waiver under 

5 use. § 5584. Larry Jamerson, B-248732, July 28, 1992. 

6. Offset of civUian salary 

Where a statute specifically refers by section number to another statute, 

they are interpreted as of the time of adoption, wdthout subsequent 

amendments, in the absence of a contrary legislative intent. Therefore, 

under the cunent code, the salary offset provision in 5 U.S.C. § 5519 

(1988) appUes to amounts received by reservists and national guardsmen 

whUe on miUtary leave to enforce the law under 5 use. § 6323(b) (1988), 

but salary offset does not apply to leave under 5 use. § 6323(c) (1988) for 

District of Columbia National Guardsmen ordered or authorized to serve 

in parades or encampments even though section 5519 UteraUy 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 Ught of the 1980 amendment to the miUtary leave statute, 5 use. 

§ 6323(a), federal employees who are members ofthe Reserve or National 

Guard are now entitled to carry over up to 15 days of unused miUtary leave 

into the next fiscal year. When the carried over leave is combined with the 

Page 5-30 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

15 days accmed in the new fiscal year, it produces a maximum mUitary 

leave benefit of 30 days which may be used in one fiscal year. Employees 

may be continued in mUitary leave status on leave they had to their credit 

in the fiscal year they entered active dufy although the miUtary duty to 

which the leave is appUed extends into the next fiscal year. No retum to 

civUian 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 appUcable. Accmal and 

Charging of MiUtary Leave, 70 Comp. Gen. 263 (1991). This decision was 

ampUfied in 71 Comp. Gen. 513 (1992), unmediately below. 

Federal employees who are members ofthe Reserve or National Guard 

serving on active miUtary duty which extends into a second or succeeding 

fiscal year may accrue and use the 15 days of miUtary leave which accrue 

at the beginning of the second and each succeeding fiscal year wdthout 

retum to civUian status. 70 Comp. Gen. 263 (1991), ampUfied. MiUtary 

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 dufy that spans two or more fiscal 

years, such as Operation Desert Shield/Storm, mUitary 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 mUitary leave. Each fiscal year may be considered separately 

for charging periods of miUtary leave under 5 use. § 6323(a). However, 

once use of miUtary leave is begun, it must be charged on a calendar day 

basis including intervening nonworkdays. MUitary Leave, 71 Comp. 

Gen. 513 (1992). 

E. Home Leave l. Generally 

Home leave for federal employees stationed outside the United States is 

authorized by 5 u.s.c § 6305(a), wdth implementing regulations found at 

5 CF.R. §§ 630.601-630.607. Only those employees who quaUfy for the 

maximum annual leave accumulation of 45 days under the provisions of 

5 u.s.c § 6304(b) are eUgible for home leave. Home leave may be used orUy 

in the United States, the Commonwealth of Puerto Rico, or the territories 

and possessions of the United States. An employee is eUgible for home 

Page 5-31 GAO/OGC-96-6 CPLM—Leave 
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leave entitlements only when he has completed 24 months of continuous 

service abroad. 5 u.s.e. § 6305(a). 

An employee of the Depsirtment 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 accme the 45 days of 

armual leave authorized by 5 use. § 6304(b)(1) for individuals recmited or 

transfened 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 use. § 6304(b)(1), and completed a basic period of 24 months 

continuous service abroad. Agriculture employee 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 eamed home leave was subject to the 

agency's interpretation of implementmg regulations at 5 CF.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 Uruted 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 fUled by 

local hfres, may not be given effect so as to defeat express statutory 

entitiements. 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 orUy 5 months later, did not satisfy the terms of his 

original agreement by remaining wdth 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 emplojmient in Puerto 

Rico does not constitute "service abroad" under 5 use. § 6305(a). Because 

of that residency determination he was not given a retum travel agreement 

and therefore, he faUs to meet the condition of 5 use. § 6304(b)(2)(ii) for 

Page 5-32 GAO/OGC-96-6 CPLM—Leave 
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entitlement to a 45-day leave ceiUng. Miquel Caban, 63 Comp. Gen. 563 

(1984). 

2. In a foreign country 

Since home leave may be used orUy in the Uruted States, the 

Commonwealth of Puerto Rico, or the territories and possessions ofthe 

United States, a Foreign Service employee may not be granted home leave 

Ul the Panama Canal Zone which, through the Panama Canal Treaty of 

1977, is under the fuU sovereignfy of Republic of Panama. 59 Comp. 

Gen. 671 (1980). 

3. Enoneous grant of home leave 

Navy employee who was hired locaUy, in Guam, was enoneously granted 

home leave. Upon employee's retirement. Navy reconstmcted annual leave 

account and charged employee's account wdth number of days of home 

leave taken. Employee is entitied to waiver of home leave enoneously 

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. Mirumum service requfrement 

(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 invaUd, and he was ordered reinstated to his 

prior position or an equivalent position. He accepted a position wdth the 

Bureau of Reclamation in Denver. He is entitied, under 5 u.s.e. § 5596, to 

count the tune he did not spend at his foreign post due to his enoneous 

separation for the purpose of fiUfiUing the 24 months' overseas service 

requfrement. However, the Imiitations unposed on grantuig home leave by 

5 CF.R. § 630.606(c) disqualified the employee from usmg his home leave 

until he has served another qualifying period overseas. 52 Comp. Gen. 860 

(1973). 

(2) Temporary dufy ui the United States—^To be eUgible for the home leave 

travel aUowances 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 foUowdng the date on which he arrives at 

Page 5-33 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

or returns to his overseas post of dufy. Therefore, an agency may not 

regard an agreed upon period of overseas service as commencing on the 

date the employee is assigned to fraining or temporaiy dufy in the United 

States foUowdng completion of home leave and credit the employee wdth 

the time spent in frairung toward the fulfiUment of the cigreed 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 eUgible for a grant of home leave. Titie 5, use. 

§ 6305(a) and 5 CF.R. § 630.606(a) provide that a basic service period of 

24 months of continuous service abroad is requfred for home leave, and a 

continuous period is terminated by a break in service. B-159334, July 29, 

1966. 

(4) Adminisfrative discretion—^The disaUowance of a claim for 

reimbursement for accrued home leave or the credit of such leave to the 

employee's aimual leave account is affirmed, since the legal authorify for 

home leave provides only for its use as such at the discretion of an agency. 

Moreover, the provisions of 5 u.s.e. § 6304(d)(1)(A) regarding the 

restoration of forfeited annual leave are not appUcable, since no forfeiture 

is estabUshed on the record. 54 Comp. Gen. 349 (1974). 

Although the granting of home leave is basicaUy for each agency's 

determination, the Army's refusal to grant it to an employee who had 

completed his basic service period requfred for home leave entitiement 

under 5 u.s.e. § 6305, solely on the grounds that the employee had refused 

to sign a fransportation agreement, appears fundamentaUy discriminatory. 

The right to retum fravel had afready been eamed and home leave itseff is 

not forfeited even ff the employee refuses to sign a transportation 

agreement B-170250, October 23, 1970. 

The determination as to when and in what amount home leave wdU be 

granted is a matter for administrative determination. 62 Comp. Gen. 545 

(1983). 

b. Retum to overseas post requfrements 

(1) Agency determination—^An overseas employee serving in Bangkok was 

fransfened to St Croix, Vfrgin Islands, but was not authorized home leave. 

WhUe 5 u.s.e. § 6305(a) and the implementing regulations provide that an 

Page 5-34 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

employee may be granted home leave iifter 24 months' continuous service 

outside ofthe Uruted States, they also provide that home leave wdU be 

granted orUy when it is plarmed that the employee wdU 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 conceming its interpretation of the 

home leave regulation, 5 CF.R. § 630.606(c)(2) (1987). The Army may grant 

home leave during an employee's period of service abroad, or wdthin a 

reasonable period after the employee's retum from service abroad when it 

is contemplated, i.e., expected, that the employee wdU retum 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 ofthe Pacific Islands 

prior to completion of 2 years' service was found to be invaUd. He was 

ordered reinstated to the same position or an equivalent position, and 

accepted a position wdth the Bureau of Reclamation in Denver. He is 

entitled pursuant to 5 u.s.e. § 5596 to home leave credit authorized under 

5 use. § 6305(a), and may count the time he did not spend at his foreign 

post due to his enoneous separation for purposes of fulfiUing the 24 

months' overseas service requfrement. However, Umitations imposed on 

the granting of home leave disquaUfied the employee for home leave at the 

time he accepted the Denver position, since there was no intent to retum 

hrni overseas. 52 Comp. Gen. 860 (1973). 

(3) Transferred to Alaska—Under 5 u.s.e. § 6305, a federal employee 

generaUy is entitled to home leave if he has completed a basic service 

period of 24 continuous months abroad and it is contemplated that he wdll 

serve another tour of duty abroad. Thus, when an employee served 24 

months in Puerto Rico and transferred to Alaska, he enoneously 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) Transfened to CONUS—^An employee who completed an overseas 

assignment and was transfened 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 

Page 5-35 GAO/OGC-96-6 CPLM—Leave 
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of dufy abroad that is requfred for authorized home leave. See 5 CF.R 

§ 630.606(c). Therefore, the employee is not entitled to home leave. 

B-192199, January 31, 1979. 

(5) FaUure to complete service under new agreement—An employee who 

had been stationed in Monfreal, Canada, for 2 years, used home leave to 

perform renewal agreement fravel. She then retumed to her dufy station in 

Montreal for approximately 18 months before fransferring to a position in 

the United States. The employee is not indebted for home leave since she 

had served in Monfreal for a continuous period of 24 months prior to the 

home leave, the agency aUowed home leave wdth the expectation that she 

would retum for further duty in Montreal and she did, in fact, retum to 

Montreal immediately after using home leave. Her entitiement is not 

affected by her faUure to complete a 2-year service agreement she signed 

before departing Montreal on home leave. Vfrgirua M. BorzeUere, B-214066, 

June 11, 1984. See also Ann McCarthy, B-216935, September 17, 1985. 

F. Leave Without Pay i. GeneraUy 

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 

£m 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 wdthout pay (LWOP) status. Where LWOP has 

been enoneously granted, annual leave should be substituted to avoid 

forfeiture. B-194176, Januaiy 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 adminisfrative 

discretion, and employees cannot demand it as a matter of right, except in 

cases of (1) disabled veterans in need of medical freatment, and 

(2) reservists and National Guardsmen performing miUtary trairung duties. 

Page 5-36 GAO/OGC-96-6 CPLM—Leave 
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• 

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 dufy 

Where an agency relocated its offices and during the fransition bused 

employees to the new offices wdthin normal working hours, the agency 

may place an employee on leave wdthout pay where the employee refused 

to be bused to the new offices and, thus was considered to be uryustffiably 

refusing to report for duty as assigned. B-186095, April 26,1976; and 

B-159542, July 21, 1966. 

b. Employee incapacitated for dufy 

When an employee is determined to be incapacitated for the performance 

of assigned duties, he may be involuntarily placed on leave wdthout pay. 

B-186197, July 28, 1976; B-181313, Febmary 7,1975, and May 6, 1977; and 

B-206237, August 16, 1982. 

c. DisabiUty retirement 

Recommendations on granting leave wdthout pay pending settiement of an 

employee's claim for disabUify retirement are contained ui FPM Supp. 

831-1. An agency may, under conditions set forth Ui 5 CF.R § 831.1206, 

place an employee on leave wdth or wdthout his consent when the agency 

has filed an appUcation for disabiUfy retfrement. Such action does not 

constitute an uryustified or unwarranted persormel action under 5 use. 

§ 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 wdthout pay may be granted to an employee pending action on a 

claim for disabUity compensation under the Federal Employees' 

Compensation Act, 5 u.s.e. §§ 8101-8151, and may be substituted for annual 

and/or sick leave previously charged when disabiUfy compensation is 

granted for a work-related iUness or iryury. 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, AprU 28, 1969; and B-112786, 

Page 5-37 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

• 

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. DisabiUty retfrement 

In order to increase his annuity, an employee ofthe Afr Force who retfred 

on disabihty in 1976 requested that he be aUowed to waive and refund 

compensation received during a period of disabiUfy and be placed on leave 

wdthout pay. The effect would be to push back the date of retfrement to 

1974. Refund may not be accepted because there is no authorify for an 

employee to waive and refund compensation when the salary for his 

position is fixed by or pursuant to legislative authorify. B-189897, 

September 5, 1978. 

An employee, who was on leave and approved LWOP pending a 

determhiation on his appUcation for disabiUfy retfrement, including his 

unsuccessful appeal of the denial of his apphcation, 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, wdlUng, 

and able to work during thcit period. B-128314, January 8,1979. 

7. Substitution of leave wdthout 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 

obUgation of the United States is discharged and cannot be changed in the 

absence of a law or regulation so providing. Furthermore, agency poUcy of 

requiring the use of annual leave before leave wdthout pay precludes the 

requested substitution. B-188242, August 9, 1977. 

b. For sick leave 

(1) Adminisfrative enor—^A terminaUy iU employee who appUed for 

disabiUfy retfrement and waived his miUtary retfred pay, neglected to 

request LWOP and died whUe in a sick leave status prior to z^proval of the 

disabiUfy retirement. The faUure to request LWOP resulted in a substantiaUy 

lower survivor annuify to the employee's wddow. Since the faUure to 

request LWOP resulted from the employee's mistaken beUef that he had 

performed aU actions necessary to maximize the annuify, the agency may 

retroactively substitute LWOP for sick leave. B-190204, January 26, 1978. 

Page 5-38 GAO/OGC-96-6 CPLM—Leave 
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Other Leave Provisions 

However, where there are no counseUng errors or misunderstandings on 

the part of the employee, LWOP may not be retroactively substituted for 

sick leave. 58 Comp. Gen. 661 (1979), distinguishmg B-190204, January 26, 

1978. 

(2) Premature retirement—GeneraUy, 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 

retfred voluntarily after enoneous advice regarding Ufe insurance and who 

would have otherwdse delayed her retfrement may be retroactively 

restored to the roUs in an LWOP status Ui order to obtain the required 

creditable service. B-187596, December 15,1976. 

G. Miscellaneous l- Compensatory time for reUgious holidays 

Under the provisions of 5 u.s.e. § 5550a, employee may work overtime and 

eam compensatory time for reUgious observances requiring the 

employee's absence from work. 

2. Voluntary leave sharing 

In 1988 a voluntary leave sharing program was created. 5 u.s.e. 

§§ 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. 

Page 5-39 GAO/OGC-96-6 CPLM—Leave 

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