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Board for Correction Case No. 034-83

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Board for Correction Case No. 034-83

175.00 Leave (Includes Annual / Home / Sick / Station Leave) - Pay for unused annual leave

Recommendation of the Board for Correction Case No.034-83, xxxxxxxxxxxxxxxxxxxx

xxxxxxxxxxxxxxxxx filed an application dated xxxxxxxx, 1983 with the Board for Correction requesting that a determination be made on whether the Commissioned Personnel Operations Division (CPOD) acted properly in divesting him of payment for his unused annual leave. Xxxx re­quested the members of the Board to reverse the CPOD decision, and permit him to apply the payment for his unused annual leave against his Retention Special Pay (RSP) indebtedness. The merits of the request were reviewed on the basis of the documentation provided. The relevant facts and the Board's Findings, Conclusions and Recommendation are included as Attachment 1.

After consideration of all information provided, the Board for Correction recommended that the actions taken by CPOD be upheld. This includes the actions separating from active duty as of xxxxxx xx, 1983, withholding payment for the leave he took, and divesting him of the right to a lump sum payment for his unused leave. Based upon the recommendation of the Board, xxxxxxx will have to refund $2,806.06 to the U.S. Gov­ernment for the unmet portion of his RSP contract.

It is certified that the foregoing recommendation is a true and complete statement of action taken by the Board for Correction, as contained in Attachment 1 to this memorandum, and that the report and this recommenda­tion have the concurrence of the Board's members. Further, it is certified that the documentation contained in Attachment 2 includes all information presented to the Board, and that, in addition to applicable statutes, regulations and policies, it has been considered by the Board in arriving at its recommendation. Finally, it is certified that a quorum was present at the Board's meeting on Xxxxxx1983 when 's request was considered.

The foregoing action of the Board for Correction is submitted for your review and approval.

Ellen Wormser

Attachments:

(1) Board's Findings, Conclusions and Recommendation
(2) Case Summary and all available documenting evidence

FINDINGS AND CONCLUSIONS

The basic question before the Board for Correction is whether divestiture of unused annual leave is an enforceable penalty under the circumatsnces described by xx xxxxxxx for breaking his RSP contract. To resolve this question, the members of the Board addressed the following:

Eligibility of xxxxxxxxxxxx for Lump-sum Leave Payment

The Board members find that the authority to approve or deny a claim by a commissioned officer for lump SUID payment for, or transfer of, unused annual leave upon an officer's separation from active duty has been given to the Surgeon General under the provisions of 37 U.S.C. 501(9) (1), (2), and (3), which states:

"An officer of the Regular Corps of the Public Health Service, or an officer of the Reserve Corps of the Public Health Service on active duty, who is credited with accumulated and accrued annual leave on the date of his separation, retirement, or release from active duty, shall, if his application for that leave is approved by the Surgeon General, be paid for that leave in a lump-sum."

CCPM, Subchapter CC29.l, Instruction 2, "Annual Leave" Section F, specifies the conditions under which the Surgeon General can deny lump gum leave payment or: transfer of unused annual leave in behalf of a commissioned officer. One condition is when:

"... the officer fails to fulfill his service obligation incurred as a result of the receipt of special or incentive pay."

Section H(3)(d) of Subchapter CC29.l states further,

"CPOD will determine whether the officer's application for lump-sum payment for unused annual leave or transfer of such leave to another department or agency, is to be denied or approved."

The members of the Board examined the decision of the Comptroller General of the United states, dated Xxxxxxxxx, 1981, on the authority of the Surgeon General to divest an officer of annual leave upon separation from the Corps. The decision of the Comptroller General is as follows:

"Under a statutory proviso enacted in 1950 granting a Public Health Service (PHS) officer a final settlement for unused accrued annual leave upon his separation from active duty if "his application for (that) leave is approved by the Surgeon General," PHS has long required a PHS officer who breaches his active duty commitment to be divested of leave.

"Regulations so providing are clearly valid, since the statutory proviso plainly authorizes the Surgeon General to deny leave applica­tions in appropriate circumstances and Congress has not modified that statute or authority. 37 U.S.C. 501(g)...58 Comp. Gen. 77 (1978) affirmed."

Further,the decision states:

"The statutory language of 37 U.S.C. 501(g) expressly provides that a PHS officer may be granted a final settlement for annual leave upon his separation from active duty only "if his application for that leave is approved by the Surgeon General," and it is our view that this statu­tory proviso plainly contemplates that the Surgeon General's approval will be withheld in appropriate circumstances. Reportedly this has been the practice for three decades, and the Congress has not altered the statutory proviso under which the regulations have been promul­gated, even though the original 1950 legislation has from time to time been amended in other respects. Hence, it is our view that the longstanding regulations which operate to divest a PHS officer of unused accrued leave if he fails to complete his active duty obligation are valid and within the scope of the statute. We therefore affirm our previous decisions concerning the issue."

The Board members conclude that the decision to deny a lump sum payment for his unused annual leave was valid and in accordance with the authority of PHS management.

Intent of, the RSP Program

Section 302 5(c)(1) of 37 U.S.C. specifies a Condition under which an officer qualifies for special pay as follows:

An officer may not be paid additional special pay under subsection (a)(4) of this section o-r incentive special pay under subsection (b) of this section for any twelve-month period unless the officer first executes a written agreement under which the officer agrees to remain on active duty for a period of not less than one year beginning on the date the officer accepts the award of such special pay."

Section 302 5(f) states the following with respect to an officer who voluntarily leaves the service before completing his special pay contract:

"An officer who voluntarily terminates service on active duty before the end of the period for which a payment was made to such officer under subsection (a)(4) or (b)(l) of this section shall refund to the United States an amount which bears the same ratio to the amount paid to such officer as the unserved part of such period bears to the total period for which the payment was made."

The Board members accept the decision of the Comptroller General validating the divestiture by the Surgeon General of annual leave of an officer who breaches his active duty commitment. The members of the Board conclude that failure to complete an RSP contract is one way in which an officer can breach his active duty commitment, since under the contract, the officer agrees to remain on duty for a specified period of time.

Officer Awareness of CPOD RSP Policy

xxxxxx states that he was advised by IHS personnel that he could return from annual leave, work one day and not be on terminal leave, thus, in his opinion, making the action by CPOD (divesting him of his right to annual leave) unjustified. xxx xxxx supervisor at the IHS, informed the Board that he advised the applicant to handle his separation the way did, not knowing that breaking an RSP contract carried with it the loss of payment for accrued annual leave as a penalty.

The Board members find that CPOD issued CC2.2, Personnel Instruction 3, "Retention Special Pay", dated xxxxxx x, 1981, to all Medical Officers describing the provisions of the RSP program. Section K of this document sets forth possible penalties for breaking the RSP contract, including loss of payment for unused annual leave.

The Board members conclude that had access to information on the penalties for breaking an RSP contract, and had voluntarily signed an agreement in which divestiture of lump sum payment for accrued annual leave was a provision.

Application by CPOD of RSP Policy to Xxxxx's Situation

The Board members examined the record to make a determination of whether the decisions made by CPOD were in accordance with the policies governing the RSP program, and whether those decisions were in accordance with the facts affecting .

There was a question in the minds of the Board members of how to interpret the intent of request for the 41 days of annual leave since:

  1. his request for leave was made shortly after he was informed by CPOD that he was ineligible for a lump sum leave payment, and
  2. his request was for all of the leave he had remaining.

One view was whether payment for all of xxxxx leave should be denied him. CC29.1, Section 7(a) of the Corps Manual states:

"...the leave granting authority must deny any request by an officer for terminal leave if, upon separation or retirement from active duty, the officer would be denied lump-sum payment for unused annual leave under the provisions of Section F.5."

Section F.5 denies lump s~ leave payments to an officer who:

"...fails to fulfill a service obligation incurred pursuant to receipt of special or incentive pay."

The action taken by after he went on annual leave could have the effect of making illegal his original request for annual leave, and leave taken up to the point when he filed his separation papers. Such an interpretation could mean that would be denied payment for all of his annual leave.

The members of the Board find that broke his RSP contract. The Board members conclude that the penalty for breaking this contract is applicable to and should be enforced by the Commissioned Personnel Operations Division.

RECOMMENDATION

After consideration of all information provided, the Board for Correction recommended that the actions taken by CPOD be upheld. This includes the actions separating from active duty as of xxxxxx x, 1983, withholding payment for the leave he took, and divesting him of the right to a lump-sum payment for his unused leave. Based upon the recommendation of the Board, will have to refund to the U. S. Government $2,806.06 for the unmet portion of his RSP contract.

I certify that each of the Board members has read this report and that its content is a true and complete statement of the deliberations of the Board.

Ellen Wormser
Chairperson
Board for Correction of PHS Commissioned Corps Personnel Records


Anyone wishing to obtain an un-redacted copy of any of the decisions should submit a request for the un-redacted decision under the federal Freedom of Information Act (FOIA). Such requests should be directed to the PHS FOIA Office, Parklawn Building, Room 17 A-46, 5600 Fishers Lane, Rockville, MD 20857; telephone 301-443-5252; fax 301-443-0925.