Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Department of the Navy
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/18/2018
Date
The claimant is a Federal civilian employee of the Office of Naval Research (ONR), U.S. Department of the Navy in Arlington, Virginia. During the claim period, the claimant was on a 12-month temporary duty (TDY) assignment in Afghanistan. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of home leave. We received the claim on September 26, 2016, the agency administrative report (AAR) on November 18, 2016, and agency supplemental information on June 22, 2017. For the reasons discussed herein, the claim is denied.
On June 24, 2014, the claimant arrived for his TDY assignment in Afghanistan under the Civilian Expeditionary Workforce (CEW) program. The CEW is a Department of Defense (DoD) program that deploys civilian employees to support military operations. The claimant states that the deployment came with many benefits, one of which was 15 days home leave after the completion of twelve months of service abroad. On June 22, 2015, his tour ended and the claimant submitted a request for home leave to ONR Human Resources, who in turn certified it and “to [his] knowledge, [processed it]…without modification.” However, on November 17, 2015, the agency notified the claimant he was one day short of the required 365 days of continuous service in the country of Afghanistan, and thus rendered him ineligible to receive home leave. The claimant disagrees with the agency’s determination.
The agency denied home leave based on section 1603 of Public Law 109-234, June 15, 2006 [1], and DoD implementing policy for employees assigned to Iraq or Afghanistan. In the AAR, the agency maintains the claimant accepted a TDY assignment in Afghanistan, served for 364 days, and “was denied home leave accrual for not having served the full 12 months as required by DoD policy in order to accrue and use home leave.”
Home leave is a form of leave that may be granted to employees who complete 24 months of continuous service overseas (section 6305 of title 5, United States Code). The introductory clause of 5 U.S.C. 6305(a) states –
(a) After 24 months of continuous service outside the United States (or after a shorter period of such service if the employee’s assignment is terminated for the convenience of the Government), an employee may be granted leave of absence, under regulations of the President, at a rate not to exceed 1 week for each 4 months of that service without regard to other leave provided by this subchapter.
The controlling regulations for home leave are contained in the Code of Federal Regulations (CFR), title 5, part 630, subpart F. Under 5 CFR 630.602 (coverage provision) it states:
An employee who meets the requirements of section 6304(b) of title 5, United States Code, for the accumulation of a maximum of 45 days of annual leave earns and may be granted home leave in accordance with section 6305(a) of that title and this subpart.
Therefore, an employee who qualifies for the accumulation of a maximum of 45 days of annual leave under 5 U.S.C. 6304(b) may earn home leave. Under normal circumstances, an employee on TDY to Afghanistan would not meet the CFR, nor DoD requirements to earn home leave because an employee who is on temporary duty is not eligible to accumulate a maximum of 45 days of annual leave.
However, under authority provided by section 1603 of P.L. 109-234, agencies are authorized to provide employees on official duty in Iraq or Afghanistan with “allowances, benefits, and gratuities comparable to those provided by the Secretary of State to members of the Foreign Service.” Consistent with provisions governing the Foreign Service at 22 U.S.C. 4083 [2], DoD employees who are officially assigned to Iraq or Afghanistan by means of Temporary Duty (TDY), Temporary Change of Station (TCS), or Permanent Change of Station (PCS) are not required to complete the basic one-time service requirement of 24 months of continuous service abroad specified in 5 U.S.C. 6305 in order to earn home leave. Further, these employees are not required to be eligible to accumulate a maximum of 45 days of annual leave under 5 U.S.C. 6304 in order to earn home leave under authority provided by section 1603 of P.L. 109-234.
DoD’s policy guidance implementing section 1603 of P.L. 109-234 is expressed in a memorandum issued by the Undersecretary of Defense regarding Benefits, Allowances and Gratuities for Department of Defense (DoD) Civilian Employees under Public Law (P.L.) 109-234, dated May 4, 2007. The home leave policy in paragraph C.1.a. states –
1. Home Leave
a. Under authority provided by P.L. 109-234, and consistent with provisions of 22 U.S.C. 4083, a DoD employee who is officially assigned to Iraq or Afghanistan by means of Temporary Duty (TDY), Temporary Change of Station (TCS), or Permanent Change of Station (PPCS) shall earn, and may be granted home leave, if the following criteria are met:
(1) The employee must serve a period of continuous service in Iraq or Afghanistan of at least 12 months, and
(2) The employee must be expected to return to service abroad to Iraq or Afghanistan, or to another overseas location upon completion of the home leave period, or upon completion of an assignment in the United States. Home leave is not granted unless it is expected that the employee will return to service abroad.
The DoD home leave policy for employees assigned to Iraq or Afghanistan requires the employee to serve at least 12 months of continuous service in Iraq or Afghanistan. There is no dispute the claimant’s tour in Afghanistan began on June 24, 2014 and ended on June 22, 2015. The term “month” is defined as “a period which runs from a given day in 1 month through the date preceding the numerically corresponding day in the next month” within both OPM’s home leave regulation at 5 CFR 630.601 and State Department’s Foreign Affairs Manual (FAM) home leave regulation at 3 FAM 3432 which implements 22 U.S.C. 4083. Therefore, the claimant did not complete a full 12 months of service in Afghanistan, as he fell one day short.
The claimant spent 3 days in Kuwait staging for entry in Afghanistan and contends this time should be included in the calculation of his 12 months of service as a component of his tour of duty in Afghanistan. However, DoD’s policy on home leave does not credit time spent in Kuwait towards the period of service in Iraq or Afghanistan for earning home leave. DoD’s home leave policy for employees assigned to Iraq or Afghanistan states, the employee must “serve a period of continuous service in Iraq or Afghanistan of at least 12 months…” Kuwait is not an authorized service location under the plain language of the DoD home leave policy for employees assigned to Iraq or Afghanistan, and time spent in Kuwait cannot be used toward the 12-month continuous service in Iraq or Afghanistan calculation. DoD “follows the strict language of its policy memos and stated that the full 12 months of service was required for accrual of home leave.” For this reason, we are unable to find a basis for disturbing the agency’s decision to deny home leave.
The claimant contends his duty time in Kuwait should not be disregarded or accounted for differently than it is for US military members because “DoD civilians are deployed in support of military operations” and “are subject to the same processes, procedures, circumstances, rules, and regulations as the military members next to them.” The claimant adds that military departments credit their service members for their time spent in Kuwait towards their completion of the specified 365 day tour of duty. He asserts that because military members and civilians are treated similarly on assignment that the time civilians spend in Kuwait staging for entry in Afghanistan should also be credited and applied to the time earned for home leave. However, the claimant’s assertion is not persuasive as military benefits are authorized under separate statutes with no expectation of equivalence to statues and regulations pertaining to civilian benefits. Therefore, policies regarding military and civilian benefits may not be compared as a means of justifying the granting of benefits that would not otherwise be allowed.
The claimant further asserts his duty time in Kuwait should be recognized as a component of his tour length for the computation of home leave eligibility because the agency did not provide “record of any pre-deployment correspondence [which] explicitly defines [his] 12-month tour of duty to Afghanistan as being equal to precisely 365 days and that all of those days must be spent in Afghanistan in order for [his] 12-month commitment to be considered satisfied or to earn home leave.” Nevertheless, even if they have no actual knowledge, Federal employees are charged with constructive knowledge of statutory requirements pertaining to them and of the implementing regulations authorized to be issued by statute. See B-173927(1), October 27, 1971; B-187104, March 8, 1978; and B-192510, April 6, 1979. Therefore, that the claimant was not provided specific information relating to his eligibility for home leave does not confer eligibility not otherwise permitted by statute or its implementing regulations.
OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the record presents an irreconcilable factual dispute, the burden of proof is on the claimant to establish the liability of the United States. 5 CFR 178.105, Jones and Short, B-205282, June 15, 1982. Where the agency’s determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, March 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995. The agency decision to deny the claimant home leave was in accordance with the controlling statute and regulations which do not allow for the exercise of discretionary authority. The agency decision cannot be considered arbitrary, capricious, or unreasonable, as compliance with statute and regulation is mandatory. Therefore, the claim is denied.
This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the claimant’s right to bring an action in an appropriate United States court.
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[1] The authority under section 1603 of P.L. 109-234 to grant home leave to employees assigned to Iraq and Afghanistan was effective only for the period June 15, 2006, through September 30, 2008. This authority was extended under section 1102 of P.L. 110-417 to continue the authorization of the same benefits through the end of fiscal year 2011. This authority was further extended under section 1107 of P.L. 111-84 and continues in effect as long as Iraq and Afghanistan are designated combat zones by executive order.
[2] 22 U.S.C. §4083. Required leave for Foreign Service
(a) Criteria; length of continuous service
The Secretary may order a member of the Service (other than a member employed under section 3951 of this title) who is a citizen of the United States to take a leave of absence under section 6305 of title 5 (without regard to the introductory clause of subsection (a) of that section), upon completion by that member of 12 months of continuous service abroad. The Secretary shall order on such a leave of absence a member of the Service (other than a member employed under section 3951 of this title) who is a citizen of the United States as soon as possible after completion by that member of 3 years of continuous service abroad.