Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Washington, DC
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/31/2020
Date
The claimant is a Federal civilian employee of the U.S. Department of Agriculture in Washington, DC. He seeks an adjustment to his service computation date (SCD) for annual leave accrual purposes to include credit for his years of active duty military service. The U.S. Office of Personnel Management (OPM) received the claim on June 21, 2018, and the agency administrative report (AAR) on March 22, 2019. For the reasons discussed herein, the claim is denied.
The claimant’s DD 214, Certificate of Release or Discharge from Active Duty shows he retired from the Army National Guard on February 28, 2006. Box 31 of Standard Form 50, dated January 7, 2018, shows his SCD (Leave) as March 20, 2006, the date he was appointed to Federal civil service. However, the claimant states “13 years, 5 months and 20 days were bought back/credited to [his] FERS account for retirement with no annual leave accredited,” thereby suggesting that because his military service time is creditable for retirement purposes after making a military deposit, the service time should also be creditable for annual leave accrual purposes. To substantiate his claim, he relies on the provisions of chapter 1223, of title 10, United States Code (U.S.C.) which pertains to retired pay for non-regular service.
The agency relies on the annual leave accrual law at 5 U.S.C. 6303 to support its determination that the claimant’s military service time is not creditable for determining years of service for annual leave accrual purposes for military retirees. The AAR states:
- The Guide to Processing Personnel Actions (GPPA), Chapter 6 is the primary reference used in determining if military service is creditable service for leave accrual. The guide is based on Section 6303 of title 5, United States Code, which restricts the amount of leave accrual credit military retirees received for their active duty service and provides and exception that specifies that uniformed service for leave accrual is treated differently than retirement purposes.
* * * *
- The claimant is retired and/or eligible for military retirement pay. The claimant’s DD 214 states in Block 23, Type of Separation: Retirement and Block 28, Reason for Separation: Sufficient Service for Retirement.
Section 6303 sets forth the rules for determining years of service for annual leave accrual for Federal civil service employees and provides,
In determining years of service, an employee is entitled to credit for all service of a type that would be creditable under section 8332, regardless of whether or not the employee is covered by subchapter III of chapter 83, and for all service which is creditable by virtue of subsection (e).
However, Congress has limited the circumstances under which retired members of the uniformed service may receive credit for military service for annual leave accrual purposes as provided under 5 U.S.C. 6303(a)(A)-(C) (emphasis added):
However, an employee who is a retired member of a uniformed service as defined by section 3501 of this title is entitled to credit for active military service only if—
(A) his retirement was based on disability—
(i) resulting from injury or disease received in line of duty as a direct result of armed conflict; or
(ii) caused by an instrumentality of war and incurred in line of duty during a period of war as defined by sections 101 and 1101 of title 38;
(B) that service was performed in the armed forces during a war, or in a campaign or expedition for which a campaign badge has been authorized; or
(C) on November 30, 1964, he was employed in a position to which this subchapter applies and thereafter he continued to be so employed without a break in service of more than 30 days.
Although active military service time is generally creditable for annual leave accrual purposes for non-retired members of the uniformed service, section 6303(a) restricts the amount of credit military retirees receive for their active duty service. The law provides no legal authority to grant retired members of the uniformed services any credit for military service for annual leave accrual purposes unless the employee meets one or more of the conditions outlined in 5 U.S.C. 6303(a)(A-C). The claimant retired from the Army National Guard after performing sufficient service for retirement and is a military retiree. As he does not meet any of the qualifying conditions under 5 U.S.C. 6303(a)(A)-(C), his active military service time is not creditable for annual leave purposes and the claim is accordingly denied. See OPM file numbers 08-0025 and 18-0010.
The claimant’s assertion that because his military service time was creditable for retirement purposes after making a military deposit, the service time should also be creditable for annual leave accrual purposes, is misplaced. However, creditable service for annual leave accrual purposes does not depend on making a military service deposit; creditable service for annual leave accrual purposes is only provided under 5 U.S.C. 6303. Additionally, while the claimant relies on 10 U.S.C. 1223 and believes this exemption allows his active military service to be creditable for annual leave accrual purposes, the information provided by the claimant does not sufficiently establish its relevance.
Under 5 CFR 178.105, the burden of proof is on the claimant to establish the liability of the United States and the claimant's right to payment. OPM does not conduct adversarial hearings, but instead settles claims on the basis of the evidence submitted by the claimant and the written record submitted by the government agency involved in the claim. See 5 CFR 178.105; Matter of John B. Tucker, B-215346, March 29, 1985. Where the agency's factual determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, supra.
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.