Washington, D.C.
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Department of the Navy
Wahiawa, Hawaii
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
06/03/2020
Date
The claimant is a Federal civilian employee of the U.S. Fleet Forces Command, Department of the Navy, in Wahiawa, Hawaii. He requests the U.S. Office of Personnel Management (OPM) reconsider the agency’s denial of his request to use home leave he earned during previous periods of service abroad for leave taken prior to a new overseas assignment. Although subsequently using annual leave to cover the 72 hours of leave he had requested, the claimant asks OPM to direct his agency to “change [his] charged leave from 72 hours ‘leave [annual]’ to 9 days ‘home leave’ entitlement.” We received his claim on October 3, 2019, the agency’s administrative report on November 12, 2019, and the claimant’s comments on the report on November 14, 2019. For reasons discussed herein, the claim is denied.
The claimant completed various overseas tours, including in Misawa, Japan from June 2008 to March 2012; Jalalabad, Afghanistan from February 2015 to May 2016; and Stuttgart, Germany from July 2016 to November 2017. Based on his service abroad, he earned 41 days of home leave. On October 2, 2018, the claimant, while occupying his position with the Navy in Hawaii, volunteered for the Department of Defense Expeditionary Civilian (DoD-EC) program which deploys civilian employees to support military operations abroad. On February 2, 2019, he accepted a 12-month assignment under the DoD-EC program to Afghanistan. Shortly thereafter, the claimant submitted his request to use home leave prior to his deployment, which was denied by the DoD-EC Program Manager in a February 5, 2019, email because he was “not currently serving in an overseas location.” The claimant used annual leave to cover his leave from April 22-29, 2019, to Ewa Beach, Hawaii, and from May 1-3, 2019, to Cheney, Kansas. After completing pre-deployment training, he departed for Afghanistan on or around May 18, 2019.
On June 18, 2019, the claimant requested his agency convert his charged annual leave to home leave. On July 10, 2019, his request was denied by the DoD-EC Office of Civilian Human Resources, in consultation with the Defense Civilian Personnel Advisory Service, stating the claimant was “not eligible to use home leave in the United States before being deployed to Afghanistan.” The Navy’s Director of Workforce Relations & Compensation denied the claimant’s subsequent request for reconsideration, stating in her September 10, 2019, decision, “Home leave is not to for [sic] use when taking leave from one CONUS [Continental United States] location to another CONUS location, when the original travel point was not from an overseas location.” The Director further explains:
When you accepted a position through [DoD-EC], you resided within the United States from November 2017 through May 2019. Home leave is not eligible for use from a location within the United States. You were therefore ineligible to use home leave. Per DoDI [Department of Defense Instruction] 1400.25 v 1260, the use of home leave is limited to when an individual is currently serving in an overseas location and takes leave with the intent to return to the overseas duty location.
The claimant disagrees, stating in his September 19, 2019, email response to the agency’s denial:
Nowhere do I read that an employee cannot use home leave from a CONUS or Non-Foreign [Outside the CONUS] assignment…While DoDI 1400.25-3.a.(3) makes a loose reference to “Only during a period of service abroad” which has been previously cited as the anchor that prohibits my use, DoDI 1400.25-1(a) states that DoD employees *recruited* for overseas duty are entitled to earn, and may be granted, home leave. I was *recruited* to the service abroad the day that I accepted the DoD-EC position to start processing my deployment action.
The claimant further explains his rationale in his claim to OPM:
DoDI 1400.25-v1260, Enclosure 3-(1)(a) defines eligibility when a DoD employee is recruited for overseas duty (not upon arrival at overseas) are [sic] entitled to earn and may be granted home leave. Upon meeting a one-time requirement of 24 months continuous basic service overseas, paragraph (1)(b) states that the employee is eligible to use accrued home leave at any time during subsequent overseas tours. DoDI 1400.25-v1260(3)(a)(3) continues that the eligible employees ‘may use home leave when it is contemplated that the DoD employee will return to service abroad upon completion of the home leave period’. Finally, paragraph (3)(b) references [section 630.606(c) of title 5, Code of Federal Regulations (CFR)] for additional conditions. Title 5 CFR, section 630.606(c)(2) clarifies an agency may grant home leave entitlement “during an employee’s period of service abroad (how OCHR is interpreting), or within a reasonable period after return from service abroad when it is contemplated that [they] will return to service abroad”. Again, regulations state eligibility upon recruitment to service abroad.
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 (U.S.C.)). The introductory clause of 5 U.S.C. 6305(a) states:
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 implementing regulations for home leave are provided in 5 CFR part 630, subpart F. Specifically, 5 CFR 630.606 (Grant of home leave) states in relevant part:
(b) Agency authority. A grant of home leave is at the discretion of an agency. An agency may grant home leave in combination with other leaves of absence in accordance with established agency policy.
(c) Limitations. An agency may grant home leave only:
(1) For use in the United States, the Commonwealth of Puerto Rico, or a territory or possession of the United States; and
(2) During an employee’s period of service abroad, or within a reasonable period after his return from service abroad when it is contemplated that he will return to service abroad immediately or on completion of an assignment in the United States.
The DoD Instruction 1400.25 v 1260 (March 19, 2015) for the use of home leave states –
3. USE
a. Home leave, so granted, may be used:
(1) In combination with other leaves of absence.
(2) Only in the United States or its territories and possessions to include the Commonwealth of Puerto Rico.
(3) Only during a period of service abroad when it is contemplated that the DoD employee will return to service abroad upon completion of the home leave period or upon completion of an assignment in the United States.
b. Additional conditions on home leave are prescribed in section 630.606(c) of Reference (d) [5 CFR part 630 subpart F].
There is no dispute the claimant was entitled to accrue home leave during his periods of previous overseas service. An employee’s accrual of home leave must be distinguished from the agency’s discretionary authority to grant the use of home leave. Under 5 CFR 630.606(b), “A grant of home leave is at the discretion of an agency. An agency may grant home leave in combination with other leaves of absence.” This language is permissive rather than mandatory. By the use of the permissive term “may” (i.e., “[a]n agency may grant home leave…”) as opposed to the mandatory terms “shall” or “will,” agencies are granted discretionary authority to determine when and in what amount home leave may be granted. 62 Comp. Gen. 545 (1983). Thus, the agency retains sole and exclusive discretion to grant home leave for its employees. As such, we find the agency’s denial of the claimant’s home leave request is consistent with applicable laws and regulations.
An agency may grant home leave only when an employee meets both conditions described in 5 CFR 630.606(c)(1) and (2). The claimant used leave in Hawaii and Kansas, therefore he satisfies 5 CFR 630.606(c)(1) which requires home leave to be used in the United States. However, the claimant does not meet 5 CFR 630.606(c)(2) which prescribes the time frame within which home leave may be granted. Section 630.606(c)(2) authorizes home leave “during an employee’s period of service abroad.” The term “service abroad” is defined in 5 CFR 630.601 as “service…by an employee at a post of duty outside the United States…” The claimant used leave from April 22-29, 2019, and from May 1-3, 2019, while he was employed in Hawaii, thus his leave did not occur during a period of service abroad. The claimant attempts to characterize the period of service abroad as commencing on the date he was “recruited” for the overseas assignment (i.e., the February 2, 2019, date he accepted the DoD-EC assignment to Afghanistan). He cites DoDI 1400.25 v 1260 which states, “DoD employees recruited for overseas duty from the United States… are entitled to earn, and may be granted, home leave.” While he cites the eligibility criteria for home leave, he fails to consider the rules regarding the accrual and use of home leave, which restrict the granting of home leave in his case. The claimant’s period of service abroad in Afghanistan commenced on or around May 18, 2019; therefore, leave taken from April 22-29, 2019, and from May 1-3, 2019, occurred prior to, rather than during, his period of service abroad.
As an alternative, 5 CFR 630.606(c)(2) may also be satisfied if the leave occurs within a “reasonable period” after the employee returns from service abroad when it is contemplated that he or she will immediately return to service abroad. In this case, the claimant’s leave did not occur within a reasonable period after his return from service abroad. There were 17 months between the claimant’s return from service abroad (on or around November 26, 2017, from Stuttgart, Germany) to his leave (from April 22-29, 2019, and from May 1-3, 2019). The claimant believes this is a “reasonable period,” based upon DoDI 1400.25 v 1230(4)(h), which establishes policies and procedures for employment in foreign areas and employee return rights. The claimant’s attempt to apply terminology from this unrelated instruction to controlling home leave regulations is contrary to the basic principles of statutory and regulatory construction. In addition, the Comptroller General cited the legislative history of home leave acts serving as the basis for the home leave provisions under the Annual and Sick Leave Act of 1951, and found on page 7 of S.Rept. No., 546, on S. 832, 82D Congress that it was intended home leave be “granted only during one or between two consecutive assignments abroad.” See B-147031, February 5, 1962. Therefore, waiting 17 months to request home leave is not a “reasonable period” after return from service abroad. Therefore, we find the agency’s decision to deny his home leave request is appropriate.
When 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, March 15, 1982. Since an agency decision made in accordance with established regulations, as is evident in the present case, cannot be considered arbitrary, capricious, or unreasonable, there is no basis upon which to reverse the decision. Accordingly, this 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.