Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Department of Defense
Fort Belvoir, Virginia
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
05/11/2021
Date
The claimant was a Federal civilian employee with the Defense Threat Reduction Agency (DTRA), Department of Defense (DoD), in Fort Belvoir, Virginia. [1] He seeks credit for the time he served at the U.S. Military Academy West Point for annual leave accrual purposes. The U.S. Office of Personnel Management (OPM) received the claim on September 30, 2020, and the agency administrative report (AAR) on November 24, 2020. For the reasons discussed herein, the claim is denied.
The claimant served at the U.S. Military Academy West Point from July 7, 1976 to May 28, 1980, amounting to 3 years, 10 months, and 22 days, and subsequently retired from the U.S. Army on January 31, 2005. On March 31, 2008, the claimant began his Federal civilian position with DTRA. On April 24, 2010, the claimant paid a military service deposit to buy back his military service academy time of 3 years, 10 months and 22 days. He states that while his “constructed federal employment start date” was adjusted to reflect credit for his military service academy time after making a military deposit, his annual leave accrual rate did not change, and he continued to accrue annual leave at 4 hours per pay period. [2] The agency determined the claimant’s military service academy time is not creditable for annual leave accrual purposes under the provisions of section 6303 of title 5, United States Code (U.S.C.). However, the claimant disagrees with the agency’s decision to deny him credit for his military academy service for annual leave accrual purposes. He states the agency’s “reliance on the above sections of the referenced portions [5 U.S.C. 6303(a)(A)(i) and (ii)] of the U.S. Code is flawed as they are irrelevant in the instant case as they relate to [his] circumstances – as well as all others who attend one of our nation’s service academies.” In addition, the claimant seeks credit for approximately 118 hours of annual leave which he believes is the amount of annual leave he would have accrued if he received credit for his military service academy time for annual leave accrual purposes.
In its AAR, the Defense Human Resources Services, Defense Logistics Agency supports the agency determination that academy service time is not creditable for determining years of service for annual leave accrual purposes because the claimant is a military retiree who is subject to 5 U.S.C. 6303(a)(A)-(C). The AAR states in relevant part as follows:
…As [claimant] was preparing for retirement, he made a deposit for his military service academy time. At the time of that deposit, DLA credited the military academy time to his Retirement-SCD [service computation date] in accordance with the NDAA FY08, Public Law, Section 115 (Retirement Service Credit for Service as a Cadet or Midshipman at a Military Service Academy).
It is the agency’s position that [claimant] does not meet eligibility to apply credit of his military service academy time to his Leave-SCD because he is retired from the military and military academy service period does not meet the criteria described herein. We relied on the OPM Leave Claim Decision (OPM File Number 06-0018) and 5 U.S.C 6303(a)(A)-(C). OPM File Number 06-0018 indicates that the military service credit is granted for retirement and leave pursuant to 5 USC 6303. [The claimant] does not meet the criteria as outlined in 5 U.S.C. 6303(a)(A-C) resulting in non-credit of military service academy time to his Leave-SCD.
The enactment of section 1115 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181) makes academy service time creditable for retirement and potentially for annual leave accrual purposes. Accordingly, sections 8331(13) and 8401(31)(C) of title 5, U.S.C. were amended to explicitly include academy service time at a U.S. military service academy creditable towards retirement for both Civil Service Retirement System and Federal Employees’ Retirement System employees. Military service which is creditable for retirement purposes is creditable for determining an employee’s years of service for leave accrual purposes subject to the rules governing creditable service for annual leave accrual.
Section 6303 sets forth the rules for determining years of service for annual leave accrual for Federal employees. The law differentiates between non-retired and retired members of the uniformed service. A retired member of a uniformed service is entitled, by law, to limited military service credit as listed in 5 U.S.C. 6303(a)(A)-(C), which states (emphasis added):
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, 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.
Thus, although military service academy 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, including military service academy time 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). As the claimant is a military retiree and does not meet the qualifying conditions outlined in 5 U.S.C. 6303(a)(A)-(C), his military service academy time is not creditable for annual leave accrual purposes, and he is not entitled to credit for approximately 118 hours of additional annual leave accrual. Accordingly, the claim is denied.
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 adversary hearings but 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. In this case, the claimant has failed to demonstrate that he meets any of the qualifying conditions necessary to receive credit for his military service academy time as a military retiree for annual leave accrual purposes. Thus, the agency’s decision may not be overturned.
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.
[1] Standard Form 50 included in the record shows the claimant retired from Federal civilian service effective October 10, 2020.
[2] A military deposit is made to allow creditability of military service for retirement purposes, but not for annual leave accrual purposes. Creditable service for annual leave accrual purposes does not depend on making a military service deposit(s), but rather, and as addressed in this decision, on the rules set forth in 5 U.S.C. 6303. This means that an employee’s service computation date (SCD) for retirement purposes may be different than an employee’s SCD for annual leave accrual purposes.