Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Air Force Materiel Command
Department of the Air Force
Tinker Air Force Base, Oklahoma
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
09/14/2021
Date
The claimant is employed as a Supervisory Security Specialist, NH-0080-03, at the Air Force Life Cycle Management Center (AFLCMC), Air Force Material Command (AFMC), Department of the Air Force (AF), Tinker Air Force Base (AFB) in Oklahoma. She seeks to be granted a one-year leave service credit to be applied towards her service computation date for annual leave accrual (SCD-Leave). The U.S. Office of Personnel Management (OPM) received the claim request on November 2, 2020, and the agency administrative report (AAR) on February 4, 2021. For the reasons discussed herein, the claim is denied.
On September 27, 2019, the claimant received an Intent to Hire offer from the resource manager of the AFLCMC Information Protection Center Senior Functional Office, for the position of Security Specialist, NH-0080-03, with starting salary of $74,596. On September 30, 2019, the claimant responded to the offer negotiating a salary of $77,082 and requesting “annual leave starting at 6 hours versus the 4 hours for [her] previous military service credit.” On October 2, 2019, the resource manager responded with a revised Intent to Hire offer for the position, listing a new salary of $77,094 and a “Leave Service Credit Incentive: 1 year,” stating in relevant part:
I understand you were seeking six hours of leave accrual. This is based on time in civil service. For six hours accrual leave, you need to have three years’ time in civil service. The non-federal credit you are being offered will provide you one of three years.
The claimant accepted the Intent to Hire offer as revised on October 2, 2019. She received and accepted tentative and firm job offers from the Air Force Personnel Center (AFPC) on November 26, 2019, and December 23, 2019, respectively, and was subsequently appointed to the position effective January 6, 2020. After appointment to the position, the claimant inquired on the status of the one-year leave service credit, and in an email dated March 17, 2020, she was informed by AFMC Human Resources that “[d]ue to the organization submitting the signed documentation after [her] effective date [she would] not be receiving the 1 year service credit.” Additionally, in an email to the claimant dated April 7, 2020, with Subject: “Leave Service Credit Update,” the AFLCMC resource manager states in relevant part:
We (AFLCMC IP) sent an Intent to Hire offer to you, Oct 2019 with Leave Service Credit offer for 1 Year. Throughout your hiring process (Tentative and Firm Job Offer), the AFPC Staffer DID NOT include the Leave Service Credit on these offers.
Through no fault of your own, there were issues between 72 FSS [Force Support Squadron] and AFPC, the Leave Service Credit Approval, and including it in your offer. After numerous discussions with all agencies to include our AFMC MAJCOM Personnel office, we’ve been informed federal law prohibits back-dating incentives after an employee officially accepts and on-boards the position.
By letter dated October 2, 2020, from 72 FSS/FSCAL in response to an administrative grievance remedy,[1] the agency states in part:
- Title 5 Approving Authority approved the recruitment incentive on 10 February. However, [the claimant] became a new federal employee on 7 January 2020 before the recruitment incentive was processed. Therefore, in accordance with the law and controlling federal regulations, [the claimant] was not entitled to the recruitment incentive because a recruitment bonus must be paid to an eligible individual before that individual enters on duty.
- Title 5 U.S. Code § 5753 defines and provides the law for recruitment and relocation bonuses. Under regulations of the Office, a recruitment bonus under this section may be paid to an eligible individual before that individual enters on duty. 5 USC § 5753(d)(4). An agency may pay a recruitment incentive to an employee who has not yet entered on duty once the employee has signed a service agreement established under § 575.110. § 575.109(d).
However, the claimant asserts the determination to approve her incentive was made prior to her appointment date of January 6, 2020, stating:
… according to the timeline provided by [AFMC Management Analyst], the firm job offer was made on 23 December 2019. [AFMC HR Specialist] contacted [AFMC Management Analyst] saying she needed the incentive approved and [AFMC Management Analyst] submitted the approval to 72FSS.FSMC.WF@us.af.mil on 31 December 2019. [AFMC HR Specialist] then prematurely updated the action with an effective date of 6 January 2020 without the 1-year leave service credit. This delay in processing my incentive was soley [sic] due to administrative errors by staffers and I completed everything that was required on my part for the position.
Further, the claimant believes that “72 ABW/SJA and AFPC has incorrectly cited Title 5 U.S. Code 5753(d)(4) for the denial of her 1-year service credit” because this section of the law discusses “recruitment and retention bonuses, not hiring incentives such as annual leave accrual.”
The claimant is correct that the agency’s reliance upon section 5753 of title 5, United States Code (U.S.C.) is misplaced. Section 5753 and its implementing regulations at title 5, Code of Federal Regulations (CFR) part 575, subparts A and B, establish the conditions for, and authorize the payment of recruitment and relocation bonuses to eligible Federal employees. However, the claimant is not seeking payment of a recruitment or relocation bonus under section 5753. Instead, based on information provided in the record (including a “Creditable Service for Annual Leave Accrual Statement of Understanding” signed by the claimant), the claimant is seeking a one-year leave service credit to be applied towards her SCD-Leave. Creditable service for the purpose of determining an employee’s annual leave accrual rate is governed by 5 U.S.C. 6303. Under section 6303(e), the head of an agency may provide a newly appointed employee with credit for prior non-Federal work experience or experience in the uniformed service that would otherwise not be creditable under section 6303(a) for the purpose of determining the employee’s annual leave accrual rate. Thus, we will consider whether the claimant should receive credit for her prior military service for determining her annual leave accrual rate under the appropriate authorities.
Under the implementing regulation at 5 CFR 630.205(a), the head of an agency or his or her designee, at his or her sole discretion, must determine the employee possesses skills and experience that are (1) essential to the new position and were acquired through performance in a position having duties directly related to the duties of the position to which he or she is being appointed; and (2) the prior experience is necessary to achieve an important agency mission or performance goal. Here, while the agency acknowledged the title 5 approving authority approved the leave service credit of one year, the record contains no evidence the head of the agency or a designee determined the claimant possessed skills and experience that are essential to the new position and were acquired through performance in a position having duties directly related to the duties of the position to which the claimant is being appointed and necessary to achieve an important mission or goal.
Furthermore, under 5 CFR 630.205(d), an employee must provide written documentation acceptable to the agency of prior work experience or military service for the agency head to review to make a determination of qualifying prior work experience or military service. The record contains no documentation of the claimant’s prior military service and no evidence that such documentation was reviewed by the approving official prior to approval of the creditable service. Section 630.205(d) further states the agency head or designee must make the determination to approve an employee’s qualifying prior work experience before the employee enters on duty. The agency states the one year service credit was approved by the approving official on February 10, 2020, and the claimant became a new federal employee on January 7, 2020, before the recruitment incentive was processed.” Section 630.205 provides for no situations under which service credit determinations can be approved after the effective date of an employee’s appointment.
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 show that the one-year leave service credit determination was approved by the appropriate agency official prior to her appointment to the position. Therefore, since the agency’s final decision not to provide the service credit is made in accordance with established regulations and within its discretionary authority, there is no basis upon which to reverse the decision. Accordingly, the claim is denied.
Lastly, the claimant states “new employees, including myself, rely on those involved in the hiring actions to honor the agreed upon incentives/or bonuses in their job offers.” She further states that “delays in communicating and processing of [her] incentive was completely on the part of those involved in the hiring actions and to no fault of [her] own. Therefore [she] should not be denied what was promised in writing.” However, payments of money from the Federal Treasury are limited to those authorized by statute, and erroneous advice given by a Government employee cannot estop the Government from denying benefits not otherwise permitted by law. See OPM v. Richmond, 496 U.S. 414, 425-426 (1990); Falso v. OPM, 116 F.3d 459 (Fed.Cir. 1997); and 60 Comp. Gen. 417 (1981). Therefore, that the claimant was initially offered a one-year leave service credit does not confer eligibility not otherwise permitted by statute or its implementing regulations. Also, 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 and policies authorized to be issued by statute. See B-173927, October 27, 1971; B-187104, April 1, 1977; and B-192510, April 6, 1979.
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] The claimant filed an administrative grievance on April 15, 2020. On July 14, 2020, the deciding official recommended the claimant be awarded one-year creditable service for leave accrual. However the agency declined to process the remedy as the remedy would be in violation of the regulation requiring the approval of creditable service for annual leave accrual prior to appointment. The agency considers and submits its response to the grievance as the agency’s final decision to her leave claim.