Office of the General Counsel

S009340

Dear Dr.[xxx]:

We have reviewed your claim for additional compensation and concur with your agency that the claim may not be allowed.

The record shows that on February 19, 1984, you were transferred to the [agency]. On July 9, 1991, you signed a Special Pay Agreement that became effective July 14, 1991 to July 13, 1995. During this same time your agency requested approval from the [name] Central Office for a scarce medical category for psychiatry. The Special Pay Agreement was approved and signed by the [name] on September 3, 1991. Your new agreement became effective September 8, 1991 to September 7, 1995.

On October 2, 1993, in the third year of your Special Pay Agreement, you resigned from your position. By letter dated April 21, 1995, you were notified that you might be eligible for back pay plus interest with regard to the inclusion of special pay in lump sum annual leave payments retroactive to July 14, 1991. Upon receipt of a claim from you it was determined that you were entitled to back pay in the amount of $3,263.49. It is your contention that the back pay calculation entitlement is incorrect.

The legal question presented by your claim is whether the 50 per cent penalty applied to the special pay you received during the third year of your agreement also applies to the calculation of your lump-sum annual leave payment, as provided by 5 U.S.C. 5551. The answer is yes.

Although the annual leave available to you at the time of your separation may have accrued over several years and at different rates of pay, your lump-sum annual leave payment is based on your rate of pay at the time of your separation. In your case, this would include the 50 per cent penalty. Specifically, the statute states, "The lump-sum payment shall equal the pay ... the employee or individual would have received had he remained in the service until the expiration of the period of annual or vacation leave." Id. According to the record, you had 43 days of accrued annual leave to your credit on the day you separated from the Federal service, October 2, 1995. Thus, your lump-sum payment should be calculated as if you had taken your annual leave beginning on October 2. Had you done so, your pay necessarily would not have reflected the 50 per cent penalty. Therefore, your lump-sum payment, too, must reflect this penalty. We note that this rule works to your benefit, as well. Any leave you took in 1995 was paid to you at your 1995 rate of pay, rather than at the rate of pay you were earning at the time the leave accrued.

Of course, the preceding analysis is based on an assumption that you resigned voluntarily. In your claim, you suggest that you did not resign voluntarily. However, our jurisdiction is limited to the proper calculation of your monetary claim. We may not review the circumstances surrounding your resignation.

Sincerely,

Joann Charleston

Adjudicator

cc: [agency]