Office of the General Counsel

Date: December 19, 2000
Matter of: [claimant]
File Number: 01-0005

OPM Contact: Melissa A. Drummond

The claimant is currently employed with the [agency]. She was previously employed with the [previous agency] and stationed in [city, country]. The claimant was officially terminated from employment in [country] on May 12, 1995 and left [country] on May 15, 1995, when the claimant's husband was given orders to return to the United States. The claimant stipulates that prior to leaving [country], she had 95 hours of sick leave and that this sick leave was never transferred upon her return to the United States. She is, therefore, requesting restoration of the 95 hours of sick leave. For the reasons discussed herein, the claim is granted.

The claimant filed a claim with her current employing agency in August 23, 2000. The agency denied her claim, stating that their decision was based on the period of time that had lapsed to have the problem corrected. Since the claimant had worked at two other facilities before starting employment with the agency in 1998, the agency stated that they felt "there was sufficient time to have this problem rectified prior to" her current request.

According to 5 CFR 178.104(a):

All claims against the United States Government are subject to the 6-year statute of limitations contained in 31 U.S.C. 3702(b). To satisfy the statutory limitation, a claim must be received by the Office of Personnel Management, or by the department or agency out of whose activities the claim arose, within 6 years from the date the claim accrued.

Since the claim arose out of the [previous agency], we cannot use the August 23, 2000 memorandum from the claimant to her current employing agency to establish the tolling date. The agency did, however, forward her claim to OPM on October 20, 2000. We can use that date to establish the tolling date of the claim. Since October 20, 2000 is within the 6-year statute of limitations for when the claim originally arose in May of 1995, the agency's rationale for denial of the claim is invalid.

In our request for information from the agency, the agency stipulates that the claimant has submitted all correspondence between the claimant and the agency. CFR 178.105 states that the settlement of claims is based upon the written record only, which will include submissions by the claimant and the agency. The claimant has stated to both her current employing agency and OPM that, after returning to the States, she attempted to have this issue resolved at Fort [name] and Fort [name], but to no avail.

Her current employing agency's personnel office has conducted research for agency documents to verify the claimant's balance of sick leave when she departed [country]. What they discovered was the following:

The 266^th Finance, which was the payroll office for [agency component] in [country], has closed and was picked up by Defense Finance and Accounting Service (DFAS) [city #1]. However, DFAS [city #1 ] didn't begin servicing [country] until 1998 and, therefore, had nothing on the claimant. DFAS [city #2], which services Ft. [name] (the claimant's first employing organization in March 1996 after her return to the States), show an end of year sick leave balance for 1996 of 4 hours. They do not have a record of receiving an 1150 (the appropriate form for transferring leave records) on the claimant for leave year 1995. The Records Center in St. Louis was also contacted. They have nothing on the employee, since everything had been forwarded to her current employing agency. However, the Records Center suggested that the employee be asked if she had a pay stub for May 12, 1995.

The claimant does not have a pay stub for May 12, 1995, but she provides a copy of a Leave and Earnings Statement (LES) that she received prior to her leaving [country]. That LES shows a balance of 95 hours of sick leave and is dated April 28, 1995. The claimant stipulates that she used two weeks of annual leave but used no sick leave after receiving her last LES. Absent any convincing evidence or other documentation that refutes the claimant's statements, we accept the LES as the written record. See B-189288, November 23, 1997. See also 58 Comp. Gen. 741 (1979). Therefore, we grant the restoration of 95 hours of sick leave to the claimant.

This settlement is final. No further administrative review is available within OPM. Nothing in this settlement limits the employee's right to bring an action in an appropriate United States Court.