s003223

Office of the General Counsel

Date: March 17, 2000
Matter of: [xxx]
File Number: S003223

OPM Contact: Murray M. Meeker

The claimant, an employee with the [agency], requests credit for his prior military service in the determination of his leave accrual rate and for reduction in force purposes. For the reasons discussed herein, the claimant's request that his prior military service be included in determining his leave accrual rate is denied except for the period prior to the effective date of his military retirement. The claimant's request that he receive credit for his prior military service for reduction in force purposes is dismissed for lack of jurisdiction.

As reported by the claimant, he was appointed to his civilian position with [agency] effective May 31, 1994, while on terminal leave⁽¹⁾ from the [previous agency] prior to the effective date of his military retirement on August 1, 1994.

Although Congress has limited the circumstances under which military retirees may receive credit for their military service in the computation of their leave accrual rates, these limitations do not apply to individuals who have not retired from military service at the time of their appointments to civilian positions. See the Dual Compensation Act, Pub. L. No. 88-448, ' 203, 5 U.S.C. ' 6303(a). It is well established that an individual placed on terminal leave is on active military duty and is not in a retired status. See Major James D. Dunn, B-251084, October 12, 1993; 56 Comp. Gen. 855 (1977); and 45 Comp. Gen. 180 (1965). Accordingly, the claimant is entitled to credit for his military service in determining his leave accrual rate during the period of his civilian employment prior to August 1, 1994, the effective date of his military retirement. After

that date, he no longer may use his military service to enhance his leave accrual rate.

Because the Office of Personnel Management's (OPM's) jurisdiction in reviewing claims is limited to claims for compensation and leave, OPM lacks jurisdiction to determine if the claimant's military service is creditable for reduction in force purposes. See 31 U.S.C. ' 3702.

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 District Court.

1. As explained by the United States Court of Claims, terminal leave is "a leave of absence granted an officer at the end of his period of military services; a permission to be absent from duty." Terry v. United States, 120 Ct. Cl. 315 (1951). Prior to 1945, under the leave laws then in effect, leave of up to 60 days without deduction from pay and allowances could be taken by Army officers at the discretion of the Secretary of War. 56 Comp. Gen. 855 (1977).