Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Department of the Army
Landstuhl, Germany
Damon B. Ford
Compensation and Leave Claims Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
08/21/2018
Date
The claimant is employed as a Physician (Psychiatry), GP-0602-15, at the Landstuhl Regional Medical Center (LRMC), Department of the Army (DA), in Landstuhl, Germany. He seeks credit for his prior non-Federal medical work experience for purposes of determining his annual leave accrual rate under the provisions of section 630.205 of title 5, Code of Federal Regulations (CFR). The U.S. Office of Personnel Management (OPM) received the claim request on May 11, 2017, and the agency administrative report (AAR) on July 20, 2017. For the reasons discussed herein, the claim is denied.
The claimant states that on May 6, 2015, he received a job offer for his current Federal position including a “service credit of 6 hours of annual leave per pay period” from his servicing Civilian Personnel Advisory Center (CPAC). He accepted the offer and was appointed to his position effective October 15, 2015. However, upon appointment he accrued four hours of annual leave per pay period. The claimant asserts his work experience credit was “approved by the Commander, LMRC, on the official Pay Setting Worksheet used by the Agency CPACs for notifying applicants of their pay and benefits.” Thus, he believes he should have been granted a leave accrual rate of six hours per pay period effective the day of his appointment.
The claimant’s agency asserts that “Dr. Moore’s firm job offer did not indicate that his Non-Federal service would be credited to his SCD [Service Computation Date],” nor was there an adjustment made to “his SCD upon the start of his appointment in order to accrue 6 hours of annual leave.” The agency denied the claimant’s request to credit his prior work experience because the “proper paperwork for non-Federal service credit was not completed in accordance with DoD [Department of Defense], Army and MEDCOM guidelines.” Specifically, the agency asserts that “no DA Evaluation and Justification of SCD Leave Credit for Prior Non-Federal Experience documentation package was completed” before the claimant entered on duty and there are “no provisions for retroactive application.” The agency also states that the Commander’s approval signature on the Pay Setting Worksheet (PSW) before his entrance on duty (EOD) date “cannot substitute for the extensive documentation that is required for the service credit.” The agency further explains:
All physicians are provided an approved PSW during salary negotiations, but only those with a complete justification, documentation and approval of Non-Federal credit completed before their EOD, have the experience credited to their SCD for leave.
Under 5 CFR 630.205(a), which implements the provisions of section 6303(e), title 5, United States Code (U.S.C.), the head of an agency or his or her designee may, at his or her sole discretion, provide an employee with credit for prior non-Federal work experience or military service that would otherwise not be creditable under 5 U.S.C. 6303(a) for the purpose of determining the annual leave accrual rate. In making this determination, the head of the agency or his or her designee 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) necessary to achieve an important agency mission or performance goal. Under 5 CFR 630.205(d), an employee must provide written documentation acceptable to the agency of prior work experience or from the military of the uniformed service before a creditable service determination request can be considered. 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. Section 630.205(e) requires that each agency “must establish documentation and recordkeeping procedures sufficient to allow reconstruction of each action.”
Within the scope of 5 CFR 630.205, the head of an agency may issue further implementing instructions for the guidance of the agency with regard to the granting of and accounting for service credit determinations under 5 U.S.C. 6303(e). Agency implementing instructions and guidance such as that contained in Department of Defense Instruction (DoDI) 1400.25, Volume 631, the DA’s implementing guidance for Credit for Prior Non-Federal Work Experience and Certain Military Service to Determine Annual Leave Accrual Rate, and DA Medical Command Policy Memo 11-055 may impose additional requirements.
In accordance with the granting of credit under 5 U.S.C. 6303(e) and 5 CFR 630.205 for service that would otherwise not be creditable under 5 U.S.C. 6303(a), DoDI 1400.25-V631, Procedures, section 4, effective August 31, 2009, provides in relevant part:
4. DOCUMENTATION
a. Authorized management officials exercising the discretionary authority to authorize service credit for prior work experience shall justify and document the reasons for granting such credit pursuant to this Volume in writing prior to the effective date of the applicant’s entry on duty. Such documentation shall include:
(1) A copy of the position description for the position being filled and the vacancy announcement for the position (when applicable).
(2) The employee’s resume or application, which must clearly document the length and nature of the service to be credited, or be supplemented by supporting documentation. The documentation must clearly show the claimed creditable service, provide specific beginning and ending dates (month, day, and year), and provide evidence that the duties performed directly relate to those of the position being filled.
(3) An explanation of how the duties relate to the position being filled for each period of service for which credit is requested.
(4) In the case of creditable Military Service credit, a copy of the employee’s DD Form 214, “Certificate of Release or Discharge from Active Service,” or, if the DD 214 cannot be obtained, other official documentation from the Military Service concerned of the employee’s honorable, active duty service.
The DoDI 1400.25-V631, Procedures section 4b further requires, in accordance with the Guide to Processing Personnel Actions, Chapter 6, that service credited under 5 U.S.C. 6303(e) “will be noted on SF 144A, ‘Statement of Prior Service-Worksheet,’ or other equivalent form.” Section 4c requires the documentation relied upon as proof or verification of creditable service must be attached to the SF 144A or equivalent form and retained permanently on the right side of the employee’s official personnel folder.
Also, the DoDI 1400.25-V631, Personnel Action Processing Procedures section 5a requires, when processing personnel actions for credit for non-Federal service according to 5 U.S.C. 6303(e), the remark code “B73” is used on the SF 50 that effects the appointment. That remark indicates the amount of years and months of credit toward the SCD-Leave for certain period(s) of non-Federal service, and that the service is permanently creditable unless the employee fails to complete 1 full year of continuous service with the agency.
The DA issued implementing guidance entitled Credit for Prior Non-Federal Work Experience and Certain Military Service to Determine Annual Leave Accrual Rate, effective January 3, 2011, stating the “Hiring Official will prepare and provide a written evaluation” addressing 4 clearly-defined evaluation factors. See section 2(b). The DA implementing guidance in section 4 further states in relevant part:
4. DETERMINATION OF SERVICE CREDIT
(e) Service credit must be approved before the effective date of the initial appointment or reappointment
(f) The documentation relied upon as proof or verification of creditable service must be attached to the SF 144A or equivalent form pursuant to DoDI 1400.25-V631. The service credited will be part of the SCD-Leave calculation.
(g) There is no provision for retroactive determinations or authorizations on the annual leave accrual for current employees.
In addition, the DA implementing guidance in section 6 addresses the responsibilities of documentation for both the employee and agency, which specifies the Authorized Management Official (AMO) must include up to 8 documents to justify and document the reasons for granting service credit for prior work experience. Section 6(c)(2) requires Commands to ensure that complete service credit packages are forwarded to the servicing Human Resources Office (HRO) for the final job and offer and prior to the employee’s entry on duty. Section 6(d) requires the HRO to ensure the service credit package is complete prior to the effective date of appointment/reappointment. The HRO must include a Statement of Understanding to document the selectee’s understanding of the one year continuous service requirement, calculate the SCD-leave, file required documents in the employee’s official personnel file, and process the personnel actions including the appropriate notations on the employee’s SF-50, consistent with DoDI.
Furthermore, OTSG/MEDCOM policy memorandum 11-055, dated June 27, 2011,[1] entitled Credit for Prior Non-Federal Work Experience and Certain Military Service for Determining Annual Leave Accrual Rate supplements the DA’s implementing guidance. The MEDCOM memorandum provides forms, the “Evaluation and Justification of SCD Leave Credit for Prior Non-Federal and Military Experience Creditable under 5 U.S.C. 6303(e)” and “Supporting Justification for SCD Leave Credit for Prior Non-Federal Work Experience or Military Service (5 U.S.C. 6303(e))," to assist in documenting service credit decisions and notes supporting applicant documentation that must be included.
Agency implementing instructions and guidance require extensive justification, documentation, and recordkeeping requirements that must be completed by the agency prior to granting service credit for non-Federal service under 5 U.S.C. 6303(e). In this instance, while an SCD package was subsequently completed and approved on August 23, 2016, “no DA Evaluation and Justification …package was completed” before the claimant’s EOD. The PSW does not meet the criteria for approving Non-Federal work experience for annual leave accrual purposes under 5 U.S.C. 6303(e). The form is used during salary negotiations and requires an independently prepared justification package which was not prepared until after the claimant was employed. Further, the record contains no evidence that the SF-144A or SF-50 contained the requisite recordkeeping notations indicating the agency granted service credit under 5 U.S.C. 6303(e) as required by agency policy. There is no authority under which a service credit determination can be made retroactive. OPM regulation 5 CFR 630.205(d) does not permit enhanced service credit determinations for purposes of determining the annual leave accrual rate to be approved after the effective date of an employee’s appointment. The agency’s implementing guidance and instructions also reflect this requirement. Therefore, since the agency’s final decision not to provide service credit under 5 U.S.C. 6303(e) was made within their discretionary authority and consistent to their implementing procedures, there is no reason to disturb the agency’s decision. Accordingly, the claim is denied.
Also, it is well settled by the courts that a claim may not be granted based on misinformation provided by agency officials. 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, even if the claimant was initially told he would accrue six hours of annual leave per pay period or that he believes his ‘recruitment process should have been handled better’ does not confer eligibility not otherwise permitted by statute or its implementing regulations.
The claimant states that his experience has “not been consistent with the Army’s policy for employees to be treated fairly in all aspects of employment...” However, pursuant to OPM’s authority to adjudicate compensation and leave claims for certain Federal employees under 31 U.S.C. 3702(a)(2), we review the statutory and regulatory provisions applicable to individual compensation and leave claims filed with us in order to determine whether there is any liability. This authority does not allow OPM to consider issues of equity or fairness. Therefore, the claimant’s assertion that “other physicians in [his] department with the exact same experience have routinely obtained this benefit” has no applicability to our claim settlement determination.
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.