Washington, DC
U.S. Office of Personnel Management
Leave Claim Decision
Under section 3702 of title 31, United States Code
Miesau, Germany
Damon B. Ford
Compensation and Leave Claims
Program Manager
Agency Compliance and Evaluation
Merit System Accountability and Compliance
03/05/2019
Date
The claimant is a Federal civilian employee of the U.S. Department of the Army, Europe in Miesau, Germany. He requests the U.S. Office of Personnel Management (OPM) reconsider his agency’s denial of home leave. We received the original claim on February 21, 2017, and the agency administrative report and the claimant’s response to the agency report on August 14, 2017. For the reasons discussed herein, the claim is denied.
The claimant retired from active duty military service in Kaiserslautern, Germany effective November 30, 2014, was extended a tentative job offer on December 3, 2014, and was appointed to his Federal civilian position effective January 12, 2015. Mr. Roscoe had retired from the military prior to being offered his civilian position. By letter dated May 16, 2016, the agency denied his request for home leave on the basis that he did not meet basic statutory eligibility requirements.
Home leave is authorized by section 6305(a) of title 5, United States Code (U.S.C.), and earned by employees stationed abroad for use in the Unites States. Employees serving outside the United States who meet the requirements of 5 U.S.C. 6304(b) for the accumulation of a maximum of 45 days of annual leave are eligible for home leave benefits. Relevant statutory provisions from 5 U.S.C. 6304(b) provide:
(b) Annual leave not used by an employee of the Government of the United States in one of the following classes of employees stationed outside the United States accumulates for use in succeeding years until it totals not more than 45 days at the beginning of the first full biweekly pay period, or corresponding period for an employee who is not paid on the basis of biweekly pay periods, occurring in a year:
(1) Individuals directly recruited or transferred by the Government of the United States from the United States or its territories or possessions including the Commonwealth of Puerto Rico for employment outside the area of recruitment or from which transferred.
(2) Individuals employed locally but-
(A) (i) who were originally recruited from the United States or its territories or possessions including the Commonwealth of Puerto Rico but outside the area of employment;
(ii) who have been in substantially continuous employment by other agencies of the United States, United States firms, interests, or organizations, international organizations in which the United States participates, or foreign governments; and
(iii) whose conditions of employment provide for their return transportation to the United States or its territories or possessions including the Commonwealth of Puerto Rico; or
(B) (i) who were at the time of employment temporarily absent, for the purpose of travel or formal study, from the United States, or from their respective places of residence in its territories or possessions including the Commonwealth of Puerto Rico; and
(ii) who, during the temporary absence, have maintained residence in the United States or its territories or possessions including the Commonwealth of Puerto Rico but outside the area of employment.
(3) Individuals who are not normally residents of the area concerned and who are discharged from service in the armed forces to accept employment with an agency of the Government of the United States.
Section 6304(b)(1) is not applicable to the claimant’s hiring circumstances because he was not directly recruited or transferred by the United States Government from the United States or its territories or possessions for employment in Germany. Instead, the claimant was already physically residing in Germany when he was recruited by the agency.
The claimant does not meet section 6304(b)(2)(A) because he does not meet each of the three separate requirements under (b)(2)(A)(i)-(iii) as required by law.
The claimant does not meet section 6304(b)(2)(A)(i) because there is no documentation showing the employee was originally recruited from the United States or its territories or possessions as required under section 6304(b)(2)(A)(i).
The claimant does not meet section 6304(b)(2)(A)(ii) because the “substantially continuous employment” requirement test applies only when an individual is moving from one civilian (or private sector) position to a civilian position in the Federal service. A 1996 compensation claim, OPM, Ref. # 1996-01103, states –
However, members of the armed forces are not "employees", nor is their tenure in the armed services considered "employment". Through the definitions in section in 5 U.S.C. 6301(2), the term "employee", as used in section 6304, incorporates the definition of employee in 5 U.S.C. § 2105, which expressly applies to persons appointed into the civil service.
Here, the claimant does not have “substantially continuous employment” in Germany before entering into the Federal service. The claimant was appointed to the Federal service position following retirement from active duty military service, therefore the requirement under section 6304(b)(2)(A)(ii) is not met.
The claimant may meet section 6304(b)(2)(A)(iii) because the agency acknowledged he negotiated a transportation agreement in an email between from agency to the claimant dated January 20, 2017. However such transportation agreement was not provided for review, therefore we have no substantiation that the employee’s conditions of employment provide for the return transportation to the United States or its territories or possessions including the Commonwealth of Puerto Rico. In any event, section 6304(b)(2)(A) requires that all three of the conditions specified in clauses (i), (ii), and (iii) must be satisfied. As the claimant does not satisfy clauses (i) and (ii), he does not meet each of the three separate requirements under section 6304(b)(2)(A)(i)-(iii) as required by law.
The claimant does not meet section 6304(b)(2)(B) because at the time of employment he was not temporarily absent from the United States for travel or formal study.
The claimant does not meet section 6304(b)(3) because he was not discharged from service in the armed forces to accept Federal civilian employment but rather retired from such service. Section 6304(b)(3), which expressly applies to individuals discharged from the armed forces to accept Federal civilian employment, does not apply to an individual who retired from military service prior to accepting an offer of civilian employment. The claimant retired from military service on November 30, 2014, prior to receiving a tentative job offer on December 3, 2014.
The controlling regulations for home leave are contained in subpart F of part 630 of title 5, Code of Federal Regulations. Section 630.602 states:
An employee who meets the requirements of section 6304(b) of title 5, United States Code, for the accumulation of a maximum of 45 days of annual leave earns and may be granted home leave in accordance with section 6305(a) of that title and this subpart.
Thus, the granting of home leave is dependent on eligibility for the 45-day annual leave accumulation under 5 U.S.C. 6304(b). Since the claimant is not so eligible, his request for home leave is also denied.
The claimant cites other employees whom he asserts have circumstances similar to his but were granted the requested benefits. The claims jurisdiction of OPM is limited to consideration of statutory and regulatory liability. OPM adjudicates compensation claims by determining whether controlling statute, regulations, policy, and other written guidance were correctly applied to the facts of the case. OPM has no authority to authorize payment based solely on consideration of equity. The fact that others may have obtained benefits improperly does not give the claimant an enforceable right. Further, his assertion that he should be granted home leave because other individuals in a similar situation may have been granted the same would have the effect of obligating the agency to continue granting these benefits to other applicants in perpetuity regardless of the merits of any particular situation. Therefore, the claimant’s assertion he has not been treated equitably has neither merit nor applicability to our claim determination.
OPM does not conduct investigations or adversary hearings in adjudicating claims, but relies on the written record presented by the parties. See Frank A. Barone, B-229439, May 25, 1988. Where the record presents an irreconcilable factual dispute, the burden of proof is on the claimant to establish the liability of the United States. 5 CFR 178.105; Jones and Short, B-205282, June 15, 1982. Where the agency's determination is reasonable, we will not substitute our judgment for that of the agency. See, e.g., Jimmie D. Brewer, B-205452, Mar. 15, 1982, as cited in Philip M. Brey, B-261517, December 26, 1995. The agency’s decision to deny the claimant the 45-day annual leave accumulation and home leave were in accordance with the controlling statute and regulations. A decision that is consistent with controlling statute and regulations which do not allow for the exercise of discretionary authority as in this case cannot be considered arbitrary, capricious, or unreasonable, as compliance with statute and regulation is mandatory. Therefore, the claim is denied.
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.