Some Federal agencies over charged military leave for some of their employees.  Federal employees in the Reserves are entitled to 15 days per year of military leave. However, some agencies charged military leave to employees while the employee were on their lieu days (scheduled non duty days).  Thus reducing the number of military leave available which required the employee to use Annual Leave in lieu of military leave. If you were a member of the Reserves and employed by a federal agency after October 1980 and were charged Military Leave on a your weekend off, you may want to review the below Human Resource flyer.

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Department of Veterans AffairsWashington, DC Worklife and Benefits Service (058) FLYER Please provide your local payroll office a copy of this flyer.     Leave 05-20    June 3, 2005 

TO:  Chief, HRMS

 SUBJ:  Administrative Claim for Annual Leave as a Result of the              Butterbaugh v. Department of Justice Decision The purpose of this Flyer is to provide additional information for processing administrative claims     for annual leave based on the Butterbaugh v. Department of Justice decision.  To facilitate the processing of leave claims, we have developed VA Form 0862, Administrative Claim for Annual Leave, which is accessible in a fillable format on the VA Forms Web site.  In addition, we have developed the attached Questions and Answers (Q’s & A’s) for distribution with the form.   Background:  On October 13, 2004, the Office of Personnel Management (OPM) issued guidance for processing administrative claims for annual leave as a result of the decision in Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003).  By decision dated July 24, 2003, the        U.S. Court of Appeals for the Federal Circuit ruled that, pursuant to Title 5 United States Code             (5 U.S.C.) 6323, employees were required to take military leave only on days on which they were required to work and that agencies should have allowed 15 workdays of military leave for reserve training (instead of 15 calendar days, as the language in this section was previously interpreted and applied prior to the court's ruling).  Therefore, the court ruled that agencies should not have charged military leave for nonworkdays that occurred within the period of military duty prior to the change in the military leave law that became effective on December 21, 2000.  On that day, 5 U.S.C. 6323(a) was amended to include a new paragraph (3), which for the first time allowed employees to take military leave on an hourly basis.  Following enactment of this amendment, Title 5 employees were no longer required to take leave for nonworkdays (see Flyer 051-289, dated April 16, 2001).   Under existing Department of Veterans Affairs (VA) policy, issued pursuant to Title 38 U.S.C. 7421(a), military leave is charged to all Title 38 part-time employees and full-time employees who earn and are charged leave on an hourly basis in the same manner as Title 5 employees.  Therefore, VA is applying OPM’s guidance regarding the Butterbaugh decision to these employees.   OPM’s guidance is available at: http://www.opm.gov/oca/compmemo/2004/2004-19.asp.  In addition, VA Central Office (VACO) Payroll Policy Division will issue specific instructions for processing employee claims for annual leave to local payroll offices.     OPM Guidance:  In processing administrative claims for annual leave based upon the      Butterbaugh v. Department of Justice decision, OPM’s guidance provides that: 

• Employees will be credited 1 day of annual leave for each nonworkday occurring within a period of active duty for which they were charged military leave;

 

• A maximum of 4 days of annual leave may be credited for each fiscal year;

 

• Leave credits must be placed in a restored leave account in accordance with                            5 U.S.C. 6304(d)(1)(a) and Title 5 Code of Federal Regulations (5 C.F.R.) 630.306;

 

• The restored leave must be used by the end of the leave year in progress 2 years after the date of restoration;

 

• Retired or separated employees must receive a lump-sum payment for recredited annual leave, and paid at the rate of pay the employee earned at the time of separation or retirement;

 

• Under the Barring Act (31 U.S.C. 3720), a leave claim against the Government must be received by the agency that conducts the activity from which a claim arises within 6 years after the claim accrues.  

 Therefore, for Title 5 employees and hourly Title 38 employees who, by VA policy, are charged military leave in the same manner as Title 5 employees, VA may accept claims filed after    July 24, 2003 (the date the Butterbaugh decision was issued) for crediting additional leave for military leave charged on nonworkdays between the date 6 years prior to the claim filing date (the beginning of the 6-year claims period) and December 21, 2000 (the date of the change in the military leave law); and  

• The burden of proof is on the employee to establish that he or she is entitled to the restored leave.  Employees are responsible for providing documents to support their leave claims.

 Where a Title 5 employee, or hourly Title 38 employee who, by VA policy, is charged military leave in the same manner as a Title 5 employee, can show that he/she attempted to file a claim prior to the date of this Flyer, but after July 24, 2003 (the date the Butterbaugh decision was issued), the claim may be retroactively accepted as of the date of the attempted filing provided the employee can establish that he/she was charged military leave on nonworkdays during the applicable claims period.  The burden of proof is on the employee.  Although OPM’s guidance does not require agencies to search employee records to determine who  is eligible for the administrative recrediting of leave based on the Butterbaugh decision, local Human Resources offices are encouraged to be as responsive as possible to employees’ request for copies of available leave requests covering their absence from duty for active military duty. Additional Coverage:  VA has elected to apply the provisions of Butterbaugh to full-time Title 38 employees who are charged leave on a daily basis.  However, based on instructions contained in Flyer 051-289, daily leave Title 38 employees were not subject to the December 21, 2000, change in the application of military leave.  While a decision has been made to extend the provisions of Butterbaugh to the daily schedule Title 38 employees, the governing regulations in VA           Handbook 5011, Part III, Chapter 3, paragraph 7. a. (1) must be changed to reflect this provision.      A policy change is currently in the concurrence channels and we anticipate that it will be signed and published shortly.  Therefore, until the policy is signed and dated, your payroll office may accept claims from daily leave Title 38 employees, but cannot process them until the change in policy is signed and dated.  Administrative claims filed after July 24, 2003, by those Title 38 employees on 24/7 schedules for crediting annual leave for military leave charged on administrative nonduty days may be accepted for 6 years back from the claim filing date.  The Central Office Payroll Policy Division will issue additional guidance regarding the processing of these claims.

Claims Process:  To facilitate the processing of leave claims, we have developed VA Form 0862, Administrative Claim for Annual Leave, which is accessible in a fillable format on the VA Forms Web site at: http://vaww.va.gov/vaforms/.  The form may also be downloaded and made available to applicants who do not have access to the Web site.  In addition, we have developed Q’s & A’s for distribution with the form (copy attached).  The following guidance is provided for use of the form for accepting employees’ claim for leave. ·        The form can be released only to current VA employees for filing claims for annual leave.  ·        At this time, the form cannot be released to retirees and former employees who separated or resigned from Federal service because they are considered as “the public.”   Accordingly, the form must meet the Federal Register notice and comment period, and receive prior approval by the Office of Management and Budget for public use.  Notification concerning the proposed use of the form for the collection of data to process the leave claims was published in the Federal Register on May 11, 2005 (Volume 70, Number 90, pp. 24863 - 24864). ·        Printed copies of VA Form 0862, Administrative Claim for Annual Leave, along with copies of OPM’s guidance, and the attached questions and answers should be provided to claimants.  The form is also available in fillable format at the VA Forms Web site at: http://vaww.va.gov/vaforms/  ·        Eligible employees who wish to make a claim should submit their claims using VA Form 0862.   ·        Employees should submit their signed and dated claim, along with supporting documentation to their local payroll office.  VACO Payroll Policy Division will issue additional guidance and instructions to local payroll offices pertaining to the processing of individual claims. Human Resources offices are strongly encouraged to notify their servicing population regarding the process for filing a claim for annual leave based on the Butterbaugh v. Department of Justice decision.If you have questions concerning this Flyer, please contact Katie McCullough-Bradshaw at             (202) 273-9836, or Francene Shelton at (202) 273-4943.   Office of Human Resources and AdministrationOffice of Human Resources Management and Labor Relations

 

Questions and AnswersOn Administrative Claims for Annual Leave as aResult of the Butterbaugh v. Department of Justice Decision  Q1.  I no longer have copies of my orders or certification of attendance, but I have a personal leave calendar which indicates four days of annual leave and four days of leave without pay (LWOP) taken while in active duty status.  Will this document suffice?  A1.  No.  You need to provide documentation showing that you were charged military leave on your scheduled nonduty days.  In connection with this claim, you do not receive credit for the use of annual leave or LWOP to meet your military active duty obligations. Q2.  I resigned from my position of employment with VA in 1999.  Where do I submit my claim for credit of annual leave? A2.  You should submit your claim for credit of annual leave, VA Form 0862, to the payroll office at the VA facility where you were last employed. Q3.  Can I access the Web to download VA Form 0862? A3.  Yes.  VA Form 0862, Claim for Credit of Annual Leave, is available in fillable format on the VA Forms Web site at http://vaww.va.gov/vaforms/.  You may also download and complete the form manually. Q4.  I did not use any military leave in 1998, so my 15 days rolled into 1999 (30 days of accrued military).  In fiscal year 1999, I was on military leave for 30 consecutive days.  During this time, I was charged 8 days of military leave, including weekends when I was not required to perform duty.  Will I receive leave credits for both 1998 and 1999? A4.  Yes.  You can receive a maximum leave credit of 4 days for fiscal 1998 and 4 days for fiscal 1999.

 

Q5.  I worked a compressed tour in 1999.  My military orders for 15 days caused me to be charged 6 days of military leave for interim nonworkdays.  Why can only 4 of these days be restored? A5.  Based on guidance issued by the Office of Personnel Management (OPM), the maximum annual leave credit that a claimant can receive is       4 days per fiscal year. Q6.  Can I request a sick leave day in lieu of annual leave?  A6.  No.  All leave credits must be restored as annual leave. Q7.  Will the leave be credited to my accrued annual leave account? A7.  No.  Any leave that is credited to you must be placed in a restored leave account. Q8.  How soon can I use the leave that is placed in my restored leave account? A8.  Subject to the approval of your supervisor, you may immediately schedule the use of any restored leave. Q9.  Is there a limitation on the amount of time that I have to use the restored leave? A9.  Yes.  Restored leave must be used by the end of the leave year within two years after the date of restoration.  (For employees who receive annual leave credit in leave year 2005, the time for using the recredited leave will expire at the end of leave year 2007.)  Failure to use restored leave within the required time will result in forfeiture.  There is no provision for recovering forfeited restored leave. Q10.  Why is the burden of proof on the employee?  I do not have records from 1999 anymore, and my military unit has been abolished so I am not able to obtain those records.  VA should already know which days I was charged military leave.  Why can't VA determine the days to be restored and contact me to validate?  If I must provide copies of work schedules, where can I obtain that information? A10.  OPM’s guidance stipulates that the burden of proof is on the employee.  Therefore, you are responsible for establishing the validity of your claim for annual leave by providing supporting documentation such as a copy of your military orders, certification of attendance, or other documentation indicating that you engaged in a period of active military duty for which you were charged military leave on your administrative nonduty days.  You may wish to contact your last servicing payroll or timekeeping office to see what information they are able to provide.  In addition, during your employment, you would have received copies of your bi-weekly Earnings and Leave Statements reflecting the amount of military leave used during the pay period.  Q11.  How long will it take to process my claim for annual leave? A11.  Your leave claim will be processed approximately 60 days from the date of receipt by your local servicing payroll office. Q12.  How will I know if my claim for annual leave is approved or denied? A12.  Your servicing payroll office will send you a decision notice. Q13.  I am a retiree.  How can annual leave be restored to me since I no longer work for VA. A13.  Employees who have retired or separated from Federal service will receive a lump-sum payment for recredited annual leave.  Payment will be based on the rate of pay that you earned at the time or your retirement or separation. Q14.  What recourse do I have if I disagree with amount of the lump-sum paid to me? A. 14. You may appeal to the Fiscal Officer (or Human Resources Officer, if this individual also acts as the Fiscal Officer) if you disagree with the determination made by the payroll office.