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Am I Entitled?

Additional information regarding the entitlement to restoration or payment of leave as a result of an administrative claim under Butterbaugh V. DOJ

Based on customer comments, there appears to be a perception by many current and former employees that they are entitled to restoration or payment of leave for each weekend or non-workday that they were charged military leave, regardless of whether or not they were harmed by the erroneous charging of “military leave.”

This is not true, as the Merit Systems Protection Board (MSPB) has ruled in Harper v. Department of the Navy 2006 MSPB 30 (February 27, 2006) and Garcia v. State Department 2006 MSPB 29 (February 27, 2006), that it is the employee’s responsibility to provide evidence that he or she was harmed (had to use annual leave, leave without pay or other types of leave) to cover an absence on military duty as a result of being improperly charged military leave for non-workdays.

According to the cases cited above, the appellant/claimant must show that because he or she was improperly charged military leave for non-workdays the claimant was required to use some other form of leave to cover future military duty. The harm arises because the claimant is denied the use of that other leave for its future intended purpose.

As an example of the above rule, if an employee performed military service on Monday 12 May through Saturday 25 May under the Office of Personnel Management (OPM) rules at the time, the federal employee who was also a reservist/guardsman was charged 12 days of “military leave” including the weekend period, which is typically civilian non-duty days. After the Butterbaugh decision, it was determined that the federal employee should have only been charged 10 days of military leave, because a federal employee whose work schedule is Monday through Friday is not required to perform work on Saturday and Sunday (19 and 20 May in this example).

However, per the MSPB decisions, there is no “harm” to the federal employee and the federal government is not liable for restoration of leave or payment for the days of leave unless the federal employee can prove he/she used all of their authorized military leave (15 days/120 hours) during the fiscal year and had to take annual leave or some other form of leave for any subsequent military duty day. Each October 1, a federal employee who is still a reservist accrues 15 days/120 hours of military leave.

In the typical cases, reservists completed one 2-week annual tour per calendar year. Thus, even if the federal employee was charged for two days of military leave for the weekend in the middle of the two-week tour, this alone is not enough to show that the employee was harmed, and therefore is not entitled to restoration of leave or payment of annual leave. In essence, harm occurs after the member expends 15 days of military leave in the fiscal year and then had to use some other type of leave for additional military duty.

For Civilian Pay questions, please contact your Customer Service Representative (CSR). Contact your immediate supervisor for more details.

Page Updated: March 16, 2011