BNUMBER:  B-265967
DATE:  November 28, 1995
TITLE:  [Letter]

**********************************************************************

B-265967

November 28, 1995

The Honorable Bob Filner
Member, United States
  House of Representatives
333 F Street, Suite A
Chula Vista, CA  91910

Dear Mr. Filner:

This further responds to your August 8, 1995, letter on behalf of Ms. 
Corazon Trilles (your case #4381), which enclosed a copy of a July 26, 
1995, letter to your office from Ms. Trilles requesting 
reconsideration of our Claims Group settlement, Z-2869660, July 11, 
1995, denying Ms. Trilles's request for reinstatement of her 
nonappropriated fund leave accrual, lost incident to her employment 
with an appropriated fund activity.

Neither the facts nor the law are in dispute.  Ms. Trilles resigned 
from her employment with the Navy Exchange, a nonappropriated fund 
activity in San Diego, California, on Tuesday, November 13, 1990, to 
accept a civilian position with the Department of Defense at the Naval 
Hospital in San Diego, an appropriated fund position, effective the 
following Monday, November 19, which resulted in a 6-day break in 
service.  Prior to November 5, 1990, there was no authority to permit 
an employee to carry leave accrued in a nonappropriated fund position 
with him or her upon employment in an appropriated fund position.  
However, shortly before Ms. Trilles began her employment at the Naval 
Hospital, on November 5, 1990, a statutory change was enacted to 
permit employees of nonappropriated fund activities to transfer their 
accrued sick and annual leave balances to positions in the Department 
of Defense or Coast Guard if the employee moves to the new position 
"without a break in service of more than 3 days."  5 U.S.C.  6308(b).  
As Ms. Trilles acknowledges, since her service break exceeded 3 days, 
under this law, she is not entitled to have her accrued leave from her 
former position reinstated to her current leave accounts.

Ms. Trilles states, however, that, at the time she transferred, she 
was told that none of her benefits could be carried over to her new 
position, suggesting to her that the personnel who advised her were 
unaware of the change in the law.  Further, she asserts that if the 
personnel at the Naval Hospital had been aware of the law, and had 
advised her of its provisions, she could have arranged to start her 
new job within the 3-day limit.  Ms. Trilles argues that she should 
not have to pay the consequences for the Navy's failure to properly 
advise her.

While it is unfortunate that the agency personnel who advised Ms. 
Trilles may not have been aware of the recent statutory change, the 
well-established rule is that the erroneous advice of agency personnel 
does not provide a basis to allow a claim that otherwise is barred by 
law.  Bryon A. Hartley, B-252488, June 17, 1993, and cases cited 
therein.  Accordingly, there is no authority which would permit us to 
allow Ms. Trilles's claim.

We trust this serves the purpose of your inquiry.

Sincerely yours,

/s/Seymour Efros
for Robert P. Murphy
General Counsel

B-265967

November 28, 1995

DIGEST

A Department of Defense civilian employee who moved to her current 
position from a position with a nonappropriated fund activity after a 
break in service of more than 3 days may not have her leave accrual 
account from the former position reinstated to her current position.  
Notwithstanding that she may have received erroneous advice from 
agency personnel, the applicable law permits the transfer of leave 
accrual balances between nonappropriated fund activities and the 
Department of Defense or Coast Guard only if the employee moves 
without a break in service of more than 3 days.  5 U.S.C.  6308(b).  
The erroneous advice of agency personnel may not serve as the basis of 
a claim otherwise barred by law.  Bryon A. Hartley, B-252488, June 17, 
1993.