Ask FELTG: Can an Agency Charge AWOL for Failure to Report for Overtime?

January 21, 2025

Hello, FELTG! 

Can an agency charge an employee AWOL when they fail to report for overtime? There is a “healthy” debate within my division on this. Most of my specialists are saying because the employee doesn’t have the opportunity to request leave, you can’t charge them AWOL. My rebuttal to that is, it’s outside of the administrative workweek so it’s moot. Could you please help end this debate? I know of no rule that an agency cannot charge an employee AWOL unless they can request annual leave. Thank you!

Thanks for the question. Fortunately, there is foundational case law on this, which should help settle any “healthy” debate in your office. Check out Abrams v. Navy, 22 M.S.P.R. 480 (1984). It’s an interesting case that involved four charges, the most egregious related to the appellant shooting – with a gun, while off duty – and wounding another person. The appellant was convicted on five criminal charges related to the shooting, but the Board found the agency did not prove nexus, because the appellant proved the shooting had no adverse effect on the efficiency of the service. (Yikes. Maybe the agency assumed the conduct was so egregious there was a presumption of nexus, but failed to realize that it’s a rebuttable presumption?)

So then, what are we left with? Three additional charges supported the removal:

1) A second offense of being away from his assigned job during working hours without proper permission (one day);

2) An unexcused absence from assigned overtime (one day); and

3) Excessive unauthorized absence from July 28, 1980 through October 1, 1980.

Id. at 482-483.

Your question really goes to charge 2, where the appellant was scheduled for overtime and did not report. According to the Board:

[T]he agency established that the overtime work scheduled for appellant on June 1 was “critically important” to the shipyard’s mission of maintaining and repairing naval vessels. Appellant admitted that he was aware that his scheduled overtime work was of critical importance. Under these circumstances, the Board finds that appellant failed to provide satisfactory documentation for his unscheduled absence on June 1 and, consequently, that the agency did not abuse its discretion in denying appellant LWOP and in charging him with AWOL… (internal citations omitted)

Id. at 485.

There you have it. An agency may charge AWOL (or, alternatively, unexcused absence from assigned overtime) when an employee does not report for scheduled overtime. In the Douglas factors assessment, be sure to emphasize the harm or potential for harm due to the employee’s absence. [email protected]

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