B-58008, JUNE 14, 1946, 25 COMP. GEN. 874

B-58008, JUNE 14, 1946, 25 COMP. GEN. 874

LEAVES OF ABSENCE - ADVANCES - EMPLOYEES ANTICIPATING NON-RETURN TO DUTY ON ACCOUNT OF DISABILITY WHERE IT WAS ADMINISTRATIVELY INTENDED NOT TO ACCEPT THE RESIGNATION OF A PERMANENT EMPLOYEE TENDERED NEAR THE END OF A CALENDAR YEAR WHILE HE WAS ON LEAVE DUE TO ILL HEALTH BUT TO CARRY HIM IN A LEAVE STATUS PENDING ACTION AS TO APPLICATION FOR DISABILITY RETIREMENT, THE EMPLOYEE IS NOT ENTITLED, AT THE BEGINNING OF THE FOLLOWING CALENDAR YEAR, TO CREDIT OF 26 DAYS' ANNUAL LEAVE UNDER SECTION 2.1 OF THE ANNUAL AND SICK LEAVE REGULATIONS OR TO 30 DAYS' ADVANCE SICK LEAVE UNDER SECTION 3.8 THEREOF; RATHER, THE EMPLOYEE IS ENTITLED ONLY TO THE ANNUAL AND SICK LEAVE WHICH HAD ACCRUED TO HIS CREDIT ON HIS LAST DAY OF ACTUAL DUTY.

COMPTROLLER GENERAL WARREN TO V. H. EASTMAN, DEPARTMENT OF AGRICULTURE, JUNE 14, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1946, FILE T-1.011, AS FOLLOWS:

THE EIGHT ENCLOSED SUPPLEMENTAL PAYROLL VOUCHERS, BUREAU VOUCHER NOS. 90710 TO 90717, INCLUSIVE, TOTALING $851.19 COVERING THE PERIOD FROM DECEMBER 30, 1945 TO FIVE HOURS ON APRIL 9, 1946, HAVE BEEN PRESENTED TO ME FOR CERTIFICATION.

DR. WILLARD T. ROBERTSON, A PERMANENT EMPLOYEE WITH MORE THAN FIVE YEARS OF SERVICE CREDIT, SUBMITTED HIS RESIGNATION ON DECEMBER 29, 1945, EFFECTIVE AT THE CLOSE OF BUSINESS ON THAT DATE, STATING THAT HIS PHYSICIAN ADVISED HIM THAT IT WAS IMPERATIVE FOR HIM TO STOP WORKING. FORMAL PERSONNEL ACTION WAS TAKEN, PENDING ADVICE FROM HIM AS TO WHETHER HE DESIRED TO APPLY FOR DISABILITY RETIREMENT. DR. ROBERTSON FILED APPLICATION FOR DISABILITY RETIREMENT ON MARCH 23, 1946. HIS LAST DAY OF ACTIVE DUTY WAS DECEMBER 7, 1945. HE WAS GRANTED ALL OF THE SICK LEAVE THAT WOULD ACCRUE TO HIM THROUGH THE END OF THE CALENDAR YEAR 1945, WHICH CARRIED HIM THROUGH FIVE HOURS ON DECEMBER 21, 1945. HE WAS GRANTED ANNUAL LEAVE FOR THE REMAINDER OF THE PAY PERIOD ENDING DECEMBER 29, 1945. A BALANCE OF 109 HOURS ANNUAL LEAVE REMAINED TO HIS CREDIT AT THE CLOSE OF BUSINESS DECEMBER 29, 1945, INCLUDING LEAVE THAT WOULD ACCRUE FOR THE MONTH OF DECEMBER AND THE QUARTERLY CREDIT OF FOUR HOURS. ADDITION, THE ENCLOSED VOUCHERS COVER 26 DAYS ANNUAL LEAVE THAT WOULD ACCRUE TO HIM THROUGH DECEMBER 31, 1946, AS WELL AS 30 DAYS ADVANCE SICK LEAVE.

SECTION 2.1 OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDES IN PART THAT:

"A CREDIT OF 26 DAYS MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES IN LIEU OF THE MONTHLY CREDIT: PROVIDED, THAT SHOULD AN EMPLOYEE SEPARATE FROM THE SERVICE BEFORE THE EXPIRATION OF THE CALENDAR YEAR SUCH CREDIT WILL BE REDUCED PROPORTIONATELY.'

THE PROVISION OF SECTION 4.6 IN PERTINENT PART PROVIDES THAT:

"IN CASE OF THE SEPARATION OF AN EMPLOYEE WHO IS INDEBTED FOR ADVANCE LEAVE, THE EMPLOYEE SHALL REFUND THE AMOUNT PAID HIM FOR THE PERIOD OF SUCH EXCESS, OR DEDUCTION THEREFOR SHALL BE MADE FROM ANY SALARY DUE HIM. THIS SECTION SHALL NOT APPLY--- IN CASE OF AN EMPLOYEE WHO IS NOT FOUND ELIGIBLE FOR RETIREMENT IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE.'

QUESTION AND ANSWER NO. 4 IN YOUR DECISION B-48972, 24 COMP. GEN. 768, CONCERNS A SOMEWHAT COMPARABLE CASE ALTHOUGH ADVANCE SICK LEAVE IS NOT INVOLVED THEREIN. IN DECISION B-43144, 24 COMP. GEN. 27, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"UNDER THE ANNUAL AND SICK LEAVE REGULATIONS, AN EMPLOYEE WHO IS REQUIRED BY REASON OF ILL HEALTH TO LEAVE ACTIVE SERVICE AND RESIGN, WHICH ACTION PROPERLY IS SUPPORTED BY A DOCTOR'S CERTIFICATE, MAY BE GRANTED ALL OF HIS ACCUMULATED AND CURRENT ACCRUED SICK AND ANNUAL LEAVE AS A CONTINUOUS PERIOD, WITHOUT A RETURN TO DUTY, UPON THE BASIS OF AN APPLICATION THEREFOR FILED ALONG WITH TENDER OF RESIGNATION PRIOR TO THE EXPIRATION OF THE LEAVE, AND THE DATE OF RESIGNATION MAY BE FIXED SO AS TO GRANT SUCH SICK AND ANNUAL LEAVE.

"UNDER THE ANNUAL AND SICK LEAVE REGULATIONS THE GRANTING OF SICK LEAVE UPON TERMINATION OF SERVICE IS AN ADMINISTRATIVE MATTER NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE, BUT, AS TO ANNUAL LEAVE, AN EMPLOYEE IS ENTITLED THERETO AS A MATTER OF RIGHT (SECTION 2.4 OF THE REGULATIONS), AND IT MAY NOT BE DENIED ADMINISTRATIVELY.'

ONLY GRANTING OF ACCUMULATED AND CURRENT SICK AND ANNUAL LEAVE IS APPROVED IN THIS DECISION. YOUR DECISION B-41468, 23 COMP. GEN. 837, COVERS THE GRANTING OF THE FULL 26 DAYS ANNUAL LEAVE EARNED IN THE CALENDAR YEAR WHERE IT WAS NOT KNOWN IN ADVANCE THAT THE EMPLOYEE WAS TO RETIRE BEFORE THE END OF THE YEAR. DECISIONS B-50946, 25 COMP. GEN. 141 AND B-48070, 24 COMP. GEN. 659, HAVE ALSO BEEN NOTED.

SINCE NO FORMAL PERSONNEL ACTION WAS TAKEN TO ACCEPT DR. ROBERTSON'S RESIGNATION AT THE CLOSE OF BUSINESS ON DECEMBER 29, 1945, AND IN VIEW OF THE FACT THAT THERE IS DEFINITE INFORMATION AVAILABLE INDICATING THAT HE IS PHYSICALLY UNABLE TO RETURN TO DUTY, I SHALL APPRECIATE YOUR ADVICE IN CONNECTION WITH THE FOLLOWING POINTS, AS TO WHETHER I MAY PROPERLY CERTIFY THE ENCLOSED PAYROLL VOUCHERS:

1. WILL CREDIT OF 26 DAYS ANNUAL LEAVE ACCRUE TO DR. ROBERTSON AT THE BEGINNING OF THE CALENDAR YEAR 1946 AS PROVIDED IN SECTION 2.1 OF THE ANNUAL AND SICK LEAVE REGULATIONS?

2. IF YOUR ANSWER TO QUESTION ONE IS IN THE AFFIRMATIVE AND PAYMENT OF THE ENCLOSED VOUCHERS IS APPROVED, WHAT WILL MY RESPONSIBILITY BE FOR ANY OVERPAYMENT IN THE EVENT DISABILITY RETIREMENT IS DENIED THE EMPLOYEE AND HE DOES NOT RETURN TO DUTY OR IS UNABLE TO REFUND THE AMOUNT PAID TO HIM IN EXCESS OF THE 109 HOURS ANNUAL LEAVE ACCRUED THROUGH THE CALENDAR YEAR 1945?

ALTHOUGH YOU DO NOT SPECIFICALLY ASK A QUESTION AS TO SICK LEAVE, THE QUESTION AS TO THE PROPRIETY OF ADVANCING 30 DAYS' SICK LEAVE NECESSARILY ARISES OUT OF THE FACTS STATED. THEREFORE, IN ADDITION TO THE REGULATIONS AND DECISIONS QUOTED AND CITED IN YOUR LETTER, SUPRA, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 3.8 OF THE CURRENT LEAVE REGULATIONS, AS FOLLOWS:

IN CASES OF SERIOUS DISABILITY OR AILMENTS, AND WHEN THE EXIGENCIES OF THE SITUATION SO REQUIRE SICK LEAVE MAY BE ADVANCED TO PERMANENT AND INDEFINITE EMPLOYEES NOT IN EXCESS OF 30 DAYS; PROVIDED, THAT NO ADVANCES OF SICK LEAVE SHALL BE MADE TO ANY EMPLOYEE UNLESS THE ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS IS FOR A PERIOD OR PERIODS, OF 5 OR MORE CONSECUTIVE WORK DAYS; THAT EVERY APPLICATION FOR ADVANCE LEAVE SHALL BE SUPPORTED BY A MEDICAL CERTIFICATE; THAT THE TOTAL OF SUCH ADVANCES SHALL BE CHARGED AGAINST SICK LEAVE SUBSEQUENTLY CREDITED. SICK LEAVE MAY BE ADVANCED IRRESPECTIVE OF WHETHER THE EMPLOYEE HAS ANNUAL LEAVE TO HIS CREDIT.

THE PROVISIONS OF SECTION 2.1 OF THE LEAVE REGULATIONS WHICH AUTHORIZE 26 DAYS' ANNUAL LEAVE TO BE CREDITED TO AN EMPLOYEE AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH THE LEAVE ACCRUES IN LIEU OF A MONTHLY CREDIT, AND THE PROVISIONS OF SECTION 3.8 OF THE LEAVE REGULATIONS WHICH AUTHORIZE AN ADVANCE OF NOT EXCEEDING 30 DAYS' SICK LEAVE TO PERMANENT AND INDEFINITE EMPLOYEES ARE NOT FOR APPLICATION IN THOSE INSTANCES WHERE IT IS KNOWN PRIOR TO THE GRANTING OF SUCH LEAVE THAT AN EMPLOYEE DOES NOT INTEND TO RETURN TO A DUTY STATUS. SUCH PROVISIONS OBVIOUSLY WERE DESIGNED TO APPLY ONLY TO EMPLOYEES WHOSE CONTINUED FUTURE EMPLOYMENT IS CONTEMPLATED AT THE TIME ANNUAL LEAVE IS CREDITED OR WHOSE EMPLOYMENT WILL BE CONTINUED IN THE EVENT OF RECOVERY WHERE SICK LEAVE IS ADVANCED. IT WILL BE NOTED THAT SECTION 4.6 OF THE CURRENT LEAVE REGULATIONS REQUIRES A REFUND TO THE UNITED STATES OF ANY AMOUNT PAID ON ACCOUNT OF UNEARNED ADVANCED LEAVE EXCEPT IN CASE OF DEATH, RETIREMENT FOR DISABILITY, OR REDUCTION IN FORCE, OR, IN THE CASE OF AN EMPLOYEE WHO IS NOT FOUND ELIGIBLE FOR RETIREMENT, IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY. EACH OF THOSE EXCEPTIONS INVOLVES CIRCUMSTANCES OVER WHICH AN INDIVIDUAL ORDINARILY HAS NO CONTROL AND WHICH ORDINARILY COULD NOT BE ANTICIPATED. IN THE PRESENT INSTANCE, THE EMPLOYEE'S LAST DAY OF DUTY WAS DECEMBER 7, 1945, HIS RESIGNATION WAS TENDERED ON DECEMBER 29, 1945, TO BE EFFECTIVE AS OF THE CLOSE OF BUSINESS ON THAT DATE. NO FORMAL PERSONNEL ACTION WAS TAKEN PENDING ADVICE FROM HIM AS TO WHEHTER HE DESIRED TO APPLY FOR DISABILITY RETIREMENT. APPLICATION FOR DISABILITY RETIREMENT WAS MADE MARCH 23, 1946. UNDER SUCH CIRCUMSTANCES, I AM CONSTRAINED TO HOLD THAT 26 DAYS' ANNUAL LEAVE PROPERLY COULD NOT BE CREDITED AND THAT 30 DAYS' SICK LEAVE PROPERLY COULD NOT BE ADVANCED TO DR. ROBERTSON AS OF THE BEGINNING OF THE CALENDAR YEAR 1946. QUESTION 1 IS ANSWERED ACCORDINGLY, RENDERING UNNECESSARY ANY ANSWER TO QUESTION 2.

THERE IS FOR NOTING YOUR STATEMENT THAT A BALANCE OF 109 HOURS' ANNUAL LEAVE REMAINED TO THE CREDIT OF THE EMPLOYEE AT THE CLOSE OF BUSINESS DECEMBER 29, 1945, INCLUDING LEAVE THAT WOULD ACCRUE FOR THE MONTH OF DECEMBER AND THE QUARTERLY CREDIT OF FOUR HOURS. SECTION 4.2 OF THE CURRENT LEAVE REGULATIONS PROVIDES:

(A) LEAVE SHALL ACCRUE TO AN EMPLOYEE WHILE IN A LEAVE-WITH-PAY STATUS PROVIDING HE RETURNS TO DUTY.

(B) LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION. IN SUCH CASES THE ACCRUAL OF LEAVE SHALL CEASE AT THE CLOSE OF THE LAST DAY ON WHICH HE WAS PRESENT FOR DUTY, AND THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE: PROVIDED, THAT EMPLOYEES WHO ARE RESTORED IN ACCORDANCE WITH STATUTORY PROVISIONS TO CIVILIAN POSITIONS AFTER MILITARY, NAVAL OR MERCHANT MARINE SERVICE MAY BE CREDITED WITH LEAVE ACCRUED DURING THE PERIOD OF TERMINAL LEAVE GRANTED IMMEDIATELY PRIOR TO ENTRY INTO ACTIVE MILITARY, NAVAL, OR MERCHANT MARINE SERVICE.

ACCORDINGLY, DR. ROBERTSON MAY BE CREDITED ONLY WITH SUCH LEAVE AS HAD ACCRUED TO HIM ON DECEMBER 7, 1945, HIS LAST DAY OF DUTY. SEE DECISION OF JULY 30, 1945, B-50946, 25 COMP. GEN. 141; ALSO DECISION OF MAY 2, 1944, 23 ID. 837. IF DR. ROBERTSON'S RESIGNATION HAD BEEN ACCEPTED AS TENDERED, PAYMENT IN A LUMP SUM FOR LEAVE WHICH HAD ACCRUED TO HIS CREDIT ON DECEMBER 7, 1945, AND REMAINED UNLIQUIDATED AS OF DECEMBER 29, 1945, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, WOULD HAVE BEEN PROPER. IT IS UNDERSTOOD HOWEVER, THAT IT WAS THE ADMINISTRATIVE INTENTION NOT TO ACCEPT THE RESIGNATION AS TENDERED BUT TO CARRY DR. ROBERTSON IN A LEAVE STATUS PENDING FINAL DETERMINATION AS TO HIS APPLICATION FOR DISABILITY RETIREMENT. 24 COMP. GEN. 768. WITH THAT UNDERSTANDING THE VOUCHERS MAY BE CERTIFIED FOR PAYMENT ONLY THROUGH THE DATE AND HOUR TO WHICH THE LEAVE ACCRUED TO DR. ROBERTSON'S CREDIT ON DECEMBER 7, 1945, AND UNLIQUIDATED AS OF DECEMBER 29, 1945, WOULD EXTEND.