B-167122, JUL. 23, 1969

B-167122, JUL. 23, 1969

CIVIL PAY - SICK LEAVE ADJUSTMENT - RETIREMENT DECISION TO FORMER VETERANS ADMINISTRATION EMPLOYEE SUSTAINING DISALLOWANCE OF CLAIM FOR READJUSTMENT OF SICK LEAVE INCIDENT TO CHANGE OF OPTIONAL RETIREMENT TO DISABILITY RETIREMENT. A RETIREMENT STATUS CHANGE WHICH IS INSTITUTED SOMETIME AFTER EMPLOYEE IS OFF THE ROLLS OF THE AGENCY MAY NOT BE VIEWED AS INDICATION THAT ORIGINAL OPTIONAL RETIREMENT WAS NOT VALID OR THAT THE AGENCY ACTED IMPROPERLY. HENCE CLAIM FOR SICK LEAVE ADJUSTMENT MUST BE DISALLOWED.

TO WALTER H. LEVY, M.D.:

THIS REFERS TO YOUR LETTERS OF MAY 19 AND 30, 1969, AND TO YOUR PRIOR LETTERS, CONCERNING THE 158 DAYS OF SICK LEAVE CREDIT, THE USE OF WHICH YOU DID NOT REQUEST EITHER PRIOR TO OR INCIDENT TO YOUR VOLUNTARY RETIREMENT ON SEPTEMBER 8, 1967, FROM SERVICE AT THE VETERANS ADMINISTRATION HOSPITAL, RICHMOND, VIRGINIA. YOU REQUEST SPECIFICALLY THAT OUR OFFICE SETTLEMENT OF MAY 12, 1969, WHICH DISALLOWED YOUR CLAIM FOR THE LEAVE IN QUESTION, BE READJUDICATED.

APPARENTLY IT IS YOUR BELIEF THAT SINCE YOU WERE SUCCESSFUL IN HAVING YOUR OPTIONAL RETIREMENT CHANGED TO DISABILITY RETIREMENT, THE VETERANS ADMINISTRATION SHOULD RESTORE YOU TO THE ROLLS AND CHANGE YOUR SEPARATION DATE FOR THE PURPOSE OF GRANTING YOU THE UNUSED SICK LEAVE WITH PAY. THAT CONNECTION THE LETTER TO YOU FROM THE BUREAU OF RETIREMENT AND INSURANCE OF THE CIVIL SERVICE COMMISSION DATED JULY 23, 1968, IS, IN PERTINENT PART, AS FOLLOWS: "THE MEDICAL INFORMATION YOU HAVE SUBMITTED HAS BEEN REVIEWED BY THE MEDICAL OFFICERS OF THE COMMISSION AND THEY HAVE DETERMINED THAT YOU WERE TOTALLY DISABLED FOR FURTHER USEFUL AND EFFICIENT SERVICE IN YOUR FORMER POSITION AT THE TIME OF YOUR SEPARATION.'ACCORDINGLY, YOUR RECORDS HAVE BEEN CHANGED TO REFLECT RETIREMENT ON ACCOUNT OF DISABILITY. AS YOU ARE OVER 60, THIS DOES NOT CHANGE THE RATE OF ANNUITY ALLOWED YOU WHICH IS THE SAME AS THAT BASED ON VOLUNTARY RETIREMENT.'

SUBSEQUENTLY, ON NOVEMBER 13, 1968, THE CHIEF OF THE PERSONNEL DIVISION OF THE HOSPITAL INFORMED YOU, AS FOLLOWS: "ONCE THE SEPARATION OF AN EMPLOYEE HAS BEEN EFFECTED HE MAY NOT BE RESTORED TO A PAY STATUS SOLELY TO GRANT SICK LEAVE. SUCH A RESTORATION CAN BE EFFECTED TO CORRECT A BONA FIDE ADMINISTRATIVE ERROR OR OVERSIGHT. IT IS OUR OPINION THAT NO ERROR OR OVERSIGHT OCCURRED IN CONNECTION WITH YOUR RETIREMENT. YOU PERSONALLY ESTABLISHED YOUR OWN DATE OF SEPARATION FOR OPTIONAL RETIREMENT AND THE SUBSEQUENT CHANGE TO DISABILITY RETIREMENT WAS IN NO WAY DEPENDENT UPON A FINDING OF ADMINISTRATIVE ERROR.'

THEREAFTER, ON NOVEMBER 25, 1968, AND IN YOUR LETTERS OF MAY 19 AND 30, 1969, CERTAIN FACTS ARE DISCUSSED BY YOU AS "CREATING THE CIRCUMSTANCES OF MY RETIREMENT.' ALSO YOU HAVE ASSERTED THAT THE LONG STANDING RULES--- SET FORTH IN THE SETTLEMENT AND IN THE ABOVE LETTER OF NOVEMBER 13, 1968-- - ARE INAPPLICABLE TO YOUR CASE BECAUSE, YOU SAY- - "/1) THE ONSET OF MY ILLNESS PRECEDED RETIREMENT BY SEVERAL YEARS; (2) IT WAS GREATLY PRECIPITATED AND MADE ACUTE BY THE CIRCUMSTANCES OF MY EMPLOYMENT; (3) MY RETIREMENT WAS NOT TRULY -OPTIONAL-; AND (4) I WAS NEVER ADVISED THAT I SHOULD REQUEST A DISABILITY RETIREMENT.'

AS TO THOSE ITEMS, THE RECORD IS CLEAR THAT IT WAS YOUR DECISION TO APPLY FOR RETIREMENT ON OPTIONAL ANNUITY EFFECTIVE SEPTEMBER 8, 1967, RATHER THAN TO ACCEPT AN OFFERED TRANSFER TO ANOTHER FACILITY OF THE VETERANS ADMINISTRATION. YOUR PERSONAL REASONS FOR THAT DECISION, OR FOR YOUR LATER DECISION TO SEEK DISABILITY ANNUITY, DO NOT ALTER THE FACTS (1) THAT ON OR PRIOR TO SEPTEMBER 8, 1967, YOU DID NOT REQUEST EXTENDED SICK LEAVE BECAUSE OF YOUR PHYSICAL CONDITION AND (2) THAT YOU DID NOT RAISE THE ISSUE ABOUT YOUR INCAPACITY TO PERFORM YOUR PROFESSIONAL DUTIES UNTIL AFTER YOU HAD BEEN SEPARATED FROM SERVICE FOR PURPOSES OF THE OPTIONAL RETIREMENT.

THE AGENCY REPORT TO US STATES THAT THE RECORDS DO NOT SHOW THAT YOU HAD INDICATED YOU WERE ILL OR DISABLED FOR PERFORMANCE OF THE DUTIES OF YOUR POSITION OR THAT STATION OFFICIALS WERE AWARE OF SUCH A CONDITION PRIOR TO YOUR RETIREMENT; ALSO THAT REPORT POINTS OUT THAT DURING 1967 YOU TOOK ONLY 3 DAYS OF SICK LEAVE AND THAT IF YOU HAD BEEN ON SICK LEAVE AT THE TIME OR HAD RECENTLY USED A CONSIDERABLE AMOUNT OF SICK LEAVE, THE HOSPITAL OFFICIALS WOULD HAVE SUGGESTED EITHER DISABILITY RETIREMENT OR DELAY OF OPTIONAL RETIREMENT UNTIL AFTER EXPIRATION OF ALL SICK LEAVE TO YOUR CREDIT.

WE NOTE YOUR STATEMENTS REGARDING THE ONSET OF YOUR ILLNESS AND THAT YOU TOOK VERY LITTLE SICK LEAVE BUT HAD TO BE RELIEVED AGAIN AND AGAIN WHILE WORKING. HOWEVER, WE MUST EMPHASIZE THAT THE ADMINISTRATIVE RESPONSIBILITY AND AUTHORITY TO GRANT SICK LEAVE TO AN EMPLOYEE MAY BE EXERCISED GENERALLY ONLY WHILE THE EMPLOYEE REMAINS ON THE ROLLS OF THE AGENCY. THAT WOULD BE PRIOR TO THE DATE THAT THE EMPLOYEE'S SERVICE OFFICIALLY IS TERMINATED.

IN THAT CONNECTION WE DIRECT YOUR ATTENTION TO THE ENCLOSED COPIES OF OUR DECISIONS B-155054 DATED OCTOBER 12, 1964, B-156534 DATED APRIL 26, 1965, B-160461 DATED JANUARY 12, 1967, B-162628 DATED DECEMBER 27, 1967, AND B- 162957 DATED FEBRUARY 15, 1968.

THE RECORD IS CLEAR THAT THE CIVIL SERVICE COMMISSION'S CHANGE OF YOUR VOLUNTARY OPTIONAL RETIREMENT STATUS TO A DISABILITY RETIREMENT STATUS ON JULY 23, 1968, WAS INSTITUTED BY YOU SOMETIME AFTER MAY 3, 1968. HOWEVER, THE CHANGE OF YOUR RETIREMENT STATUS MAY NOT BE VIEWED AS AN INDICATION THAT YOUR VOLUNTARY OPTIONAL RETIREMENT WAS NOT VALID OR THAT THE AGENCY ACTED IMPROPERLY IN THE MATTER.

IN THE FOREGOING CIRCUMSTANCES, THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.