B-136721, JAN. 18, 1960

B-136721, JAN. 18, 1960

TO HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

THIS REFERS TO YOUR DEPUTY ADMINISTRATOR'S LETTER OF DECEMBER 29, 1959, REFERENCE 135, REQUESTING THAT IN LIGHT OF OUR DECISION OF SEPTEMBER 3, 1959, B-139623, 39 COMP. GEN. 154, TO THE SECRETARY OF THE TREASURY, WE RECONSIDER THE ACTION TAKEN IN OUR DECISION OF AUGUST 1, 1958, B-136721, TO YOU, WHEREIN WE HELD THAT AN EMPLOYEE OF THE VETERANS ADMINISTRATION WAS NOT ENTITLED TO HAVE HIS ANNUAL AND SICK LEAVE RECREDITED BECAUSE OF THE INVOLUNTARY APPLICATION FOR DISABILITY RETIREMENT FILED BY THE VETERANS ADMINISTRATION.

IN OUR DECISION OF SEPTEMBER 3, 1959, WE HELD THAT THE EMPLOYEE WHO HAD BEEN PLACED ON SICK AND ANNUAL LEAVE PENDING AN AGENCY INITIATED ACTION FOR INVOLUNTARY DISABILITY RETIREMENT WAS ENTITLED TO BE RECREDITED WITH THE SICK AND ANNUAL LEAVE AFTER HE WAS RESTORED TO DUTY--- THE PERIOD OF HIS CLAIM BEING REGARDED AS A PERIOD OF SUSPENSION WHICH IS COMPENSABLE UNDER SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. OUR ACTION THERE WAS BASED UPON THE FACT THAT THERE WAS NOTHING IN THE FILE TO SHOW THAT ANY OF THE DOCTORS WHO EXAMINED THE EMPLOYEE FOUND HE WAS TOTALLY DISABLED TO PERFORM THE DUTIES ASSIGNED HIM. IN FACT, THE EMPLOYEE WAS AT VARIOUS TIMES DURING HIS ENFORCED LEAVE CALLED UPON TO PERFORM PART OF HIS DUTIES AND DID PERFORM SUCH DUTIES. IN OUR DECISION OF AUGUST 1, 1958, TO YOU, WE HELD THAT THE PLACING OF THE EMPLOYEE ON ANNUAL AND SICK LEAVE PENDING ACTION ON THE INVOLUNTARY APPLICATION FOR DISABILITY RETIREMENT FILED BY THE VETERANS ADMINISTRATION WAS WITHIN ADMINISTRATIVE DISCRETION. WE BASED THAT HOLDING UPON THE FACT THAT THE ADMINISTRATIVE OFFICIALS RELIED UPON THE MEDICAL REPORT FURNISHED BY HOSPITAL AUTHORITIES AT THE INSTALLATION WHERE THE INDIVIDUAL WAS EMPLOYED THAT THE EMPLOYEE WAS INCAPACITATED FOR THE PERFORMANCE OF HIS DUTIES BY SICKNESS. THE DISTINGUISHING FACTOR MAY BE EMPHASIZED BY QUOTING FROM A LATER UNPUBLISHED DECISION, NAMELY, B-140749, DATED OCTOBER 22, 1959, WHICH READS, IN PART, AS FOLLOWS:

"FROM JUNE 10, 1956, TO APRIL 2, 1957, THE DEPARTMENT RELYING ON ITS MEDICAL OFFICER'S REPORT OF DISABILITY CARRIED THE CLAIMANT IN A SICK AND ANNUAL LEAVE STATUS WITH PAY. SUCH ACTION WAS NOT IN CONTRAVENTION OF CIVIL SERVICE REGULATION R 5-42 OF THE FEDERAL PERSONNEL MANUAL AS ALLEGED IN YOUR PETITION, SINCE THE EMPLOYEE WAS NEITHER IN A LEAVE-WITHOUT-PAY STATUS NOR SEPARATED FROM THE SERVICE. THE DEPARTMENT'S ACTION WAS NEITHER ARBITRARY NOR CAPRICIOUS SINCE IT ACTED UPON COMPETENT MEDICAL ADVICE IN REMOVING THE CLAIMANT FROM ACTIVE DUTY. THEREFORE, WE FIND NO BASIS FOR RECREDITING THE LEAVE CHARGED DURING THE ABOVE PERIOD.'

UPON THE RECORD ON FILE IN THIS CASE WE FIND NO PROPER BASIS FOR CHANGING THE CONCLUSION HERETOFORE REACHED IN THE MATTER.