B-142837, SEP. 2, 1960

B-142837, SEP. 2, 1960

TO MR. FELIX E. HORNE, SR.:

YOUR LETTER OF AUGUST 5, 1960, REQUESTS RECONSIDERATION OF THAT PART OF OUR DISALLOWANCE OF YOUR CLAIM (DATED JULY 6, 1960), WHICH CONCERNS RESTORATION OF LEAVE, PRESUMABLY COVERING THE PERIOD JUNE 10, 1957 TO OCTOBER 2, 1957; ALSO, YOU SAY THAT SINCE YOU WERE RESTORED TO DUTY ON JUNE 19, 1958, AND WERE IN A WORK AND DUTY STATUS UNTIL SEPTEMBER 25, 1958, YOU SHOULD BE GIVEN CREDIT FOR LEAVE EARNED DURING THAT PERIOD.

THE RECORD INDICATES THAT BEGINNING JUNE 10, 1957, YOU WERE CARRIED IN A SICK LEAVE, ANNUAL LEAVE, AND LEAVE-WITHOUT-PAY STATUS UNTIL MARCH 28, 1958, WHEN YOU WERE SEPARATED FROM THE SERVICE FOR DISABILITY.

BECAUSE OF AN APPEAL TO THE CIVIL SERVICE COMMISSION YOUR SEPARATION EFFECTIVE MARCH 28, 1958, WAS CANCELED AND YOU WERE RESTORED TO DUTY EFFECTIVE JUNE 19, 1958. APPARENTLY, YOU ACTUALLY PERFORMED WORK FROM JUNE 19, 1958 THROUGH JULY 8, 1958, ON WHICH LATTER DATE YOU WERE AGAIN PLACED ON LEAVE-WITHOUT-PAY BECAUSE OF DISABILITY AND FINALLY SEPARATED FROM THE SERVICE ON SEPTEMBER 25, 1958.

AS PREVIOUSLY ADVISED IN OUR SETTLEMENT OF JULY 6, 1960, YOU HAVE BEEN FULLY COMPENSATED FOR THE PERIOD FROM OCTOBER 2, 1957 TO JUNE 18, 1958, INCLUSIVE, AND FROM JULY 7, 1958 TO SEPTEMBER 25, 1958, IN ACCORDANCE WITH THE RECOMMENDATIONS OF THE CIVIL SERVICE COMMISSION. ALSO, IT APPEARS THAT FOR THE PERIOD PRIOR TO OCTOBER 2, 1957, YOU RECEIVED YOUR REGULAR SALARY TO THE EXTENT OF THE PERIOD YOU WERE CARRIED ON ANNUAL AND SICK LEAVE.

WE HAVE HELD UNDER THE PROVISIONS OF 5 U.S.C. 652, AUTHORIZING COMPENSATION FOR PERIODS OF UNWARRANTED REMOVAL OR SUSPENSION FROM THE SERVICE THAT PERIODS OF ENFORCED LEAVE INCIDENT TO SUSPENSION OR REMOVAL CAN BE CONSIDERED AS PERIODS OF SUSPENSION WITHIN THE MEANING OF SUCH ACT THUS ENTITLING EMPLOYEES, UPON RESTORATION, TO COMPENSATION FOR SUCH PERIODS AND A RECREDIT OF ANNUAL LEAVE. 37 COMP. GEN. 160. HOWEVER, THAT SITUATION DOES NOT PREVAIL IN YOUR CASE. THE ORDER OF THE CIVIL SERVICE COMMISSION UNDER WHICH YOU WERE REGARDED AS IN A SUSPENDED STATUS EXTENDED BACK TO ONLY OCTOBER 2, 1957, AND COVERED A PERIOD OF LEAVE-WITHOUT-PAY, YOUR ANNUAL AND SICK LEAVE HAVING BEEN EXHAUSTED AT THAT TIME. MOREOVER, OUR VIEW IS THAT THE DEPARTMENT OF THE NAVY HAD A REASONABLE BASIS FOR PLACING YOU ON ANNUAL AND SICK LEAVE DURING JUNE, JULY, AND AUGUST 1957, BECAUSE OF THE MEDICAL REPORTS IN YOUR CASE, AND THAT CONSEQUENTLY YOU WERE NOT READY, WILLING, AND ABLE TO PERFORM YOUR DUTIES DURING SUCH PERIODS.

AS TO YOUR CONTENTION THAT YOU EARNED LEAVE OVER THE PERIOD JUNE 19, 1958 TO SEPTEMBER 25, 1958, WE NOTE THAT THE BULK OF THIS PERIOD, THAT IS, FROM JULY 9, 1958, UNTIL YOUR SEPARATION ON SEPTEMBER 25, 1958, YOU WERE ORIGINALLY CARRIED IN A LEAVE-WITHOUT-PAY STATUS. LATER THAT PERIOD OF LEAVE-WITHOUT-PAY WAS REGARDED BY THE CIVIL SERVICE COMMISSION AS A PERIOD OF SUSPENSION FOR WHICH YOU WERE ALLOWED COMPENSATION UNDER THE PROVISIONS OF 5 U.S.C. 652. AS STATED IN OUR SETTLEMENT OF JULY 6, 1960, THAT STATUTE SPECIFICALLY PROHIBITS THE ACCUMULATION OF LEAVE FOR THE PERIOD FOR WHICH COMPENSATION IS ALLOWED THEREUNDER.

THE ONLY PERIOD REMAINING DURING WHICH YOU POSSIBLY MIGHT HAVE BEEN ENTITLED TO ACCRUE LEAVE IS THE PERIOD JUNE 19, 1958 TO JULY 8, 1958,INCLUSIVE, WHEN YOU APPARENTLY WERE IN AN ACTIVE DUTY STATUS. WHILE WE HAVE NO INFORMATION TO SHOW THE REASON YOU WERE NOT CREDITED WITH LEAVE DURING THIS PERIOD, IT MAY BE THAT THE DEPARTMENT OF THE NAVY DETERMINED THAT YOU WERE NOT ENTITLED TO CREDIT FOR SUCH LEAVE BECAUSE OF A PRIOR ADVANCE OF SICK LEAVE (APPARENTLY 14 DAYS). IF YOU CARE TO PURSUE THAT PHASE OF THE MATTER FURTHER WE SUGGEST YOU CONTACT YOUR FORMER EMPLOYER.

IN LIGHT OF THE FOREGOING CONSIDERATIONS, THE DISALLOWANCE OF THE PARTS OF YOUR CLAIM REFERRED TO HEREIN MUST BE SUSTAINED.