B-157005, DEC. 6, 1965

B-157005, DEC. 6, 1965

TO MR. EDWARD D. PADGETT:

THIS IS IN REPLY TO YOUR LETTERS OF SEPTEMBER 27, OCTOBER 4, AND NOVEMBER 16, 1965, IN WHICH YOU MAKE CLAIM FOR $45.70 FOR SERVICES RENDERED ON SEPTEMBER 18, 1964, AND $145 FOR EXTRAORDINARY MEDICAL EXPENSES INCURRED ON SEPTEMBER 14, 15, 21 AND THEREAFTER; ALSO, YOU IN EFFECT SEEK RECONSIDERATION OF OUR PREVIOUS ACTION WITH RESPECT TO DENYING YOU COMPENSATION FOR CHARGES OF LEAVE WITHOUT PAY ON SEPTEMBER 18 AND 21, 1964.

IT IS REPORTED BY THE PICATINNY ARSENAL THAT AT 1600 HOURS ON SEPTEMBER 18, 1964, YOUR SUPERIORS ENDEAVORED TO LOCATE YOU AT YOUR PLACE OF DUTY BUT WERE UNABLE TO DO SO. YOUR SUPERVISOR DID NOT KNOW YOUR WHEREABOUTS AND HAD NOT GIVEN YOU PERMISSION TO LEAVE. A TIME CARD ENTRY TO THIS EFFECT SHOWING YOU AS ABSENT WITHOUT LEAVE FROM 1600-1630 ON SEPTEMBER 18, 1964, WAS EXECUTED BY AN AUTHORIZED EMPLOYEE OF THE ARSENAL ON THE BASIS OF A WRITTEN REPORT OF YOUR SUPERVISOR. IT IS YOUR POSITION THAT YOU LEFT BUILDING 354 TO SEE SURGEON FEENEY OF THE ARSENAL AND THEN PROCEEDED TO OTHER DUTIES INCLUDING PROVIDING INFORMATION TO MR. H. SMITH, PATENT COUNSEL. YOU ASSERT THAT YOU CHECKED OUT OF THE ARSENAL AT 1639 ON THAT DATE. NOWHERE DO YOU INDICATE THAT YOU HAD PERMISSION TO LEAVE YOUR POST OF DUTY TO ATTEND TO THESE MATTERS. UNDER SUCH CIRCUMSTANCES IT WAS PROPER FOR THE ADMINISTRATIVE OFFICER IN HIS DISCRETION TO CHARGE YOUR ABSENCE ( 1/2-HOUR) AS LEAVE WITHOUT PAY RATHER THAN TO ANNUAL LEAVE. COMP. GEN. 274.

INSOFAR AS COUNSELING MR. SMITH IS CONCERNED YOUR PLACE OF DUTY WAS YOUR ASSIGNED WORK SITE AND YOU ARE NOT ENTITLED TO PAY FOR VOLUNTARY PROFESSIONAL SERVICES PERFORMED WITHOUT ORDERS FROM YOUR SUPERVISORS. SEE B-134004, NOVEMBER 5, 1957; B-105186, SEPTEMBER 5, 1951 (COPIES ENCLOSED). WE POINT OUT THAT YOU RECEIVED PAY FOR SEVEN AND ONE-HALF HOURS ON THAT DAY (SEPTEMBER 18, 1964).

WITH RESPECT TO YOUR CLAIMS FOR LEAVE WITHOUT PAY AND EXTRAORDINARY MEDICAL EXPENSES INCURRED AS A RESULT OF TESTS AND EXAMINATIONS BY PRIVATE PHYSICIANS ON SEPTEMBER 21, 1964, THE RECORD INDICATES THAT POST SURGEON FEENEY, BY MEMO DATED SEPTEMBER 11, 1964, DIRECTED YOU TO REPORT FOR AN EXAMINATION AT THE U.S. PUBLIC HEALTH SERVICE HOSPITAL, STAPLETON, STATEN ISLAND, NEW YORK, AT 1:30 P.M. ON SEPTEMBER 21, 1964. A RECORD MADE ON SEPTEMBER 21, 1964, OF A TELEPHONE CONVERSATION BETWEEN YOU AND MR. ROBERT F. DRUMMOND, WHO WORKED WITH YOUR SUPERVISOR, MR. SUOZZO, INDICATED THAT ON THE MORNING OF THAT DAY, YOU WERE AWARE OF YOUR APPOINTMENT AT THE PUBLIC HEALTH SERVICE HOSPITAL, STATEN ISLAND, AND INTENDED TO KEEP IT.

A LOG BOOK ENTRY SIGNED BY YOU ON THAT SAME MORNING STATES THAT YOU WERE DEPARTING BUILDING 354 WHERE YOU WERE STATIONED AND REPORTING TO BUILDING 151 FOR TRANSPORTATION TO STATEN ISLAND. THIS IS CONSIDERED TO BE COMPELLING PROOF OF YOUR DIRECTION TO PROCEED TO THE HOSPITAL AT STATEN ISLAND FOR AN EXAMINATION. IT IS UNLIKELY THAT THE ACTIVITY WOULD DIRECT YOU TO PROCEED FOR EXAMINATION BY PUBLIC HEALTH DOCTORS AT STATEN ISLAND ON SEPTEMBER 21, 1964, AND AT THE SAME TIME AUTHORIZE AN EXAMINATION BY PRIVATE PHYSICIANS AT GOVERNMENT EXPENSE.

THIS INTERPRETATION IS ALSO CONSISTENT WITH THE ASSERTION OF THE ACTIVITY THAT IT NEVER AGREED TO ACCEPT THE EXPENSE OF ANY SUCH EXAMINATION OF YOU BY PRIVATE PHYSICIANS. IN THIS REGARD NEITHER THE CIVIL SERVICE COMMISSION NOR AGENCY REGULATIONS IN EFFECT ON SEPTEMBER 21, 1964, MADE PROVISION FOR ELECTION BY AN EMPLOYEE TO UTILIZE A PHYSICIAN OF HIS OWN CHOICE IN FITNESS FOR DUTY EXAMINATIONS WITH EXPENSES TO BE PAID BY THE AGENCY. SEE FEDERAL PERSONNEL MANUAL 339, SUBCHAPTER 1, SECTION 1-3, BULLETIN NO. 171-87, OCTOBER 3, 1963; DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATIONS S13, PARAGRAPH 3.6. ACCORDINGLY, EVEN IF YOU HAD BEEN GRANTED PERMISSION TO BE TESTED BY YOUR PRIVATE PHYSICIAN NO AUTHORITY EXISTED FOR THE AGENCY TO PAY FOR HIS SERVICES. AS TO THE CHARGE OF LEAVE WITHOUT PAY FOR THAT DAY, THE PICATINNY ARSENAL REPORTS THERE IS NO RECORD OF AN APPLICATION FOR SICK LEAVE BEING SUBMITTED BY YOU (YOUR EXHIBIT NO. 2B); ALSO, THAT IF SUCH AN APPLICATION HAD BEEN APPROVED A COPY WOULD HAVE BEEN RETURNED TO YOU INDICATING SUCH APPROVAL ON THE REVERSE SIDE THEREOF. IN ANY EVENT, THE MATTER OF CHARGING YOU LEAVE WITHOUT PAY IN LIEU OF GRANTING YOU SICK LEAVE FOR SEPTEMBER 21, 1964, WAS WITHIN THE DISCRETION OF THE ARSENAL, AS INDICATED IN OUR PRIOR DECISIONS TO YOU, AND WE HAVE NO AUTHORITY UNDER THE RELATED CIRCUMSTANCES TO CHANGE THAT ACTION OR OTHERWISE ALLOW YOU COMPENSATION FOR THAT DAY.

WE NOTE THAT YOU CITE CERTAIN OF OUR DECISIONS INVOLVING EMPLOYEES INVOLUNTARILY PLACED IN A SICK LEAVE OR LEAVE WITHOUT PAY STATUS. ENCLOSE COPIES OF MORE RECENT DECISIONS, B-136721, JANUARY 18, 1960, AND B -150087, NOVEMBER 30, 1962, WHICH CLEARLY INDICATE THAT AN AGENCY MAY PLACE AN EMPLOYEE ON INVOLUNTARY LEAVE BECAUSE OF INABILITY TO PERFORM DUTIES IF BASED UPON COMPETENT MEDICAL ADVICE. OF COURSE, IN YOUR CASE THE LEAVE WITHOUT PAY STATUS AROSE AS A RESULT OF YOUR OWN ACTION IN BEING ABSENT WITHOUT AUTHORITY FROM YOUR APPOINTED PLACE OF DUTY.

ON THE BASIS OF THE FOREGOING, WE MUST SUSTAIN OUR PREVIOUS ACTION IN DENYING ADDITIONAL COMPENSATION FOR SEPTEMBER 18 AND 21, 1964, AND MUST DISALLOW YOUR NEW CLAIMS FOR A FEE OF $42 PLUS MILEAGE TO COVER SERVICES RENDERED AT THE CALL OF MR. H. SMITH, PATENT COUNSEL, AND FOR REIMBURSEMENT OF EXPENSES OF MEDICAL EXAMINATIONS DURING THE PERIOD IN QUESTION.