A-97343, SEPTEMBER 2, 1938, 18 COMP. GEN. 221

A-97343: Sep 2, 1938

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1936 - ADVANCES - ADMINISTRATIVE DISCRETION WHERE AN EMPLOYEE OF THE NAVY DEPARTMENT WAS NOT OF A CLASS TO WHICH. SICK LEAVE WAS AUTHORIZED TO BE ADVANCED. THERE IS NO AUTHORITY TO PAY HIM FOR A PERIOD OF ABSENCE IN EXCESS OF ACCRUED LEAVE WITH PAY AND "WHILE SICK AND CARRIED ON THE ROLLS IN A NON-PAY STATUS. ISSUE SUCH REGULATIONS AS ARE NOT INCONSISTENT WITH THESE REGULATIONS.'. IS AS FOLLOWS: SUBJECT: VICENTE ESCOTA. INVITING ATTENTION TO THE FACT THAT VICENTE ESCOTA WAS GRANTED ALL ACCRUED LEAVE WITH PAY BUT WAS NOT GRANTED ADVANCE SICK LEAVE BY THE COMMANDANT OF THE SIXTEENTH NAVAL DISTRICT. THE EMPLOYEES TO WHOM ADVANCED SICK LEAVE IS GRANTED ARE AMERICAN CITIZENS SENT OUT FROM THE UNITED STATES UNDER CONTRACT.

A-97343, SEPTEMBER 2, 1938, 18 COMP. GEN. 221

LEAVES OF ABSENCE - SICK - ACT, MARCH 14, 1936 - ADVANCES - ADMINISTRATIVE DISCRETION WHERE AN EMPLOYEE OF THE NAVY DEPARTMENT WAS NOT OF A CLASS TO WHICH, UNDER ADMINISTRATIVE REGULATIONS, SICK LEAVE WAS AUTHORIZED TO BE ADVANCED, THERE IS NO AUTHORITY TO PAY HIM FOR A PERIOD OF ABSENCE IN EXCESS OF ACCRUED LEAVE WITH PAY AND "WHILE SICK AND CARRIED ON THE ROLLS IN A NON-PAY STATUS," THE DEPARTMENT HAVING DISCRETIONARY AUTHORITY UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1162, EITHER TO APPROVE OR DISAPPROVE APPLICATIONS FOR ADVANCE SICK LEAVE WITHIN THE LIMITATIONS OF THE STATUTE, AND BEING AUTHORIZED BY THE LAW AND THE UNIFORM SICK LEAVE REGULATIONS OF JULY 9, 1936, AS WELL AS THOSE NOW IN FORCE (EXECUTIVE ORDER NO. 7846, MARCH 21, 1938), TO ,ISSUE SUCH REGULATIONS AS ARE NOT INCONSISTENT WITH THESE REGULATIONS.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, SEPTEMBER 2, 1938:

YOUR COMMUNICATION OF AUGUST 15, 1938, IS AS FOLLOWS:

SUBJECT: VICENTE ESCOTA, CLERK, CLASSIF.C., $1,130 P.A.--- CLAIM FOR PAY DURING THE PERIOD 30 SEPTEMBER 1936 TO 28 OCTOBER 1936, WHILE SICK AND CARRIED ON THE ROLLS IN A NON-PAY STATUS.

RESPECTFULLY FORWARDED TO THE ACTING COMPTROLLER GENERAL, GENERAL ACCOUNTING OFFICE, WASHINGTON, D.C., INVITING ATTENTION TO THE FACT THAT VICENTE ESCOTA WAS GRANTED ALL ACCRUED LEAVE WITH PAY BUT WAS NOT GRANTED ADVANCE SICK LEAVE BY THE COMMANDANT OF THE SIXTEENTH NAVAL DISTRICT, IN VIEW OF THE POLICY ANNOUNCED BY THE COMMANDANT, IN DISTRICT CIRCULAR NO. 19-36 OF SEPTEMBER 18, 1936, THAT ADVANCE SICK LEAVE CANNOT BE GRANTED TO ANY CIVIL EMPLOYEE OTHER THAN CERTAIN EMPLOYEES IN GROUPS IVA AND IVB. THE EMPLOYEES TO WHOM ADVANCED SICK LEAVE IS GRANTED ARE AMERICAN CITIZENS SENT OUT FROM THE UNITED STATES UNDER CONTRACT. AS THE CLAIMANT IS NOT IN THIS CATEGORY, HE WAS NOT GRANTED ADVANCE SICK LEAVE.

IT IS NOTED FROM THE DECISION OF THE ACTING COMPTROLLER GENERAL OF JULY 16, 1937 (17 ACTING COMP. GEN. DECISION 48) THAT "THERE IS NO PROVISION OF THE LAW, EXPRESSED OR IMPLIED, AUTHORIZING A PAYMENT IN LIEU OF LEAVE NOT GRANTED TO A FORMER OFFICER OR EMPLOYEE WHO NO LONGER HAS A STATUS UPON WHICH THE STATUTE MAY OPERATE, IRRESPECTIVE OF THE REASON WHY THE LEAVE WAS NOT GRANTED.

AS THE PAPERS ACCOMPANYING YOUR COMMUNICATION INDICATE THAT THE EMPLOYEE IN QUESTION IS STILL IN THE SERVICE OR REMAINED IN THE SERVICE SUBSEQUENT TO THE PERIOD OF ABSENCE COVERED BY THE CLAIM FOR A SUFFICIENT LENGTH OF TIME TO HAVE EARNED ADDITIONAL SICK LEAVE, THE RULE STATED IN THE DECISION OF THIS OFFICE CITED IN YOUR LETTER IS NOT APPLICABLE IN THIS CASE.

IN A LETTER OF MAY 18, 1938, TO THIS OFFICE--- THROUGH ADMINISTRATIVE CHANNELS--- THE EMPLOYEE REFERRED TO STATED:

1. I WAS SICK FOR A PERIOD OF 29 DAYS FROM SEPTEMBER 30, 1936, TO OCTOBER 28, 1936. DURING THIS ABSENCE I WAS GRANTED 7 DAYS ACCRUED LEAVE WITH PAY; AND IN A NON-PAY STATUS DURING THE REMAINING 23 DAYS, AS I HAVE NOT ACCRUED SICK LEAVE AT THAT TIME.

2. MY REQUEST FOR AN ADVANCE OF 23 DAYS SICK LEAVE WAS APPROVED BY THE COMMANDING OFFICER OF THE U.S. NAVAL STATION, OLANGAPO, P.I., BUT THIS APPROVAL WAS SUBSEQUENTLY RESCINDED BY THE COMMANDANT, SIXTEENTH NAVAL DISTRICT. (SEE 1ST INDORSEMENT OF 23 NOVEMBER 1936.)

3. IN VIEW OF THE FACT THAT THE ADVANCE OF 23 DAYS SICK LEAVE WAS ALREADY APPROVED BY MY IMMEDIATE COMMANDING OFFICER AND AS THE EXPRESS REQUIREMENTS OF REFERENCES (A) TO (E), APPEAR TO PROHIBIT THE RESTRICTIONS IN PARAGRAPHS 6 AND 7 OF REFERENCE (F), CLAIM IS RESPECTFULLY SUBMITTED FOR FULL PAY WHILE SICK AND CARRIED ON THE ROLLS IN A NON-PAY STATUS, FROM 9 OCTOBER 1936, TO 28 OCTOBER 1936.

THE STATEMENTS IN PARAGRAPHS 1 AND 2, SUPRA, ARE CORROBORATED BY COPIES OF ADMINISTRATIVE ORDERS TRANSMITTED WITH YOUR LETTER.

SECTION 3 OF THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, PROVIDES AS FOLLOWS:

ADMINISTRATIVE OFFICERS MAY ADVANCE THIRTY DAYS' SICK LEAVE WITH PAY BEYOND ACCRUED SICK LEAVE IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.

THIS STATUTORY PROVISION VESTS IN THE ADMINISTRATIVE OFFICE DISCRETIONARY AUTHORITY EITHER TO APPROVE OR DISAPPROVE APPLICATIONS FOR ADVANCE SICK LEAVE WITHIN THE LIMITATIONS OF THE STATUTE AS TO INDIVIDUAL EMPLOYEES OR CLASSES OF EMPLOYEES.

SECTIONS 4 AND 21 OF THE UNIFORM SICK LEAVE REGULATIONS IN FORCE DURING THE PERIOD HERE INVOLVED (EXECUTIVE ORDER 7410, DATED JULY 9, 1936) PROVIDED AS FOLLOWS:

WHEN AN EMPLOYEE APPLIES FOR SICK LEAVE IN EXCESS OF THE AMOUNT ACCUMULATED TO HIS CREDIT AND THE CIRCUMSTANCES DO NOT JUSTIFY SUCH AN ADVANCE, THE EXCESS LEAVE APPLIED FOR, IF GRANTED AND USED, SHALL BE CHARGED AGAINST ANY UNUSED ANNUAL LEAVE TO WHICH THE EMPLOYEE IS ENTITLED, OR, IF THERE IS NO UNUSED ANNUAL LEAVE, THE EXCESS SHALL BE CHARGED AS LEAVE WITHOUT PAY, AND SUCH LEAVE SHALL NOT THEREAFTER BE CONVERTED INTO EITHER SICK OR ANNUAL LEAVE SUBSEQUENTLY ACCUMULATING.

THE HEADS OR GOVERNING BODIES OF THE VARIOUS GOVERNMENTAL AGENCIES TO WHICH THIS ORDER APPLIES SHALL BE RESPONSIBLE FOR THE PROPER ADMINISTRATION OF THESE REGULATIONS INSOFAR AS THEY PERTAIN TO THE GRANTING OF SICK LEAVE TO EMPLOYEES UNDER THEIR RESPECTIVE JURISDICTIONS; AND THEY MAY WITHIN THE LIMITS AUTHORIZED BY LAW, ISSUE SUCH REGULATIONS AS ARE NOT INCONSISTENT WITH THESE REGULATIONS.

TO THE SAME EFFECT ARE SECTIONS 5 AND 22 OF THE UNIFORM SICK LEAVE REGULATIONS NOW IN FORCE (EXECUTIVE ORDER NO. 7846, DATED MARCH 21, 1938).

PARAGRAPHS 5, 6, AND 7 OF DISTRICT CIRCULAR NO. 19-36 OF SEPTEMBER 18,1936, CITED IN YOUR LETTER, WHICH APPARENTLY HAS THE APPROVAL OF THE SECRETARY OF THE NAVY, PROVIDE AS FOLLOWS:

5. AS REGARDS GRANTING ADVANCES OF SICK LEAVE, IT WILL BE NOTED THIS PROCEDURE IS NOT MADE MANDATORY, BUT IT IS LEFT TO THE DISCRETION OF THE ADMINISTRATIVE OFFICERS. THE BEST INTERESTS OF THE GOVERNMENT WILL NOT PERMIT THE GENERAL PRACTICE OF GRANTING ADVANCES OF SICK LEAVE IN THE CASES OF GROUPS I, II, AND III, NOR IS SUCH A PRACTICE CONSIDERED PRACTICABLE IN VIEW OF THE LARGE NUMBER OF MEN INVOLVED. FURTHERMORE, THE PRIVILEGE OF ACCUMULATING 90 DAYS SICK LEAVE AND THE FACT THAT ALL SUCH EMPLOYEES EARN 30 DAYS LEAVE WITH PAY PER ANNUM SHOULD PREVENT ANY UNDUE HARDSHIP BEING PLACED ON THESE EMPLOYEES THROUGH FAILURE TO OBTAIN ADVANCES OF SICK LEAVE. IT WILL, THEREFORE, BE THE GENERAL POLICY NOT TO GRANT ADVANCES OF SICK LEAVE TO ANY GROUP I, II, OR III EMPLOYEES.

6. CERTAIN EMPLOYEES IN GROUPS IVA AND IVB ARE PERMITTED TO ACCUMULATE 120 DAYS LEAVE WITH PAY. THE GENERAL PURPOSE FOR WHICH THIS PRIVILEGE IS GRANTED IS TO PERMIT SUCH EMPLOYEES TO RETURN TO THE UNITED STATES FOR HEALTH AND MORALE, AND TO MAKE IT ATTRACTIVE FOR QUALIFIED EMPLOYEES TO SEEK DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES. THE COMMANDANT DOES NOT DESIRE TO JEOPARDIZE THIS PRIVILEGE THROUGH LOSSES OF TIME DUE TO ILLNESS NOT DUE TO ANY FAULT OF THESE MEN, AND WISHES TO GIVE EVERY CONSIDERATION TO THEIR WELFARE AND TO SAFEGUARD THEIR INTERESTS. THE EXERCISE OF THE COMMANDANT'S PREROGATIVE TO GRANT ADVANCES OF SICK LEAVE MAY PREVENT UNDUE HARDSHIP FROM BEING IMPOSED ON THESE EMPLOYEES AND AS THE COMMANDANT BELIEVES THAT THE INTERESTS OF THE GOVERNMENT MAY BE ADEQUATELY SAFEGUARDED AND IN GENERAL ACCORDANCE WITH PAST PRACTICE, THE COMMANDANT WILL GIVE CONSIDERATION TO REASONABLE ADVANCES OF SICK LEAVE IN EXCEPTIONAL AND MERITORIOUS CASES. HOWEVER, EACH CASE WILL BE DECIDED ON ITS OWN MERITS, AND WHERE RECOMMENDATIONS FOR ADVANCES OF SICK LEAVE ARE SUBMITTED BY HEADS OF DEPARTMENTS FOR THE COMMANDANT'S CONSIDERATION THESE RECOMMENDATIONS SHALL BE ACCOMPANIED BY DETAILED STATEMENTS GIVING ALL NECESSARY INFORMATION IN REGARD THERETO. THE COMMANDANT FEELS THAT THE NECESSITY FOR GRANTING ADVANCES SHOULD NOT ARISE FREQUENTLY UNLESS HEALTH IS PERMANENTLY IMPAIRED, IN WHICH CASE OTHER ACTION WILL PROBABLY BE NECESSARY. IT WILL BE NOTED ALSO THAT ADVANCES ARE LIMITED TO CASES OF SERIOUS DISABILITY OR AILMENTS.

7. IN GENERAL THE COMMANDANT WILL NOT CONSIDER ADVANCES OF SICK LEAVE FOR ANY OTHER CIVILIAN EMPLOYEES.

AS THE NAVY DEPARTMENT HAD AUTHORITY UNDER THE LAW AND UNIFORM SICK LEAVE REGULATIONS TO ISSUE THE ABOVE-QUOTED ADMINISTRATIVE REGULATIONS WHICH "ARE NOT INCONSISTENT WITH" THE UNIFORM SICK LEAVE REGULATIONS, AND AS THE EMPLOYEE REFERRED TO IN YOUR SUBMISSION WAS NOT OF THE CLASS AUTHORIZED BY THE QUOTED ADMINISTRATIVE REGULATIONS TO WHOM SICK LEAVE WAS AUTHORIZED TO BE ADVANCED, THERE APPEARS NO AUTHORITY TO PAY THIS EMPLOYEE FOR THE PERIOD OF HIS ABSENCE "WHILE SICK AND CARRIED ON THE ROLLS IN A NON-PAY STATUS.' THE EMPLOYEE SHOULD BE ADVISED ACCORDINGLY.