B-103710, JUNE 25, 1951, 30 COMP. GEN. 521

B-103710, JUNE 25, 1951, 30 COMP. GEN. 521

OFFICERS AND EMPLOYEES - EXCUSING FROM WORK - BLOOD DONATIONS THE VETERANS ADMINISTRATION REGULATIONS AUTHORIZING EMPLOYEES TO BE EXCUSED FROM WORK WITHOUT CHARGE FOR LEAVE FOR THE PURPOSE OF MAKING BLOOD DONATIONS APPLY ONLY IF BLOOD IS FURNISHED WITHOUT COMPENSATION, SO THAT AN EMPLOYEE WHO ENGAGES IN SELLING HIS BLOOD SERVICES IS REQUIRED TO DO SO UPON HIS OWN TIME--- NOT GOVERNMENT TIME.

ACTING COMPTROLLER GENERAL YATES TO RALPH R. LANDES, JUNE 25, 1951:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 23, RECEIVING HERE MAY 11, 1951, REQUESTING REVIEW OF SETTLEMENT CERTIFICATE NO. US-58890 DATED FEBRUARY 19, 1951, WHICH CERTIFIED YOU TO BE INDEBTED TO THE UNITED STATES IN THE SUM OF $146.00, BASED UPON A REPORT FROM THE VETERANS ADMINISTRATION CENTER, MARTINSBURG, WEST VIRGINIA, THAT AN ADMINISTRATIVE AUDIT OF YOUR ANNUAL LEAVE ACCOUNT REVEALED YOU WERE ABSENT "ON GOVERNMENT TIME" DURING FIVE DAYS OF 1947 AND 1948 FOR THE PURPOSE OF SELLING BLOOD BUT AT THE TIME WERE NOT CHARGED ANNUAL LEAVE THEREFOR UNDER THE LEAVE REGULATIONS APPLICABLE TO PHYSICIANS IN THE SERVICE OF THE VETERANS ADMINISTRATION. HENCE, IT WAS REPORTED YOU WERE OVERPAID TO THE EXTENT OF FIVE DAYS' SALARY IN THE LUMP-SUM PAYMENT OF APRIL 16, 1949, FOR YOUR ACCRUED LEAVE OTHERWISE DUE AT YOUR SEPARATION FROM SERVICE.

YOU PROTEST THE STATEMENT OF FACT IN THE SETTLEMENT, THAT YOU WERE "ABSENT FROM DUTY" BECAUSE, YOU STATE, YOU WORKED ON THOSE DAYS AS WELL AS MANY HOURS IN EXCESS OF WHAT WAS RECEIVED AT THE SAID CENTER, AND ON WEEK ENDS AND AT NIGHT, IN ACCORDANCE WITH THE PRACTICES OF YOUR PROFESSION. HOWEVER, YOU MAY BE INFORMED THAT WHERE THERE IS A CONFLICT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE ALLEGED BY A CLAIMANT, THE DECISIONS OF THIS OFFICE NECESSARILY MUST BE BASED UPON THE OFFICIAL WRITTEN RECORD AS FOUND IN EACH CASE, AND THAT THE ADMINISTRATIVE REGULATIONS OF DUTY HOURS AND LEAVE ACCORDING TO LAW USUALLY ARE REGARDED AS PART OF AN EMPLOYEE'S CONTRACT. THEREFORE, IN THE ABSENCE OF EVIDENCE CLEARLY SHOWING THAT THE ADMINISTRATIVE REPORTS IN YOUR CASE ARE INCORRECT, AND SINCE YOUR LETTER PRESENTS NOTHING TO INDICATE THAT YOU WERE AUTHORIZED TO BE ABSENT ON THE DAYS QUESTIONED WITHOUT ANY CHARGE TO YOUR ACCRUED LEAVE CONFORMING WITH THE APPLICABLE LAW AND REGULATIONS, THIS OFFICE HAS NO ALTERNATIVE OTHER THAN TO SUSTAIN THE AFORESAID SETTLEMENT FOR THE REASONS SET FORTH HEREINAFTER.

THE DEPARTMENT OF MEDICINE AND SURGERY OF THE VETERANS ADMINISTRATION WAS CREATED BY THE ACT OF JANUARY 3, 1946, 59 STAT. 677, AND WAS GIVEN CERTAIN DUTIES AND SCOPE WHICH HAVE THE EFFECT OF MAKING IT IN MANY RESPECTS A FUNCTION SEPARATE AND DISTINCT FROM THE CIVIL SERVICE GENERALLY. UNDER SECTION 7 (B) OF THE SAID ACT, 59 STAT. 677, 38 U.S.C. 15F (B), THE ADMINISTRATOR OF VETERANS AFFAIRS IS EMPOWERED TO PRESCRIBE "THE HOURS AND CONDITIONS OF EMPLOYMENT AND LEAVES OF ABSENCE OF DOCTORS, DENTISTS, AND NURSES" IN THE DEPARTMENT OF MEDICINE AND SURGERY CREATED BY THAT ACT. REGULATION TB5-46, UNDER THAT ACT, THE RESPONSIBILITY TO ESTABLISH THE POLICIES AND LEAVE REGULATIONS FOR PERSONNEL OF YOUR CLASS WAS VESTED JOINTLY IN THE ASSISTANT ADMINISTRATOR FOR PERSONNEL. ALSO, PARAGRAPH 7 OF THAT REGULATION PROVIDES EXPRESSLY THAT FULL-TIME DOCTORS ARE SUBJECT TO CALL FOR DUTY 24 HOURS EACH DAY, EXCEPT DURING CERTAIN LEAVE PERIODS NOT MATERIAL HERE. PARAGRAPH 9A OF THE REGULATION PROVIDES THAT "THE MINIMUM CHARGE FOR ANNUAL LEAVE IN ALL CASES SHALL BE "ONE DAY" AND ADDITIONAL LEAVE SHALL BE CHARGED IN MULTIPLES OF "ONE DAY.'" WITH RESPECT TO YOUR STATEMENT THAT YOU WERE URGED TO SUPPLY BLOOD ON THOSE FIVE DAYS TO THE BLOOD BANK, EVEN THOUGH YOU WERE AUTHORIZED TO BE PAID THEREFOR UNDER OTHER LAW AND REGULATIONS, THE SPECIFIC REGULATION APPLICABLE TO VETERANS ADMINISTRATION GENERALLY, MANUAL M5-2, SEC. 16.11G, RELATING TO " BLOOD DONATIONS," READS IN PART AS FOLLOWS:

EMPLOYEES WHO VOLUNTEER AS BLOOD DONORS, WITHOUT COMPENSATION, MAY BE EXCUSED FOR 1 DAY WITHOUT CHARGE AGAINST LEAVE FOR THE PURPOSE OF DONATING BLOOD TO THE RED CROSS PLASMA BANK OR TO NEEDY EMPLOYEES OF THE VA. * * * THAT AUTHORIZATION TO BE EXCUSED FOR THE PURPOSE DESCRIBED CLEARLY RELATES TO BLOOD DONATED, THAT IS,"WITHOUT COMPENSATION," AND THERE IS NOTHING OF RECORD HERE IN INDICATE THAT THE ABOVE SPECIFIC REGULATION SHOULD NOT APPLY IN YOUR CASE, THE CONTROLLING FACT OR CIRCUMSTANCE BEING THAT THE EMPLOYING AGENCIES ARE VESTED WITH A DISCRETIONARY AUTHORITY TO DETERMINE THE BASIS UPON WHICH AN EMPLOYEE IS OFFICIALLY EXCUSABLE, EITHER BEFORE OR AFTER HIS ABSENCE, WITHOUT CHARGE TO HIS ANNUAL OR SICK LEAVE. FURTHER, AS A POLICY MATTER IN THE GOVERNMENT SERVICE, EMPLOYEES USUALLY ARE EXCUSED ONLY A FEW HOURS FOR THE RED CROSS BLOOD BANK DONATIONS OR SIMILAR PURPOSES DURING THEIR HOURS OF DUTY, AND WITH THE UNDERSTANDING THAT THEIR BLOOD IS TO BE FURNISHED AS IN THE NATURE OF A GIFT. HENCE, WHERE AN EMPLOYEE ENGAGES IN SELLING HIS BLOOD SERVICES, UNDOUBTEDLY YOU WILL AGREE HE SHOULD DO IT UPON HIS OWN TIME--- NOT UPON GOVERNMENT TIME WHICH THE ABOVE REGULATIONS PRESCRIBE AS 24 HOURS PER DAY, UNLESS OTHERWISE OFFICIALLY EXCUSED. IN YOUR CASE THE RECORD SHOWS THAT THE MARTINSBURG CENTER ADVISED YOU REGARDING THE DETERMINATION OF THE ASSISTANT ADMINISTRATOR FOR PERSONNEL IN CASES SUCH AS YOURS, THAT "IN THE EVENT A DOCTOR, DENTIST, OR NURSE RECEIVES COMPENSATION FOR BLOOD, ABSENCE MUST BE CHARGED IN MULTIPLES OF DAYS, UNLESS THE TRANSFUSION IS ACCOMPLISHED ON OFF DUTY DAYS OR OFF DUTY TIME.'

THEREFORE, SINCE YOU HAVE PRESENTED NO RECORD OR CLEAR FACT ESTABLISHING THAT THE BLOOD WAS FURNISHED BY YOU DURING YOUR "OFF DUTY" TIME, THE SETTLEMENT MUST BE SUSTAINED, AND UNDER THE CIRCUMSTANCES YOUR REMITTANCE OF THE SUM OF $146.11 SHOULD BE FORWARDED PROMPTLY TO THE ADMINISTRATIVE FINANCE SECTION, GENERAL ACCOUNTING OFFICE, WASHINGTON 25, D.C., BY CHECK OR MONEY ORDER DRAWN PAYABLE TO THE TREASURER OF THE UNITED STATES, IN ORDER TO AVOID THE INSTITUTION OF MORE FORMAL COLLECTION PROCEEDINGS.