B-117215, OCTOBER 6, 1953, 33 COMP. GEN. 145

B-117215: Oct 6, 1953

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WHEREUPON HE WAS SEPARATED FROM THE SERVICE. 1953: REFERENCE IS MADE TO THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER OF SEPTEMBER 28. IT IS STATED THAT AN EXAMINATION BY THE PUBLIC HEALTH SERVICE DISCLOSED THE EMPLOYEE WAS IN NEED OF HOSPITALIZATION BECAUSE OF A MENTAL CONDITION. THAT THE EMPLOYEE REFUSED TO SUBMIT HIMSELF TO A MEDICAL EXAMINATION OR OTHERWISE TO COOPERATE WITH THE CIVIL SERVICE COMMISSION THAT THE SAID COMMISSION REFERRED THE CASE BACK TO YOUR DEPARTMENT FOR WHATEVER DISCIPLINARY ACTION WAS DEEMED NECESSARY UNDER THE CIRCUMSTANCES. THAT FOLLOWING USUAL PROCEDURE HIS SERVICES WERE TERMINATED AT THE CLOSE OF BUSINESS AUGUST 28. AT THE TIME OF HIS SEPARATION HE HAD TO HIS CREDIT 116 HOURS ANNUAL LEAVE BUT WAS INDEBTED FOR 208 HOURS OF OVERDRAWN SICK LEAVE.

B-117215, OCTOBER 6, 1953, 33 COMP. GEN. 145

LEAVES OF ABSENCE - SICK - COMPENSATION ADJUSTMENTS FOR EXCESS - SEPARATION FROM SERVICE THE SEPARATION OF AND SUBSEQUENT FAILURE TO RETURN TO DUTY BY AN EMPLOYEE DETERMINED BY THE PUBLIC HEALTH SERVICE TO BE IN NEED OF HOSPITALIZATION BECAUSE OF A MENTAL CONDITION WHO REFUSED TO APPLY FOR DISABILITY RETIREMENT AND REFUSED TO COOPERATE WITH THE CIVIL SERVICE COMMISSION IN CONNECTION WITH DEPARTMENT'S APPLICATION ON HIS BEHALF FOR DISABILITY RETIREMENT, WHEREUPON HE WAS SEPARATED FROM THE SERVICE, MAY BE REGARDED AS DUE TO DISABILITY WITHIN THE MEANING OF SECTION 30.206 OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS, SO THAT THE COMPENSATION REPRESENTING SICK LEAVE GRANTED IN EXCESS OF THAT EARNED NEED NOT BE REFUNDED OR DEDUCTED FROM SALARY OTHERWISE DUE SUCH EMPLOYEE.

COMPTROLLER GENERAL WARREN TO THE ATTORNEY GENERAL, OCTOBER 6, 1953:

REFERENCE IS MADE TO THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTER OF SEPTEMBER 28, 1953, YOUR REFERENCE A-3, REQUESTING DECISION WHETHER THE SEPARATION OF AN EMPLOYEE UNDER THE CIRCUMSTANCES THEREIN RELATED MAY BE REGARDED AS FALLING WITHIN THE PURVIEW OF SECTION 30.206 OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS SO AS NOT TO REQUIRE REFUND OF UNEARNED SICK LEAVE GRANTED HIM.

IT IS STATED THAT AN EXAMINATION BY THE PUBLIC HEALTH SERVICE DISCLOSED THE EMPLOYEE WAS IN NEED OF HOSPITALIZATION BECAUSE OF A MENTAL CONDITION; THAT HE REFUSED TO APPLY FOR DISABILITY RETIREMENT; THAT YOUR DEPARTMENT, THEREFORE, MADE APPLICATION FOR HIS RETIREMENT; THAT THE EMPLOYEE REFUSED TO SUBMIT HIMSELF TO A MEDICAL EXAMINATION OR OTHERWISE TO COOPERATE WITH THE CIVIL SERVICE COMMISSION THAT THE SAID COMMISSION REFERRED THE CASE BACK TO YOUR DEPARTMENT FOR WHATEVER DISCIPLINARY ACTION WAS DEEMED NECESSARY UNDER THE CIRCUMSTANCES; AND THAT FOLLOWING USUAL PROCEDURE HIS SERVICES WERE TERMINATED AT THE CLOSE OF BUSINESS AUGUST 28, 1953. AT THE TIME OF HIS SEPARATION HE HAD TO HIS CREDIT 116 HOURS ANNUAL LEAVE BUT WAS INDEBTED FOR 208 HOURS OF OVERDRAWN SICK LEAVE.

SECTION 30.206 OF THE ANNUAL AND SICK LEAVE REGULATIONS, PAGE L1-20 OF THE FEDERAL PERSONNEL MANUAL, REQUIRES GENERALLY THAT A PERSON INDEBTED FOR EXCESS LEAVE MUST MAKE REFUND THEREFOR UPON SEPARATION, BUT PROVIDES FURTHER, THAT THAT SECTION SHALL NOT APPLY IN CASES OF DEATH, RETIREMENT FOR DISABILITY, OR ANY CASE IN WHICH THE EMPLOYEE IS UNABLE TO RETURN TO DUTY BECAUSE OF DISABILITY, EVIDENCE OF WHICH SHALL BE SUPPORTED BY AN ACCEPTABLE MEDICAL CERTIFICATE.

UPON THE FACTS STATED IN THE DEPARTMENT'S LETTER IT APPEARS REASONABLE TO CONCLUDE THAT THE EMPLOYEE'S SEPARATION AND SUBSEQUENT FAILURE TO RETURN TO DUTY WAS DUE TO DISABILITY AS MANIFESTED BY THE REPORT OF THE PUBLIC HEALTH SERVICE, AND ACQUIESCED IN BY YOUR DEPARTMENT. ACCORDINGLY, UPON THE BASIS OF THE SUBMITTED FACTS, THE EMPLOYEE WILL NOT BE REQUIRED TO REFUND THE COMPENSATION REPRESENTED BY EXCESS SICK LEAVE SO GRANTED; HENCE, AS PROPOSED, PAYMENT MAY BE MADE TO HIM FOR THE ACCUMULATED ANNUAL LEAVE TO HIS CREDIT AND ANY OTHER COMPENSATION DUE WITHOUT REQUIRING HIM TO REFUND THE SALARY RECEIVED FOR THE EXCESS SICK LEAVE. 26 COMP. GEN. 939.