B-123691, AUG. 25, 1955

B-123691: Aug 25, 1955

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IN THESE REPORTS HE EXPLAINED HIS ABSENCE AS "SICK LEAVE" ALTHOUGH BEFORE ENTERING THE HOSPITAL HE SAYS HE WAS INFORMED THAT HE WOULD NOT BE ABLE TO RETURN TO DUTY BEFORE JANUARY 3. HE WAS FULLY AWARE THAT HE WOULD LOSE AT LEAST 23 DAYS OF ANNUAL LEAVE UNLESS HIS ABSENCE WAS RECORDED AS ANNUAL LEAVE. " A CHARGE FOR SICK LEAVE WAS MADE BY THE ADMINISTRATIVE OFFICIALS. IS EXPLAINED THAT THE DELAY IN SUBMITTING THE LEAVE APPLICATION WAS BECAUSE OF THE PRESS OF WORK THAT ACCUMULATED DURING THE EXTENDED ABSENCE PLUS THE FACT THAT UP TO THAT TIME FULL INFORMATION WITH RESPECT TO THE RECENT INCOME TAX CHANGE REGARDING TAX CREDITS UPON SALARY RECEIVED WHILE ILL WAS NOT AVAILABLE. IF THE CHARGE TO SICK LEAVE IS NOT CHANGED TO ANNUAL LEAVE AS REQUESTED.

B-123691, AUG. 25, 1955

TO HONORABLE ALBERT M. COLE, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

YOUR LETTER OF APRIL 20, 1955, REQUESTS OUR DECISION AS TO THE PROPRIETY OF SUBSTITUTING 184 HOURS OF ANNUAL LEAVE FOR A LIKE AMOUNT OF SICK LEAVE CHARGED TO ONE OF YOUR EMPLOYEES UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

DURING CONSIDERATION OF THE CASE, THE EMPLOYEE INVOLVED CALLED AT OUR OFFICE PERSONALLY AND EXPRESSED A DESIRE TO FURNISH A DETAILED STATEMENT REGARDING THE MATTER, WHICH STATEMENT NOW HAS BEEN RECEIVED.

THE RECORD, INCLUDING THE EMPLOYEE'S STATEMENT, SHOWS THAT ON NOVEMBER 29, 1954, THE EMPLOYEE UNDERWENT AN EMERGENCY OPERATION. DURING HIS ILLNESS THE EMPLOYEE FILED PERIODIC REPORTS OF ATTENDANCE AND TRAVEL (FORM PHA-374) AS ADMINISTRATIVELY REQUIRED. IN THESE REPORTS HE EXPLAINED HIS ABSENCE AS "SICK LEAVE" ALTHOUGH BEFORE ENTERING THE HOSPITAL HE SAYS HE WAS INFORMED THAT HE WOULD NOT BE ABLE TO RETURN TO DUTY BEFORE JANUARY 3, 1955, AND HE WAS FULLY AWARE THAT HE WOULD LOSE AT LEAST 23 DAYS OF ANNUAL LEAVE UNLESS HIS ABSENCE WAS RECORDED AS ANNUAL LEAVE. BASED UPON THE EMPLOYEE'S REPORTS EXPLAINING HIS ABSENCE AS "SICK LEAVE," A CHARGE FOR SICK LEAVE WAS MADE BY THE ADMINISTRATIVE OFFICIALS. THE EMPLOYEE RETURNED TO DUTY ON JANUARY 3, 1955, AND ON JANUARY 17 HE SUBMITTED HIS APPLICATION FOR LEAVE REQUESTING ANNUAL LEAVE FOR THE ENTIRE PERIOD. IS EXPLAINED THAT THE DELAY IN SUBMITTING THE LEAVE APPLICATION WAS BECAUSE OF THE PRESS OF WORK THAT ACCUMULATED DURING THE EXTENDED ABSENCE PLUS THE FACT THAT UP TO THAT TIME FULL INFORMATION WITH RESPECT TO THE RECENT INCOME TAX CHANGE REGARDING TAX CREDITS UPON SALARY RECEIVED WHILE ILL WAS NOT AVAILABLE.

IF THE CHARGE TO SICK LEAVE IS NOT CHANGED TO ANNUAL LEAVE AS REQUESTED, IT IS REPORTED THAT THE EMPLOYEE WILL HAVE FORFEITED 188 HOURS OF ANNUAL LEAVE AS OF THE CLOSE OF THE 1954 LEAVE YEAR.

IT IS CONTENDED THAT THIS CASE IS DISTINGUISHABLE FROM OUR DECISIONS IN 31 COMP. GEN. 524 AND B-121094, JANUARY 12, 1955, IN THAT IN THE PRIOR CASES THERE WERE INVOLVED ELECTIONS WHICH HAD BEEN MADE AS TO THE KIND OF LEAVE DESIRED AND LATER ATTEMPTS WERE MADE TO CHANGE SUCH ELECTIONS, WHEREAS HERE THE APPLICATION ON JANUARY 17 CONSTITUTES THE ONLY REQUEST MADE FOR LEAVE COVERING THE PERIOD OF ABSENCE.

HOWEVER, AS A PRACTICAL MATTER, IT IS EVIDENT THAT AT THE TIME THE EMPLOYEE TOOK THE LEAVE IN QUESTION HE ACTUALLY CHOSE SICK LEAVE. HIS REQUEST FOR SICK LEAVE IS CONTAINED IN HIS PERIODIC REPORTS. NO EVIDENCE HAS BEEN FURNISHED TO SHOW THAT DURING THE ENTIRE PERIOD OF THE ABSENCE ANNUAL LEAVE WAS DESIRED, EXCEPT STATEMENTS MADE AFTER THE FACT. THE FIRST APPLICATION FOR ANNUAL LEAVE WAS FILED ON JANUARY 17, 14 DAYS AFTER HIS RETURN TO DUTY ON JANUARY 3. THIS APPEARS TO BE THE FIRST WRITTEN INDICATION THAT ANNUAL LEAVE WAS DESIRED FOR THE PERIOD INVOLVED.

ACCORDINGLY, NO SUBSTANTIAL BASIS IS APPARENT FOR DISTINGUISHING THIS CASE FROM THOSE CITED BY YOU. IT FOLLOWS THAT THE 184 HOURS OF ANNUAL LEAVE MAY NOT BE SUBSTITUTED FOR THE 184 HOURS OF SICK LEAVE ALREADY PROPERLY CHARGED.