B-126325, JAN. 9, 1956

B-126325: Jan 9, 1956

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TO BE CREDITED WITH SICK LEAVE STATED TO HAVE BEEN LOST WHEN HE RESIGNED FROM THE GENERAL ACCOUNTING OFFICE JUNE 8. WAS RELEASED FROM ACTIVE DUTY IN JULY 1953 AND ON AUGUST 24. PROVIDE RESPECTIVELY: "/A) UPON REEMPLOYMENT OF AN EMPLOYEE SUBJECT TO THIS ACT WHO WAS SEPARATED ON OR AFTER JANUARY 6. THE UNTRANSFERRED LEAVE SHALL BE RECREDITED TO HIM IF HE RETURNS TO THE LEAVE SYSTEM UNDER WHICH IT WAS EARNED. AS SECTION 30.702 (A) PERMITS THE TRANSFER OF LEAVE UPON REEMPLOYMENT IT IS EVIDENT THAT THE WORD "TRANSFERS" AS USED IN SECTION 30.702 (D) IS NOT TO BE CONSTRUED IN A RESTRICTED SENSE AS APPLICABLE ONLY TO A FORMALIZED TRANSFER BUT. ATTENTION IS DIRECTED TO 34 COMP. GEN. 287 HOLDING THAT UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 LEAVE IS TRANSFERABLE BETWEEN THE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE AND OTHER CIVILIAN POSITIONS UNDER THE FEDERAL GOVERNMENT.

B-126325, JAN. 9, 1956

TO MR. W. B. STOKES, ACTING AREA PERSONNEL OFFICER, INDIAN HEALTH DIVISION:

YOUR LETTER OF NOVEMBER 22, 1955, ADDRESSED TO THE PERSONNEL DIRECTOR OF OUR OFFICE, REQUESTS INFORMATION REGARDING THE RIGHT OF E. L. TOLSON, JR., TO BE CREDITED WITH SICK LEAVE STATED TO HAVE BEEN LOST WHEN HE RESIGNED FROM THE GENERAL ACCOUNTING OFFICE JUNE 8, 1945, TO ACCEPT A COMMISSION IN THE RESERVE OFFICERS COMMISSIONED CORPS, U.S. PUBLIC HEALTH SERVICE. WAS RELEASED FROM ACTIVE DUTY IN JULY 1953 AND ON AUGUST 24, 1953, HE RECEIVED AN INDEFINITE APPOINTMENT WITH THE BUREAU OF INDIAN AFFAIRS AND HAS HAD CONTINUOUS SERVICE TO DATE.

SECTIONS 30.702 (A) AND 30.702 (D), FEDERAL PERSONNEL MANUAL, PROVIDE RESPECTIVELY:

"/A) UPON REEMPLOYMENT OF AN EMPLOYEE SUBJECT TO THIS ACT WHO WAS SEPARATED ON OR AFTER JANUARY 6, 1952, WITHOUT A BREAK IN SERVICE, OR A BREAK OF NOT MORE THAN 52 CONTINUOUS CALENDAR WEEKS, THE EMPLOYEE'S SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO HIS ACCOUNT.

"/D) WHEN AN EMPLOYEE TRANSFERS TO A POSITION TO WHICH HE CANNOT TRANSFER HIS SICK LEAVE, THE UNTRANSFERRED LEAVE SHALL BE RECREDITED TO HIM IF HE RETURNS TO THE LEAVE SYSTEM UNDER WHICH IT WAS EARNED, WITHOUT A BREAK IN SERVICE OF MORE THAN 52 CONTINUOUS CALENDAR WEEKS.'

YOUR DOUBT CONCERNING THE APPLICATION OF THE ABOVE-QUOTED REGULATIONS APPEARS TO ARISE FROM THE USE OF THE WORD "TRANSFERS" IN SECTION 30.702 (D). AS SECTION 30.702 (A) PERMITS THE TRANSFER OF LEAVE UPON REEMPLOYMENT IT IS EVIDENT THAT THE WORD "TRANSFERS" AS USED IN SECTION 30.702 (D) IS NOT TO BE CONSTRUED IN A RESTRICTED SENSE AS APPLICABLE ONLY TO A FORMALIZED TRANSFER BUT, RATHER, IT REASONABLY MAY BE CONSTRUED AS EMBRACING ANY CHANGE FROM ONE POSITION TO ANOTHER HOWEVER PROCESSED. COMPARE 27 COMP. GEN. 757. ALSO, ATTENTION IS DIRECTED TO 34 COMP. GEN. 287 HOLDING THAT UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951 LEAVE IS TRANSFERABLE BETWEEN THE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE AND OTHER CIVILIAN POSITIONS UNDER THE FEDERAL GOVERNMENT.

A SEARCH OF THE RECORDS OF OUR OFFICE DISCLOSES THAT MR. TOLSON'S LEAVE RECORD HAS BEEN DESTROYED IN ACCORDANCE WITH DISPOSAL SCHEDULE NO. 1, AFTER THREE YEARS; ACCORDINGLY, WE ARE NOT IN A POSITION TO CERTIFY ANY PARTICULAR AMOUNT OF SICK LEAVE FOR RECREDITING TO HIM AT THIS TIME. REGARDING SUCH A SITUATION WE SAID IN 32 COMP. GEN. 314:

"THE DETERMINATION AS TO WHETHER AN EMPLOYEE SHOULD BE CREDITED WITH LEAVE PURPORTEDLY STANDING TO HIS CREDIT AT THE TIME OF TRANSFER TO AN AGENCY UNDER A LEAVE SYSTEM DIFFERENT FROM THAT UNDER THE 1936 LEAVE ACTS IS THE PRIMARY RESPONSIBILITY OF THE AGENCY WHERE THE EMPLOYEE IS PRESENTLY EMPLOYED. IT IS UNDERSTOOD THAT SOME OF THE AGENCIES WHERE EMPLOYEES SUPPOSEDLY HAVE LEAVE CREDITS HAVE BEEN FURNISHING CERTIFICATIONS OF LEAVE CREDITS TO AGENCIES WHERE THE EMPLOYEES ARE CURRENTLY EMPLOYED, WHICH CERTIFICATIONS ARE PREDICATED ENTIRELY UPON AFFIDAVITS FROM THE EMPLOYEES, THERE BEING NOTHING IN THE CERTIFICATIONS THEMSELVES TO SHOW THAT NO LEAVE RECORDS WERE AVAILABLE. IT IS THE VIEW OF THIS OFFICE THAT THE FURNISHING OF CERTIFICATIONS OF LEAVE CREDITS BASED UPON OTHER THAN OFFICIAL RECORDS IS NOT TO BE SANCTIONED. HOWEVER, IN LIEU OF A CERTIFICATION, WHERE NO OFFICIAL RECORDS ARE AVAILABLE, THERE SHOULD BE FURNISHED STATEMENTS TO REQUESTING AGENCIES OF ANY OTHER EVIDENCE WHICH MAY BE AVAILABLE IN RESPECT OF EMPLOYEES' LEAVE CREDITS, INCLUDING AN ESTIMATE OF HIS LEAVE CREDIT, IF POSSIBLE. ANY SUCH STATEMENTS SHOULD CLEARLY REFLECT THE FACTORS FORMING THE BASIS OF THE ESTIMATE. THE AGENCY WHERE THE EMPLOYEE CURRENTLY IS EMPLOYED MAY THEN DETERMINE WHETHER UPON THE BASIS OF SUCH SHOWING A CREDIT OF LEAVE MAY BE MADE.'

AS OUR OFFICE IS NOT IN A POSITION, HOWEVER, TO CERTIFY ANY PARTICULAR SICK LEAVE CREDIT TO MR. TOLSON DUE CONSIDERATION MAY BE GIVEN ADMINISTRATIVELY TO AN AFFIDAVIT BY HIM SETTING FORTH THE AMOUNT OF SICK LEAVE TO HIS CREDIT WHEN HE RESIGNED FROM OUR OFFICE SUPPORTED BY SUCH PERSONNEL RECORDS, IF ANY, HE MAY HAVE MAINTAINED.