B-129230, SEP. 26, 1956

B-129230: Sep 26, 1956

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YOU SAY THAT ON THAT DATE YOU WILL HAVE TO YOUR CREDIT 37 DAYS' ANNUAL LEAVE. YOUR CEILING IS LIMITED TO 30 DAYS. WILL OWE ON THE SAME DATE FOR 7 DAYS' UNLIQUIDATED SICK LEAVE BUT HAVE BEEN INFORMED BY YOUR PERSONNEL OFFICER THAT THE SUBSTITUTION OF 7 DAYS ANNUAL LEAVE FOR 7 DAYS SICK LEAVE WITH THE VIEW TO LIQUIDATING THE 7 DAYS ADVANCED SICK LEAVE CANNOT BE DONE. YOU EXPRESS THE VIEW THAT THE REFERRED-TO DECISION IS NOT APPLICABLE TO YOUR CASE BECAUSE YOU DO NOT INTEND TO CONTINUE IN THE SERVICE. YOU ALSO ASK WHETHER: "IF IT IS HELD THAT EXCESS ANNUAL LEAVE CANNOT BE CONVERTED TO LIQUIDATED SICK LEAVE OWED AT THE END OF THE CALENDAR YEAR. QUOTING FROM THE SYLLABUS: "THERE IS NO AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951.

B-129230, SEP. 26, 1956

TO MR. JOHN M. NORMANN:

YOUR LETTER OF SEPTEMBER 7, 1956, REQUESTS INFORMATION REGARDING YOUR RIGHT TO SUBSTITUTE ANNUAL LEAVE FOR EXCESS SICK LEAVE UPON YOUR RETIREMENT DECEMBER 31, 1956. YOU SAY THAT ON THAT DATE YOU WILL HAVE TO YOUR CREDIT 37 DAYS' ANNUAL LEAVE, BUT YOUR CEILING IS LIMITED TO 30 DAYS, AND WILL OWE ON THE SAME DATE FOR 7 DAYS' UNLIQUIDATED SICK LEAVE BUT HAVE BEEN INFORMED BY YOUR PERSONNEL OFFICER THAT THE SUBSTITUTION OF 7 DAYS ANNUAL LEAVE FOR 7 DAYS SICK LEAVE WITH THE VIEW TO LIQUIDATING THE 7 DAYS ADVANCED SICK LEAVE CANNOT BE DONE, CITING 31 COMP. GEN. 525 (524), AS THE AUTHORITY THEREFOR. YOU EXPRESS THE VIEW THAT THE REFERRED-TO DECISION IS NOT APPLICABLE TO YOUR CASE BECAUSE YOU DO NOT INTEND TO CONTINUE IN THE SERVICE. YOU ALSO ASK WHETHER: "IF IT IS HELD THAT EXCESS ANNUAL LEAVE CANNOT BE CONVERTED TO LIQUIDATED SICK LEAVE OWED AT THE END OF THE CALENDAR YEAR, WOULD THIS ALSO APPLY IF RETIREMENT TAKES PLACE AS OF NOVEMBER 30, 1956?

THE REFERRED-TO DECISION HOLDS AS FOLLOWS, QUOTING FROM THE SYLLABUS:

"THERE IS NO AUTHORITY UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, OR REGULATION ISSUED PURSUANT THERETO, TO SUBSTITUTE ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT FOR SICK LEAVE PREVIOUSLY GRANTED, FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A CALENDAR YEAR.'

WHILE THAT DECISION WAS RENDERED IN A CASE IN WHICH THE EMPLOYEE WAS TO BE CONTINUED IN THE SERVICE THAT FACT ALONE IS NOT MATERIAL. THAT DECISION IS FOR APPLICATION IN ALL CASES IN WHICH THE EMPLOYEE APPLIES FOR AND IS GRANTED SICK LEAVE.

WHEN PROPERLY APPROVED BY THE ADMINISTRATIVE OFFICE CONCERNED AN EMPLOYEE IS ENTITLED TO USE ANNUAL LEAVE TO HIS CREDIT TO COVER ABSENCE FROM DUTY FOR ANY REASON; OR SUBJECT TO ADMINISTRATIVE APPROVAL AN EMPLOYEE MAY BE ADVANCED NOT TO EXCEED 30 DAYS' SICK LEAVE UNDER CERTAIN CIRCUMSTANCES. THIS VESTS IN AN EMPLOYEE THE RIGHT OF ELECTION AS TO THE TYPE OF LEAVE HE WILL USE AT THE TIME. WHEN THE RIGHT OF ELECTION AS TO THE TYPE OF LEAVE HAS BEEN EXERCISED AND THE EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS BASED UPON HIS APPROVED APPLICATION FOR SICK LEAVE, THE EMPLOYEE MUST BE REGARDED AS HAVING ELECTED TO RECEIVE A VALUABLE STATUTORY RIGHT. THE RIGHT OF THE EMPLOYEE HAVING BECOME VESTED AND THE OBLIGATION OF THE GOVERNMENT HAVING BEEN DISCHARGED UNDER THE ELECTION, SUCH RIGHT AND OBLIGATION ARE NOT SUBJECT TO CHANGE IN THE ABSENCE OF A LAW, OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, PROVIDING THEREFOR.

SINCE THE PURPOSE OF YOUR REQUEST TO HAVE SEVEN DAYS OF ANNUAL LEAVE SUBSTITUTED FOR A LIKE AMOUNT OF SICK LEAVE WOULD BE TO AVOID A FORFEITURE OF THE ANNUAL LEAVE AT THE TIME OF YOUR SEPARATION IF NOT USED IN KIND BY THAT TIME, THE HOLDING IN THE CITED DECISION APPLIES TO YOUR CASE, AND THE SAME PRINCIPLE WOULD APPLY SHOULD YOU RETIRE NOVEMBER 30, 1956.