B-129760, OCT. 30, 1957

B-129760, OCT. 30, 1957

TO THE SECRETARY OF THE NAVY:

WE REFER TO THE CLAIM OF ALBERT F. RYAN, SR., A FORMER EMPLOYEE OF THE DEPARTMENT OF THE NAVY AT THE LONG BEACH, CALIFORNIA, NAVAL SHIPYARD, FOR PAYMENT FOR SICK LEAVE WHICH STOOD TO HIS CREDIT WHEN HE WAS SEPARATED ON DECEMBER 11, 1949, IN A REDUCTION IN FORCE. THE MATTER WAS THE SUBJECT OF A REPORT DATED AUGUST 6, 1957, REFERENCE OIR 260: LHW, FROM THE ACTING HEAD, EMPLOYMENT REGULATIONS BRANCH, OFFICE OF INDUSTRIAL RELATIONS.

AS THE RECORDS OF YOUR DEPARTMENT WILL SHOW, WE ALLOWED ON JUNE 19, 1957, MR. RYAN'S CLAIM FOR BACK PAY FOR THE PERIOD DECEMBER 11, 1949, THROUGH DECEMBER 13, 1950. ON FEBRUARY 19, 1951, THE CLAIMANT WAS RE EMPLOYED AT THE LONG BEACH NAVAL SHIPYARD AND, ACCORDING TO THE REPORT OF AUGUST 6, 1957, PREVIOUSLY MENTIONED, REMAINED ON THE ROLLS THROUGH THE MONTH OF FEBRUARY 1956, WHEN HIS RETIREMENT FOR DISABILITY BECAME EFFECTIVE. THE REPORT STATES THAT THE CLAIMANT WAS ON ACTIVE DUTY THROUGH FEBRUARY 17, 1956, WAS ON SICK LEAVE THROUGH ONE HOUR ON FEBRUARY 21, 1956 (FOR A TOTAL OF 9 HOURS' SICK LEAVE THEN TO HIS CREDIT), AND WAS ON ANNUAL LEAVE TO THE END OF THE MONTH FOR A TOTAL OF 47 HOURS.

UPON THE BASIS OF OUR DECISION OF APRIL 4, 1957, TO THE CLAIMANT--- A COPY OF WHICH WAS FURNISHED TO YOUR OFFICE OF INDUSTRIAL RELATIONS WITH OUR LETTER OF MAY 15, 1957--- HE WAS ENTITLED UNDER THE APPLICABLE REGULATIONS, 5 CFR, 1949 ED., 30.411 (B) AND 30.408, TO BE RECREDITED IN THE EMPLOYMENT COMMENCING FEBRUARY 19, 1951, WITH THE 300 HOURS OF SICK LEAVE WHICH STOOD TO HIS CREDIT ON DECEMBER 11, 1949, THE EFFECTIVE DATE OF SEPARATION BY REDUCTION IN FORCE. YOUR DEPARTMENT'S REPORT OF AUGUST 6, 1957, PREVIOUSLY MENTIONED, WAS RESPONSIVE TO OUR REQUEST UNDER DATE OF JUNE 6, 1957. HOWEVER, THE SUBSTITUTION OF SICK LEAVE FOR 47 HOURS OF ANNUAL LEAVE IMMEDIATELY PRIOR TO THE DATE OF SEPARATION AS HERETOFORE FIXED WILL NOT GIVE CLAIMANT THE BENEFIT OF ALL THE CREDITABLE SICK LEAVE. THEREFORE, THE QUESTION ARISES WHETHER THE DATE OF SEPARATION NOW MAY BE CHANGED SO AS TO WARRANT PLACING THE CLAIMANT IN A SICK LEAVE WITH PAY STATUS FOR THE PERIOD WHICH THE CREDITABLE LEAVE WOULD COVER.

NOPI 185.7-6, CONCERNING THE SEPARATION OF EMPLOYEES ON ACCOUNT OF DISABILITY RETIREMENT, PROVIDES IN PERTINENT PART AS FOLLOWS:

"THE COMMISSION WILL NOTIFY THE ACTIVITY OF THE ACTION OF ALLOWANCE OR DISALLOWANCE OF THE CLAIM. * * * IF DISABILITY RETIREMENT HAS BEEN ALLOWED, RETIREMENT FORM 46-48 IS FORWARDED TO THE ACTIVITY, AND UPON ITS RECEIPT THE ACTIVITY SHALL TAKE THE FOLLOWING ACTION:

"/2) IF THE EMPLOYEE IS THEN ON SICK LEAVE, IT SHALL SEPARATE HIM AS OF THE END OF THE CALENDAR MONTH IN WHICH THE LEAVE EXPIRES. IT SHALL GRANT ANY LEAVE WITHOUT PAY WHICH MAY BE NECESSARY TO BRIDGE THE GAP BETWEEN THE DATE ON WHICH THE LEAVE WITH PAY EXPIRES AND THE END OF THE CALENDAR MONTH. THE SICK LEAVE PERIOD MAY BE SO FIXED AS TO TERMINATE AT THE END OF A CALENDAR MONTH, INSTEAD OF EXTENDING A FEW DAYS INTO THE FOLLOWING MONTH, IF THIS WOULD BE TO THE EMPLOYEE'S ADVANTAGE. * * *"

IT IS CLEAR FROM THE REGULATIONS, TOGETHER WITH THE FACT THAT CLAIMANT WAS GRANTED ALL THE SICK LEAVE ACTUALLY CREDITED TO HIM AT THAT TIME, THAT HAD THE 300 HOURS OF SICK LEAVE IN QUESTION BEEN INCLUDED IN THE CREDIT, CLAIMANT WOULD HAVE BEEN CARRIED ON THE ROLLS, AND NOT SEPARATED, UNTIL THE END OF THE MONTH IN WHICH THE TOTAL SICK LEAVE EXPIRED UNLESS ADJUSTED SO AS NOT TO EXTEND ONLY A FEW DAYS INTO THE NEXT MONTH.

THE GENERAL RULE IS THAT ONCE AN EMPLOYEE IS LEGALLY AND EFFECTIVELY SEPARATED FROM SERVICE THERE IS NO AUTHORITY FOR RESTORING HIM TO THE ROLLS FOR THE PURPOSE OF GRANTING LEAVE. 33 COMP. GEN. 422 AND DECISIONS THERE CITED. ON THE OTHER HAND, WE HAVE HELD THAT THE CHANGE OF CIVILIAN EMPLOYEES FROM ACTIVE DUTY TO RETIRED STATUS IS NOT TO BE CONTROLLED BY THE SAME PRINCIPLES APPLICABLE TO DISMISSALS OR OTHER SEPARATIONS FROM THE SERVICE. 11 COMP. GEN. 1; ID. 202. THIS IS PARTICULARLY TRUE IN THE CASE OF DISABILITY RETIREMENT SINCE UNDER THE A CHANGE IN THE EFFECTIVE DATE OF CLAIMANT'S SEPARATION FROM THE ROLLS REGULATIONS OF THE CIVIL SERVICE COMMISSION, 5 CFR 29.7 (B), THE COMMENCEMENT OF AN ANNUITY ON ACCOUNT OF RETIREMENT FOR DISABILITY IS NOT NECESSARILY DEPENDENT UPON A SEPARATION FROM SERVICE BUT MAY COMMENCE ON THE FIRST DAY OF THE MONTH AFTER PAY STATUS IS TERMINATED. THEREFORE, WE MAY HOLD IN THIS CASE THAT THERE IS NO LEGAL IMPEDIMENT TO ON ACCOUNT OF RETIREMENT FOR DISABILITY SO AS NOW TO GRANT THE SICK LEAVE WHICH HE WOULD HAVE BEEN GRANTED UNDER THE PROVISIONS OF NOPI 185.7-6, QUOTED ABOVE, HAD THE FULL AMOUNT OF SICK LEAVE TO WHICH HE WAS ENTITLED BEEN PROPERLY CREDITED AT THE TIME OF RECEIPT OF NOTICE OF APPROVAL OF THE DISABILITY RETIREMENT.

SINCE THE CHANGE IN THE DATE OF SEPARATION AND THE GRANT OF SICK LEAVE JUST DISCUSSED ARE DISCRETIONARY ADMINISTRATIVE FUNCTIONS, WE ARE SUBMITTING THE MATTER FOR YOUR APPROVAL OR ..END :