B-133488, SEP. 12, 1962

B-133488: Sep 12, 1962

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THE DEPUTY ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER YOU MAY PROPERLY RECREDIT AN EMPLOYEE WITH 42 DAYS AND 3 HOURS OF SICK LEAVE THAT WAS NOT RECREDITED TO HIS LEAVE ACCOUNT UPON HIS EMPLOYMENT UNDER A WAR SERVICE INDEFINITE APPOINTMENT WITH YOUR DEPARTMENT IN 1945. WHEN HE WAS DISCHARGED FROM MILITARY SERVICE OCTOBER 3. HE DID NOT RETURN TO HIS POSITION WITH THE SOCIAL SECURITY BOARD BUT INSTEAD WAS APPOINTED TO A POSITION WITH THE INTERNAL REVENUE SERVICE ON OCTOBER 8. THE RECORD REFLECTS THAT SUCH LEAVE WAS NOT CREDITED BECAUSE THE SOCIAL SECURITY BOARD DID NOT BELIEVE THE SICK LEAVE WAS TRANSFERABLE SINCE THE EMPLOYEE WAS NOT FIRST RESTORED TO A POSITION UNDER THE BOARD AND THEREAFTER TRANSFERRED TO A POSITION UNDER THE INTERNAL REVENUE SERVICE.

B-133488, SEP. 12, 1962

TO THE SECRETARY OF THE TREASURY:

ON AUGUST 6, 1962, THE DEPUTY ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER YOU MAY PROPERLY RECREDIT AN EMPLOYEE WITH 42 DAYS AND 3 HOURS OF SICK LEAVE THAT WAS NOT RECREDITED TO HIS LEAVE ACCOUNT UPON HIS EMPLOYMENT UNDER A WAR SERVICE INDEFINITE APPOINTMENT WITH YOUR DEPARTMENT IN 1945.

THE RECORD SHOWS THAT THE EMPLOYEE ENTERED MILITARY SERVICE IN 1942 FROM A POSITION WITH THE SOCIAL SECURITY BOARD. THE EVIDENCE NOW AVAILABLE INDICATES THAT AT THAT TIME HIS OFFICIAL LEAVE ACCOUNT SHOWED THE FOREGOING SICK LEAVE CREDIT--- 42 DAYS AND 3 HOURS. WHEN HE WAS DISCHARGED FROM MILITARY SERVICE OCTOBER 3, 1945, HE DID NOT RETURN TO HIS POSITION WITH THE SOCIAL SECURITY BOARD BUT INSTEAD WAS APPOINTED TO A POSITION WITH THE INTERNAL REVENUE SERVICE ON OCTOBER 8, 1945. THE RECORD REFLECTS THAT SUCH LEAVE WAS NOT CREDITED BECAUSE THE SOCIAL SECURITY BOARD DID NOT BELIEVE THE SICK LEAVE WAS TRANSFERABLE SINCE THE EMPLOYEE WAS NOT FIRST RESTORED TO A POSITION UNDER THE BOARD AND THEREAFTER TRANSFERRED TO A POSITION UNDER THE INTERNAL REVENUE SERVICE.

WE NOTE FROM THE RECORD THAT WHILE THE QUESTION OF TRANSFER OF SICK LEAVE WAS ADMINISTRATIVELY CONSIDERED, THE 42 DAYS AND 3 HOURS OF SICK LEAVE WAS NOT OFFICIALLY RECREDITED AND THAT NOW SINCE THE EMPLOYEE HAS HAD AN EXTENDED ILLNESS REQUIRING AN ADVANCE OF SICK LEAVE HE ASKS THAT HIS LEAVE ACCOUNT BE CREDITED WITH SUCH LEAVE.

IN OUR DECISION B-50007, DATED JUNE 6, 1945 (24 COMP. GEN. 876), RENDERED PRIOR TO THE DATE THE EMPLOYEE HERE INVOLVED WAS REAPPOINTED TO A POSITION IN YOUR DEPARTMENT, WE HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

"AN EMPLOYEE WHO ENTERS UPON ACTIVE COAST GUARD DUTY FROM A POSITION WITH THE TENNESSEE VALLEY AUTHORITY AND WHO, UPON RELEASE FROM ACTIVE DUTY AND MEETING THE REEMPLOYMENT CONDITIONS OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, WAS REEMPLOYED BY THE FEDERAL SECURITY AGENCY IS ENTITLED TO BE CREDITED IN HER PRESENT POSITION WITH SICK LEAVE ACCUMULATED PRIOR TO ENTRY ON DUTY WITH THE COAST GUARD.'

IN LINE WITH THAT DECISION CREDIT SHOULD HAVE BEEN ALLOWED BY THE INTERNAL REVENUE SERVICE AT THE TIME THE EMPLOYEE WAS REAPPOINTED ON OCTOBER 8, 1945. MOREOVER, THIS VIEW WAS ADOPTED BY THE UNITED STATES CIVIL SERVICE COMMISSION IN PROMULGATING SECTION 30.411 OF THE ANNUAL AND SICK LEAVE REGULATIONS IN 1946, WHICH PROVIDES AS FOLLOWS:

"/A) ANY PERMANENT EMPLOYEE WHO LEAVES OR HAS LEFT A POSITION TO ENTER MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, AND IS OR HAS BEEN REEMPLOYED AS A PERMANENT EMPLOYEE WITHIN 120 DAYS AFTER HIS RELEASE FROM MILITARY, NAVAL, OR MERCHANT MARINE SERVICE, SHALL BE ENTITLED TO SUCH LEAVE AS REMAINS TO HIS CREDIT.'

WHILE THERE HAS BEEN A CONSIDERABLE LAPSE OF TIME IN THIS CASE, THE AMOUNT OF SICK LEAVE WHICH SHOULD HAVE BEEN CREDITED TO THE ACCOUNT OF THE EMPLOYEE AT THE TIME OF HIS EMPLOYMENT WITH THE INTERNAL REVENUE SERVICE IS REASONABLY ESTABLISHED BY THE RECORD TRANSMITTED HERE. MOREOVER, RECREDIT OF SUCH LEAVE AT THIS TIME IS NOT A CLAIM FOR A MONEY PAYMENT SUCH AS WOULD BE A PROPER SUBJECT FOR SETTLEMENT BY THIS OFFICE. HENCE, THE MATTER IS NOT ONE WHICH WOULD BE SUBJECT TO THE STATUTE OF LIMITATIONS (ACT OF OCTOBER 9, 1940, 54 STAT. 1061) APPLICABLE TO CLAIMS COGNIZABLE BY THE GENERAL ACCOUNTING OFFICE. ON THE CONTRARY THE MATTER OF RECREDITING LEAVE PRIMARILY IS ONE FOR ADMINISTRATIVE DETERMINATION IN ACCORDANCE WITH THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, AND WE SEE NO OBJECTION TO RECREDITING SUCH LEAVE IN THE PRESENT CASE IF SUCH ACTION IS ADMINISTRATIVELY DETERMINED TO BE PROPER.