B-142281, MAY 26, 1960

B-142281, MAY 26, 1960

TO THE POSTMASTER GENERAL:

WE HAVE FOR CONSIDERATION THE MATTER CONCERNING THE ACCRUED LEAVE WHICH WAS NOT GRANTED FOR USE BY MR. CHARLES T. GILBERT, RETIRED, FORMER POSTMASTER AT NEW CANTON, ILLINOIS, PRIOR TO JANUARY 31, 1957, THE DATE OF HIS SEPARATION FROM SERVICE FOR PURPOSES OF HIS APPROVED DISABILITY RETIREMENT.

WE UNDERSTAND THAT ADVICE OF THE CIVIL SERVICE COMMISSION'S APPROVAL OF MR. GILBERT'S RETIREMENT WAS FURNISHED HIM ON JANUARY 9, 1957, AND TO THE POST OFFICE DEPARTMENT. MR. GILBERT'S LETTER OF JANUARY 29, 1957 TO THE CHICAGO REGIONAL CONTROLLER STATED IN PART THAT, AS HIS APPLICATION FOR DISABILITY RETIREMENT HAD BEEN MEDICALLY APPROVED, HE HAD BEGUN ON JANUARY 15, 1O57 TO USE "THE SICK LEAVE DUE ME, WHICH,WHEN ALL USED WILL BE THE DATE OF MY ACTUAL TIREMENT.' FURTHER IN THAT LETTER OF JANUARY 29, 1957, MR. GILBERT INDICATED THAT HIS REQUEST FOR HIS SICK LEAVE INCLUDED ANY LEAVE ACCRUED WHILE ON SUCH LEAVE, FOR PURPOSES OF INCREASING HIS HIGHEST FIVE-YEAR AVERAGE SALARY. AT THAT TIME HIS LEAVE CARD (NO. 4) SHOWED HE HAD AN ACCUMULATED BALANCE OF 144 DAYS AND 4 HOURS OF SICK LEAVE AT THE END OF THE 1956 LEAVE YEAR. THAT AMOUNT, PLUS 4 HOURS ACCRUED DURING JANUARY 1957, WOULD HAVE TOTALED APPROXIMATELY 145 DAYS AVAILABLE ON OR AFTER JANUARY 29, 1957, WHICH, MINUS THE 19 DAYS NOT PREVIOUSLY RECORDED FOR THE PERIOD SEPTEMBER 1 TO 30, 1956, AND MINUS THE 13 DAYS FROM JANUARY 15 TO 31, 1957, APPARENTLY WOULD HAVE LEFT 113 DAYS SICK LEAVE CREDIT AVAILABLE AS OF JANUARY 31, 1957.

PARAGRAPH 723.243A OF THE POSTAL MANUAL PROVIDES THAT, IN RENDERING "EVERY ASSISTANCE" TO A RETIRING EMPLOYEE WHO IS UNABLE TO WORK, THE INSTALLATION SHOULD CARRY HIM IN A LEAVE STATUS (WITH OR WITHOUT PAY) UNTIL NOTIFIED BY THE COMMISSION OF ITS ACTION ON HIS RETIREMENT APPLICATION, AND THAT, GENERALLY, IT WOULD BE DESIRABLE FOR AN EMPLOYEE WHO HAS A LARGE ACCUMULATION OF SICK LEAVE TO DEFER FILING AN APPLICATION FOR DISABILITY RETIREMENT UNTIL THAT LEAVE REACHES A BALANCE OF APPROXIMATELY 45 DAYS. HOWEVER, PARAGRAPH 721.435 PROVIDES AN EMPLOYEE RETIRING FOR DISABILITY ,SHALL BE GRANTED ALL ACCUMULATED AND ACCRUED SICK LEAVE TO HIS CREDIT PRIOR TO THE EFFECTIVE DATE OF HIS SEPARATION; "

IN FURTHERANCE OF THAT EXPRESS POLICY, HOWEVER, PARAGRAPH 723.246B STATES THAT, WHEN DISABILITY RETIREMENT HAS BEEN ALLOWED BY THE COMMISSION,"THE INSTALLATION SHOULD, IN ITS DISCRETION," TAKE ONE OF THE FOLLOWING ACTIONS:

"B. IF THE EMPLOYEE IS THEN ON SICK LEAVE, SEPARATE HIM AS OF THE END OF THE CALENDAR MONTH IN WHICH THE LEAVE EXPIRES. * * *

"D. IF THE EMPLOYEE IS STILL AT WORK, GRANT HIM ANY SICK LEAVE TO WHICH HE IS ENTITLED AND FOR WHICH HE MAY APPLY AND SEPARATE HIM AS OF THE END OF THE MONTH IN WHICH LEAVE EXPIRES. * * *

"F.SINCE THE ANNUITY IS PAYABLE FOR FULL MONTHS ONLY, THE ANNUAL AND SICK LEAVE PERIOD MAY BE FIXED (SIC) AS TO TERMINATE AT THE END OF THE CALENDAR MONTH INSTEAD OF EXTENDING A FEW DAYS INTO THE FOLLOWING MONTH, IF THIS WOULD BE TO THE EMPLOYEE'S ADVANTAGE.'

NONE OF THE ABOVE-CITED AND QUOTED PROVISIONS INDICATE THAT THE INSTALLATION SHOULD IGNORE A REQUEST SUCH AS WAS EXPRESSED IN MR. GILBERT'S LETTER OF JANUARY 29, 1957 IN THE FURTHERANCE OF HIS USE OF ALL OF HIS SICK LEAVE, WHICH HE HAD ALREADY STARTED TO USE AS OF JANUARY 15, 1957. SUCH REQUEST APPARENTLY WAS INSTITUTED ON OR ABOUT JANUARY 15, 1957 IN A LETTER TO THE DISTRICT OPERATIONS MANAGER. HOWEVER, THE REGIONAL PAYROLL SECTION IN ITS LETTER OF JANUARY 30, 1957 TO MR. GILBERT MIGHT BE SAID NOT TO HAVE RENDERED "EVERY ASSISTANCE" TO HIM AS CONTEMPLATED BY PARAGRAPH 723.243; NOR DOES THAT REGIONAL OFFICE'S LETTER APPEAR TO BE RESPONSIVE TO THE SPECIFIC REQUEST OF JANUARY 29, 1957, FOR USE OF THE LEAVE IN QUESTION.

THE SICK LEAVE LAW, 5 U.S.C. 2063, AND THE COMMISSION'S REGULATIONS THEREUNDER, AS WELL AS UNDER THE RETIREMENT LAW, ARE NOT REGARDED BY US AS CAUSING AN AUTOMATIC FORFEITURE OF SICK LEAVE IN THE CIRCUMSTANCES WHICH PREVAILED IN THIS CASE. MOREOVER, THE CORRESPONDENCE BETWEEN MR. GILBERT AND THE REGIONAL CONTROLLER'S OFFICES SUBSEQUENT TO THEIR LETTERS OF JANUARY 29 AND JANUARY 30, 1957, WHICH RESULTED IN RETROACTIVE SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE PREVIOUSLY GRANTED DURING THE LEAVE YEARS 1955 AND 1956-- SUCH SUBSTITUTION WAS MADE ON OR ABOUT MAY 6, 1957--- CLEARLY WAS INSTITUTED AFTER THE FACT. THE PROVISIONS OF PARAGRAPHS 721.432 AND 721.434 DO NOT APPEAR TO CONTEMPLATE SUCH FORFEITURE ACTION AS WAS TAKEN IN THIS CASE.

IN THE ABSENCE OF A LAW OR A REGULATION HAVING THE FORCE AND EFFECT OF LAW, AN EMPLOYEE'S STATUTORY RIGHT TO USE ANNUAL LEAVE--- WHICH RIGHT HE HAD EXERCISED LAWFULLY DURING PRIOR YEARS--- SHOULD BE REGARDED AS HAVING BECOME A VESTED RIGHT WHICH IS NOT SUBJECT TO CHANGE AFTER THE CLOSE OF SUCH PRIOR LEAVE YEARS. WHILE ON APRIL 25, 1957, MR. GILBERT PRESENTED MEDICAL CERTIFICATES IN SUPPORT OF HIS STATEMENTS THAT HE ACTUALLY WAS ILL OR INCAPACITATED FOR DUTY AT VARIOUS TIMES DURING THOSE YEARS, SUCH EVIDENCE APPARENTLY WAS ADDUCED BY HIM AS BEING AN ALTERNATIVE METHOD FOR AN ADDITIONAL LUMP-SUM ANNUAL LEAVE PAYMENT. SUCH AN ADDITIONAL PAYMENT THE REGIONAL CONTROLLER DOUBTLESS WAS AWARE AT THE TIME LEGALLY COULD NOT BE MADE UNDER THE PRESENT LAW, 5 U.S.C. 61B. ALSO, THE SECOND PARAGRAPH OF THE REGIONAL PAYROLL SECTION'S LETTER OF JANUARY 30, 1957 COULD BE SAID TO HAVE UNREASONABLY INDUCED MR. GILBERT TO SEEK TO CHANGE THE ANNUAL LEAVE CHARGES THEN EXISTING ON THE RECORD (CARD NO. 4).

THE FOREGOING LEADS US TO SUGGEST THAT UNDER THE ABOVE-CITED ADMINISTRATIVE POLICY (POSTAL MANUAL 721.435, 723.243, AND 723.246) THE REGIONAL OFFICE APPARENTLY IS EMPOWERED TO APPROVE SICK LEAVE RETROACTIVELY AFTER A SEPARATION FROM SERVICE IN ORDER TO CORRECT A BONA FIDE ERROR WHICH OCCURRED DURING THE SAME LEAVE YEAR, 1957, SO AS TO WARRANT THE APPROVAL OF USE OF ALL OF THE SICK LEAVE ACCUMULATION IN MR. GILBERT'S CASE. IN THAT LIGHT WE FORESEE NO PROHIBITORY AUTHORITY WHICH WOULD PRECLUDE CORRECTION OF THE EFFECTIVE DATE OF MR. GILBERT'SSEPARATION FOR PURPOSES OF DISABILITY RETIREMENT. HOWEVER, AS THE MATTER PRIMARILY CONCERNS PROPER ADMINISTRATIVE ACTION IN THE AREA, WE SHOULD APPRECIATE THE RECEIPT OF THE VIEWS OF YOUR OFFICE THEREON, FOR OUR CONSIDERATION IN REPLYING TO THE INQUIRY OF SENATOR DOUGLAS.