B-142962, JUN. 20, 1960

B-142962: Jun 20, 1960

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KIMBLE PRESENTED A CERTIFICATE FROM HIS PHYSICIAN TO ESTABLISH HE WAS PHYSICALLY INCAPABLE OF PERFORMING THE REQUIRED DUTIES OF HIS POSITION AS HEAD. UPON EXAMINATION BY A NAVAL MEDICAL OFFICER THE PHYSICIAN'S FINDINGS WERE VERIFIED. HE WAS GRANTED ANNUAL LEAVE DURING WHICH HE FILED APPLICATION FOR DISABILITY RETIREMENT WITH THE CIVIL SERVICE COMMISSION. PENDING DETERMINATION OF HIS APPLICATION THE EMPLOYEE WAS GRANTED SICK LEAVE UNTIL SUCH LEAVE CREDIT WAS EXHAUSTED. HE THEN WAS GRANTED ANNUAL LEAVE. THE APPLICATION FOR DISABILITY RETIREMENT WAS DISAPPROVED BY THE COMMISSION AND UPON RE-EXAMINATION BY NAVAL MEDICAL OFFICERS HE AGAIN WAS FOUND PHYSICALLY INCAPACITATED TO PERFORM THE DUTIES OF HIS POSITION.

B-142962, JUN. 20, 1960

TO THE SECRETARY OF THE NAVY:

ON MAY 20, 1960, THE ASSISTANT COMPTROLLER OF THE NAVY, TRANSMITTED TO US FOR CONSIDERATION A FILE OF CORRESPONDENCE (NCA 121), CONCERNING THE QUESTION OF ENTITLEMENT OF HOWARD H. KIMBLE, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY TO PAYMENT OF COMPENSATION WHILE IN A LEAVE WITHOUT PAY STATUS. LETTER DATED APRIL 1, 1960 FROM THE UNITED STATES NAVAL STATION AT KEY WEST, FLORIDA, REQUESTS OUR DECISION UPON THAT QUESTION.

THE RECORD SHOWS MR. KIMBLE PRESENTED A CERTIFICATE FROM HIS PHYSICIAN TO ESTABLISH HE WAS PHYSICALLY INCAPABLE OF PERFORMING THE REQUIRED DUTIES OF HIS POSITION AS HEAD, FIRE CONTROL MECHANIC, SHIPS DEPARTMENT, NAVAL STATION, KEY WEST. UPON EXAMINATION BY A NAVAL MEDICAL OFFICER THE PHYSICIAN'S FINDINGS WERE VERIFIED. HE WAS GRANTED ANNUAL LEAVE DURING WHICH HE FILED APPLICATION FOR DISABILITY RETIREMENT WITH THE CIVIL SERVICE COMMISSION. PENDING DETERMINATION OF HIS APPLICATION THE EMPLOYEE WAS GRANTED SICK LEAVE UNTIL SUCH LEAVE CREDIT WAS EXHAUSTED. HE THEN WAS GRANTED ANNUAL LEAVE. THE APPLICATION FOR DISABILITY RETIREMENT WAS DISAPPROVED BY THE COMMISSION AND UPON RE-EXAMINATION BY NAVAL MEDICAL OFFICERS HE AGAIN WAS FOUND PHYSICALLY INCAPACITATED TO PERFORM THE DUTIES OF HIS POSITION. AN APPEAL WAS MADE TO THE COMMISSION BY THE EMPLOYEE FOR A REVIEW OF ITS ORIGINAL FINDINGS. UPON THE EXPIRATION OF THE EMPLOYEE'S CREDIT FOR BOTH ANNUAL AND SICK LEAVES OF ABSENCE, HE WAS PLACED IN A LEAVE WITHOUT PAY STATUS FROM SEPTEMBER 1, 1959, TO OCTOBER 2, 1959. REPORTED TO THE NAVY MEDICAL OFFICER ON OCTOBER 5, 1959, FOR RE- EXAMINATION AND AS A RESULT OF THAT EXAMINATION HE WAS RESTORED TO LIMITED DUTY. THERE IS NO RECORD AT THIS TIME OF THE ACTION BY THE COMMISSION UPON THE EMPLOYEE'S APPEAL TO ITS FINDINGS. WE NOTE, HOWEVER, THE EMPLOYEE WAS SEPARATED FROM THE ROLLS FOR PHYSICAL DISABILITY ON APRIL 1, 1960.

THE EMPLOYEE'S SUBMISSION OF HIS DOCTOR'S CERTIFICATE THAT HE WAS PHYSICALLY UNFIT TO PERFORM THE DUTIES OF HIS POSITION, HIS VOLUNTARY APPLICATION TO THE COMMISSION FOR DISABILITY RETIRMENT, AND HIS APPEAL FROM ITS DECISION INDICATE HIS ABSENCE FROM DUTY WHILE IN BOTH LEAVE WITH PAY AND LEAVE WITHOUT PAY STATUS RESULTED FROM HIS PHYSICAL INABILITY TO PERFORM THE DUTIES OF HIS ASSIGNED POSITION. ALTHOUGH THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 5 U.S.C. 652, WHEN OTHERWISE APPLICABLE, PROVIDES FOR THE PAYMENT OF BACK SALARY TO EMPLOYEES UPON RESTORATION TO DUTY FOR PERIODS OF "UNJUSTIFIED OR UNWARRANTED" REMOVALS, SUSPENSIONS, OR FURLOUGHS WITHOUT PAY FROM THE FEDERAL SERVICE, THE STATUTE DOES NOT APPLY TO CASES WHEN AN EMPLOYEE THROUGH ILLNESS OR PHYSICAL DISABILITY IS PREVENTED FROM PERFORMING THE DUTIES OF HIS ASSIGNED POSITION. SEE 38 COMP. GEN. 203.

THEREFORE, UPON THE BASIS OF THE PRESENT RECORD, WE KNOW OF NO PROPER BASIS FOR AUTHORIZING PAYMENT OF COMPENSATION TO THE EMPLOYEE DURING HIS ABSENCE WHILE IN A LEAVE WITHOUT PAY STATUS.