B-144449, JAN. 9, 1961

B-144449, JAN. 9, 1961

TO MR. HOWARD PASTERNACK:

YOUR LETTER OF OCTOBER 31, 1960, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF JUNE 8, 1960, WHICH DISALLOWED YOUR CLAIM FOR SUBSTITUTION OF 160 HOURS OF SICK LEAVE FOR LEAVE WITHOUT PAY DURING THE PERIOD JULY 13 TO AUGUST 7, 1959, AS AN EMPLOYEE OF HEADQUARTERS USAFE, DCS/INSTALLATIONS, WIESBADEN, GERMANY.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT THE ADMINISTRATIVE OFFICE CONSIDERED YOUR SERVICES HAD TERMINATED WITH THE AIR FORCE PRIOR TO YOUR REQUEST FOR SICK LEAVE AND ALSO BECAUSE NO ACTION HAD OR HAS BEEN TAKEN BY THE AIR FORCE TO APPROVE THE GRANTING OF SICK LEAVE FOR THE PERIOD IN QUESTION.

THE FACTS REPORTED SHOW THAT YOU WERE EMPLOYED AT HEADQUARTERS, USAFE, DCS/INSTALLATIONS, WIESBADEN, GERMANY, AS A MASTER PLANNER, GRADE GS-12; THAT ON MAY 25, 1959, YOU RETURNED TO THE UNITED STATES ON 45 DAYS RE- EMPLOYMENT LEAVE; THAT WHILE ON LEAVE YOU ACCEPTED A POSITION WITH THE DEPARTMENT OF THE NAVY FOR EMPLOYMENT AT GUAM; THAT BECAUSE OF PERSONAL REASONS AND ILLNESS YOU DID NOT REPORT FOR THAT POSITION BUT SUBSEQUENTLY YOU ACCEPTED A POSITION WITH THE PUBLIC HOUSING ADMINISTRATION IN NEW YORK CITY. YOU REPORTED FOR WORK WITH THAT ADMINISTRATION ON AUGUST 10, 1959. DURING THE PERIOD INTERVENING BETWEEN THE TERMINATION OF YOUR ACTIVE EMPLOYMENT WITH THE AIR FORCE AND THE DATE YOU BEGAN EMPLOYMENT WITH THE PUBLIC HOUSING ADMINISTRATION, THE LATTER AGENCY REQUESTED THE AIR FORCE, AND THE AIR FORCE AGREED, TO RETAIN YOU ON THEIR ROLLS IN A LEAVE WITHOUT PAY STATUS UNTIL YOU BECOME AVAILABLE FOR DUTY WITH THE P.H.A., OSTENSIBLY FOR THE PURPOSE OF PREVENTING A BREAK IN SERVICE. A SIMILAR AGREEMENT HAD BEEN MADE WITH THE NAVY DEPARTMENT WHEN YOU WERE CONSIDERING TRANSFERRING TO THAT DEPARTMENT. YOU WERE AWARE OF SUCH AGREEMENTS BECAUSE AFTER YOUR RETURN TO GERMANY IN JUNE 1959, OSTENSIBLY FOR THE PURPOSE OF ARRANGING FOR THE SHIPMENT OF YOUR EFFECTS TO GUAM, YOU ONLY REQUESTED THAT ANNUAL LEAVE BE GRANTED TO YOU TO JULY 5, 1959. YOU AGAIN RETURNED TO THE UNITED STATES ON JUNE 29, 1959, AND THE AIR FORCE REGARDED YOUR ACTIVE SERVICE AS HAVING BEEN TERMINATED. YOU WERE PICKED UP ON THE ROLLS OF THE PUBLIC HOUSING ADMINISTRATION ON AUGUST 10, 1959. DURING THE INTERIM YOU WERE RETAINED ON THE ROLLS OF THE AIR FORCE IN A LEAVE WITHOUT PAY STATUS. THE ADMINISTRATIVE OFFICE HAS REPORTED THAT YOU DID NOT REQUEST ADDITIONAL ANNUAL OR SICK LEAVE AT THE TIME YOU DECLINED THE POSITION IN GUAM. THE EVIDENCE INDICATES THAT YOU FIRST REQUESTED SICK LEAVE BY LETTER DATED JULY 14, 1959. YOUR REQUEST WAS FOR SICK LEAVE TO COMMENCE JULY 13, 1959. ALTHOUGH YOU SAID IN YOUR LETTER OF JULY 14, 1959, THAT YOU HAD BEEN IN AN ANNUAL LEAVE STATUS FROM JUNE 29, TO JULY 10, 1959, YOU SAY IN YOUR LETTER OF NOVEMBER 24, 1959, THAT YOU HAD REQUESTED ANNUAL LEAVE UNTIL JULY 5, WITH THE INTENTION OF YOUR BEING CARRIED IN A LEAVE WITHOUT PAY STATUS FROM THAT DATE UNTIL YOUR LEAVE RECORDS COULD BE REVISED TO SHOW TRAVEL STATUS ON THE NAVY DEPARTMENT'S ROLLS SUBSEQUENT TO YOUR DEPARTURE FROM NEW YORK. SUCH STATUS WAS NEVER COMMENCED. ON AUGUST 20, 1959, YOU NOTIFIED THE AIR FORCE THAT YOU HAD BEGUN EMPLOYMENT WITH THE P.H.A. AND YOU REQUESTED 40 HOURS ANNUAL LEAVE FOR THE PERIOD JULY 6, TO JULY 10, 1959, AND 160 HOURS SICK LEAVE FOR THE PERIOD JULY 13 UNTIL AUGUST 8, 1959. SINCE FINAL ACTION HAD ALREADY BEEN TAKEN TO TERMINATE YOUR ACTIVE SERVICE WITH THE AIR FORCE AND INASMUCH AS YOU WERE IN A LEAVE WITHOUT PAY STATUS WITH THE AIR FORCE WITHOUT ANY INDICATION OF INTENT TO RETURN TO A DUTY STATUS WITH THAT ORGANIZATION, PAYMENT FOR THE LEAVE REQUESTED WAS DENIED.

YOU REPEATEDLY STATE IN YOUR CORRESPONDENCE THAT SINCE YOU WERE ON THE ROLLS OF THE AIR FORCE DURING THE PERIOD INVOLVED IN YOUR CLAIM YOU WERE ENTITLED TO THE SICK LEAVE IN QUESTION. HOWEVER, AT THE TIME YOU WERE IN A LEAVE WITHOUT PAY STATUS AND NOT IN A DUTY STATUS. IN THAT CONNECTION WE HAVE HELD THAT THE GRANTING OF SICK LEAVE IS THE EXCUSING ON ACCOUNT OF ILLNESS OF AN EMPLOYEE FROM HIS NORMAL DUTIES WITHOUT LOSS OF PAY AND IF THERE ARE NO DUTIES FOR THE EMPLOYEE TO PERFORM AND HE IS IN A LEAVE WITHOUT PAY STATUS, IT WOULD BE IMPROPER TO TERMINATE THE NONPAY STATUS PRIMARILY FOR THE PURPOSE OF PLACING THE EMPLOYEE IN A SICK LEAVE WITH PAY STATUS. SEE 27 COMP. GEN. 227, AT PAGE 231.

FURTHERMORE SICK LEAVE CAN BE GRANTED ONLY IN KIND, THAT IS, A PERMISSION TO BE ABSENT FROM A DUTY STATUS BECAUSE OF ILLNESS, AND WHEN NOT SO GRANTED ADMINISTRATIVELY NO PAYMENT CAN BE MADE THEREFOR. B 122201, JANUARY 7, 1955.

BECAUSE OF THE FOREGOING, THE DISALLOWANCE OF YOUR CLAIM WAS PROPER AND, UPON REVIEW, THAT ACTION IS SUSTAINED.