B-145823, JUN. 19, 1961

B-145823: Jun 19, 1961

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WE HAVE RECEIVED A LETTER DATED APRIL 18. SAWYER WAS RETURNED TO THE UNITED STATES FROM HIS OVERSEAS POST AND THAT HE WAS GIVEN THE REQUIRED MEDICAL EXAMINATION WHICH REVEALED THE NEED FOR HOSPITALIZATION AND TREATMENT. HE WAS ADMITTED TO THE HOSPITAL FEBRUARY 1. CLEARED HIM FOR SEPARATION SINCE HE WAS DISQUALIFIED FOR OVERSEAS SERVICE. ADMINISTRATIVE STEPS WERE THEN TAKEN TO EFFECT HIS SEPARATION. SAWYER SAYS THAT HE WAS SEPARATED JULY 29. HE FURTHER ADVISES THAT THE SEPARATION DATE WAS ADMINISTRATIVELY CHANGED FROM JULY 29 TO AUGUST 16. TO ALLOW HIM TO TAKE THE CURRENT ANNUAL LEAVE ON THE BASIS OF AN AGENCY REGULATION WHICH PROVIDES THAT AN EMPLOYEE WILL NOT BE SEPARATED "UNTIL HE HAS HAD AN OPPORTUNITY TO TAKE THE ANNUAL LEAVE FOR WHICH HE CANNOT RECEIVE LUMP-SUM PAYMENT AND SUCH SICK LEAVE AS APPROPRIATE AND AVAILABLE.'.

B-145823, JUN. 19, 1961

TO MRS. MARY C. ROBERTS, AUTHORIZED CERTIFYING OFFICER, INTERNATIONAL COOPERATION DMINISTRATION:

YOUR LETTER OF MAY 5, 1961, REQUESTS OUR DECISION AS TO THE PROPRIETY OF PAYMENT OF COMPENSATION, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, TO MR. RAYMOND SAWYER, A FORMER EMPLOYEE, FOR UNUSED SICK LEAVE-- - 216 HOURS--- REMAINING TO HIS CREDIT AT THE TIME OF SEPARATION. WE HAVE RECEIVED A LETTER DATED APRIL 18, 1961, FROM MR. SAWYER FURNISHING DETAILED INFORMATION CONCERNING THE MATTER.

THE RECORD SHOWS THAT MR. SAWYER WAS RETURNED TO THE UNITED STATES FROM HIS OVERSEAS POST AND THAT HE WAS GIVEN THE REQUIRED MEDICAL EXAMINATION WHICH REVEALED THE NEED FOR HOSPITALIZATION AND TREATMENT. HE WAS ADMITTED TO THE HOSPITAL FEBRUARY 1, 1960. ON MARCH 9, 1960, THE MEDICAL DIRECTOR, DEPARTMENT OF STATE, DISQUALIFIED HIM FOR FURTHER FOREIGN SERVICE. MR. SAWYER APPLIED FOR DISABILITY RETIREMENT APRIL 27, 1960. MAY 2, 1960, THE MEDICAL DIVISION, DEPARTMENT OF STATE, CLEARED HIM FOR SEPARATION SINCE HE WAS DISQUALIFIED FOR OVERSEAS SERVICE. ON JUNE 13, 1960, THE UNITED STATES CIVIL SERVICE COMMISSION REJECTED HIS APPLICATION FOR DISABILITY RETIREMENT. ADMINISTRATIVE STEPS WERE THEN TAKEN TO EFFECT HIS SEPARATION. MR. SAWYER SAYS THAT HE WAS SEPARATED JULY 29, 1960, BUT THAT HE APPEALED THE ACTION POINTING OUT, AMONG OTHER THINGS, THAT HE HAD SUBSTANTIAL SICK LEAVE AND CURRENT ACCRUED ANNUAL LEAVE THAT COULD NOT BE PAID FOR IN THE LUMP-SUM PAYMENT. HE FURTHER ADVISES THAT THE SEPARATION DATE WAS ADMINISTRATIVELY CHANGED FROM JULY 29 TO AUGUST 16, 1960, TO ALLOW HIM TO TAKE THE CURRENT ANNUAL LEAVE ON THE BASIS OF AN AGENCY REGULATION WHICH PROVIDES THAT AN EMPLOYEE WILL NOT BE SEPARATED "UNTIL HE HAS HAD AN OPPORTUNITY TO TAKE THE ANNUAL LEAVE FOR WHICH HE CANNOT RECEIVE LUMP-SUM PAYMENT AND SUCH SICK LEAVE AS APPROPRIATE AND AVAILABLE.' HOWEVER, IT WAS ADMINISTRATIVELY DETERMINED THAT HE COULD NOT BE GRANTED THE REST OF HIS SICK LEAVE AND HE WAS SEPARATED ON AUGUST 16, 1960, BECAUSE OF HIS NOT BEING ELIGIBLE FOR REASSIGNMENT OVERSEAS.

THE RECORD FURTHER SHOWS THAT MR. SAWYER WAS KEPT IN A SICK OR ANNUAL LEAVE STATUS OR TEMPORARY DUTY STATUS FROM FEBRUARY 1 TO AUGUST 16, 1960. HE APPEALED THE ACTION OF THE CIVIL SERVICE COMMISSION IN DISALLOWING HIS APPLICATION FOR DISABILITY RETIREMENT. ON DECEMBER 6, 1960, THE BOARD OF APPEALS AND REVIEW AFFIRMED THE COMMISSION'S ACTION. HE AGAIN APPEALED AND ON APRIL 4, 1961, THE CLAIMS DIVISION, BUREAU OF RETIREMENT AND INSURANCE OF THE COMMISSION APPROVED THE APPLICATION FOR ANNUITY ON ACCOUNT OF DISABILITY. SUBSEQUENT TO THE APPROVAL OF HIS RETIREMENT EFFECTIVE AUGUST 17, 1960, MR. SAWYER AGAIN REQUESTED THAT HIS RECORDS BE CORRECTED TO ALLOW HIM COMPENSATION FOR THE 216 HOURS OF SICK LEAVE UNUSED AT THE TIME OF SEPARATION. SUCH ACTION ON HIS PART IS THE BASIS FOR THE PRESENT SUBMISSION.

INTERNATIONAL COOPERATION ADMINISTRATION MANUAL ORDER NO. 442.5, DATED APRIL 6, 1960, PARAGRAPH V.B., IN FORCE AND EFFECT AT THE TIME OF SEPARATION, READS, IN PERTINENT PART, AS FOLLOWS:

"1. AN ICA EMPLOYEE WHO IS ILL OR DISABLED MAY BE GRANTED ALL CURRENT ACCRUED AND ACCUMULATED SICK LEAVE DUE HIM * * *.

"3. IF AN EMPLOYEE APPLIES FOR RETIREMENT BECAUSE OF DISABILITY WHILE ON SICK LEAVE AND IF RETIREMENT IS APPROVED BY THE UNITED STATES CIVIL SERVICE COMMISSION, THE EFFECTIVE DATE OF RETIREMENT IS NORMALLY AT THE END OF THE MONTH FOLLOWING APPROVAL OR AT THE END OF THE MONTH FOLLOWING THE DATE OF EXPIRATION OF HIS CURRENT ACCRUED AND ACCUMULATED SICK LEAVE, WHICHEVER IS LATER * * *.'

UNDER THE FOREGOING REGULATIONS THE GRANT OF SICK LEAVE IS PERMISSIVE. MOREOVER, WE NOTE THAT THE REGULATION PREVIOUSLY CITED BY MR. SAWYER AS A BASIS FOR CHANGING HIS ORIGINAL SEPARATION DATE TO PERMIT THE GRANTING OF ADDITIONAL ANNUAL LEAVE (WHICH ALSO REFERS TO SICK LEAVE) ALTHOUGH MANDATORY FOR THE GRANTING OF ANNUAL LEAVE IS LIKEWISE PERMISSIVE SO FAR AS IT CONCERNS THE GRANTING OF SICK LEAVE. IN OTHER WORDS, THE AMOUNT OF SICK LEAVE TO BE GRANTED UNDER THE CIRCUMSTANCES WAS DISCRETIONARY WITH THE INTERNATIONAL COOPERATION ADMINISTRATION. B-122744, APRIL 11, 1955.

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION CONTAIN NO PROHIBITION AGAINST THE SEPARATION OF AN EMPLOYEE WHO HAS APPLIED FOR DISABILITY RETIREMENT. B-119670, MAY 10, 1954. FURTHERMORE, THERE IS NOTHING IN THE RECORD TO INDICATE THAT AN ADMINISTRATIVE ERROR WAS MADE IN SEPARATING MR. SAWYER ON AUGUST 16, 1960, NOR DOES THE RECORD DISCLOSE ANY OVERSIGHT IN THE PROCESSING OF THE SEPARATION ACTION. ON THE CONTRARY IT APPEARS THAT THE DATE OF SEPARATION WAS FIXED AFTER FULL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES. THEREFORE, WE FIND NO BASIS FOR RESTORING MR. SAWYER TO A PAY STATUS FOR ANY PERIOD SUBSEQUENT TO THE DATE OF HIS SEPARATION ON AUGUST 16, 1960, FOR THE PURPOSE OF GRANTING THE 216 HOURS OF SICK LEAVE. 33 COMP. GEN. 422 AND CASES CITED.

MR. SAWYER HAS BEEN ADVISED THAT OUR DECISION HAS BEEN RENDERED TO YOU AND THAT YOU WILL ADVISE HIM OF THE TENOR THEREOF AT AN EARLY DATE.