B-147217, DEC. 1, 1961

B-147217, DEC. 1, 1961

TO PAUL G. SMITH, M.D.:

ON NOVEMBER 1, 1961, YOU REQUESTED REVIEW OF OUR OFFICE SETTLEMENT OF OCTOBER 9, 1961, WHICH DISALLOWED YOUR CLAIM FOR THE ACCRUED ANNUAL LEAVE REMAINING TO YOUR CREDIT AFTER YOUR TRANSFER FROM THE VETERANS ADMINISTRATION TO THE PUBLIC HEALTH SERVICE.

AS A BASIS FOR REVIEW YOU SUBMIT A COPY OF OUR SETTLEMENT OF APRIL 29, 1959, WHICH AUTHORIZED PAYMENT FOR SIMILAR LEAVE IN THE CASE OF MR. ABRAHAM W. FUCHS. LIKE YOURSELF, MR. FUCHS' ANNUAL LEAVE ACCOUNT WAS SUBJECT TO ADJUSTMENT UPON HIS EMPLOYMENT IN A POSITION UNDER A LEAVE SYSTEM DIFFERENT FROM THAT IN WHICH THE ANNUAL LEAVE WAS EARNED.

THE FACTS GIVING RISE TO YOUR CLAIM ARE AS FOLLOWS. EFFECTIVE JUNE 30, 1961, YOU RESIGNED YOUR POSITION WITH THE VETERANS ADMINISTRATION TO ACCEPT ONE THAT HAD BEEN OFFERED YOU BY THE U.S. PUBLIC HEALTH SERVICE. EFFECTIVE JUNE 8, 1961, YOU WERE APPOINTED A SURGEON WITH THE PUBLIC HEALTH SERVICE AND ORDERED TO ACTIVE DUTY ON JULY 1, 1961. ON THE DATE OF YOUR RESIGNATION FROM THE VETERANS ADMINISTRATION YOU HAD TO YOUR CREDIT 100 DAYS OF ACCRUED ANNUAL LEAVE, 75 OF WHICH WERE TRANSFERRED TO THE PUBLIC HEALTH SERVICE POSITION. THERE WAS NO BREAK IN SERVICE BETWEEN THE TWO POSITIONS. YOUR CLAIM REPRESENTS THE 25 DAYS ACCRUED ANNUAL LEAVE REMAINING TO YOUR CREDIT WHEN YOU TRANSFERRED TO THE PUBLIC HEALTH SERVICE.

SECTION 30.701 (C) OF THE ANNUAL AND SICK LEAVE REGULATIONS PROVIDES:

"WHEN AN EMPLOYEE TRANSFERS TO A POSITION UNDER A DIFFERENT LEAVE SYSTEM TO WHICH HE CAN TRANSFER ONLY A PART OF HIS ANNUAL LEAVE, THE UNTRANSFERRED LEAVE SHALL BE RECREDITED TO HIM IF HE RETURNS TO THE LEAVE SYSTEM UNDER WHICH IT WAS EARNED, WITHOUT A BREAK IN SERVICE OF MORE THAN 52 CONTINUOUS CALENDAR WEEKS.'

THE ABOVE REGULATION MAKES NO PROVISION FOR PAYMENT FOR THE LEAVE WHICH CANNOT BE TRANSFERRED WITH THE EMPLOYEE. MOREOVER THE LUMP-SUM LEAVE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B, WHICH IS THE ACT AUTHORIZING PAYMENT FOR ACCRUED LEAVE GENERALLY, PROVIDES FOR PAYMENT OF LEAVE ONLY UPON SEPARATION FROM THE SERVICE.

THE IMPORTANT DISTINCTION BETWEEN YOUR CASE AND THAT OF MR. FUCHS IS THAT PAYMENT WAS AUTHORIZED TO HIM BECAUSE OF HIS RETIREMENT FROM THE PUBLIC HEALTH SERVICE PRIOR TO EMPLOYMENT BY THE INTERNATIONAL COOPERATION ADMINISTRATION. THE PUBLIC HEALTH SERVICE HAS ITS OWN STATUTE SPECIFICALLY AUTHORIZING PAYMENT FOR LEAVE UPON RETIREMENT WHICH WE VIEWED AS A SUFFICIENT BASIS FOR PAYMENT OF LEAVE WHICH COULD NOT BE TRANSFERRED WITH MR. FUCHS.

ACCORDINGLY, WE MUST SUSTAIN THE DISALLOWANCE OF YOUR CLAIM FOR THE 25 DAYS OF ACCRUED ANNUAL LEAVE WHICH REMAINED TO YOUR CREDIT IN THE VETERANS ADMINISTRATION AFTER EMPLOYMENT IN THE PUBLIC HEALTH SERVICE.