B-150960, MAR. 15, 1963

B-150960: Mar 15, 1963

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YOU WERE SUBSEQUENTLY EMPLOYED WITH THE RYUKYUS COMMAND. WERE SEPARATED FROM THAT POSITION AS OF FEBRUARY 15. YOU WERE REEMPLOYED BY THE BUREAU OF EMPLOYMENT SECURITY FROM MAY 17. THE RECORD ALSO SHOWS THAT YOU WERE IN A SICK LEAVE STATUS FROM MARCH 21. AT WHICH TIME YOUR SICK LEAVE ACCRUAL WAS EXHAUSTED. YOU WERE THEN CARRIED IN AN ANNUAL LEAVE STATUS UNTIL THE DATE OF YOUR RETIREMENT FOR DISABILITY WITH THE EXCEPTION OF SICKLEAVE THAT ACCRUED DURING EACH PAY PERIOD. OR TO HAVE SUCH CREDIT TRANSFERRED UPON YOUR SUBSEQUENT REEMPLOYMENT ON APRIL 16. THE MAXIMUM BREAK IN SERVICE FOR PURPOSES OF RECREDITING UNUSED SICK LEAVE WAS 90 DAYS. THAT YOUR SEPARATION WAS IN EFFECT A REDUCTION IN FORCE ACTION AND.

B-150960, MAR. 15, 1963

TO MR. ADOLFO J. BARCENA:

YOUR LETTER OF FEBRUARY 20, 1963, REQUESTS REVIEW OF OUR SETTLEMENT OF JANUARY 22, 1963, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF UNUSED SICK LEAVE TO YOUR CREDIT UPON YOUR SEPARATION FROM THE SERVICE AS AN EMPLOYEE OF THE GOVERNMENT OF GUAM, CUSTOMS AND IMMIGRATION.

THE RECORD SHOWS YOU RESIGNED FROM YOUR POSITION AS A CUSTOMS INSPECTOR WITH THE NAVAL GOVERNMENT OF GUAM ON APRIL 29, 1950. YOU WERE SUBSEQUENTLY EMPLOYED WITH THE RYUKYUS COMMAND, OKINAWA, ON APRIL 16, 1951, AND WERE SEPARATED FROM THAT POSITION AS OF FEBRUARY 15, 1954. YOU WERE REEMPLOYED BY THE BUREAU OF EMPLOYMENT SECURITY FROM MAY 17, 1954, UNTIL THE DATE OF YOUR RETIREMENT AUGUST 14, 1959.

THE RECORD ALSO SHOWS THAT YOU WERE IN A SICK LEAVE STATUS FROM MARCH 21, 1959, THROUGH JULY 14, 1959, AT WHICH TIME YOUR SICK LEAVE ACCRUAL WAS EXHAUSTED. YOU WERE THEN CARRIED IN AN ANNUAL LEAVE STATUS UNTIL THE DATE OF YOUR RETIREMENT FOR DISABILITY WITH THE EXCEPTION OF SICKLEAVE THAT ACCRUED DURING EACH PAY PERIOD.

YOU NOW CLAIM COMPENSATION FOR THE UNUSED SICK LEAVE TO YOUR CREDIT AS OF APRIL 29, 1950, THE DATE OF YOUR SEPARATION FROM THE NAVAL GOVERNMENT OF GUAM, OR TO HAVE SUCH CREDIT TRANSFERRED UPON YOUR SUBSEQUENT REEMPLOYMENT ON APRIL 16, 1951, WITH THE RYUKYUS COMMAND, OKINAWA, AND SUBSTITUTED FOR THE ANNUAL LEAVE USED PRIOR TO YOUR RETIREMENT.

IN OUR SETTLEMENT WE SAID THAT UNDER THE REGULATIONS IN EFFECT DURING 1950 AND 1951, THE MAXIMUM BREAK IN SERVICE FOR PURPOSES OF RECREDITING UNUSED SICK LEAVE WAS 90 DAYS, EXCEPT FOR THOSE EMPLOYEES SEPARATED BY A REDUCTION IN FORCE.

ALTHOUGH THE RECORD SHOWS THE NATURE OF THE PERSONNEL ACTION WITH RESPECT TO YOUR SEPARATION ON APRIL 29, 1950, TO BE "RESIGNATION (COMPLETION OF CONTRACT)" YOU SAY IN YOUR LETTER OF FEBRUARY 20, THAT YOUR SEPARATION WAS IN EFFECT A REDUCTION IN FORCE ACTION AND, THEREFORE, UNDER THE REGULATIONS THEN IN EFFECT THE UNUSED CREDIT OF SICK LEAVE SHOULD BE TRANSFERRED SINCE YOUR REEMPLOYMENT OCCURRED WITHIN ONE YEAR OF SEPARATION.

SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS THEN IN EFFECT PROVIDED IN PART:

"30.408 DISPOSITION OF SICK LEAVE ACCOUNT ON TRANSFER. WHEN AN EMPLOYEE IS APPOINTED, REAPPOINTED, OR TRANSFERRED TO ANOTHER POSITION WITH NO BREAK IN SERVICE, OR A BREAK OF LESS THAN 90 DAYS, OR WITHIN ONE YEAR AFTER NOTICE OF PROPOSED SEPARATION BY REDUCTION IN FORCE, HIS SICK LEAVE ACCOUNT SHALL BE DISPOSED OF AS FOLLOWS:

"/A) IF THE POSITION IS WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT ON CHARGE TO THE EMPLOYEE.'

THE PERSONNEL ACTION REFERRED TO ABOVE SHOWS THAT YOUR SERVICE WAS TERMINATED PURSUANT TO THE TERMS OF YOUR EMPLOYMENT AGREEMENT AND NOT AS A RESULT OF A REDUCTION IN FORCE PROCEDURE. THUS, UNDER THE REGULATION QUOTED, YOU MUST HAVE BEEN REEMPLOYED BY THE GOVERNMENT WITHIN 90 DAYS AFTER SEPARATION TO QUALIFY FOR A RECREDIT OF YOUR SICK LEAVE. SINCE THIS CONDITION WAS NOT MET IN YOUR CASE NO RIGHT EXISTS NOW FOR RECREDITING THE ACCRUED SICK LEAVE UNUSED AT THE TIME OF YOUR RESIGNATION FROM EMPLOYMENT WITH THE NAVAL GOVERNMENT OF GUAM.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM MUST BE, AND IS, SUSTAINED.

YOU FURTHER SAY THAT YOU BELIEVE THAT YOUR DISABILITY RESULTED FROM CONDITIONS INCIDENT TO YOUR SERVICE WHILE EMPLOYED BY THE GOVERNMENT. SUCH BE THE CASE, YOUR CLAIM FOR COMPENSATION FOR THE INJURY OR DISABILITY WOULD BE FOR CONSIDERATION BY THE BUREAU OF EMPLOYEES' COMPENSATION, DEPARTMENT OF LABOR, UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES' COMPENSATION ACT OF 1916, AS AMENDED, 5 U.S.C. 751, ET SEQ. THE SECRETARY OF LABOR HAS SOLE JURISDICTION FOR THE ADMINISTRATION OF CLAIMS FILED UNDER THAT STATUTE.