B-152451, NOVEMBER 8, 1963, 43 COMP. GEN. 439

B-152451: Nov 8, 1963

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WHO WAS ORDERED TO ACTIVE DUTY AS A RESERVE OFFICER OF THE ARMY ON AUGUST 1. WHO WAS REEMPLOYED BY YOUR AGENCY AS A CIVILIAN ON SEPTEMBER 3. YOU SAY THE RESERVE OFFICER IN QUESTION WAS RETIRED FOR PHYSICAL DISABILITY ON AUGUST 31. THAT RECOGNIZING HIS ENTRANCE ON DUTY WOULD BE DELAYED BY REASON OF TREATMENT YOU DETERMINED THAT HE WAS QUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION AND AUTHORIZED HIS REEMPLOYMENT. IT IS INDICATED THAT THE INDIVIDUAL HAD 720 HOURS OF SICK LEAVE TO HIS CREDIT AT THE TIME HE ENTERED ON ACTIVE DUTY IN 1951. WHICH WAS PLACED TO HIS CREDIT ON REEMPLOYMENT IN ACCORDANCE WITH SECTION 30.704 (B) OF THE CIVIL SERVICE REGULATIONS. NUTA WAS IN A VERY CRITICAL CONDITION AT THE TIME OF YOUR REEMPLOYMENT ACTION AND THAT THE POSSIBILITY OF HIS RETURNING TO AN ACTUAL DUTY STATUS IN A CIVILIAN POSITION WAS RATHER REMOTE.

B-152451, NOVEMBER 8, 1963, 43 COMP. GEN. 439

LEAVES OF ABSENCE - SICK - RECREDIT OF PRIOR LEAVE - REEMPLOYMENT AFTER MILITARY SERVICE NOTWITHSTANDING THAT UPON REEMPLOYMENT OF A FORMER CIVILIAN EMPLOYEE WHILE STILL HOSPITALIZED SUBSEQUENT TO DISABILITY RETIREMENT AFTER MORE THAN 12 YEARS OF ACTIVE SERVICE AS A RESERVE OFFICER HE PERFORMED NO ACTIVE DUTY BEFORE HIS DEATH SHORTLY AFTER REEMPLOYMENT, THE SICK LEAVE PLACED TO HIS CREDIT ON REEMPLOYMENT IN ACCORDANCE WITH SECTION 30.714 (B) OF THE CIVIL SERVICE REGULATIONS MAY BE GRANTED, IRRESPECTIVE OF THE FORFEITURE OF REEMPLOYMENT BENEFITS UNDER SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF 1948, AS AMENDED (50 U.S.C. APP. 459 (G) (, THE EMPLOYEE HAVING SERVED IN EXCESS OF THE TIME LIMITATION PRESCRIBED IN THAT ACT, FOR AS A RESERVIST, THE EMPLOYEE PURSUANT TO 50 U.S.C. 30R (B) HAD A RIGHT TO RESTORATION WITHOUT ANY TIME LIMITATION TO THE CIVILIAN POSITION HELD BY HIM WHEN ORDERED TO MILITARY DUTY.

TO THE DIRECTOR, SELECTIVE SERVICE SYSTEM, NOVEMBER 8, 1963:

YOUR LETTER OF SEPTEMBER 10, 1963, REQUESTS OUR DECISION AS TO WHETHER YOU MAY GRANT SICK LEAVE TO A FORMER CIVILIAN EMPLOYEE OF THE SELECTIVE SERVICE SYSTEM, ALEXANDER NUTA, WHO WAS ORDERED TO ACTIVE DUTY AS A RESERVE OFFICER OF THE ARMY ON AUGUST 1, 1951, AND WHO WAS REEMPLOYED BY YOUR AGENCY AS A CIVILIAN ON SEPTEMBER 3, 1963.

YOU SAY THE RESERVE OFFICER IN QUESTION WAS RETIRED FOR PHYSICAL DISABILITY ON AUGUST 31, 1963, WHILE A PATIENT AT WALTER REED HOSPITAL; THAT HE THEN APPLIED FOR REEMPLOYMENT IN HIS CIVILIAN POSITION; AND THAT RECOGNIZING HIS ENTRANCE ON DUTY WOULD BE DELAYED BY REASON OF TREATMENT YOU DETERMINED THAT HE WAS QUALIFIED TO PERFORM THE DUTIES OF THE CIVILIAN POSITION AND AUTHORIZED HIS REEMPLOYMENT.

IT IS INDICATED THAT THE INDIVIDUAL HAD 720 HOURS OF SICK LEAVE TO HIS CREDIT AT THE TIME HE ENTERED ON ACTIVE DUTY IN 1951, WHICH WAS PLACED TO HIS CREDIT ON REEMPLOYMENT IN ACCORDANCE WITH SECTION 30.704 (B) OF THE CIVIL SERVICE REGULATIONS. YOU DESIRE TO KNOW WHETHER THE RECREDITED SICK LEAVE MAY BE GRANTED IN THIS CASE ON THE BASIS OF THE DECISION IN 26 COMP. GEN. 948.

WE UNDERSTAND THAT MR. NUTA WAS IN A VERY CRITICAL CONDITION AT THE TIME OF YOUR REEMPLOYMENT ACTION AND THAT THE POSSIBILITY OF HIS RETURNING TO AN ACTUAL DUTY STATUS IN A CIVILIAN POSITION WAS RATHER REMOTE; ALSO, THAT MR. NUTA DIED ON SEPTEMBER 15 OR 16, 1963, WITHOUT EVER HAVING RENDERED ANY SERVICE UNDER THE REEMPLOYMENT.

OUR DECISION IN 26 COMP. GEN. 948, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

PROVIDED IT BE ADMINISTRATIVELY DETERMINED THAT THE PHYSICAL CONDITION OF AN EMPLOYEE ENTITLED TO REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, UPON THE TERMINATION OF HIS SERVICES WITH THE ARMED FORCES IS NOT SUCH AS WOULD RENDER HIM UNQUALIFIED TO PERFORM THE DUTIES OF HIS FORMER POSITION, SUCH EMPLOYEE MAY BE RESTORED TO DUTY, AND, UPON PROPER APPLICATION THEREFOR, IMMEDIATELY MAY BE GRANTED SICK LEAVE TO THE EXTENT AUTHORIZED BY THE CURRENT LEAVE REGULATIONS. 24 COMP. GEN. 357, AMPLIFIED.

THE ABOVE DECISION WAS PREDICATED ON A RIGHT TO RESTORATION OF AN EMPLOYEE TO HIS FORMER POSITION OR ONE OF LIKE SENIORITY, STATUS AND PAY UNDER THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 50 U.S.C. APP. 301 (1946 ED.) HERE THE EMPLOYEE HAD PRESUMABLY FORFEITED HIS RIGHT TO REEMPLOYMENT BENEFITS UNDER SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF 1948, 62 STAT. 614, AS AMENDED, 50 U.S.C. APP. 459 (G), THE SUCCESSOR TO THE 1940 ACT, SINCE HE SERVED ON ACTIVE DUTY IN EXCESS OF THE TIME LIMIT SPECIFIED IN SUCH ACT AND THERE BEING NO INDICATION THAT HE COULD NOT HAVE PROCURED HIS RELEASE AFTER 4 YEARS IF HE SO DESIRED.

HOWEVER, IRRESPECTIVE OF THE PROVISIONS OF SECTION 9 OF THE UNIVERSAL MILITARY TRAINING AND SERVICE ACT OF 1948, AS AMENDED, THE EMPLOYEE HERE INVOLVED WAS ENTITLED TO A SEPARATE RIGHT OF RESTORATION UNDER 5 U.S.C. 30R (B), WHICH REQUIRES THAT EACH RESERVIST BE RESTORED TO THE POSITION HELD BY HIM WHEN ORDERED TO DUTY. SINCE THAT STATUTE CONTAINS NO TIME LIMITATION OR OTHER QUALIFICATION IN RESPECT OF SUCH RESTORATION WE BELIEVE THAT THE SICK LEAVE RECREDITED TO THE EMPLOYEE'S ACCOUNT UPON RESTORATION MAY BE GRANTED, REGARDLESS OF THE FACT THAT THERE WAS NO ACTUAL PERFORMANCE OF DUTIES IN THE POSITION TO WHICH RESTORED AFTER MILITARY DUTY.

THEREFORE, YOUR QUESTION AS TO WHETHER SICK LEAVE MAY BE GRANTED IN THIS CASE IS ANSWERED IN THE AFFIRMATIVE.