B-152682, JAN. 31, 1964
Highlights
REQUESTS RECONSIDERATION OF YOUR CLAIM FOR PAYMENT OF SICK LEAVE WHICH WAS DISALLOWED BY OFFICE SETTLEMENT OF NOVEMBER 15. THE FACTS ARE THAT YOU WERE EMPLOYED BY THE BUREAU OF PRISONS AS CHIEF ENGINEER AT THE FEDERAL REFORMATORY. WERE HOSPITALIZED FROM MAY 29 THROUGH JUNE 29. THE MATTER WAS DISCUSSED BY YOU WITH AGENCY REPRESENTATIVES ON AUGUST 15. YOU BECAME ILL AGAIN AND WERE AGAIN HOSPITALIZED. YOU WERE SEPARATED EFFECTIVE OCTOBER 1. SICK LEAVE IS GRANTED IN KIND. AFTER AN EMPLOYEE BECOMES LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE THERE IS NO AUTHORITY TO RESTORE HIM TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING HIM LEAVE WHICH HAD ACCRUED BUT WAS NOT TAKEN BEFORE SEPARATION.
B-152682, JAN. 31, 1964
TO MR. DENVER C. BRADY:
YOUR LETTER OF NOVEMBER 18, 1963, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR PAYMENT OF SICK LEAVE WHICH WAS DISALLOWED BY OFFICE SETTLEMENT OF NOVEMBER 15, 1963.
STATED BRIEFLY, THE FACTS ARE THAT YOU WERE EMPLOYED BY THE BUREAU OF PRISONS AS CHIEF ENGINEER AT THE FEDERAL REFORMATORY, PETERSBURG, VIRGINIA. YOU SUFFERED A HEART ATTACK IN MAY 1962, WERE HOSPITALIZED FROM MAY 29 THROUGH JUNE 29, 1962, AND AGAIN FROM JULY 16 THROUGH JULY 19, 1962. YOU RETURNED TO RESTRICTED DUTY. THEREAFTER, YOU ADVISED THE BUREAU YOU WANTED TO RETIRE. THE MATTER WAS DISCUSSED BY YOU WITH AGENCY REPRESENTATIVES ON AUGUST 15, 1962, AND ON AUGUST 16, 1962, YOU MADE FORMAL APPLICATION FOR VOLUNTARY RETIREMENT EFFECTIVE OCTOBER 1, 1962, UNDER SECTION 6 (C) OF THE CIVIL SERVICE RETIREMENT ACT, 5 U.S.C. 2256 (C). THEREAFTER, YOU BECAME ILL AGAIN AND WERE AGAIN HOSPITALIZED. SEPTEMBER 4, 1962, THE CIVIL SERVICE COMMISSION NOTIFIED THE DEPARTMENT OF JUSTICE THAT YOUR RETIREMENT HAD BEEN APPROVED EFFECTIVE OCTOBER 1, 1962. YOU WERE SEPARATED EFFECTIVE OCTOBER 1, 1962.
AS STATED IN OUR DISALLOWANCE OF YOUR CLAIM, SICK LEAVE IS GRANTED IN KIND, AND AFTER AN EMPLOYEE BECOMES LEGALLY AND EFFECTIVELY SEPARATED FROM THE SERVICE THERE IS NO AUTHORITY TO RESTORE HIM TO THE STATUS OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF GRANTING HIM LEAVE WHICH HAD ACCRUED BUT WAS NOT TAKEN BEFORE SEPARATION.
YOU REQUEST RECONSIDERATION OF YOUR CLAIM ON THE GROUNDS THAT PRIOR TO SEPTEMBER 4 YOU ASKED MR. CARL NUTTER, BUSINESS MANAGER, AND ALSO MR. JENNINGS A. HALL, CHIEF, MECHANICAL SERVICE, TO REQUEST WITHDRAWAL OF YOUR RETIREMENT APPLICATION UNTIL FURTHER RECOVERY. ALSO, YOU ALLEGE THAT YOU ASKED MR. JAMES DURHAM, NOW SUPERVISOR OF EDUCATION, TO CONVEY THE SAME MESSAGE AND THAT HE DID SO BUT FAILED TO MAKE THE REQUEST OTHER THAN DELIVERY OF THE MESSAGE. THE REASON FOR THIS REQUEST WAS TO ENABLE YOU TO USE SICK LEAVE TO YOUR CREDIT DURING THE PERIOD SUBSEQUENT TO OCTOBER 1, 1962.
WE REQUESTED A FURTHER REPORT FROM THE BUREAU OF PRISONS AND A REVIEW OF YOUR CLAIM BY THE OFFICE OF THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL. THE REPORT FROM THE BUREAU OF PRISONS INCLUDED STATEMENTS BY MESSRS. HALL AND NUTTER TO THE EFFECT THAT YOU DID NOT ASK THEM TO REQUEST A WITHDRAWAL OR DEFERMENT OF YOUR RETIREMENT APPLICATION AND A STATEMENT BY MR. DURHAM THAT HE HAD TALKED WITH WARDEN GOODWYN ABOUT THE SICK LEAVE BUT DID NOT MAKE A FORMAL REQUEST THAT YOU BE GRANTED SICK LEAVE PRIOR TO RETIREMENT. WARDEN GOODWYN HAS ALSO FURNISHED A REPORT INCLUDING THE STATEMENT THAT "AT NO TIME DID ANYONE CONVEY TO ME EITHER WRITTEN OR VERBALLY THE REQUEST THAT MR. BRADY WANTED TO WITHDRAW HIS APPLICATION FOR RETIREMENT.' COPIES OF THESE STATEMENTS AND THOSE OF MR. WALSH AND DR. RICHARDS ARE ENCLOSED. THE OFFICE OF THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL HAS RECOMMENDED DISALLOWANCE OF YOUR CLAIM POINTING OUT THAT A TIMELY REQUEST TO AMEND THE RETIREMENT DATE AND TO OBTAIN SICK LEAVE WAS NOT MADE BY YOU. THUS, THE AGENCY SAYS NO ERROR OCCURRED IN SETTING THE EFFECTIVE DATE OF YOUR SEPARATION AS OCTOBER 1 AND IN DENYING YOUR REQUEST FOR SICK LEAVE.
IT HAS LONG BEEN THE RULE OF OUR OFFICE, IN CASES WHERE A CONFLICT EXISTS BETWEEN THE FACTS ALLEGED BY A CLAIMANT AND THOSE REPORTED BY THE ADMINISTRATIVE OFFICE, TO ACCEPT THE REPORT OF THE AGENCY. YOU HAVE NOT FURNISHED SUFFICIENT EVIDENCE TO SUPPORT YOUR ALLEGATIONS TO OVERCOME THE APPLICATION OF THIS RULE.
THEREFORE, AND SINCE OUR OFFICE WOULD NOT BE WARRANTED IN THE CIRCUMSTANCES IN AUTHORIZING PAYMENT FOR SICK LEAVE FOR A PERIOD SUBSEQUENT TO THE DATE OF SEPARATION AND WITHOUT AN ADMINISTRATIVE APPROVAL OF SUCH SICK LEAVE, THE DISALLOWANCE OF YOUR CLAIM MUST BE, AND IS, SUSTAINED.
IN REGARD TO YOUR QUESTION AS TO FURTHER APPEAL, THE DECISIONS OF OUR OFFICE ARE BINDING ON THE EXECUTIVE BRANCH OF THE GOVERNMENT. HOWEVER, IF YOU WISH, YOU MAY PURSUE YOUR CLAIM FURTHER BY FILING SUIT IN THE UNITED STATES COURT OF CLAIMS, WASHINGTON, D.C.
WE ARE SENDING A COPY OF THIS LETTER TO SENATOR BYRD, WHO HAS WRITTEN OUR OFFICE CONCERNING YOUR CLAIM.