B-155994, FEB. 11, 1965

B-155994: Feb 11, 1965

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YOU SAY HE WAS "SEPARATED (TERMINATION DISPLACEMENT)" AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE. 1951) HE WAS REAPPOINTED ON SEPTEMBER 4. SUCH AS YOU REQUEST IN THIS MATTER ORDINARILY SHOULD HAVE BEEN REQUESTED BY THE HEAD OF THE AGENCY OR BY A DISBURSING OFFICER OR A CERTIFYING OFFICER. 31 U.S.C. 74 (THIRD PARAGRAPH). WE HAVE DETERMINED TO RENDER OUR DECISION TO YOU IN THIS PARTICULAR INSTANCE. THE EMPLOYEE'S RIGHTS TO ACCUMULATE AND TO BE RECREDITED WITH SICK LEAVE EARNED AT THE TIMES HERE IN QUESTION WERE SUBJECT TO THE SICK LEAVE ACT OF 1936. WHEN AN EMPLOYEE IS APPOINTED. 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.

B-155994, FEB. 11, 1965

TO MR. C. E. CARSON, CHIEF, PERSONNEL OPERATIONS SECTION, INTERNAL REVENUE SERVICE:

IN YOUR LETTER OF JANUARY 21, 1965, WITH ENCLOSURES, REFERENCE AD:P:PO, YOU REQUEST A DECISION WHETHER, IN THE CIRCUMSTANCES YOU DESCRIBE, MR. DUWARD E. DUVALL SHOULD BE RECREDITED WITH THE 720 HOURS OF SICK LEAVE ACCUMULATED BUT NOT USED BY HIM PRIOR TO JULY 15, 1950.

ON JULY 15, 1950, YOU SAY HE WAS "SEPARATED (TERMINATION DISPLACEMENT)" AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, ALCOHOL TAX UNIT. LESS THAN 90 DAYS THEREAFTER, ON OCTOBER 6, 1950, HE RECEIVED A PROBATIONAL APPOINTMENT IN THE FEDERAL SECURITY AGENCY, PUBLIC HEALTH SERVICE HOSPITAL, LEXINGTON, KENTUCKY. AFTER HE RESIGNED FROM THAT AGENCY (SEPTEMBER 1, 1951) HE WAS REAPPOINTED ON SEPTEMBER 4, 1951, IN THE INTERNAL REVENUE SERVICE, ALCOHOL TAX UNIT.

AN OFFICIAL DECISION, SUCH AS YOU REQUEST IN THIS MATTER ORDINARILY SHOULD HAVE BEEN REQUESTED BY THE HEAD OF THE AGENCY OR BY A DISBURSING OFFICER OR A CERTIFYING OFFICER. 31 U.S.C. 74 (THIRD PARAGRAPH), 82C, 82D. HOWEVER, AS THE MATTER MAY EVENTUALLY INVOLVE A QUESTION OF GRANTING MR. DUVALL SICK LEAVE WITH PAY, AND IN ORDER TO AVOID FURTHER DELAY IN THE MATTER, WE HAVE DETERMINED TO RENDER OUR DECISION TO YOU IN THIS PARTICULAR INSTANCE.

THE EMPLOYEE'S RIGHTS TO ACCUMULATE AND TO BE RECREDITED WITH SICK LEAVE EARNED AT THE TIMES HERE IN QUESTION WERE SUBJECT TO THE SICK LEAVE ACT OF 1936, 5 U.S.C. 30G, 30K, AND THE REGULATION ISSUED PURSUANT THERETO. THE 1936 ACT PRECEDED THE ENACTMENT OF THE LEAVE ACT OF OCTOBER 30, 1951, EFFECTIVE JANUARY 6, 1952.

THE FOLLOWING REGULATIONS CONTAINED IN CHAPTER 30, TITLE 5, CODE OF FEDERAL REGULATIONS (1949 EDITION), AS AMENDED, APPEAR APPLICABLE TO THE SITUATION HERE INVOLVED.

"SEC. 30.302 ACCUMULATED SICK LEAVE. UNUSED SICK LEAVE SHALL BE CUMULATIVE AND AVAILABLE FOR FUTURE USE: PROVIDED, THAT THE BALANCE TO THE CREDIT OF THE EMPLOYEE AT THE END OF ANY MONTH SHALL NOT EXCEED 90 DAYS FOR FULL-TIME EMPLOYEES OR 720 HOURS FOR PART-TIME EMPLOYEES.' (15 FED. REG. 3713.)

"SEC. 30.403 NONPAY STATUS. WHENEVER A PERMANENT FULL-TIME EMPLOYEE'S ABSENCE IN A NONPAY STATUS TOTALS THE EQUIVALENT OF THE BASE-PAY HOURS IN 1 BI-WEEKLY PAY PERIOD, THE CREDITS FOR ANNUAL LEAVE SHALL BE REDUCED 1 DAY AND FOR SICK LEAVE 5/8 DAY FOR EACH SUCH PERIOD. THE TOTAL DEDUCTIONS IN SICK LEAVE CREDITS ON ACCOUNT OF NONPAY STATUS IN ANY ONE CALENDAR YEAR SHALL NOT EXCEED 15 DAYS.' (15 FED. REG. 3713.)

"SEC. 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 OR DISPLACEMENT ORDER OF THE CIVIL SERVICE COMMISSION, 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 OR CHARGE TO THE EMPLOYEE.

"/B) IF THE POSITION TO WHICH HE IS APPOINTED, REAPPOINTED, OR TRANSFERRED IS NOT WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE EMPLOYEE SHALL BE FURNISHED WITH A STATEMENT OF HIS SICK LEAVE ACCOUNT AND IF HE IS SUBSEQUENTLY APPOINTED, REAPPOINTED, OR TRANSFERRED TO A POSITION WITHIN THE PURVIEW OF SUCH ACTS, WITH NO BREAK IN SERVICE OR A BREAK OF LESS THAN 90 DAYS, OR WITHIN ONE YEAR AFTER THE NOTICE OF PROPOSED SEPARATION FROM THE FORMER POSITION WITHIN THE PURVIEW OF THE LEAVE ACTS, THE LEAVE SHOWN TO BE DUE SHALL BE CREDITED TO HIS ACCOUNT.' (13 FED. REG. 7816.)

IT APPEARS THAT THE 90-DAY (720 HOURS) LIMITATION ON THE BALANCE OF ACCUMULATED SICK LEAVE CREDIT WAS APPLICABLE TO MR. DUVALL, IN ACCORDANCE WITH SECTION 30.302 "AT THE END OF ANY MONTH," NAMELY, FROM MAY 31, 1950, TO DECEMBER 31, 1951.

SINCE THE BREAK IN SERVICE, FROM JULY 16, 1950, TO OCTOBER 6, 1950, COMES WITHIN THE RULE OF SECTION 30.408, OUR VIEW IS THAT ON SEPTEMBER 4, 1951, MR. DUVALL SHOULD HAVE BEEN RECREDITED WITH THE HOURS OF SICK LEAVE HE HAD ACCUMULATED AS OF JULY 15, 1950, APPARENTLY 720. HOWEVER, THE RECORD IS SILENT AS TO WHY THE PUBLIC HEALTH SERVICE FAILED TO CREDIT HIM WITH SUCH SICK LEAVE. MOREOVER, THERE IS NO RECORD OF THE LEAVE ACCRUED AND USED DURING THE PERIOD OF HIS EMPLOYMENT WITH THE PUBLIC HEALTH SERVICE BETWEEN OCTOBER 6, 1950, AND JANUARY 1, 1951. ASSUMING THAT THE TRANSFER OF LEAVE WAS NOT MADE BECAUSE OF ERROR AND THAT THE EMPLOYEE WAS NOT GRANTED MORE SICK LEAVE THAN ACCRUED DURING THE PERIOD OCTOBER 6, 1950, TO JANUARY 1, 1951, WE PERCEIVE OF NO REASON WHY THE 720 HOURS OF SICK LEAVE MAY NOT NOW BE CREDITED TO HIS ACCOUNT AS OF SEPTEMBER 4, 1951, THE DATE HE WAS REEMPLOYED BY YOUR AGENCY.