B-158160, JAN. 18, 1966

B-158160: Jan 18, 1966

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THOMAS: THIS IS IN REPLY TO YOUR LETTER OF DECEMBER 9. THE EXAMINING PHYSICIAN FOUND THAT YOU WERE UNSUITED TO CONTINUE IN YOUR CAPACITY AS A POLICE GUARD AT THE NAVAL STATION. YOU WERE ALSO ADVISED AT THIS TIME THAT YOU COULD APPLY FOR DISABILITY RETIREMENT. DETERMINED THAT YOU WERE TOTALLY DISABLED FOR USEFUL AND EFFECTIVE SERVICE AND APPROVED YOUR DISABILITY RETIREMENT. YOU APPEALED THIS DETERMINATION BUT YOUR APPEAL WAS DENIED BY THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION ON NOVEMBER 5. SICK LEAVE IS FOR USE WHEN AN EMPLOYEE IS PHYSICALLY INCAPACITATED TO DO HIS JOB. SUCH RELATED REASONS ARE: "/1) EXPOSURE TO A CONTAGIOUS DISEASE THAT WOULD ENDANGER THE HEALTH OF COWORKERS.

B-158160, JAN. 18, 1966

TO MR. C. O. THOMAS:

THIS IS IN REPLY TO YOUR LETTER OF DECEMBER 9, 1965, IN WHICH YOU PROTEST THE ACTION OF THE COMMANDING OFFICER, U.S. NAVAL STATION, CHARLESTON, SOUTH CAROLINA, IN PLACING YOU ON SICK LEAVE ON APRIL 5, 1965, WITHOUT NOTICE OR CONSENT.

THE RECORD SHOWS THAT FOLLOWING A MEDICAL EXAMINATION ON MARCH 31, 1965, THE EXAMINING PHYSICIAN FOUND THAT YOU WERE UNSUITED TO CONTINUE IN YOUR CAPACITY AS A POLICE GUARD AT THE NAVAL STATION. IN ACCORDANCE WITH THIS FINDING THE COMMANDING OFFICER PLACED YOU ON SICK LEAVE ON APRIL 5, 1965. YOU WERE ALSO ADVISED AT THIS TIME THAT YOU COULD APPLY FOR DISABILITY RETIREMENT. SINCE YOU DID NOT CHOOSE TO DO SO THE ACTIVITY INITIATED A REQUEST ON YOUR BEHALF TO THE CIVIL SERVICE COMMISSION. THE COMMISSION ON SEPTEMBER 10, 1965, DETERMINED THAT YOU WERE TOTALLY DISABLED FOR USEFUL AND EFFECTIVE SERVICE AND APPROVED YOUR DISABILITY RETIREMENT. YOU APPEALED THIS DETERMINATION BUT YOUR APPEAL WAS DENIED BY THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION ON NOVEMBER 5, 1965.

WITH REGARD TO SICK LEAVE FEDERAL PERSONNEL MANUAL 630.4-2 PROVIDES IN PART AS FOLLOWS:

"A. PURPOSE. SICK LEAVE IS FOR USE WHEN AN EMPLOYEE IS PHYSICALLY INCAPACITATED TO DO HIS JOB, OR FOR RELATED REASONS. SUCH RELATED REASONS ARE:

"/1) EXPOSURE TO A CONTAGIOUS DISEASE THAT WOULD ENDANGER THE HEALTH OF COWORKERS;

"/2) PRESENCE OF CONTAGIOUS DISEASE IN AN EMPLOYEE'S IMMEDIATE FAMILY WHICH REQUIRES HIS PERSONAL CARE;

"/3) DENTAL, OPTICAL, OR MEDICAL EXAMINATION OR TREATMENT.

"B. AGENCY AUTHORITY. AN AGENCY HAS THE AUTHORITY AND RESPONSIBILITY TO DETERMINE THAT THE NATURE OF THE EMPLOYEE'S ILLNESS WAS SUCH AS TO INCAPACITATE HIM FOR HIS JOB AND THAT THE OTHER REASONS FOR WHICH SICK LEAVE IS GRANTED ARE TRUE.'

SINCE THE AGENCY HAS THE AUTHORITY AND RESPONSIBILITY TO LOOK INTO THE NATURE OF THE EMPLOYEE'S ILLNESS AND THE DEGREE OF HIS INCAPACITY IN DETERMINING HIS ENTITLEMENT TO REQUESTED SICK LEAVE IT HAS THE CONCOMITANT AUTHORITY AS SHOWN BY THE ABOVE REGULATION TO PLACE HIM ON SICK LEAVE WHEN HIS INCAPACITY TO PERFORM HIS DUTY HAS BEEN DETERMINED BY COMPETENT MEDICAL AUTHORITY. COMP. EN., B-136721, JANUARY 18, 1960, COPY ENCLOSED HEREWITH.

IN YOUR POSTCARD POSTMARKED NOVEMBER 15, 1965, IN WHICH YOU REFER TO YOUR BEING PLACED IN A LEAVE STATUS AS A VIOLATION OF 39 COMP. GEN. 154, OUR DECISION OF JANUARY 18, 1960, ABOVE, DISTINGUISHES THAT CASE ON THE GROUND THAT NO MEDICAL OFFICER HAD FOUND THE EMPLOYEE TO BE COMPLETELY DISABLED. IN YOUR CASE AS IN THE JANUARY 18, 1960, DECISION THERE WAS SUCH A FINDING.

IN YOUR LETTER OF DECEMBER 9, 1965, YOU LIKEWISE REFER TO 5 CFR 752.202 (B) (E) AND FPM SUPP. 752.1 AS BEING PERTINENT. THE FOREGOING REGULATIONS ARE CONCERNED WITH ADVERSE ACTIONS AND THE PROCEDURES TAKEN IN CONNECTION THEREWITH. SINCE ADVERSE ACTIONS ARE SERIOUS DISCIPLINARY MEASURES UNDERTAKEN IN CONTEMPLATION OF DISCHARGE, SUSPENSION OF MORE THAN THIRTY DAYS, FURLOUGH WITHOUT PAY AND REDUCTION IN RANK, THE SECTIONS THAT YOU CITED ARE NOT APPLICABLE IN A DISABILITY CASE INVOLVING SICK LEAVE.

FOR THE REASONS SET FORTH ABOVE THE ACTION OF THE ACTIVITY IN PLACING YOU ON SICK LEAVE WAS NOT IMPROPER AND, THEREFORE, NO ACTION TO ADJUST YOUR LEAVE ACCOUNT WOULD BE APPROPRIATE.