B-159803, AUGUST 12, 1966, 46 COMP. GEN. 139

B-159803: Aug 12, 1966

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AS AMENDED-AN ACT THAT PROVIDES THAT REINSTATED EMPLOYEES WILL BE CONSIDERED EMPLOYEES OF THE UNITED STATES DURING PERIODS OF ERRONEOUS SEPARATION FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE-WHO BUT FOR THE SEPARATION WOULD HAVE BEEN ELIGIBLE FOR SICK LEAVE FOR A PERIOD OF INCAPACITY. MAY HAVE THE PERIOD OF ILLNESS CHARGED TO THE SICK LEAVE RECREDITED TO HER ACCOUNT UPON REINSTATEMENT. THE COMPENSATION PAID TO HER FOR THE PERIOD OF INCAPACITY IS NOT FOR RECOVERY UNDER THE RULE THAT AN EMPLOYEE MUST BE READY. FOR DAYS ON WHICH SHE WAS INCAPACITATED DUE TO ILLNESS DURING THE PERIOD COVERED BY BACK PAY ALLOWED HER UNDER SECTION 6/B) OF THE ACT OF AUGUST 24. WHITING WAS SEPARATED BY ADVERSE ACTION FROM HER POSITION AS AN INTERNAL REVENUE AGENT IN THE DALLAS.

B-159803, AUGUST 12, 1966, 46 COMP. GEN. 139

COMPENSATION - REMOVALS, SUSPENSIONS, ETC. - BACK PAY - ILLNESS DURING SEPARATION. AN EMPLOYEE RESTORED TO DUTY AND PAID "BACK PAY" COMPENSATION FOR A PERIOD OF ERRONEOUS SEPARATION UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED-AN ACT THAT PROVIDES THAT REINSTATED EMPLOYEES WILL BE CONSIDERED EMPLOYEES OF THE UNITED STATES DURING PERIODS OF ERRONEOUS SEPARATION FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE-WHO BUT FOR THE SEPARATION WOULD HAVE BEEN ELIGIBLE FOR SICK LEAVE FOR A PERIOD OF INCAPACITY, MAY HAVE THE PERIOD OF ILLNESS CHARGED TO THE SICK LEAVE RECREDITED TO HER ACCOUNT UPON REINSTATEMENT, AND THE COMPENSATION PAID TO HER FOR THE PERIOD OF INCAPACITY IS NOT FOR RECOVERY UNDER THE RULE THAT AN EMPLOYEE MUST BE READY, WILLING, AND ABLE TO PERFORM THE DUTIES OF THE POSITION HELD TO QUALIFY FOR "BACK PAY" COMPENSATION.

TO THE SECRETARY OF THE TREASURY, AUGUST 12, 1966:

WE REFER TO THE LETTER OF THE ASSISTANT SECRETARY OF THE TREASURY FOR ADMINISTRATION DATED JULY 28, 1966, CONCERNING THE RETROACTIVE CHARGE OF SICK LEAVE TO MRS. OLA MAE WHITING AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, TREASURY DEPARTMENT, FOR DAYS ON WHICH SHE WAS INCAPACITATED DUE TO ILLNESS DURING THE PERIOD COVERED BY BACK PAY ALLOWED HER UNDER SECTION 6/B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652 (B).

MRS. WHITING WAS SEPARATED BY ADVERSE ACTION FROM HER POSITION AS AN INTERNAL REVENUE AGENT IN THE DALLAS, TEXAS, OFFICE OF THE INTERNAL REVENUE SERVICE ON APRIL 26, 1957. ON DECEMBER 12, 1960, SHE WAS REINSTATED TO HER POSITION PURSUANT TO THE DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE EFFECT THAT HER SEPARATION HAD BEEN PROCEDURALLY DEFECTIVE. WHITING V. CAMPBELL, 275 F. 2D 905/5TH CIR; 1960). THE INTERNAL REVENUE SERVICE PAID HER COMPENSATION FOR THE PERIOD OF HER ERRONEOUS SEPARATION UNDER THE PROVISION OF THE ACT OF AUGUST 24, 1912. SUBSEQUENTLY IT WAS LEARNED THAT MRS. WHITING HAD BEEN INCAPACITATED FOR DUTY BY INJURIES WHICH SHE RECEIVED DURING THE PERIOD JANUARY 12 TO APRIL 13, 1959.

THE ASSISTANT SECRETARY FOR ADMINISTRATION ASKS WHETHER THAT PERIOD OF INCAPACITY MAY BE CHARGED TO SICK LEAVE WHICH MRS. WHITING HAD ACCUMULATED PRIOR TO HER ERRONEOUS SEPARATION AND WHICH WAS RECREDITED TO HER UPON REINSTATEMENT OR WHETHER THE COMPENSATION PAID HER FOR THE PERIOD OF HER INCAPACITY MUST BE RECOVERED UNDER THE RULE THAT AN EMPLOYEE MUST BE READY, WILLING AND ABLE TO PERFORM THE DUTIES OF HIS POSITION IN ORDER TO QUALIFY FOR BACK PAY. ARMAND V. UNITED STATES, 136 CT. CL. 339 (1956); 38 COMP. GEN. 556.

IN EVERETT V. UNITED STATES, 169 CT. CL. 11 (1965), THE COURT OF CLAIMS AWARDED THE PETITIONER JUDGMENT FOR THE DIFFERENCE BETWEEN THE DISABILITY COMPENSATION HE HAD RECEIVED UNDER THE FEDERAL EMPLOYEES' COMPENSATION ACT, 5 U.S.C. 751, AND THE FULL COMPENSATION OF THE POSITION FROM WHICH HE HAD BEEN ERRONEOUSLY SEPARATED FOR THE PERIOD COVERED BY SICK LEAVE HE HAD ACCUMULATED AT THE TIME OF SUCH SEPARATION. THAT DECISION IS NOT IN CONFLICT WITH THE DECISIONS OF THIS OFFICE WHICH REQUIRE THAT AN EMPLOYEE BE READY, WILLING AND ABLE TO WORK IN ORDER TO QUALIFY FOR RETROACTIVE COMPENSATION UNDER SECTION 6/B) OF THE ACT OF AUGUST 24, 1912, SINCE THERE IS NO INDICATION THAT THE EMPLOYEES INVOLVED IN OUR DECISIONS HAD SICK LEAVE AVAILABLE FOR USE DURING THEIR PERIODS OF INCAPACITY. SECTION 6/B) OF THE ACT OF AUGUST 24, 1912, PROVIDES THAT REINSTATED EMPLOYEES WILL BE CONSIDERED EMPLOYEES OF THE UNITED STATES DURING THE PERIODS OF THEIR ERRONEOUS SEPARATION FOR ALL PURPOSES EXCEPT FOR ACCUMULATION OF LEAVE. THUS, AN EMPLOYEE INCAPACITATED DURING SUCH PERIOD IS ENTITLED TO APPROPRIATE GRANT OF SICK LEAVE. IN THAT CONNECTION WE NOTE THAT IT HAS BEEN CONSISTENTLY HELD BY OUR OFFICE THAT SICK LEAVE MAY BE RETROACTIVELY SUBSTITUTED FOR PERIODS OF LEAVE WITHOUT PAY IF A GRANT OF SICK LEAVE WOULD OTHERWISE BE APPROPRIATE. SEE 27 COMP. GEN. 227, 231.

SINCE YOU HAVE DETERMINED THAT MRS. WHITING WOULD HAVE BEEN ELIGIBLE FOR SICK LEAVE DURING THE PERIOD IN QUESTION BUT FOR HER ERRONEOUS SEPARATION, SHE MAY NOW BE CHARGED SICK LEAVE FOR THAT PERIOD. ACCORDINGLY, YOU ARE NOT REQUIRED TO COLLECT FROM HER THE RETROACTIVE COMPENSATION WHICH WAS PAID TO HER FOR THE PERIOD DURING WHICH SHE WAS INCAPACITATED FOR DUTY.