B-162234, OCT. 23, 1967

B-162234: Oct 23, 1967

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WAS INADVERTENTLY GRANTED AN ADVANCE OF SICK LEAVE BEFORE A PRIOR ADVANCE HAD BEEN LIQUIDATED CONTRARY TO ADMINISTRATIVE POLICY NOT TO RETURN AN EMPLOYEE TO A PAY STATUS FOR PURPOSE OF GRANTING SICK LEAVE WHEN THE EMPLOYEE IS IN A LEAVE WITHOUT PAY STATUS IS INDEBTED FOR THE ERRONEOUSLY APPROVED ADVANCE OF SICK LEAVE. THE ADVANCE OF SICK LEAVE IS PERMISSIVE WITH THE AGENCY. AGENCY HEAD DETERMINES THE POLICIES TO BE ADOPTED IN PERMITTING THE ADVANCE OF SICK LEAVE AND DELEGATES AUTHORITY TO APPROVE THE SICK LEAVE ADVANCE TO APPROPRIATE OFFICIALS IN HIS AGENCY. 5 CFR 630.209 PROVIDES THAT WHEN AN EMPLOYEE WHO IS INDEBTED FOR UNEARNED LEAVE IS SEPARATED THE AGENCY SHALL REQUIRE HIM TO REFUND THE AMOUNT PAID HIM FOR THE PERIOD COVERING THE LEAVE FOR WHICH HE IS INDEBTED.

B-162234, OCT. 23, 1967

LEAVE OF ABSENCE - SICK - ADVANCE DECISION TO FORMER EMPLOYEE CONCERNING INDEBTEDNESS FOR OVERDRAWN SICK LEAVE AT TIME OF DISABILITY RETIREMENT. EMPLOYEE WHO, WHILE IN LEAVE WITHOUT PAY STATUS, WAS INADVERTENTLY GRANTED AN ADVANCE OF SICK LEAVE BEFORE A PRIOR ADVANCE HAD BEEN LIQUIDATED CONTRARY TO ADMINISTRATIVE POLICY NOT TO RETURN AN EMPLOYEE TO A PAY STATUS FOR PURPOSE OF GRANTING SICK LEAVE WHEN THE EMPLOYEE IS IN A LEAVE WITHOUT PAY STATUS IS INDEBTED FOR THE ERRONEOUSLY APPROVED ADVANCE OF SICK LEAVE.

TO MR. BENJAMIN D. MATHIAS:

THIS REFERS TO YOUR LETTER OF JULY 6, 1967, WITH ENCLOSURES, CONCERNING YOUR INDEBTEDNESS TO THE GOVERNMENT RESULTING FROM YOUR HAVING OVERDRAWN SICK LEAVE AT THE TIME OF YOUR DISABILITY RETIREMENT.

SECTION 204 (C) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 681, CONCERNING THE GRANTING OF ADVANCED SICK LEAVE PROVIDES THAT:

"NOT TO EXCEED THIRTY DAYS SICK LEAVE MAY BE ADVANCED IN CASES OF SERIOUS DISABILITY OR AILMENTS AND WHEN REQUIRED BY THE EXIGENCIES OF THE SITUATION.' THE ADVANCE OF SICK LEAVE IS PERMISSIVE WITH THE AGENCY. AGENCY HEAD DETERMINES THE POLICIES TO BE ADOPTED IN PERMITTING THE ADVANCE OF SICK LEAVE AND DELEGATES AUTHORITY TO APPROVE THE SICK LEAVE ADVANCE TO APPROPRIATE OFFICIALS IN HIS AGENCY. 5 CFR 630.209 PROVIDES THAT WHEN AN EMPLOYEE WHO IS INDEBTED FOR UNEARNED LEAVE IS SEPARATED THE AGENCY SHALL REQUIRE HIM TO REFUND THE AMOUNT PAID HIM FOR THE PERIOD COVERING THE LEAVE FOR WHICH HE IS INDEBTED. HOWEVER, THIS DOES NOT APPLY WHEN THE EMPLOYEE RETIRES FOR DISABILITY.

THE AGENCY'S CRITERIA FOR GRANTING ADVANCED SICK LEAVE IS WITH THE UNDERSTANDING THAT WHEN THE MAXIMUM AMOUNT OF 240 HOURS IS GRANTED FUTURE ABSENCE DUE TO ILLNESS MUST BE CHARGED TO ANNUAL LEAVE OR LEAVE WITHOUT PAY UNTIL THE ADVANCE HAS BEEN LIQUIDATED. AN EXCEPTION TO THIS IS A PROVISION THAT IN THE EVENT OF ANOTHER SERIOUS ILLNESS PRIOR TO LIQUIDATION OF THE ORIGINAL ADVANCE, AN ADDITIONAL ADVANCE MAY BE AUTHORIZED NOT TO EXCEED A TOTAL DEFICIT OF 30 WORKDAYS.

YOU WERE ADVANCED THE MAXIMUM OF 240 HOURS SICK LEAVE TO COVER A PERIOD OF ABSENCE JULY 4-AUGUST 18, 1965. SUBSEQUENT TO THIS ADVANCE, YOU WERE CONSISTENTLY IN AN ANNUAL LEAVE STATUS FOR A PORTION OF EACH PAY PERIOD. ON MAY 26, 1966, YOU WENT ON ANNUAL LEAVE UNTIL IT WAS EXHAUSTED ON JUNE 7 AFTER 6 HOURS WHEN YOU AUTOMATICALLY ENTERED A LEAVE WITHOUT PAY STATUS UNTIL YOUR RETURN TO DUTY FOR 10 HOURS ON AUGUST 30 AND 31, 1966.

THE AGENCY'S POLICY IS NOT TO RETURN AN EMPLOYEE TO A PAY STATUS FOR THE PURPOSE OF GRANTING SICK LEAVE WHEN THE EMPLOYEE IS IN A LEAVE WITHOUT PAY STATUS. YOU WERE IN A LEAVE WITHOUT PAY STATUS FROM 2 HOURS ON JUNE 7, 1966, AND REQUESTED CONSIDERATION OF ADDITIONAL SICK LEAVE BY LETTER OF JUNE 27, 1966. WHILE YOU SAY THE ADVANCED SICK LEAVE WAS APPROVED BY THE PERSONNEL OFFICE THE ADMINISTRATIVE REPORT SHOWS THAT APPROVAL WAS INADVERTENTLY GIVEN BY YOUR SUPERIORS (NOT PERSONNEL OFFICIALS) WHO LATER STATED THAT THEY WERE NOT AWARE OF THE AGENCY POLICY OR REGULATION REGARDING ADVANCED SICK LEAVE. BECAUSE OF THE ERRONEOUS APPROVAL OF SUCH ADDITIONAL SICK LEAVE YOU RECEIVED COMPENSATION FOR 104 HOURS. YOU WERE RETIRED FOR DISABILITY AT THE CLOSE OF BUSINESS ON DECEMBER 16, 1966. MAKING A FINAL AUDIT OF YOUR ACCOUNT IT WAS DETERMINED THAT THERE WAS AN OVERPAYMENT OF $397.28 FOR THE 104 HOURS OF ADVANCED SICK LEAVE WHICH YOU WERE NOT ENTITLED TO UNDER THE AGENCY POLICY. THE 156 HOURS OF SICK LEAVE UNLIQUIDATED WHEN YOU WENT INTO LEAVE WITHOUT PAY STATUS, HAS BEEN FORGIVEN.

THUS, IT APPEARS THAT YOU WERE INADVERTENTLY GRANTED ADVANCED SICK LEAVE CONTRARY TO THE AGENCY POLICY AND THE ADMINISTRATIVE ACTION IN REQUESTING YOU TO REFUND THE COMPENSATION FOR THE ADVANCED SICK LEAVE WAS CORRECT.