B-162875, DEC. 19, 1967

B-162875: Dec 19, 1967

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SECRETARY: TRANSMITTED HEREWITH FOR ADMINISTRATIVE DISPOSITION IS THE CLAIM OF MR. IT IS REPORTED THAT THE FORMER EMPLOYEE. WAS INVOLUNTARILY REMOVED FROM THE SERVICE ON JULY 23. HE WAS NOT GIVEN AN OPPORTUNITY TO USE HIS ACCUMULATED SICK LEAVE PRIOR TO SEPARATION. WHICH WAS DENIED BY THE CIVIL SERVICE COMMISSION ON MARCH 9. IN MAY OR JUNE 1966 HE WAS NOTIFIED BY THE COMMISSION THAT HIS APPLICATION FOR DISABILITY RETIREMENT HAD BEEN MEDICALLY APPROVED AND THAT HIS ANNUITY WOULD COMMENCE ON THE DAY AFTER HIS PAY TERMINATED. DARBY'S TERMINATION OF EMPLOYMENT BY REMOVAL APPEARS TO HAVE BEEN PREMATURE. -IF HE IS UNABLE TO WORK. THE AGENCY SHOULD CARRY HIM IN A LEAVE STATUS (WITH OR WITHOUT PAY) UNTIL NOTIFIED BY THE COMMISSION OF ITS ACTION ON THE APPLICATION.-" THE ACCOUNTING AND FINANCE CENTER FURTHER POINTS OUT THAT THE EMPLOYEE'S RECORDS SHOULD HAVE BEEN CORRECTED UPON RECEIPT OF INFORMATION THAT THE COMMISSION HAD REVERSED ITS DECISION ON HIS DISABILITY RETIREMENT APPLICATION.

B-162875, DEC. 19, 1967

TO MR. SECRETARY:

TRANSMITTED HEREWITH FOR ADMINISTRATIVE DISPOSITION IS THE CLAIM OF MR. ANDREW F. DARBY FOR SICK LEAVE STANDING TO HIS CREDIT AT THE TIME OF HIS SEPARATION FROM THE SERVICE ON JULY 23, 1965, AS AN EMPLOYEE OF THE DEPARTMENT OF THE AIR FORCE, MCCLELLAN AIR FORCE BASE, CALIFORNIA.

IT IS REPORTED THAT THE FORMER EMPLOYEE, BECAUSE OF BEING ABSENT WITHOUT LEAVE FROM 2-3/4 HOURS, JUNE 2, 1965, THROUGH JULY 23, 1965, WAS INVOLUNTARILY REMOVED FROM THE SERVICE ON JULY 23, 1965. WHILE HE RECEIVED A LUMP-SUM PAYMENT FOR 9 HOURS ANNUAL LEAVE, HE WAS NOT GIVEN AN OPPORTUNITY TO USE HIS ACCUMULATED SICK LEAVE PRIOR TO SEPARATION. PRIOR TO MR. DARBY'S REMOVAL FROM THE SERVICE HE HAD FILED A CLAIM FOR DISABILITY RETIREMENT DATED FEBRUARY 1, 1965, WHICH WAS DENIED BY THE CIVIL SERVICE COMMISSION ON MARCH 9, 1965. HE APPEALED THAT DECISION ON JUNE 9, 1965, AND IN MAY OR JUNE 1966 HE WAS NOTIFIED BY THE COMMISSION THAT HIS APPLICATION FOR DISABILITY RETIREMENT HAD BEEN MEDICALLY APPROVED AND THAT HIS ANNUITY WOULD COMMENCE ON THE DAY AFTER HIS PAY TERMINATED.

IN RECOMMENDING APPROVAL OF THE CLAIM THE ACCOUNTING AND FINANCE CENTER STATES THAT:

"MR. DARBY'S TERMINATION OF EMPLOYMENT BY REMOVAL APPEARS TO HAVE BEEN PREMATURE. INSTRUCTIONS CONTAINED IN THE FEDERAL PERSONNEL MANUAL, PAGE R -5-39, STATES: -A DEFINITE DUTY DEVOLVES UPON THE AGENCY NOT TO SEPARATE AN EMPLOYEE IN ILL HEALTH IF HE HAS THE NECESSARY SERVICE TO QUALIFY FOR DISABILITY RETIREMENT.- IT FURTHER STATES, -IF HE IS UNABLE TO WORK, THE AGENCY SHOULD CARRY HIM IN A LEAVE STATUS (WITH OR WITHOUT PAY) UNTIL NOTIFIED BY THE COMMISSION OF ITS ACTION ON THE APPLICATION.-" THE ACCOUNTING AND FINANCE CENTER FURTHER POINTS OUT THAT THE EMPLOYEE'S RECORDS SHOULD HAVE BEEN CORRECTED UPON RECEIPT OF INFORMATION THAT THE COMMISSION HAD REVERSED ITS DECISION ON HIS DISABILITY RETIREMENT APPLICATION.

UNDER THE FACTS AND CIRCUMSTANCES OUTLINED IT APPEARS THAT THE EMPLOYEE WOULD HAVE BEEN GIVEN THE OPPORTUNITY TO USE THE SICK LEAVE WHICH HE FORFEITED IF HE HAD NOT BEEN PREMATURELY REMOVED FROM THE SERVICE. THEREFORE, IF THE ACQUIESCENCE OF THE CIVIL SERVICE COMMISSION IS OBTAINED AND PROPER ADJUSTMENTS ARE MADE IN THE RETIREMENT ACCOUNT WE WOULD NOT BE REQUIRED TO OBJECT TO THE RESTORATION OF THE EMPLOYEE TO THE ROLLS FOR THE PURPOSE OF COMPENSATING HIM FOR THE SICK LEAVE IN QUESTION. 39 COMP. GEN. 89. ANY ANNUAL LEAVE ACCRUED DURING SUCH PERIOD (INCLUDING THE 9 HOURS FOR WHICH PREVIOUSLY PAID) SHOULD BE MADE THE SUBJECT OF A LUMP-SUM PAYMENT AS OF THE DATE OF THE EXPIRATION OF THE SICK LEAVE (LESS THE AMOUNT PREVIOUSLY RECEIVED FOR THE 9 HOURS).