B-164220, SEPT. 5, 1968

B-164220: Sep 5, 1968

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THE DATE THAT HE WAS FURLOUGHED (INDUCTED INTO THE ARMY) AS A PERMANENT EMPLOYEE OF THE CURTIS BAY ORDNANCE DEPOT. DEL PRETE'S SICK LEAVE ENTITLEMENT WAS GOVERNED BY EXECUTIVE ORDER NO. 8385 DATED MARCH 29. RECREDIT OF UNUSED SICK LEAVE WAS REQUIRED BY SECTION 30.704 (B) OF THE LEAVE REGULATIONS. WHICH WAS IN EFFECT AT THE TIME OF MR. THE NATIONAL PERSONNEL RECORDS CENTER REPORTS THAT THE 1942 LEAVE RECORDS OF THE CURTIS BAY ORDNANCE DEPOT ARE NOT NOW AVAILABLE. NEITHER OF THOSE STATEMENTS OF LACK OF OFFICIAL RECORDS WOULD PRECLUDE ACCEPTANCE OF SECONDARY EVIDENCE SUCH AS STATEMENTS BY OFFICERS AND EMPLOYEES WHO HAVE KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES WHICH EXISTED AT THE TIME WHICH ARE PRESENTED WITH MR.

B-164220, SEPT. 5, 1968

TO MR. T. E. ZULLINGER:

WE REFER TO YOUR LETTER OF MAY 1, 1968, AND THE ENCLOSURES THEREWITH, YOUR REFERENCE AMXLE-PF, CONCERNING THE UNUSED SICK LEAVE CREDIT WHICH MR. EUGENE DEL PRETE CLAIMS THAT HE ACCUMULATED FROM AUGUST 26, 1940, THE DATE OF HIS TEMPORARY APPOINTMENT, TO DECEMBER 17, 1942, THE DATE THAT HE WAS FURLOUGHED (INDUCTED INTO THE ARMY) AS A PERMANENT EMPLOYEE OF THE CURTIS BAY ORDNANCE DEPOT, CURTIS BAY, MARYLAND.

UNDER THE APPOINTMENT MR. DEL PRETE'S SICK LEAVE ENTITLEMENT WAS GOVERNED BY EXECUTIVE ORDER NO. 8385 DATED MARCH 29, 1940. SECTION 18 THEREOF PROVIDED IN PERTINENT PART THAT SICK LEAVE ACCUMULATED DURING A TEMPORARY APPOINTMENT SHALL BE CREDITED TO AN EMPLOYEE WHO RECEIVES AN INDEFINITE OR PERMANENT APPOINTMENT IN THE SAME DEPARTMENT OR AGENCY WITHOUT A BREAK IN SERVICE.

AS TO THE FRACTIONAL MONTH PERIOD FROM NOVEMBER 26 TO DECEMBER 17, 1942, AT WHICH TIME WE ASSUME THE EMPLOYEE HAD A PERMANENT STATUS FOR LEAVE PURPOSES, A PRO RATA CREDIT OF 7 HOURS WOULD BE ALLOWABLE IN ADDITION TO 270 HOURS ACCRUED DURING THE 27 MONTHS OF CONTINUOUS SERVICE FROM AUGUST 26, 1940, TO NOVEMBER 25, 1942. SEE 15 COMP. GEN. 1039 AT PAGE 1043.

RECREDIT OF UNUSED SICK LEAVE WAS REQUIRED BY SECTION 30.704 (B) OF THE LEAVE REGULATIONS, WHICH WAS IN EFFECT AT THE TIME OF MR. DEL PRETE'S REEMPLOYMENT ON AUGUST 12, 1963, NOT MORE THAN 3 YEARS AFTER DECEMBER 31, 1962, THE DATE THAT HE RETIRED FROM MILITARY SERVICE.

YOU SAY THE LETTERKENNY ARMY DEPOT HAS NO RECORD OF MR. DEL PRETE'S SICK LEAVE BALANCE AT THE TIME HE ENTERED MILITARY FURLOUGH. ALSO, THE NATIONAL PERSONNEL RECORDS CENTER REPORTS THAT THE 1942 LEAVE RECORDS OF THE CURTIS BAY ORDNANCE DEPOT ARE NOT NOW AVAILABLE. HOWEVER,NEITHER OF THOSE STATEMENTS OF LACK OF OFFICIAL RECORDS WOULD PRECLUDE ACCEPTANCE OF SECONDARY EVIDENCE SUCH AS STATEMENTS BY OFFICERS AND EMPLOYEES WHO HAVE KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES WHICH EXISTED AT THE TIME WHICH ARE PRESENTED WITH MR. DEL PRETE'S CLAIM. WE RECOGNIZE THAT DURING THE WAR PERIOD SOME AGENCIES OVERLOOKED THAT THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, 5 U.S.C. 61A (1964 ED.), AUTHORIZED EMPLOYEES TO ELECT TO HAVE THEIR BALANCES OF BOTH ANNUAL LEAVE AND SICK LEAVE TO REMAIN TO THEIR CREDIT UNTIL THEIR RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE.

THEREFORE, WE SEE NO OBJECTION TO ACCEPTANCE OF THE STATEMENTS FROM THE EMPLOYEE'S FORMER SUPERVISOR AND ANOTHER FELLOW EMPLOYEE AT THE TIME AS A BASIS FOR CREDITING MR. DEL PRETE WITH 277 HOURS OF SICK LEAVE NOT USED BY HIM DURING THE PERIOD FROM AUGUST 26, 1940, TO DECEMBER 17, 1942.

THE PAPERS WHICH ACCOMPANIED YOUR LETTER ARE RETURNED HEREWITH. ALSO WE ENCLOSE A COPY OF OUR DECISION B-56988 DATED OCTOBER 14, 1946.