B-166032, APRIL 17, 1969, 48 COMP. GEN. 676
Highlights
RETURN TO DUTY REQUIREMENT THE ADVANCEMENT OF ANNUAL LEAVE TO AN EMPLOYEE MISSING AT SEA AT LEAST A MONTH CONTRAVENES THE RULE THAT AN EMPLOYEE MAY NOT BE ADVANCED ANNUAL OR SICK LEAVE IF IT IS KNOWN AT THE TIME OF THE ADVANCE THAT HE WILL NOT RETURN TO DUTY. WHILE IT MAY NOT HAVE BEEN KNOWN FOR A CERTAINTY AT THE TIME OF APPROVING THE ADVANCE OF ANNUAL LEAVE TO THE MISSING EMPLOYEE THAT HE WOULD RETURN TO DUTY. AVAILABLE INFORMATION INDICATED HIS RETURN WAS A REMOTE POSSIBILITY. THE COURT SUBSEQUENTLY DETERMINING THE EMPLOYEE WAS LOST AT SEA. THE PRESUMPTION OF LIFE WAS CONCLUSIVELY REBUTTED AND PAYMENT OF SALARY FOR THE PERIOD OF ANNUAL LEAVE ADVANCED MAY NOT BE CERTIFIED. WAS LOST AT SEA WHILE ON A VACATION CRUISE ABOARD THE LISA ANN II WHICH DEPARTED NEWPORT.
B-166032, APRIL 17, 1969, 48 COMP. GEN. 676
LEAVES OF ABSENCE--ADVANCES--RETURN TO DUTY REQUIREMENT THE ADVANCEMENT OF ANNUAL LEAVE TO AN EMPLOYEE MISSING AT SEA AT LEAST A MONTH CONTRAVENES THE RULE THAT AN EMPLOYEE MAY NOT BE ADVANCED ANNUAL OR SICK LEAVE IF IT IS KNOWN AT THE TIME OF THE ADVANCE THAT HE WILL NOT RETURN TO DUTY. WHILE IT MAY NOT HAVE BEEN KNOWN FOR A CERTAINTY AT THE TIME OF APPROVING THE ADVANCE OF ANNUAL LEAVE TO THE MISSING EMPLOYEE THAT HE WOULD RETURN TO DUTY, AVAILABLE INFORMATION INDICATED HIS RETURN WAS A REMOTE POSSIBILITY, AND THE COURT SUBSEQUENTLY DETERMINING THE EMPLOYEE WAS LOST AT SEA, THE PRESUMPTION OF LIFE WAS CONCLUSIVELY REBUTTED AND PAYMENT OF SALARY FOR THE PERIOD OF ANNUAL LEAVE ADVANCED MAY NOT BE CERTIFIED.
TO T. R. MCVEY, UNITED STATES DEPARTMENT OF TRANSPORTATION, APRIL 17, 1969:
WE REFER TO YOUR LETTER OF FEBRUARY 14, 1969, YOUR REFERENCE 24-21, WHICH REQUESTS OUR VIEWS CONCERNING THE PROPRIETY OF ADVANCING ANNUAL LEAVE TO MR. RUSSELL A. POTTER COVERING THE PERIOD JANUARY 12 TO 25, 1969.
MR. POTTER, AN EMPLOYEE OF THE NATIONAL TRANSPORTATION SAFETY BOARD, DEPARTMENT OF TRANSPORTATION, WAS LOST AT SEA WHILE ON A VACATION CRUISE ABOARD THE LISA ANN II WHICH DEPARTED NEWPORT, RHODE ISLAND, FOR ST. THOMAS, V.I; ON OR ABOUT DECEMBER 2 OR 3, 1968. THE VESSEL FAILED TO REPORT FOR REFUELING AT BERMUDA ON DECEMBER 10 AND HAS NOT SINCE BEEN HEARD FROM.
WE HELD IN OUR DECISION OF FEBRUARY 11, 1969, 48 COMP. GEN. 527, THAT MISSING PERSONS BENEFITS WOULD NOT BE PAYABLE IN MR. POTTER'S CASE UNLESS AN ADMINISTRATIVE DETERMINATION IS MADE THAT THE STATUS OTHERWISE GIVING RISE TO MISSING PERSONS BENEFITS WAS THE PROXIMATE RESULT OF MR. POTTER'S EMPLOYMENT. WHILE YOUR LETTER DOES NOT SO STATE WE PRESUME THAT NO SUCH ADMINISTRATIVE DETERMINATION HAS BEEN MADE IN MR. POTTER'S CASE.
AS INDICATED ABOVE, MR. POTTER HAD BEEN MISSING AT SEA FOR MORE THAN A MONTH PRIOR TO JANUARY 12, 1969, THE COMMENCEMENT OF THE PERIOD COVERED BY THE ANNUAL LEAVE ADVANCE. WHILE NO POSITIVE EVIDENCE OF MR. POTTER'S DEATH HAD BEEN FOUND, A BODY BELIEVED TO HAVE BEEN THE SKIPPER OF THE LISA ANN II, WAS LOCATED AT A POSITION APPROXIMATELY 550 MILES ESE OF NEWPORT AND 475 MILES NE OF BERMUDA ON JANUARY 6, 1969. SUBSEQUENTLY, THE COAST GUARD ABANDONED ALL FURTHER SEARCH FOR THE MISSING VESSEL. ALSO, WE UNDERSTAND THAT ON APRIL 3, 1969, THE CORPORATION COURT OF ALEXANDRIA DETERMINED THAT AS OF DECEMBER 5, 1968, THE PRESUMPTION OF LIFE IN MR. POTTER'S CASE WAS CONCLUSIVELY REBUTTED.
IT LONG HAS BEEN HELD THAT AN EMPLOYEE MAY NOT BE ADVANCED ANNUAL OR SICK LEAVE IF IT IS KNOWN AT THE TIME THAT HE WILL NOT RETURN TO DUTY. SE 25 COMP. GEN. 874 AND 23 ID. 837. CF. FPM SUPPLEMENT 990-2 AT PAGE 630-9 (S2 -5B).
WHILE IT MAY NOT HAVE BEEN KNOWN FOR A CERTAINTY THAT MR. POTTER WOULD NOT RETURN TO DUTY AT THE TIME ANNUAL LEAVE FOR THE PERIOD JANUARY 12 TO 25 WAS APPROVED, THE INFORMATION AVAILABLE INDICATED THAT MR. POTTER'S RETURN WAS AT BEST A REMOTE POSSIBILITY. IN VIEW THEREOF AND OF THE COURT'S DETERMINATION IN THE MATTER WE MAY NOT AUTHORIZE THE PROPOSED ADVANCE OF ANNUAL LEAVE. THEREFORE, CERTIFICATION FOR PAYMENT OF SALARY FOR THE PERIOD COVERED THEREBY SHOULD BE WITHHELD.