B-166538, APR. 28, 1969

B-166538, APR. 28, 1969

TO MR. ROBERT M. PATTERSON:

WE REFER TO YOUR LETTER OF MARCH 19, 1969, BY WHICH YOU REQUEST OUR DECISION WITH REGARD TO CERTAIN QUESTIONS WHICH HAVE ARISEN IN THE RECREDIT OF SICK AND ANNUAL LEAVE TO MR. JOHN G. FARMER, A FORMER EMPLOYEE OF THE BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, INCIDENT TO HIS ELECTION TO RECEIVE BENEFITS OF EMPLOYEES' COMPENSATION FOR HIS ABSENCES AS A RESULT OF A JOB-CONNECTED DISABILITY DURING THE YEARS 1964- 1966.

AFTER THE BUREAU OF EMPLOYEES COMPENSATION, DEPARTMENT OF LABOR, HAD DETERMINED THAT A DISABILITY WHICH CAUSED MR. FARMER TO BE ABSENT FROM WORK ON AN IRREGULAR BASIS DURING THE PERIOD IN QUESTION WAS JOB RELATED, HE REQUESTED THAT THE LEAVE HE HAD BEEN CHARGED FOR THOSE PERIODS OF ABSENCE BE CHARGED TO LEAVE WITHOUT PAY SO THAT HE COULD RECEIVE PAYMENTS UNDER THE EMPLOYEES' COMPENSATION PROVISIONS OF 5 U.S.C. 8101-8150. AUTHORIZED BY DECISIONS OF OUR OFFICE, MR. FARMER REPAID THE BUREAU OF INDIAN AFFAIRS FOR LEAVE TAKEN BY ASSIGNING HIS COMPENSATION RIGHTS TO THE BUREAU AND PAYING THE BALANCE, APPARENTLY BY DEDUCTION FROM HIS RETIREMENT FUND. THE ANNUAL AND SICK LEAVE WHICH WAS SUBJECT TO THE REFUND WAS RECREDITED TO HIS LEAVE ACCOUNT. ALL ABSENCES RESULTING FROM MR. FARMER'S DISABILITY WHICH HAD BEEN CHARGED TO ANNUAL LEAVE APPARENTLY WERE CHARGED TO LEAVE WITHOUT PAY REGARDLESS OF THE FACT THAT SOME OF THE ANNUAL LEAVE WHICH WAS RECREDITED AS A RESULT THEREOF WAS FORFEITED AT THE END OF THE LEAVE YEAR INVOLVED UNDER THE 30 DAY ANNUAL LEAVE RESTRICTION OF 5 U.S.C. 6304 (A). THIS WAS DONE EVEN THOUGH IN HIS ORIGINAL REQUEST MR. FARMER HAD SAID THAT HE WISHED TO BE CHARGED ANNUAL LEAVE TO AVOID A FORFEITURE THEREOF. IN THE DECISION B-160826, MARCH 8, 1967, COPY ENCLOSED, WE HELD THAT AN EMPLOYEE ELIGIBLE FOR EMPLOYEES' COMPENSATION WAS ENTITLED TO SUBSTITUTE LEAVE WITHOUT PAY FOR ANNUAL AND SICK LEAVE TAKEN FOR ALL OR ANY PART OF A PERIOD HE WAS OTHERWISE ELIGIBLE FOR EMPLOYEES' COMPENSATION BENEFITS. UNDER THAT DECISION AND THE FACTS PRESENTED, WE BELIEVE THAT THE ANNUAL LEAVE PREVIOUSLY CHARGED TO MR. FARMER SHOULD HAVE BEEN LEFT UNDISTURBED TO THE EXTENT THAT SUBSTITUTION OF LEAVE WITHOUT PAY FOR ANNUAL LEAVE WOULD HAVE CAUSED A FORFEITURE OF ANNUAL LEAVE. THEREFORE, YOU ARE AUTHORIZED TO REDETERMINE THE LEAVE SUBSTITUTION IN THIS CASE SO AS TO AVOID FORFEITURE OF ANNUAL LEAVE AT THE BEGINNING OF THE LEAVE YEARS INVOLVED. SUCH A REDETERMINATION WILL REQUIRE A REFUND TO MR. FARMER AND TO THE BUREAU OF EMPLOYEES COMPENSATION OF THE PAYMENTS MADE BY THEM TO YOUR AGENCY FOR THE HOURS OF ANNUAL LEAVE CHARGED UNDER SUCH RECOMPUTATION.

REGARDING THE CHARGE OF LEAVE DURING MR. FARMER'S LAST PAY PERIOD BEFORE SEPARATION, WE WOULD NOT OBJECT TO THE SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE CHARGED DURING THAT PERIOD IF, AS IS INDICATED IN YOUR SUBMISSION, THE CHARGE TO SICK LEAVE RATHER THAN ANNUAL RESULTED FROM THE FACT THAT ERRONEOUS LEAVE BALANCES WERE SHOWN AT THE TIME THE LEAVE WAS CHARGED. THE DECISION 38 COMP. GEN. 354 WHICH YOU CITE NEED NOT BE APPLIED IN THIS CASE SINCE THE ORIGINAL CHARGE TO SICK RATHER THAN ANNUAL LEAVE WAS THE RESULT OF AN ADMINISTRATIVE ERROR. IT IS NOTED, FURTHER, THAT THE DATE OF AN EMPLOYEE'S SEPARATION MAY BE CHANGED TO PROVIDE FOR THE GRANTING OF SICK LEAVE AND ANNUAL LEAVE FOR WHICH A LUMP-SUM PAYMENT MAY NOT BE MADE IF THE ORIGINAL DATE OF SEPARATION WAS FIXED TO PROVIDE FOR THE GRANTING OF ALL SUCH LEAVE AND A LATER DISCOVERY OF ERRONEOUS COMPUTATION OF LEAVE BALANCES ESTABLISHES THAT SOME LEAVE WAS FORFEITED.

WE TRUST THAT THE INFORMATION PROVIDED WILL ENABLE YOU TO MAKE APPROPRIATE ADJUSTMENTS IN THE AMOUNTS ALLOWED MR. FARMER. THE PAPERS FORWARDED WITH YOUR LETTER ARE RETURNED.