B-167973, OCT. 13, 1969

B-167973, OCT. 13, 1969

RETIREMENT--CIVILIAN--LEAVE STATUS RETIRED EMPLOYEE'S CLAIM FOR PAYMENT FOR SICK AND ANNUAL LEAVE ACCRUED AS OF EFFECTIVE RETIREMENT DATE -- ON BASIS THAT SUBSEQUENT APPROVAL OF DISABILITY RETIREMENT PROVES PHYSICIAN'S PRONOUNCEMENT OF FITNESS FOR DUTY ERRONEOUS, AND THAT HE COULD HAVE BEEN GRANTED ALL OF LEAVE PRIOR TO SEPARATION HAD AGENCY ALLOWED HIM DISABILITY RETIREMENT - IS AGAIN DISALLOWED, AS EMPLOYEE MAY NOT BE REIMBURSED FOR SICK LEAVE NOT GRANTED PRIOR TO SEPARATION OR RESTORED TO AGENCY ROLLS FOR PURPOSE OF GRANTING SUCH LEAVE ABSENT ERROR OR VIOLATION OF REGULATION IN EFFECTING SEPARATION; AND EMPLOYEE WAS NOT REFUSED LEAVE PRIOR TO OPTIONAL RETIREMENT, RATHER HE ELECTED TO BE SEPARATED EFFECTIVE APR. 30, 1968 TO BE ELIGIBLE FOR 3.9 PERCENT COST-OF-LIVING ALLOWANCE.

TO MR. ANTHONY C. MOTTA:

THIS REFERS TO YOUR LETTER OF SEPTEMBER 12, 1969, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED AUGUST 22, 1969, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT FOR 815 HOURS OF SICK LEAVE AND 39 HOURS OF CURRENT ACCRUED ANNUAL LEAVE WHICH STOOD TO YOUR CREDIT ON APRIL 30, 1968, THE EFFECTIVE DATE OF YOUR RETIREMENT FROM THE DEPARTMENT OF THE AIR FORCE, PATRICK AIR FORCE BASE, FLORIDA.

THE RECORD BEFORE US SHOWS THAT ON MARCH 15, 1968, YOU WERE EXAMINED BY A PHYSICIAN AT THE PATRICK AIR FORCE BASE HOSPITAL FOR THE PURPOSE OF DETERMINING WHETHER OR NOT YOU WERE PHYSICALLY ABLE TO PERFORM THE DUTIES OF YOUR POSITION. THE PHYSICIAN PRONOUNCED YOU FIT FOR DUTY. THEREAFTER, ON APRIL 30, 1968, YOU SUBMITTED AN APPLICATION FOR OPTIONAL RETIREMENT ON A TRIAL BASIS UNDER THE PROVISIONS OF AFSC PROJECT 55-60. YOUR APPLICATION WAS APPROVED AND IN ACCORDANCE WITH YOUR REQUEST YOUR RETIREMENT WAS MADE EFFECTIVE ON APRIL 30, 1968, THEREBY MAKING YOU ELIGIBLE FOR A 3.9 PERCENT COST-OF-LIVING ALLOWANCE WHICH WAS GRANTED TO ANNUITANTS WHO RETIRED PRIOR TO MAY 1, 1968.

FOLLOWING YOUR SEPARATION YOU SUBMITTED AN APPLICATION FOR DISABILITY RETIREMENT TO THE UNITED STATES CIVIL SERVICE COMMISSION. YOUR APPLICATION WAS APPROVED AND YOUR DISABILITY ANNUITY COMMENCED RETROACTIVELY ON MAY 1, 1968.

YOU BELIEVE THAT THE APPROVAL OF YOUR DISABILITY RETIREMENT BY THE CIVIL SERVICE COMMISSION CONSTITUTES PROOF THAT THE DETERMINATION OF THE PHYSICIAN AT PATRICK AIR FORCE BASE WAS ERRONEOUS. YOU STATE THAT YOU COULD HAVE BEEN GRANTED ALL OF YOUR SICK LEAVE AND YOUR CURRENT ACCRUED ANNUAL LEAVE PRIOR TO SEPARATION HAD YOUR AGENCY ALLOWED YOU TO RETIRE ON DISABILITY. THEREFORE, YOU BELIEVE THAT YOU ARE NOW ENTITLED TO BE PAID FOR THE 815 HOURS OF SICK LEAVE AND THE 39 HOURS OF CURRENT ACCRUED ANNUAL LEAVE WHICH COULD NOT BE INCLUDED IN YOUR LUMP-SUM LEAVE PAYMENT UPON YOUR SEPARATION.

AS WAS INDICATED IN OUR CLAIMS DIVISION SETTLEMENT OF AUGUST 22, 1969, THERE IS NO STATUTORY AUTHORITY FOR REIMBURSING AN EMPLOYEE FOR SICK LEAVE NOT GRANTED PRIOR TO HIS SEPARATION FROM THE SERVICE, AND THERE IS NO AUTHORITY FOR RESTORING AN EMPLOYEE TO THE ROLLS OF THE FORMER EMPLOYING AGENCY FOR THE SOLE PURPOSE OF GRANTING SUCH LEAVE UNLESS THERE WAS A BONA FIDE ERROR OR A VIOLATION OF A VALID REGULATION IN EFFECTING THE SEPARATION. SEE 33 COMP. GEN. 422 AND B-156534, APRIL 26, 1965 (COPIES ENCLOSED). NEITHER OF SUCH CONDITIONS APPEARS TO BE PRESENT IN YOUR CASE.

CONTRARY TO YOUR BELIEF, THE USE OF SICK LEAVE BY AN EMPLOYEE IMMEDIATELY PRIOR TO HIS SEPARATION IS NOT DEPENDENT UPON HIS BEING RETIRED FOR DISABILITY. SEE PARAGRAPH S10-5D OF SUBCHAPTER S10, FEDERAL PERSONNEL MANUAL SUPPLEMENT 831-1. HAD YOU, IN FACT, BEEN INCAPACITATED FOR THE PERFORMANCE OF YOUR DUTIES YOU COULD HAVE REQUESTED YOUR AGENCY TO PLACE YOU ON SICK LEAVE PRIOR TO YOUR SEPARATION. ALSO, YOU COULD HAVE BEEN GRANTED THE CURRENT ACCRUED ANNUAL LEAVE WHICH COULD NOT BE INCLUDED IN YOUR LUMP-SUM PAYMENT UNDER 5 U.S.C. 5551. HOWEVER, THE EVIDENCE OF RECORD DOES NOT SHOW THAT YOUR AGENCY REFUSED TO GRANT YOU SICK OR ANNUAL LEAVE PRIOR TO YOUR OPTIONAL RETIREMENT ON APRIL 30, 1968. RATHER, AS NOTED ABOVE, THE EVIDENCE INDICATES THAT YOU ELECTED TO BE SEPARATED NO LATER THAN APRIL 30, 1968, SO THAT YOU WOULD BE ELIGIBLE FOR THE 3.9 PERCENT COST-OF-LIVING ALLOWANCE. IN VIEW THEREOF WE KNOW OF NO LEGAL BASIS UPON WHICH YOUR CLAIM MAY BE ALLOWED. ACCORDINGLY, WE MUST SUSTAIN THE SETTLEMENT OF AUGUST 22, 1969.