B-170896, OCT. 22, 1970

B-170896, OCT. 22, 1970

LEAVE PAY - RECREDIT AFTER DEPARTURE GRANT TO SUBSTITUTE ANNUAL LEAVE FOR SICK LEAVE AND TO RECREDIT THE SICK LEAVE ON A RETROACTIVE BASIS WHERE THE ANNUAL LEAVE HAD BEEN GRANTED PRIOR TO EMPLOYEE DEPARTURE AS A SUPERVISORY FIRE FIGHTER. LETTER TO THE SECRETARY OF THE ARMY ADVISING THAT AN EMPLOYEE GRANTED ANNUAL LEAVE BUT WHICH DUE TO A CLERICAL ERROR APPEARED AS SICK LEAVE CAN CLAIM THAT A SUBSTITUTION MAY BE MADE RETROACTIVELY AND THE EMPLOYEE SHOULD BE RESTORED TO THE ROLLS AND HAVE HIS SEPARATION DATE EXTENDED FOR THAT PURPOSE.

TO MR. SECRETARY:

ENCLOSED IS THE RECORD OF A CLAIM FOR REIMBURSEMENT OF 136 HOURS OF ANNUAL LEAVE FOR THE PERIOD OF DECEMBER 22, 1968, THROUGH JANUARY 4, 1969, BY MR. BRAY R. COLQUITT WHILE AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY.

THE PERTINENT FACTS SET FORTH IN THE RECORD SUBMITTED SHOW THAT:

A. MR. COLQUITT WAS EMPLOYED AS A SUPERVISORY FIRE FIGHTER WITH A BIWEEKLY TOUR OF 144 HOURS CONSISTING OF SIX 24-HOUR TOURS. BECAUSE OF A HEART ATTACK HE WAS CARRIED ON SICK LEAVE FROM FEBRUARY 20, 1968, UNTIL JANUARY 4, 1969, EXCEPT FOR 238 HOURS OF ANNUAL LEAVE. MR. COLQUITT'S OPENING AND CLOSING ANNUAL LEAVE CEILING FOR THE LEAVE YEAR WAS 552 HOURS. THUS MR. COLQUITT WAS CHARGED ONLY 238 HOURS OF THE 374 HOURS OF ANNUAL LEAVE ACCRUED DURING THE LEAVE YEAR WHICH RESULTED IN AN APPARENT FORFEITURE OF 136 HOURS AT THE CLOSE OF THE LEAVE YEAR ON JANUARY 4, 1969, IN ACCORDANCE WITH THE PROVISIONS OF 5 U.S.C. 6304.

B. MR. COLQUITT STATES THAT HE REQUESTED ANNUAL LEAVE FOR THE PERIOD DECEMBER 22, 1968, THROUGH JANUARY 4, 1969, WHICH WAS GRANTED BUT THROUGH ADMINISTRATIVE ERROR WAS CHARGED ON THE LEAVE RECORDS TO SICK LEAVE. HIS SUPERVISOR AFFIRMS THAT MR. COLQUITT HAD BEEN ASSIGNED THE LAST TWO WEEKS OF THE LEAVE YEAR FOR HIS VACATION PERIOD. THE ADMINISTRATIVE REPORT ON THE CLAIM DOES NOT CONTEST THAT BUT FOR THE ADMINISTRATIVE ERROR IN MAINTAINING THE LEAVE RECORDS MR. COLQUITT WOULD HAVE BEEN CHARGED ANNUAL LEAVE FOR THE PERIOD IN QUESTION.

C. THE CLAIM HAS BEEN DENIED ON THE GROUND THAT ANNUAL LEAVE MAY NOT BE SUBSTITUTED FOR SICK LEAVE ON A RETROACTIVE BASIS SOLELY FOR THE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF THE LEAVE YEAR. SEE PARAGRAPH S3-4B(3), BOOK 630, FEDERAL PERSONNEL SUPPLEMENT 990-2; 31 COMP. GEN. 524.

D. MR. COLQUITT HAS SINCE BEEN SEPARATED (DURING 1969) ON DISABILITY RETIREMENT.

IN THE CIRCUMSTANCES WE DO NOT BELIEVE THAT A FORFEITURE OF LEAVE DID IN FACT OCCUR. THE QUESTION DOES NOT, IN OUR OPINION, TURN ON WHETHER ANNUAL LEAVE MAY BE SUBSTITUTED FOR SICK LEAVE PREVIOUSLY GRANTED IN ORDER TO AVOID A FORFEITURE AT THE END OF THE LEAVE YEAR. HERE THE RECORD SHOWS THAT A CLERICAL ERROR IN ENTERING THE ABSENCE AS A CHARGE AGAINST SICK LEAVE PREVENTED THE APPROPRIATE CHARGE BEING MADE AGAINST ANNUAL LEAVE WHICH HAD BEEN REQUESTED AND APPROVED.

ACCORDINGLY, ANNUAL LEAVE SHOULD BE SUBSTITUTED FOR THE SICK LEAVE CHARGED FOR THE PERIOD IN QUESTION AND MR. COLQUITT'S SICK LEAVE ACCOUNT RECREDITED ACCORDINGLY. ASSUMING, THAT THE ADDITIONAL SICK LEAVE RESULTING FROM SUCH ADJUSTMENT WOULD HAVE BEEN GRANTED TO HIM PRIOR TO HIS RETIREMENT FOR DISABILITY, MR. COLQUITT SHOULD BE RESTORED TO THE ROLLS AND HIS SEPARATION DATE EXTENDED FOR THAT PURPOSE. THE CIVIL SERVICE COMMISSION SHOULD BE ADVISED IN ORDER THAT WHATEVER ADJUSTMENTS ARE NECESSARY IN RETIREMENT PAYMENTS TO MR. COLQUITT MAY BE MADE.