B-171351, JAN 18, 1971

B-171351, JAN 18, 1971

COMPENSATION - SICK LEAVE - RECORD DESTRUCTION PROGRAM DECISION ALLOWING THE RECREDITING OF SICK LEAVE TO THE ACCOUNT OF MRS. JUANITA NORRIS, AN EMPLOYEE OF THE IRS, ALTHOUGH LEAVE RECORDS ARE NOT AVAILABLE DUE TO THE RECORD DESTRUCTION PROGRAM. THE SICK LEAVE WITH WHICH AN EMPLOYEE MAY BE CREDITED IS PRIMARILY A MATTER FOR DETERMINATION BY THE AGENCY IN WHICH SHE IS CURRENTLY EMPLOYED AND SINCE FAILURE TO REQUEST THE TRANSFER OF SICK LEAVE ON CHANGE OF JOBS WAS DUE TO INADVERTENCE ON THE PART OF THE AGENCIES INVOLVED, AND MRS. NORRIS COULD NOT BE EXPECTED TO KNOW OF THE CHANGE IN REGULATIONS THAT WOULD HAVE PERMITTED HER TO TRANSFER THE LEAVE WITHIN THE NEW THREE YEAR PERIOD BETWEEN JOBS, IT CANNOT BE SAID THAT SHE WAS AT FAULT.

TO MR. STANLEY J. TREASURE:

THIS IS IN REPLY TO YOUR LETTER OF NOVEMBER 18, 1970, REFERENCE D:MI:DC:F, REQUESTING OUR DECISION AS TO WHETHER SICK LEAVE MAY BE RECREDITED TO THE ACCOUNT OF MRS. JUANITA NORRIS, AN EMPLOYEE OF YOUR AGENCY, ALTHOUGH LEAVE RECORDS ARE NOT AVAILABLE DUE TO THE RECORD DESTRUCTION PROGRAM.

THE FILE SUBMITTED BY YOU INDICATES THAT MRS. NORRIS (EMPLOYED BY YOUR AGENCY SINCE JUNE 9, 1964) IN THE EARLY PART OF 1969 REQUESTED RECREDIT OF THE SICK LEAVE EARNED BY HER WHILE SHE WAS EMPLOYED BY STEAD AIR FORCE BASE, NEVADA, DURING THE PERIOD AUGUST 6, 1956, TO AUGUST 29, 1962, LESS 24 HOURS OF LEAVE WHICH MRS. NORRIS STATES SHE USED. YOUR DOUBT IN THE MATTER ARISES BECAUSE MRS. NORRIS DID NOT REQUEST RECREDIT OF THE LEAVE UNTIL APPROXIMATELY 5 YEARS AFTER HER REEMPLOYMENT AND THE FACT THE AMOUNT OF LEAVE ALLEGED TO HAVE BEEN USED IS RATHER SMALL CONSIDERING THE PERIOD OF 6 YEARS INVOLVED; ALSO, THE SOLE CORROBORATING EVIDENCE IS AN AFFIDAVIT FROM ONE OF MRS. NORRIS'S SUPERVISORS COVERING THE PERIOD FROM 1956 TO 1961.

THE RECORD INDICATES MRS. NORRIS HAD PREVIOUSLY BEEN EMPLOYED BY THE GOVERNMENT FROM 1943 TO 1946 AND FROM 1948 TO 1952, WHEN RECREDIT OF SICK LEAVE COULD ONLY BE MADE IF THE INDIVIDUAL WAS REEMPLOYED WITHIN 90 DAYS OR 52 WEEKS, RESPECTIVELY. ALTHOUGH THE PERIOD DURING WHICH SICK LEAVE COULD BE RECREDITED FOLLOWING A BREAK IN SERVICE HAD BEEN CHANGED TO 3 YEARS EFFECTIVE JANUARY 9, 1962, AND MRS. NORRIS WAS EMPLOYED AT STEAD AIR FORCE BASE UNTIL AUGUST 29, 1962, IT APPEARS SHE WAS NOT AWARE OF THE CHANGE AND HER PRIOR SERVICE WOULD NOT ALERT HER TO THE FACT THAT RECREDIT OF SICK LEAVE COULD BE MADE. THE ADMINISTRATIVE OFFICE ADVISES THAT THERE WAS NOTHING IN THE RECORD TRANSMITTED TO IT BY MRS. NORRIS'S FORMER EMPLOYER TO PUT IT ON NOTICE THAT MRS. NORRIS HAD A SICK LEAVE BALANCE TO HER CREDIT UPON SEPARATION FROM HER FORMER POSITION. THE DISTRICT PERSONNEL OFFICER, RENO DISTRICT, INTERNAL REVENUE SERVICE, STATES THAT HE DID NOT PERSONALLY KNOW THAT MRS. NORRIS'S SICK LEAVE BALANCE HAD NOT BEEN TRANSFERRED WHEN SHE WAS GRANTED LEAVE WITHOUT PAY DUE TO SURGERY IN 1965, OTHERWISE HE WOULD HAVE MADE AN ISSUE OF IT AT THAT TIME.

THE AMOUNT OF ANNUAL AND SICK LEAVE WITH WHICH AN EMPLOYEE MAY BE CREDITED IS PRIMARILY A MATTER FOR DETERMINATION BY THE AGENCY IN WHICH HE IS CURRENTLY EMPLOYED. ACCORDINGLY, THE ADMINISTRATIVE OFFICE SHOULD MAKE THE FINAL DETERMINATION IN THE MATTER. HOWEVER, IT APPEARS THAT THE FAILURE TO REQUEST THE TRANSFER OF SICK LEAVE IN 1964 WAS DUE TO THE INADVERTANCE ON THE PART OF THE AGENCIES INVOLVED. IN VIEW OF THIS AND SINCE MRS. NORRIS COULD NOT BE EXPECTED TO KNOW OF THE CHANGES IN THE REGULATIONS, IT CANNOT BE SAID THAT SHE WAS AT FAULT IN THE MATTER. WHILE THE AFFIDAVIT OF MRS. NORRIS'S FORMER SUPERVISOR COVERS ONLY THE PERIOD 1956 TO 1961, IT DOES COVER THE GREATER PART OF HER SERVICE FROM 1956 TO 1962 AND STATES THAT TO THE BEST OF HIS KNOWLEDGE (THE SUPERVISOR'S) NO SICK LEAVE WAS TAKEN DURING THE PERIOD COVERED. THEREFORE IT MAY BE CONSIDERED AS CORROBORATING MRS. NORRIS'S STATEMENT AS TO THE AMOUNT OF HER SICK LEAVE BALANCE. UNDER THE CIRCUMSTANCES, WE SEE NO OBJECTION TO YOUR AGENCY CREDITING HER ACCOUNT WITH THE SICK LEAVE PREVIOUSLY ACCRUED.