B-172130, JUN 29, 1971

B-172130: Jun 29, 1971

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PFREIMER: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 1. YOU ACCEPTED A COMMISSION IN THE PUBLIC HEALTH SERVICE AND WERE PLACED ON ACTIVE DUTY. TO ACCEPT A COMMISSION IN THE UNITED STATES ARMY AND WERE ON ACTIVE DUTY UNDER THAT COMMISSION UNTIL JUNE 25. YOU SAID FURTHER THAT THERE WAS NO BREAK IN SERVICE AS A CIVILIAN BY ACCEPTING A COMMISSION IN THE PUBLIC HEALTH SERVICE. SINCE OUR OFFICE HAD HELD THAT THE PUBLIC HEALTH SERVICE WAS A CIVILIAN SERVICE PRIOR TO NOVEMBER 11. YOUR CLAIM FOR COMPENSATION FOR ACCUMULATED LEAVE WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THEREIN STATED. YOU SAY THAT YOU ARE NOT SEEKING MONETARY REIMBURSEMENT. THERE WAS A LIMITATION ON THE ACCUMULATION OF ANNUAL LEAVE FOR CIVILIAN EMPLOYEES IN THE UNITED STATES TO THE EXTENT OF 60 DAYS.

B-172130, JUN 29, 1971

CIVILIAN PERSONNEL - ANNUAL AND SICK LEAVE DECISION DENYING REQUEST OF MR. HAROLD A. PFREIMER FOR RECREDIT OF ANNUAL AND SICK LEAVE ACCRUED AS A CIVILIAN EMPLOYEE PRIOR TO THE SECOND WORLD WAR UPON REEMPLOYMENT IN A CIVILIAN CAPACITY WITH THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) ON SEPTEMBER 3, 1946, AFTER TERMINATION OF MILITARY SERVICE, BECAUSE OF THE UNAVAILABILITY OF RECORDS TO SUBSTANTIATE THE CLAIM.

TO MR. HAROLD A. PFREIMER:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 1, 1971, WHEREIN YOU SEEK CREDIT FOR ANNUAL AND SICK LEAVE YOU ACCRUED UPON YOUR REEMPLOYMENT IN A CIVILIAN CAPACITY WITH THE WAR DEPARTMENT (NOW DEPARTMENT OF THE ARMY) ON SEPTEMBER 3, 1946, AFTER TERMINATION OF MILITARY SERVICE.

ON OCTOBER 29, 1946, YOU PRESENTED A CLAIM TO OUR OFFICE STATING THAT YOU HAD BEEN EMPLOYED IN A CIVILIAN CAPACITY IN THE WAR DEPARTMENT FROM JUNE 12, 1939, TO JULY 22, 1941, AND WITH THE PUBLIC HEALTH SERVICE FROM JULY 23, 1941, TO JULY 18, 1942. YOU SAID FURTHER THAT ON JULY 19, 1942, YOU ACCEPTED A COMMISSION IN THE PUBLIC HEALTH SERVICE AND WERE PLACED ON ACTIVE DUTY. YOU RESIGNED THEREFROM ON MAY 31, 1943, TO ACCEPT A COMMISSION IN THE UNITED STATES ARMY AND WERE ON ACTIVE DUTY UNDER THAT COMMISSION UNTIL JUNE 25, 1946.

IN YOUR CLAIM YOU SAID THAT YOU HAD ACCUMULATED 22 DAYS, 2 HOURS, ANNUAL LEAVE AND 40 DAYS, 7 HOURS SICK LEAVE, WHILE IN YOUR CIVILIAN POSITION PRIOR TO ACCEPTANCE OF A COMMISSION. YOU SAID FURTHER THAT THERE WAS NO BREAK IN SERVICE AS A CIVILIAN BY ACCEPTING A COMMISSION IN THE PUBLIC HEALTH SERVICE, SINCE OUR OFFICE HAD HELD THAT THE PUBLIC HEALTH SERVICE WAS A CIVILIAN SERVICE PRIOR TO NOVEMBER 11, 1943. YOU THEREFORE CLAIMED ENTITLEMENT TO ALL LEAVE CREDIT, UNDER THE ACT OF AUGUST 1, 1941 (55 STAT. 616, AS AMENDED, 5 U.S.C. 61A - 1946 ED.).

BY SETTLEMENT DATED APRIL 29, 1948, YOUR CLAIM FOR COMPENSATION FOR ACCUMULATED LEAVE WAS DISALLOWED BY OUR CLAIMS DIVISION FOR THE REASON THEREIN STATED.

APPARENTLY, YOU HAD MADE NO FURTHER INQUIRY ABOUT RECREDIT OF YOUR LEAVE UNTIL YOUR PRESENT LETTER. IN THAT LETTER, YOU SAY THAT YOU ARE NOT SEEKING MONETARY REIMBURSEMENT, BUT ONLY CREDIT FOR THE ANNUAL AND SICK LEAVE YOU ACCUMULATED DURING YOUR CIVIL SERVICE PRIOR TO 1946.

UNDER THE ANNUAL LEAVE ACT OF 1936, 5 U.S.C. 30B (1946 ED.), THERE WAS A LIMITATION ON THE ACCUMULATION OF ANNUAL LEAVE FOR CIVILIAN EMPLOYEES IN THE UNITED STATES TO THE EXTENT OF 60 DAYS. DURING WORLD WAR II, THE LIMITATION WAS INCREASED TO 90 DAYS, BUT WAS REDUCED BACK TO 60 DAYS EFFECTIVE JULY 25, 1947. SEE 27 COMP. GEN. 120.

THE LIMITATION OF 60 DAYS ON ACCUMULATION OF ANNUAL LEAVE WAS RETAINED UPON THE ENACTMENT OF THE ANNUAL AND SICK LEAVE ACT OF 1951, OCTOBER 30, 1951, EFFECTIVE JANUARY 6, 1952 (5 U.S.C. 2062(C), 1952 ED.). HOWEVER, THAT ACT WAS AMENDED ON JULY 2, 1952, 67 STAT. 137, TO REDUCE THE ANNUAL LEAVE ACCUMULATION LIMITATION FOR EMPLOYEES IN THE UNITED STATES TO 30 DAYS WITH CERTAIN SAVINGS PROVISIONS FOR EMPLOYEES WHO HAD ACCUMULATIONS IN EXCESS THEREOF AT THAT TIME.

WITH RESPECT TO ACCUMULATED SICK LEAVE, THE 1936 ACT (5 U.S.C. 30G 1946 ED.), PRESCRIBED 1-1/4 DAYS' ACCUMULATION EVERY MONTH WITH ACCUMULATION OF SUCH LEAVE LIMITED TO 90 DAYS. THIS WAS SUPERSEDED BY THE ANNUAL AND SICK LEAVE ACT OF 1951, REFERRED TO ABOVE, WHEREIN THE LIMITATION ON THE ACCUMULATION OF SICK LEAVE WAS REMOVED.

ASSUMING THAT A DETERMINATION COULD BE MADE THAT YOU WERE ENTITLED TO A CREDIT OF THE LEAVE WHEN YOU WERE REEMPLOYED AFTER MILITARY SERVICE WAS TERMINATED IN 1946, THERE REMAINS THE PROBLEM OF LACK OF RECORDS TO SUPPORT THE AMOUNT OF LEAVE STATED TO BE DUE YOU AS WELL AS THE APPLICATION OF STATUTORY CEILINGS IN REGARD THERETO.

ANY OFFICIAL RECORD OF THE LEAVE UNDOUBTEDLY HAS BEEN DESTROYED IN THE 25 YEARS THAT HAVE ELAPSED. MOREOVER, A RECREDIT OF LEAVE UNDER SUCH CIRCUMSTANCES WOULD REQUIRE A RECONSTRUCTION OF YOUR LEAVE ACCOUNT AS OF 1946 AND BRINGING IT FORWARD EACH YEAR TO SEE THAT YOU DID NOT EXCEED THE ACCUMULATION LIMITATIONS. IT IS POSSIBLE THAT SUCH LIMITATIONS (CEILINGS) WOULD PRECLUDE RECREDIT OF ANY PART OF THE LEAVE.

IT IS NOTED THAT THE INFORMATION YOU FURNISHED IN YOUR ORIGINAL CLAIM RELATIVE TO THE ANNUAL AND SICK LEAVE YOU ACCUMULATED PRIOR TO 1946 WAS BASED UPON YOUR RECORDS AND THERE IS NO CORROBORATION THEREOF BY GOVERNMENT RECORDS. ALSO, IN A LETTER TO THIS OFFICE DATED JUNE 3, 1971, YOU SAY THAT YOU ATTEMPTED TO SECURE INFORMATION PERTAINING TO THE ANNUAL AND SICK LEAVE YOU ACCRUED SINCE YOUR RETURN TO A CIVILIAN POSITION ON SEPTEMBER 3, 1946. HOWEVER, YOU REPORT THAT THE ONLY INFORMATION YOU WERE ABLE TO OBTAIN WAS THE ANNUAL AND SICK LEAVE YOU HAD ACCUMULATED COMMENCING JANUARY 1962.

IN THE LIGHT OF THE FOREGOING, WE MUST DECLINE TO AUTHORIZE ANY RECREDIT OF LEAVE IN YOUR CASE.