B-175976, SEP 5, 1972

B-175976: Sep 5, 1972

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THERE IS NO BASIS IN LAW FOR THE PAYMENT FOR UNUSED SICK LEAVE. IT DOES APPEAR THAT COLONEL BORCHERS WAS OVERPAID AS HIS RETIREMENT DATE SHOULD HAVE BEEN OCTOBER 4. THE OVERPAYMENT IS HEREBY WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584. WALTERS: THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF MAY 11. AT THE OUTSET WE MUST POINT OUT THERE IS NO BASIS IN LAW FOR THE PAYMENT FOR UNUSED SICK LEAVE. HENCE NO BASIS FOR ENTERTAINING A CLAIM SUCH AS YOU HAVE PRESENTED. EXHIBIT A TO YOUR LETTER IS A LETTER DATED SEPTEMBER 13. IT IS STATED THAT COLONEL BORCHERS HAD RECEIVED A UNITED STATES CIVIL SERVICE COMMISSION NOTICE OF APPROVAL OF DISABILITY RETIREMENT DATED AUGUST 25. EXHIBIT D TO YOUR LETTER IS A COPY OF THE REPLY DATED OCTOBER 26.

B-175976, SEP 5, 1972

NATIONAL GUARD TECHNICIANS - TERMINATION OF MILITARY STATUS - SICK LEAVE DENIAL OF CLAIM ON BEHALF OF COLONEL GEORGE B. BORCHERS FOR 859 HOURS OF SICK LEAVE LOST INCIDENT TO HIS SEPARATION AS A NATIONAL GUARD CIVILIAN TECHNICIAN. THERE IS NO BASIS IN LAW FOR THE PAYMENT FOR UNUSED SICK LEAVE. THE LAW PROVIDES FOR THE GRANTING OF SICK LEAVE IN KIND ONLY, AND IT MAY BE GRANTED ONLY TO AN EMPLOYEE ON THE ROLLS OF A DEPARTMENT OR AGENCY. ALSO, IT DOES APPEAR THAT COLONEL BORCHERS WAS OVERPAID AS HIS RETIREMENT DATE SHOULD HAVE BEEN OCTOBER 4, 1971, RATHER THAN DECEMBER 18, 1971. SINCE IT APPEARS THAT THE ERRONEOUS PAYMENT OCCURRED WITHOUT ANY FAULT ON THE PART OF CLAIMANT, THE OVERPAYMENT IS HEREBY WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584.

TO MR. CLARENCE D. WALTERS:

THIS IS IN FURTHER REFERENCE TO YOUR LETTER OF MAY 11, 1972, WITH ATTACHMENTS, REQUESTING THAT WE REVIEW THE MATERIAL SUBMITTED WITH YOUR LETTER CONCERNING THE DENIAL OF A CLAIM SUBMITTED BY YOUR CLIENT, COLONEL GEORGE B. BORCHERS, FOR 859 HOURS OF SICK LEAVE LOST INCIDENT TO HIS SEPARATION AS A NATIONAL GUARD CIVILIAN TECHNICIAN.

AT THE OUTSET WE MUST POINT OUT THERE IS NO BASIS IN LAW FOR THE PAYMENT FOR UNUSED SICK LEAVE, AND HENCE NO BASIS FOR ENTERTAINING A CLAIM SUCH AS YOU HAVE PRESENTED. THE LAW PROVIDES FOR THE GRANTING OF SICK LEAVE IN KIND ONLY, AND IT MAY BE GRANTED ONLY TO AN EMPLOYEE ON THE ROLLS OF A DEPARTMENT OR AN AGENCY.

EXHIBIT A TO YOUR LETTER IS A LETTER DATED SEPTEMBER 13, 1971, FROM THE COMMANDING GENERAL OF THE CALIFORNIA STATE MILITARY FORCES TO THE CHIEF, NATIONAL GUARD BUREAU (NGB) REQUESTING AUTHORITY TO RETAIN COLONEL BORCHERS ON THE TECHNICIAN EMPLOYMENT ROLLS IN ORDER TO GRANT TO HIM UNUSED SICK LEAVE. IT IS STATED THAT COLONEL BORCHERS HAD RECEIVED A UNITED STATES CIVIL SERVICE COMMISSION NOTICE OF APPROVAL OF DISABILITY RETIREMENT DATED AUGUST 25, 1971, AND HIS ACCRUED SICK LEAVE WOULD BE EXHAUSTED ON JUNE 19, 1972; HOWEVER, HE HAD LOST ACTIVE MILITARY STATUS IN THE CALIFORNIA ARMY NATIONAL GUARD BY TRANSFER TO THE RETIRED RESERVE EFFECTIVE SEPTEMBER 4, 1971, DUE TO LENGTH OF SERVICE UNDER THE PROVISIONS OF 10 U.S.C. 3851.

EXHIBIT D TO YOUR LETTER IS A COPY OF THE REPLY DATED OCTOBER 26, 1971, FROM NGB DENYING - FOR THE REASONS DISCUSSED BELOW - THE REQUEST CONCERNING COLONEL BORCHERS' SICK LEAVE SET FORTH IN EXHIBIT A UNLESS HIS ASSIGNMENT TO THE RETIRED RESERVE COULD BE DEFERRED AND HIS NATIONAL GUARD MEMBERSHIP CONTINUED. THE RECORD BEFORE US DOES NOT SHOW WHAT IF ANY EFFORTS WERE MADE UNDER THE AUTHORITY OF 10 U.S.C. 3851(C) TO DEFER THE ASSIGNMENT OF COLONEL BORCHERS TO THE RETIRED RESERVE.

EXHIBIT B TO YOUR LETTER IS A COPY OF YOUR LETTER DATED FEBRUARY 16, 1972, TO THE CIVIL SERVICE COMMISSION REQUESTING THAT IT PAY $11,258.05 - YOUR COMPUTATION OF THE VALUE OF COLONEL BORCHERS' UNUSED SICK LEAVE. EXHIBIT C IS THE REPLY OF APRIL 12, 1972, BY THE CIVIL SERVICE COMMISSION POINTING OUT THAT THE DATE OF SEPARATION AND THE USE OF SICK LEAVE ARE FOR DETERMINATION BY THE EMPLOYING AGENCY.

IN RESPONSE TO OUR REQUEST NGB REPORTED THAT COLONEL BORCHERS WAS RETAINED ON THE ROLLS IN SICK LEAVE STATUS UNTIL DECEMBER 18, 1971, WHEN HE WAS SEPARATED FOR REASON OF DISABILITY RETIREMENT. ADDITIONALLY, NGB RESTATED ITS VIEWS AS TO COLONEL BORCHERS' LEAVE AS SET FORTH IN EXHIBIT D TO YOUR LETTER.

THE STATUTORY AUTHORITY PROVIDING FOR THE CIVILIAN STATUS OF NATIONAL GUARD TECHNICIANS IS FOUND IN 32 U.S.C. 709 AS ADDED BY PUBLIC LAW 90 486, THE NATIONAL GUARD TECHNICIANS ACT OF 1968, 82 STAT. 755.

PERTINENT SECTIONS OF 32 U.S.C. 709 PROVIDE:

"SEC 709. TECHNICIANS: EMPLOYMENT, USE, STATUS

"(E) NOTWITHSTANDING ANY OTHER PROVISION OF LAW AND UNDER REGULATIONS PRESCRIBED BY THE SECRETARY CONCERNED -

"(1) A TECHNICIAN WHO IS EMPLOYED IN A POSITION IN WHICH NATIONAL GUARD MEMBERSHIP IS REQUIRED AS A CONDITION OF EMPLOYMENT AND WHO IS SEPARATED FROM THE NATIONAL GUARD OR CEASES TO HOLD THE MILITARY GRADE SPECIFIED FOR HIS POSITION BY THE SECRETARY CONCERNED SHALL BE PROMPTLY SEPARATED FROM HIS TECHNICIAN EMPLOYMENT BY THE ADJUTANT GENERAL OF THE JURISDICTION CONCERNED;

"(6) A TECHNICIAN SHALL BE NOTIFIED IN WRITING OF THE TERMINATION OF HIS EMPLOYMENT AS A TECHNICIAN AND SUCH NOTIFICATION SHALL BE GIVEN AT LEAST THIRTY DAYS PRIOR TO THE TERMINATION DATE OF SUCH EMPLOYMENT."

THE NGB REPORTS THAT AFTER LOSS OF MILITARY MEMBERSHIP - INCLUDING CASES LIKE COLONEL BORCHERS' - ITS POLICY IS TO TERMINATE TECHNICIAN STATUS IN NOT TO EXCEED 30 DAYS FROM THE EFFECTIVE DATE OF THE TECHNICIAN'S MILITARY DISCHARGE. IN THIS CONNECTION NGB REGULATION, NGB 690-2 ANGR 40-41 - AT PARAGRAPH 7-17 IN PART READS:

"A TECHNICIAN IN THE EXCEPTED SERVICE FOUND PHYSICALLY DISQUALIFIED FOR NATIONAL GUARD MEMBERSHIP AND DISCHARGED FROM THE NATIONAL GUARD, WILL BE CONTINUED IN EMPLOYMENT AND PAY STATUS AS A NONGUARD EXCEPTED TECHNICIAN NOT TO EXCEED 30 DAYS FOLLOWING THE EFFECTIVE DATE OF HIS MILITARY DISCHARGE, UNLESS SOONER PLACED IN A PAID, RETIRED, OR DISABLED STATUS."

TO ACCORD WITH THE ABOVE LAW AND REGULATION, IT APPEARS THAT THE SEPARATION DATE FOR COLONEL BORCHERS SHOULD HAVE BEEN ESTABLISHED OCTOBER 4, 1971, RATHER THAN DECEMBER 18, 1971. ACCORDINGLY, THE PAYMENT OF COMPENSATION FROM THAT DATE TO DECEMBER 18, THE DATE OF HIS SEPARATION, WAS IN FACT ERRONEOUS AND SUBJECT TO RECOVERY. UNDER THE CIRCUMSTANCES, HOWEVER, IT APPEARING THAT SUCH ERRONEOUS PAYMENT WAS MADE WITHOUT ANY FAULT ON THE PART OF COLONEL BORCHERS OR ANY OTHER INTERESTED PARTY, THE INDEBTEDNESS IS HEREBY WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584.

OTHER THAN THE ABOVE-MENTIONED OVERPAYMENT, IT APPEARS THAT THE SEPARATION OF COLONEL BORCHERS WITHOUT THE GRANTING OF SICK LEAVE WAS CONSISTENT WITH THE ESTABLISHED LAW, REGULATION, AND POLICY OF THE BUREAU. ACCORDINGLY, THERE IS NO BASIS FOR INITIATING ACTION TO RESTORE COLONEL BORCHERS TO THE ROLLS FOR THE PURPOSE OF GRANTING SICK LEAVE.