B-176093, JUL 10, 1972

B-176093, JUL 10, 1972

CIVILIAN EMPLOYEE - "USE OR LOSE" ANNUAL LEAVE - PROPRIETY OF SUBSTITUTION FOR SICK LEAVE CONCERNING THE PROPRIETY OF SUBSTITUTING ANNUAL LEAVE FOR SICK LEAVE IN THE CIRCUMSTANCES OF VINCENT A. SICA, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY. SINCE THE DURATION OF MR. SICA'S ILLNESS EXTENDED THROUGH A CONSIDERABLE PART OF TWO LEAVE YEARS, IT IS PRESUMED THAT HE WOULD HAVE CHOSEN TO APPLY THE FORFEITABLE ANNUAL LEAVE TO COVER AN EQUIVALENT PERIOD OF ABSENCE PRIOR TO THE CLOSE OF THE 1971 LEAVE YEAR, HAD HE BEEN ABLE TO DO SO. ACCORDINGLY, THE COMP. GEN. WOULD HAVE NO OBJECTION TO SUBSTITUTION OF THE FORFEITED ANNUAL LEAVE.

TO H. W. UTMAN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 10, 1972, REFERENCE DCRB-FA, AND ENCLOSURES, IN WHICH YOU REQUEST OUR DECISION AS TO WHETHER YOUR DENIAL OF SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE TO MR. VINCENT A. SICA, AN EMPLOYEE OF THE DEFENSE SUPPLY AGENCY, DURING THE PERIOD SEPTEMBER 16, 1971, THROUGH MARCH 29, 1972, WAS PROPER UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED. THE ENTIRE PERIOD OF ILLNESS HAD BEEN CHARGED TO SICK LEAVE, BUT THE EMPLOYEE SUBSEQUENTLY REQUESTED THAT 18 HOURS OF ANNUAL LEAVE THAT WAS FORFEITED AT THE END OF THE 1971 LEAVE YEAR BE SUBSTITUTED FOR AN EQUIVALENT AMOUNT OF SICK LEAVE.

THE RECORD SHOWS THAT MR. SICA BECAME ILL AT WORK ON SEPTEMBER 16, 1971, AND WAS INCAPACITATED IN THE HOSPITAL AND IN HIS HOME FROM THAT DATE UNTIL MARCH 29, 1972. HE STATES THAT AFTER HE RETURNED TO WORK HE NOTED THAT 18 HOURS OF "USE OR LOSE" ANNUAL LEAVE HAD NOT BEEN CREDITED TO THE SICK LEAVE HE HAD USED PRIOR TO THE CLOSE OF THE PRECEDING LEAVE YEAR. MR. SICA EXPLAINS THAT HE WAS UNAWARE THAT HE HAD TO REQUEST THE SUBSTITUTION OF THE ANNUAL LEAVE FOR SICK LEAVE PRIOR TO THE END OF THE LEAVE YEAR, THAT DUE TO THE EXTENT TO WHICH HE WAS INCAPACITATED IT WAS THE FURTHEST THING FROM HIS MIND TO CHECK ON HIS LEAVE STATUS, AND HE ASSUMED THAT HIS BEST INTERESTS WOULD BE PROTECTED AND THAT "THIS TYPE OF LEAVE WOULD AUTOMATICALLY BE TRANSFERRED."

THE REQUEST FOR SUBSTITUTION OF THE 18 HOURS OF ANNUAL LEAVE WAS ADMINISTRATIVELY DENIED IN VIEW OF OUR DECISION B-108632, APRIL 18, 1952, PUBLISHED AT 31 COMP. GEN. 524, AND UPON INSTRUCTION 8 (OCTOBER 16, 1964), FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, SUBCHAPTER S3, BOOK 630, CITING SUCH DECISION. IN 31 COMP. GEN. 524 WE HELD THAT UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, AND REGULATIONS ISSUED PURSUANT THERETO, ANNUAL LEAVE MAY NOT BE SUBSTITUTED FOR SICK LEAVE PREVIOUSLY GRANTED FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A CALENDAR YEAR.

THE ABOVE-CITED DECISION EXPLICITLY RECOGNIZES THAT ABSENCE DUE TO ILLNESS MAY BE CHARGED TO ACCRUED ANNUAL LEAVE IF TIMELY REQUESTED BY THE EMPLOYEE AND APPROVED BY THE ADMINISTRATIVE OFFICE CONCERNED. IN THIS PARTICULAR CASE, SINCE THE EMPLOYEE'S ILLNESS COMMENCED A CONSIDERABLE PERIOD OF TIME PRIOR TO THE END OF THE LEAVE YEAR AND EXTENDED THROUGH THE END OF THE YEAR UNTIL MARCH 29 OF THE FOLLOWING LEAVE YEAR, THUS FORECLOSING THE POSSIBILITY OF HIS USING ACCRUED ANNUAL LEAVE TO COVER ABSENCES OTHER THAN FOR ILLNESS SUCH AS FOR VACATION PURPOSES, WE PRESUME THAT THE EMPLOYEE, HAD HE BEEN APPRISED OF THE STATE OF HIS LEAVE ACCOUNT (18 HOURS OF EXCESS ANNUAL LEAVE) AND HAD HE BEEN ABLE TO DO SO, WOULD HAVE CHOSEN TO APPLY THE FORFEITABLE ANNUAL LEAVE TO COVER AN EQUIVALENT PERIOD OF ABSENCE PRIOR TO THE CLOSE OF THE 1971 LEAVE YEAR. IN VIEW THEREOF, AND SINCE THE LACK OF KNOWLEDGE OF HIS LEAVE BALANCE DOES NOT APPEAR TO BE ATTRIBUTABLE TO ANY FAULT ON THE PART OF THE EMPLOYEE, THIS OFFICE WOULD INTERPOSE NO OBJECTION TO THE SUBSTITUTION OF ANNUAL LEAVE, IN THE AMOUNT HERETOFORE CONSIDERED AS FORFEITED, FOR AN EQUIVALENT AMOUNT OF SICK LEAVE CHARGED FOR THE 1971 LEAVE YEAR.

THE ENCLOSURES FORWARDED WITH YOUR LETTER ARE RETURNED.