B-180857, AUG 27, 1974

B-180857: Aug 27, 1974

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WHO RESIGNED HIS POSITION TO ACCEPT EMPLOYMENT WITH THE FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED NATIONS MAY NOT BE RECREDITED UNDER PROVISIONS OF 5 U.S.C. 3582 GOVERNING RIGHTS OF EMPLOYEES SERVING IN INTERNATIONAL ORGANIZATIONS WHEN HE WAS REEMPLOYED BY THE GEOLOGICAL SURVEY MORE THAN 3 YEARS LATER SINCE HE WAS NOT TRANSFERRED OR DETAILED TO THE INTERNATIONAL POSITION AND EXCEEDED THE MAXIMUM 3 YEAR PERIOD OF SERVICE. 2. WHO WAS RECENTLY REEMPLOYED BY THE UNITED STATES GEOLOGICAL SURVEY. CORSO WAS REEMPLOYED IN A POSITION WITH THE UNITED STATES GEOLOGICAL SURVEY. REEMPLOYMENT AFTER SERVICE WITH INTERNATIONAL ORGANIZATIONS SUCH AS THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNIED NATIONS IS GOVERNED BY THE PROVISIONS OF 5 U.S.C. 3581 ET SEQ.

B-180857, AUG 27, 1974

1. SICK LEAVE OF EMPLOYEE OF UNITED STATES GEOLOGICAL SURVEY, DEPARTMENT OF INTERIOR, WHO RESIGNED HIS POSITION TO ACCEPT EMPLOYMENT WITH THE FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED NATIONS MAY NOT BE RECREDITED UNDER PROVISIONS OF 5 U.S.C. 3582 GOVERNING RIGHTS OF EMPLOYEES SERVING IN INTERNATIONAL ORGANIZATIONS WHEN HE WAS REEMPLOYED BY THE GEOLOGICAL SURVEY MORE THAN 3 YEARS LATER SINCE HE WAS NOT TRANSFERRED OR DETAILED TO THE INTERNATIONAL POSITION AND EXCEEDED THE MAXIMUM 3 YEAR PERIOD OF SERVICE. 2. SICK LEAVE OF REEMPLOYED EMPLOYEE MAY NOT BE RECREDITED WHERE SERVICE BREAK EXCEEDS 3 YEARS UNDER 5 CFR 630,502(B)(1).

RICHARD E. CORSO - RECREDIT OF PREVIOUS SICK LEAVE BALANCE ON REEMPLOYMENT:

THIS MATTER INVOLVES A REQUEST FOR AN ADVANCE DECISION AS TO WHETHER THE SICK LEAVE BALANCE AMOUNTING TO OVER 700 HOURS OF MR. RICHARD E. CORSO, WHO WAS RECENTLY REEMPLOYED BY THE UNITED STATES GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR, MAY BE RECREDITED TO HIS LEAVE ACCOUNT.

IN EARLY 1970, THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS REQUESTED THE UNITED STATES GEOLOGICAL SURVEY TO TRANSFER MR. CORSO TO THE UNITED NATIONS FOR A 3 YEAR TOUR OF DUTY UNDER PROVISIONS OF 5 U.S.C. 3581 ET SEQ. THE UNITED STATES GEOLOGICAL SURVEY DENIED THE REQUEST, WHEREUPON MR. CORSO RESIGNED HIS POSITION WITH THE FEDERAL SERVICE ON MAY 8, 1970, AND ACCEPTED EMPLOYMENT WITH THE INTERNATIONAL ORGANIZATION. ON JUNE 18, 1973, MR. CORSO WAS REEMPLOYED IN A POSITION WITH THE UNITED STATES GEOLOGICAL SURVEY, COMPARABLE TO THE ONE FROM WHICH HE RESIGNED OVER 3 YEARS EARLIER, AND NOW REQUESTS THAT CONSIDERATION BE GIVEN TO RECREDITING HIS LEAVE ACCOUNT WITH THE SICK LEAVE HE HAD ACCRUED DURING HIS PRIOR FEDERAL SERVICE IN VIEW OF THE POLICY OF THE UNITED STATES GOVERNMENT TO ENCOURAGE FEDERAL EMPLOYEES TO SERVE WITH INTERNATIONAL ORGANIZATIONS.

REEMPLOYMENT AFTER SERVICE WITH INTERNATIONAL ORGANIZATIONS SUCH AS THE FOOD AND AGRICULTURE ORGANIZATION OF THE UNIED NATIONS IS GOVERNED BY THE PROVISIONS OF 5 U.S.C. 3581 ET SEQ. IN THIS CONNECTION, SECTION 3582 PROVIDES IN PERTINENT PART AS FOLLOWS:

"SEC. 3582. RIGHTS OF TRANSFERRING EMPLOYEES

"(A) AN EMPLOYEE SERVING UNDER AN APPOINTMENT NOT LIMITED TO ! YEAR OR LESS WHO TRANSFERS TO AN INTERNATIONAL ORGANIZATION WITH THE CONSENT OF THE HEAD OF HIS AGENCY IS ENTITLED -

"(4) TO ELECT TO RETAIN TO HIS CREDIT ALL ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE TO WHICH ENTITLED AT THE TIME OF TRANSFER WHICH WOULD OTHERWISE BE LIQUIDATED BY A LUMP-SUM PAYMENT. ON HIS REQUEST AT ANY TIME BEFORE REEMPLOYMENT, HE SHALL BE PAID FOR THE ANNUAL LEAVE RETAINED. HE RECEIVES A LUMP-SUM PAYMENT AND IS REEMPLOYED WITHIN 6 MONTHS AFTER TRANSFER, HE SHALL REFUND TO THE AGENCY THE AMOUNT OF THE LUMP-SUM PAYMENT. THIS PARAGRAPH DOES NOT OPERATE TO CAUSE A FORFEITURE OF RETAINED ANNUAL LEAVE FOLLOWING REEMPLOYMENT OR TO DEPRIVE AN EMPLOYEE OF A LUMP-SUM PAYMENT TO WHICH HE WOULD OTHERWISE BE ENTITLED.

"(B) AN EMPLOYEE ENTITLED TO THE BENEFITS OF SUBSECTION (A) OF THIS SECTION, EXCEPT A CONGRESSIONAL EMPLOYEE, IS ENTITLED TO BE REEMPLOYED WITHIN 30 DAYS OF HIS APPLICATION FOR REEMPLOYMENT IN HIS FORMER POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY IN THE AGENCY FROM WHICH HE TRANSFERRED, IF -

"(1) HE IS SEPARATED FROM THE INTERNATIONAL ORGANIZATION WITHIN 3 YEARS AFTER ENTERING ON DUTY WITH THE INTERNATIONAL ORGANIZATION OR WITHIN SUCH SHORTER PERIOD AS MAY BE NAMED BY THE HEAD OF THE AGENCY AT THE TIME OF CONSENT TO TRANSFER; AND

"(2) HE APPLIES FOR REEMPLOYMENT NOT LATER THAN 90 DAYS AFTER THE SEPARATION.

"ON REEMPLOYMENT, HE IS ENTITLED TO THE RATE OF BASIC PAY TO WHICH HE WOULD BE ENTITLED HAD HE REMAINED IN THE CIVIL SERVICE. ON REEMPLOYMENT, THE AGENCY SHALL RESTORE HIS SICK LEAVE ACCOUNT, BY CREDIT OR CHARGE, TO ITS STATUS AT THE TIME OF TRANSFER. THE PERIOD OF SEPRATION CAUSED BY HIS EMPLOYMENT WITH THE INTERNATIONAL ORGANIZATION AND THE PERIOD NECESSARY TO EFFECT REEMPLOYMENT ARE DEEMED CREDITABLE SERVICE FOR ALL APPROPRIATE CIVIL SERVICE EMPLOYMENT PURPOSES.

"(C) THIS SECTION APPLIES ONLY WITH RESPECT TO SO MUCH OF A PERIOD OF EMPLOYMENT WITH AN INTERNATIONAL ORGANIZATION AS DOES NOT EXCEED 3 YEARS OR SUCH SHORTER PERIOD NAMED BY THE HEAD OF THE AGENCY AT THE TIME OF CONSENT TO TRANSFER, ***."

THE ABOVE-QUOTED STATUTE HAS BEEN IMPLEMENTED BY REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION AS SET FORTH IN 5 CFR 352 SUBPART C. A REVIEW OF THE ABOVE-QUOTED STATUTE AND AFOREMENTIONED REGULATION INDICATES THAT SICK LEAVE MAY BE RECREDITED ONLY TO A REEMPLOYED EMPLOYEE WHO WAS DETAILED OR TRANSFERRED TO AN INTERNATIONAL O[GANIZATION AND WHO SERVED WITH SUCH ORGANIZATIONS FOR A PERIOD NOT TO EXCEED 3 YEARS.

THE RECORD SHOWS THAT MR. CORSO'S REQUEST FOR AN OFFICIAL 3 YEAR TRANSFER TO THE INTERNATIONAL ORGANIZATION WITH MANDATORY REINSTATEMENT RIGHTS WAS DENIED BY THE GEOLOGICAL SURVEY AND HE THEN RESIGNED AND ACCEPTED INTERNATIONAL SERVICE INDEPENDENTLY. INASMUCH AS MR. CORSO WAS NOT DETAILED OR TRANSFERRED TO THE INTERNATIONAL ORGANIZATION SO AS TO COME WITHIN THE PURVIEW OF THE STATUTE AND INASUCH AS HE ALSO EXCEEDED THE 3 YEAR LIMITATION ON EMPLOYMENT WITH SUCH ORGANIZATION, HIS SERVICE WOULD NOT ENTITLE HIM TO THE RIGHTS AND BENEFITS ENUMBERATED IN 5 U.S.C. 3582, INCLUDING THE RESTORATION OF HIS SICK LEAVE ACCOUNT.

WE ALSO CONSIDERED THE APPLICABILITY OF THE GENERAL CIVIL SERVICE COMMISSION REGULATIONS GOVERNING THE RECREDITING OF SICK LEAVE FOR PERSONS REEMPLOYED IN THE FEDERAL SERVICE FOR A POSSIBLE SOURCE OF RELIEF. THESE REGULATIONS ARE CONTAINED IN 5 CFR 630.502(B)(1) AND PROVIDE:

"SEC. 630.502 SICK LEAVE RECREDIT.

"(B)(1) *** AN EMPLOYEE WHO IS SEPARATED FROM THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO A RECREDIT OF HIS SICK LEAVE IF HE IS REEMPLOYED IN THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, WITHOUT A BREAK IN SERVICE OF MORE THAN 3 YEARS."

SINCE MR. CORSO'S BREAK IN SERVICE WAS FOR A PERIOD GREATER THAN 3 YEARS, HIS SICK LEAVE BALANCE MAY NOT BE RESTORED TO HIS LEAVE ACCOUNT UNDER THIS PROVISION EITHER OR UNDER ANY OTHER AUTHORITY OF WHICH WE ARE AWARE.