B-181087, JUN 21, 1974

B-181087, JUN 21, 1974

NAVY EMPLOYEE REQUESTED AND WAS GRANTED ANNUAL LEAVE IN CONNECTION WITH HIS HOSPITALIZATION AND RECUPERATION IN OCTOBER AND NOVEMBER 1973; HOWEVER, AFTER ENACTMENT OF PUBLIC LAW 93-181 BY WHICH LIMIT ON LUMP SUM PAYMENT FOR ANNUAL LEAVE WAS REMOVED AND APPARENTLY AFTER HIS DECISION TO RETIRE IN DECEMBER 1973 HE REQUESTED THAT SICK LEAVE BE SUBSTITUTED FOR THE ANNUAL LEAVE SO TAKEN. THE REQUEST MAY NOT BE GRANTED SINCE SUCH SUBSTITUTION INVOLVES A CHANGE IN A VESTED STATUTORY RIGHT AND SUCH CHANGES ARE NOT AUTHORIZED ABSENT A PROVISION IN A STATUTE OR STATUTORY REGULATION PROVIDING THEREFOR.

TO NAVAL SUPPLY CENTER:

THIS ACTION IS TAKEN PURSUANT TO A REQUEST FROM THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, IN LETTER DATED APRIL 11, 1974, FOR A DECISION AS TO WHETHER MR. WILLIAM E. HART, A FORMER EMPLOYEE, MAY SUBSTITUTE 30 HOURS OF SICK LEAVE FOR ANNUAL LEAVE UNDER THE CIRCUMSTANCES SET FORTH BELOW.

THE RECORD INDICATES THAT MR. HART WAS HOSPITALIZED FROM OCTOBER 11 TO 22, 1973. INCIDENT TO SUCH HOSPITALIZATION AND HIS RECUPERATION HE REQUESTED AND WAS GRANTED ANNUAL LEAVE FOR OCTOBER 11 AND OCTOBER 12, SICK LEAVE FROM OCTOBER 15 TO OCTOBER 23, AND 14 HOURS OF ANNUAL LEAVE FOR THE TIMES HE LEFT WORK EARLY DURING THE PERIOD BETWEEN OCTOBER 24 AND NOVEMBER 6, PURSUANT TO MEDICAL ADVICE. THE ANNUAL LEAVE WAS REQUESTED INSTEAD OF SICK LEAVE SINCE MR. HART HAD ANNUAL LEAVE WHICH HE HAD TO USE OR LOSE. AFTER THE ENACTMENT OF PUBLIC LAW 93-181, APPROVED DECEMBER 14, 1973, 87 STAT. 705, MR. HART REQUESTED THAT SICK LEAVE BE SUBSTITUTED FOR THE ANNUAL LEAVE USED IN CONNECTION WITH HIS HOSPITALIZATION. HIS REQUEST FOR SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE TAKEN WAS APPROVED BY HIS SUPERVISORS, AND CORRECTED TIME CARDS WERE PREPARED, BUT WERE NOT PROCESSED DUE TO THE QUESTIONABLE NATURE OF THE SUBSTITUTION ACTION. MR. HART RETIRED ON DECEMBER 31, 1973, AND RECEIVED A LUMP-SUM LEAVE PAYMENT WHICH DID NOT INCLUDE THE 30 HOURS OF ANNUAL LEAVE HEREIN INVOLVED. VOUCHER COVERING SUCH LEAVE HAS BEEN PREPARED BUT NOT PROCESSED.

THE NAVAL SUPPLY CENTER HAS SUBMITTED THE FOLLOWING QUESTIONS IN CONNECTION WITH ITS REQUEST FOR A RULING ON THE ABOVE MATTERS:

"A. MAY AN EMPLOYEE RETROACTIVELY SUBSTITUTE SICK LEAVE FOR ANNUAL LEAVE PREVIOUSLY REQUESTED, GRANTED, AND CHARGED?

"B. IF SUCH A SUBSTITUTION CAN BE ALLOWED, IS IT PERMISSIBLE WHEN IT IS APPARENTLY FOR THE PURPOSE OF INCREASING AN EMPLOYEE'S LUMP-SUM PAYMENT UNDER PROVISIONS OF PUBLIC LAW 93-181?

"C. IF THE ANSWER TO SUBPARAGRAPH 'B' IS NEGATIVE, IS IT PERTINENT IN THE CASE OF MR. HART THAT HE REQUESTED THE CHANGE PRIOR TO THE ACTUAL SIGNING OF PUBLIC LAW 93-181?"

PUBLIC LAW 93-181, AMONG OTHER THINGS, AMENDED 5 U.S.C. 5551(A) TO ELIMINATE THE LIMITATION ON LUMP-SUM LEAVE PAYMENTS PREVIOUSLY CONTAINED IN THAT SECTION. SINCE THE EMPLOYEE IN THIS CASE RETIRED AFTER THE EFFECTIVE DATE OF PUBLIC LAW 93-181, HE WAS ENTITLED TO THE BENEFITS CONFERRED THEREUNDER WITH RESPECT TO THE LUMP-SUM PAYMENT FOR ACCUMULATED AND ACCRUED LEAVE ON SEPARATION AND WAS NOT SUBJECT TO THE PRIOR LIMITATION WHICH RESTRICTED PAYMENT TO 30 DAYS OR THE GREATER AMOUNT OF ANNUAL LEAVE CARRIED OVER INTO THE CURRENT LEAVE YEAR. WE FIND NOTHING, HOWEVER, IN 5 U.S.C. 5551(A), AS AMENDED, OR IN REGULATIONS IMPLEMENTING PUBLIC LAW 93-181, AS PROMULGATED BY THE CIVIL SERVICE COMMISSION IN ATTACHMENT TO FPM LETTER NO. 630-22, DATED JANUARY 11, 1974, THAT PROVIDES AUTHORITY TO RETROACTIVELY SUBSTITUTE SICK LEAVE FOR ANNUAL LEAVE PREVIOUSLY GRANTED AND CHARGED TO AN EMPLOYEE'S LEAVE ACCOUNT.

THIS OFFICE HAS CONSISTENTLY HELD THAT, EXCEPT WITH RESPECT TO LIQUIDATION OF ADVANCED SICK LEAVE, ANNUAL LEAVE MAY NOT BE SUBSTITUTED FOR SICK LEAVE WHICH HAS BEEN PROPERLY REQUESTED AND GRANTED. SEE 31 COMP. GEN. 524 (1952) AND B-114063, MAY 25, 1953, WHERE IT WAS HELD THAT SUCH A SUBSTITUTION COULD NOT BE MADE FOR THE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE. ALSO, SEE 38 COMP. GEN. 354 (1958) WHERE IT WAS HELD THAT SUCH RETROACTIVE SUBSTITUTION COULD NOT BE MADE AS AN INDUCEMENT FOR AN EMPLOYEE TO STAY ON THE JOB.

CONCERNING THE ABOVE RULE THE FOLLOWING WAS STATED IN B-114063, SUPRA:

"IN OFFICE DECISION, B-108632, DATED APRIL 18, 1952 (31 COMP. GEN. 524), TO THE ACTING ATTORNEY GENERAL, RELATIVE TO THE PROPRIETY OF FOLLOWING A PRACTICE IN THE DEPARTMENT OF JUSTICE OF SUBSTITUTING ANNUAL LEAVE FOR SICK LEAVE PREVIOUSLY GRANTED, WHICH SUBSTITUTION WAS FOR THE SOLE PURPOSE OF AVOIDING A FORFEITURE OF ANNUAL LEAVE AT THE END OF A CALENDAR YEAR, IT WAS CONCLUDED THAT IN THE ABSENCE OF ANY PROVISION OF LAW OR REGULATION AUTHORIZING SAID PRACTICE, SUCH PRACTICE COULD NOT BE APPROVED BY THIS OFFICE. IT IS ALSO MY VIEW THAT WHEN AN EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY ON ACCOUNT OF ILLNESS, UPON THE BASIS OF HIS APPROVED PROPER APPLICATION FOR SICK LEAVE WITH A CONSEQUENT CHARGE AGAINST SICK LEAVE ACCRUED, THE EMPLOYEE MUST BE REGARDED AS HAVING ELECTED TO RECEIVE A VALUABLE STATUTORY RIGHT. THE RIGHT OF THE EMPLOYEE HAVING BECOME VESTED AND THE OBLIGATION OF THE UNITED STATES HAVING BEEN DISCHARGED UNDER THE ELECTION, SUCH RIGHT AND OBLIGATION ARE NOT SUBJECT TO CHANGE IN THE ABSENCE OF A LAW OR REGULATION HAVING THE FORCE AND EFFECT OF LAW, PROVIDING THEREFOR. ALSO, TO PERMIT THE SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE AS HERE INVOLVED WOULD LEAD TO A POLICY OF RETROACTIVELY CHANGING THE TYPE OF LEAVE ORIGINALLY RECORDED FOR A PARTICULAR ABSENCE IN ANY CASE WHERE THE EMPLOYEE MIGHT LATER DECIDE THAT IT WOULD BE MORE ADVANTAGEOUS TO HAVE THE ABSENCE CHARGED UPON A DIFFERENT BASIS. OBVIOUSLY A POLICY WHICH WOULD ENCOURAGE NUMEROUS REVISIONS OF THE RECORDS OF COMPLETED TRANSACTIONS WOULD NOT BE IN KEEPING WITH SOUND ADMINISTRATION. SUCH PRACTICE WOULD GIVE RISE TO EVASION OF THE POLICY ESTABLISHED BY THE CONGRESS UNDER WHICH EMPLOYEES ARE REQUIRED TO USE ANNUAL LEAVE WITHIN PRESCRIBED PERIODS OR FORFEIT THEIR RIGHT TO IT. NOR WOULD SUCH SUBSTITUTION BE IN CONSONANCE WITH THE PRIMARY INTENT OF THE LAW TO PROVIDE ANNUAL LEAVE FOR VACATION PURPOSES."

WE PERCEIVE NO VALID DISTINCTION BETWEEN THE RIGHT TO ANNUAL AND TO SICK LEAVE, INSOFAR AS THE RIGHT TO SUBSTITUTE ONE FOR THE OTHER IS CONCERNED. WE CONCLUDE, THEREFORE, THAT WHEN AN EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY UPON THE BASIS OF HIS APPROVED APPLICATION FOR ANNUAL LEAVE, WITH A CONSEQUENT CHARGE AGAINST ACCRUED ANNUAL LEAVE, THE EMPLOYEE MUST BE REGARDED AS HAVING MADE HIS ELECTION, AND THE OBLIGATION OF THE UNITED STATES HAVING BEEN DISCHARGED, SUCH RIGHT AND OBLIGATION ARE NOT SUBJECT TO CHANGE UNLESS A LAW OR REGULATION HAVING THE FORCE AND EFFECT OF LAW EXPRESSLY PROVIDES THEREFOR.

IN VIEW OF THE FOREGOING, QUESTION "A" IS ANSWERED IN THE NEGATIVE. ACCORDINGLY, NO RESPONSE TO THE OTHER QUESTIONS PRESENTED IS NECESSARY. WE NOTE WITH RESPECT TO QUESTION "C" THAT THE RECORD PRESENTED INDICATES THAT THE REQUEST FOR SUBSTITUTION WAS MADE AFTER THE ENACTMENT OF PUBLIC LAW 93-181. HOWEVER, IN VIEW OF THE ANSWER TO QUESTION "A" THE TIME AT WHICH SUBSTITUTION WAS REQUESTED WOULD NOT CHANGE THE RESULT.