B-181500, APR 2, 1975

B-181500: Apr 2, 1975

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REQUEST FOR RECREDIT OF SICK LEAVE IS DENIED SINCE GAO IS WITHOUT AUTHORITY TO GRANT SICK LEAVE OR AUTHORIZE PAYMENT CONTRARY TO THAT DENIED ADMINISTRATIVELY. MISS DIECK ALLEGES THAT SHE WAS IMPROPERLY PLACED IN A LEAVE-WITHOUT PAY STATUS RATHER THAN ON SICK LEAVE AND THAT THIS ACTION ULTIMATELY LED TO HER RETIREMENT. THE RECORD INDICATES THAT MISS DIECK WAS REASSIGNED TO A DIFFERENT UNIT. CLAIMING THAT SHE WAS SICK. IN ORDER TO TAKE ADVANTAGE OF A 6.1 PERCENT COST-OF LIVING INCREASE FOR RETIREES WHO WERE ON THE ROLLS ON THAT DATE. THE VETERANS ADMINISTRATION REPORTS THAT IT DID NOT SUBSTITUTE ANNUAL LEAVE FOR ANY OF THE PERIOD DURING WHICH MISS DIECK WAS IN AN ABSENT-WITHOUT LEAVE STATUS. MISS DIECK'S SICK LEAVE CREDIT WAS COMPUTED IN DETERMINING HER ANNUITY.

B-181500, APR 2, 1975

1. SICK LEAVE USED IN COMPUTATION OF ANNUITY MAY NOT BE SUBSTITUTED FOR LEAVE WITHOUT PAY. 5 C.F.R. SEC. 630.407 (1974). 2. AGENCY PLACED EMPLOYEE IN ABSENT-WITHOUT-LEAVE STATUS WHEN SHE REFUSED REASSIGNMENT AND TOOK LEAVE, CLAIMING SICKNESS. REQUEST FOR RECREDIT OF SICK LEAVE IS DENIED SINCE GAO IS WITHOUT AUTHORITY TO GRANT SICK LEAVE OR AUTHORIZE PAYMENT CONTRARY TO THAT DENIED ADMINISTRATIVELY.

LAURA C. DIECK - SUBSTITUTION OF SICK LEAVE FOR LEAVE WITHOUT PAY AFTER RETIREMENT:

THIS DECISION CONCERNS A REQUEST FROM MISS LAURA C. DIECK, A RETIRED FEDERAL EMPLOYEE, THAT OUR OFFICE REVIEW THE FACTS SURROUNDING HER FORMER EMPLOYMENT AT THE VETERANS ADMINISTRATION HOSPITAL, NEW ORLEANS, LOUISIANA, AND RECREDIT SICK LEAVE USED IN COMPUTATION OF HER ANNUITY. MISS DIECK ALLEGES THAT SHE WAS IMPROPERLY PLACED IN A LEAVE-WITHOUT PAY STATUS RATHER THAN ON SICK LEAVE AND THAT THIS ACTION ULTIMATELY LED TO HER RETIREMENT.

THE RECORD INDICATES THAT MISS DIECK WAS REASSIGNED TO A DIFFERENT UNIT. HOWEVER, INSTEAD OF REPORTING TO HER NEW UNIT SHE WENT ON LEAVE ON MARCH 21, 1973, CLAIMING THAT SHE WAS SICK. HER OFFICE PLACED HER IN AN ABSENT- WITHOUT-LEAVE STATUS FOR REFUSING REASSIGNMENT. MISS DIECK DID NOT PROSECUTE A GRIEVANCE AND FILED FOR RETIREMENT EFFECTIVE JULY 1, 1973, IN ORDER TO TAKE ADVANTAGE OF A 6.1 PERCENT COST-OF LIVING INCREASE FOR RETIREES WHO WERE ON THE ROLLS ON THAT DATE. THE VETERANS ADMINISTRATION REPORTS THAT IT DID NOT SUBSTITUTE ANNUAL LEAVE FOR ANY OF THE PERIOD DURING WHICH MISS DIECK WAS IN AN ABSENT-WITHOUT LEAVE STATUS. HOWEVER, AFTER MISS DIECK COMPLETED HER RETIREMENT APPLICATION, THE VETERANS ADMINISTRATION PLACED HER ON ANNUAL LEAVE FROM JUNE 19 TO 30, 1973, TO PREVENT ANY LOSS OF ACCRUED ANNUAL LEAVE THAT COULD NOT BE INCLUDED IN A LUMP-SUM LEAVE PAYMENT. MISS DIECK'S SICK LEAVE CREDIT WAS COMPUTED IN DETERMINING HER ANNUITY.

CIVIL SERVICE REGULATIONS PROVIDE THAT "SICK LEAVE WHICH IS USED IN THE COMPUTATION OF ANNUITY FOR AN EMPLOYEE SHALL BE CHARGED AGAINST HIS SICK LEAVE ACCOUNT AND MAY NOT THEREAFTER BE USED, TRANSFERRED, OR RECREDITED." 5 C.F.R. SEC. 630.407 (1974). ALSO, WE HAVE HELD THAT UNDER GOVERNING REGULATIONS THE GRANTING OF SICK LEAVE IS PRIMARILY AN ADMINISTRATIVE MATTER. WHEN SICK LEAVE IS REFUSED OR AN EMPLOYEE IS PLACED IN ABSENT-WITHOUT-LEAVE STATUS BY ADMINISTRATIVE ACTION, IT HAS BEEN CONSISTENTLY HELD THAT GENERALLY OUR OFFICE IS WITHOUT AUTHORITY TO GRANT SUCH LEAVE OR AUTHORIZE PAYMENT CONTRARY TO THAT DENIED ADMINISTRATIVELY. B-170730, AUGUST 16, 1971. ALSO, SEE 24 COMP. GEN. 27 (1944).

ACCORDINGLY, THERE IS NO BASIS UPON WHICH TO DIRECT RECREDIT OF MISS DIECK'S SICK LEAVE TO HER ACCOUNT PRIOR TO HER RETIREMENT.

REGARDING THE QUESTION OF FURTHER APPEAL, WE POINT OUT THAT DECISIONS FROM OUR OFFICE ARE BINDING UPON THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT. AS TO MATTERS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS AND THE COURT OF CLAIMS, SEE 28 U.S.C. SEC. 1346 AND 1491 (1970).