B-41444, MAY 2, 1944, 23 COMP. GEN. 832

B-41444: May 2, 1944

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO HAVE RESTORED SO MUCH OF THEIR SICK LEAVE CREDIT WHICH THEY HAD WHEN THEY ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE. WAS NOT PHYSICALLY QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION. ADMINISTRATIVE ACTION TERMINATING THE MILITARY FURLOUGH AND PURPORTING TO PLACE THE EMPLOYEE ON LEAVE OF ABSENCE WITHOUT PAY IN ORDER TO PERMIT HIM TO RECUPERATE MAY NOT BE REGARDED AS HAVING HAD THE EFFECT OF RESTORING HIM TO HIS FORMER POSITION FOR THE PURPOSE OF PRESERVING HIS RIGHT TO HAVE RESTORED TO HIM THE SICK LEAVE WHICH STOOD TO HIS CREDIT WHEN HE ENTERED THE NAVY. 23 COMP. 1944: REFERENCE IS MADE TO YOUR LETTER OF APRIL 8. AS FOLLOWS: ENCLOSED IS A PAYROLL. AN ADVANCE OF SICK LEAVE IS PRECLUDED BY THE INSTRUCTIONS IN SECTION 4 OF THE SICK LEAVE REGULATIONS THEN IN EFFECT.

B-41444, MAY 2, 1944, 23 COMP. GEN. 832

EMPLOYEES NOT QUALIFIED TO PERFORM DUTIES OF FORMER POSITION UPON DISCHARGE FROM MILITARY SERVICE - RESTORATION OF SICK LEAVE CREDIT AN EMPLOYEE, AFTER DISCHARGE FROM ACTIVE MILITARY OR NAVAL SERVICE, MUST BE RESTORED TO HIS FORMER POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY, BEFORE HE MAY "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" WITHIN THE MEANING OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, ENTITLING SUCH EMPLOYEES, UPON RESTORATION TO THEIR FORMER POSITIONS, TO HAVE RESTORED SO MUCH OF THEIR SICK LEAVE CREDIT WHICH THEY HAD WHEN THEY ENTERED THE ACTIVE MILITARY OR NAVAL SERVICE. WHERE A FORMER EMPLOYEE, AFTER RECEIVING A MEDICAL DISCHARGE FROM THE NAVY APPLIED FOR REINSTATEMENT TO HIS FORMER POSITION IN ACCORDANCE WITH SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, BUT WAS NOT PHYSICALLY QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION, ADMINISTRATIVE ACTION TERMINATING THE MILITARY FURLOUGH AND PURPORTING TO PLACE THE EMPLOYEE ON LEAVE OF ABSENCE WITHOUT PAY IN ORDER TO PERMIT HIM TO RECUPERATE MAY NOT BE REGARDED AS HAVING HAD THE EFFECT OF RESTORING HIM TO HIS FORMER POSITION FOR THE PURPOSE OF PRESERVING HIS RIGHT TO HAVE RESTORED TO HIM THE SICK LEAVE WHICH STOOD TO HIS CREDIT WHEN HE ENTERED THE NAVY. 23 COMP. GEN. 96, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO L. P. WILSEY, DEPARTMENT OF AGRICULTURE, MAY 2, 1944:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1944 (A, DISBURSEMENT, VOUCHERS), AS FOLLOWS:

ENCLOSED IS A PAYROLL, COVERING A PROPOSED PAYMENT TO WILLIAM H. WILSON AN EMPLOYEE OF THE U.S. FOREST SERVICE, WHICH HAS BEEN SUBMITTED TO ME FOR CERTIFICATION. THE PAYROLL COVERS PERIODS OF SICK LEAVE GRANTED TO MR. WILSON DURING DECEMBER 1943 INVOLVING SICK LEAVE IN EXCESS OF EARNINGS BY THIS EMPLOYEE DURING THE CURRENT PERIOD OF HIS EMPLOYMENT WITH THE U.S. FOREST SERVICE. AN ADVANCE OF SICK LEAVE IS PRECLUDED BY THE INSTRUCTIONS IN SECTION 4 OF THE SICK LEAVE REGULATIONS THEN IN EFFECT, SINCE THE ABSENCES ARE FOR PERIODS OF LESS THAN FIVE CONSECUTIVE WORK DAYS.

MR. WILSON WAS TRANSFERRED TO THE FOREST SERVICE FROM THE BONNEVILLE POWER ADMINISTRATION UNDER DATE OF NOVEMBER 22, 1943. THERE IS ENCLOSED A CERTIFIED COPY OF THE APPOINTMENT ACTION COVERING THIS TRANSFER.

AT THE TIME OF THE TRANSFER MR. WILSON HAD STANDING TO HIS CREDIT WITH THE BONNEVILLE POWER ADMINISTRATION A TOTAL OF 46 DAYS, 1 HOUR SICK LEAVE WHICH HAD BEEN ACCUMULATED DURING THE PERIOD OF HIS EMPLOYMENT WITH THE BONNEVILLE POWER ADMINISTRATION AND DURING PRECEDING PERIODS OF CONTINUOUS SERVICE.

DUE TO THE PARTICULAR CIRCUMSTANCES INVOLVED IN THIS CASE, I AM UNCERTAIN WHETHER OR NOT THE ACCUMULATED CREDIT OF 46 DAYS, 1 HOUR IS TRANSFERABLE TO THE FOREST SERVICE. THE TRANSFER OF SUCH SICK LEAVE WILL, OF COURSE, MORE THAN COVER THE PERIODS OF SICK LEAVE ABSENCE INVOLVED IN THE ATTACHED PAYROLL.

I HAVE CAREFULLY REVIEWED YOUR DECISIONS 21-CG-403, 22-CG-969 AND OTHER RELATED DECISIONS DEALING WITH THE RIGHTS OF EMPLOYEES FURLOUGHED FOR MILITARY DUTY. I AM UNABLE, HOWEVER, TO FIND A SPECIFIC DECISION DEALING WITH THE SITUATION AS INVOLVED IN THIS CASE.

ENCLOSED IS A LETTER SUBMITTED BY THE BONNEVILLE POWER ADMINISTRATION OUTLINING THE CIRCUMSTANCES SURROUNDING MR. WILSON'S EMPLOYMENT WITH THAT AGENCY. IT IS TO BE NOTED THAT MR. WILSON WAS NOT RESTORED TO AN EQUIVALENT POSITION WITH THE BONNEVILLE POWER ADMINISTRATION BECAUSE OF AN ADVERSE MEDICAL REPORT FROM THE NAVY. HE WAS, HOWEVER, PLACED IN A LEAVE- WITHOUT-PAY STATUS ON MARCH 26, 1943 BY THE BONNEVILLE POWER ADMINISTRATION, WHICH STATUS CONTINUED TO THE DATE OF THE EMPLOYEE'S TRANSFER TO THE U.S. FOREST SERVICE.

SECTION 9 OF THE ANNUAL LEAVE REGULATIONS THEN IN EFFECT PROVIDED IN PART AS FOLLOWS:

" AN EMPLOYEE TRANSFERRED OR REAPPOINTED WITHOUT BREAK IN SERVICE FROM ONE PERMANENT, EMERGENCY OR INDEFINITE POSITION TO ANOTHER PERMANENT, EMERGENCY OR INDEFINITE POSITION WITH THE SAME OR A DIFFERENT GOVERNMENTAL AGENCY SHALL AT THE TIME OF HIS TRANSFER OR REAPPOINTMENT BE CREDITED WITH ACCUMULATED SICK LEAVE * * *. " WITHOUT BREAK IN SERVICE" MEANS SEPARATION FROM THE FEDERAL SERVICE FOR A PERIOD OF ONE OR MORE WORK DAYS.'

IN VIEW OF THE ABOVE REGULATION IT APPEARS PROPER TO CREDIT MR. WILSON WITH HIS ACCUMULATED BALANCE OF 46 DAYS, 1 HOUR SICK LEAVE, INASMUCH AS THERE WAS NO BREAK IN SERVICE INSOFAR AS APPOINTMENT ACTIONS ARE INVOLVED. HOWEVER, INASMUCH AS THE EMPLOYEE DID NOT MEET ALL OF THE CONDITIONS REQUIRED BY THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, I AM IN DOUBT AS TO WHETHER OR NOT THE TRANSFER OF SUCH LEAVE IS PROPER.

I WILL APPRECIATE RECEIVING YOUR DETERMINATION AS TO WHETHER OR NOT THE ENCLOSED PAYROLL MAY BE CERTIFIED FOR PAYMENT.

THE LETTER SUBMITTED BY THE BONNEVILLE POWER ADMINISTRATION, TO WHICH YOU REFER, READS:

IN ACCORDANCE WITH YOUR TELEPHONE REQUEST, THE FOLLOWING FACTS ARE SUBMITTED WITH REFERENCE TO WILLIAM H. WILSON'S SERVICE WITH THIS ADMINISTRATION.

MR. WILSON ENTERED ON DUTY WITH BONNEVILLE POWER ADMINISTRATION ON APRIL 8, 1940 BY TRANSFER FROM THE FOREST SERVICE. ON OCTOBER 9, 1942, HE WAS CALLED TO ACTIVE DUTY WITH THE U.S. NAVY AND WAS CARRIED ON ANNUAL LEAVE FROM 2:30 P.M. ON OCTOBER 9, 1942 UNTIL 11:15 A.M. ON JANUARY 11, 1943, AT WHICH TIME HE WAS PLACED ON MILITARY FURLOUGH.

MR. WILSON RECEIVED A MEDICAL DISCHARGE FROM THE NAVY, EFFECTIVE MARCH 25, 1943, AND ON APRIL 25, MADE APPLICATION FOR REEMPLOYMENT WITH BONNEVILLE POWER ADMINISTRATION, BUT STATED HE WAS PHYSICALLY UNABLE TO PERFORM THE DUTIES OF HIS FORMER POSITION, I.E., OPERATOR ( TRACTOR), $1.50 PER HOUR WHEN ACTUALLY EMPLOYED. HE WAS REQUESTED TO SUBMIT A MEDICAL CERTIFICATE IN ORDER THAT A DETERMINATION MIGHT BE MADE AS TO THE TYPE OF WORK TO WHICH HE MIGHT BE ASSIGNED WITHOUT JEOPARDIZING HIS OWN HEALTH AND SAFETY OR THAT OF OTHERS. THE EXAMINING PHYSICIAN'S CERTIFICATE, DATED MAY 6, 1943, INDICATED THE PRESENCE OF ORGANIC HEART DISEASE AND THAT MR. WILSON WAS UNABLE TO PERFORM DUTIES INVOLVING ANY PHYSICAL EXERTION, BUT THAT HE "MAY BE ABLE TO DO LIGHT WORK AFTER TWELVE MONTHS.' MR. WILSON, HOWEVER, WAS VERY INSISTENT THAT HE WOULD BE ABLE TO RETURN TO DUTY WITHIN A VERY SHORT PERIOD AND IN ORDER TO AFFORD HIM TIME IN WHICH TO RECUPERATE, HIS MILITARY FURLOUGH WAS TERMINATED AND ON MARCH 26, 1943 HE WAS PLACED IN A LEAVE WITHOUT PAY STATUS, PENDING HIS RETURN TO AN ACTIVE DUTY STATUS.

IN OCTOBER 1943, MR. WILSON AGAIN CONTACTED THIS OFFICE, STATING THAT THE VETERANS' ADMINISTRATION HAD GRANTED HIM 100 PERCENT DISABILITY FOR THE PAST SIX MONTHS, BUT THAT HE HAD NOW BEEN RERATED TO 30 PERCENT DISABILITY AND SINCE HE WAS MUCH IMPROVED IN HEALTH DESIRED A POSITION REQUIRING ONLY LIGHT PHYSICAL EXERTION. THE ONLY VACANCY AVAILABLE AT THAT TIME WHICH UNDER THE CIRCUMSTANCES OUR SAFETY ENGINEER CONSIDERED AS NOT HAZARDOUS FOR MR. WILSON WAS THAT OF PATROLMAN AT VANCOUVER, WASHINGTON, BUT MR. WILSON ELECTED NOT TO ACCEPT THE POSITION BECAUSE HE CONSIDERED IT TOO GREAT A DISTANCE TO TRAVEL EACH DAY, AND HE DID NOT DESIRE TO MOVE TO VANCOUVER.

ON NOVEMBER 16, 1943, THE CIVIL SERVICE COMMISSION ISSUED AN AUTHORITY FOR HIS TRANSFER TO THE FOREST SERVICE IN PORTLAND, OREGON AND HIS SEPARATION BY TRANSFER WAS EFFECTIVE AT THE CLOSE OF BUSINESS NOVEMBER 21, 1943, WITHOUT HIS EVER HAVING BEEN RETURNED TO AN ACTIVE DUTY STATUS WITH THIS ADMINISTRATION.

SINCE MR. WILSON WAS UNABLE TO MEET THE THREE REQUIREMENTS PROVIDED UNDER THE SELECTIVE TRAINING AND SERVICE ACT FOR REEMPLOYMENT AND RESTORATION WITH SENIORITY RIGHTS, INCLUDING THE RECREDITING OF SICK OR ANNUAL LEAVE, WE ARE UNCERTAIN AS TO WHETHER THE 46 DAYS, 1 HOUR OF SICK LEAVE TO HIS CREDIT WHEN HE ENTERED ON MILITARY FURLOUGH MAY BE RECREDITED AND TRANSFERRED TO YOUR AGENCY. THERE IS NO ANNUAL LEAVE INVOLVED SINCE HE ELECTED TO TAKE AND WAS GRANTED ALL ANNUAL LEAVE PRIOR TO HIS MILITARY FURLOUGH. IN CONNECTION WITH RECREDITING LEAVE AFTER MILITARY FURLOUGH, YOUR ATTENTION IS CALLED TO COMPTROLLER GENERAL DECISIONS B-20822, DATED NOVEMBER 3, 1941 AND B-33419, DATED APRIL 14, 1943.

WE REGRET THE DELAY IN FURNISHING YOU THIS INFORMATION, WHICH HAS BEEN DUE TO THE PRESS OF OTHER WORK, BUT WE HOPE IT WILL BE RECEIVED IN TIME TO BE OF ASSISTANCE TO YOU IN SUBMITTING THE QUESTION AS TO WHETHER OR NOT UNDER THE FACTS CITED THE SICK LEAVE INVOLVED IN THIS CASE IS TRANSFERABLE TO YOUR AGENCY. WE SHALL APPRECIATE YOUR KEEPING US ADVISED OF ANY FURTHER DEVELOPMENTS.

IN DECISION OF AUGUST 12, 1943, 23 COMP. GEN. 96, IT WAS HELD (QUOTING FROM THE SYLLABUS):

UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, PROVIDING THAT AN EMPLOYEE WHO IS RESTORED TO HIS CIVILIAN POSITION AFTER DISCHARGE FROM THE MILITARY SERVICE SHALL BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING SUCH PERIOD, AND THE ACT OF AUGUST 1, 1941, AS AMENDED, AUTHORIZING EMPLOYEES TO ELECT TO HAVE LEAVE REMAIN TO THEIR CREDIT UNTIL THEY RETURN FROM ACTIVE MILITARY OR NAVAL SERVICE, THERE MAY BE RESTORED TO SUCH AN EMPLOYEE SO MUCH OF HIS ANNUAL LEAVE CREDIT AS HAD NOT BEEN LIQUIDATED BY PAYMENT, AS WELL AS ALL THE SICK LEAVE CREDIT, WHICH HE HAD WHEN HE ENTERED THE MILITARY SERVICE.

HOWEVER, IN THE INSTANT CASE IT IS CLEAR THAT THE EMPLOYEE WAS NOT, AND COULD (NOT) HAVE BEEN, RESTORED TO HIS FORMER CIVILIAN POSITION OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY UNDER SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, 54 STAT. 890, AFTER DISCHARGE FROM ACTIVE NAVAL SERVICE, FOR THE REASON THAT THE EMPLOYEE ADMITTED HE WAS NOT QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION AND THE ADMINISTRATIVE OFFICE SO DETERMINED--- ONE OF THE CONDITIONS PRECEDENT TO RESTORATION PRESCRIBED BY THE SELECTIVE TRAINING AND SERVICE ACT BEING THAT THE EMPLOYEE "IS STILL QUALIFIED TO PERFORM THE DUTIES OF SUCH POSITION.'

IT HAS BEEN HELD THAT NOT UNTIL AN EMPLOYEE IS RESTORED TO HIS FORMER POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY, AFTER DISCHARGE FROM THE ACTIVE MILITARY OR NAVAL SERVICE, MAY HE "BE CONSIDERED AS HAVING BEEN ON FURLOUGH OR LEAVE OF ABSENCE DURING HIS PERIOD OF ACTIVE MILITARY SERVICE" (QUOTING FROM SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT, SUPRA), 21 COMP. GEN. 403, 405. ACCORDINGLY, UNDER THE FACTS AND CIRCUMSTANCES HERE DISCLOSED, THE ADMINISTRATIVE ACTION TERMINATING THE MILITARY FURLOUGH AND PURPORTING TO PLACE THE EMPLOYEE ON LEAVE OF ABSENCE WITHOUT PAY, EFFECTIVE MAY 26, 1943, REASONABLY MAY NOT BE REGARDED AS HAVING HAD THE EFFECT OF RESTORING THE EMPLOYEE TO HIS FORMER POSITION, OR TO A POSITION OF LIKE SENIORITY, STATUS, AND PAY FOR THE PURPOSE OF PRESERVING THE EMPLOYEE'S RIGHT TO HAVE RESTORED TO HIM THE SICK LEAVE WHICH HAD STOOD TO HIS CREDIT WHEN HE ENTERED THE ACTIVE NAVAL SERVICE. HENCE, THE RULE STATED IN THE DECISION OF AUGUST 12, 1943, SUPRA, IS NOT APPLICABLE IN THIS CASE.

YOU ARE ADVISED, THEREFORE, THAT, IN THE CASE PRESENTED, THE SICK LEAVE STANDING TO THE CREDIT OF THE EMPLOYEE WHEN HE ENTERED THE ACTIVE NAVAL SERVICE MAY NOT BE REGARDED AS AVAILABLE FOR TRANSFER. AS IT IS UNDERSTOOD THE PROPOSED PAYMENT IS PREDICATED UPON THE ASSUMPTION THAT SUCH FORMER LEAVE CREDIT IS AVAILABLE FOR TRANSFER, THE VOUCHER FORWARDED WITH YOUR LETTER MAY NOT BE CERTIFIED FOR PAYMENT.