B-43144, JULY 17, 1944, 24 COMP. GEN. 27

B-43144: Jul 17, 1944

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AN EMPLOYEE WHO IS REQUIRED BY REASON OF ILL HEALTH TO LEAVE ACTIVE SERVICE AND RESIGN. WHICH ACTION PROPERLY IS SUPPORTED BY A DOCTOR'S CERTIFICATE. UNDER THE ANNUAL AND SICK LEAVE REGULATIONS THE GRANTING OF SICK LEAVE UPON TERMINATION OF SERVICE IS AN ADMINISTRATIVE MATTER NOT SUBJECT TO REVIEW OF REVISION BY THIS OFFICE. AN EMPLOYEE IS ENTITLED THERETO AS A MATTER OF RIGHT (SECTION 2.4 OF THE REGULATIONS). IN THE CASE OF AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE WHERE ONLY ANNUAL LEAVE IS APPLIED FOR. OR IF SICK LEAVE IS APPLIED FOR AND DENIED. THE TERMINATION DATE ONCE IS FIXED TO BE EFFECTIVE AT THE TERMINATION OF THE ANNUAL LEAVE. 1944: I HAVE YOUR LETTER OF JULY 5.

B-43144, JULY 17, 1944, 24 COMP. GEN. 27

LEAVES OF ABSENCE - SEPARATION FROM SERVICE UNDER THE ANNUAL AND SICK LEAVE REGULATIONS, AN EMPLOYEE WHO IS REQUIRED BY REASON OF ILL HEALTH TO LEAVE ACTIVE SERVICE AND RESIGN, WHICH ACTION PROPERLY IS SUPPORTED BY A DOCTOR'S CERTIFICATE, MAY BE GRANTED ALL OF HIS ACCUMULATED CURRENT ACCRUED SICK AND ANNUAL LEAVE AS A CONTINUOUS PERIOD, WITHOUT A RETURN TO DUTY, UPON THE BASIS OF AN APPLICATION THEREFOR FILED ALONG WITH TENDER OF RESIGNATION PRIOR TO THE EXPIRATION OF THE LEAVE, AND THE DATE OF RESIGNATION MAY BE FIXED SO AS TO GRANT SUCH SICK AND ANNUAL LEAVE. 23 COMP. GEN. 638, AMPLIFIED. UNDER THE ANNUAL AND SICK LEAVE REGULATIONS THE GRANTING OF SICK LEAVE UPON TERMINATION OF SERVICE IS AN ADMINISTRATIVE MATTER NOT SUBJECT TO REVIEW OF REVISION BY THIS OFFICE, BUT, AS TO ANNUAL LEAVE, AN EMPLOYEE IS ENTITLED THERETO AS A MATTER OF RIGHT (SECTION 2.4 OF THE REGULATIONS), AND IT MAY NOT BE DENIED ADMINISTRATIVELY. IN THE CASE OF AN EMPLOYEE WHO IS TO BE SEPARATED FROM THE SERVICE WHERE ONLY ANNUAL LEAVE IS APPLIED FOR, OR IF SICK LEAVE IS APPLIED FOR AND DENIED, AND THE TERMINATION DATE ONCE IS FIXED TO BE EFFECTIVE AT THE TERMINATION OF THE ANNUAL LEAVE, SECTION 4.2 (B) OF THE ANNUAL AND SICK LEAVE REGULATIONS PROHIBITS THE EXTENSION OF SUCH FIXED DATE OF SEPARATION BY THE GRANTING OF SICK LEAVE.

ACTING COMPTROLLER GENERAL YATES TO THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, JULY 17, 1944:

I HAVE YOUR LETTER OF JULY 5, 1944, AS FOLLOWS:

ON JUNE 5, 1944, A PERMANENT EMPLOYEE OF THIS OFFICE LEFT THE OFFICE DURING REGULAR WORKING HOURS ON ACCOUNT OF ILLNESS.

ON JUNE 6, 1944 THERE WAS RECEIVED IN THIS OFFICE A CERTIFICATE DATED JUNE 5, 1944 FROM A PHYSICIAN INFORMING US THAT HE HAD ADVISED OUR EMPLOYEE TO TAKE A REST PERIOD OF AT LEAST SIX WEEKS.

ON JUNE 26, 1944, THIS EMPLOYEE SENT IN A WRITTEN RESIGNATION, BASING HER RESIGNATION ON BAD HEALTH, WHICH REASON WAS CERTIFIED TO BY HER PHYSICIAN IN CERTIFICATE BEARING SAME DATE.

AT THE TIME THE EMPLOYEE LEFT OUR OFFICE ON JUNE 5, SHE HAD TO HER CREDIT 720 HOURS OF ANNUAL LEAVE AND 720 HOURS OF SICK LEAVE. SHE NOW CONTENDS SHE IS ENTITLED TO HER SICK LEAVE BEFORE ENTERING ON ANNUAL LEAVE, WHICH, IF PROPER, WOULD ENTITLE HER TO REMAIN IN A PAY STATUS UNTIL NOON, JANUARY 18, 1945.

WE HAVE BEEN UNABLE TO FIND ANY PRECEDENT CASES, AND ARE THEREFORE SUBMITTING TO YOU FOR AN OPINION THE QUESTION OF THE EFFECTIVE DATE OF EMPLOYEE'S RESIGNATION.

COPIES OF THE RESIGNATION AND DOCTOR'S CERTIFICATE ARE ATTACHED HERETO.

MRS. LARUE'S LETTER OF RESIGNATION, DATED JUNE 26, 1944, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER, READS, IN PERTINENT PART, AS FOLLOWS:

IT IS WITH REGRET THAT I MUST SUBMIT MY RESIGNATION TO BECOME EFFECTIVE AT THE EXPIRATION OF WHATEVER LEAVE TO WHICH I MAY BE ENTITLED.

MY PHYSICIAN HAS ADVISED ME THAT I SHALL BE ILL FOR AN INDEFINITE PERIOD.

THE CERTIFICATES DATED JUNE 5 AND JUNE 26, 1944, FROM DR. GRANT LUCAS APPEAR TO CORROBORATE THE STATEMENT OF THE EMPLOYEE THAT SHE IS RESIGNING BECAUSE OF ILL HEALTH, AND, ALSO, WOULD APPEAR TO BE SUFFICIENT TO SUPPORT APPLICATION FOR HER ACCUMULATED AND CURRENT ACCRUED SICK LEAVE.

IN DECISION OF FEBRUARY 29, 1944, 23 COMP. GEN. 638, QUESTION AND ANSWER 4 WERE STATED AS FOLLOWS:

QUESTION

4. SECTION 4.2 (B) PROVIDES:

"ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE ON TERMINAL LEAVE, WHETHER BY SEPARATION, FURLOUGH, OR RESIGNATION. IN SUCH CASES THE ACCRUAL OF LEAVE SHALL CEASE AT THE CLOSE OF THE LAST DAY ON WHICH HE WAS PRESENT FOR DUTY, AND THE FINAL DATE OF SEPARATION SHALL NOT BE EXTENDED BY THE GRANTING OF SICK OR COURT LEAVE.'

SECTION 3.3 PROVIDES:

"SICK LEAVE SHALL BE GRANTED TO EMPLOYEES WHEN THEY ARE INCAPACITATED FOR THE PERFORMANCE OF THEIR DUTIES BY SICKNESS, INJURY, OR PREGNANCY AND CONFINEMENT, ETC.'

UNDER SECTION 4.2 (B) THERE ARISES THE FOLLOWING QUESTIONS: (A) WHERE AN EMPLOYEE ABSENTS HIMSELF FROM DUTY ON SICK LEAVE AND USES ALL OF HIS ACCRUED SICK AND ANNUAL LEAVE AND THEN TENDERS HIS RESIGNATION OR (B) WHERE AN EMPLOYEE IS GRANTED ANNUAL LEAVE AND WHILE ON ANNUAL LEAVE REQUESTS THE SUBSTITUTION OF SICK FOR ANNUAL LEAVE AND AT THE EXPIRATION OF BOTH HIS SICK AND ANNUAL LEAVE HE TENDERS HIS RESIGNATION. IN EITHER CASES (A) OR (B) DOES THIS SECTION CONTEMPLATE AN ACTUAL RETURN TO DUTY BEFORE SICK LEAVE MAY BE GRANTED? IF THE ANSWER IS IN THE NEGATIVE WOULD THE EMPLOYEE ACCRUE LEAVE WHILE ON LEAVE IN THE CASES CITED?

ANSWER

IN ADDITION TO THE REGULATIONS QUOTED IN YOUR LETTER SECTION 3.6 OF THE REGULATIONS IS FOR CONSIDERATION IN ANSWERING QUESTION 4 (B), SAID REGULATION PROVIDING AS FOLLOWS:

"WHEN SICKNESS OCCURS WITHIN A PERIOD OF ANNUAL LEAVE AND LASTS IN EXCESS OF 5 WORK DAYS, THE PERIOD OF ILLNESS MAY BE CHARGED AS SICK LEAVE AND THE CHARGE AGAINST ANNUAL LEAVE REDUCED ACCORDINGLY. APPLICATION FOR SUCH SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE SHALL BE MADE WITHIN TWO DAYS AFTER RETURN TO DUTY AND SHALL BE SUPPORTED BY A MEDICAL CERTIFICATE.'

THERE IS NO PROHIBITION IN THE NEW REGULATIONS TO THE GRANTING OF ANNUAL AND SICK LEAVE AS A CONTINUOUS PERIOD OF ABSENCE WITHOUT A RETURN TO DUTY, EITHER AT THE TERMINATION OF SERVICE OR OTHERWISE. HOWEVER, A SUBSTITUTION OF SICK LEAVE FOR ANNUAL LEAVE UNDER THE CONDITIONS STATED IN SECTION 3.6 OF THE REGULATIONS, ABOVE QUOTED, CLEARLY CONTEMPLATES A RETURN TO DUTY AND A FILING OF A MEDICAL CERTIFICATE IN SUPPORT THEREOF PARTICULARLY WHEN CONSIDERED IN THE LIGHT OF THE LAST PART OF SECTION 4.2 (B) OF THE REGULATIONS. ACCORDINGLY, SUCH SUBSTITUTION SHOULD NOT BE APPROVED UNLESS AND UNTIL THERE IS A RETURN TO DUTY AND THE EMPLOYEE HAS FILED THE REQUIRED MEDICAL CERTIFICATE. HENCE, QUESTION 4 (A) IS ANSWERED IN THE NEGATIVE, AND QUESTION 4 (B) IN THE AFFIRMATIVE. THE QUESTION WITH RESPECT TO WHETHER THE EMPLOYEE WOULD ACCRUE LEAVE WHILE ON LEAVE IN THE CITED CASES, IS ANSWERED IN THE NEGATIVE. AN EMPLOYEE DOES NOT IN ANY CASE EARN LEAVE ON LEAVE GRANTED OVER A PERIOD IMMEDIATELY PRECEDING SEPARATION FROM THE SERVICE; AND IF LEAVE ON LEAVE HAS BEEN GRANTED ERRONEOUSLY BECAUSE OF THE FACT THAT THE ADMINISTRATIVE OFFICE HAD NO ADVANCE INFORMATION THAT THE EMPLOYEE INTENDED TO RESIGN AT THE TERMINATION OF HIS LEAVE, A CHARGE PROPERLY IS FOR ASSERTING AGAINST THE EMPLOYEE FOR THE OVERDRAWN LEAVE REPRESENTING THE AMOUNT OF COMPENSATION WHICH ACTUALLY WAS PAID FOR THE PERIOD OF LEAVE ON LEAVE. SEE THE ANSWER TO QUESTION 7, INFRA.

THE ONLY DIFFERENCE BETWEEN THE FACTS CONSIDERED IN THE CASE UPON WHICH QUESTION AND ANSWER 4 (A) IN THE DECISION, SUPRA, WERE BASED AND THE FACTS DISCLOSED IN THE INSTANT CASE, IS THAT IN THE FORMER THE RESIGNATION WAS NOT TENDERED UNTIL AFTER THE SICK AND ANNUAL LEAVE OVER A CONTINUOUS PERIOD HAD EXPIRED, WHEREAS IN THE INSTANT CASE THE RESIGNATION HAS BEEN TENDERED IN ADVANCE THEREOF. HOWEVER, THAT DISTINCTION IS LEGALLY IMMATERIAL. NO ADVANTAGE SHOULD BE GIVEN TO AN EMPLOYEE WHO DELAYS TENDERING HIS RESIGNATION AFTER THE SICK AND ANNUAL LEAVE HAS EXPIRED OVER AN EMPLOYEE WHO TENDERS HIS RESIGNATION AT THE BEGINNING OF THE SICK AND ANNUAL LEAVE TO TAKE EFFECT AT THE EXPIRATION THEREOF. THAT IS, IF AN EMPLOYEE IS REQUIRED BY REASON OF ILL HEALTH TO LEAVE ACTIVE SERVICE AND RESIGN, WHICH ACTION PROPERLY IS SUPPORTED BY A DOCTOR'S CERTIFICATE, THE EMPLOYEE MAY BE GRANTED ALL OF HIS ACCUMULATED AND CURRENT ACCRUED SICK AND ANNUAL LEAVE AS A CONTINUOUS PERIOD UPON THE BASIS OF AN APPLICATION THEREFOR FILED AT THE SAME TIME THE RESIGNATION IS TENDERED, WITHOUT A RETURN TO DUTY, AND THE DATE OF RESIGNATION MAY BE FIXED SO AS TO GRANT SUCH SICK AND ANNUAL LEAVE. CF. 22 COMP. GEN. 533. OF COURSE, LEAVE DOES NOT NOW ACCRUE DURING EITHER THE TERMINAL SICK OR ANNUAL LEAVE. HOWEVER, THE DIFFERENCE BETWEEN TERMINAL SICK AND ANNUAL LEAVE IS THAT SICK LEAVE IS NOT A MATTER OF RIGHT WHEREAS TERMINAL ANNUAL LEAVE NOW IS A MATTER OF RIGHT (SECTION 2.4 OF THE NEW LEAVE REGULATIONS). IN OTHER WORDS, THE GRANTING OF SICK LEAVE UPON TERMINATION OF SERVICE IS AN ADMINISTRATIVE MATTER NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE, BUT TERMINAL ANNUAL LEAVE MAY NOT BE DENIED ADMINISTRATIVELY. IN ANY CASE OF AN EMPLOYEE WHO IS TO BE SEPARATED WHERE ONLY ANNUAL LEAVE IS APPLIED FOR, OR IF SICK LEAVE IS APPLIED FOR AND DENIED, AND THE TERMINATION DATE ONCE IS FIXED TO BE EFFECTIVE AT THE TERMINATION OF THE ANNUAL LEAVE, THAT DATE OF SEPARATION MAY NOT BE EXTENDED BY THE GRANTING OF SICK LEAVE. SEE SECTION 4.2 (B) OF THE NEW LEAVE REGULATIONS.

IN THE CASE PRESENTED, THE TERMS OF THE RESIGNATION MAY BE REGARDED ALSO AS CONSTITUTING AN APPLICATION FOR ALL ACCUMULATED AND CURRENT ACCRUED SICK AND ANNUAL LEAVE, AND ON THE BASIS OF THE ABOVE-STATED RULES, IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION TO FIX THE TERMINATION DATE OF THE EMPLOYEE'S SERVICE AT THE EXPIRATION THEREOF.