B-65983, JUNE 23, 1947, 26 COMP. GEN. 948

B-65983: Jun 23, 1947

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UPON THE TERMINATION OF HIS SERVICES WITH THE ARMED FORCES IS NOT SUCH AS WOULD RENDER HIM UNQUALIFIED TO PERFORM THE DUTIES OF HIS FORMER POSITION. FROM WHICH SERVICE HE WAS DISCHARGED WITH THE RANK OF COLONEL. HIS DISCHARGE WAS BY REASON OF A DISABILITY THA PERMANENTLY INCAPACITATED HIM FOR ACTIVE MILITARY DUTY. IT IS HIS PURPOSE BECAUSE OF A PHYSICAL CONDITION INCURRED WHILE IN THE SERVICE. YOU ARE REQUESTED TO ADVISE THE COMMISSION WHETHER IT WOULD BE ACTING WITHIN THE LAW IF IT RESTORED COLONEL KING TO DUTY AND IMMEDIATELY GRANTED HIM EXTENDED LEAVE AS INDICATED WITH PAY. IT CONSISTENTLY HAS BEEN HELD THAT AN EMPLOYEE SO RESTORED IS ENTITLED TO RECREDIT OF THE ANNUAL AND SICK LEAVE TO HIS CREDIT AT THE TIME OF HIS ENTRY INTO THE ARMED FORCES.

B-65983, JUNE 23, 1947, 26 COMP. GEN. 948

OFFICERS AND EMPLOYEES - REINSTATEMENT AFTER MILITARY DUTY - GRANTING OF SICK LEAVE IMMEDIATELY UPON RESTORATION PROVIDED IT BE ADMINISTRABLE DETERMINED THAT THE PHYSICAL CONDITION OF AN EMPLOYEE ENTITLED TO THE REEMPLOYMENT BENEFITS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, UPON THE TERMINATION OF HIS SERVICES WITH THE ARMED FORCES IS NOT SUCH AS WOULD RENDER HIM UNQUALIFIED TO PERFORM THE DUTIES OF HIS FORMER POSITION, SUCH EMPLOYEE MAY BE RESTORED TO DUTY, AND, UPON PROPER APPLICATION THEREFOR, IMMEDIATELY MAY BE GRANTED SICK LEAVE TO THE EXTENT AUTHORIZED BY THE CURRENT LEAVE REGULATIONS. 24 COMP. GEN. 357, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL TRADE COMMISSION, JUNE 23, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 30, 1947, AS FOLLOWS:

ON APRIL 9, 1941, MR. RUSSELL M. KING, AN ATTORNEY IN GRADE P-4 ON THE STAFF OF THE FEDERAL TRADE COMMISSION ENTERED THE MILITARY SERVICE, FROM WHICH SERVICE HE WAS DISCHARGED WITH THE RANK OF COLONEL, APRIL 11, 1947. HIS DISCHARGE WAS BY REASON OF A DISABILITY THA PERMANENTLY INCAPACITATED HIM FOR ACTIVE MILITARY DUTY. COLONELKING IMMEDIATELY MADE APPLICATION FOR RESTORATION TO DUTY WITH THIS COMMISSION PURSUANT TO THE SELECTIVE SERVICE AND TRAINING ACT OF 1940 AS AMENDED ( PUB. NO. 783, 76TH CONG.; PUB. RES. 96, 76TH CONG.)

COLONEL KING ADVISES, HOWEVER, THAT UPON HIS RESTORATION TO DUTY, IT IS HIS PURPOSE BECAUSE OF A PHYSICAL CONDITION INCURRED WHILE IN THE SERVICE, TO IMMEDIATELY MAKE APPLICATION FOR SICK LEAVE TO THE EXTENT OF ABOUT EIGHTY DAYS, WHICH LEAVE HAD ACCRUED TO HIS CREDIT.

YOU ARE REQUESTED TO ADVISE THE COMMISSION WHETHER IT WOULD BE ACTING WITHIN THE LAW IF IT RESTORED COLONEL KING TO DUTY AND IMMEDIATELY GRANTED HIM EXTENDED LEAVE AS INDICATED WITH PAY.

UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, REQUIRING, INTER ALIA, THAT UPON COMPLIANCE WITH THE CONDITIONS THEREIN PRESCRIBED, A FORMER EMPLOYEE UPON TERMINATION OF HIS SERVICES WITH THE ARMED FORCES SHALL BE ENTITLED TO HIS FORMER CIVILIAN POSITION OR A POSITION OF LIKE SENIORITY, STATUS, AND PAY, IT CONSISTENTLY HAS BEEN HELD THAT AN EMPLOYEE SO RESTORED IS ENTITLED TO RECREDIT OF THE ANNUAL AND SICK LEAVE TO HIS CREDIT AT THE TIME OF HIS ENTRY INTO THE ARMED FORCES. ONE OF THE CONDITIONS SPECIFIED BY THAT SECTION TO ENTITLE A FORMER EMPLOYEE TO RESTORATION AS PROVIDED THEREIN IS THAT HE BE MENTALLY AND PHYSICALLY QUALIFIED TO PERFORM THE DUTIES OF HIS CIVILIAN POSITION. IN THAT CONNECTION, IT HAS BEEN HELD THAT WHERE, AT THE TIME OF APPLICATION FOR RESTORATION, THE PHYSICAL CONDITION OF THE FORMER EMPLOYEE IS SUCH AS TO RENDER HIM UNQUALIFIED, AT THAT TIME, TO PERFORM THE DUTIES OF HIS CIVILIAN POSITION, HE PROPERLY MAY NOT BE CONSIDERED AS HAVING BEEN "RESTORED" TO SUCH POSITION WITHIN THE MEANING OF THE SAID SECTION 8, BY ADMINISTRATIVE ACTION PURPORTING TO PLACE HIM ON THE ROLLS IN A LEAVE-WITHOUT-PAY STATUS WHILE SO INCAPACITATED. SEE 23 COMP. GEN. 832. COMPARE 21 ID. 403. ON THE OTHER HAND, IT HAS BEEN HELD THAT WHERE IT ADMINISTRATIVELY IS DETERMINED THAT A FORMER EMPLOYEE IS QUALIFIED, MENTALLY AND PHYSICALLY, TO PERFORM THE DUTIES OF HIS CIVILIAN POSITION, THE MERE FACT THAT HIS ENTRANCE ON DUTY IS TO BE DELAYED BY REASON OF TREATMENT FOR A TEMPORARY INCAPACITY, DOES NOT PRECLUDE ADMINISTRATIVE ACTION RESTORING THE EMPLOYEE TO THE ROLLS FOR THE PURPOSE OF GRANTING HIM LEAVE WITHOUT PAY. SEE 24 COMP. GEN. 357.

WHILE THE ABOVE-MENTIONED RULES HAVE BEEN ENUNCIATED WITH RESPECT TO THE RESTORATION OF A FORMER EMPLOYEE TO HIS CIVILIAN POSITION IN ACCORDANCE WITH THE SAID 1940 STATUTE IN A LEAVE-WITHOUT-PAY STATUS, IT IS APPARENT THAT SUCH RULES ARE EQUALLY APPLICABLE WITH RESPECT TO THE GRANTING OF ANNUAL OR SICK LEAVE IN APPROPRIATE CASES. ACCORDINGLY, IN ANSWER TO THE SPECIFIC QUESTION PRESENTED IN YOUR LETTER, YOU ARE ADVISED THAT IF IT BE DETERMINED ADMINISTRATIVELY THAT COLONEL KING'S PHYSICAL CONDITION IS NOT SUCH AS RENDERS HIM UNQUALIFIED TO PERFORM THE DUTIES OF HIS FORMER POSITION WITH YOUR COMMISSION, HE MAY BE RESTORED TO THE ROLLS IN ACCORDANCE WITH THE PROVISIONS OF THE SELECTIVE TRAINING AND SERVICE ACT, AND, UPON PROPER APPLICATION THEREFOR, IMMEDIATELY MAY BE GRANTED SICK LEAVE TO THE EXTENT AUTHORIZED BY THE CURRENT LEAVE REGULATIONS.