B-71157, JANUARY 30, 1948, 27 COMP. GEN. 414

B-71157: Jan 30, 1948

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AN EMPLOYEE WAS ON SICK LEAVE AND THAT HIS ILLNESS CONTINUED FOR SEVERAL WEEKS THEREAFTER. IT WAS WITHIN THE ADMINISTRATIVE DISCRETION TO REFUSE THE FURTHER GRANTING OF SICK LEAVE AND PLACE THE EMPLOYEE IN AN ANNUAL LEAVE STATUS. IS SUMMONED AS A WITNESS OR AS A JUROR IS ENTITLED TO HAVE OTHERWISE PROPER COURT LEAVE SUBSTITUTED FOR SUCH ANNUAL LEAVE. COLLECTORS OF CUSTOMS WERE DIRECTED BY THE BUREAU OF CUSTOMS TO ISSUE WRITTEN NOTICE TO EACH EMPLOYEE ON THE PORT PATROL FORCE WHO HAD NO CIVIL SERVICE STATUS THAT HIS SERVICES WOULD BE TERMINATED AT THE CLOSE OF BUSINESS APRIL 25. THE SEPARATION DATE WAS EXTENDED TO MAY 29 AND ON MAY 26. THE SEPARATION DATE WAS EXTENDED TO JUNE 27. BECAUSE OF APPROPRIATION PROSPECTS FACING THE CUSTOMS SERVICE AT THAT TIME IT WAS ADMINISTRATIVELY HELD THAT SICK.

B-71157, JANUARY 30, 1948, 27 COMP. GEN. 414

LEAVES OF ABSENCE - SICK - GRANTING OF, AND SUBSTITUTIONS FOR LEAVE WITHOUT PAY; COURT LEAVE - SUBSTITUTION FOR ANNUAL LEAVE NOTWITHSTANDING THAT, AT THE TIME OF RECEIPT OF A NOTICE OF SEPARATION BECAUSE OF REDUCTION IN FORCE, AN EMPLOYEE WAS ON SICK LEAVE AND THAT HIS ILLNESS CONTINUED FOR SEVERAL WEEKS THEREAFTER, IT WAS WITHIN THE ADMINISTRATIVE DISCRETION TO REFUSE THE FURTHER GRANTING OF SICK LEAVE AND PLACE THE EMPLOYEE IN AN ANNUAL LEAVE STATUS; FURTHERMORE, THE EMPLOYEE HAVING BEEN FINALLY SEPARATED, IT WOULD NOT NOW BE PROPER TO SUBSTITUTE SICK LEAVE FOR LEAVE WITHOUT PAY GRANTED PRIOR TO TERMINATION OF EMPLOYMENT. AN EMPLOYEE WHO, WHILE ON ANNUAL LEAVE GRANTED INCIDENT TO SEPARATION BY REDUCTION IN FORCE, IS SUMMONED AS A WITNESS OR AS A JUROR IS ENTITLED TO HAVE OTHERWISE PROPER COURT LEAVE SUBSTITUTED FOR SUCH ANNUAL LEAVE. COMP. GEN. 245, AMPLIFIED.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE TREASURY, JANUARY 30, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 10, 1947, IN MATERIAL PART, AS FOLLOWS:

ON MARCH 18, 1947, COLLECTORS OF CUSTOMS WERE DIRECTED BY THE BUREAU OF CUSTOMS TO ISSUE WRITTEN NOTICE TO EACH EMPLOYEE ON THE PORT PATROL FORCE WHO HAD NO CIVIL SERVICE STATUS THAT HIS SERVICES WOULD BE TERMINATED AT THE CLOSE OF BUSINESS APRIL 25, 1947, AND THAT AT THE CLOSE OF BUSINESS MARCH 28, 1947, HE WOULD BE PLACED IN AN ANNUAL LEAVE STATUS. ON APRIL 24, 1947, THE SEPARATION DATE WAS EXTENDED TO MAY 29 AND ON MAY 26, 1947, THE SEPARATION DATE WAS EXTENDED TO JUNE 27, 1947. BECAUSE OF APPROPRIATION PROSPECTS FACING THE CUSTOMS SERVICE AT THAT TIME IT WAS ADMINISTRATIVELY HELD THAT SICK, COURT, OR MILITARY LEAVE COULD NOT BE GRANTED TO SUCH EMPLOYEES ON OR AFTER MARCH 28, 1947.

A QUESTION HAS BEEN RAISED AS TO THE PROPRIETY OF THE ACTION TAKEN BY THE BUREAU OF CUSTOMS AND THIS DEPARTMENT RESPECTFULLY REQUESTS A DECISION ON THE FOLLOWING QUESTIONS:

1. ONE OF THE EMPLOYEES REFERRED TO RECEIVED HIS NOTICE OF TERMINATION ON MARCH 26 WHILE ON SICK-LEAVE. HE WAS CARRIED IN A SICK LEAVE STATUS THROUGH MARCH 27; IN AN ANNUAL-LEAVE STATUS TO JUNE 5 (AFTER 6 HOURS); IN A LEAVE-WITHOUT-PAY STATUS THROUGH JUNE 27; AND AT THE CLOSE OF BUSINESS JUNE 27 WAS SEPARATED FROM THE SERVICE. HE HAS PRESENTED A MEDICAL CERTIFICATE SHOWING THAT HE WAS UNDER THE CARE OF A PHYSICIAN FROM MARCH 25 TO APRIL 28. WAS IT WITHIN THE ADMINISTRATIVE DISCRETION OF THE BUREAU OF CUSTOMS TO DENY THIS EMPLOYEE SICK LEAVE ON AND AFTER MARCH 28, 1947?

2. IF THE ANSWER TO THE ABOVE QUESTION IS IN THE NEGATIVE, IS THE FACT THAT THE EMPLOYEE WAS ON SICK LEAVE AT THE TIME OF RECEIVING THE NOTICE THE DETERMINING FACTOR OR WOULD THE BUREAU OF CUSTOMS BE REQUIRED TO GRANT SICK LEAVE PROMPTLY APPLIED FOR ANY ANY TIME BETWEEN MARCH 28, 1947, AND THE CLOSE OF BUSINESS ON JUNE 27, 1947, DURING WHICH PERIOD THE EMPLOYEE WAS CARRIED IN AN ANNUAL OR LEAVE-WITHOUT PAY STATUS?

3. WOULD THE ANSWER TO (1) AND (2) ABOVE HAVE EQUAL APPLICATION IN CONNECTION WITH MILITARY OR COURT LEAVE?

WITH RESPECT TO YOUR QUESTIONS NOS. 1 AND 2, YOUR ATTENTION MAY BE INVITED TO QUESTIONS NOS. 1 AND 2 AND ANSWERS THERETO IN THE DECISION OF OCTOBER 22, 1947, B-67876, 27 COMP. GEN. 227, COPY OF WHICH IS ENCLOSED HEREWITH, AND FROM WHICH IT WILL BE OBSERVED THAT THE GRANTING OR REFUSAL TO GRANT SICK LEAVE, PRIOR TO FINAL SEPARATION FROM THE SERVICE AND WHILE NOT IN A LEAVE-WITHOUT-PAY STATUS, IS AN ADMINISTRATIVE MATTER NOT GENERALLY SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. SEE, ALSO, QUESTION AND ANSWER NO. 6 IN THAT DECISION TO THE EFFECT THAT IT WOULD NOT BE PROPER TO TERMINATE A LEAVE-WITHOUT-PAY STATUS TO GRANT SICK LEAVE WITH PAY. ACCORDINGLY, WHILE IT WOULD HAVE BEEN WITHIN YOUR DISCRETION TO HAVE CONTINUED THIS EMPLOYEE ON SICK LEAVE PRIOR TO HIS SEPARATION FOR ANY PERIOD THAT HE WAS SHOWN TO HAVE BEEN INCAPACITATED FOR DUTY BECAUSE OF ILLNESS, THE EMPLOYEE NOW HAVING BEEN FINALLY SEPARATED, IT WOULD NOT BE PROPER AT THIS TIME TO SUBSTITUTE SICK LEAVE FOR LEAVE WITHOUT PAY.

IN 19 COMP. GEN. 716, REFERRED TO IN YOUR SUBMISSION, IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE, AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND THE EMPLOYEE HAS HAD NOTICE THEREOF, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT, WHETHER THE APPLICATION FOR SUCH EXTENSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY.

IN THE LIGHT OF SUBSEQUENT DEVELOPMENTS THE FOREGOING DECISION WAS GIVEN FURTHER CONSIDERATION IN DECISION OF OCTOBER 27, 1947, B-68195, 27 COMP. GEN. 245, AND IT WAS THEREIN STATED:

PRIOR TO THE SAID ACT OF DECEMBER 21, 1944, AUTHORIZING PAYMENT IN A LUMP SUM FOR ALL UNUSED ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT ON THE DATE OF SEPARATION FROM THE SERVICE, AN EMPLOYEE WHO REPORTED FOR MILITARY TRAINING DUTY PRIOR TO THE DATE ADMINISTRATIVELY FIXED FOR HIS SEPARATION FROM THE SERVICE SUFFERED NO LOSS OF PAY BY REASON OF ADMINISTRATIVE FAILURE TO SUBSTITUTE MILITARY LEAVE FOR ANNUAL LEAVE FOR THE PERIOD OF TRAINING DUTY WHICH OCCURRED PRIOR TO THE ADMINISTRATIVELY FIXED SEPARATION DATE. WHILE THE DATE OF SEPARATION USUALLY WAS FIXED ADMINISTRATIVELY SO AS TO PERMIT AN EMPLOYEE TO TAKE ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE TO HIS CREDIT, THERE WAS NO REQUIREMENT WHEN CITED DECISIONS WERE RENDERED THAT THE SEPARATION DATE BE EXTENDED SOLELY FOR THE PURPOSE OF GRANTING ANNUAL LEAVE NOT TAKEN PRIOR TO SEPARATION, NOR WAS THERE ANY STATUTORY AUTHORITY PRIOR TO THE ACT OF DECEMBER 21, 1944, PERMITTING PAYMENT TO BE MADE FOR UNUSED ANNUAL LEAVE TO AN EMPLOYEE'S CREDIT ON THE EFFECTIVE DATE OF SEPARATION. HENCE, ADMINISTRATIVE FAILURE TO SUBSTITUTE MILITARY LEAVE FOR ANNUAL LEAVE WAS IMMATERIAL UNDER SUCH CIRCUMSTANCES SINCE FAILURE TO DO SO DID NOT RESULT IN A LOSS OF PAY TO THE EMPLOYEE. HOWEVER, IT NOW IS MATERIAL WHETHER MILITARY LEAVE IS SUBSTITUTED FOR ANNUAL LEAVE UNDER SUCH CIRCUMSTANCES, SINCE AN EMPLOYEE IS ENTITLED UNDER THE ACT OF DECEMBER 21, 1944, TO BE PAID IN A LUMP SUM FOR ALL UNUSED LEAVE TO HIS CREDIT UPON SEPARATION FROM THE SERVICE. THE FAILURE TO SUBSTITUTE MILITARY LEAVE FOR ANNUAL LEAVE STATUS PRIOR TO SEPARATION WOULD HAVE THE EFFECT OF REQUIRING THE EMPLOYEE TO CHARGE SUCH ABSENCE TO ANNUAL LEAVE, INSTEAD OF MILITARY LEAVE, WHICH IS CONTRARY TO THE PROVISIONS OF THE ACT OF MAY 12, 1917, AS AMENDED, AUTHORIZING SUCH ABSENCE TO BE CHARGED TO MILITARY LEAVE. IT IS APPARENT THAT IF SUCH ABSENCE IS CHARGED TO MILITARY LEAVE AS REQUIRED BY THE ACT OF MAY 12, 1917, AS AMENDED, RATHER THAN TO ANNUAL LEAVE, THE EMPLOYEE WOULD HAVE UNUSED ANNUAL LEAVE TO HIS CREDIT OTHERWISE CHARGEABLE FOR THE ABSENCE FROM THE DATE HE REPORTED FOR MILITARY TRAINING DUTY TO THE DATE ADMINISTRATIVELY FIXED FOR HIS SEPARATION FROM THE SERVICE. TO DENY THE EMPLOYEE PAYMENT IN A LUMP SUM FOR SUCH UNUSED LEAVE TO HIS CREDIT ON THE DATE OF SEPARATION WOULD CONTRAVENE NOT ONLY THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, BUT ALSO THE PROVISIONS OF THE ACT OF MAY 12, 1917, SAVING EMPLOYEES WHO PERFORM MILITARY TRAINING DUTY FROM LOSS OF CIVILIAN PAY. IT FOLLOWS THAT WHERE AN EMPLOYEE IS ORDERED TO REPORT FOR MILITARY TRAINING DUTY WHILE ON ANNUAL LEAVE GRANTED AS A PART OF THE "30-DAY NOTICE PERIOD" PRIOR TO SEPARATION BY REDUCTION IN FORCE, MILITARY LEAVE IS REQUIRED TO BE SUBSTITUTED FOR ANNUAL LEAVE GRANTED AS A PART OF SUCH 30-DAY NOTICE PERIOD, BUT NOT FOR ANY PERIOD BEYOND THE PREVIOUSLY FIXED SEPARATION DATE, AND THE EMPLOYEE IS ENTITLED TO BE PAID FOR ANY PERIOD BEYOND THE PREVIOUSLY FIXED SEPARATION DATE, AND THE EMPLOYEE IS ENTITLED TO BE PAID FOR ANY RESULTING ANNUAL LEAVE TO HIS CREDIT ON THE DATE ADMINISTRATIVELY FIXED FOR HIS SEPARATION.

WHAT IS STATED IN SAID DECISION WITH RESPECT TO MILITARY LEAVE WOULD BE EQUALLY APPLICABLE TO THE GRANTING OF COURT LEAVE TO EMPLOYEES SUMMONED AS WITNESSES, PURSUANT TO SECTION 850, REVISED STATUTES, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 24, 1942, 56 STAT. 1088, 28 U.S.C. 604, OR PURSUANT TO THE ACT OF OCTOBER 14, 1941, 55 STAT. 737, 5 U.S.C. 30N-1, OR AS JURORS, PURSUANT TO THE ACT OF JUNE 29, 1940, 54 STAT. 689, U.S.C. 30N. SEE, ALSO, SECTION 30.204 OF THE CURRENT ANNUAL LEAVE REGULATIONS. QUESTION 3 IS ANSWERED ACCORDINGLY.