B-81428, DECEMBER 31, 1948, 28 COMP. GEN. 390

B-81428, DECEMBER 31, 1948, 28 COMP. GEN. 390

LEAVES OF ABSENCE - SICK - RECREDIT AFTER MILITARY SERVICE UNDER SECTION 30.411 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROVIDING FOR THE RECREDIT OF LEAVE UPON THE REEMPLOYMENT OF A PERMANENT EMPLOYEE WITHIN 120 DAYS AFTER RELEASE FROM THE MILITARY SERVICE, AN EMPLOYEE WHO MET ALL OF THE CONDITIONS FOR RESTORATION TO THE PERMANENT POSITION HE HELD PRIOR TO HIS ENTERING THE ARMED SERVICES OR TO ONE OF LIKE SENIORITY, STATUS, AND PAY, BUT WHO, THROUGH NO FAULT OF HIS OWN, ACTUALLY WAS NOT RESTORED WITHIN 120 DAYS AFTER HIS RELEASE FROM THE MILITARY SERVICE, IS NOT ENTITLED TO BE RECREDITED WITH SICK LEAVE WHEN HE FINALLY IS RESTORED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, DECEMBER 31, 1948:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 4, 1948, REQUESTING DECISION AS TO THE CORRECTNESS OF THE ADMINISTRATIVE ACTION IN DENYING CREDIT TO ANDREW MARKO, ENGINEERING MATERIALS AND EQUIPMENT INSPECTOR, CAF -5, NAVAL ORDNANCE PLANT, FOREST PARK, ILLINOIS, OF 558 HOURS' SICK LEAVE EARNED AS A PERMANENT WAR DEPARTMENT EMPLOYEE IN THE DETROIT ORDNANCE DISTRICT PRIOR TO HIS ENTRY INTO THE ARMED FORCES IN 1945, UPON HIS REEMPLOYMENT IN YOUR DEPARTMENT UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED.

MR. MARKO HAD A PERMANENT APPOINTMENT AT THE DETROIT ORDNANCE DISTRICT, WAR DEPARTMENT, WHEN HE ENTERED THE MILITARY SERVICE ON JUNE 30, 1945. WAS SEPARATED FROM THE ARMY ON AUGUST 31, 1946, AND ON SEPTEMBER 30, 1946, HE APPLIED AT THE DETROIT ORDNANCE DISTRICT FOR REEMPLOYMENT TO WHICH HE WAS ENTITLED UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, 54 STAT. 890, AS AMENDED, AND AS REENACTED BY SECTION 1 OF THE ACT OF JUNE 29, 1946, 60 STAT. 341. BY LETTER DATED OCTOBER 7, 1946, MR. MARKO WAS ADVISED THAT THE DETROIT ORDNANCE DISTRICT WOULD BE UNABLE TO REINSTATE HIM BECAUSE OF A DRASTIC REDUCTION IN FORCE. THE EMPLOYEE SUBSEQUENTLY ACCEPTED A TEMPORARY APPOINTMENT WITH THE WAR ASSETS ADMINISTRATION WITHIN A PERIOD OF 120 DAYS AFTER DISCHARGE FROM THE ARMED FORCES AND PERFORMED SERVICE THEREUNDER FROM DECEMBER 20, 1946, UNTIL FEBRUARY 1, 1947. ON OCTOBER 13, 1947, HE WAS REINSTATED IN A PERMANENT POSITION AT THE UNITED STATES NAVAL ORDNANCE PLANT, FOREST PARK, ILLINOIS, WHERE HE NOW IS EMPLOYED.

THE ACT OF AUGUST 1, 1941, AS AMENDED, 56 STAT. 200, AUTHORIZING PAYMENT FOR ACCUMULATED OR CURRENT ACCRUED LEAVE CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL DUTY HAS NO APPLICATION TO SICK LEAVE; HENCE, SAID ACT IS NOT FOR CONSIDERATION HERE. SEE 21 COMP. GEN. 210.

THE RIGHT OF AN EMPLOYEE TO A RECREDIT OF SICK LEAVE UPON RETURN TO CIVILIAN DUTY AFTER MILITARY SERVICE IS NOT FOR DETERMINATION SOLELY UPON THE BASIS THAT HE MAY BE ENTITLED TO RESTORATION UNDER THE PROVISIONS OF SECTION 8 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940. RATHER, SUCH RIGHT IS FOR DETERMINATION PURSUANT TO THE REQUIREMENTS SET OUT IN SECTION 30.411 (A) OF THE ANNUAL AND SICK LEAVE REGULATIONS, EFFECTIVE MAY 1, 1947, 12 F.R. 1344, WHICH SECTION PROVIDES, IN EFFECT, THAT ANY "PERMANENT EMPLOYEE," UPON REEMPLOYMENT AS A "PERMANENT EMPLOYEE" WITHIN 120 DAYS AFTER HIS RELEASE FROM THE MILITARY SERVICE, SHALL BE ENTITLED TO SUCH LEAVE AS REMAINED TO HIS CREDIT. SEE 26 COMP. GEN. 209; AND B-56998, OCTOBER 14, 1946. SIMILAR PROVISIONS WERE CONTAINED IN SECTION 54.411 (A) OF THE LEAVE REGULATIONS IN EFFECT DURING DECEMBER 1946, 11 F.R. 7259. SECTION 30.101 OF THE LEAVE REGULATIONS DEFINES "PERMANENT EMPLOYEES" AS EMPLOYEES APPOINTED WITHOUT LIMITATION AS TO THE LENGTH OF SERVICE, AS DISTINGUISHED FROM "TEMPORARY EMPLOYEES" WHO ARE DEFINED AS BEING THOSE APPOINTED FOR DEFINITE PERIODS OF TIME NOT EXCEEDING ONE YEAR.

IT IS CLEAR THAT, UNDER SAID REGULATIONS, A PERMANENT EMPLOYEE IS ENTITLED TO A RECREDIT OF SICK LEAVE UPON RETURN TO CIVILIAN DUTY AFTER MILITARY SERVICE ONLY WHEN REEMPLOYED AS A PERMANENT EMPLOYEE WITHIN THE TIME LIMITATION SPECIFIED IN THE LEAVE REGULATIONS. ACCORDINGLY, AN EMPLOYEE WHO MET ALL OF THE CONDITIONS FOR/RESTORATION TO THE POSITION HE HELD PRIOR TO HIS ENTERING THE ARMED SERVICES OR TO ONE OF LIKE SENIORITY, STATUS, AND PAY BUT WHO, THROUGH NO FAULT OF HIS OWN, ACTUALLY WAS NOT RESTORED WITHIN THE TIME LIMITATION SPECIFIED IN THE LEAVE REGULATIONS, IS NOT ENTITLED TO BE RECREDITED WITH SICK LEAVE WHEN HE FINALLY IS RESTORED.

IRRESPECTIVE OF WHETHER THE EMPLOYEE WAS ENTITLED TO RECREDIT OF SUCH LEAVE IN CONNECTION WITH THE TEMPORARY EMPLOYMENT ON DECEMBER 20, 1946, HE IS NOT ENTITLED TO A RECREDIT OF SICK LEAVE UNDER SECTION 30.411 OF THE REGULATIONS UPON REINSTATEMENT IN A PERMANENT POSITION AT THE UNITED STATES NAVAL ORDNANCE PLANT ON OCTOBER 13, 1947, BECAUSE SUCH PERMANENT EMPLOYMENT WAS NOT WITHIN THE TIME LIMIT OF 120 DAYS AFTER HIS RELEASE FROM THE MILITARY SERVICE AS SPECIFIED BY SAID SECTION 30.411 OF LEAVE REGULATIONS, OR WITHIN THE TIME LIMIT OF 90 DAYS AFTER TERMINATION OF SUCH TEMPORARY EMPLOYMENT ON FEBRUARY 1, 1947, AS SPECIFIED BY SECTION 30.408 IN CONNECTION WITH THE TRANSFER BETWEEN POSITIONS.

ACCORDINGLY, THE ACTION OF THE NAVY DEPARTMENT IN DENYING THE EMPLOYEE'S CLAIM FOR A RECREDIT OF SICK LEAVE UPON REINSTATEMENT ON OCTOBER 13, 1947, WAS CORRECT.