Substitution of Leave Without Pay for Sick Leave for a Period Prior to the Death of Navy Employee

A Federal employee applied for disability retirement and at the same time waived his military retired pay in order to increase his Civil Service annuity and his spouse's survivor annuity to be effective when retirement was granted. He then went on extended sick leave and died in that status. The Navy questioned whether it could retroactively substitute leave without pay (LWOP) for sick leave for a period just prior to the death of the employee so that his military retired pay waiver might be given effect and his military service combined with civilian service to increase his spouse's survivor annuity. It was noted that the agency has discretionary authority to place an employee in a LWOP status because of retirement counseling errors or misunderstanding. In this case, however, there was nothing of record to show such counseling error or that the employee misunderstood that a sick leave status was not retirement. Therefore, GAO held that it would be improper to retroactively substitute LWOP for sick leave.