B-182804, MAR 29, 1976

B-182804, MAR 29, 1976

EMPLOYEE ENTITLED TO USE SICK LEAVE SPECIFICALLY REQUESTED THAT SUCH TIME BE CHARGED TO ANNUAL LEAVE. UPON RECONSIDERATION PRIOR DECISION IS AFFIRMED WHICH HELD THAT AFTER ANNUAL LEAVE IS GRANTED, EMPLOYEE MAY NOT THEREAFTER HAVE SUCH LEAVE CHARGED TO SICK LEAVE AND BE RECREDITED WITH THE AMOUNT OF ANNUAL LEAVE PREVIOUSLY CHARGED. WHETHER SUCH LEAVE, IF GRANTED, WOULD HAVE BEEN USED FOR PURPOSES OF LUMP-SUM PAYMENT UPON RETIREMENT IS NOT DETERMINATIVE OF THE QUESTION AT ISSUE. THERE IS NO KNOWN BASIS TO SUPPORT EMPLOYEE BELIEF THAT SUCH ANNUAL LEAVE MAY BE RECHARGED TO SICK LEAVE IF REQUEST THEREFORE IS MADE WITHIN A YEAR.

EUGENE W. WHITWAM - CHANGE OF ANNUAL LEAVE TO SICK LEAVE - RETROACTIVE - RECONSIDERATION:

THIS ACTION IS IN RESPONSE TO A REQUEST BY MR. EUGENE W. WHITWAM, A FORMER EMPLOYEE OF THE FEDERAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE, THAT WE RECONSIDER OUR DECISION 54 COMP.GEN. 1086 (1975), WHEREIN WE DISALLOWED HIS REQUEST TO SUBSTITUTE SICK LEAVE FOR ANNUAL LEAVE. THAT DECISION STATED IN THE DIGEST AS FOLLOWS:

"EMPLOYEE ENTITLED TO USE SICK LEAVE SPECIFICALLY REQUESTED THAT SUCH TIME BE CHARGED TO ANNUAL LEAVE. AFTER ANNUAL LEAVE IS GRANTED, EMPLOYEE MAY NOT THEREAFTER HAVE SUCH LEAVE CHARGED TO SICK LEAVE AND BE RECREDITED WITH THE AMOUNT OF ANNUAL LEAVE PREVIOUSLY CHARGED FOR PURPOSE OF LUMP-SUM PAYMENT UPON SEPARATION FOR RETIREMENT."

THE DIGEST WAS FORMULATED IN PART ON THE BASIS OF THE BUREAU'S REQUEST FOR THE DECISION WHICH STATED THAT MR. WHITWAM, AFTER MAKING APPLICATION FOR RETIREMENT, REQUESTED THAT 52 HOURS OF SICK LEAVE WHICH HAD BEEN CHARGED TO ANNUAL LEAVE AT HIS REQUEST BE CHARGED TO SICK LEAVE AND INCLUDED IN HIS LUMP-SUM ANNUAL LEAVE PAYMENT. MR. WHITWAM, BY LETTER OF JULY 16, 1975, STATES THAT AT NO TIME DID HE REQUEST A SUBSTITUTION OF ANNUAL LEAVE FOR SICK LEAVE FOR PURPOSES OF LUMP-SUM PAYMENT UPON SEPARATION FOR RETIREMENT. THE BUREAU, BY LETTER OF AUGUST 18, 1975, CONFIRMS THE ACCURACY OF THE INFORMATION SET FORTH IN ITS ORIGINAL SUBMISSION FOR A DECISION. WHETHER MR. WHITWAM REQUESTED THE CHANGE IN LEAVE CHARGE BEFORE OR AFTER HIS DECISION TO RETIRE IS NOT DETERMINATIVE OF THE QUESTION AT ISSUE.

MR. WHITWAM STATES THAT THE HOURS OF SICK LEAVE FOR WHICH HE REQUESTED AND WAS GRANTED ANNUAL LEAVE WAS DONE ON HIS BELIEF THAT SUCH HOURS COULD LATER BE CHANGED TO SICK LEAVE IF THE REQUEST WAS MADE IN THE SAME YEAR. WE ARE UNAWARE OF ANY LAW OR REGULATION THAT WOULD PERMIT SUCH PRACTICE AND ON THE CONTRARY AS SET OUT IN THE DECISION 54 COMP.GEN. 1086, SUPRA, THE BUREAU IN ITS SUBMISSION CITED TWO DECISIONS - B-142571, APRIL 20, 1960; AND B-164346, JUNE 10, 1968 - WHICH HOLD THAT SICK LEAVE MAY NOT BE RETROACTIVELY SUBSTITUTED FOR ANNUAL LEAVE GRANTED SPECIFICALLY AT THE EMPLOYEE'S REQUEST. OUR DECISION 54 COMP.GEN. 1086, SUPRA, IN EFFECT, CONFIRMED THOSE DECISIONS IN HOLDING THAT MR. WHITWAM HAD USED ANNUAL LEAVE IN LIEU OF SICK LEAVE IN A MANNER TO WHICH HE WAS ENTITLED AND THAT HE CANNOT LATER CHANGE HIS MIND AND SUBSTITUTE SICK LEAVE FOR ANNUAL LEAVE. IN B-181087, JUNE 21, 1974, WE STATED IN PERTINENT PART AS FOLLOWS:

"*** WHEN AN EMPLOYEE HAS ACCEPTED COMPENSATION FOR A PERIOD OF ABSENCE FROM DUTY UPON THE BASIS OF HIS APPROVED APPLICATION FOR ANNUAL LEAVE, WITH A CONSEQUENT CHARGE AGAINST ACCRUED ANNUAL LEAVE, THE EMPLOYEE MUST BE REGARDED AS HAVING MADE HIS ELECTION, AND THE OBLIGATION OF THE UNITED STATES HAVING BEEN DISCHARGED, SUCH RIGHT AND OBLIGATION ARE NOT SUBJECT TO CHANGE UNLESS A LAW OR REGULATION HAVING THE FORCE AND EFFECT OF LAW EXPRESSLY PROVIDES THEREFOR."

UPON REVIEW WE FIND NO BASIS THAT WOULD WARRANT CHANGING THE CONCLUSION REACHED IN 54 COMP.GEN. 1086, SUPRA.