B-179965 L/M, JUL 28, 1981, OFFICE OF GENERAL COUNSEL

B-179965 L/M: Jul 28, 1981

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PROVIDES THAT DISABLED VETERANS EMPLOYED IN EXECUTIVE BRANCH WHO ARE ABSENT FROM WORK DUE TO NECESSARY MEDICAL TREATMENT ARE ENTITLED TO USE SUCH ANNUAL OR SICK LEAVE AS MAY BE PERMITTED BY LAW AND SUCH LEAVE WITHOUT PAY AS MAY BE NECESSARY. EXECUTIVE ORDER DOES NOT ENTITLE SUCH DISABLED VETERANS TO PAID LEAVE IN EXCESS OF THAT WHICH HE WOULD OTHERWISE BE ENTITLED SO THAT THERE IS NO ENTITLEMENT TO EXCUSED OR ADMINISTRATIVE LEAVE DURING THE PERIOD OF MEDICAL TREATMENT. IN WHICH IT WAS DETERMINED IN PART THAT YOU WERE NOT ENTITLED TO BACK PAY DURING THE PERIOD OCTOBER 13. WHILE YOU WERE IN A LEAVE-WITHOUT-PAY STATUS. THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE DEPARTMENT OF THE ARMY AT THE ERIE ARMY DEPOT.

B-179965 L/M, JUL 28, 1981, OFFICE OF GENERAL COUNSEL

DIGEST: EXECUTIVE ORDER 5396, JULY 17, 1930, PROVIDES THAT DISABLED VETERANS EMPLOYED IN EXECUTIVE BRANCH WHO ARE ABSENT FROM WORK DUE TO NECESSARY MEDICAL TREATMENT ARE ENTITLED TO USE SUCH ANNUAL OR SICK LEAVE AS MAY BE PERMITTED BY LAW AND SUCH LEAVE WITHOUT PAY AS MAY BE NECESSARY. EXECUTIVE ORDER DOES NOT ENTITLE SUCH DISABLED VETERANS TO PAID LEAVE IN EXCESS OF THAT WHICH HE WOULD OTHERWISE BE ENTITLED SO THAT THERE IS NO ENTITLEMENT TO EXCUSED OR ADMINISTRATIVE LEAVE DURING THE PERIOD OF MEDICAL TREATMENT.

MR. WILLIAM C. BURKE:

WE REFER AGAIN TO YOUR LETTER IN WHICH YOU REQUESTED RECONSIDERATION OF DECISION B-179965, JULY 18, 1974, IN WHICH IT WAS DETERMINED IN PART THAT YOU WERE NOT ENTITLED TO BACK PAY DURING THE PERIOD OCTOBER 13, 1964, TO JULY 19, 1965, WHILE YOU WERE IN A LEAVE-WITHOUT-PAY STATUS.

IN BRIEF, THE RECORD SHOWS THAT YOU WERE EMPLOYED BY THE DEPARTMENT OF THE ARMY AT THE ERIE ARMY DEPOT, PORT CLINTON, OHIO, AS A GUIDED MISSILE MECHANICAL INSTALLER AND REPAIRER. YOU HAVE STATED IN THE RECORD THAT YOUR PRIMARY DUTY WAS TO SAND DOWN THE MISSILES TO PREPARE THEM FOR PAINTING.

AS A RESULT OF AN APPARENTLY CHRONIC EAR INFECTION YOU SUBMITTED AN APPLICATION FOR DISABILITY RETIREMENT TO THE CIVIL SERVICE COMMISSION ON SEPTEMBER 30, 1964. YOU STATED IN PART IN YOUR APPLICATION THAT DAMAGE TO YOUR LEFT EAR WAS BECOMING PROGRESSIVELY WORSE AND THAT THERE HAD BEEN NO RELIEF DESPITE THREE OPERATIONS. THE RECORD INDICATES THAT YOU HAD SUFFERED FROM A SERVICE-CONNECTED CHRONIC INFLAMATION OF YOUR LEFT EAR.

ON OCTOBER 2, 1964, YOU ENTERED THE VETERANS ADMINISTRATION (VA) HOSPITAL AT CLEVELAND, OHIO, FOR NECESSARY TREATMENT. YOU APPEAR TO HAVE BEEN ON A PAID LEAVE STATUS UNTIL OCTOBER 13, 1964, WHEN THE ERIE ARMY DEPOT PLACED YOU ON LEAVE WITHOUT PAY PENDING THE OUTCOME OF YOUR APPLICATION FOR A DISABILITY RETIREMENT. YOU STATE THAT PRIOR TO ENTERING THE HOSPITAL YOU REQUESTED THAT YOU BE GRANTED 30 DAYS' ADVANCE SICK LEAVE AND THAT YOUR REQUEST WAS DENIED. YOU WERE APPARENTLY RELEASED FROM THE VA HOSPITAL ON NOVEMBER 1, 1964.

ON MAY 3, 1965, THE CIVIL SERVICE COMMISSION DENIED YOUR APPLICATION FOR A DISABILITY RETIREMENT ON THE BASIS THAT TOTAL DISABILITY FOR USEFUL AND EFFICIENT SERVICE WAS NOT SHOWN. ON MAY 6, 1965, YOU WERE RETURNED TO DUTY AT THE ERIE ARMY DEPOT AS A GUIDED MISSILE MECHANICAL INSTALLER AND REPAIRER. HOWEVER, AS SET FORTH IN YOUR STATEMENT DATED JANUARY 16, 1973, TO THE FINANCE OFFICER AT FORT BENJAMIN HARRISON, INDIANA, YOU DECLINED TO PERFORM YOUR DUTIES AS A GUIDED MISSILE INSTALLER AND REPAIRER AS YOU BELIEVED THAT YOUR SANDING MISSILES WOULD RESULT IN YOUR DEVELOPING ANOTHER EAR INFECTION WHICH WOULD REQUIRE FURTHER HOSPITALIZATION. ACCORDINGLY, YOU WERE DIRECTED TO RETURN HOME. THE RECORD SHOWS THAT YOU WERE RETURNED TO DUTY AS A GUIDED MISSILE MECHANICAL INSTALLER AND REPAIRER ON JULY 19, 1965, AND THAT EFFECTIVE AUGUST 3, 1965, YOU TRANSFERRED TO A POSITION WITH THE NEWARK AIR FORCE STATION, NEWARK, OHIO.

THE BACK PAY ACT, 5 U.S.C. 5596 (1976), PROVIDES IN PERTINENT PART THAT AN AGENCY EMPLOYEE WHO IS FOUND TO HAVE UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION WHICH RESULTS IN THE WITHDRAWAL OR REDUCTION OF ALL OR PART OF HIS PAY AND ALLOWANCES IS ENTITLED UPON CORRECTION OF THE ACTION TO RECOVER THE AMOUNT THE EMPLOYEE WOULD HAVE EARNED DURING THAT PERIOD AS IF THE PERSONNEL ACTION HAD NOT OCCURRED AND FOR ALL PURPOSES THE EMPLOYEE IS DEEMED TO HAVE PERFORMED SERVICES FOR THE AGENCY DURING THAT PERIOD.

IN DECISION B-179965, JULY 18, 1974, YOUR CLAIM FOR BACK PAY FOR THE PERIOD THAT YOU WERE ON LEAVE WITHOUT PAY WAS DISALLOWED. THE BASIS FOR THAT DETERMINATION WAS THAT THE RECORD FAILED TO SHOW THAT YOUR ABSENCE WAS INVOLUNTARY OR THAT YOU WERE READY, WILLING, AND ABLE TO WORK. SEE SEEBACH V. UNITED STATES, 182 CT.CL. 342, 352 (1968).

YOU NOW REQUEST THE RECONSIDERATION OF THE DECISION DISALLOWING YOUR CLAIM. YOU HAVE NOT SUBMITTED ANY NEW EVIDENCE WHICH WOULD ESTABLISH THAT YOUR ABSENCE FROM WORK WAS INVOLUNTARY OR THAT YOU WERE READY, WILLING AND ABLE TO WORK DURING THE PERIOD OF YOUR CLAIM. YOUR REQUEST FOR RECONSIDERATION IS BASED ON EXECUTIVE ORDER 5396, JULY 17, 1930, WHICH PROVIDES AS FOLLOWS:

"WITH RESPECT TO MEDICAL TREATMENT OF DISABLED VETERANS WHO ARE EMPLOYED IN THE EXECUTIVE CIVIL SERVICE OF THE UNITED STATES, IT IS HEREBY ORDERED THAT, UPON THE PRESENTATION OF AN OFFICIAL STATEMENT FROM DULY CONSTITUTED MEDICAL AUTHORITY THAT MEDICAL TREATMENT IS REQUIRED, SUCH ANNUAL OR SICK LEAVE AS MAY BE PERMITTED BY LAW AND SUCH LEAVE WITHOUT PAY AS MAY BE NECESSARY SHALL BE GRANTED BY THE SUPERVISORY OFFICER TO A DISABLED VETERAN IN ORDER THAT THE VETERAN MAY RECEIVE SUCH TREATMENT, ALL WITHOUT PENALTY IN HIS EFFICIENCY RATING.

"THE GRANTING OF SUCH LEAVE IS CONTINGENT UPON THE VETERAN'S GIVING PRIOR NOTICE OF DEFINITE DAYS AND HOURS OF ABSENCE REQUIRED FOR MEDICAL TREATMENT IN ORDER THAT ARRANGEMENTS MAY BE MADE FOR CARRYING ON THE WORK DURING HIS ABSENCE."

SEE FEDERAL PERSONNEL MANUAL (FPM) SUPPLEMENT 990-2, BOOK 630, SUBCH. S1-4.

IN VIEW OF EXECUTIVE ORDER 5396, JULY 17, 1930, YOU CONTEND THAT THE AGENCY SHOULD HAVE GRANTED YOUR REQUEST FOR ADVANCE SICK LEAVE. PURSUANT TO 5 U.S.C. 6307(C) AN AGENCY MAY GRANT AN EMPLOYEE UP TO 30 DAYS OF ADVANCE SICK LEAVE. HOWEVER, THE GRANTING OF ADVANCE SICK LEAVE IS A MATTER WITHIN THE EXCLUSIVE JURISDICTION OF THE AGENCY. SEE MATTER OF THOMAS W. BAILEY, B-182085, DECEMBER 24, 1974. APPARENTLY YOUR AGENCY DECIDED NOT TO GRANT ADVANCE SICK LEAVE IN YOUR CASE, BUT RATHER TO PUT YOU ON LEAVE WITHOUT PAY.

IN ADDITION, THE RECORD BEFORE US DOES NOT DEFINITELY ESTABLISH THAT YOUR ACTIONS PRIOR TO ENTERING THE HOSPITAL MET THE REQUIREMENTS SET FORTH IN EXECUTIVE ORDER 5396. WE ALSO CALL TO YOUR ATTENTION THAT THE EXPRESS LANGUAGE OF THE EXECUTIVE ORDER INDICATES THAT IT IS FOR APPLICATION ONLY IN THOSE CIRCUMSTANCES WHERE IT IS CONTEMPLATED THAT THE EMPLOYEE WILL RETURN TO DUTY AFTER RECEIVING THE NECESSARY MEDICAL TREATMENT. IN YOUR CASE, YOU APPLIED FOR DISABILITY RETIREMENT PRIOR TO ENTERING THE HOSPITAL. WE NOTE THAT EXECUTIVE ORDER 5396 DOES NOT ENTITLE A DISABLED VETERAN TO PAID ANNUAL OR SICK LEAVE IN EXCESS OF THAT TO WHICH HE WOULD OTHERWISE BE ENTITLED SO THAT IT DOES NOT PROVIDE ENTITLEMENT TO EXCUSED OR ADMINISTRATIVE LEAVE DURING THE PERIOD OF MEDICAL TREATMENT. SEE MATTER OF GUS C. FORD, B-188012, MAY 10, 1977, AND FPM BULLETIN 630-34, MARCH 26, 1979.

IN VIEW OF THE ABOVE, AND SINCE YOU HAVE NOT PRESENTED ANY NEW EVIDENCE WHICH REFUTES THE FINDINGS OF OUR DECISION OF JULY 18, 1974, WE SEE NO BASIS UPON WHICH TO CONSIDER YOUR CLAIM FURTHER.

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