B-136721, AUG. 1, 1958

B-136721, AUG. 1, 1958

TO HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

YOUR LETTER OF JULY 1, 1958, REFERENCE 135, REQUESTS OUR DECISION WHETHER AN EMPLOYEE OF THE VETERANS ADMINISTRATION IS ENTITLED TO HAVE HIS ANNUAL AND SICK LEAVE RECREDITED UNDER THE FOLLOWING CIRCUMSTANCES.

BECAUSE OF HIS BEHAVIOR ON THE JOB, THE EMPLOYEE IN QUESTION WAS REQUESTED TO HAVE A PHYSICAL EXAMINATION TO DETERMINE HIS PHYSICAL FITNESS TO CONTINUE EMPLOYMENT. AS A RESULT OF THE EXAMINATION BY A VETERANS ADMINISTRATION MEDICAL BOARD, THE EMPLOYEE WAS RECOMMENDED FOR IMMEDIATE DISABILITY RETIREMENT FROM HIS POSITION OF COOK. THE EMPLOYEE WOULD NOT AGREE TO FILE FOR RETIREMENT. BASED ON ITS MEDICAL FINDINGS THE VETERANS ADMINISTRATION FILED AN INVOLUNTARY APPLICATION FOR DISABILITY RETIREMENT FOR THE EMPLOYEE ON JUNE 17, 1957.

THE EMPLOYEE WAS TOLD BY THE PERSONNEL OFFICER THAT HE WOULD BE SUSPENDED IF HE WOULD NOT CONSENT TO BE CARRIED ON SICK LEAVE PENDING THE CIVIL SERVICE COMMISSION'S DECISION. THE EMPLOYEE SIGNED A STATEMENT THAT IT WAS SATISFACTORY WITH HIM TO BE CARRIED ON SICK LEAVE PENDING THE COMMISSION'S DECISION REGARDING HIS RETIREMENT. THE EMPLOYEE WAS PLACED ON SICK LEAVE EFFECTIVE JUNE 18, 1957. ON JULY 2,1957, HE MADE WRITTEN REQUEST TO RETURN TO DUTY STATING THAT HE WAS NOT SICK. THIS REQUEST WAS DENIED BY THE VETERANS ADMINISTRATION. THE EMPLOYEE WAS ORDERED BY THE COMMISSION TO REPORT TO ANOTHER VETERANS ADMINISTRATION STATION ON JULY 21, 1957, FOR A PHYSICAL EXAMINATION. THIS EXAMINATION FAILED TO DISCLOSE EVIDENCE OF PHYSICAL OR MENTAL DISQUALIFICATION FOR THE POSITION HELD BY THE EMPLOYEE. ON SEPTEMBER 20, 1957, HE WAS ADMINISTRATIVELY PLACED ON ANNUAL LEAVE AT THE EXPIRATION OF SICK LEAVE.

ON OCTOBER 7, 1957, THE CIVIL SERVICE RETIREMENT DIVISION DISAPPROVED THE AGENCY'S REQUEST FOR DISABILITY RETIREMENT AND THE EMPLOYEE WAS RESTORED TO DUTY ON OCTOBER 15, 1957. THE COMMISSION'S DECISION WAS APPEALED ON OCTOBER 11, 1957, WITH THE REQUEST THAT ANOTHER PHYSICAL EXAMINATION BE CONDUCTED BECAUSE OF ADDITIONAL FACTS. AFTER CONSIDERING THE RESULTS OF THIS FURTHER EXAMINATION, THE PREVIOUS ACTION IN DISALLOWING THE APPLICATION FOR DISABILITY RETIREMENT WAS AFFIRMED BY THE COMMISSION ON DECEMBER 10, 1957.

ON JANUARY 14, 1958, THE EMPLOYEE REQUESTED RESTORATION OF SICK AND ANNUAL LEAVE FOR THE PERIOD JUNE 18 THROUGH OCTOBER 11, 1957, WHILE HE WAS AWAITING A DECISION ON THE INVOLUNTARY APPLICATION FOR DISABILITY RETIREMENT FILED BY THE VETERANS ADMINISTRATION. HE CONTENDS THAT HE SIGNED THE APPLICATION FOR SICK LEAVE AS A MATTER OF RECORD ONLY.

CHAPTER 5, PAGE R-5-42 OF THE FEDERAL PERSONNEL MANUAL CONCERNING AN EMPLOYEE'S STATUS PENDING ACTION BY THE CIVIL SERVICE COMMISSION ON AN AGENCY'S APPLICATION FOR DISABILITY RETIREMENT OF THE EMPLOYEE PROVIDES THAT IT REMAINS UNCHANGED. PENDING DECISION ON THE APPLICATION, HIS EMPLOYMENT RIGHTS ARE DETERMINED UNDER THE NORMAL RULES RELATING TO EMPLOYEES. SECTION 30.401 OF THE MANUAL PROVIDES THAT SICK LEAVE SHALL BE GRANTED TO AN EMPLOYEE WHEN HE IS INCAPACITATED FOR THE PERFORMANCE OF HIS DUTIES BY SICKNESS.

THE ADMINISTRATIVE OFFICIALS APPARENTLY RELIED ON THE MEDICAL REPORT FURNISHED BY HOSPITAL AUTHORITIES AT THE INSTALLATION WHERE THE INDIVIDUAL WAS EMPLOYED THAT THE EMPLOYEE WAS INCAPACITATED FOR THE PERFORMANCE OF HIS DUTIES BY SICKNESS. THEREFORE, SO FAR AS THE RECORD SHOWS, THE SICK LEAVE APPEARS TO HAVE BEEN PROPERLY CHARGED AND CANNOT BE RECREDITED.

CONCERNING THE CHARGING OF ANNUAL LEAVE BY A GOVERNMENT AGENCY WE HAVE RULED, WITH CERTAIN EXCEPTIONS APPLICABLE TO "BACK PAY" CASES, THAT AN EMPLOYEE MAY BE PLACED IN AN ANNUAL LEAVE STATUS WITHOUT HIS CONSENT IN ALL SITUATIONS WHERE THE ADMINISTRATIVE OFFICE CONSIDERS IT DESIRABLE FROM AN OFFICIAL STANDPOINT THAT THE EMPLOYEE NOT BE CONTINUED IN AN ACTUAL WORK STATUS. SEE 28 COMP. GEN. 526; AND 27 ID. 414. SUCH ANNUAL LEAVE APPARENTLY HAVING BEEN PROPERLY CHARGED CANNOT BE RECREDITED TO THE EMPLOYEE'S LEAVE ACCOUNT.