B-149447, AUG. 24, 1962

B-149447, AUG. 24, 1962

TO THE SECRETARY OF THE AIR FORCE:

TRANSMITTED HEREWITH FOR ADMINISTRATIVE DISPOSITION IS THE CLAIM OF MONARD L. KINMAN, 225 ZEPHYR DRIVE, SAN ANTONIO 39, TEXAS, FOR 1,244 HOURS OF SICK LEAVE REMAINING TO HIS CREDIT AT THE TIME OF HIS RETIREMENT FOR DISABILITY. MR. KINMAN WAS EMPLOYED AS SUPERVISORY GENERAL ENGINEER (DESIGN), GS-14, ENGINEERING DIVISION, RANDOLPH AIR FORCE BASE, TEXAS.

IT APPEARS THAT MR. KINMAN WAS SUSPENDED FOR PROTECTIVE REASONS ON OCTOBER 18, 1961, FOR A PERIOD NOT TO EXCEED 90 DAYS. THE SUSPENSION SUBSEQUENTLY WAS CANCELLED AND HE RECEIVED RETROACTIVE PAY FOR THE PERIOD OCTOBER 18, TO NOVEMBER 27, 1961. AT HIS REQUEST HE WAS PLACED ON ANNUAL LEAVE ON NOVEMBER 28 TO AVOID FORFEITURE. HOWEVER, HE WAS REMOVED FROM SERVICE EFFECTIVE DECEMBER 14, WHILE STILL ON LEAVE. THE REASON FOR THE REMOVAL AS SHOWN ON FORM 50 WAS:

"/CCPO) RANDOLPH AFB, TEX. ACTION BASED ON SERIES OF UNRELATED ACTS INVOLVING VERBAL ABUSE OF OTHER EMPLOYEES, PROFANITY, FAILURE TO MAINTAIN AN OFFICE ATMOSPHERE CONDUCIVE TO GOOD WORKING RELATIONSHIPS, ABSENT FROM INTIMIDATION, AMONG EMPLOYEES WITH WHOM YOU WORKED. NOTICE OF PROPOSED ACTION DATED 11-22-61, AMENDED 11-30-61, RECEIVED 11 22-61 AND 12-1-61. NO REPLY RECEIVED. NOTICE OF FINAL DECISION DATED 12-7-61, AMENDED 12-8- 61. SF 55 ISSUED 12-14-61.'

IN HIS LETTER OF MARCH 5, 1962, MR. KINMAN STATED THAT THE DISMISSAL WAS APPEALED BUT THAT NO DEFINITE DECISION HAD BEEN RENDERED. HE ALSO STATED IN THAT LETTER:

"C. IT WAS DETERMINED ON THE BASIS OF MEDICAL TESTIMONY THAT THE ACTS (ALLEGED) THAT WERE CITED AS REASONS FOR THE DISMISSAL WERE RESULTS OF A DEPRESSIVE REACTION AND THAT I SHOULD HAVE BEEN PLACED ON SICK LEAVE AND GIVEN A CHANCE TO RECUPERATE FROM THE ILLNESS. THE AGENCY REFUSED TO RECOGNIZE THE VALIDITY OF THIS CLAIM AND PROCEEDED WITH THE DISMISSAL CHARGES AND THE RESULTANT DISMISSAL.

"D. ACCORDINGLY A CLAIM WAS MADE FOR DISABILITY RETIREMENT PRIOR TO RECEIPT OF THE DISMISSAL NOTICE AND THE RETIREMENT WAS ALLOWED BY THE CIVIL SERVICE COMMISSION ON 20 FEBRUARY 1962 WITH AN EFFECTIVE DATE OF 15 DECEMBER 1961.'

NOTIFICATION OF PERSONNEL ACTION (FORM 50) DATED MARCH 16, 1962, SHOWS THAT THE REMOVAL FROM SERVICE WAS CHANGED TO READ "RETIREMENT--- DISABILITY--- CORRECTION" WITH THE EFFECTIVE DATE OF DECEMBER 14, 1961.

IN RECOMMENDING PAYMENT OF THE CLAIM THE ACCOUNTING AND FINANCE CENTER POINTS OUT THAT UNDER INSTRUCTIONS, PAGE R-5-39, FEDERAL PERSONNEL MANUAL, A DEFINITE DUTY IS PLACED UPON AN AGENCY "NOT TO SEPARATE AN EMPLOYEE IN ILL HEALTH" IF HE HAS THE SERVICE TO QUALIFY FOR DISABILITY RETIREMENT. IT FURTHER POINTS OUT THAT THE LARGE ACCUMULATION OF SICK LEAVE SHOULD HAVE BEEN TAKEN INTO CONSIDERATION WITH THE APPLICATION FOR DISABILITY RETIREMENT AND THAT UNDER THE REGULATION IT IS DESIRABLE TO DEFER APPLICATION FOR DISABILITY RETIREMENT UNTIL THE BALANCE OF SICK LEAVE APPROXIMATES 45 DAYS. ALSO, IN REGARD TO THE FOREGOING, YOUR ATTENTION IS DIRECTED TO INSTRUCTIONS ON SEPARATIONS OF EMPLOYEES, PAGE R-5-42, FEDERAL PERSONNEL MANUAL.

UNDER THE FACTS AND CIRCUMSTANCES OUTLINED IT APPEARS THAT THE EMPLOYEE WOULD HAVE BEEN GIVEN THE OPPORTUNITY TO USE THE SICK LEAVE AND POSSIBLY ANNUAL LEAVE WHICH HE FORFEITED IF THE RETIREMENT DATE HAD NOT BEEN RETROACTIVELY ESTABLISHED TO COINCIDE WITH THE DATE OF THE SEPARATION WHICH IT SUPERSEDED. THEREFORE, IF THE ACQUIESCENCE OF THE CIVIL SERVICE COMMISSION IS OBTAINED AND PROPER ADJUSTMENTS ARE MADE IN THE RETIREMENT ACCOUNT WE WOULD NOT BE REQUIRED TO OBJECT TO THE RESTORATION OF THE EMPLOYEE TO THE ROLLS FOR THE PURPOSE OF COMPENSATING HIM FOR THE SICK LEAVE IN QUESTION. 39 COMP. GEN. 89.

WHILE NO CLAIM IS MADE FOR ANNUAL LEAVE, ANY SUCH LEAVE WHICH OTHERWISE PROPERLY MAY HAVE BEEN GRANTED BUT WHICH WAS FORFEITED AS A CONSEQUENCE OF MR. KINMAN'S PREMATURE SEPARATION, MAY BE INCLUDED IN FIXING THE ADJUSTED DATE OF HIS SEPARATION.