B-153775, JUN. 30, 1964

B-153775, JUN. 30, 1964

TO MR. HAROLD E. KUHN:

THIS REFERS TO YOUR REGISTERED LETTER NO. 878506 OF MARCH 17, 1964, WITH ENCLOSURES, CONCERNING THE MATTER OF YOUR OPTIONAL RETIREMENT AND THE PAYMENT OF ACCUMULATED ANNUAL LEAVE AS AN EMPLOYEE OF THE HEIDELBERG BRANCH OFFICE, NORTHERN AREA COMMAND, UNITED STATES ARMY, EUROPE, HEIDELBERG, GERMANY (APO 403, NEW YORK, NEW YORK).

IN OUR LETTER OF MAY 13, 1964, TO YOU, WE EXPLAINED THAT BEFORE REACHING A CONCLUSION IN THE MATTER WE FOUND IT NECESSARY TO REQUEST AN ADMINISTRATIVE REPORT FROM THE DEPARTMENT OF THE ARMY. BY LETTER OF JUNE 10, 1964, THE DEPARTMENT OF THE ARMY SENT US A COPY OF A LETTER DATED FEBRUARY 7, 1963 (COPY ENCLOSED), WHEREIN THE ENTIRE MATTER WAS REVIEWED FOR YOU. AS INDICATED THEREIN YOU FIRST FILED APPLICATION FOR OPTIONAL RETIREMENT ON SEPTEMBER 20, 1960, TO BE EFFECTIVE DECEMBER 31, 1960. YOU LATER WITHDREW THIS APPLICATION AND FILED AN APPLICATION FOR DISABILITY RETIREMENT DATED DECEMBER 20, 1960. YOU CONTEND THAT YOU SHOULD HAVE BEEN PLACED IN A LEAVE-WITHOUT-PAY STATUS BEGINNING JANUARY 1, 1961.

WITHDRAWAL OF THE OPTIONAL RETIREMENT APPLICATION HAD THE EFFECT OF REMOVING ANY BASIS FOR YOUR PROPOSED SEPARATION ON DECEMBER 31, 1960, FOR RETIREMENT PURPOSES. IT THEN BECAME NECESSARY FOR THE DEPARTMENT OF THE ARMY TO CARRY YOU ON THE ROLLS PENDING ADJUDICATION OF YOUR APPLICATION FOR DISABILITY RETIREMENT. IN THE ABSENCE OF REQUIRED MEDICAL EVIDENCE, THERE WAS NO BASIS FOR CARRYING YOU IN A SICK LEAVE STATUS. CONCERNING THE PLACING OF AN EMPLOYEE ON SICK LEAVE PENDING DISABILITY RETIREMENT THE DEPARTMENT OF THE ARMY CIVILIAN PERSONNEL REGULATION L1.3-3H (8), PROVIDES AS FOLLOWS:

"/8) BALANCES OF SICK LEAVE MAY BE AVAILABLE FOR USE IMMEDIATELY PRIOR TO SEPARATION FOR DISABILITY OR DISABILITY RETIREMENTS, PROVIDED THERE IS EVIDENCE AND CERTIFICATION THEREOF THAT THE EMPLOYEE ACTUALLY IS INCAPACITATED FOR WORK.'

THE PROPRIETY OF THE DEPARTMENT OF THE ARMY ACTION IS DENYING THE GRANT OF SICK LEAVE TO YOU IN THE ABSENCE OF SUPPORTING MEDICAL EVIDENCE WAS LATER SUBSTANTIATED BY THE CIVIL SERVICE COMMISSION'S DISAPPROVAL OF YOUR DISABILITY RETIREMENT APPLICATION.

THE REGULATION OF THE DEPARTMENT OF THE ARMY, CPR L1.8-2, CONCERNING LEAVE WITHOUT PAY PROVIDES IN PART AS FOLLOWS:

"8-2. * * * AN EMPLOYEE CANNOT DEMAND THAT HE BE GRANTED LEAVE WITHOUT PAY AS A MATTER OF RIGHT, EXCEPT IN THE CASE OF DISABLED VETERANS WHO ARE ENTITLED TO LEAVE WITHOUT PAY IF NECESSARY FOR MEDICAL TREATMENT * * * IN SUCH CIRCUMSTANCES, THE ABSENCE IS SUBJECT TO THE SAME APPROVAL AS THAT REQUIRED HAD THERE BEEN SUFFICIENT CREDIT. THE POLICY OF THE DEPARTMENT OF THE ARMY IS TO DENY THE GRANT OF LEAVE WITHOUT PAY, REGARDLESS OF DURATION, TO ANY EMPLOYEE WHO HAS AN ACCRUED AND/OR ACCUMULATED BALANCE OF ANNUAL LEAVE. * * *"

SINCE YOU HAD ANNUAL LEAVE TO YOUR CREDIT AT THE TIME YOU APPLIED FOR DISABILITY RETIREMENT AND DID NOT QUALIFY FOR SICK LEAVE, AND DO NOT COME WITHIN THE EXCEPTION SPECIFIED IN THE ABOVE REGULATIONS, IT IS OBVIOUS THAT A GRANT OF LEAVE WITHOUT PAY FOR THE PERIOD IN QUESTION IS PRECLUDED BY THE REGULATIONS. SEE SERVICE V. DULLES, 354 U.S. 363, AND WATSON V. UNITED STATES, 142 CT.CL. 749, CONCERNING THE VALIDITY AND EFFECT OF ADMINISTRATIVE REGULATIONS.

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, IT APPEARS THAT UNDER THE CIRCUMSTANCES, THE DEPARTMENT OF THE ARMY IN FOLLOWING ITS OWN REGULATIONS HAD NOT ALTERNATIVE BUT TO PLACE YOU IN AN ANNUAL-LEAVE STATUS DURING THE PERIOD IN QUESTION.