B-156534, APR. 26, 1965

B-156534, APR. 26, 1965

TO MR. THOMAS WRIGHT:

YOUR LETTER, RECEIVED IN OUR OFFICE ON APRIL 5, 1965, ASKS RECONSIDERATION OF YOUR CLAIM FOR THE VALUE OF 1800 HOURS OF SICK LEAVE WHICH WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT OF MARCH 31, 1965.

YOUR CLAIM WAS DISALLOWED BECAUSE YOU WERE SEPARATED FROM THE SERVICE ON JUNE 30, 1962, BY OPTIONAL RETIREMENT BEFORE YOU APPLIED FOR OR WERE GRANTED THE SICK LEAVE IN QUESTION.

THE POST OFFICE DEPARTMENT REPORTS THAT YOU WORKED FULL TIME DURING THE THREE PAY PERIODS--- APPROXIMATELY SIX WEEKS--- IMMEDIATELY PRECEDING YOUR RETIREMENT AND MADE NO APPLICATION FOR SICK LEAVE DURING THAT PERIOD. THE RECORDS IN YOUR CASE DO, HOWEVER, ESTABLISH THAT YOU HAD BEEN INCAPACITATED BY ILLNESS AND HAD BEEN GRANTED SICK LEAVE DURING AN EARLIER PERIOD IN MARCH, APRIL AND MAY 1962 WHILE YOU WERE UNDER THE CARE OF DR. JOHN H. MITCHELL.

SUBSEQUENT TO YOUR OPTIONAL RETIREMENT YOU APPARENTLY WERE HOSPITALIZED AND GIVEN SURGICAL TREATMENT BY DR. JACK GALIN IN MARCH AND APRIL 1963. IN OCTOBER 1964 YOU FILED A CLAIM FOR SICK LEAVE SAID TO HAVE BEEN TO YOUR CREDIT AT THE TIME OF YOUR OPTIONAL RETIREMENT BECAUSE, ACCORDING TO YOUR LETTERS, OF A MEDICAL OPINION FORMED IN 1963 THAT YOU WERE INCAPACITATED AT THE TIME OF RETIREMENT AND PRIOR THERETO.

WHETHER YOU WOULD HAVE BEEN ELIGIBLE FOR RETIREMENT BECAUSE OF DISABILITY ON JUNE 30, 1962, OR WHETHER IT WOULD HAVE BEEN TO YOUR ADVANTAGE THEN TO HAVE APPLIED FOR SUCH RETIREMENT ARE MATTERS WITHIN THE JURISDICTION OF THE BUREAU OF RETIREMENT AND INSURANCE, UNITED STATES CIVIL SERVICE COMMISSION, WASHINGTON, D.C., AND NOT OF OUR OFFICE.

HOWEVER, IT APPEARS THAT YOU VOLUNTARILY APPLIED FOR AND WERE GRANTED OPTIONAL RETIREMENT FROM THE POST OFFICE DEPARTMENT ON JUNE 30, 1962, AND THE RECORDS BEFORE US FAIL TO REFLECT WHAT, IF ANY, EVIDENCE OF YOUR DISABILITY OR INCAPACITY WAS BEFORE THE POST OFFICE DEPARTMENT ON THAT DATE.

THE LAW PROVIDES FOR THE GRANTING OF SICK LEAVE IN KIND ONLY, THAT IS, PERMISSION TO BE ABSENT FROM DUTY BECAUSE OF INCAPACITY WITHOUT LOSS OF PAY. IT MAY BE GRANTED ONLY TO EMPLOYEES ON THE ROLLS OF A DEPARTMENT AND IT MAY NOT BE GRANTED FORMER EMPLOYEES WHO HAVE BEEN SEPARATED FROM THE SERVICE BY RETIREMENT, RESIGNATION OR OTHERWISE. FURTHER, THE LAW DOES NOT PROVIDE FOR A LUMP-SUM PAYMENT, UPON SEPARATION, FOR SICK LEAVE AS IT DOES FOR ANNUAL LEAVE.

THE ACCOUNTING OFFICERS OF THE GOVERNMENT CONSISTENTLY AND FOR YEARS HAVE FOLLOWED THE ESTABLISHED RULE THAT FORMER EMPLOYEES CANNOT BE RESTORED TO AN EMPLOYED STATUS SOLELY FOR THE PURPOSE OF GRANTING THEM UNUSED SICK LEAVE TO THEIR CREDIT AT THE TIME OF THEIR SEPARATIONS. (CF. 16 COMP. GEN. 28; ID. 899.) (1936 AND 1937)

THEREFORE, WE ARE WITHOUT AUTHORITY TO PAY YOU NOW FOR SICK LEAVE WHICH MAY HAVE BEEN TO YOUR CREDIT AT THE TIME OF YOUR OPTIONAL RETIREMENT. FOLLOWS THAT OUR OFFICE SETTLEMENT OF MARCH 31, 1965, DISALLOWING YOUR CLAIM, IS CORRECT AND UPON REVIEW IT MUST BE SUSTAINED.