B-160461, JAN. 12, 1967

B-160461, JAN. 12, 1967

TO MR. EDWARD L. BARROW:

WE REFER TO YOUR LETTER OF OCTOBER 27, 1966, REQUESTING REVIEW OF OUR SETTLEMENT OF SEPTEMBER 19, 1962, WHICH DISALLOWED YOUR CLAIM FOR PAYMENT OF THE ACCRUED SICK LEAVE YOU HAD NOT USED AND DID NOT REQUEST AT THE TIME YOU RESIGNED FROM SERVICE AS AN EMPLOYEE OF ITS NORFOLK NAVAL SHIPYARD ON APRIL 17, 1962.

WE REQUESTED AND NOW HAVE RECEIVED A REPORT FROM THE DEPARTMENT OF THE NAVY CONCERNING YOUR STATEMENT THAT REINSTATEMENT ACTION WAS TAKEN IN YOUR CASE BY THE UNDER SECRETARY OF THE NAVY ON MAY 10, 1963.

THE REPORT SHOWS THAT ON MAY 10, 1963, THE UNDER SECRETARY OF THE NAVY REVIEWED THE CIRCUMSTANCES OF YOUR RESIGNATION AND FOUND NO EVIDENCE THAT OFFICIALS OF THE SHIPYARD EXERTED ANY COERCION OR IN ANY WAY ACTED IMPROPERLY TOWARD YOU. WHILE IT WAS CONCLUDED THAT THE ACCEPTANCE OF YOUR RESIGNATION BY THE SHIPYARD ON APRIL 17, 1962, WAS APPROPRIATE THE UNDER SECRETARY DID REQUEST THE COMMANDER OF THE NORFOLK NAVAL SHIPYARD TO REINSTATE YOU TO THE POSITION OF ELECTRICIAN PROVIDED YOU WERE CONSIDERED COMPETENT AND QUALIFIED.

ON MAY 27, 1963, THE COMMANDER OF THE SHIPYARD ADVISED THE CHIEF OF INDUSTRIAL RELATIONS, DEPARTMENT OF THE NAVY, THAT THE SHIPYARD'S MEDICAL DEPARTMENT EXAMINATION OF YOU ON MAY 16, 1963, REVEALED SEVERAL MINOR DEFECTS WHICH WERE CONSIDERED TO BE COMPATIBLE WITH YOUR AGE AND WHICH WOULD HAVE NECESSITATED THE IMPOSITION OF CERTAIN RESTRICTIONS IN YOUR EMPLOYMENT, NOTABLY LIFTING, CARRYING, CLIMBING, AND WORKING ON LADDERS OR SCAFFOLDING. ALSO, YOU FURNISHED A HISTORY OF REPEATED EPISODES OF UNEXPLAINED LOSSES OF CONSCIOUSNESS (BLACKOUTS), BOTH AT HOME AND ON THE JOB. IN VIEW OF THIS IT WAS DETERMINED THAT YOU SHOULD NOT BE PERMITTED TO WORK WITH OR NEAR ELECTRICAL ENERGY OR AROUND MACHINERY WITH MOVING PARTS SINCE THAT WOULD CONSTITUTE A HAZARD TO BOTH YOURSELF AND THOSE WITH WHOM YOU MIGHT BE WORKING WERE YOU TO LOSE CONSCIOUSNESS ON THE JOB. THE REPORT FURTHER STATES THAT YOU WERE CAREFULLY CONSIDERED FOR EMPLOYMENT IN A LIMITED CAPACITY BUT NO POSITION WAS FOUND IN WHICH YOUR SERVICES COULD BE UTILIZED WITHIN THE RESTRICTIONS WHICH THE MEDICAL OFFICER PLACED UPON YOUR REEMPLOYMENT.

THE LONG-STANDING RULE IS THAT AN EMPLOYEE MAY NOT BE RESTORED TO A PAY STATUS FOR THE PURPOSE OF GRANTING SICK LEAVE FOR ANY PERIOD SUBSEQUENT TO THE DATE OF HIS SEPARATION IN THE ABSENCE OF A CLEAR SHOWING OF ADMINISTRATIVE ERROR OR OVERSIGHT IN PROCESSING THE SEPARATION ACTION. COMP. GEN. 422. ALSO, IN THE CASE OF A SEPARATION BASED UPON AN EMPLOYEE'S RESIGNATION WHICH FAILS TO INDICATE THAT IT WAS NECESSITATED BY ILLNESS AND WHOSE APPLICATION FOR SICK LEAVE WAS NOT FILED PRIOR TO HIS SEPARATION FROM SERVICE, WE HELD THAT THE EMPLOYEE WAS NOT ENTITLED TO PAYMENT FOR UNUSED SICK LEAVE EVEN THOUGH UNDER THE LEAVE LAW SICK LEAVE COULD HAVE BEEN GRANTED PRIOR TO SEPARATION. 32 COMP. GEN. 82, B-111028, DATED AUGUST 7, 1952, COPY ENCLOSED.

WE POINT OUT THAT THE REINSTATEMENT ACTION YOU MENTION OCCURRED MORE THAN A YEAR AFTER YOUR RESIGNATION AND WAS NOT PREDICATED ON AN ERRONEOUS REMOVAL FROM THE SERVICE. THE UNDER SECRETARY'S INSTRUCTION OF MAY 10, 1963, TO THE SHIPYARD WAS "THAT MR. BARROW BE OFFERED REEMPLOYMENT AS ELECTRICIAN, PROVIDED HE IS NOW CONSIDERED COMPETENT AND QUALIFIED.'

THE DECISION OF THE BUREAU OF RETIREMENT AND INSURANCE WHEREBY ON MAY 7, 1964, YOU WERE AWARDED DISABILITY RETIREMENT ANNUITY, EFFECTIVE APRIL 18, 1962, AND THE CONTINUANCE OF YOUR HEALTH BENEFITS COVERAGE DOES NOT FURNISH A BASIS FOR US TO CONCLUDE THAT YOU ARE ENTITLED TO SICK LEAVE PAY INSTEAD OF THE ANNUITY.

AS SUMMARIZED ABOVE, THE RECORD DOES NOT SHOW THAT YOUR RESIGNATION ON APRIL 17, 1962, WAS COERCED OR THAT IT OTHERWISE WAS INDUCED BY REASON OF INAPPROPRIATE ACTION OF THE SHIPYARD OFFICIALS. WE NOTE THAT YOU BECAME ILL AND ENTERED THE HOSPITAL THE SAME DAY AFTER YOUR RESIGNATION HAD BEEN ACCEPTED ADMINISTRATIVELY. THEREFORE, THE RULES STATED IN THE DECISION B- 111028 APPLY TO YOUR CASE.

WE ALSO ARE ENCLOSING A COPY OF OUR DECISION B-159803, WHICH YOU REQUEST; HOWEVER, WE POINT OUT IT HAS NO APPLICATION TO YOUR CASE AS YOU WERE NOT ERRONEOUSLY SEPARATED BY AN ADVERSE ACTION OF THE SHIPYARD AND YOU WERE NOT ORDERED TO BE RESTORED RETROACTIVELY TO A PAY STATUS UNDER THE LAW CITED IN THE FIRST PARAGRAPH OF THAT DECISION.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM ON SEPTEMBER 19, 1962, IS SUSTAINED.