B-162618, NOVEMBER 27, 1967, 47 COMP. GEN. 308

B-162618, NOVEMBER 27, 1967, 47 COMP. GEN. 308

LEAVES OF ABSENCE - SICK - RECREDIT OF PRIOR LEAVE - BREAK IN SERVICE AN EMPLOYEE WHO BETWEEN A VOLUNTARY SEPARATION IN 1953 FROM A POST IN WHICH HE HAD ACCUMULATED SICK LEAVE AND HIS REEMPLOYMENT IN 1956 TO A POSITION SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 6301, SERVED UNDER SEVERAL TEMPORARY APPOINTMENTS ON A WHEN- ACTUALLY-EMPLOYED BASIS DURING WHICH TIME HE WAS NOT SUBJECT TO THE LEAVE ACT, IS ENTITLED TO RECREDIT OF THE SICK LEAVE ACCUMULATED PRIOR TO HIS SEPARATION IN 1953 AS OF THE DATE OF HIS REEMPLOYMENT IN 1956, THE TERM "BREAK IN SERVICE" IN SECTION 30.702 (A) OF THE CIVIL SERVICE REGULATIONS PROVIDING FOR RECREDIT OF SICK LEAVE UPON REEMPLOYMENT HAVING REFERENCE TO ACTUAL SEPARATION FROM THE FEDERAL SERVICE. THEREFORE, ANY LEAVE WITHOUT PAY (LWOP) CHARGED TO THE EMPLOYEE AFTER HIS REEMPLOYMENT MAY NOW BE CHARGED TO THE RECREDITED SICK LEAVE AND THE EMPLOYEE PAID FOR THE LWOP PERIOD FROM THE ACCOUNT TO WHICH THE BALANCES OF SALARY FUNDS FROM PRIOR YEARS HAVE BEEN TRANSFERRED.

TO THE ARCHITECT OF THE CAPITOL, NOVEMBER 27, 1967:

WE REFER TO YOUR LETTER OF OCTOBER 19, 1967, CONCERNING THE RIGHT OF MR. ROBERT J. WALLACE AN EMPLOYEE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL TO HAVE RECREDITED TO HIS ACCOUNT AS OF THE DATE OF HIS REEMPLOYMENT ON JULY 14, 1956, CERTAIN SICK LEAVE HE HAD ACCUMULATED DURING PRIOR SERVICE.

MR. WALLACE WAS SEPARATED VOLUNTARILY ON OCTOBER 25, 1953, AT WHICH TIME HE HAD A SICK LEAVE BALANCE OF 298 HOURS. BETWEEN THAT DATE AND JULY 14, 1956, MR. WALLACE WAS EMPLOYED BY THE OFFICE OF THE ARCHITECT OF THE CAPITOL UNDER SEVERAL TEMPORARY APPOINTMENTS DURING WHICH HE WAS NOT ASSIGNED REGULAR TOURS OF DUTY BUT WAS PAID ON A WHEN- ACTUALLY-EMPLOYED BASIS. UNDER THE CIRCUMSTANCES OF MR. WALLACE'S TEMPORARY EMPLOYMENT HE WAS NOT SUBJECT TO THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. 6301, AND CONSEQUENTLY THE SICK LEAVE PREVIOUSLY ACCRUED COULD NOT BE RECREDITED FOR USE DURING SUCH PERIODS OF EMPLOYMENT. 31 COMP. GEN. 215. HOWEVER, ON JULY 14, 1956, HE WAS TRANSFERRED TO A FULL-TIME POSITION ON THE PERMANENT FORCE WHICH WAS SUBJECT TO THE LEAVE ACT AND THE QUESTION ARISES AS TO WHETHER HE WAS ENTITLED TO A RECREDIT OF THE 298 HOURS OF SICK LEAVEAT THAT TIME.

IN THAT CONNECTION, SECTION 30.702 (A) OF THE CIVIL SERVICE REGULATIONS IN FORCE DURING THE PERIOD IN QUESTION PROVIDED: "/A) UPON REEMPLOYMENT OF AN EMPLOYEE SUBJECT TO THIS ACT WHO WAS SEPARATED ON OR AFTER JANUARY 6, 1952, WITHOUT BREAK IN SERVICE, OR A BREAK IN SERVICE OF NOT MORE THAN 52 CONTINUOUS CALENDAR WEEKS, THE EMPLOYEE'S SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR CREDIT OR CHARGE TO HIS ACCOUNT.'

IN 31 COMP. GEN. 485, IT WAS HELD THAT AN EMPLOYEE SERVING UNDER A WHEN- ACTUALLY-EMPLOYED APPOINTMENT DOES NOT NECESSARILY FORFEIT THE SICK LEAVE HE HAS PREVIOUSLY ACCRUED IN THAT IF SUBSEQUENTLY ASSIGNED TO A POSITION HAVING A REGULARLY SCHEDULED TOUR OF DUTY HIS ACCRUED SICK LEAVE MAY BE USED IN ACCORDANCE WITH THE ANNUAL AND SICK LEAVE REGULATIONS. COUNTING THE PERIODS OF TEMPORARY EMPLOYMENT THERE WAS NO SINGLE BREAK IN MR. WALLACE'S SERVICE WHICH WAS AS MUCH AS 52 WEEKS IN LENGTH.

WE UNDERSTAND FROM THE CIVIL SERVICE COMMISSION THAT THE TERM "BREAK IN SERVICE" AS USED IN THE ABOVE REGULATION WAS INTENDED TO REFER TO AN ACTUAL SEPARATION FROM THE FEDERAL SERVICE. THAT VIEW APPEARS TO BE SUPPORTED BY THE WORDING OF PAST REGULATIONS AND WE PERCEIVE NO OBJECTION THERETO.

SINCE MR. WALLACE'S SERVICE WAS NOT INTERRUPTED BY AN ACTUAL BREAK OF 52 WEEKS, HIS SICK LEAVE SHOULD HAVE BEEN RECREDITED TO HIM UPON REEMPLOYMENT IN A REGULAR POSITION ON JULY 14, 1956. YOUR FIRST TWO QUESTIONS ARE ANSWERED ACCORDINGLY.

REGARDING YOUR THIRD QUESTION, ANY LEAVE WITHOUT PAY CHARGED MR. WALLACE ON OR AFTER JULY 14, 1956, WHICH WOULD HAVE BEEN CHARGED TO SICK LEAVE BUT FOR THE FACT THAT HE DID NOT HAVE SUFFICIENT ACCUMULATED SICK LEAVE TO HIS CREDIT MAY NOW BE CHARGED TO SUCH RECREDITED SICK LEAVE. PAYMENT OF THE AMOUNTS INVOLVED FOR THE SICK LEAVE GRANTED UNDER SUCH CIRCUMSTANCES SHOULD BE FROM THE ACCOUNT TO WHICH THE BALANCES OF SALARY FUNDS FROM PRIOR YEARS HAVE BEEN TRANSFERRED. SEE 31 U.S.C. 701.