B-167317, SEP 5, 1969

B-167317, SEP 5, 1969

CIVIL PAY - LEAVE RECREDIT DECISION TO ARMY EMPLOYEE DENYING CLAIM FOR RECREDIT OF ANNUAL AND SICK LEAVE INCIDENT TO RESTORATION TO DUTY AFTER IMPROPER SEPARATION. EMPLOYEE WHO WAS PLACED ON LEAVE AND ULTIMATELY SEPARATED FOR PHYSICAL DISABILITY WHICH SEPARATION ON APPEAL WAS CANCELED MAY NOT HAVE ADMINISTRATIVE ACTION RELATING TO PLACEMENT ON LEAVE AS IMPROPER, ACCORDINGLY RECREDIT OF LEAVE IS NOT AUTHORIZED.

TO MR. MILTON B. ROGEL:

WE REFER FURTHER TO YOUR LETTER OF APRIL 16, 1969, SEEKING RESTORATION OF ANNUAL AND SICK LEAVE PLUS PAY FOR 160 HOURS LEAVE WITHOUT PAY TAKEN IMMEDIATELY PRIOR TO YOUR IMPROPER SEPARATION FROM SERVICE ON OCTOBER 1, 1968.

THE RECORD SHOWS THAT YOU WERE SEPARATED FROM YOUR CIVILIAN POSITION WITH THE ARMED FORCES EXAMINING AND ENTRANCE STATION, ATLANTA, GEORGIA, BY THE DEPARTMENT OF THE ARMY FOR DISABILITY EFFECTIVE OCTOBER 1, 1968. THE ATLANTA REGIONAL OFFICE OF THE CIVIL SERVICE COMMISSION ON APPEAL SUSTAINED THE AGENCY ACTION IN ITS DECISION OF NOVEMBER 7, 1968. THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION ON FEBRUARY 25, 1969, HOWEVER, REVERSED THE DECISION OF THE ATLANTA REGIONAL OFFICE AND ORDERED THE CANCELLATION OF THE SEPARATION ACTION OF OCTOBER 1, 1968.

THE DEPARTMENT OF THE ARMY REPORTS THAT ON MAY 23, 1968, YOU WERE GIVEN EMERGENCY TREATMENT BY THE STATION MEDICAL OFFICER AND REFERRED TO THE VETERANS ADMINISTRATION HOSPITAL FOLLOWING AN ACUTE HYPERTENSION EPISODE AND A HIGH BLOOD PRESSURE ATTACK WHILE ON DUTY. AS YOU HAD BEEN PREVIOUSLY TROUBLED WITH HIGH BLOOD PRESSURE, THE COMMANDING OFFICER OF THE ARMED FORCES EXAMINING AND ENTRANCE STATION, ON THE ADVICE OF THE STATION MEDICAL OFFICER, PLACED YOU ON SICK LEAVE PENDING THE OUTCOME OF PHYSICAL EXAMINATIONS TO DETERMINE YOUR CAPABILITY TO PERFORM THE DUTIES OF YOUR POSITION, I.E., TO SAFELY OPERATE A 47 PASSENGER BUS.

FOLLOWING A REVIEW OF MULTIPLE MEDICAL REPORTS, THE CHIEF MEDICAL OFFICER DETERMINED THAT YOU WERE NOT PHYSICALLY QUALIFIED TO PERFORM THE DUTIES OF YOUR POSITION. THE DEPARTMENT SAYS THAT AS THERE WERE NO OTHER POSITIONS IMMEDIATELY AVAILABLE WHERE YOUR SERVICES COULD BE UTILIZED WITHOUT HAZARD TO YOURSELF OR OTHERS, YOU WERE CONTINUED IN A SICK, ANNUAL AND LEAVE WITHOUT PAY STATUS PENDING IDENTIFICATION OF A SUITABLE POSITION TO WHICH YOU COULD BE ASSIGNED THAT WOULD PERMIT YOUR CONTINUED EMPLOYMENT. AFTER EXTENSIVE EFFORTS TO PLACE YOU IN ANOTHER POSITION WERE UNSUCCESSFUL, IT WAS DECIDED TO SEPARATE YOU FROM THE SERVICE FOR PHYSICAL DISABILITY AFTER APPROPRIATE NOTICE.

THE BOARD OF APPEALS AND REVIEW OF THE CIVIL SERVICE COMMISSION IN ITS DECISION OF FEBRUARY 25, 1969, AUTHORIZING CANCELLATION OF THE ACTION EFFECTING YOUR SEPARATION ON OCTOBER 1, 1968, DID NOT QUESTION THE MEDICAL DIAGNOSIS. IT WAS THEIR OPINION, HOWEVER, THAT THE DEPARTMENT OF THE ARMY HAD NOT RELATED YOUR CONDITION TO YOUR ABILITY TO PERFORM YOUR DUTIES AS A BUS DRIVER TO A DEGREE JUSTIFYING YOUR SEPARATION AS BEING IN THE BEST INTERESTS OF THE SERVICE. FURTHER, CONCERNING THE AGENCY ACTION IN PLACING YOU IN A LEAVE STATUS, THE BOARD TOOK NO ACTION OTHER THAN TO RECOGNIZE THE GENERAL RULE THAT AGENCIES HAVE AUTHORITY TO ADMINISTRATIVELY DECIDE MATTERS INVOLVING THE LEAVE STATUS OF THEIR EMPLOYEES.

THE BACK PAY ACT OF 1966, 5 U.S.C. 5596, PROVIDES FOR BACK PAY WHERE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION HAS RESULTED IN THE REDUCTION OF PAY TO AN EMPLOYEE. YOUR PAYMENT AND LEAVE ADJUSTMENT FOR THE TIME FROM OCTOBER 1, 1968, TO MARCH 17, 1969, THE DATE YOU RETURNED TO DUTY WERE MADE ON THE AUTHORITY OF 5 U.S.C. 5596.

WE HAVE HELD, HOWEVER, THAT THE PLACING OF AN EMPLOYEE ON INVOLUNTARY LEAVE PENDING THE DECISION OF THE CIVIL SERVICE COMMISSION ON AN AGENCY DISABILITY RETIREMENT APPLICATION DOES NOT CONSTITUTE AN UNJUSTIFIED OR UNWARRANTED ACTION SO AS TO ENTITLE THE EMPLOYEE TO BACK PAY WHEN THE ADMINISTRATIVE OFFICERS DETERMINE, NOT ARBITRARILY OR CAPRICIOUSLY BUT UPON THE BASIS OF COMPETENT MEDICAL FINDINGS, THAT THE EMPLOYEE IS INCAPACITATED FOR THE PERFORMANCE OF HIS ASSIGNED DUTIES. B-136721, JANUARY 18, 1960; B-151072, MAY 14, 1963; 41 COMP. GEN. 774; B-165872, FEBRUARY 27, 1969; AND 5 CFR 550.804(D).

IN YOUR CASE WE DO NOT FIND THAT THE ADMINISTRATIVE OFFICE'S ACTION IN PLACING YOU ON LEAVE AS DESCRIBED ABOVE WAS IMPROPER. ACCORDINGLY, THE RECREDIT OF THE ANNUAL AND SICK LEAVE AND PAYMENT FOR THE LEAVE WITHOUT PAY AS CLAIMED IS NOT AUTHORIZED.