B-175209, AUG 14, 1972

B-175209, AUG 14, 1972

CIVILIAN EMPLOYEES - SICK LEAVE - RECREDIT AFTER BREAK IN SERVICE CONCERNING THE RECREDIT OF SICK LEAVE TO THE ACCOUNT OF TERRENCE S. MCDANIELS, EMPLOYEE OF THE OFFICE OF ECONOMIC OPPORTUNITY AND FORMER EMPLOYEE OF THE PUBLIC HEALTH SERVICE. CLAIMANT ALLEGES THAT HIS PEACE CORPS VOLUNTEER (PCV) SERVICE SHOULD COUNT AS FEDERAL SERVICE SO AS TO EXTEND THE PERIOD WITHIN WHICH SICK LEAVE MAY BE RECREDITED TO HIS ACCOUNT AFTER A BREAK IN SERVICE. THE COMP. GEN. CONCURS WITH THE OPINION OF THE CIVIL SERVICE COMMISSION: ALTHOUGH 22 U.S.C. 2504(F) AUTHORIZES A CREDIT OF PCV SERVICE IN FIGURING LENGTH OF FEDERAL SERVICE, THIS PROVISION OF LAW DOES NOT AUTHORIZE THE COUNTING OF SERVICE AS A PCV FOR THE PURPOSE OF SUSPENDING THE 3-YEAR- BREAK-IN-SERVICE RULE (5 C.F.R. 630.502(B)(1)) SO AS TO ALLOW RECREDIT OF SICK LEAVE.

TO MR. SANCHEZ:

WE REFER FURTHER TO THE LETTER OF FEBRUARY 11, 1972, FROM THE DIRECTOR OF PERSONNEL CONCERNING THE RECREDITING OF SICK LEAVE TO THE ACCOUNT OF MR. TERRENCE S. MCDANIELS, WHO HAS HAD A BREAK IN FEDERAL SERVICE.

IT APPEARS THAT ON DECEMBER 3, 1965, MR. MCDANIELS RESIGNED FROM A CAREER STATUS POSITION WITH THE U.S. PUBLIC HEALTH SERVICE AT WHICH TIME HE HAD A CREDIT OF 568 HOURS OF SICK LEAVE. HE WAS ACCEPTED FOR PEACE CORPS VOLUNTEER TRAINING AND UPON COMPLETION SERVED A SATISFACTORY PERIOD AS A PEACE CORPS VOLUNTEER (PCV) COMMENCING FEBRUARY 19, 1966, AND ENDING MARCH 27, 1968. IT IS STATED THAT ON JULY 6, 1970, MR. MCDANIELS WAS APPOINTED BY REINSTATEMENT TO A POSITION IN THE OFFICE OF ECONOMIC OPPORTUNITY. IS MR. MCDANIELS' VIEW THAT HIS PCV SERVICE SHOULD BE CONSIDERED FEDERAL SERVICE SO AS TO EXTEND THE PERIOD WITHIN WHICH SICK LEAVE MAY BE RECREDITED TO HIM AFTER A BREAK IN SERVICE.

THE APPLICABLE CIVIL SERVICE REGULATION, SECTION 630.502(B)(1) OF TITLE 5, CODE OF FEDERAL REGULATIONS READS:

"(B)(1) EXCEPT AS PROVIDED IN SUBPARAGRAPH (2) OF THIS PARAGRAPH, AN EMPLOYEE WHO IS SEPARATED FROM THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO A RECREDIT OF SICK LEAVE IF HE IS REEMPLOYED IN THE FEDERAL GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA WITHOUT A BREAK IN SERVICE OF MORE THAN 3 YEARS."

SECTION 5(F)(1)(B) OF THE PEACE CORPS ACT AS CODIFIED IN 22 U.S.C. 2504(F) PROVIDES IN PERTINENT PART:

"(F) RETIREMENT AND OTHER CREDITS BASED UPON LENGTH OF SERVICE.

"(1) ANY PERIOD OF SATISFACTORY SERVICE OF A VOLUNTEER UNDER THIS CHAPTER SHALL BE CREDITED IN CONNECTION WITH SUBSEQUENT EMPLOYMENT IN THE SAME MANNER AS A LIKE PERIOD OF CIVILIAN EMPLOYMENT BY THE UNITED STATES GOVERNMENT -

"(B) EXCEPT AS OTHERWISE DETERMINED BY THE PRESIDENT, FOR THE PURPOSES OF DETERMINING SENIORITY, REDUCTION IN FORCE, AND LAYOFF RIGHTS, LEAVE ENTITLEMENT, AND OTHER RIGHTS AND PRIVILEGES BASED UPON LENGTH OF SERVICE UNDER THE LAWS ADMINISTERED BY THE CIVIL SERVICE COMMISSION, THE FOREIGN SERVICE ACT OF 1946, AND EVERY OTHER ACT ESTABLISHING OR GOVERNING TERMS AND CONDITIONS OF SERVICE OF CIVILIAN EMPLOYEES OF THE UNITED STATES GOVERNMENT: PROVIDED, THAT SERVICE OF A VOLUNTEER SHALL NOT BE CREDITED TOWARD COMPLETION OF ANY PROBATIONARY OR TRIAL PERIOD OR COMPLETION OF ANY SERVICE REQUIREMENT FOR CAREER APPOINTMENT."

THE CIVIL SERVICE COMMISSION HAS ADVISED YOUR AGENCY THAT THE PROVISIONS QUOTED ABOVE PROVIDE FOR CERTAIN BENEFITS BASED ON PCV SATISFACTORY SERVICE; HOWEVER, IT IS THE VIEW OF THE COMMISSION THAT SUCH SERVICE IS NOT FEDERAL EMPLOYMENT AND THEREFORE CANNOT BE USED TO EXTEND THE 3-YEAR LIMIT WITHIN WHICH SICK LEAVE MAY BE RECREDITED.

THE QUESTION TURNS ON THE MEANING OF THE PHRASE IN 22 U.S.C. 2504(F) "LEAVE ENTITLEMENT, AND OTHER RIGHTS AND PRIVILEGES BASED ON LENGTH OF SERVICE UNDER THE LAWS ADMINISTERED BY THE CIVIL SERVICE COMMISSION ***"

IN RESPONSE TO OUR REQUEST FOR COMMENTS, WE WERE ADVISED BY THE COMMISSION IN LETTER DATED MAY 18, 1972, THAT THE ONLY TYPE OF "LEAVE ENTITLEMENT" BASED UPON LENGTH OF SERVICE IS ANNUAL LEAVE, CITING U.S.C. 6303(A) WHICH SETS FORTH THE RATES FOR THE ACCRUAL OF ANNUAL LEAVE. THE COMMISSION CITES THE LEGISLATIVE HISTORY OF THE PEACE CORPS ACT WHICH SUPPORTS ITS VIEW AND REFERS SPECIFICALLY TO (1) HOUSE REPORT NO. 1115, 87TH CONGRESS, 1ST SESSION ON H.R. 7500 WHICH STATES:

"PARAGRAPH (1) ENABLES VOLUNTEERS TO OBTAIN CREDIT FOR THE PERIOD OF THEIR VOLUNTEER SERVICE FOR THE PURPOSES OF RETIREMENT, AND ALSO GENERALLY FOR THE PURPOSES OF SENIORITY, REDUCTION IN FORCE, LEAVE ACCUMULATION, OR OTHER RIGHTS AND PRIVILEGES BASED ON LENGTH OF SERVICE, IN THE EVENT THEY LATER BECOME EMPLOYED IN ANY FEDERAL CIVILIAN EMPLOYMENT SYSTEM ***."

AND (2) THE SENATE REPORT NO. 706, 87TH CONGRESS, 1ST SESSION, ON THE PEACE CORPS ACT (S. 2000) WHICH STATES:

"UNDER SECTION 5(F)(2) VOLUNTEERS MAY RECEIVE CREDIT FOR PURPOSES OF SENIORITY, REDUCTION IN FORCE, LEAVE ACCUMULATION OR OTHER RIGHTS AND PRIVILEGES BASED ON LENGTH OF SERVICE, IN THE EVENT THEY LATER BECOME CIVILIAN EMPLOYEES OF THE FEDERAL GOVERNMENT."

THE COMMISSION POINTS OUT THAT IT CONSISTENTLY HAS TAKEN THE VIEW STATED ABOVE SINCE THE ENACTMENT OF THE PEACE CORPS ACT IN 1961.

SICK LEAVE, PURSUANT TO 5 U.S.C. 6307, ACCRUES ON THE BASIS OF ONE HALF DAY FOR EACH FULL BIWEEKLY PAY PERIOD. ENTITLEMENT THERETO IS NOT BASED ON LENGTH OF SERVICE AND THEREFORE WE CONCUR WITH THE VIEW OF THE CIVIL SERVICE COMMISSION THAT 22 U.S.C. 2504(F) MAY NOT BE CONSIDERED AS AUTHORIZING THE COUNTING OF SERVICE AS A PEACE CORPS VOLUNTEER FOR THE PURPOSE OF SUSPENDING THE 3-YEAR BREAK-IN-SERVICE RULE.

ACCORDINGLY, THERE IS NO BASIS FOR THE RECREDITING OF MR. MCDANIELS' SICK LEAVE.