B-180446, MAR 25, 1974

B-180446, MAR 25, 1974

EMPLOYEE OF IMMIGRATION AND NATURALIZATION SERVICE (INS) WHO RESIGNED FROM POST OFFICE IN 1950 COULD NOT HAVE TRANSFERRED SICK LEAVE CREDIT FROM THE POST OFFICE TO INS SINCE HIS PRIOR POSITION WAS SPECIFICALLY EXCLUDED FROM COVERAGE OF SICK LEAVE ACT OF 1936, AND NO PROVISION EXISTED FOR TRANSFER OF CREDIT FROM POST OFFICE TO INS. ANNUAL AND SICK LEAVE ACT OF 1951, HOWEVER, MERGED POSTAL LEAVE SYSTEM WITH LEAVE SYSTEM OF OTHER EXECUTIVE AGENCIES AND IMPLEMENTING REGULATIONS PROVIDED AUTHORITY UNDER WHICH SICK LEAVE COULD BE RECREDITED. THEREFORE, RECREDIT WOULD BE APPROPRIATE IF ADMINISTRATIVELY DETERMINED THAT CREDIT HAS NOT PREVIOUSLY BEEN GIVEN.

TO MR. ROY C. BAUERNFEIND:

THIS ACTION CONCERNS THE REQUEST OF MR. ROY C. BAUERNFEIND FOR RECREDIT OF 137 HOURS OF SICK LEAVE WHICH REMAINED TO HIS CREDIT AT THE TIME HE RESIGNED FROM A POSITION AS REGULAR CLERK AT THE UNITED STATES POST OFFICE AT MILWAUKEE, WISCONSIN, EFFECTIVE AUGUST 28, 1950, TO ENTER ON DUTY WITH THE IMMIGRATION AND NATURALIZATION SERVICE (INS), UNITED STATES DEPARTMENT OF JUSTICE, THE SAME DAY.

ALTHOUGH MR. BAUERNFEIND HAS SUPPLIED THE INS WITH A RECORD OF HIS LEAVE CREDIT PROVIDED BY THE POST OFFICE DEPARTMENT THE INS HAS REFUSED TO CREDIT THE 137 HOURS OF SICK LEAVE TO HIS CURRENT ACCOUNT FOR THE REASON THAT NO RECORD EXISTS FROM WHICH IT CAN BE DETERMINED THAT THE CREDIT WAS NOT ALLOWED AT THE TIME HE ENTERED ON DUTY IN AUGUST 1950.

AT THE TIME MR. BAUERNFEIND LEFT THE MILWAUKEE POST OFFICE FOR EMPLOYMENT WITH INS, SECTION 4 OF THE ACT OF MARCH 19, 1936, 49 STAT. 1162, CH. 141, 5 U.S.C. (1946 ED.) 30M (COMMONLY KNOWN AS THE SICK LEAVE ACT OF 1936), SPECIFICALLY EXCLUDED EMPLOYEES AND OFFICERS OF THE POST OFFICE DEPARTMENT, OTHER THAN EMPLOYEES IN THE DEPARTMENTAL SERVICE AND IN THE MAIL EQUIPMENT SHOPS, FROM SICK LEAVE PROVISIONS GENERALLY MADE APPLICABLE TO EMPLOYEES OF THE EXECUTIVE BRANCH. THE REGULATIONS, IMPLEMENTING THE SICK LEAVE ACT OF 1936, SUBPART D, PART 30, TITLE 5, CODE OF FEDERAL REGULATIONS, 1949 EDITION, MADE NO PROVISION FOR TRANSFER OF SICK LEAVE CREDITS FROM A LEAVE SYSTEM NOT SUBJECT TO THE PROVISIONS OF THE SICK LEAVE ACT OF 1936 TO A POSITION SUBJECT TO THAT ACT UNDER THE CIRCUMSTANCES OF MR. BAUERNFEIND'S CHANGE OF EMPLOYMENT. ACCORDINGLY, AT THE TIME MR. BAUERNFEIND CHANGED POSITIONS IT WAS NOT POSSIBLE TO TRANSFER HIS SICK LEAVE CREDIT.

SUBSEQUENTLY, THE ANNUAL AND SICK LEAVE ACT OF 1951, TITLE II, OF THE ACT OF OCTOBER 30, 1951, 65 STAT. 672, 679, TO BECOME EFFECTIVE JANUARY 6, 1952, WAS ENACTED. THAT STATUTE ESTABLISHED NEW PROVISIONS GOVERNING ANNUAL AND SICK LEAVE OF GOVERNMENT EMPLOYEES AND HAD THE EFFECT INTER ALIA OF MERGING THE LEAVE SYSTEM OF THE POST OFFICE DEPARTMENT WITH THAT APPLICABLE TO OTHER AGENCIES OF THE EXECUTIVE BRANCH. THE IMPLEMENTING REGULATIONS, 16 FEDERAL REGISTER 13029FF REVISED AND AMENDED PART 30 OF TITLE 5, CODE OF FEDERAL REGULATIONS TO CONFORM WITH THE 1951 LEAVE LAW. SUBSECTION 30.703 AT 16 F.R.13032 PROVIDED AS FOLLOWS:

"SEC. 30.703 LEAVE FROM FORMER LEAVE SYSTEMS. ALL LEAVE WHICH WAS EARNED UNDER THE LEAVE ACTS OF 1936 OR UNDER ANY OTHER OF THE LEAVE SYSTEMS MERGED UNDER THE ACT, AND TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED UPON REENTERING OR REMAINING IN THE SAME LEAVE SYSTEM, SHALL BE RECREDITED UNDER THE ACT: PROVIDED, THAT LEAVE ALREADY FORFEITED SHALL NOT BE REVIVED BY THIS SECTION."

IN 32 COMP. GEN. 310, 314 (1953) IT WAS HELD:

"THE DETERMINATION AS TO WHETHER AN EMPLOYEE SHOULD BE CREDITED WITH LEAVE PURPORTEDLY STANDING TO HIS CREDIT AT THE TIME OF TRANSFER TO AN AGENCY UNDER A LEAVE SYSTEM DIFFERENT FROM THAT UNDER THE 1936 LEAVE ACTS IS THE PRIMARY RESPONSIBILITY OF THE AGENCY WHERE THE EMPLOYEE IS PRESENTLY EMPLOYED. IT IS UNDERSTOOD THAT SOME OF THE AGENCIES WHERE EMPLOYEES SUPPOSEDLY HAVE LEAVE CREDITS HAVE BEEN FURNISHING CERTIFICATIONS OF LEAVE CREDITS TO AGENCIES WHERE THE EMPLOYEES ARE CURRENTLY EMPLOYED, WHICH CERTIFICATIONS ARE PREDICATED ENTIRELY UPON AFFIDAVITS FROM THE EMPLOYEES, THERE BEING NOTHING IN THE CERTIFICATIONS THEMSELVES TO SHOW THAT NO LEAVE RECORDS WERE AVAILABLE. IT IS THE VIEW OF THIS OFFICE THAT THE FURNISHING OF CERTIFICATIONS OF LEAVE CREDITS BASED UPON OTHER THAN OFFICIAL RECORDS IS NOT TO BE SANCTIONED. HOWEVER, IN LIEU OF A CERTIFICATION, WHERE NO OFFICIAL RECORDS ARE AVAILABLE, THERE SHOULD BE FURNISHED STATEMENTS TO REQUESTING AGENCIES OF ANY OTHER EVIDENCE WHICH MAY BE AVAILABLE IN RESPECT OF EMPLOYEES' LEAVE CREDITS, INCLUDING AN ESTIMATE OF HIS LEAVE CREDIT, IF POSSIBLE. ANY SUCH STATEMENTS SHOULD CLEARLY REFLECT THE FACTORS FORMING THE BASIS OF THE ESTIMATE. THE AGENCY WHERE THE EMPLOYEE CURRENTLY IS EMPLOYED MAY THEN DETERMINE WHETHER UPON THE BASIS OF SUCH SHOWING A CREDIT OF LEAVE MAY BE MADE."

MR. BAUERNFEIND HAS FURNISHED INS WITH AN OFFICIAL STATEMENT FROM THE POST OFFICE DEPARTMENT AS TO HIS SICK LEAVE CREDIT ON AUGUST 28, 1950. THIS APPEARS TO BE SUCH EVIDENCE AS WOULD MEET THE REQUIREMENT OF THE ABOVE-QUOTED DECISION. IT ALSO APPEARS REASONABLE TO CONCLUDE ON THE BASIS OF THE FACTS GIVEN THAT MR. BAUERNFEIND HAS NOT BEEN PREVIOUSLY CREDITED WITH THIS LEAVE BY INS.

ACCORDINGLY, IT IS OUR VIEW THAT MR. BAUERNFEIND HAS RETAINED HIS ENTITLEMENT TO THE SICK LEAVE IN QUESTION AND THAT INS HAS THE AUTHORITY TO CREDIT THAT LEAVE TO HIS CURRENT ACCOUNT BASED UPON AN ADMINISTRATIVE DETERMINATION THAT CREDIT FOR SUCH LEAVE HAS NOT PREVIOUSLY BEEN GIVEN. SEE B-152694, DECEMBER 19, 1963, AND B-169223, MAY 8, 1970.