B-142837, JAN. 18, 1961

B-142837, JAN. 18, 1961

TO MR. FELIX E. HORNE, SR.:

ON DECEMBER 2, 1960, YOU REQUESTED THAT WE CONSIDER FURTHER THE ACTION TAKEN UPON YOUR CLAIM CONCERNING THE RESTORATION OF SICK AND ANNUAL LEAVE WITH WHICH YOU WERE CHARGED COVERING YOUR ABSENCE FROM DUTY DURING THE PERIOD JUNE 10, 1957, TO OCTOBER 2, 1957, AND ALSO LEAVE EARNED DURING THE PERIOD JUNE 19 TO JULY 8, 1958, BUT WITH WHICH YOU WERE NOT CREDITED.

YOUR CLAIM COVERING THE PERIOD JUNE 10 TO OCTOBER 2, 1957, WAS DISALLOWED IN SETTLEMENT OF JULY 6, 1960, AND THAT DISALLOWANCE WAS SUSTAINED IN OUR DECISION OF SEPTEMBER 2, 1960. CONCERNING THE LEAVE EARNED DURING THE PERIOD JUNE 19 TO JULY 8, 1958, WE ADVISED YOU IN OUR DECISION OF SEPTEMBER 2, THAT WE HAD NO INFORMATION SHOWING WHY YOU WERE NOT CREDITED WITH LEAVE EARNED DURING THAT PERIOD AND SUGGESTED THAT YOU CONTACT YOUR FORMER EMPLOYER IF YOU DESIRED TO PURSUE THAT PORTION OF YOUR CLAIM FURTHER.

YOU EXPLAIN AT LENGTH IN YOUR LETTER THAT YOU WERE READY, WILLING, AND ABLE TO PERFORM THE DUTIES OF YOUR POSITION DURING THE PERIOD JUNE 10 TO OCTOBER 2, 1957, AND THAT THE DISPENSARY (NAVY) DOCTOR WHO DETERMINED THAT YOU WERE INCAPACITATED FOR SERVICE DURING SUCH PERIOD WAS HIMSELF UNQUALIFIED AND INCOMPETENT TO RENDER A VALID DETERMINATION IN YOUR CASE. THE DETERMINATION OF YOUR CAPACITY TO PERFORM THE DUTIES OF YOUR POSITION IS PRIMARILY A MATTER TO BE RESOLVED BY THE EMPLOYING OFFICE RATHER THAN OUR OFFICE. MOREOVER, OUR OFFICE DOES NOT HAVE JURISDICTION TO DETERMINE THE COMPETENCY OF THE NAVY DOCTOR WHO RENDERED THE ADVERSE DETERMINATION IN YOUR CASE AND WE WOULD NOT BE WARRANTED IN ATTEMPTING TO MAKE ANY DETERMINATION CONCERNING HIS COMPETENCY.

HOWEVER, AS WE POINTED OUT IN OUR LETTER OF SEPTEMBER 2, 1960, THE LEAVE IN QUESTION CANNOT BE RESTORED TO YOUR CREDIT FOR STILL ANOTHER REASON. THE PERIOD DURING WHICH YOU WERE PLACED IN AN ANNUAL AND SICK LEAVE STATUS PRIOR TO OCTOBER 2, 1957, WAS NOT A PART OF THE PERIOD OF SUSPENSION CONCERNING WHICH THE CIVIL SERVICE COMMISSION ORDERED YOUR RESTORATION. HENCE, THE PLACING YOU ON LEAVE DURING THAT PERIOD WAS A MATTER WITHIN THE DISCRETIONARY AUTHORITY OF THE EMPLOYING OFFICE. UNDER THE CIRCUMSTANCES WE KNOW OF NO BASIS WHICH WOULD WARRANT OUR HOLDING THAT THE SICK AND ANNUAL LEAVE WITH WHICH YOU WERE CHARGED BETWEEN JUNE 10 AND OCTOBER 2, 1957, NOW SHOULD BE RESTORED TO YOUR CREDIT.

WE HAVE NO AUTHORITY TO ORDER OR ARRANGE FOR YOUR BEING GIVEN A COMPLETE PHYSICAL EXAMINATION IN PUBLIC HEALTH SERVICE FACILITIES FOR THE PURPOSE OF DETERMINING YOUR ELIGIBILITY FOR EMPLOYEES' COMPENSATION BENEFITS. THE MATTER OF DETERMINING YOUR ELIGIBILITY FOR SUCH BENEFITS IS ONE WITHIN THE SOLE JURISDICTION OF THE BUREAU OF EMPLOYEES COMPENSATION.

CONCERNING YOUR CLAIM FOR LEAVE EARNED DURING THE PERIOD JUNE 19, TO JULY 8, 1958, WE NOW ARE OF THE VIEW THAT CONTRARY TO THE POSITION TAKEN BY THE DEPARTMENT OF THE NAVY--- AS SET FORTH IN THE LAST PARAGRAPH COMMENCING ON PAGE ONE OF YOUR LETTER--- YOU DID EARN LEAVE DURING THE PERIOD JUNE 19, 1958, TO JULY 9, 1958. THEREFORE, YOU ARE ENTITLED TO A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE SO EARNED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, AS AMENDED, 5 U.S.C. 61B. WE WILL ISSUE A SETTLEMENT FOR THE AMOUNT DUE YOU ON THAT ACCOUNT IN THE NEAR FUTURE.

MOREOVER, THE APPLICABLE PROVISIONS OF THE NAVY CIVILIAN PERSONNEL INSTRUCTIONS REQUIRE THAT AN EMPLOYEE WHO IS BEING SEPARATED FOR PHYSICAL OR MENTAL DISABILITY BE GRANTED ALL ACCUMULATED SICK LEAVE PRIOR TO HIS SEPARATION. SINCE YOU WERE SEPARATED WITHOUT FIRST HAVING BEEN CREDITED WITH AND GRANTED THE SICK LEAVE EARNED DURING THE PERIOD JUNE 19 TO JULY 8, 1958, OUR SETTLEMENT ALSO WILL PROVIDE FOR PAYMENT TO YOU IN AN AMOUNT EQUAL TO THE SICK LEAVE ACTUALLY EARNED BY YOU DURING THAT PERIOD (JUNE 19 TO JULY 8, 1958).

WE ARE FORWARDING A COPY OF THIS LETTER TO MR. JAMES E. CANNON, SR., 1804 SKYLAND DRIVE, NORFOLK, VIRGINIA, IN ACCORDANCE WITH THE REQUEST CONTAINED IN THE LAST PARAGRAPH OF YOUR LETTER.