B-160966, SEPT. 3, 1968
Highlights
WAS REFERRED BY OUR CLAIMS DIVISION TO THE DEPARTMENT OF THE ARMY ON OCTOBER 5. YOU WERE INFORMED OF THAT REFERRAL. YOUR CLAIM WAS NOT RETURNED TO US FOR SETTLEMENT. THERE IS NO NEED HERE TO REPEAT THE STATEMENTS OF FACT WHICH ARE RECITED IN PARAGRAPHS 1B TO 1F OF THE NOVEMBER 7. THE PAY RECORD SHOWS THAT YOU WERE PAID A LUMP SUM FOR 240 HOURS OF YOUR ANNUAL LEAVE ON OR ABOUT APRIL 7. IT IS FUNDAMENTAL THAT A SEPARATED EMPLOYEE IS NOT DUE BACK PAY UNDER THE 1948 ACT UNLESS AND UNTIL HE IS READY AND ABLE TO RETURN TO DUTY. THE RECORD SHOWS THAT YOU HAD BEEN ON SICK LEAVE FROM THE LATTER PART OF FEBRUARY UNTIL YOU WERE SEPARATED ON APRIL 7. THEREAFTER YOU VOLUNTARILY APPLIED FOR DISABILITY RETIREMENT WHICH WAS APPROVED BY THE CIVIL SERVICE COMMISSION.
B-160966, SEPT. 3, 1968
TO MR. BEN C. SHIPP:
WE REFER TO YOUR LETTER OF OCTOBER 21, 1967, AND SUBSEQUENT LETTERS CONCERNING YOUR CLAIM OF SEPTEMBER 1, 1966, FOR BACK PAY UNDER THE ACT OF JUNE 10, 1948, PUBLIC LAW 80-623, 5 U.S.C. 652 (1964 ED.), INCIDENT TO THE TERMINATION OF YOUR EMPLOYMENT BY THE PINE BLUFF ARSENAL, PINE BLUFF, ARKANSAS, ON APRIL 7, 1965.
YOUR CLAIM OF SEPTEMBER 1, 1966, WAS REFERRED BY OUR CLAIMS DIVISION TO THE DEPARTMENT OF THE ARMY ON OCTOBER 5, 1966, FOR CONSIDERATION AND RETURN IN THE EVENT THAT THE CLAIM INVOLVED A DOUBTFUL QUESTION OF LAW OR FACT. YOU WERE INFORMED OF THAT REFERRAL. YOUR CLAIM WAS NOT RETURNED TO US FOR SETTLEMENT. HENCE WE ASSUMED THE DEPARTMENT OF THE ARMY HAD DISPOSED OF IT IN ACCORDANCE WITH THE APPLICABLE LAW.
YOUR LETTER OF OCTOBER 21, 1967, INDICATED THAT YOU HAD RECEIVED NO FURTHER INFORMATION ABOUT THAT CLAIM. WE ENCLOSE HEREWITH A COPY OF THE ADMINISTRATIVE ACTION DATED NOVEMBER 7, 1966, WHICH, FOR THE REASONS STATED THEREIN -- INCLUDING THE ADMINISTRATIVE ACTION IN CHANGING YOUR SEPARATION FROM A REMOVAL ACTION TO A "SEPARATION DISABILITY RETIREMENT" IN ACCORDANCE WITH THE RECOMMENDATION OF THE UNITED STATES CIVIL SERVICE COMMISSION -- RECOMMENDED THAT YOUR CLAIM FOR COMPENSATION AND RESTORATION TO DUTY RETROACTIVELY TO APRIL 7, 1965, BE DENIED. THERE IS NO NEED HERE TO REPEAT THE STATEMENTS OF FACT WHICH ARE RECITED IN PARAGRAPHS 1B TO 1F OF THE NOVEMBER 7, 1966, REPORT.
THE PAY RECORD SHOWS THAT YOU WERE PAID A LUMP SUM FOR 240 HOURS OF YOUR ANNUAL LEAVE ON OR ABOUT APRIL 7, 1965. IN OCTOBER 1965 YOU RECEIVED SALARY PAYMENT FOR YOUR ANNUAL LEAVE (35 HOURS) AND SICK LEAVE (758 HOURS) BALANCES PLUS LEAVE CREDITED WHILE IN SICK LEAVE STATUS, INCLUDING THREE HOLIDAYS, FOR THE PERIOD FROM APRIL 8 THROUGH SEPTEMBER 23, 1965. THE RETIREMENT AND INSURANCE DIVISION OF THE CIVIL SERVICE COMMISSION INFORMS US THAT YOUR DISABILITY RETIREMENT ANNUITY BEGAN ON SEPTEMBER 24, 1965.
IT IS FUNDAMENTAL THAT A SEPARATED EMPLOYEE IS NOT DUE BACK PAY UNDER THE 1948 ACT UNLESS AND UNTIL HE IS READY AND ABLE TO RETURN TO DUTY. THE RECORD SHOWS THAT YOU HAD BEEN ON SICK LEAVE FROM THE LATTER PART OF FEBRUARY UNTIL YOU WERE SEPARATED ON APRIL 7, 1965. THEREAFTER YOU VOLUNTARILY APPLIED FOR DISABILITY RETIREMENT WHICH WAS APPROVED BY THE CIVIL SERVICE COMMISSION. THE DECISION OF THE BOARD OF APPEALS AND REVIEW, QUOTED UNDER PARAGRAPH 1D OF THE REPORT OF NOVEMBER 7, 1966, DID NOT ORDER THAT YOU BE RESTORED TO ACTIVE DUTY. THAT DECISION MERELY AUTHORIZED SUBSTITUTION OF DISABILITY RETIRED STATUS, IN LIEU OF SEPARATION, SUBJECT TO ANNUITY PAYMENTS BEGINNING AT THE TERMINATION OF AUTHORIZED LEAVE WITH PAY. THE EFFECT WAS THAT YOU WERE RESTORED TO YOUR PRIOR SICK LEAVE STATUS.
THEREFORE, WITH REFERENCE TO YOUR LETTER OF OCTOBER 21, 1967, AND YOUR SUBSEQUENT LETTERS, OUR VIEW IS THAT YOU ARE NOT ENTITLED TO ANY ADDITIONAL COMPENSATION INCIDENT TO YOUR REMOVAL IN APRIL 1965 WHICH ACTION SUBSEQUENTLY WAS CHANGED TO A SEPARATION BASED ON YOUR DISABILITY RETIREMENT EFFECTIVE SEPTEMBER 24, 1965.