B-163276, FEB. 13, 1968

B-163276, FEB. 13, 1968

COMPENSATION - SEVERANCE PAY DECISION TO FORMER ARMY ENGINEER CORPS EMPLOYEE DENYING CLAIM FOR SEVERANCE PAY. EMPLOYEE WHO, WHILE IN FURLOUGH FROM RIF ACTION, REQUESTED ADDITION OF NAME ON REEMPLOYMENT PRIORITY LIST WHICH RESULTED IN TRANSFER FROM MALMSTROM AREA TO CHICAGO. EMPLOYEE SIGNED TRANSPORTATION AGREEMENT AND WAS PLACED ON EMPLOYMENT STATUS REPORTING TO CHICAGO FIVE DAYS LATER. ALTHOUGH EMPLOYEE DID NOT PERFORM ANY DUTIES IN CHICAGO BECAUSE HE RETURNED TO OLD STATION, HE NEVERTHELESS IS REGARDED AS IN AN EMPLOYMENT STATUS. SINCE EMPLOYEE HAD NOT BEEN INVOLUNTARILY SEPARATED FROM OLD STATION BUT WAS TRANSFERRED HE IS NOT ELIGIBLE FOR SEVERANCE PAY.

TO MR. STANLEY J. EVANS:

THIS IS IN REPLY TO YOUR LETTER DATED JANUARY 14, 1968, AND PRIOR CORRESPONDENCE APPEALING FROM OUR OFFICE SETTLEMENT DATED NOVEMBER 30, 1967, DENYING YOUR CLAIM FOR SEVERANCE PAY FOR THE PERIOD FROM FEBRUARY 24, 1967, TO NOVEMBER 1967 OR FROM MAY 7, 1967, TO NOVEMBER 1, 1967.

ON AUGUST 29, 1966, YOU WERE NOTIFIED BY THE SEATTLE DISTRICT, ARMY CORPS OF ENGINEERS, THAT YOUR POSITION IN THE MALMSTROM AREA OFFICE, GREAT FALLS, MONTANA, AS A CONSTRUCTION REPRESENTATIVE, GS-9, HAD BEEN DECLARED SURPLUS FOR LACK OF WORK AND THAT YOU WOULD BE FURLOUGHED ON OCTOBER 29, 1966, IN LIEU OF A REDUCTION-IN-FORCE. THERE WAS ENOUGH WORK, HOWEVER, SO THAT YOU CONTINUED YOUR EMPLOYMENT UNTIL DECEMBER 30, 1966. AT THAT TIME YOUR ACTIVE EMPLOYMENT CEASED BUT YOU REMAINED ON ANNUAL LEAVE THROUGH FEBRUARY 24, 1967.

THE RECORD SHOWS THAT OCTOBER 27, 1966, YOU REQUESTED THAT YOUR NAME BE PLACED ON THE DEPARTMENT OF THE ARMY'S AREA REEMPLOYMENT PRIORITY LIST. YOU SAY THAT YOU WERE NOT ADVISED OF YOUR RIGHT TO SEVERANCE PAY AT THIS TIME OR AT THE TIME YOUR ANNUAL LEAVE CEASED.

THE FILE SHOWS, HOWEVER, THAT A MEMORANDUM FROM THE PERSONNEL OFFICE, SEATTLE DISTRICT, DATED APRIL 13, 1967, PRIOR TO ACTIONS, HEREINAFTER REFERRED TO, BY YOURSELF AND THE AGENCY TO ACCOMPLISH YOUR TRANSFER TO CHICAGO, YOU WERE ADVISED OF STEPS NECESSARY TO ENTITLE YOU TO SEVERANCE PAY AS FOLLOWS:

"MR. EVANS: REGARDING YOUR INQUIRY CONCERNING SEVERANCE PAY IN ORDER TO BE ELIGIBLE, YOU MUST RESIGN. SUCH RESIGNATION FROM YOUR FURLOUGH STATUS WOULD TAKE YOUR NAME OFF THE DOD STOPPER LIST AND WOULD PREVENT US FROM ISSUING YOU PERMANENT CHANGE OF STATION ORDERS IN THE EVENT YOU FOUND FURTHER FEDERAL EMPLOYMENT WITHIN THE DEPARTMENT OF THE ARMY.

"SO LONG AS YOU ARE IN A FURLOUGH STATUS WITH THIS OFFICE, IF YOU SECURED AN APPOINTMENT WITH AN AGENCY IN THE DEPT. OF ARMY, WE WOULD PAY FOR YOUR PCS TRAVEL TO YOUR NEW DUTY STATION.' IT APPEARS THAT SINCE YOU WERE NEGOTIATING AT THAT TIME FOR A JOB THROUGH THE CHICAGO DISTRICT CORPS OF ENGINEERS, YOU DID NOT THEN RESIGN OR REQUEST SEVERANCE PAY. ON OR ABOUT THIS TIME YOU WERE ADVISED OF A GS-9 POSITION AS CONSTRUCTION INSPECTOR (GENERAL) WITH THE CAL-SAG RESIDENT OFFICE, BLUE ISLAND, ILLINOIS, OF THE CHICAGO DISTRICT CORPS OF ENGINEERS, BY MRS. ZORKA T. MILLER OF THAT OFFICE.

ON APRIL 23, 1967, YOU SIGNED A TRANSPORTATION AGREEMENT IN CONNECTION WITH YOUR REASSIGNMENT FROM GREAT FALLS, MONTANA, TO BLUE ISLAND, ILLINOIS, WHICH AGREEMENT STATED AT THE TOP THEREOF ,EFFECTIVE DATE OF TRANSFER 8 MAY 1967," IN WHICH YOU AGREED:

"A. I WILL REMAIN IN THE EMPLOY OF THE DEPARTMENT OF ARMY FOR AT LEAST 12 MONTHS BEGINNING WITH THE EFFECTIVE DATE OF MY TRANSFER, UNLESS SEPARATED FOR REASONS BEYOND MY CONTROL AND ACCEPTABLE TO THE EMPLOYING ACTIVITY.

"B. IF I SEPARATE VOLUNTARILY FOR REASONS NOT ACCEPTABLE TO THE EMPLOYING ACTIVITY, OR IF I AM SEPARATED INVOLUNTARILY FOR MISCONDUCT OR OTHER REASONS, I WILL REIMBURSE THE U.S. GOVERNMENT FOR ALL MONEYS EXPENDED ON MY ACCOUNT FOR TRAVEL, TRANSPORTATION, AND OTHER RELATED EXPENSES, IF SUCH SEPARATION OCCURS PRIOR TO COMPLETION OF THE PRESCRIBED PERIOD STIPULATED IN THIS AGREEMENT.' A TRAVEL AUTHORIZATION DATED MAY 2, 1967, AUTHORIZED YOUR TRAVEL BETWEEN THOSE POINTS AND ALSO AN ADVANCE OF FUNDS IN THE AMOUNT OF $1,267.20. A FORM 50, NOTIFICATION OF PERSONNEL ACTION, DATED MAY 5, 1967, PROVIDED FOR YOUR APPOINTMENT TO THE POSITION OF CONSTRUCTION INSPECTOR (GENERAL) GS-0809-09 WITH THE CAL-SAG RESIDENT OFFICE, CHICAGO, ILLINOIS, EFFECTIVE SUNDAY, MAY 7, 1967.

ON MONDAY, MAY 8, 1967, YOU COMMENCED TRAVEL BY PRIVATELY OWNED AUTOMOBILE AND REPORTED AT THE CAL-SAG OFFICE AT 11:30 A.M. ON FRIDAY, MAY 12, 1967. YOU SPOKE TO THE RESIDENT ENGINEER, MR. GEORGE CAIRNS, THAT AFTERNOON, APPARENTLY EXPRESSING YOUR DIFFICULTY AT FINDING LIVING ACCOMMODATIONS THERE AND DECLINED TO COMPLETE THE APPOINTMENT PAPERS. YOU WERE EXCUSED BY MR. CAIRNS AT 2:30 P.M. FROM YOUR DUTIES FOR THE REMAINDER OF THE DAY.

ON THE FOLLOWING WORKDAY, MONDAY, MAY 15, 1967, YOU DID NOT REPORT FOR WORK HAVING IN THE MEANTIME RETURNED TO FORT MORGAN, COLORADO. ON THAT SAME DATE YOU INITIATED A LETTER TO THE PERSONNEL OFFICE, SEATTLE DISTRICT, REQUESTING SEVERANCE PAY FROM YOUR EARLIER POSITION WITH THE MALMSTROM AREA OFFICE. YOUR CORRESPONDENCE IN THIS REGARD WAS FORWARDED TO THE CHICAGO DISTRICT OFFICE WHICH ADVISED YOU ON MAY 26, 1967, THAT YOU WERE CONSIDERED TO BE ABSENT WITHOUT LEAVE SINCE MAY 15, 1967, AND REQUESTED YOU TO RETURN THE TRAVEL ADVANCE OF $1,267.20 IN ACCORDANCE WITH THE TRANSPORTATION AGREEMENT WHICH YOU SIGNED ON APRIL 23, 1967. YOU WERE FURTHER ADVISED THAT UNLESS YOUR RESIGNATION WAS INTENDED TO BE FROM THE POSITION WITH THE CAL-SAG OFFICE YOU WERE EXPECTED TO RETURN TO SUCH POSITION. IF YOU DID NOT DO SO, YOU WERE INFORMED THAT ACTION WOULD BE INITIATED TO REMOVE YOU.

FOLLOWING THIS YOU RETURNED THE ADVANCE TRAVEL MONEY ADVISING THE CHICAGO OFFICE THAT YOU INTENDED TO RESIGN FROM THE POSITION YOU HELD WITH THE SEATTLE DISTRICT. THE RECORD FURTHER INDICATES THAT THE OFFICE OF THE CHICAGO DISTRICT ENGINEER HAD PLACED YOU IN AN EMPLOYMENT AND PAY STATUS FROM MAY 7 THROUGH MAY 12, 1967, FOR WHICH YOU SUBSEQUENTLY RECEIVED A CHECK. YOU INDICATE YOU ARE HOLDING THE CHECK FOR SUCH PERIOD PENDING DISPOSITION OF THE PRESENT MATTER.

FOLLOWING A LETTER OF CHARGES DATED JULY 3, 1967, TO WHICH YOU REPLIED YOU WERE REMOVED FROM YOUR POSITION WITH THE CHICAGO OFFICE EFFECTIVE SEPTEMBER 12, 1967.

YOU NOW URGE THAT SINCE YOU (1) DID NOT REPORT FOR WORK OR AT WORK SITE AT THE CHICAGO DISTRICT CAL-SAG PROJECT OFFICE, (2) PAID YOUR OWN TRAVEL EXPENSES TO BLUE ISLAND, ILLINOIS, (3) DID NOT SIGN THE NECESSARY APPOINTMENT PAPERS UPON REPORTING AT THE CAL-SAG OFFICE, YOU NEVER BECAME AN EMPLOYEE OF THE CHICAGO OFFICE, DISTRICT CORPS OF ENGINEERS. YOU ALSO CONTEND THAT MANY OF THE STATEMENTS MADE BY THE AGENCY IN CONNECTION WITH OUR PRIOR SETTLEMENT IN YOUR CASE ARE UNTRUE.

THE FOREGOING FACTS INDICATE THAT PRIOR TO BEING FURLOUGHED YOU HAD REQUESTED TO BE PLACED ON THE DEPARTMENT OF THE ARMY'S AREA REEMPLOYMENT PRIORITY LIST AND THAT SUBSEQUENT THERETO YOU HAD BEEN IN CONTACT WITH THE ARMY CORPS OF ENGINEERS REGARDING SEVERAL POSITIONS. ALTHOUGH YOU HAD PREVIOUSLY BEEN ADVISED OF THE NECESSITY FOR RESIGNING IN ORDER TO BECOME ENTITLED TO SEVERANCE PAY UPON BEING INFORMED OF AN OPENING WITH THE CORPS IN BLUE ISLAND, ILLINOIS, YOU SIGNIFIED YOUR DESIRE ON APRIL 23, 1967, TO ACCEPT A POSITION AS A CONSTRUCTIVE REPRESENTATIVE, GS-9, AT THE CAL-SAG RESIDENT OFFICE BY SIGNING A TRANSPORTATION AGREEMENT TO SERVE FOR 12 MONTHS IN ORDER TO BECOME ELIGIBLE FOR THE ALLOWANCES UNDER PUBLIC LAW 89- 516, 80 STAT. 323. ON THE BASIS OF YOUR AGREEMENT TO SERVE, A DA FORM 662, DATED MAY 2, 1967, WAS ISSUED AUTHORIZING YOUR TRAVEL AND TRANSPORTATION EXPENSES AND THOSE OF YOUR WIFE, TEMPORARY STORAGE AND SHIPMENT OF YOUR HOUSEHOLD EFFECTS, AND OTHER EXPENSES PROVIDED UNDER PUBLIC LAW 89-516, FOR WHICH YOU WERE ADVANCED $1,267.20. SHORTLY THEREAFTER A NOTIFICATION OF PERSONNEL ACTION, FORM 50, DATED MAY 5, 1967, REASSIGNED YOU FROM MALMSTROM AREA OFFICE, TO THE CHICAGO DISTRICT CORPS OF ENGINEERS, CAL SAG RESIDENT OFFICE AND CHANGED YOUR STATUS FROM RIF (REDUCTION-IN FORCE) TO CAO (CHANGE OF APPOINTING OFFICE).

PURSUANT TO THE FOREGOING ACTIONS YOU WERE PICKED UP ON THE ROLLS OF THE CHICAGO OFFICE ON SUNDAY, MAY 7, 1967, AND COMMENCED TRAVELING THERETO ON MAY 8, 1967, ARRIVING ON MAY 12, 1967, AT WHICH TIME YOU WERE IN A DUTY STATUS. YOU PRESENTED YOURSELF AT THE OFFICE OF THE RESIDENT ENGINEER SEVERAL TIMES ON THAT DATE AND INFORMED HIM OF YOUR DIFFICULTIES IN OBTAINING HOUSING BUT FAILED TO SIGN CERTAIN PAPERS. YOU WERE REGARDED AS IN A DUTY AND PAY STATUS ON THIS DAY ALTHOUGH YOU PERFORMED NO DUTIES HAVING BEEN EXCUSED AT 2:30 P.M. FOR THE REMAINDER OF THE DAY TO ENABLE YOU TO FIND HOUSING.

IN YOUR MOST RECENT LETTER YOU INDICATE THAT MANY OF THE FACTS AND CONCLUSIONS SUPPLIED BY THE AGENCY ARE UNTRUE. HOWEVER, WE BELIEVE THAT THE DIFFERENCES PRIMARILY ARE MATTERS OF DIFFERENT CONCLUSIONS FROM THE SAME FACTS. MOREOVER, WE HAVE RESTATED ABOVE THE PERTINENT FACTS AS DISCLOSED BY THE RECORD INCLUDING YOUR LETTERS. OUR DETERMINATION OF YOUR CASE IS BASED UPON THE FACTS AS STATED HEREIN. IN THAT REGARD THE ADMINISTRATIVE DETERMINATION CONCERNING YOUR REMOVAL IS NOT A MATTER SUBJECT TO REVIEW BY OUR OFFICE, RATHER OUR FINDING RELATES TO THE CLAIM FOR SEVERANCE PAY.

THE FORM 50, DATED MAY 5, 1967, WAS EFFECTIVE FROM THE DATE STATED, MAY 7, 1967, TO REMOVE YOU FROM A FURLOUGH STATUS AND PLACE YOU IN A DUTY STATUS LOOKING TO YOUR EVENTUAL ATTACHMENT AT THE CAL-SAG PROJECT. UPON REPORTING AT THE PROJECT OFFICE IN A DUTY STATUS YOU BECAME ATTACHED THERETO FOR TRAVEL AND ALL OTHER PURPOSES.

YOUR SUBSEQUENT REMOVAL BY THE AGENCY UPON CHARGES OF ABSENCE WITHOUT LEAVE FROM YOUR GS-9 POSITION AT CHICAGO MAY NOT BE SAID TO BE A CASE OF AN EMPLOYEE "INVOLUNTARILY SEPARATED FROM THE SERVICE, NOT BY REMOVAL FOR CAUSE ON CHARGES OF MISCONDUCT, DELINQUENCY, OR INEFFICIENCY.' UNDER THE PROVISIONS OF 5 U.S.C. 5595B YOU ARE, THEREFORE, NOT ENTITLED TO SEVERANCE PAY ARISING FROM YOUR EMPLOYMENT COMMENCING ON MAY 7, 1967. ENTITLEMENT TO SEVERANCE PAY EXISTED FROM YOUR PRIOR EMPLOYMENT AT THE MALMSTROM AREA OFFICE BECAUSE YOU HAD NEVER BEEN INVOLUNTARILY SEPARATED FROM YOUR POSITION WITH THAT OFFICE PRIOR TO BEING REASSIGNED THEREFROM.

WITH RESPECT TO THE POINT YOU RAISED ABOUT NOT REPORTING FOR WORK, YOU PRESENTED YOURSELF AT THE PROJECT OFFICE IN BLUE ISLAND UNDER ORDERS AND IN A DUTY STATUS AND YOUR CONTENTION THAT YOU DID NOT REPORT FOR WORK DID NOT PREVENT YOUR BECOMING ATTACHED TO THAT ACTIVITY. INSOFAR AS PAYING YOUR OWN TRAVEL EXPENSES IS CONCERNED YOU WERE REQUIRED TO REFUND THEM UNDER THE TERMS OF THE TRANSPORTATION AGREEMENT WHICH YOU SIGNED PROVIDING FOR REPAYMENT IF YOU FAILED TO REMAIN IN THE EMPLOY OF THE DEPARTMENT OF THE ARMY FOR 12 MONTHS BEGINNING WITH THE DATE OF YOUR TRANSFER. WITH REGARD TO YOUR FAILURE TO SIGN VARIOUS APPOINTMENT PAPERS ON YOUR REPORTING AT THE PROJECT OFFICE AS PREVENTING YOUR TRANSFER THEIR NONEXECUTION DID NOT PREVENT YOUR BECOMING ATTACHED TO THAT ACTIVITY BY REASON OF THE ADMINISTRATIVE STEPS PREVIOUSLY UNDERTAKEN, INCLUDING THE OATH OF APPOINTMENT FROM YOUR PRIOR SERVICE, WHICH WAS STILL IN EFFECT, AND YOUR TRAVEL TO AND REPORTING AT THE OFFICE.

FOR THE FOREGOING REASONS OUR PRIOR OFFICE SETTLEMENT DENYING YOUR CLAIM FOR SEVERANCE PAY MUST BE AND IS SUSTAINED.