B-171281, MAR 3, 1971
Highlights
WHO WAS ORDERED TO ACTIVE DUTY AS A RESERVIST CAN ESTABLISH THAT HE MADE ATTEMPTS TO BE RESTORED TO HIS FORMER POSITION. MORRIS: THIS IS IN REFERENCE TO YOUR LETTERS DATED OCTOBER 15 AND 30. YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 21. FOR THE REASON THAT THE RECORD DID NOT ESTABLISH THAT YOU WERE REFUSED RESTORATION UNDER 5 U.S.C. 3551 BY THE NAVAL AIR STATION NOR THAT YOU WERE REEMPLOYED BY THAT AGENCY BECAUSE OF A CORRECTION OF AN UNWARRANTED PERSONNEL ACTION SO AS TO ENTITLE YOU TO BACK PAY BENEFITS UNDER THE BACK PAY ACT OF 1966. IT APPEARS THAT YOU WERE EMPLOYED BY THE U.S. AT THE TIME YOU WERE ORDERED TO ACTIVE DUTY ON JUNE 29. YOU WERE SEPARATED FROM THE UNITED STATES AIR FORCE (RETIREMENT) ON OCTOBER 31.
B-171281, MAR 3, 1971
CIVILIAN EMPLOYEE - BACK PAY ADVISING THAT IF AN EMPLOYEE AT THE U.S. NAVAL AIR STATION, PENSACOLA, FLA., WHO WAS ORDERED TO ACTIVE DUTY AS A RESERVIST CAN ESTABLISH THAT HE MADE ATTEMPTS TO BE RESTORED TO HIS FORMER POSITION, HIS CLAIM FOR BACK PAY MAY BE GRANTED.
TO MR. WILLIAM A. MORRIS:
THIS IS IN REFERENCE TO YOUR LETTERS DATED OCTOBER 15 AND 30, 1970, CONCERNING YOUR CLAIM FOR BACK PAY FOR THE PERIOD NOVEMBER 1, 1966, TO MAY 1, 1967, FOR FAILURE TO BE RESTORED TO THE POSITION YOU HELD WITH THE DEPARTMENT OF THE NAVY WHEN ORDERED TO ACTIVE DUTY AS A RESERVIST, IN ACCORDANCE WITH 5 U.S.C. 3551.
YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED OCTOBER 21, 1970, FOR THE REASON THAT THE RECORD DID NOT ESTABLISH THAT YOU WERE REFUSED RESTORATION UNDER 5 U.S.C. 3551 BY THE NAVAL AIR STATION NOR THAT YOU WERE REEMPLOYED BY THAT AGENCY BECAUSE OF A CORRECTION OF AN UNWARRANTED PERSONNEL ACTION SO AS TO ENTITLE YOU TO BACK PAY BENEFITS UNDER THE BACK PAY ACT OF 1966, NOW 5 U.S.C. 5596.
IT APPEARS THAT YOU WERE EMPLOYED BY THE U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA, AS AN AIRCRAFT MECHANIC (GENERAL), WB-11, 3RD STEP, AT THE TIME YOU WERE ORDERED TO ACTIVE DUTY ON JUNE 29, 1951. YOU WERE SEPARATED FROM THE UNITED STATES AIR FORCE (RETIREMENT) ON OCTOBER 31, 1966, AND ACCEPTED A POSITION WITH THE DEPARTMENT OF THE AIR FORCE ON MAY 1, 1967.
IT IS YOUR CONTENTION THAT ON TWO OCCASIONS PRIOR TO MAY 1, 1967, THE U.S. NAVY CIVILIAN PERSONNEL DEPARTMENT, NAVAL AIR STATION, PENSACOLA, FLORIDA, REFUSED TO RESTORE YOU TO THE POSITION YOU HELD WHEN YOU WERE INVOLUNTARILY RECALLED TO ACTIVE DUTY. IF THE CONTENTION COULD BE ESTABLISHED AND CORRECTIVE ACTION TAKEN TO RESTORE YOU, IT MIGHT BE THAT FAVORABLE CONSIDERATION COULD BE GIVEN TO YOUR CLAIM. HOWEVER, A FULL REPORT HAS BEEN REQUESTED FROM THE ADMINISTRATIVE OFFICE ON TWO OCCASIONS ON THE BASIS OF YOUR CONTENTIONS, AND IN EACH REPORT, THE LATEST OF WHICH IS DATED JANUARY 29, 1971, WE HAVE BEEN ADVISED THAT THERE IS NO RECORD OF A WRITTEN APPLICATION HAVING BEEN MADE BY YOU FOR RESTORATION TO YOUR FORMER POSITION, NOR CAN ANYONE RECALL HAVING RECEIVED A VERBAL REQUEST THEREFOR. WE HAVE CONSISTENTLY HELD THAT IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS OF AN ADMINISTRATIVE REPORT, THIS OFFICE WILL ACCEPT THE ADMINISTRATIVE REPORT AS ACCURATELY REFLECTING THE FACTS. 41 COMP. GEN. 47, 54 (1961). THERE IS NO EVIDENCE IN THE RECORD BEFORE THIS OFFICE TO OVERCOME THE PRESUMPTION IN FAVOR OF THE ADMINISTRATIVE REPORT.
IN VIEW OF THE FOREGOING THE DISALLOWANCE OF YOUR CLAIM FOR BACK PAY IS SUSTAINED.