B-131612, JUL. 9, 1957

B-131612, JUL. 9, 1957

TO MR. WILLIAM D. MCGRAW:

YOUR LETTER OF MAY 29, 1957, REQUESTS RECONSIDERATION OF OUR DECISION OF MAY 21, 1957, B-131612, WHICH SUSTAINED THE DISALLOWANCES OF YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES INCURRED IN TRAVEL PERFORMED BY YOU AND YOUR DEPENDENTS AND THE TRANSPORTATION OF YOUR HOUSEHOLD EFFECTS FROM TULLAHOMA, TENNESSEE, TO WASHINGTON, D.C. IN OUR INFORMAL DISCUSSION OF THE MATTER ON FRIDAY, JUNE 7, YOU FURTHER AMPLIFIED THE FACTS AND CIRCUMSTANCES OF YOUR CASE AND, BY LETTER OF JUNE 10, YOU TRANSMITTED CERTAIN ADDITIONAL DATA AND AGAIN OFFERED YOUR EXPLANATION OF SIGNIFICANT FACETS OF THE CASE.

THE EVIDENCE OF RECORD UPON WHICH OUR PREVIOUS ACTION WAS PREDICATED INDICATES THAT BY PERSONNEL ACTION DATED FEBRUARY 5, 1954, YOU WERE SEPARATED BY "RESIGNATION" EFFECTIVE JANUARY 29 OF THAT YEAR. YOU PERFORMED NO ACTUAL SERVICES AFTER JANUARY 29. ON OR ABOUT FEBRUARY 8 A LUMP-SUM LEAVE PAYMENT WAS MADE TO YOU COVERING THE ANNUAL LEAVE TO YOUR CREDIT ON JANUARY 29, 1954. MORE THAN A MONTH LATER YOU ACCEPTED A POSITION WITH THE CORPS OF ENGINEERS IN WASHINGTON, D.C. YOUR CLAIM IS PREDICATED UPON THE FACT THE TRANSACTION SHOULD HAVE BEEN HANDLED AS A TRANSFER BETWEEN TULLAHOMA DISTRICT AND THE CORPS OF ENGINEERS IN WASHINGTON. HOWEVER, NO ORDERS WERE ISSUED AUTHORIZING THE TRAVEL AND TRANSPORTATION IN QUESTION AND SUCH TRAVEL AND TRANSPORTATION HAVE NOT BEEN ADMINISTRATIVELY APPROVED AS BEING FOR THE CONVENIENCE OF THE GOVERNMENT.

BOTH IN YOUR WRITTEN AND VERBAL DISCUSSIONS OF THE CASE YOU SET FORTH FACTS AND CIRCUMSTANCES RELIED UPON AS NEGATIVING ANY LEGALLY EFFECTIVE RESIGNATION. YOU ALSO EMPHASIZE THAT THE SOLE REASON FOR THE REFUSAL OF THE DEPARTMENT OF THE ARMY TO ISSUE TRANSFER ORDERS IN YOUR CASE WAS BECAUSE IT WAS APPREHENSIVE THAT OUR OFFICE MIGHT TAKE THE VIEW THAT, SINCE YOUR SEPARATION WAS DATED AND MADE EFFECTIVE PRIOR TO YOUR ACCEPTANCE OF THE POSITION IN WASHINGTON, THERE WAS NO AUTHORITY FOR APPROVAL OF SUCH TRAVEL AS BEING INCIDENT TO A TRANSFER BETWEEN GOVERNMENT POSITIONS. HENCE, WERE WE TO CONCLUDE UPON OUR PRESENT CONSIDERATION OF THE CASE THAT THERE WAS NO EFFECTIVE RESIGNATION TERMINATING YOUR EMPLOYMENT RELATIONSHIP PRIOR TO YOUR ACCEPTANCE OF THE POSITION IN WASHINGTON, IT THEN WOULD BE APPROPRIATE FOR US TO ADVISE THE DEPARTMENT OF THE ARMY OF THIS CONCLUSION AND INQUIRE OF THAT DEPARTMENT WHETHER, IN THE CIRCUMSTANCES, THE TRAVEL AND TRANSPORTATION IN QUESTION MEETS WITH ITS APPROVAL. AS YOU KNOW, THE AUTHORITY TO APPROVE SUCH TRAVEL AND TRANSPORTATION IS VESTED IN THAT DEPARTMENT RATHER THAN IN OUR OFFICE.

WE HAVE REVIEWED CAREFULLY THE RECORD IN YOUR CASE IN THE LIGHT OF OUR INFORMAL DISCUSSION OF JUNE 7, AND THE INFORMATION CONTAINED IN YOUR LETTER OF JUNE 10, ESPECIALLY SO FAR AS IT CONCERNS THE LEGALITY OF YOUR RESIGNATION. OUR UNDERSTANDING OF THE SIGNIFICANT FACTS RELATING TO SUCH RESIGNATION IS AS FOLLOWS:

ON JANUARY 29, 1954, YOU SUBMITTED THE FOLLOWING RESIGNATION:

"1. I HEREBY SUBMIT MY RESIGNATION TO TAKE EFFECT AS OF NOON TODAY.

"2. HOWEVER, I AM ATTACHING HERETO A LEAVE CLIP REQUESTING APPROVAL OF ANNUAL LEAVE IN THE AMOUNT OF 346 HOURS WHICH I TRUST YOU MAY SEE YOUR WAY CLEAR TO APPROVE. IF THIS REQUEST IS GRANTED, THEN IN THAT EVENT, I REQUEST THAT MY RESIGNATION BECOME EFFECTIVE AS OF THE TERMINATION OF SUCH LEAVE.'

YOU SAY THAT THE DISTRICT ENGINEER, WHO WAS ABSENT ON LEAVE WHEN YOU SUBMITTED SUCH RESIGNATION, CALLED YOU THE SAME DAY--- AFTER HE HAD BEEN NOTIFIED OF YOUR ACTION--- AND REQUESTED THAT YOU DO NOTHING UNTIL HE HAD AN OPPORTUNITY TO TALK TO YOU ABOUT RECONSIDERING THE ACTION TAKEN. YOU AGREED TO COMPLY WITH HIS REQUEST.

WE ALSO UNDERSTAND THAT YOU AND THE DISTRICT ENGINEER MET AS ARRANGED ABOUT 1 WEEK LATER (TO THE BEST OF YOUR RECOLLECTION ON FEBRUARY 4), AT WHICH TIME HE REQUESTED THAT YOU WITHDRAW YOUR RESIGNATION SO AS NOT TO "LEAVE HIM IN THE LURCH.' APPARENTLY, YOU ALSO AGREED TO COMPLY WITH THIS REQUEST UNTIL A SHORT TIME LATER WHEN YOU WERE ADVISED THAT YOU COULD NOT BE GRANTED ANNUAL LEAVE FOR THE PERIOD OF APPROXIMATELY 1 WEEK FOLLOWING JANUARY 29 DURING WHICH YOU RENDERED NO SERVICES, AND THAT DURING SUCH PERIOD YOU WOULD BE CARRIED IN AN AWOL STATUS. SINCE YOU COULD NOT AGREE TO YOUR BEING PLACED IN AN AWOL STATUS, YOU "REQUESTED THAT THE SITUATION BE CONSIDERED CLOSED AS OF ITS STATUS ONE WEEK EARLIER WHEN I RESIGNED.' THIS QUOTE WAS TAKEN FROM YOUR MEMORANDUM, ENTITLED "THE FACTS," WHICH WAS AN ENCLOSURE TO YOUR LETTER OF AUGUST 1, 1955, TO THE SECRETARY OF THE ARMY. HOWEVER, IN THE ENCLOSURE TO YOUR LETTER OF JUNE 10 YOU SAY THAT YOU CANNOT REMEMBER THE EXACT WORDS USED IN YOUR CONCLUDING REMARKS TO THE DISTRICT ENGINEER ON FEBRUARY 4.

AS WE RECALL, YOU SAID IN OUR RECENT DISCUSSION--- AND THE SAME SEEMS TO BE BORNE OUT BY YOUR LETTER OF JUNE 10--- THAT YOU INTENDED BY YOUR CONCLUDING REMARKS TO THE DISTRICT ENGINEER ON FEBRUARY 4 MERELY TO CONVEY TO HIM THAT YOU NO LONGER WANTED TO WORK IN THE ACTIVITY UNDER HIS COMMAND --- NOT THAT YOU WANTED TO COMPLETELY SEVER YOUR EMPLOYMENT RELATIONSHIP WITH THE GOVERNMENT. YOU ALSO SAID THAT LATER THE SAME AFTERNOON OF YOUR MEETING WITH THE DISTRICT ENGINEER, OR PERHAPS EARLY THE NEXT MORNING, YOU WENT TO THE PERSONNEL DIVISION AND TOLD A MR. SHAW, WHO, YOU SAY, WAS THE ONLY ONE PRESENT IN THAT DIVISION AT THE TIME, THAT YOU DID NOT KNOW WHAT YOU WERE GOING TO DO AND THAT YOU WOULD APPRECIATE IT IF NOTHING WERE DONE ABOUT YOUR PAPERS UNTIL ALL YOUR LEAVE HAD EXPIRED. IT WAS YOUR UNDERSTANDING THAT MR. SHAW AGREED TO COMPLY WITH THAT REQUEST. YOU SAY THAT THIS ACTION EVIDENCES AN INTENT ON YOUR PART NOT TO RESIGN UNTIL A LATER TIME.

HOWEVER, IT IS NOT SHOWN THAT THE DISTRICT ENGINEER WAS AWARE OF YOUR CONVERSATION WITH MR. SHAW AT THE TIME HE ORDERED OR APPROVED OF THE ACCEPTANCE OF YOUR RESIGNATION. YOU REFER TO CERTAIN STATEMENTS IN THE DISTRICT ENGINEER'S LETTER OF MAY 4, 1955, TO YOU AS EVIDENCING THAT HE DID NOT REGARD YOUR CONCLUDING REMARKS ON FEBRUARY 4 AS A REQUEST THAT THE "SITUATION HE CONSIDERED CLOSED AS OF ITS STATUS ONE WEEK EARLIER WHEN I RESIGNED.' WE HAVE RE-EXAMINED THE LETTER OF MAY 4 CAREFULLY AND DO NOT FIND IT HELPFUL IN DETERMINING THE DISTRICT ENGINEER'S UNDERSTANDING AND INTENT AT THE TIME HE ORDERED OR APPROVED THE FORMAL ACCEPTANCE OF YOUR RESIGNATION.

THE FACTS OF RECORD INDICATE THAT SHORTLY AFTER YOUR CONCLUDING REMARKS ON FEBRUARY 4 THE DISTRICT ENGINEER MUST HAVE ORDERED THE PROCESSING OF THE NECESSARY PERSONNEL ACTION FORMS IN YOUR CASE AND IT REASONABLY APPEARS FROM THE SEQUENCE OF EVENTS FOLLOWING YOUR MEETING ON FEBRUARY 4 THAT HE UNDERSTOOD YOUR CONCLUDING REMARKS IN THAT MEETING AS A REQUEST TO CLOSE THE MATTER AS OF ITS STATUS ONE WEEK EARLIER WHEN YOU RESIGNED. CONSIDER THAT HIS UNDERSTANDING--- AS EVIDENCED BY THE ADMINISTRATIVE ACTION TAKEN SHORTLY AFTER YOUR CONCLUDING REMARKS ON FEBRUARY 4--- IN THIS REGARD WAS REASONABLE, REGARDLESS OF WHAT MAY HAVE BEEN YOUR SUBJECTIVE INTENT. THUS, IT APPEARS THAT, IN FACT, A VALID SEPARATION FROM THE SERVICE OCCURRED.

WHILE WE ARE SYMPATHETIC WITH THE FINANCIAL SITUATION WITH WHICH YOU WERE CONFRONTED, WE DO NOT CONSIDER A SUFFICIENT LEGAL BASIS EXISTS FOR QUESTIONING THE LEGALITY OF THE SEPARATION ACTION TAKEN OR THE LUMP-SUM LEAVE PAYMENT MADE IN YOUR CASE. IN VIEW THEREOF, REFERRAL OF THE MATTER TO THE DEPARTMENT OF THE ARMY FOR APPROVAL OF THE TRAVEL AND TRANSPORTATION INVOLVED WOULD SERVE NO USEFUL PURPOSE. OUR DECISION OF MAY 21, 1957, THEREFORE, IS AFFIRMED.