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B-150495, FEB. 21, 1963

B-150495 Feb 21, 1963
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FLUHR WAS RETIRED UPON THE BASIS OF SUCH RECORDS. THE RETIREMENT ACTION WAS APPEALED BY THE CLAIMANT TO THE CIVIL SERVICE COMMISSION AND HIS DATE OF BIRTH WAS SUBSEQUENTLY DETERMINED AS JUNE 22. BY THE COMMISSION HE WAS RETROACTIVELY RESTORED TO HIS POSITION AS POSTMASTER. FLUHR WAS CARRIED IN AN ANNUAL LEAVE STATUS FROM JULY 1. AT WHICH TIME HIS ANNUAL LEAVE WAS EXHAUSTED. HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS. FLUHR WAS CONTACTED BY THE ADMINISTRATIVE OFFICE. HE WAS PHYSICALLY UNABLE TO PERFORM THE DUTIES OF HIS OFFICE AT THAT TIME AND HE WOULD INFORM THE OFFICE WHEN HE WAS READY TO RESUME HIS POSITION. FLUHR INFORMED THE ADMINISTRATIVE OFFICE "I WILL BE GLAD TO TAKE THE POST OFFICE BACK AS SOON AS DR.

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B-150495, FEB. 21, 1963

TO MR. CHADWICK H. SMITH:

YOUR LETTER OF DECEMBER 7, 1962, REQUESTS REVIEW OF OUR SETTLEMENT OF NOVEMBER 13, 1962, WHICH DISALLOWED THE CLAIM OF MR. WILLIAM H. FLUHR FOR BACK PAY FOR THE PERIOD JULY 1, 1961, THROUGH JUNE 30, 1962, AS POSTMASTER, BELT, MONTANA.

THE RECORD SHOWS THAT MR. FLUHR STATED HIS DATE OF BIRTH ON THE OFFICIAL PERSONNEL RECORDS OF THE POST OFFICE DEPARTMENT AS JUNE 22, 1891. MR. FLUHR WAS RETIRED UPON THE BASIS OF SUCH RECORDS, EFFECTIVE JUNE 30, 1961, AT THE COMPULSORY RETIREMENT AGE OF 70 YEARS AS REQUIRED UNDER THE CIVIL SERVICE RETIREMENT ACT, AS AMENDED, 5 U.S.C. 2255. THE RETIREMENT ACTION WAS APPEALED BY THE CLAIMANT TO THE CIVIL SERVICE COMMISSION AND HIS DATE OF BIRTH WAS SUBSEQUENTLY DETERMINED AS JUNE 22, 1892, AND UPON A DIRECTIVE DATED FEBRUARY 14, 1962, BY THE COMMISSION HE WAS RETROACTIVELY RESTORED TO HIS POSITION AS POSTMASTER. MR. FLUHR WAS CARRIED IN AN ANNUAL LEAVE STATUS FROM JULY 1, 1961, TO SEPTEMBER 19, 1961, AT WHICH TIME HIS ANNUAL LEAVE WAS EXHAUSTED. FROM SEPTEMBER 20, 1961, TO JUNE 15, 1962, HE WAS CARRIED IN A LEAVE WITHOUT PAY STATUS.

THE RECORD SHOWS THAT ON FEBRUARY 23, 1962, MR. FLUHR WAS CONTACTED BY THE ADMINISTRATIVE OFFICE. HE STATED THAT DUE TO AN INJURY SUSTAINED ON FEBRUARY 18, 1962, HE WAS PHYSICALLY UNABLE TO PERFORM THE DUTIES OF HIS OFFICE AT THAT TIME AND HE WOULD INFORM THE OFFICE WHEN HE WAS READY TO RESUME HIS POSITION. ON APRIL 2, 1962, MR. FLUHR INFORMED THE ADMINISTRATIVE OFFICE "I WILL BE GLAD TO TAKE THE POST OFFICE BACK AS SOON AS DR. NORTHRUP RELEASES ME.' THERE IS NO RECORD THAT MR. FLUHR REQUESTED SICK LEAVE AT THAT TIME. ON JUNE 15, 1962, HE INFORMED THE DEPARTMENT THAT HE WOULD RESUME HIS POSITION; HOWEVER, HE REQUESTED AT THAT TIME TO BE PLACED IN A SICK LEAVE STATUS. HE WAS CARRIED IN A SICK LEAVE STATUS FROM JUNE 16, 1962, THROUGH JUNE 30, 1962, AT WHICH TIME HE WAS RETIRED AT THE AGE OF 70 YEARS UPON THE CORRECTED RECORD OF HIS DATE OF BIRTH.

THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, AUTHORIZING BACK PAY WHEN AN EMPLOYEE HAS BEEN SEPARATED FROM THE SERVICE AND UPON APPEAL IS ORDERED TO BE REINSTATED OR RESTORED TO DUTY UPON THE GROUND THAT SUCH REMOVAL WAS UNJUSTIFIED OR UNWARRANTED, HAS NO APPLICATION TO SEPARATIONS ON ACCOUNT OF RETIREMENT. SEE ELLMORE V. BRUCKER, 236 F.2D 734; MURPHY V. WILSON, ID. 737. MR. FLUHR WAS SEPARATED FROM THE SERVICE BY REASON OF HAVING ATTAINED THE AGE OF COMPULSORY RETIREMENT UNDER THE CIVIL SERVICE RETIREMENT ACT OF 1921, AS AMENDED, BASED UPON HIS OWN REPRESENTATIONS AS TO HIS DATE OF BIRTH WHICH HE FURNISHED THE DEPARTMENT TO BECOME A PART OF ITS PERMANENT OFFICIAL PERSONNEL RECORD. IN THESE CIRCUMSTANCES, OUR OPINION IS THAT MR. FLUHR'S SEPARATION WAS NOT WITHIN THE PURVIEW OF THE 1948 ACT. THEREFORE, UPON REVIEW, GENERAL ACCOUNTING OFFICE SETTLEMENT OF NOVEMBER 13, 1962, WITH RESPECT TO MR. FLUHR'S ENTITLEMENT TO BACK PAY IS SUSTAINED.

HOWEVER, MR. FLUHR FURTHER SAYS THAT HE BELIEVES HE HAD SUFFICIENT SICK LEAVE TO HIS CREDIT AS OF FEBRUARY 18, 1962, TO CARRY HIM IN A SICK LEAVE STATUS FOR THE PERIOD FEBRUARY 19, 1962, THROUGH JUNE 30, 1962. ALTHOUGH WE FIND NO CLEAR SHOWING OF RECORD THAT MR. FLUHR APPLIED FOR SICK LEAVE FOR THIS PERIOD WHEN HE WAS NOT ABLE TO PERFORM HIS OFFICIAL DUTIES, THE POST OFFICE DEPARTMENT WAS ASKED TO FURNISH US A REPORT CONCERNING HIS ENTITLEMENT TO ANY SICK LEAVE TO HIS CREDIT DURING THAT PERIOD.

A REPORT HAS NOW BEEN RECEIVED FROM THE DEPARTMENT THAT MR. FLUHR HAD 118 DAYS OF SICK LEAVE TO HIS CREDIT ON FEBRUARY 18, 1962. THE DEPARTMENT NOW PROPOSES TO AUTHORIZE THE REGIONAL CONTROLLER AT SEATTLE, WASHINGTON, TO RECORD MR. FLUHR'S ABSENCE DURING THE PERIOD FEBRUARY 19, 1962, THROUGH JUNE 14, 1962, AS BEING IN A SICK LEAVE STATUS. UNDER THE CIRCUMSTANCES, AND SINCE MR. FLUHR WAS CARRIED IN A SICK LEAVE STATUS FROM JUNE 16, THROUGH JUNE 30, 1962, WE HAVE TODAY ADVISED THE POST OFFICE DEPARTMENT THAT WE AGREE WITH THE PROPOSAL BY THE DEPARTMENT TO CARRY HIM IN A SICK LEAVE STATUS DURING THE PERIOD FEBRUARY 19, 1962, THROUGH JUNE 14, 1962, AND TO ADMINISTRATIVELY PAY HIM COMPENSATION FOR THAT PERIOD. ALSO, WE HAVE INFORMED THE POST OFFICE DEPARTMENT THAT, IF OTHERWISE CORRECT,COMPENSATION WOULD BE PAYABLE FOR JUNE 15, 1962, SINCE COMPENSATION HERETOFORE ALLOWED FOR SICK LEAVE COVERED THE PERIOD JUNE 16, 1962, TO JUNE 30, 1962.

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