B-124963, SEP. 19, 1955

B-124963: Sep 19, 1955

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YOU SAY THAT FOLLOWING AN IMPROPER SUSPENSION YOU WERE RESTORED TO DUTY ON SEPTEMBER 9. THAT YOU WERE PAID BACK PAY COVERING THE PERIOD OF SUCH SUSPENSION. YOU WERE ASKED TO SIGN A REQUEST THAT YOU BE CARRIED IN A LEAVE WITHOUT-PAY STATUS. WHICH WAS FORCED UPON ME AS I HAD NO OTHER COURSE OF ACTION LEFT. THE SOLE AUTHORITY UNDER WHICH OUR OFFICE MAY ALLOW BACK PAY COVERING PERIODS OF UNWARRANTED SUSPENSIONS OR SEPARATIONS IS THAT CONTAINED IN SECTION 6 OF THE ACT OF AUGUST 24. AN EMPLOYEE MUST HAVE BEEN REMOVED OR SUSPENDED. SUCH REMOVAL OR SUSPENSION MUST HAVE BEEN DETERMINED BY PROPER AUTHORITY TO HAVE BEEN UNJUSTIFIED OR UNWARRANTED. THERE MUST HAVE BEEN A RESTORATION (ACTUAL OR CONSTRUCTIVE) TO THE ROLLS OF THE AGENCY.

B-124963, SEP. 19, 1955

TO MR. MARION F. JACKSON:

YOUR LETTER OF JULY 20, 1955, HAS BEEN GIVEN CAREFUL CONSIDERATION BUT WE DO NOT CONSIDER THAT THE CIRCUMSTANCES SET FORTH THEREIN LAWFULLY ENTITLE YOU TO BACK PAY FOR THE PERIOD SEPTEMBER 10, 1954, TO APRIL 18, 1955.

YOU SAY THAT FOLLOWING AN IMPROPER SUSPENSION YOU WERE RESTORED TO DUTY ON SEPTEMBER 9, 1954, AND THAT YOU WERE PAID BACK PAY COVERING THE PERIOD OF SUCH SUSPENSION, APRIL 9 TO SEPTEMBER 9, 1954. YOU FURTHER SAY THAT ON SEPTEMBER 9, THE DATE OF YOUR RESTORATION TO DUTY, YOU WERE ASKED TO SIGN A REQUEST THAT YOU BE CARRIED IN A LEAVE WITHOUT-PAY STATUS. YOU REFUSED TO SIGN SUCH REQUEST AND, WHEN ASKED WHAT COURSE OF ACTION YOU INTENDED TO PURSUE, YOU ADVISED ADMINISTRATIVE OFFICIALS YOU WOULD RESIGN. YOUR RESIGNATION BECAME EFFECTIVE SEPTEMBER 10, 1954. IN THAT CONNECTION, YOU SAY "WHEN I ADVISED THEM I WOULD RESIGN, WHICH WAS FORCED UPON ME AS I HAD NO OTHER COURSE OF ACTION LEFT, THEY ACCEPTED GLADLY.'

THE SOLE AUTHORITY UNDER WHICH OUR OFFICE MAY ALLOW BACK PAY COVERING PERIODS OF UNWARRANTED SUSPENSIONS OR SEPARATIONS IS THAT CONTAINED IN SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354. IN ORDER TO QUALIFY FOR BACK PAY UNDER THAT STATUTE, AN EMPLOYEE MUST HAVE BEEN REMOVED OR SUSPENDED; SUCH REMOVAL OR SUSPENSION MUST HAVE BEEN DETERMINED BY PROPER AUTHORITY TO HAVE BEEN UNJUSTIFIED OR UNWARRANTED, AND THERE MUST HAVE BEEN A RESTORATION (ACTUAL OR CONSTRUCTIVE) TO THE ROLLS OF THE AGENCY. IN YOUR CASE THERE WAS NO REMOVAL. YOU RESIGNED. WHILE YOU FEEL THAT UNDER THE CIRCUMSTANCES SUCH RESIGNATION WAS TANTAMOUNT TO AN UNWARRANTED SEPARATION, IT IS NOT WITHIN OUR AUTHORITY TO MAKE A DETERMINATION UPON THAT ISSUE. ANY SUCH DETERMINATION WOULD APPEAR TO BE A MATTER FOR THE CIVIL SERVICE COMMISSION. APPARENTLY, HOWEVER, YOU HAVE MADE NO APPEAL TO THE COMMISSION AND THE COMMISSION HAS NOT DETERMINED THAT YOU WERE IMPROPERLY REMOVED AND ORDERED YOUR RESTORATION. THUS, AS THE MATTER NOW STANDS YOU FAIL TO MEET THE CONDITIONS OF ELIGIBILITY FOR BACK PAY PRESCRIBED BY THE CITED STATUTE.

WE DEEPLY APPRECIATE THE ASSISTANCE YOU RENDERED OUR OFFICE IN CONNECTION WITH OUR INVESTIGATION OF THE DESERET CHEMICAL DEPOT BUT UNFORTUNATELY, BECAUSE OF THE EXPRESS REQUIREMENTS OF THE APPLICABLE LAW, WE ARE WITHOUT AUTHORITY TO APPROVE PAYMENT OF COMPENSATION TO YOU FOR THE PERIOD SEPTEMBER 10, 1954, TO APRIL 18, 1955, AS CLAIMED.